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Turner v. Farmers' Loan Trust Company/Opinion of the Court

This suit was commenced on the twenty-first day of November, 1874, in the circuit court for De Witt county, Illinois, by Malcolm C. Turner, James Turner, and others, constituting the firm of Turner Bros., against the Indianapolis, Bloomington & Western Railway Company, the Farmers' Loan & Trust Company, and others. The complainants, suing in behalf of themselves and all other bondholders and creditors of the railway company, asked a decree for the foreclosure of several mortgages, covering as well its property and franchises as the road and franchises of the constituent companies, by whose consolidation it was created. The Farmers' Loan & Trust Company appeared and answered. It also filed a cross-bill, making all necessary parties defendant thereto; and, as trustee in some of the mortgages creating prior liens upon the main line of the consolidated road, it prayed for a decree of foreclosure, a sale of the mortgaged property, and a proper distribution of the proceeds arising therefrom among the several classes of creditors of the railway company. Subsequently, on the twenty-sixth of April, 1876, it filed a petition, accompanied by a sufficient bond, for the removal of the suit into the circuit court of the United States for the southern district of Illinois; and thereafter, it is asserted, the state court proceeded no further. A transcript of the proceedings having been filed in the circuit court of the United States, a motion was there made to remand the cause, while the Farmers' Loan & Trust Company moved that the court take jurisdiction. By an order entered on the nineteenth day of July, 1876, the former motion was denied and the latter sustained.

On the eighteenth day of July, 1877, a final decree was passed, ascertaining the amounts due and unpaid on the mortgages to the Farmers' Loan & Trust Company. By that decree it was ordered and adjudged that the railway company, within 20 days thereafter, pay the trustee the amount so ascertained, ($6,234,625,) with interest from the date of the decree; that in default of such payment the equity of all the defendants to the cross-bill, in the mortgaged property, be forever barred and foreclosed, and the property-which included all the rights, effects, and franchises of the consolidated company, and of its constituent companies, as to the main line of road-be sold as an entirety, the same being, in the opinion and judgment of the court, incapable of sale separately or in division without material injury to its value. It was further decreed that the mortgaged property be sold without appraisement and without reference, and not subject to any law of Illinois or Indiana, conferring the right of redemption from mortgage sales. On the eighth day of May, 1878, the original decree was amended by way of further direction for its execution. The sale occurred on the thirtieth day of October, 1878, was reported to court on the succeeding day, and on the first day of November, 1878, exceptions thereto were filed by James Turner and the railway company. On the twenty-third of December, 1878, the exceptions were overruled, and an order entered confirming and approving the sale in all respects. On the third day of February, 1879, Turner and the railway company filed their joint petition, praying an appeal from the final order confirming the sale. The appear was allowed, and the bond tendered was approved, not to operate as a supersedeas. Subsequently the purchaser received a deed and took possession of the property under the direction of the court. It may be stated that a similar decree was entered in the circuit court of the United States for the district of Indiana, in a suit pending therein between, substantially, the same parties and relating to the same property. That suit was commenced on the eighteenth day of November, 1874, in the circuit court for Montgomery county, Indiana, and thence removed into the federal court upon the petition of the Farmers' Loan & Trust Company.

Notwithstanding the record is very voluminous, it is believed that this statement is sufficient to indicate the grounds upon which this court rests its determination of the case.

Numerous errors have been assigned in behalf of the appellants, James Turner and the Indianapolis, Bloomington & Western Railway Company. The first and most important one relates to the jurisdiction of the circuit court of the United States. Their contention is that under the act of March 3, 1875, the state court could not have been deprived of jurisdiction to proceed, unless the petition for removal was filed 'before or at the term at which such cause could be first tried and before the trial thereof;' that the petition of the Farmers' Loan & Trust Company was not so filed; consequently, it is insisted, jurisdiction in the federal court could not have attached. It is further argued that the pleadings disclose the fact that there was no such controversy in this suit, between citizens of different states, as would authorize its removal from the state court under the act of March 3, 1875, or under that of March 2, 1867, even if the latter is in force for any purpose.

Without admitting the soundness of these propositions, we are of opinion that the questions of jurisdiction now raised cannot be determined upon an appeal merely from the order confirming the report of sale. Whether the suit was one which the Farmers' Loan & Trust Company was entitled to have removed,-that is, whether the circuit court of the United States could rightfully proceed after the petition for removal, accompanied by a sufficient bond, had been filed in the state court,-was a question directly presented to that court for judicial determination upon the motion that the cause be remanded. The denial of that motion constituted an adjudication by the federal court that the facts existed which were necessary to give jurisdiction. And had the question not been thus formally presented, it was the duty of the circuit court to dismiss or remand the cause, as justice might have required, at any time during its progress, when it appeared that the suit did not really or substantially involve a dispute or controversy properly within its jurisdiction. Act of March 3, 1875, § 5; Williams v. Nottawa, 104 U.S. 209.

Further, the final decree necessarily involved, and was itself, a judicial determination, as between the parties, that the suit was one of which that court might take cognizance. That decree, unmodified and unchallenged by any direct appeal therefrom, should, upon this appeal only from the order confirming the sale, be deemed conclusive, between the parties and their privies, as to all matters in issue and by it adjudicated, including the questions of jurisdiction now pressed upon our attention. Such, we think, must be the rule, especially under existing statutes regulating the jurisdiction of the courts of the United States. Whether or not a cause, commenced in a state court, could have been tried at some term thereof prior to the filing of a petition for removal; whether the parties to a particular suit, without regard to their position as plaintiffs or defendants, can be so arranged on different sides of the controversy as to make a proper case for removal upon the ground of citizenship, (Removal Cases, 100 U.S. 457;) whether there is in the suit a separable controversy between citizens of different states to which the judicial power of the United States extends,-are often questions difficult of solution. We have held in numerous cases that upon the filing of a petition and bond for removal in the state court, the suit being removable under the statute, its jurisdiction ceases. And to the end that litigants may not, in such cases, be harassed by doubts as to which court has authority to proceed, the party, against whom the removal is had, is at liberty to move that the suit be remanded; and the act of 1875, for the first time in the legislation of congress, declares that an order of the circuit court remanding a cause may, in advance of the final judgment or decree therein, be reviewed by this court on writ of error or appeal, as the case may require the one or the other mode to be pursued. Prior to that act the remedy, in that class of cases, was by mandamus to compel the circuit court to hear and determine the cause. Babbitt v. Clark, 103 U.S. 606; Railroad Co. v. Wiswall, 23 Wall. 507; ''Ins. Co. v. Comstock'', 16 Wall. 258.

When the circuit court assumes jurisdiction of the cause, the party denying its authority to do so may, after final decree and by a direct appeal therefrom, bring the case here for review upon the question of jurisdiction, the amount in dispute being sufficient for that purpose. Railroad Co. v. Koontz, 104 U.S. 15. In the present case we have seen that the appeal is only from the order confirming the sale. Appellants elected not to appeal from the final decree, although it necessarily involved every question affecting the jurisdiction of the circuit court. That decree is, consequently, not before us for any purpose, except to ascertain, from an inspection thereof, whether the sale was conducted in conformity with its provisions. In such cases, upon an appeal, not from the final decree, but only from an order in execution thereof, the court will not examine the record, prior to such decree, to see whether the petition for removal was filed in due time, or whether it makes a case of federal jurisdiction, by reason of the presence in the suit of a controversy between citizens of different states, but will assume that the final decree, being passed by a court of general jurisdiction, and not showing upon its face a want of jurisdiction as to subject-matter or parties, was within the power of the court to render. Whether the order confirming the sale would have been erroneous, had the decree itself disclosed, affirmatively, a want of jurisdiction, is a question which need not be decided.

What we have said disposes of numerous other assignments of error, such as that the court erred in decreeing that the property of the railroad company be sold without appraisement and without reference, and not subject to the laws of Illinois and Indiana conferring the right of redemption from sales of mortgaged real estate; in ordering the railroad and other property to be sold without first ascertaining what claims existed which were prior in lien to the mortgages foreclosed; in amending the decree of September, 1877, after the expiration of the term at which it was entered; in ordering the cross-bill of the Farmers' Loan & Trust Company to be taken by default as against the complainants in the original bill, after it appeared that they had become bankrupts, and their property and rights had passed to an assignee in bankruptcy, who was not made a party to the cause; in decreeing the personal property to the railroad company to be sold, and in subsequently delivering it to the purchasers, in disregard of the alleged rights of appellants under the chattel mortgage executed to Thomas on the sixteenth day of November, 1874; in refusing to entertain appellant Turner's petition to intervene, filed on the day of sale; and in directing a foreclosure and sale of the property for the principal and interest of the debt secured by the mortgage, when, as is claimed, it did not appear that the principal had become due.

We do not stop to consider whether these objections find any support in the record, since it is sufficient to say that, if any such errors exist, they necessarily inhere, some in the final decree of foreclosure and sale, and others in the orders which preceded it. They cannot be examined upon an appeal merely from the order confirming the report of sale. Our authority extends, as we have shown, no further than to an examination of the exceptions filed by appellants to the report of sale, from the order confirming which this appeal is taken. And some of these exceptions plainly have reference, not to the sale itself, but to the final decree of foreclosure; such, for instance, as that the terms of sale were too onerous; that the property was sold subject to various claims, the amount of which was wholly uncertain; and that the court had no jurisdiction in the case. The only exceptions which properly relate to the sale are that the price at which the property was struck off and sold-$1,000,000-was inadequate and insufficient; and that the property was not advertised for a sufficient length of time. It is enough to say that the record discloses no ground upon which these exceptions could have been sustained. One exception was to the effect that the purchasers at the sale constituted a committee, acting as agents of bondholders of the railway company, and that the report of sale did not disclose the names of the principals for whose use the property was purchased, or the amount to which each of said parties was beneficially interested. We are unable to perceive anything of substance in this exception. Since the sale was, in all material respects, in conformity with the final decree, from which no appeal was prayed, and since the record discloses no ground upon which its fairness can be impeached, the court below properly overruled the exceptions and confirmed the sale. The order appealed from must, consequently, be affirmed. It is so ordered.


text: Talk:Turner v. Farmers' Loan Trust Company/Opinion of the Court

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Merchants' Manufacturers' National Bank of Pittsburgh v. Slagle

''Jno. Dalzell and J. F. Slagle'', for appellants.

''Geo. Shiras, Jr.'', for appellees.

MILLER, J.


text: Talk:Merchants' Manufacturers' National Bank of Pittsburgh v. Slagle


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Merchants' Manufacturers' National Bank of Pittsburgh v. Slagle/Opinion of the Court

Christopher Zug and Charles H. Zug, composing the partnership of Zug & Co., were, on their own petition of May 11, 1876, declared bankrupts by the district court for the western district of Pennsylvania. At the first meeting of the creditors John S. Slagle and Reuben Miller were appointed trustees, and Smith, Dunlap, and Clarke a committee of creditors, under section 5103 of the Revised Statutes; which action of the creditors was duly approved by order of the district court. The trustees having disposed of the property of the bankrupts, of which the Sable Iron Works, sold for $130,000 was the principal item, and made out their final accounts of the copartnership assets and the individual assets, which was approved by the committee, made an order of distribution among the creditors. Thereupon William Coleman and others, creditors of Christopher Zug, individually, applied to the district court and obtained a rule on the trustees to make report of their order for distribution and file it in that court, and took exceptions to said report, in which the separate creditors of Charles Zug joined, on the ground that the Sable Iron Works had never been partnership property, but that the title was held by the two Zugs as tenants in common, in the proportion of four-fifths by Christopher and one-fifth by Charles. On final hearing of these exceptions they were sustained and an order made for the distribution of the proceeds of the sale of the iron works to the private creditors of the individuals who composed the partnership, on that basis. An appeal was taken to the circuit court from this order, which was dismissed on the ground that no appeal lay from such an order. At the same time, in a proceeding under the supervisory power of the circuit court, a full hearing was had on the merits and the action of the district court affirmed. From that order an appeal was taken to this court, which was dismissed on the ground that, being a proceeding under the supervisory power of the circuit court, it was not reviewable here. 95 U.S. 266. In that case it was urged that the district court, in assuming to control the trustees in the distribution of the fund in their hands, acted without jurisdiction, and that its order was void; to which this court responded by saying: 'If, as is claimed, the district court acted without jurisdiction or in a manner not to bind the parties, its decree as made was void; and the aggrieved partnership creditors may very properly consider whether they cannot proceed in equity to call the trustees to a proper accounting and distribution. Upon that question, however, we express no opinion.'

It is said that the suit now before us on appeal was commenced under this suggestion, in which the partnership creditors, calling into court the trustees and the individual creditors, seek to have the sum arising from the sale of the Sable Iron Works distributed among the former alone. As this would require the order of the district court on that subject to be set aside and reversed, or disregarded as a nullity, we are compelled to consider, before we proceed further, if this can be done. All known modes of review of that order have been exhausted. The appeal from it to the circuit court was dismissed, whether rightfully or not cannot now be inquired into. On the petition of review, which was legitimate mode of correcting the error if one existed, the circuit court affirmed the order of the district court, and from that decree, as we decided in Nimick v. Coleman, 95 U.S. 266, there could be no further appeal. It only remains to inquire if it was absolutely void for want of jurisdiction of the district court to make it. It is strenuously argued that when the estate of the bankrupt passes to the trustees appointed under the provisions of section 5103 of the Revised Statutes, the power of the district court as a court of bankruptcy over them and over their proceedings ceases, and that they become invested with a judicial function which is amenable to no other court. That as to collection and distribution of the bankrupt's assets, the case has been taken out of the category of bankrupt proceedings and wholly withdrawn from the control of the district court. It is difficult to perceive any plausible reason for this idea. The meeting of the creditors, which may appoint the trustees and the committee, must be one held after the court has made an adjudication of bankruptcy and ordered such a meeting. The resolution of the meeting for setting the estate under this section by trustees and a committee, and the appointment of the trustees and committee, must be presented to the court and be approved by it or they are of no force. The trustees are declared to have and to hold the property in the same manner and with the same powers and rights, in all respects, as the bankrupt would have had if no proceeding in bankruptcy had been taken, or as the assignee in bankruptcy would have done had such resolution not been passed, showing thus that their powers were compounded of that of the owner and of the ordinary assignee in bankruptcy. The court by order is to direct all acts and things needful to be done to carry into effect the resolution of the creditors, and the winding up and settlement of any estate under the provision of this section shall be deemed to be proceedings in bankruptcy, and the trustees shall have all the rights and powers of assignees in bankruptcy. It further provides that the court may compel the production of witnesses, books, and papers before the trustees, in the same manner as in other cases of bankruptcy, and that the bankrupt shall in like manner be entitled to his discharge.

Under section 4972 of the Revised Statutes, 'the jurisdiction of the district courts as courts of bankruptcy extends * *  * to the collection of all the assets of the bankrupt; *  *  * to the adjustment of the various priorities and conflicting interests of all parties; *  *  * to the marshaling and disposition of the different funds and assets, so as to secure the rights of all parties and due distribution of the assets among all his creditors; *  *  * to all acts, matters, and things to be done under and in virtue of the bankruptcy, until the final distribution and settlement of the estate of the bankrupt and the close of the proceedings in bankruptcy.' Is there anything in section 5103 in conflict with this comprehensive declaration of the powers of the district court over a case in bankruptcy 'until the final distribution and settlement of the estate?' On the contrary, it is one of the express provisions of the latter section that 'the winding up and settlement of any estate under provisions of this section shall be deemed to be proceedings in bankruptcy,' and the section is full of directions to the court to aid in this settlement, and the trustees are twice assimilated in their functions to those of an assignee in bankruptcy. We are unable to see any judicial functions conferred on these trustees. Their powers, though somewhat enlarged, are in the main the same as those of the assignee, and are properly ministerial. It is true, they may do many things without an order of the court which an assignee could not do, such as selling property, allowing claims, and compromising disputes about rights of property. We might even hold that their order of final distribution would be valid if uncontested. Moorsv. Albro, valid of uncontested. Moors v. Albro, this we are of opinion that their action is subject to the revision and final control of the district court whenever that is invoked in aid of the substantial rights of any one interested in what they do. It is inconceivable that congress intended to create in them an imperium in imperio, whose actions, however wrong, could be reached by no tribunal whatever. And if any supervision of their acts is to be had at all, it is very clear that the district court is the one to whom that duty is confided.

A case, bearing a strong analogy to this, is that of Wilmot v. Mudge, 103 U.S. 217, in which it was decided that a composition order, under the act of June 22, 1874, was a bankruptcy proceeding, and that, notwithstanding the act declared that such a composition should be binding on all the creditors, it did not discharge the bankrupt from debts created by fraud; because the act of 1874 was in pari materia with the general bankrupt law, and was not inconsistent with section 5117 of the Revised Statutes, in regard to debts created by fraud. That was a stronger case than this in favor of the argument that a composition was a proceeding which took the case out of the other provisions of the bankrupt law, for the statute which authorized it was passed long after the general law and after the revision. In the present case the trustee section is a part of the original statute of bankruptcy, and contains in itself the declaration that what is done under it is a part of the bankruptcy proceeding.

As we are satisfied that the district court, in correcting the order of distribution made by the trustees, acted within its powers, and as that order has passed beyond judicial review, except as it has already been had on petition to the circuit court, that order must govern the decision of this case, and the decree of the circuit court dismissing the bill is affirmed.


text: Talk:Merchants' Manufacturers' National Bank of Pittsburgh v. Slagle/Opinion of the Court


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City of Savannah v. Jesup

A. R. Lawton, for appellant.

W. S.C.hisholm, for appellees.

HARLAN,

In State of Georgia v. Jesup, ante, 363, will be found a brief statement of the history of a suit commenced on the fifteenth day of February, 1877, in the circuit court of the United States for the southern district of Georgia, by Morris K. Jesup, surviving trustee, etc., against the Atlantic & Gulf Railroad Company, a Georgia corporation, for the foreclosure of certain mortgages, covering the main line and branches of that company, with their respective appurtenances, rolling stock, equipment, etc. In addition to the facts there stated, it may be added that on the tenth day of April, 1879-the mortgaged property being then, as it had been since February 20, 1879, in the actual possession of receivers-the city of Savannah, a municipal corporation of Georgia, by leave of court, filed in said cause its petition pro interesse suo. It was therein alleged that the city was a creditor of the railroad company, in this: that the latter was indebted to the city for taxes 'upon real estate owned and used for its legitimate corporate purposes,' within the corporate limits of Savannah, in the sum of $2,853.75 for the year 1877, and $3,720 for the year 1878; and that for those sums execution had duly issued on the twentieth day of January, 1877, and March 1, 1879, respectively, and were then in the hands of the city marshal to be levied on the goods, chattels, lands, and tenements of the railroad company. The prayer of the city was that it be heard in its own interest; that the court would authorize it to proceed in the collection of said taxes by levy and sale, under its ordinances and the laws the state, else order the receivers to pay such taxes out of the funds and property in their possession, or give such other and immediate relief in the premises as to the court seemed proper.

This intervening petition, having been submitted and considered upon the merits, was, by order of the court, dismissed. Subsequently, the main cause was heard upon bills and answers, and the various interventions filed, and a final decree rendered, in which, among other things, it was recited that various persons had intervened for their interest, claiming to have liens against the property of the company as laborers, mechanics, or material-men, or claiming to have an equity to be paid out of moneys in the hands of the receivers before payment of the bonds secured by the mortgages. By the decree it was, among other things, ordered and adjudged that certain claims of laborers and mechanics were superior liens on the mortgaged property and its proceeds, but that the claims of those who have furnished material only, but not as laborers or mechanics, although entitled to liens therefor, be postponed to the mortgages therein mentioned, 'and no allowance is made, or to be paid, from the proceeds of said property, or from the money in the receivers' hands, to any other persons than to those who have such liens as aforesaid.'

The city of Savannah prayed, and was allowed, an appeal-the one now before the court-from the decree denying its claim for taxes for the years 1877 and 1878.

Upon the oral argument in this court, some question arose as to whether the present appeal brings before us for review the merits of these claims for taxes. We are of opinion that this question must receive an affirmative answer. If the city had a valid claim for taxes, paramount to the lien created by the mortgages, two courses were open to it,-to postpone action under its executions until the proceedings in the circuit court of the United States were concluded, and its possession of the property, by receivers, had ended; or, with leave of court, to file a petition pro interesse suo, submitting its claims for judicial determination. It adopted the latter course, and, in so doing, put itself in a condition to appeal from any order adverse to its interests, if such order involved an amount sufficient to give this court jurisdiction. This practice received the sanction of this court in Wiswall v. Sampson, 14 How. 65. The order dismissing the city's petition was followed by a final decree, which, in terms, limited the distribution of the proceeds of sale to certain claimants, (the city not among the number,) excluding all others. The orders in the court below, therefore, constituted, in every essential sense, a judicial determination adverse to the city's claims for taxes. Until those orders are reversed or modified, the city is concluded against any further assertion of its rights in the premises. Consequently, the appeal from the decree dismissing the petition and denying the claims for taxes, brings before us the question whether those claims were valid and enforceable against the property of the railroad company, or the proceeds arising from any sale thereof. That question we proceed to examine.

In conformity with an act of the legislature of Georgia, passed April 18, 1863, the Atlantic & Gulf Railroad Company was formed by the consolidation of two other companies-one, the Savannah, Albany & Gulf Railroad Company, incorporated December 25, 1847; and the other, the Atlantic & Gulf Railroad Company, incorporated February 27, 1856. The two constituent companies acquired, by their respective charters, an immunity from all taxation in excess of one-half of one per cent. upon its annual net income, or the annual net proceeds of its investments-whether the one or the other is not material in the present case. This immunity passed to the consolidated company, subject, however, to the right of the state, reserved in the Code of Georgia, (which was in force on and after January 1, 1863,) to withdraw it altogether. In Railroad Co. v. Georgia, 98 U.S. 365, we held that this immunity or limited exemption was, in law, withdrawn by the state in the act of February 28, 1874, entitled 'An act to amend the tax laws of the state so far as the same relate to railroad companies, and to define the liabilities of said companies to taxation, and to repeal so much of the charters of such companies respectively as may conflict with the provisions of this act.' As the present case turns mainly upon the construction and effect of that act, it is necessary to examine its provisions with some care.

By the first section it is enacted that from and after the passage of the act 'the presidents of all the railroad companies in this state shall be required to return on oath, annually, to the comptroller general the value of the property of their respective companies, without deducting their indebtedness; each class or species of property to be separately named and valued, so far as the same may be practicable, to be taxed as other property of the people of the state, and that said returns shall be made under the same regulations provided by law for the returns of officers of other incorporated companies which are required by law to be made to the comptroller general.' The second section provides that the presidents of railroad companies shall 'pay to the comptroller general the taxes assessed upon the property of said railroad companies, and on failure to make the returns required by the preceding section, or on failure to pay the taxes so assessed, the comptroller general shall proceed to enforce the collection of the same, in the manner provided by law for the enforcement of taxes against incorporated companies hereinbefore mentioned.' The third section provides that if any railroad company affected by the first and second sections of the act 'desires to resist the collection of the tax herein provided for, said company, through its proper officer, may, after making the return required in the first section of this act, and after paying the tax levied on such corporation by the tax act for 1873, and continuing to pay the same while the question of its liability under this act is undertermined, resist the collection of the tax herein provided for by filing an affidavit of illegality to the execution or other process issued by the comptroller general aforesaid, and stating fully and distinctly the grounds of resistance, which shall be returnable to the superior court of Fulton county, to be there determined as other illegalities, only the same shall have precedence of all cases in said court as to time of hearing, and with the same right of motions for new trial and writs of error as in other cases of illegality on the part of the comptroller general and of said corporation, in which cases the comptroller general shall be represented by the attorney general of the state or such other attorney as the governor may select, and if the grounds of such illegality be not sustained, the comptroller general shall, after crediting the process aforesaid with amount paid, proceed to collect the residue due under the provisions of the act, and if at any time during the pendency of any litigation herein provided for, the said corporation shall fail to pay the tax required to be paid as a condition of hearing, then said illegality must be dismissed and no second affidavit of illegality shall be allowed. Said illegality may be amended as other affidavits of illegality, and shall always be accompanied by good bond and security for the payment of the tax ''fi. fa.'' issued by the comptroller general.' The remaining section does nothing more than repeal all conflicting laws. In Railroad Co. v. Georgia, supra, the constitutional validity of that act was sustained.

The effect, then, of the act of 1874 was that whereas, prior to its passage, the railroad company enjoyed immunity from all taxation, except at a limited rate upon its annual net income, or annual net proceeds of its investments, by that statute, each class or species of its property, without exception, was thenceforward liable, without deducting the indebtedness of the company, 'to be taxed as other property of the people of the state.' Now, the argument of learned counsel is that by its charter the city had 'full power and authority to make such assessments and lay such taxes on the inhabitants of said city, and those who have taxable property within the same, and those who transact or offer to transact business therein, as said corporate authorities may deem expedient for the safety, benefit, convenience, and advantage of said city;' and that, 'besides real and personal property, the said mayor and aldermen may tax capital invested in said city, stocks in money corporations, choses in action, income and commissions derived from the pursuit of any profession, faculty, trade or calling, dividends, bank, insurance, express, or other agencies, and all other property or sources of profit not expressly prohibited or exempt by state law or competent authority of the United States.' Code of Georgia, § 4847. Consequently, it is argued, when the act of 1874 withdrew the immunity theretofore enjoyed by the company, and declared that its property should 'be taxed as other property of the people of the state,' such of the property of the company, within the city, as was taxable under its charter, could be thereafter reached for all purposes of municipal taxation.

This argument, at first blush, would seem to have some force; but we are of opinion that the opposing view is more consistent with the language of the statute of 1874, and the policy which seems to have dictated its enactment. Upon its face that act appears to establish a system of taxation by the state, for its benefit exclusively, of the property of railroad companies. The returns by the companies are required to be made to the comptroller general, under the same regulations prescribed for returns to him by other incorporated companies. The taxes assessed are to be paid to that officer, and upon him, as representing the state, and upon no other officer, is imposed the duty of enforcing their collection. In the event of litigation he is to be represented by the attorney general of the state, or by such other attorney as the governor may select. The statute, thus imposing, in behalf of the state, taxes to be collected by its officer, and to be paid, when collected, into its treasury, provides no machinery by means of which the property of railroad companies may be taxed by municipal corporations for local purposes. No provision is made for taxation by the municipal authorities of counties, cities, and towns, through which the road passes, of such portion of the company's property as was within their respective limits. Nor is any provision made for the transmission by the comptroller general to such local authorities of the returns made to him by railroad companies of their property for taxation. Had the statute done nothing more, in the cases of railroad companies whose charters were subject to legislative repeal or modification, than to withdraw the immunity from taxation theretofore enjoyed by them, there would be more force in the position taken by the city of Savannah. But such is not the case; for, in the same act requiring taxation, for the benefit of the state, of all the property of railroad companies, and which, therefore, operated as a withdrawal of the then existing right of limited exemption from taxation, the legislature makes the returns to the comptroller general by the railroad companies of their property the only basis of the taxation to which, by its provisions, they are to be thereafter subjected. The mode prescribed by the statute for the payment of taxes by railroad companies has reference exclusively to taxes to be paid to the state, and not to municipal corporations. It seems to the court that the legislature did not intend, when imposing, as was done by the statute of 1874, taxation for the state upon all the property of railroad companies, to put upon the same property the additional burden of municipal taxation which, had not that act been passed, would have been forbidden by the charters of those companies. The city relies upon that statute as opening the door for municipal taxation upon all the property of the railroad company which was taxable under any law of the state. But as the state simply substituted, for taxation to a limited amount, taxation for the benefit of the state upon all the property of the company according to its value, we do not think that the railroad company could be subjected to additional taxation upon the part of the city of Savannah without further legislation to that end.

Counsel have called attention to Bailey v. Magwire, 22 Wall. 216, and insist that the principles there announced, if applied in this case, will lead to a conclusion different from that indicated. We do not so understand that case, and do not assent to any such interpretation of the decision there rendered. In that case it appeared that the Pacific Railroad Company, a Missouri corporation, was granted an exemption from taxation for a limited period. When, as well as before, that immunity was granted, the property of the company was liable for county, school, and municipal taxes, under the public laws of the state providing a general scheme for the taxation of all property. It was decided that there was nothing in the language of the statute, giving the exemption for a fixed term of years, which justified the conclusion that the state intended to relieve the property of the railroad company, after the exemption ceased, from the same liability for municipal taxes to which it was subject, by the general tax laws of the state, at the time that exemption was granted. The essential difference between that case and this is that the Atlantic & Gulf Railroad Company was, from its organization, exempted from all taxation, in excess of a limited amount, and, simultaneously with the withdrawal of that immunity, the state provided for the taxation of all of its property for the benefit of the state. Here it is not claimed that the property of the company was taxable by the city of Savannah during the period of limited exemption, withdrawn by the act of 1874, and for which exemption was substituted taxation, for the benefit of the state, of all of its property.

But it is contended that the taxes for the year 1878 stand upon a different footing from those in 1877; that is, that the city is entitled to collect the former, even if the law be otherwise as to the latter. This position rests upon that part of the constitution of Georgia (which went into effect December 21, 1877) declaring that 'all laws exempting property from taxation, other than the property herein enumerated, [which does not embrace the property of railroad corporations,] shall be void.' We are unable to perceive how, in the view expressed as to the scope and effect of the act of 1874, that constitutional provision can have any bearing upon the present case. The act of 1874, as was ruled in Railroad Co. v. Georgia, took away the immunity of limited taxation previously enjoyed by the Atlantic & Gulf Railroad Company under its charter, and substituted another mode of taxation, for the benefit of the state, covering all the property of that company. The act of 1874 contained no exemption, and it was, therefore, unaffected by a constitutional provision declaring laws to be void which exempted proporty, other than that specially enumerated, from taxation.

For the reasons given we are of opinion that the decree below was right and should be affirmed. It is so ordered.

MILLER, J., dissenting.

title: City of Savannah v. Jesup


text: Talk:City of Savannah v. Jesup

title: Talk:City of Savannah v. Jesup


text:
City of Savannah v. Jesup/Opinion of the Court

I do not agree to the construction which the court places upon the act of the state of Georgia subjecting the railroad company to taxation. When that statute says that the property of the railroad company is 'to be taxed as other property of the people of the state,' I understand it to mean that it is to be subjected to all the lawful taxes imposed by state laws under the same circumstances that the property of the citizen is. The case of Bailey v. Magwire, 22 Wall. 215, construes a statute of Missouri, passed under similar circumstances and in language almost identical, to have this meaning. That the statute of Georgia only provides in that act for the means of collecting the taxes due the state, affords no argument against taxation by counties and cities for local purposes, because the laws already in existence were sufficient for that purpose.


text: Talk:City of Savannah v. Jesup/Opinion of the Court


text:
Jenkins v. International Bank of Chicago

W. T. Burgess, for plaintiff in error.

A. M. Pence and Julius Rosenthal, for defendants in error.

MILLER, J.


text: Talk:Jenkins v. International Bank of Chicago


text:
Jenkins v. International Bank of Chicago/Opinion of the Court

This is a writ of error to the supreme court of Illinois. In the course of a complicated litigation between Samuel J. Walker and his creditors, it became a question whether the International Bank, which was a party to the litigation, had a just and paramount right to certain securities held by it as collateral to debts due by him to the bank. These were promissory notes, secured by mortgage on real estate. In the progress of the case the bank filed its cross-bill, alleging that they held the notes and mortgage not only as security for the specific loan made on them at the time they were received, but for a large balance due to the bank from Walker, and praying for a decree for this balance. Walker denied this, and asserted that by reason of usury he had overpaid the bank, which was indebted to him. The result was a decree in favor of the bank, finding the amount due on the collateral notes to be $23,116.66; amount due on Walker's three principal notes to the bank, $17,092.86; and the amount due on the entire indebtedness of Walker to the bank, $172,474; and that the sum to be realized from the collaterals should be first applied on the three notes aforesaid, amounting to $17,092.76, and the remainder on the general balance due the bank.

This decree was rendered on the twenty-fifth day of April, 1878. Shortly afterwards Walker was adjudged to be a bankrupt, and Robert E. Jenkins, the plaintiff in error here, became his assignee. On March 5, 1881, he sued out a writ of error from the court of appeals for the first district of Illinois, on which this decree was reversed, and the bank having removed the case to the supreme court of the state, the decree of the court of appeals was reversed, on the ground that Jenkins, the assignee, had not brought his writ within the two years allowed to him by the bankrupt law. He brings the case to this court by writ of error to the supreme court of Illinois, in which the only question that we can consider is the correctness of the ruling of that court on that point.

Without searching the record for the precise date at which Jenkins became assignee of Walker, and as such had authority to assert his rights, it is conceded that it was more than two years prior to any movement of his to bring the decree of the circuit court of Cook county before the appellate court. The question was raised in the argument of the case, in the supreme court of Illinois whether the writ of error sued out by Jenkins from the court of appeals was the beginning of a suit, or was so far a mere continuance of the former suit that the language of the act of congress did not apply. That court held, in accordance with its own previous decisions, that a writ of error was the beginning of a new suit, and as this was a question concerning the nature and effect of a writ error in their own courts, it would seem that it is not reviewable here, or, if so, we should follow the decisions of that court on the subject. We are, however, satisfied that, within the meaning of the limitation clause of the bankrupt law, this first appearance of the assignee, more than two years after the decree of the court, and the termination of the litigation between Walker and the bank, is a suit brought by him after that time.

There remains, however, the question, mainly argued before us, whether the suit thus commenced between the assignee of Walker and the bank was one involving an adverse interest touching any property or rights of property transferable to or vested in the assignee. We can see but little reason to doubt that, so far as the controversy related to the right to the collateral securities resting on the mortgage, it was a suit touching adverse interests to property; the property being the notes, and the equitable interests in the real estate mortgaged to secure them, and the adverse claims being that coming to Jenkins as assignee of Walker, and the claim of the bank. But in that decree there was an adjudication against Walker of a debt to the bank of more than $150,000 after these collaterals had been applied in payment of the debt thus established, and this decree would be evidence, whether conclusive or not, of the right of the bank to share in the dividends of the bankrupt's estate. So that, apart from the collaterals, here was a decree for money which the assignee was interested in reversing if he came in time. We must, therefore, inquire whether, as to this personal judgment, the assignee is barred by the limitation of the bankrupt law. This question is one which has received the consideration of many of the courts of bankruptcy in this country, but with no unanimity in the result, and its solution depends upon the construction of section 5057 of Revised Statutes. It reads thus:

'No suit, either at law or in equity, shall be maintainable     in any court between an assignee in bankruptcy and a person      claiming an adverse interest touching any property, or rights      of property, transferable to or vested in such assignee,      unless brought within two years from the time when the cause      of action accrued for or against such assignee. And this     provision shall not in any case revive a right of action      barred at the time an assignee is appointed.'

It is asserted by appellants that this limitation can have no application to a case where an assignee is suing to recover on a simple debt or other money obligation, and as the sentence stands in this section there is plausibility in the argument.

It is, however, true, in one sense, that debts are property, and this sense of the word is coming more into use in legislation every day. If it be permissible to hold that it was so used in this act, then the interest of the assignee in the debts due to the bankrupt is an interest adverse to the parties who have to be sued on them before they will pay, and the debts claimed to be due by the bankrupt are matters in which the interest and the duty of the assignee, when they come into contest, are adverse to the creditor. If a debt secured by a mortgage raises, as it unquestionably does when a suit is brought to foreclose it, an interest adverse to the mortgagor, or to some purchaser from him of the equity of redemption, it would be a strange construction which requires the assignee to bring his foreclosure suit to enforce a debt, well secured, within the two years, while as to a simple note, unsecured, he can sue at any time, unless barred by the statute of the state. No reason can be seen for such a discrimination.

Assuming that there is some ambiguity in section 5057, as we find it in the Revised Statutes, we may be permitted to examine the connection in which it stood in the original bankrupt act. On reference to that it will be found that it was a part of the second section of that act-the one which conferred upon and defined the jurisdiction of the circuit courts in bankruptcy cases. The part of the section pertinent to the matter in hand is this:

'Said circuit courts shall also have concurrent jurisdiction     with the district courts of the same district of all suits,      at law or in equity, which may or shall be brought by the      assignee in bankruptcy, claiming an adverse interest, or by      such person against said assignee, touching any property or      rights of property of said bankrupt transferable to or vested      in such assignee; but no suit at law or in equity shall in      any case be maintainable by or against such assignee, or by      or against any person claiming an adverse interest touching      the property or rights of property aforesaid, in any court      whatsoever, unless the same shall be brought within two years      after the cause of action shall have accrued for or against such assignee:      provided, that nothing herein contained shall revive a right      of action barred at the time such assignee is appointed.'

We are not aware that it has ever been held that this section did not confer upon the assignee the right to bring a suit, whether it was at law or in equity, to recover a debt or other moneyed obligation in the circuit court of the district. If any such doubt was ever entertained, it was put at rest by the third section of the act of June 22, 1874, which was an act amending the bankrupt law of 1867 in many particulars. This section declares that after the words 'adverse interests,' in line 12 of the section we have quoted, should be inserted, 'or owing any debt to such bankrupt,' thereby making it clear that the jurisdiction did extend to the collection of debts owing to the bankrupt. The limitation clause of the section, however, needed no amendment, for it applied to all suits brought in any court, federal or state, by or against the assignee; and using the word 'or' distributively, it applied to all suits touching an interest in property transferable to the assignee, no difference who was the suitor. The reason of this is that there might be suits brought concerning property or rights of property vested in the assignee, in which he was not a necessary party, as ejectment against his tenant, or foreclosure of liens paramount to his, to which the plaintiff did not choose to make him a party. It was intended to say that in any such case, in any court where the suit touched property or rights to property of the bankrupt passing to the assignee, it would be a good defense that it was not brought within two years after the right of action accrued. This construction is consistent with the language of the original statute, and with the policy of it as declared by this court in Glover v. Bailey, 21 Wall. 342, and repeated in numerous cases since.

'It is obviously one of the purposes of the bankrupt law,'     says the court, that there should be a speedy disposition of      the bankrupt's assets. This is only second in importance to     securing equality of distribution. The act is filled with     provisions for quick and summary disposal of questions      arising in the progress of the case, without regard to usual modes of      trial attended by some necessary delay. Appeals in some     instances must be taken within 10 days.'

To prevent the estate being wasted in litigation and delay, 'congress has said to the assignee, you shall begin no suit two years after the cause of action has accrued to you, nor shall you be harassed by suits when the cause of action has accrued more than two years against you. Within that time the estate ought to be settled up and your functions discharged, and we close the door to all litigation not commenced before it has elapsed.'

The language of the Revision in section 5057, though slightly varied from that of the original act, was not intended to give a different meaning. As it is susceptible of the interpretation that no suit shall be brought by or against the assignee, or by or against any person, touching an adverse interest in property transferred to him by the assignment, which is clearly the meaning of the original act, this latter construction must be given to the section under consideration.

The judgment of the supreme court of Illinois is affirmed in this case, and also in the three other cases between Jenkins and the bank and other parties, which depend on the same question.


text: Talk:Jenkins v. International Bank of Chicago/Opinion of the Court


text:
Adams v. Crittenden

James L. Pugh and W. K. McAllister, Jr., for appellants.

David P. Lewis, for appellees.

WAITE, C. J.

title: Adams v. Crittenden


text: Talk:Adams v. Crittenden

title: Talk:Adams v. Crittenden


text:
Adams v. Crittenden/Opinion of the Court

This case was submitted under rule 20, but on looking into the record we find that we have no jurisdiction. The suit was begun in equity by an assignee in bankruptcy, and a purchaser of certain lands sold under an order of the bankrupt court, to restrain the defendant Crittenden from enforcing a decree in his favor against the property for $1,828.93, and the defendant Weaver from enforcing another decree in her favor for $2,348.10. The decrees to be enjoined were entirely separate and distinct from each other, one having been rendered in a suit instituted by the defendant Crittenden alone, and the other in a suit by the defendant Weaver. The two suits presented substantially the same questions for adjudication, but they were in all other respects distinct. The two decrees were rendered on the same day, and draw interest from March 6, 1879. The circuit court, in the present suit, on the twenty-fourth of October, 1881, dismissed the bill, and from a decree to that effect this appeal was taken.

The case comes clearly within the rule stated at the present term in Ex parte Baltimore & Ohio R. Co. ante, 35, to the effect that distinct decrees in favor of or against distinct parties cannot be joined to give this court jurisdiction; but if they could, these appellants would be in no better condition, because the aggregate of the two decrees, with interest, added to the date of the dismissal of the bill, is less than $5,000. The mere fact that the matter in dispute arises under the constitution or laws of the United States, or treaties made, does not give us jurisdiction for the review of the judgments or decrees of the circuit or district courts. If the value of the matter in dispute in such cases does not exceed $5,000 we cannot consider them any more than others in which the amount in value is less than our jurisdictional limit.

Dismissed.


text: Talk:Adams v. Crittenden/Opinion of the Court


text:
Town of Elgin v. Marshall

Gordon E. Cole, for plaintiff in error.

S. U. Pinney, for defendants in error.

MATTHEWS, J.

title: Town of Elgin v. Marshall


text: Talk:Town of Elgin v. Marshall

title: Talk:Town of Elgin v. Marshall


text:
Town of Elgin v. Marshall/Opinion of the Court

This action was brought by the defendants in error, being citizens of Wisconsin, against the plaintiff in error, to recover the amount due upon certain coupons or interest warrants, detached from municipal bonds, alleged to have been issued by the town of Elgin in aid of a railroad company. The defense set up was that the bonds and coupons were void, the statute, under the assumed authority of which they had been issued, being, as was alleged, unconstitutional. The cause was tried by the court without the intervention of a jury, and it is part of the finding of the court that, at the time of rendering the judgment, the defendants in error were the owners of the bonds and coupons mentioned in the complaint, and judgment is given for the amount-$1,660.75-due thereon, being for the interest on 15 bonds of $500 each.

The case has been fully presented in argument upon its merits, as they appear from the findings of the court, but as we consider ourselves obliged to dismiss the writ of error for want of jurisdiction, we have considered no other question. This question is anticipated by the counsel for the plaintiff in error, who, while admitting that the amount sued for, and for which judgment was recovered, is less than $5,000, yet maintains that the value of the matter in dispute is in excess of that sum, because the defendants in error, being the holders and owners of the bonds to the amount of $7,500, have obtained, by the present judgment, an adjudication, conclusive upon the plaintiff in error, as an estoppel, of its liability to pay the entire amount of the principal sum.

It is true that the point actually litigated and determined in this action was the validity of the bonds, and as between these parties, in any subsequent action upon other coupons, or upon the bonds themselves, this judgment, according to the principles stated in Cromwell v. County of Sac, 94 U.S. 351, might, and as to all questions actually adjudged would, be conclusive as an estoppel. And, accordingly, the plaintiff in error, in support of the jurisdiction of this court, relies on what was said in Troy v. Evans, 97 U.S. 1, that, 'prima facie, the judgment against a defendant in an action for money is the measure of our jurisdiction in his behalf. This prima facie case continues until the contrary is shown; and if jurisdiction is invoked because of the collateral effect a judgment may have in another action, it must appear that the judgment conclusively settles the rights of the parties in a matter actually in dispute, the sum or value of which exceeds the required amount.' The point was not involved in the decision of that case, as the writ of error was in fact dismissed, and what was said in the opinion seems to have been rather intended as a concession for the sake of argument, than as a statement of a conclusion of law. The inference now sought to be drawn from it we are not able to adopt. In our opinion, sections 691 and 692, Rev. St., which limit the jurisdiction of this court, on writs of error and appeal, to review final judgments in civil actions, and final decrees in cases of equity and admiralty and maritime jurisdiction, to those where the matter in dispute, exclusive of costs, exceeds the sum or value of $5,000, have reference to the matter which is directly in dispute, in the particular cause in which the judgment or decree, sought to be reviewed, has been rendered, and do not permit us, for the purpose of determining its sum or value, to estimate its collateral effect in a subsequent suit between the same or other parties.

The rule, it is true, is an arbitrary one, as it is based upon a fixed amount, representing pecuniary value, and, for that reason, excludes the jurisdiction of this court in cases which involve rights that, because they are priceless, have no measure in money, (Lee v. Lee, 8 Pet. 44; Pratt v. Fitzhugh, 1 Black, 271; Barry v. Mercein, 5 How. 103; Sparrow v. Strong, 3 Wall. 97;) but, as it draws the boundary line of jurisdiction, it is to be construed with strictness and rigor. As jurisdiction cannot be conferred by consent of parties, but must be given by the law, so it ought not to be extended by doubtful constructions. Undoubtedly, congress, in establishing a rule for determining the appellant jurisdiction of this court, among other reasons of convenience that dictated the adoption of the money value of the matter in dispute, had in view that it was precise and definite. Ordinarily, it would appear in the pleadings and judgment, where the claim must be stated and determined; but where the recovery of specific property, real or personal, is sought, affidavits of value were permitted, from the beginning, as a suitable mode of ascertaining the fact, and bringing it upon the record. Williamson v Kincaid, 4 Dall. 20; Course v. Stead, Id. 22; U.S. v. The Brig Union, 4 Cranch, 216. But the fact of value in excess of the limit must affirmatively appear in the record, as thus constituted, as it is essential to the existence and exercise of jurisdiction. This court will not proceed in any case, unless its right and duty to do so are apparent upon the face of this record.

The language of the rule limits, by its own force, the required valuation to the matter in dispute, in the particular action or suit in which the jurisdiction is invoked; and it plainly excludes, by a necessary implication, any estimate of value as to any matter not actually the subject of that litigation. It would be, clearly, a violation of the rule, to add to the value of the matter determined any estimate in money, by reason of the probative force of the judgment itself in some subsequent proceeding. That would often depend upon contingencies, and might be mere conjecture and speculation, while the statute evidently contemplated an actual and present value in money, determined by a mere inspection of the record. 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; and yet, before the principal sum, in the present case, or any future installments of interest, shall have become due, the bonds may have been transferred to a stranger, for or against whom the precent judgment would not be evidence. And, in every such case, it would arise as a jurisdictional question, not how much is the value of the matter finally determined between the parties to the suit, but also whether and in what circumstances, and to what extent, the judgment will conclude other controversies thereafter to arise between them, and thus require the trial and adjudication of issuable matter, both of law and fact, entirely extraneous to the actual litigation, and altogether in anticipation of further controversies, that may never arise. It is not the actual value of the judgment sought to be reviewed which confers jurisdiction, otherwise it might be required to hear evidence that it could not be collected; but it is the nominal or apparent sum or value of the subject-matter of the judgment. It is impossible to foresee into what mazes of speculation and conjecture we may not be led by a departure from the simplicity of the statutory provision. Accordingly, this court has uniformly been strict to adhere to and enforce it.

In Grant v. McKee, 1 Pet. 248, it refused to take jurisdiction, because the value of the premises the title to which was involved in that action, was less than the jurisdictional limit, although they were part of a larger tract, held under one title, on which the recovery in ejectment had been obtained against several tenants, whose rights all depended on the same action. Stinson v. Dousman, 20 How. 461, was an action at law for the recovery of rent, where the claim and judgment against the defendant below were less than the amount required to give this court jurisdiction on a writ of error; but in giving judgment for the plaintiff below, for any sum at all, the court necessarily passed upon a defense of the defendant, set up by way of an answer in the nature of a counter-claim, insisting upon an equitable right to a conveyance of the land, out of which, it was alleged, the rent issued, and the value of which was in excess of the limit required for the jurisdiction of the court. The effect of the judgment was to adjust the legal and equitable claims of the parties to the subject of the suit, which was, not merely the amount of the rent claimed, but the title of the respective parties to the land. On that ground alone the jurisdiction of the court was upheld. Gray v. Blanchard, 97 U.S. 564, and Tintsman v. National Bank, 100 U.S. 6, are instances of the strict application of the rule limiting the jurisdiction to the amount actually in dispute in the suit; of which a similar example is found in Parker v. Morrill, ante, 14, decided at the present term.

Indeed, so strictly has it been applied, that, in cases where, although the entire matter in dispute in the suit exceeds in value the jurisdictional limit, nevertheless, if there are several and separate interests in that sum, belonging to distinct parties, and constituting distinct causes of action, although actually united in one suit and growing out of the same transaction, the jurisdiction of the court has been constantly denied. We have had occasion to repeat and apply this principle in several cases at the present term. Ex parte Baltimore & Ohio R. Co. ante, 35; Adams v. Crittenden, ante, 92; Farmers' Loan & Trust Co. v. Waterman, ante, 131; Schwed v. Smith, ante, 221. In some of these cases, the value of the matter in dispute, actually determined against the party invoking our appellate jurisdiction, actually was largely in excess of its limit, and yet its exercise was forbidden, because it was divided into distinct claims, no one of which was sufficient of itself to entitle either party to an appeal, although the decision in one was necessarily the same in all, because rendered upon precisely the same state of facts. Russell v. Stansell, 105 U.S. 303.

To entertain jurisdiction in the present case would be, in our opinion, to unsettle the principle of construction by which, in all the cases referred to, this court has been guided. The writ of error is accordingly dismissed for want of jurisdiction.


text: Talk:Town of Elgin v. Marshall/Opinion of the Court


text:
Pace v. State of Alabama

Section 4184 of the Code of Alabama provides that 'if any man and woman live together in adultery or fornication, each of them must, on the first conviction of the offense, be fined not less than $100, and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months. On the second conviction for the offense, with the same person, the offender must be fined not less than $300, and may be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than 12 months; and for a third or any subsequent conviction with the same person, must be imprisoned in the penitentiary or sentenced to hard labor for the county for two years."

Section 4189 of the same Code declares that 'if any white person and any negro, or the descendant of any negro to the third generation, inclusive, though one ancestor of each generation was a white person, intermarry or live in adultery or fornication with each other, each of them must, on conviction, be imprisoned in the penitentiary or sentenced to hard labor for the county for not less than two nor more than seven years.'

In November, 1881, the plaintiff in error, Tony Pace, a negro man, and Mary J. Cox, a white woman, were indicted under section 4189, in a circuit court of Alabama, for living together in a state of adultery or fornication, and were tried, convicted, and sentenced, each to two years' imprisonment in the state penitentiary. On appeal to the supreme court of the state the judgment was affirmed, and he brought the case here on writ of error, insisting that the act under which he was indicted and convicted is in conflict with the concluding clause of the first section of the fourteenth amendment of the constitution, which declares that no state shall 'deny to any person the equal protection of the laws.' J. R. Tompkins, for plaintiff in error.

H. C. Tompkins, for defendant in error.

FIELD, J.

The counsel of the plaintiff in error compares sections 4184 and 4189 of the Code of Alabama, and assuming that the latter relates to the same offense as the former, and prescribes a greater punishment for it, because one of the parties is a negro, or of negro descent, claims that a discrimination is made against the colored person in the punishment designated, which conflicts with the clause of the fourteenth amendment prohibiting a state from denying to any person within its jurisdiction the equal protection of the laws.

The counsel is undoubtedly correct in his view of the purpose of the clause of the amendment in question, that it was to prevent hostile and discriminating state legislation against any person or class of persons. Equality of protection under the laws implies not only accessibility by each one, whatever his race, on the same terms with others to the courts of the country for the security of his person and property, but that in the administration of criminal justice he shall not be subjected, for the same offense, to any greater or different punishment. Such was the view of congress in the re-enactment of the civil-rights act, after the adoption of the amendment. That act, after providing that all persons within the jurisdiction of the United States shall have the same right, in every state and territory, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, declares that they shall be subject 'to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.' 16 St. c. 114, § 16.

The defect in the argument of counsel consists in his assumption that any discrimination is made by the laws of Alabama in the punishment provided for the offense for which the plaintiff in error was indicted when committed by a person of the African race and when committed by a white person. The two sections of the Code cited are entirely consistent. The one prescribes, generally, a punishment for an offense committed between persons of different sexes; the other prescribes a punishment for an offense which can only be committed where the two sexes are of different races. There is in neither section any discrimination against either race. Section 4184 equally includes the offense when the persons of the two sexes are both white and when they are both black. Section 4189 applies the same punishment to both offenders, the white and the black. Indeed, the offense against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment. Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same.

Judgment affirmed.

title: Pace v. State of Alabama


text: Talk:Pace v. State of Alabama

title: Talk:Pace v. State of Alabama


text:
Pace v. State of Alabama/Opinion of the Court

The counsel of the plaintiff in error compares sections 4184 and 4189 of the Code of Alabama, and assuming that the latter relates to the same offense as the former, and prescribes a greater punishment for it, because one of the parties is a negro, or of negro descent, claims that a discrimination is made against the colored person in the punishment designated, which conflicts with the clause of the fourteenth amendment prohibiting a state from denying to any person within its jurisdiction the equal protection of the laws.

The counsel is undoubtedly correct in his view of the purpose of the clause of the amendment in question, that it was to prevent hostile and discriminating state legislation against any person or class of persons. Equality of protection under the laws implies not only accessibility by each one, whatever his race, on the same terms with others to the courts of the country for the security of his person and property, but that in the administration of criminal justice he shall not be subjected, for the same offense, to any greater or different punishment. Such was the view of congress in the re-enactment of the civil-rights act, after the adoption of the amendment. That act, after providing that all persons within the jurisdiction of the United States shall have the same right, in every state and territory, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, declares that they shall be subject 'to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.' 16 St. c. 114, § 16.

The defect in the argument of counsel consists in his assumption that any discrimination is made by the laws of Alabama in the punishment provided for the offense for which the plaintiff in error was indicted when committed by a person of the African race and when committed by a white person. The two sections of the Code cited are entirely consistent. The one prescribes, generally, a punishment for an offense committed between persons of different sexes; the other prescribes a punishment for an offense which can only be committed where the two sexes are of different races. There is in neither section any discrimination against either race. Section 4184 equally includes the offense when the persons of the two sexes are both white and when they are both black. Section 4189 applies the same punishment to both offenders, the white and the black. Indeed, the offense against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment. Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same.

Judgment affirmed.


text: Talk:Pace v. State of Alabama/Opinion of the Court


text:
Hayden v. Manning

John H. Mitchell and A. H. Garland, for appellant.

W. Lair Hill and ''Geo. A. King'', for appellee.

MILLER, J.

title: Hayden v. Manning


text: Talk:Hayden v. Manning

title: Talk:Hayden v. Manning


text:
Hayden v. Manning/Opinion of the Court

This is a case which the circuit court should have dismissed under the fifth section of the act of March 3, 1875, concerning the jurisdiction of the circuit courts of the United States, instead of granting the relief prayed by complainant.

It is charged in the bill that Hayden, the appellee, while acting as the attorney of Rachel Dove and Bethuel Dove, her husband, purchased under execution a valuable tract of land belonging to Rachel; that he had defended the suit for foreclosure of a mortgage on the property for the Doves, in which a decree was rendered under which it was sold. It is set out with sufficient fullness that at this sale he bought the land at less than its value, under circumstances which should subject the title which he acquired to the character of a trust for the benefit of Mrs. Dove. It is not necessary now to inquire into the truth of that allegation, on which the circuit court rendered a decree in favor of Manning, the complainant in the suit, because we are of opinion that Manning had no such interest in the matter as to anable him to sustain a suit in the circuit court of the United States in regard to it. The sale to Hayden was made March 5, 1864, and he received the sheriff's deed April 26th thereafter. On the seventh day of April, 1875, Rachel and Bethuel Dove conveyed the land to Manning, who brought the present suit May 12, 1876.

It appears in evidence that not long after the sheriff's deed was made to him, Hayden took possession of the land, and has retained it ever since, though it is said he obtained the possession unfairly. In April, 1874, Rachel Dove began a suit in the state court of Polk county, where the land was situated, against Hayden to recover these premises, and the court decided against her on demurrer. From this decision she took an appeal to the supreme court of the state, which was dismissed by her, as was the suit in the Polk county circuit court. In April, 1875, and while this suit was pending in some stage of it, the conveyance was made to Manning of the land in question. Manning was the husband of the daughter of the Doves, and resided in California, and had the citizenship necessary to enable him to renew the litigation in the circuit court of the United States. The deed purports to be one of bargain and sale for the consideration of $5,000, but no money was ever paid on it. No note or other obligation was given, nor any mortgage, as security for the debt. It does not appear that Manning ever promised to pay anything for it.

Mrs. Dove's account of the transaction is this:

'My daughter Elizabeth is the wife of Charles Manning, the     plaintiff. Manning never has paid me any money on this land,     but he was going to. He never gave me his note. I can't say     when I saw Manning last. I think eight years ago. Manning     wrote first about having the land conveyed to him; said he      would take the matter off our hands. I have not the letter     with me.'

Mr. Dove says he don't know whether any part of the $5,000 has been paid, either from his own knowledge or from his wife. Manning's deposition was not taken in the case, nor is any word, verbal or in writing, produced as coming from him in regard to this suit. The bill, which is filed in his name, is neither signed nor sworn to by him. Mr. Dove swears that he is the agent and attorney in fact of Manning, and as such he verifies the bill. The defendant, who is called upon to make full and perfect answer, does so under oath, and denies that Manning was in good faith the lawful owner of the land. No bond for costs was given by Manning, or any one for him. Mr. Dove, in swearing to the bill of costs of about $3,00, does not say that plaintiff had paid any part of them, but that they were incurred in the suit. There is no evidence that the deed from Dove and wife to Manning was ever delivered to Manning, or was ever in his possession, and there is no reason to suppose it ever left Oregon, or that he had been in Oregon for years before and after its execution. Undoubtedly, Mrs. Dove and her husband could have given their interest in the property to their daughter, and a conveyance in consideration of natural love and affection might have been good. But this deed was not made to her, nor on any such consideration, but recites a consideration of $5,000 in money, while it clearly appears that no money was paid, none was secured by note or mortgage, and none was promised or intended to be paid. 'Manning wrote to me,' says Mrs. Dove, 'about having the land conveyed to him; said he would take the matter off our hands.' What matter? Manifestly the litigation at that time going on. 'I will sue for you in my name. I can go into a court of the United States, where you can't go,' is what he meant.

There is not a syllable in this record inconsistent with the idea that the deed was made to Manning without his knowledge, recorded in Oregon, and delivered to the lawyers who brought this suit, (the same who brought the suit in the state court,) without his authority and without any communication from in the record by which Manning this suit was a tort, there is no evidence inthe record by which Manning could be connected with it, or with any assertion of claim under the deed. It seems to us that Manning's name is used because he is a citizen of a different state from the defendant, for the sole benefit of Mrs. Dove; that he has no real interest in the controversy, and if cognizant of what is going on, of which there is much doubt, is passively permitting the use of his name for the benefit of the Doves in order to make a simulated case of jurisdiction in the federal court. This is precisely the case provided for in the act of 1875. The 'suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of the circuit court,' because the real controversy is wholly between citizens of the same state. 'The name of Manning, the plaintiff in the suit, has been improperly and collusively used (in the language of this statute) for the purpose of creating a case cognizable under it.' Hawes v. Oakland, 104 U.S. 450; Williams v. Township of Nottawa, 104 U.S. 209; Detroit v. Dean, ante, 560.

The decree of the circuit court is reversed, and the case remanded with direction to dismiss the bill for want of jurisdiction, and without prejudice to any other action in a proper court.

title: Hayden v. Manning/Opinion of the Court


text: Talk:Hayden v. Manning/Opinion of the Court


text:
Nets to Catch the Wind/Bronze Trumpets and Sea Water -- On Turning Latin into English

Alembics turn to stranger things Strange things, but never while we live Shall magic turn this bronze that sings To singing water in a sieve.

The trumpeters of Caesar's guard Salute his rigorous bastions With ordered bruit; the bronze is hard Though there is silver in the bronze.

Our mutable tongue is like the sea, Curled wave and shattering thunder-fit; Dangle in strings of sand shall be Who smooths the ripples out of it.


text:
Town of Thompson v. Perrine

T. F. Bush and F. N. Bangs, for plaintiff in error.

''Wm. M. Evarts'', for defendant in error.

HARLAN, J.

title: Town of Thompson v. Perrine


text: Talk:Town of Thompson v. Perrine

title: Talk:Town of Thompson v. Perrine


text:
Town of Thompson v. Perrine/Opinion of the Court

In Thompson v. Perrine, 103 U.S. 806, we affirmed a judgment of the circuit court of the United States for the southern district of New York, against the town of Thompson, in that state for the amount of certain coupons of bonds, executed in behalf of that town, by virtue of the provisions of an act passed May 4, 1868, and amended April 1, 1869. Those acts, as will be seen from the statement of the former case, authorized the town of Thompson, in aid of the construction of a railroad from Monticello, New York, to Port Jervis, in the same state,-a majority of its tax-payers, appearing upon the last assessment-roll, and representing a majority of the taxable property, not including lands of non-residents, having first consented to the debt being contracted,-to issue bonds, and to invest the proceeds, when disposed of, in the capital stock of the railroad company organized to construct the proposed road. Bonds were issued, and instead of selling them and investing the proceeds in the company's stock, the local authorities exchanged them directly with the railroad company for stock. This, according to certain decisions of the highest court of New York, was in violation of the act giving authority to issue the bonds. But, by an act passed April 28, 1871,-previous to which time the bonds had been issued and delivered,-that exchange for stock was, in express terms, ratified and confirmed. And the controlling question in the former case was as to the constitutional validity of the latter statute. In Horton v. Town of Thompson, 71 N. Y. 513, decided January, 1878, the court of appeals of New York held that as the tax-payers had only consented to an issue of bonds, the proceeds of the sale of which should be invested in stock, it was beyond the power of the legislature to validate bonds, which, in violation of the act under which they were issued, were not sold, but were directly exchanged for stock, of which fact all purchasers had notice from the recitals of the bonds themselves. That adjudication, it was contended, was binding upon this court. But to that proposition we declined to give our assent, and stated, with some fullness, the reasons why this court could not give to the decision in Horton's Case the effect claimed for it by the town.

We held, for reasons which need not be repeated, that it was within the constitutional power of the legislature of New York to pass the curative statute of April 28, 1871, and that from the moment it was enacted (if not before) the bonds, by whomsoever held, whether by the railroad company or others, became binding obligations upon the town, as much so as if they had originally been sold and the proceeds invested in stock of the railroad company, as required by the acts under which they were issued.

That decision controls the present case, for the latter, in its essential features, differs from the former only in the circumstance of the time when Perrine acquired title to the coupons in suit. Those heretofore sued on were purchased by him in 1875, while those now in suit were purchased by him in 1878, when they were overdue, and after the decision in 71 N. Y. was announced. Counsel for the town now insist that this court should follow the ruling in that case, at least as to holders of coupons or bonds who purchased after Horton v. Town of Thompson was decided; and they suppose that this court placed its former decision upon the ground mainly that Perrine purchased the bonds there in suit before the court of appeals declared the act to be unconstitutional. But in this view we do not concur. The reference, in the former case, to the date when Perrine purchased, was to illustrate the injustice which would be done were we, in opposition to our own view of the law, to follow the ruling of the state court made after he purchased,-a decision which, with entire respect for the state court, was held not to be in harmony with its former decisions. What we decided was that the curative statute was within the limits of legislative power, and that, at least from its passage, the bonds, by whomsoever held, whether by the railroad company or others, became enforceable obligations of the town. Mitchell v. Burlington, 4 Wall. 274, 275; Taylor v. Ypsilanti, 105 U.S. 60; Ohio L. & T. Co. v. Debolt, 16 How. 433.

There is, however, one point made in this case, not made in the former one, and which it is our duty to notice. It is that this action is excluded by statute from the jurisdiction of a circuit court of the United States.

The eleventh section of the judiciary act of 1789 declares that no district or circuit court shall 'have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange.' 1 St. 78; Rev. St. § 629. The provision in the act of March 3, 1875, is: 'Nor shall any circuit or district court have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law-merchant, and bills of exchange.'

It is not claimed that the words 'assignee' and 'assignment,' as found in the act of 1875, have any meaning different from that attached to the same words in the act of 1789, or in section 629 of the Revised Statutes. But the contention of counsel is that the coupons in suit, being detached from the bonds and overdue when Perrine purchased them, were dishonored, and therefore not negotiable by the law-merchant; consequently, it is claimed, they are not within the exception of promissory notes negotiable by the law-merchant, but are embraced by the general inhibition upon suits founded on contract where the assignor himself could not have sued in the circuit court. This position cannot be sustained. It is an immaterial circumstance that the coupons, when purchased by Perrine, were detached from the bonds. And the bonds not having then matured, the coupons, though overdue, had not lost the quality of negotiability bt the law-merchant. This result must follow from the principles announced in Cromwell v. County of Sac, 96 U.S. 58.

Further, and apart from any consideration of the question as to the negotiability, according to the law-merchant, of these coupons, Perrine is not an assignee within the meaning of the act of 1875, or of the previous statutes relating to the same subject. Giving the words 'assignee' and 'assignment' their broadest signification, and conceding that, in some cases, the holder of a promissory note mayk become such in virtue alone of an assignment, yet, according to the established construction of the judiciary act of 1789, the right of the holder of a promissory note or bond, payable to a particular person or bearer, to sue in his own name, did not depend upon the citizenship of the named payee or of the first or any previous holder; this, because, in all such cases, the title passed by delivery and not in virtue of any assignment.

In Bullard v. Bell, 1 Mason, 251, Mr. Justice STORY said that to bring a case within the exception contained in the eleventh section of the act of 1789, 'the action must not only be founded on a chose in action, but it must be assignable; and the plaintiff must sue in virtue of an assignment.' 'A note,' said he, 'payable to bearer, is often said to be assignable by delivery; but in correct language there is no assignment in the case. It passes by mere delivery, and the holder never makes any title by or through any assignment, but claims merely as bearer. The note is an original promise by the maker to pay any person who shall become the bearer; it is, therefore, payable to any person who successively holds the note bona fide, not by virtue of any assignment of the promise, but by an original and direct promise, moving from the maker to the bearer.'

In Bank of Kentucky v. Wister, 2 Pet. 326, this court said that it had 'uniformly held that a note payable to bearer is payable to anybody, and is not affected by the disabilities [to sue] of the nominal payee.' Thompson v. Lee Co. 3 Wall. 331; Bushnell v. Kennedy, 9 Wall. 391; City of Lexington v. Butler, 14 Wall. 293; Cooper v. Town of Thompson, 13 Blatchf. 434; Coe v. Cayuga Lake R. Co. 19 Blatchf. 522.

The coupons here in suit are payable to the holder thereof, and, upon the authority of the adjudged cases, Perrine is not an assignee within the meaning of the act of 1875. He is entitled to sue without reference to the citizenship of any previous holder.

We perceive no error in the record, and the judgment must be affirmed. It is so ordered.


text: Talk:Town of Thompson v. Perrine/Opinion of the Court


text:
Pray v. United States

T. H. Talbott, for appellant.

Asst. Atty. Gen. Maury, for appellee.

MILLER, J.

title: Pray v. United States


text: Talk:Pray v. United States

title: Talk:Pray v. United States


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

According to the finding of facts in this case, the claimant received, on the first day of March, 1867, a written instrument appointing him occasional weigher and measurer, with a compensation fixed at $2,000 per annum when employed. He held the place and performed the duties of occasional weigher and measurer at Portland, Maine, under that appointment until November 30, 1877. A further finding is this:

For each month during the period of said service the claimant     was paid his compensation upon bills made out in the      following form:

'The United States Dr. to F. E. Pray, occasional Weigher of     the Customs for the Port of Portland.

'For my services as occasional weigher of the customs from     _____ to _____, inclusive, Sundays excepted, one month, at      $2,000 per annum.'

Each bill so made out was for the sum due for the month named     in it, after deducting the Sundays, and to each was subjoined      a receipt, signed by the claimant, in the following form:

'Received payment for the above services, $_____, of _____,     collector of customs for the port of Portland.' The present suit is brought to recover compensation for the Sundays excepted out of these monthly payments during the entire period of service. This demand is founded on the law which gives to the weighers and measurers, holding office as such by the usual appointment, a salary of $2,000 per annum, in which, of course, Sundays are disregarded. Counsel for the government contends that his letter of appointment, naming him as 'occasional weigher and measurer,' to be paid at the rate of $2,000 per annum 'when employed,' justified payment at that rate only for the days when he was in actual service. Whatever might have been said in opposition to this view, if claimant had asserted it during the early time of his service, it is clear that by the form of the bill for service for each month, he expressed his own understanding of the contract to be the same as that with the collector who employed and paid him. He makes out in his own name, 'for [his] my services as occasional weigher' 'for one month, Sundays excepted,' his bill, with the sum fixed on that basis, and accepts and signs a receipt for it, and this he does every month for 10 years. He cannot be permitted now to say, after he is out of that employment, that his contract was for $2,000 a year as an absolute salary. If this was the case of a person employed by a bank, a railroad company, or in any large business requiring many persons for its service, the case would admit of no argument. We think it equally plain in the present case. U.S. v. Adams, 7 Wall. 463; Same v. Child, 12 Wall. 241; Same v. Justice, 14 Wall. 535; Mason v. U.S. 17 Wall. 75.

The judgment of the court of claims, dismissing the petition, is affirmed.


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


text:
Nets to Catch the Wind/Spring Pastoral

Liza, go steep your long white hands In the cool waters of that spring Which bubbles up through shiny sands The color of a wild-dove's wing.

Dabble your hands, and steep them well Until those nails are pearly white Now rosier than a laurel bell; Then come to me at candle-light.

Lay your cold hands across my brows, And I shall sleep, and I shall dream Of silver-pointed willow boughs Dipping their fingers in a stream.

title: Nets to Catch the Wind/Spring Pastoral