text:
Barney v. Dolph/Opinion of the Court

The only question within our jurisdiction presented by this record is, whether after a husband and wife had perfected their right to a patent for lands in Oregon, under the Donation Act of Sept. 27, 1850 (9 Stat. 496), and after the amendment of July 17, 1854 (10 id. 306), they could, before receiving the patent, sell and convey the lands so as to cut off the rights of the children or heirs of the husband or wife, in case of his or her death before the patent was actually issued.

This depends upon the effect to be given the original act, when construed in connection with the amendment. The original act, after providing for a grant to the husband and wife of six hundred and forty acres of land, one-half to the husband and one-half to the wife in her own right, declared that, 'in all cases where such married persons have complied with the provisions of this (the) act, so as to entitle them to the grant as above provided, whether under the late provisional government of Oregon, or since, and either shall have died before patent issues, the survivor and children or heirs of the deceased shall be entitled to the share or interest of the deceased in equal proportions, except where the deceased shall otherwise dispose of it by testament, duly and properly executed according to the laws of Oregon;' and then 'that all future contracts by any person or persons entitled to the benefit of this act, for the sale of the land to which he or they may be entitled under this act before he or they shall have received patent therefor, shall be void.' The amendment of 1854 repealed this prohibition of sales.

The point to be decided is not whether, before the amendment, such a conveyance could have been made, or whether, if the conveyance had not been made, the children or heirs of a deceased husband or wife would take by descent or purchase, or whether the grant from the United States was one which took effect from the time of the passage of the act, or a subsequent entry and settlement, but whether, after the amendment, the husband and wife held by such a title that, before patent, but after their right to one had become absolute, they could sell and convey so as to vest in the purchaser either a legal or an equitable estate in fee-simple,-legal, if the title had already passed out of the United States by virtue of the act of Congress, and a full compliance with its provisions; equitable, if the patent was needed to perfect the grant. The question is one of legislative intent, to be ascertained by examining the language which Congress has used, and applying it to the subject-matter of the legislation.

The reason of the exceptional policy of the United States in respect to the public lands in Oregon is to be found in the anomalous condition of the inhabitants of that Territory when the government of the United States exerted positively its jurisdiction over them. For more than thirty years, under the operation of treaty stipulations between the two countries (8 Stat. 249 and 360), the citizens of the United States and the subjects of Great Britain had been permitted to occupy jointly the territory afterwards included in that State. They had no government except such as they had organized 'for the purposes of mutual protection and to secure peace and prosperity among' themselves. The actual condition of affairs is graphically described in Lownsdale v. City of Portland (Deady, 11), by the able and experienced judge of the district of Oregon, who has been connected with the administration of justice there for more than a quarter of a century, and was considered by this court in Stark v. Starrs, 6 Wall. 402, Lamb v. Davenport, 18 id. 307, and Stark v. Starr, 94 U.S. 477. As part of their plan of government, they established a 'land law,' by which free males over the age of eighteen years were permitted to occupy and hold six hundred and forty acres of land; and regulations were adopted for designating claims and protecting the occupants in their possession. While not denying to the United States the ownership of the soil, the occupants, to all intents and purposes, used and dealt with the lands they severally claimed as their own.

Finding this to be the condition of affairs, and recognizing the equitable claims of the inhabitants, Congress, within two years from the time of the organization of the territorial government, passed the Donation Act, which was framed so as to conform in a large degree to the regulations of the old system, and to grant to the original settlers holding under that system the whole, or a considerable portion, of the lands they had been occupying and cultivating. Sect. 4 was evidently intended for the special benefit of this class, and, stripped of details, in effect granted to the white settlers then residing in the Territory, over eighteen years of age and citizens of the United States, or intending to become such, a half-section of land if single, or a whole section if married,-one-half to the husband and one-half to the wife,-provided they had resided upon and cultivated the land, or should do so, for four consecutive years, and otherwise conformed to the provisions of the act. Then follows, in this section, the provision which has already been cited in respect to the disposition of the property in case of the death of one of two married persons after they had complied with the provisions of the act and become entitled to a patent, but before the patent was actually received by them. The language used evidently confines this limitation in its effect to the married persons mentioned in this section.

Sect. 5 made provision for those coming into the Territory and settling after Dec. 1, 1850, and above the age of twenty-one years. It granted them, if single, one hundred and sixty acres, and if married, three hundred and twenty,-one-half to the husband and one-half to the wife,-upon the same conditions of residence, cultivation, and conformity to the act specified in sect. 4. Other sections required the settler, within three months after the survey of the lands had been made, or, if the survey had been made when the settlement commenced, within three months after the commencement of the settlement, to notify the surveyor-general of the precise tract he claimed, and within twelve months to prove to the satisfaction of the same officer that the settlement and cultivation required by the act had been commenced, specifying the time of the commencement. At any time after the expiration of four years from the date of the settlement, whether made under the laws of the late provisional government or not, the settler might prove to the surveyor-general the fact of the continued residence and cultivation required; and that being done, it became the duty of the surveyor-general to issue certificates, setting forth the facts of the case and specifying the land to which the parties were entitled, and to return the proofs taken to the Commissioner of the General Land-Office, when, if no valid objections were found, patents were to issue according to the certificate, upon the surrender thereof.

Sect. 8 provided that, upon the death of any settler before the expiration of the required four years' continued possession, all his rights should descend to his heirs, including the widow, where one was left, in equal parts, and that proof of compliance with the conditions of the act up to the time of the death should be sufficient to entitle them to a patent.

The prohibition of sales, although contained in sect. 4, applied to all persons entitled to the benefit of the act, and its repeal was, under the circumstances, equivalent to an express grant of power to sell. The prohibition was of the sale, before patent, of the land to which the settler was entitled under the act. The repeal, therefore, operated under the circumstances the same as a grant of power to sell the land even though a patent had not issued. This, in the absence of any thing to the contrary, implied the power to convey all the government had parted with.

When the right to a patent once became vested in a settler under the law, it was equivalent, so far as the government was concerned, to a patent actually issued. We so decided in Stark v. Starrs, 6 Wall. 402. The execution and delivery of the patent after the right to it is complete are the mere ministerial acts of the officer charged with that duty. An authorized sale by a settler, therefore, after his right to a patent had been fully secured, was, as to the government, a transfer of the ownership of the land.

We are thus brought to the consideration of the question, whether such a sale by married persons, entitled to the benefit of the fourth section of the act, would transfer to the purchaser the interest of the children, heirs, or devisees of a husband or wife, who died after the sale, but before the patent was actually received. This depends upon whether the repeal of the prohibition of sales was, in effect, the repeal of the provision in respect to the child, heir, or devisee, in cases where sales were made.

Repeals by implication are not favored; but if there is a positive and irreconcilable repugnancy between the old law and the new, the new must stand and the old fall, even though the result is reached by implication alone. After all, the question is one of legislative intent, to be ascertained by an examination of both statutes, the rule being that the two are to stand, unless the contrary is manifested beyond a doubt.

As has been seen, the limitation is confined to such married persons as took under the fourth section of the act, where provision is made for those who, in the language of Judge Deady (Deady, 11), 'had built towns, opened and improved farms, established churches and schools, and laid out highways,' and who, when the United States assumed exclusive governmental control of the Territory, were found 'engaged in agriculture, trade, commerce, and the mechanical arts.' These, it may fairly be presumed, were special objects of the bounty of the government. The prohibition of sales was undoubtedly intended to protect the United States to some extent against fraudulent claims, and at the same time to place an obstacle in the way of an improvident disposition of their property by the settlers, under the influence of the new order of things; but at all times the husband or wife taking under sect. 4 could cut off a child or heir by will. The prohibition was in respect to sales, and the power to devise was expressly given this class of beneficiaries. It is clear, therefore, that the limitation was not intended altogether for the benefit of children or heirs.

The delay which necessarily attended the delivery of the patents, after settlers had become entitled to them under the law, oftentimes operated with great hardship upon those whom Congress intended to assist. In view of this, after the expiration of nearly four years from its enactment, when the government needed no more time for the detection of frauds, and the people had become accustomed to their change of circumstances, the prohibition of sales was removed, evidently in the interest of the settlers. After this, confessedly, all who had perfected their right to a patent for the lands they had occupied and cultivated for the requisite length of time, other than the married beneficiaries under sect. 4, could sell and convey to the purchaser an indefeasible estate; and there certainly does not seem to be any good reason why these special objects of regard should be made an exception to this general rule. It was a part of the original donation system to keep all the donated lands from sale until the patents issued, but as soon as the patents were delivered all conditions were withdrawn and all restraints removed. When the settler, whether married or single, became an actual patentee, he could sell and convey in fee. The land was his own, to dispose of as he chose. All that prevented his doing so before, after his right to the patent had been perfected, was the prohibition of sale.

After this prohibition was taken away the system was radically changed, and a perfected right to a patent was made as good as the patent itself for all purposes except the mere convenience of proving title. A grant by Congress, under these circumstances, of the right to sell the land must have been intended to authorize those entitled to patents to convey in the same manner they could if the patent had been actually delivered. Any provision in the act transferring the title of the settler, in case of his death before receiving the patent, to his child, heir, or devisee, is palpably inconsistent with an unlimited power to sell and convey the land. The two cannot stand together, and consequently the power of sale, which was the latest enactment, must prevail. In this connection, it is worthy of remark that the devisee of the settler dying before patent is as much entitled to take under the law as a child or heir. Certainly it could never have been the intention of Congress to allow a settler to defeat a conveyance by a subsequent will. But if the child or heir could take, so must the devisee.

But there is still another argument in favor of the repeal, which is equally cogent. There cannot be a doubt that the great object of the law was to invest the early settlers of that territory with complete ownership of the land they had resided upon and cultivated, while the ownership of the soil was in controversy between the two sovereign claimants. The authority to sell before patent was an additional boon granted by the government. The retention of the original limitation in favor of the children, heirs, and devisees must necessarily affect materially the value of the title which could be conveyed. It operated against no one except married settlers residing in the country on or before Dec. 1, 1850. This would necessarily include those making their claims by reason of possession taken under the provisional government, and it will not for a moment be presumed that this specially deserving class of settlers were alone to be incumbered by such a restriction on their title.

In conclusion, we hold that the conveyance by Waymire and wife, after they had secured the right to a patent, but before the patent had issued, passed the fee, or an equitable right to the fee, to their grantee, and consequently that there was no error in the court below.

Judgment affirmed.

title: Barney v. Dolph/Opinion of the Court


text: Talk:Barney v. Dolph/Opinion of the Court

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


text:
Fertilizing Company v. Hyde Park

ERROR to the Supreme Court of the State of Illinois.

The Northwestern Fertilizing Company, a corporation created by an act of the legislature of Illinois, approved March 8, 1867, filed its bill in equity to restrain the village of Hyde Park, in Cook County, Illinois, from enforcing the provisions of an ordinance of that village, which the company claims impairs the obligation of its charter. The bill also prayed for general relief. The Supreme Court of that State affirmed the decree of the Circuit Court of Cook County dismissing the bill; whereupon the company sued out this writ of error.

The charter of the company and the ordinance complained of are, with the facts which gave rise to the suit, set forth in the opinion of the court.

The case was argued by Mr. Leonard Swett for the plaintiff in error.

1. The charter confers upon the officers and agents of the company immunity from public prosecution for acts thereby authorized. Trustees v. Utica, 6 Barb. (N. Y.) 313; Harris v. Thompson, 9 id. 3; People v. Law, 34 id. 514; Stoughton v. State, 5 Wis. 297; Niederhouse v. State, 28 Ind. 258; 1 Hilliard, Torts, 550. The acts for the commission of which the railway employees were fined were, by the express terms of the charter, authorized. The company engaged them to transport the animal matter from its receiving depots in Chicago to the chemical works, which it had erected at a point confessedly within the limits designated. No other railroad touches at those works, and the company thus used the only means for promptly conveying from the city such matter to its rightful destination.

2. The charter, having been accepted by the company, is a contract with the State which the latter has no power to repeal, impair, or alter. Dartmouth College v. Woodward, 4 Wheat. 518; Armstadt et al. v. Illinois Central Railroad, 31 Ill. 484; Buffett et al. v. The Great Western Railroad, id. 355; State Bank of Ohio v. Knoop, 16 How. 369, Jefferson Branch Bank v. Skelly, 1 Black, 436; Bridge Proprietors v. Hoboken Company, 1 Wall. 116; The Binghamton Bridge, 3 id. 51; Home of the Friendless v. Rouse, 8 id. 430; Washington University v. Rouse, id. 439.

3. Charters which suspend the exercise of the recognized sovereign powers of a State have, as contracts, been repeatedly sustained. Thus she may, for a consideration, bind herself not to tax a corporation; and a clause to that effect in a charter is a part of the contract, though it curtails, to that extent, her taxing power. The provision that no State shall pass a law impairing the obligation of contracts imposes a limitation not only upon that power, but upon all her legislation. New Jersey v. Wilson, 7 Cranch, 164; State Bank of Ohio v. Knoop, supra; Home of the Friendless v. Rouse, supra; Washington University v. Rouse, supra; Atwater v. Woodbridge, 6 Conn. 223; Herrick v. Randolph, 13 Vt. 525; State Bank v. People, 4 Scam. (Ill.) 303; Illinois Central Railroad Co. v. McLean, 17 Ill. 291; The Binghamton Bridge, supra; Bridge Proprietors v. Hoboken Company, supra; Conway et al. v. Taylor's Ex'rs, 1 Black, 603; Costar v. Brush, 25 Wend. (N. Y.) 630; M'Roberts v. Washburn, 10 Minn. 23; Murray v. Charleston, 96 U.S. 432.

4. The police power of the State was regarded by the court below as justifying the acts complained of, upon the hypothesis that all her grants are subject to an implied reservation of that power. There is no room here for such an implication. It is a contradiction in terms to say that an authority to carry on a particular business within designated limits for a specific period, which has been expressly granted by a binding contract, may be taken away at her pleasure, in the exercise of that power. Police regulations cannot be constitutionally enforced, if they conflict with the charter, or impair any of the essential rights which it confers. Cooley, Const. Lim. 557; Washington Bridge Co. v. State, 18 Conn. 53; Pingrey v. Washburn, 1 Aik. (Vt.) 264; Miller v. New York & Erie Railway Co., 21 Barb. (N. Y.) 513; People v. Jackson & Michigan Railroad Co., 9 Mich. 307; People v. Platt, 17 Johns. (N. Y.) 195; Bailey v. Railroad Company, 4 Harr. (Del.) 389; Conway v. Taylor's Ex'rs, supra; State v. Neves, 47 Me. 189; State v. Jersey City, 5 Dutch. (N. J.) 170.

A railroad which, without legislative authority, crosses a common highway, is a nuisance. Dillon, Mun. Corp., sect. 561. But when a charter conferring the right to construct such a road over a along a public highway is accepted, the company, if it operates its road with a due regard to the public safety and convenience, cannot be subjected by the State, in the pretended exercise of her police power, to penalties and forfeitures. A nuisance can be legalized; for the State may, for a limited time, surrender her police, as well as any other power. In this case she has done so for a valuable consideration, to secure a result of vital importance.

It was urged below that the charter is not violated by the ordinances, because the company may establish its works at some other point within the territory prescribed. To this there are two obvious answers. 1. The erection of the works is a compliance with the requirements of the charter, and entitles the company to exercise its franchise at the selected site. 2. It is gratuitously assumed that there are other suitable points to which means of rapid transit exist; but suppose there be, it may be safely predicted that, long before the expiration of the charter, the police power, if the decision below be now sustained, will be invoked, so as to render it impracticable for the company to carry on its business at any point, notwithstanding it may have invested capital in making preparation therefor.

5. If the public necessities demand that the franchise of the company shall be appropriated by the State, a proceeding condemning it in the exercise of the right of eminent domain, whereby an adequate compensation will be paid therefor, is the proper and only constitutional remedy. Cooley, Const. Lim. 556, and cases there cited; Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35; Central Bridge Corporation v. Lowell, 4 Gray (Mass), 474; West River Bridge v. Dix et al., 6 How 507; Annington v. Barnett, 15 Vt. 745; Boston Water-Power Co. v. Boston & Worcester Railroad, 23 Pick. (Mass.) 360; Boston & Lowell Railroad Co. v. Salem & Lowell Railroad Co., 2 Gray (Mass.), 1.

6. The right to equitable relief follows from the preceding propositions. Boston & Lowell Railroad Co. v. Salem & Lowell Railroad Co., supra; Craton Turnpike v. Kider, 1 Johns. (N.Y.) Ch. 611; Livingston v. Van Dusen, 9 Johns. (N. Y.) 507; High, Injunctions, sect. 318, and cases cited.

Mr. Charles Hitchcock, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Fertilizing Company v. Hyde Park


text: Talk:Fertilizing Company v. Hyde Park

title: Talk:Fertilizing Company v. Hyde Park


text:
Fertilizing Company v. Hyde Park/Opinion of the Court

This case was brought here by a writ of error to the Supreme Court of the State of Illinois.

The alleged ground of our jurisdiction is, that the record presents a question of Federal jurisprudence. A brief statement of the facts will be sufficient for the purposes of this opinion.

The plaintiff in error was incorporated by an act of the legislature, approved March 8, 1867. The act declared that the corporation should 'have continued succession and existence for the term of fifty years.' The fourth and fifth sections are as follows:--

'SECT. 4. Said corporation is hereby authorized and empowered to establish and maintain chemical and other works at the place designated herein, for the purpose of manufacturing and converting dead animals and other animal matter into an agricultural fertilizer, and into other chemical products, by means of chemical, mechanical, and other processes.

'SECT. 5. Said chemical works shall be established in Cook County, Illinois, at any point south of the dividing line between townships 37 and 38. Said corporation may establish and maintain depots in the city of Chicago, in said county, for the purpose of receiving and carrying off, from and out of the said city, any and all offal, dead animals, and other animal matter, which they may buy or own, or which may be delivered to them by the city authorities and other persons.'

The company organized pursuant to the charter. Its capital stock is $250,000, all of which has been paid up and invested in its business.

It owns ground and has its receiving depot about three miles from Chicago. The cost of both exceeded $15,000. Thither the offal arising from the slaughtering in the city was conveyed daily. The chemical works of the company are in Cook County, south of the dividing line of townships 37 and 38, as required by the charter. When put there, the country around was swampy and nearly uninhabited, giving little promise of further improvement. They are within the present limits of the village of Hyde Park. The offal procured by the company was transported from Chicago to its works through the village by the Pittsburg, Fort Wayne, and Chicago Railroad. There was no other railroad by which it could be done. The court below, in its opinion, said:--

'An examination of the evidence in this case clearly shows that this factory was an unendurable nuisance to the inhabitants for many miles around its location; that the stench was intolerable, producing nausea, discomfort, if not sickness, to the people; that it depreciated the value of property, and was a source of immense annoyance. It is, perhaps, as great a nuisance as could be found or even created; not affecting as many persons as if located in or nearer to the city, but as intense in its noisome effects as could be produced. And the transportation of this putrid animal matter through the streets of the village, as we infer from the evidence, was offensive in a high degree both to sight and smell.'

This characterization is fully sustained by the testimony.

In March, 1869, the charter of the village was revised by the legislature, and the largest powers of police and local government were conferred. The trustees were expressly authorized to 'define or abate nuisances which are, or may be, injurious to the public health,'-to compel the owner of any grocery-cellar, tallow-chandler shop, soap factory, tannery, or other unwholesome place, to cleanse or abate such place, as might be necessary, and to regulate, prohibit, or license breweries, tanneries, packing-houses, butcher-shops, stock-yards, or establishments for steaming and rendering lard, tallow-offal, or other substances, and all establishments and places where any nauseous, offensive, or unwholesome business was carried on. The sixteenth section contains a proviso that the powers given should not be exercised against the Northwestern Fertilizing Company until after two years from the passage of the act. This limitation was evidently a compromise by conflicting parties.

On the 5th of March, 1867, a prior act, giving substantially the same powers to the village, was approved and became a law. This act provided that nothing contained in it should be construed to authorize the officers of the village to interfere with parties engaged in transporting any animal matter from Chicago, or from manufacturing it into a fertilizer or other chemical product. The works here in question were in existence and in operation where they now are before the proprietors were incorporated.

After the last revision of the charter the municipality passed an ordinance whereby, among other things, it was declared that no person should transport any offal or other offensive or unwholesome matter through the village, and that any person employed upon any train or team conveying such matter should be liable to a fine of not less than five nor more than fifty dollars for each offence; and that no person should maintain or carry on any offensive or unwholesome business or establishment within the limits of the village, nor within one mile of those limits. Any person violating either of these provisions was subjected to a penalty of not less than fifty nor more than two hundred dollars for each offence, and to a like fine for each day the establishment or business should be continued after the first conviction.

After the adoption of this ordinance and the expiration of two years from the passage of the act of 1869, notice was given to the company, that, if it continued to transport offal through the village as before, the ordinance would be enforced. This having no effect, thereafter, on the 8th of January, 1873, the village authorities caused the engineer and other employees of the railway company, who were engaged in carrying the offal through the village, to be arrested and tried for violating the ordinance. They were convicted, and fined each fifty dollars. This bill was thereupon filed by the company. It prays that further prosecutions may be enjoined, and for general relief. The Supreme Court of the State, upon appeal, dismissed the bill, and the company sued out this writ of error.

The plaintiff in error claims that it is protected by its charter from the enforcement against it of the ordinances complained of, and that its charter is a contract within the meaning of the contract clause of the Constitution of the United States. Whether this is so, is the question to be considered.

The rule of construction in this class of cases is that it shall be most strongly against the corporation. Every reasonable doubt is to be resolved adversely. Nothing is to be taken as conceded but what is given in unmistakable terms, or by an implication equally clear. The affirmative must be shown. Silence is negation, and doubt is fatal to the claim. This doctrine is vital to the public welfare. It is axiomatic in the jurisprudence of this court. It may be well to cite a few cases by way of illustration. In ''Rector, &c. of Christ Church v. The County of Philadelphia (24 How. 301), in Tucker v. Ferguson (22 Wall. 527), and in West Wisconsin Railroad Co. v. Board of Supervisors'' (96 U.S. 595), property had been expressly exempted for a time from taxation. Taxes were imposed contrary to the terms of the exemption in each case. The corporations objected. This court held that the promised forbearance was only a bounty or gratuity, and that there was no contract. In The Providence Bank v. Billings & Pittman (4 Pet. 515), the bank had been incorporated with the powers usually given to such institutions. The charter was silent as to taxation. The legislature imposed taxes. 'The power to tax involves the power to destroy.' McCulloch v. Maryland, 4 Wheat. 316. The bank resisted, and brought the case here for final determination. This court held that there was no immunity, and that the bank was liable for the taxes as an individual would have been. There is the same silence in the charter here in question as to taxation and as to liability for nuisances. Can exemption be claimed as to one more than the other? Is not the case just cited conclusive as to both?

Continued succession is given to corporations to prevent embarrassment arising from the death of their members. One striking difference between the artifical and a natural person is, that the latter can do any thing not forbidden by law, while the former can do only what is so permitted. Its powers and immunities depend primarily upon the law of its creation. Beyond that it is subject, like individuals, to the will of the law-making power.

If the intent of the legislature touching the point under consideration be sought in the charter and its history, it will be found to be in accordance with the view we have expressed as matter of law. Three days before the charter of the plaintiff in error became a law, the legislature declared that the power of the village as to nuisances should not extend to those engaged in the business to which the charter relates. The subject must have been fully present to the legislative mind when the company's charter was passed. If it were intended the exemption should be inviolable, why was it not put in the company's charter as well as in that of the village? The silence of the former, under the circumstances, is a pregnant fact. In one case it was doubtless known to all concerned that the restriction would be irrepealable, while in the other, that it could be revoked at any time. In the revised village charter of 1869, the exemption was limited to two years from the passage of the act. This was equivalent to a declaration that after the lapse of the two years the full power of the village might be applied to the extent found necessary. Corporations in such cases are usually prolific of promises, and the legislature was willing to await the event for the time named.

That a nuisance of a flagrant character existed, as found by the court below, is not controverted. We cannot doubt that the police power of the State was applicable and adequate to give an effectual remedy. That power belonged to the States when the Federal Constitution was adopted. They did not surrender it, and they all have it now. It extends to the entire property and business within their local jurisdiction. Both are subject to it in all proper cases. It rests upon the fundamental principle that every one shall so use his own as not to wrong and injure another. To regulate and abate nuisances is one of its ordinary functions. The adjudged cases showing its exercise where corporate franchises were involved are numerous. In Coates v. The Mayor and Aldermen of the City of New York (7 Cow. (N. Y.) 585), a law was enacted by the legislature of the State on the 9th of March, 1813, which gave to the city government power to pass ordinances regulating, and, if necessary, preventing the interment of dead bodies within the city; and a penalty of $250 was authorized to be imposed for the violation of the prohibition. On the 7th of October, 1823, an ordinance was adopted, forbidding interments or the depositing of dead bodies in vaults in the city south of a designated line. A penalty was prescribed for its violation. The action was brought to recover the penalty for depositing a dead body in a vault in Trinity churchyard. A plea was interposed, setting forth that the locus in quo was granted by the King of Great Britain, on the 6th of May, 1697, to a corporation by the name of the 'Rector and Inhabitants of the City of New York in Communion with the Protestant, Episcopal Church of England,' and their successors for ever, as and for a churchyard and burying place, with the rights, fees, &c.; that immediately after the grant the land was appropriated, and thenceforward was used as and for a cemetery for the interment of dead bodies; that the rector and wardens of Trinity Church were the same corporation; and that the body in question was deposited in the vault in the churchyard by the license of that corporation. A general demurrer was filed, and the case elaborately argued.

The validity of the ordinance was sustained. The court held that 'the act under which it was passed was not unconstitutional, either as impairing the obligation of contracts, or taking property for public use without compensation, but stands on the police power to make regulations in respect to nuisances.' It was said: 'Every right, from absolute ownership in property down to a mere easement, is purchased and holden subject to the restriction that it shall be so exercised as not to injure others. Though at the time it be remote and inoffensive, the purchaser is bound to know at his peril that it may become otherwise by the residence of many people in its vicinity, and that it must yield to by-laws and other regular remedies for the suppression of nuisances.'

In such cases, proscription, whatever the length of time, has no application. Every day's continuance is a new offence, and it is no justification that the party complaining came voluntarily within its reach. Pure air and the comfortable enjoyment of property are as much rights belonging to its as the right of possession and occupancy. If population, where there was none before, approaches a nuisance, it is the duty of those liable at once to put an end to it. Brady v. Weeks, 3 Barb. (N. Y.) 157.

The legislature of Massachusetts, on the 1st of February, 1827, incorporated the 'Boston Beer Company,' 'for the purpose of manufacturing malt liquors in all their varieties in the city of Boston,' &c. By an act of June, 1869, the manufacture of malt liquors to be sold in Massachusetts, and brewing and keeping them for sale, were prohibited, under penalties of fine and imprisonment and the forfeiture of the liquors to the Commonwealth. In Beer Company v. The Commonwealth, the Supreme Court of Massachusetts held that 'the act of 1869 does not impair the obligations of the contract contained in the charter of the claimant, so far as it relates to the sale of malt liquors, but is binding on the claimant to the same extent as on individuals.

'The act is in the nature of a police regulation in regard to the sale of a certain article of property, and is applicable to the sale of such property by individual and corporations, even where the charter of the corporation cannot be altered or repealed by the legislature.'

This court unanimously affirmed that judgment. In our opinion, Mr. Justice Bradley, speaking for the court, said: 'Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals.' The judgment here was placed also upon another ground. Beer Company v. Massachusetts, supra, p. 25.

Perhaps the most striking application of the police power is in the destruction of buildings to prevent the spead of a conflagration. This right existed by the common law, and the owner was entitled to no compensation. 2 Kent, Com. 339, and notes 1 and a and b. In some of the States it is regulated by statute. Russel v. The Mayor of New York, 2 Den. (N. Y.) 461; American Print Works v. Lawrence, 23 N. J. L. 590.

In the case before us it does not appear that the factory could not be removed to some other place south of the designated line, where it could be operated, and where offal could be conveyed to it from the city by some other railroad, both without rightful objection. The company had the choice of any point within the designated limits. In that respect there is no restriction.

The charter was a sufficient license until revoked; but we cannot regard it as a contract guaranteeing, in the locality originally selected, exemption for fifty years from the exercise of the police power of the State, however serious the nuisance might become in the future, by reason of the growth of population around it. The owners had no such exemption before they were incorporated, and we think the charter did not give it to them.

There is a class of nuisances designated 'legalized.' These are cases which rest for their sanction upon the intent of the law under which they are created, the paramount power of the legislature, the principle of 'the greatest good of the greatest number,' and the importance of the public benefit and convenience involved in their continuance. The topic is fully discussed in Wood on Nuisances, c. 23, p. 781. See also 4 Waite, Actions and Defences, 728. This case is not within that category. We need not, therefore, consider the subject in this opinion.

Decree affirmed.

MR. JUSTICE FIELD did not sit in this case, nor take any part in its decision.

MR. JUSTICE MILLER concurred in the judgment; MR. JUSTICE STRONG dissented.


text: Talk:Fertilizing Company v. Hyde Park/Opinion of the Court


text:
Insurance Company v. Lewis

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

The facts are stated in the opinion of the court.

Mr. Everett W. Pattison for the plaintiff in error.

Mr. J. D. S. Dryden, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Insurance Company v. Lewis


text: Talk:Insurance Company v. Lewis

title: Talk:Insurance Company v. Lewis


text:
Insurance Company v. Lewis/Opinion of the Court

This action was commenced in the Circuit Court of St. Louis County, Missouri, by Lewis, the defendant in error, as public administrator of that county, upon a policy of insurance dated July 30, 1873, whereby the Union Mutual Life Insurance Company of Maine agreed to insure the life of William S. Berton, 'of Milwaukee, County of Milwaukee, State of Wisconsin,' in the sum of $5,000, payable three months after due proof of death, to his executors, administrators, or assigns. The case was removed for trial into the Circuit Court of the United States for the Eastern District of Missouri, where a verdict and judgment were rendered against the company. A new trial and motion in arrest of judgment having both been denied, the present writ of error is prosecuted by the company.

A preliminary question is presented as to the right of the defendant in error, as public administrator of St. Louis County, Missouri, to maintain any action whatever upon the policy sued on. His authority in the premises is claimed to exist under a Missouri statute of 1868, which was in force when this action was instituted. That statute makes it 'the duty of the public administrator to take into his charge and custody the estates of all deceased persons in his county, in the following instances: First, When a stranger dies intestate in the county, without relatives, or dies leaving a will, and the executor named is absent, or fails to qualify; second, when persons die intestate, without any known heirs; third, when persons unknown die, or are found dead, in the county; fourth, when money, property, papers, or other estate are left in a situation exposed to loss or damage, and no other person administers on the same; fifth, when any estate of any person who dies intestate therein or elsewhere is left in the county liable to be injured, wasted, or lost, when said intestate does not leave a known husband, widow, or heir in this State; sixth, when from any good cause said court shall order him to take possession of any estate to prevent its being injured, wasted, purloined, or lost.' 1 Wagner's Stat., ed. 1872, p. 122. The same statute requires the public administrator, immediately upon taking charge of any estate, for the purpose of administering the same (except that of which he shall take charge under the order of the proper court), to file a notice of such fact in the clerk's office of the court having probate jurisdiction. Id. p. 123.

On 17th September, 1875, the defendant in error, as public administrator, filed in the clerk's office of the Probate Court of St. Louis County a notice, addressed to the judge of that court, informing creditors and all other persons interested in the estate of William S. Berton, 'late of the county of St. Louis,' that he had, on that day, taken charge of such estate, for the purpose of administering the same; and immediately thereafter, on the same day, commenced this action in the Circuit Court of that county, without making and presenting proofs of loss, or giving the company previous notice of his administration, or that he, as such administrator, asserted any claim under the policy. These steps were taken, as was conceded on the trial below, 'for the sole purpose of administering upon and collecting the policy in suit.' It also appears that Berton, at the date of the policy, and at his death, which occurred on 31st March, 1874, was a resident of Milwaukee and a citizen of Wisconsin; that he died in that city, and had not at any time resided in the State of Missouri; that he left no money, property, papers, or other estate in Missouri; that the policy sued on was found among his papers after his death; that on 5th June, 1874, administration upon his estate was granted by the County Court of Milwaukee County, Wisconsin, to Benjamin K. Miller; that the defendant in error was never ordered by the Probate Court of St. Louis County, or any other court, to take charge of Berton's estate.

The bare statement of these facts, which are admitted or are clearly proven, is enough to show an absolute want of authority in Lewis to take charge of or administer the estate of Berton. His collection, by suit, of the amount, if any, due from the company upon the policy sued on, or any administration by him, in his capacity as public administrator, of Berton's estate, would be acts of palpable usurpation. The notice filed by him in the clerk's office of the Probate Contract was ineffective for any purpose, although it contained the false recital that Berton was 'late of the county of St. Louis.' Such a notice was required only when he took charge of an estate upon which he could legally administer. No judgment rendered in this action, upon the merits, could protect the company against a future suit by the proper representatives of Berton's estate. This would not be the case if Lewis's claim to administer that estate had any sound foundation upon which to rest. It was not the purpose of the statute to authorize a suit by a public administrator in Missouri against a foreign corporation doing business there, upon a contract, not made or to be executed in that State, with a citizen of another State who neither resided nor died, nor left any estate, in Missouri. Without discussing the validity of any local statute framed for such purposes as are imputed, by this action, to the Missouri statute of 1868, it is sufficient to say that the present case is not within that statute, according to any reasonable interpretation of its provisions.

It is claimed, however, that this view cannot be sustained without questioning the authority of the public administrator in a collateral proceeding. In support of that position we are referred to Wetzell v. Waters, 18 Mo. 396; Riley's Adm'r v. McCord's Adm'r, 24 id. 266; Lancaster, Adm'r, v. Washington Life Insurance Co. of New York, 62 id. 121; and Johnson v. Beazley, 65 id. 250. We have not access, at this time, to the volume of reports last cited, but upon examining the other cases we find nothing which, in any degree, militates against the views we have expressed. In the case in 18 Mo. a judgment, by default, had been taken, and the question was presented, upon appeal, whether it was incumbent upon the public administrator, in whose favor the judgment was rendered, to state in his pleadings, or to prove, as a condition precedent to recovery, the facts which authorized him to take upon himself the burden of administration. It was held that it was not, and that no one but an executor, or legally appointed administrator, could dispute his authority, except in cases in which the same thing might be done in relation to private administrations. In the case in 24 Mo. it was decided that illegality in the grant of the letters of administration could not be taken advantage of in a collateral proceeding, and that they must be regarded as valid until regularly revoked.

In the case of 62 Mo. the issue was as to the fact of the death of a citizen of Missouri, whose life had been insured, and upon whose estate administration had been granted by the Probate Court of St. Louis County, which was the county of his residence. The answer admitted the appointment of the administrator, but denied the fact of death, and, upon that graund, questioned the legality of such appointment. The court held that the admissions in the pleadings and the testimony of the defendant established the fact of letters of administration having been granted, and that such letters constituting prima facie evidence of the death of the person on whose estate they were issued, the burden of proof was upon the defendant to show that the assured was not dead, and consequently that administration had been illegally granted. These decisions, it is obvious, have no application to the subject under consideration. They announce no principles in conflict with those here declared. The company does not ask the revocation of Lewis's letters of administration. Its answer does not dispute the validity of his appointment as public administrator of St. Louis County. Recognizing his right to perform all the functions which, by the laws of Missouri, pertain to that office, the company, in view of the facts we have stated, simply denies that Lewis had any authority, under the statutes of that State or by virtue of his appointment as such administrator, to take charge of the particular estate in question, or assert any claim arising out of the alleged contract of insurance. If the mere assumption by Lewis of authority to that extent was sufficient prima facie to maintain this action,-a proposition which it is unnecessary to discuss,-the conceded and established facts show an entire absence of any such authority, and prove that the company was not bound to litigate with him, in any court whatever, its liability upon the policy sued on. The company only sought to restrict him to the discharge of his legitimate duties, and prevent him from intermeddling in matters which did not concern him as public administrator.

But it is further contended that the answer, which relied upon these objections to the action, was in the nature of a plea in abatement, and that such objections were, according to established rules of practice in the Federal courts, waived when the company answered to the merits without first having the court dispose of the issue as to Lewis's right to maintain the action. This position is, however, wholly untenable. The defence, so far as it impeached the authority of Lewis, by virtue of his appointment as public administrator, to collect the amount, if any, due on the policy, was in bar, not in abatement, of the action. The defence, if true, did not question his capacity as such administrator to perform any of the duties imposed upon him by law. It only insisted that he, as such lawfully appointed administrator, had no cause of action against the company upon the alleged contract of insurance.

What we have said is decisive of the case, and we are consequently relieved from the necessity of inquiring whether the policy sued on was ever delivered to or accepted by Berton, so as to be binding upon the insurance company. That question can only arise in an action against the company by one who is entitled by law to represent his estate.

The judgment will be reversed, with directions to dismiss the action without prejudice to any suit upon the policy by the proper parties in the proper forum; and it is

So ordered.


text: Talk:Insurance Company v. Lewis/Opinion of the Court


text:
Mattingly v. District of Columbia

APPEAL from the Supreme Court of the District of Columbia.

The facts are sufficiently stated in the opinion of the court.

Mr. Richard T. Merrick and Mr. T. A. Lambert for the appellant.

Mr. A. G. Riddle, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Mattingly v. District of Columbia


text: Talk:Mattingly v. District of Columbia

title: Talk:Mattingly v. District of Columbia


text:
Mattingly v. District of Columbia/Opinion of the Court

The facts of this case appear in the bill, the answer, and the accompanying exhibits. So far as it is necessary to restate them now, they are as follows:--

In the year 1871, the board of public works of the District of Columbia, a board constituted under and by virtue of the organic law of the District, caused to be constructed a sewer in and along the line of Seventh Street, in the city of Washington, extending from Virginia Avenue to the Potomac River. They also caused the street and sidewalks to be paved, and curbstones at the gutters to be set. The work had been commenced by the corporation of Washington before the board came into existence, and a contract had been made by the city with George M. Linville to pave and construct a sewer along that street; but the work had not been completed, when Congress, by act approved February 22, 1871, incorporated the District and provided for the existence of a board of public works. The act declared the board should have entire control of, and make all regulations which they should deem necessary for keeping in repair, the streets, avenues, alleys, and sewers of the city, and all other works which might be intrusted to their charge by the legislative assembly of the District, or by Congress. Under this authority the board, when organized, took charge of the work on Seventh Street, continued Linville as contractor, caused the sewer to be changed and enlarged, and contracted with Albert Gleason for paving the sidewalks and setting the curbstones. After the completion of the work, they made an assessment of one-third of its cost upon the property adjoining, proportioning it to the frontage; gave notice of the assessment to the property owners; and the District was about to proceed in the collection of the assessments when this bill was filed. The assessments were made ostensibly by authority of the thirty-seventh section of the organic act of the District. The clause of that section conferring the authority is as follows: 'They (the board of public works) shall disburse upon their warrant all moneys appropriated by the United States, or the District of Columbia, or collected from property holders, for the improvement of streets, avenues, alleys, and sewers, and roads and bridges, and shall assess, in such manner as shall be prescribed by law, upon the property adjoining and to be especially benefited by the improvements, authorized by law and made by them, a reasonable proportion of the cost of the improvement, not exceeding one-third of such cost, which sum shall be collected as all other taxes are collected.'

The complainants are property holders along the line of Seventh Street, adjoining that part of the street where the sewer was constructed, and where the curbstones and the paving were laid. Their properties are some of those upon which the board of public works made an assessment of one-third the cost of the improvement, and they bring this bill for an injunction against the collection of the sums assessed, and against issuing certificates of indebtedness of their properties. The bill also seeks a decree that the assessments are illegal and void, and an injunction upon the District, or the board of public works, against making any payment for the work done, and upon the contractors against receiving payment.

In support of the prayer for such relief, the bill charges, 1st, that the board was not authorized by law to make the improvement along Seventh Street; 2d, that no law existed at the time when the assessments were made, prescribing the manner in which the board should make assessments; 3d, that assessments according to the frontage of the street were unauthorized and illegal; and 4th, that in making the assessment no part of the cost of the improvement was charged upon school-house and church property, exempt by law from taxation, but that the whole of the one-third of the cost was charged against the other adjoining property. There are other minor complaints of the assessment, not, however, needful to be stated. They assail only its regularity.

We do not propose to inquire whether the charges of the bill are well founded. Such an inquiry can have no bearing upon the case as it now stands; for were it conceded that the board of public works had no authority to do the work that was done at the time when it was done, and consequently no authority to make an assessment of a part of its cost upon the complainants' property, or to assess in the manner in which the assessment was made, the concession would not dispose of the case, or establish that the complainants have a right to the equitable relief for which they pray. There has been congressional legislation since 1872, the effect of which upon the assessments is controlling. There were also acts of the legislative assembly of the District, which very forcibly imply a confirmation of the acts and assessments of the board of which the bill complains. If Congress or the legislative assembly had the power to commit to the board the duty of making the improvements, and to prescribe that the assessments should be made in the manner in which they were made, it had power to ratify the acts which it might have authorized. And the ratification, if made, was equivalent to an original authority, according to the maxim, Omnis ratihabitio retro trahitur et mandato priori aequiparatur. Under the Constitution, Congress had power to exercise exclusive legislation in all cases whatsoever over the District, and this includes the power of taxation. Cohen v. Virginia, 6 Wheat. 264. Congress may legislate within the District, respecting the people and property therein, as may the legislature of any State over any of its subordinate municipalities. It may therefore cure irregularities, and confirm proceedings which without the confirmation would be void, because unauthorized, provided such confirmation does not interfere with intervening rights. Judge Cooley, in view of the authorities, asserts the following rule: 'If the thing wanting, or which failed to be done, and which constitutes the defect in the proceeding, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.' Cooley, Const. Lim. 371. This rule, we think, is accurately stated.

The question is therefore presented, whether the legislative assembly was empowered by the organic law of the District to commit to the board of public works public improvements, to make appropriations for them, and to prescribe the manner in which assessments should be made, or whether Congress itself has confirmed the assessments of which the plaintiffs complain.

There is much in the legislation of the District assembly which, if it does not show a direct ratification of what was done by the board of public works, at least exhibits an acquiescence in it and an approval. After the work had been done upon Seventh Street, an act of that assembly, passed May 29, 1873, extended the time for payment of the assessments, and authorized the board to issue, and use in the discharge of outstanding obligations, certificates of indebtedness for work done under its direction, and chargeable to the private property benefited thereby. This included assessments for work done or in progress under existing contracts, and the act declared that such certificates should be receivable in payment for assessments for special improvements. The second section directed all certificates thereafter issued to be deposited with the commissioners of the sinking fund of the District, and pledged them for the payment of the principal and interest. The third section extended the time of payment, and provided that, upon default of payment, the property against which the assessments and certificates existed should be sold; and the fourth section authorized and directed the commissioners of the sinking fund to purchase the certificates, on request of the holders, and collect them on their account. It is difficult to understand what this act meant, if it did not recognize the validity of the assessments made by the board of public works, and consequently the authority by which the work was done and the improvements were made.

The action of Congress has been even more significant. Passing by the act of March 3, 1875, which gave directions for sales to collect the assessments for special improvements, in itself presenting no doubtful implication, the act of Congress of June 19, 1878, appears to us to have set the matter at rest. That act peremptorily directed the commissioners of the District 'to enforce the collection, according to existing laws, of all assessments for special improvements prepared under an act of the legislative assembly of Aug. 10, 1871, as charges upon the property benefited by the improvements in respect to which the said assessments were made.' It also authorized the commissioners to revise such assessments within thirty days from the passage of the act, and correct the same, so far as the charges were erroneous or excessive. The meaning of this act is not to be mistaken. It was practically a confirmation of what the board of public works had done. It is not to be conceded that Congress ordered the collection of assessments which it regarded as illegal; and the permission given to the commissioners to correct errors and excesses in them by giving drawback certificates, to be receivable in payment of assessments, leaves no doubt that the authority of the board to make them, as they were made, was intended to be recognized. It is not denied that the act had in view these assessments now assailed by the complainants, and no such denial could honestly be made. We are of opinion, therefore, that the assessments have been ratified by Congress. If there were errors in the manner of making them, or in the amount of the charges, provision was made for correction of the errors. If the church and school properties should not have been exempted, and consequently the amount charged upon the complainants' properties was erroneously increased, the commissioners were empowered to correct the wrong.

It may be that the burden laid upon the property of the complainants is onerous. Special assessments for special road or street improvements very often are oppressive. But that the legislative power may authorize them, and may direct them to be made in proportion to the frontage, area, or market value of the adjoining property, at its discretion, is, under the decisions, no longer an open question.

In conclusion, we may notice an argument of the complainants, that the deeds by which the fee-simple of the streets of Washington was conveyed to the United States require the Federal government to pay for grading and improving the streets. In answer to this, it is sufficient to say no such point was made in the court below, and no such deeds are in evidence or are exhibits in the case. In their absence, we cannot assume the fact upon which this argument rests.

Decree affirmed.

NOTE.-National Bank v. Shoemaker, appeal from the Supreme Court of the District of Columbia, was heard at the same time as the preceding case, and was argued by Mr. Walter S.C.ox and Mr. William A. Cook for the appellant, and by Mr. Richard T. Merrick and Mr. T. A. Lambert for the appellee.

MR. JUSTICE STRONG delivered the opinion of the court.

This case is substantially ruled by Mattingly v. District of Columbia, supra, p. 687. The bill, as in that case, was for an injunction against the collection of a special assessment, and for the surrender and cancellation of a certificate of indebtedness for such an assessment. The property upon which the assessment was laid is in the District of Columbia, though outside the bounds of the city of Washington. But the legislative assembly, created by the organic act, had authority to legislate for the entire District; and the board of public works had the same authority over the roads of the District as they had over the streets and avenues in the city. They had, throughout the District, the same power to make assessments for improvements. The assessment of which the bill complains was made by the board, and it was one of those which were confirmed and ordered to be enforced by the act of Congress of June 19, 1878. The bill of the complainant cannot, therefore, be sustained.

The decree will be reversed, and the cause remitted with instructions to dismiss the bill; and it is

So ordered.


text: Talk:Mattingly v. District of Columbia/Opinion of the Court


text:
Ruch v. Rock Island

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

The facts are stated in the opinion of the court.

Submitted by Mr. Charles B. Waite for the plaintiff in error, and by Mr. W. C. Gondy for the defendant in error.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Ruch v. Rock Island


text: Talk:Ruch v. Rock Island

title: Talk:Ruch v. Rock Island


text:
Ruch v. Rock Island/Opinion of the Court

This is an action of ejectment. The plaintiff below is the plaintiff in error. There was a trial before Judge Drummond, and a verdict for the defendant. This verdict was vacated and a new trial ordered. The case was re-tried by Judge Blodgett. The jury again found for the defendant, and this judgment was entered accordingly. Between the two trials the great Chicago fire occurred, and all the files in the case were destroyed. Among them were a deposition of Henry Powers and a deposition of Hibbard Moore. At the time of the second trial both deponents were dead. The depositions of Connelly and Harson were offered to prove the contents of the depositions which had been burned. Connelly deposed that he was the counsel for the defendant at the first trial, and that he put the interrogatories to Powers when his deposition was taken. He then proceeded 'to give the substance of the testimony of said Powers, as given in his (Powers's) deposition, he, Connelly, refreshing his recollection by notes taken, as witness said, by him at that time.' He said he gave 'the main and principal points of the deposition of the deceased witness, but could not give the exact language.' He also said he gave 'the main and principal points of the cross-examination and re-examination of said Powers, as given when said Powers's deposition was taken.' Harson deposed that he was the commissioner who took the Deposition of Powers and the deposition of Moore; that he remembered the substance of the testimony of each of those witnesses, but was not able to give the exact language of either. He then made a statement of the testimony of each as given when his deposition was taken. To the admission of all this testimony of Connelly and Harson the counsel for the plaintiff in error objected. It was received, and he excepted.

There was no error in admitting the testimony. The precise language of the deceased witnesses was not necessary to be proved. To hold otherwise would, in most instances, exclude this class of secondary evidence, and in so far defeat the ends of justice. Where a stenographer has not been employed, it can rarely happen that any one can testify to more than the substance of what was testified by the deceased, especially if the examination was protracted, embraced several topics, and was followed by a searching cross-examination. It has been well said that if a witness in such case, from mere memory, professes to be able to give the exact language, it is a reason for doubting his good faith and veracity. Usually there is some one present who can give clearly the substance, and that is all the law demands. To require more would, in effect, abrogate the rule that lets in the reproduction of the testimony of a deceased witness. The uncertainty of human life renders the rule, as we have defined it, not unfrequently of great value in the administration of justice. The right to cross-examine the witness when he testified shuts out the danger of any serious evil, and those whose duty it is to weight and apply the evidence will always have due regard to the circumstances under which it comes before them, and rarely overstimate its probative force. 1 Greenl. Evid., sect. 165, and notes.

The living witness may use his notes taken contemporaneously with the testimony to be proved, in order to refresh his recollection, and, thus aided, he may testify to what he remembers; or if he can testify positively to the accuracy of his notes, they may be put in evidence. Id., sect. 166, and notes.

The bill of exceptions discloses nothing wrong in the use of his notes made by Connelly.

At the trial in the court below the case turned upon questions of dedication. The theory of the plaintiff was that the property had been specially dedicated for schools and churches; and it was insisted that, there having been conveyances of parts of the premises by some of those bodies for other purposes, the conveyances were void, and that the parts so conveyed reverted to the dedicators, 'their heirs or assigns.' The city contended that the dedication was a general one to the public of the municipality.

At the close of the testimony on both sides, the plaintiff in error submitted eight prayers for instructions to the jury. The court declined to give any of them, but instructed at large, according to its own views of propriety and the exigencies of the case. The court had a right to do both; and if the instructions covered all the points, and presented them fully and fairly to the jury, the duty resting upon the judge was well discharged, and it was not error to refuse those asked for by the plaintiff. This is the settled rule in the courts of the United States, and it is a wise one. It prevents the jury from being confused by a multiplicity of counsels, and promotes the right administration of justice. Labor v. Cooper, 7 Wall. 565; ''Indianapolis, &c. Railroad Co. v. Horst'', 93 U.S. 295.

Except as to a single point,-and that was in favor of the plaintiff in error,-we think the charge of the learned judge was within the category we have laid down. It was strictly impartial. It covered the whole case; nothing that should have been said was omitted. It was well considered, and, with the exception named, stated clearly and correctly the law upon every legal point to which it adverted. The suggestions complained of, made by the judge to the jury, were warranted by the case as found in the record, and did not exceed the limits proper to be observed upon the occasion. Nudd et al. v. Burrows, Assignee, 91 U.S. 427.

In Morgan v. Railroad Company (96 U.S. 716), we had occasion recently to consider the law of dedications in Illinois. It is needless in this opinion to do more than refer to that case, without going over the same ground again.

The refusal to set aside the verdict and grant a new trial cannot be considered here. It was a matter resting in the discretion of the court. Mulhall v. Keenan et al., 18 Wall. 342.

A few words as to the erroneous point in the charge will be sufficient. John W. Spencer was one of the original proprietors and one of the dedicators. He owned at the time of the dedication three-eighths of the premises. A conveyance was made to the plaintiff by his two children, who were his sole heirs-at-law. The plaintiff asked the court to instruct the jury that if his contention as to the facts was correct he was entitled to recover; and the court in the charge given instructed accordingly. It was not denied by the plaintiff that the title had passed, and that the estate had vested by the dedication. If the conditions subsequent were broken, that did not ipso facto produce a reverter of the title. The estate continued in full force until the proper step was taken to consummate the forfeiture. This could be done only by the grantor during his lifetime, and after his death by those in privity of blood with him. In the mean time, only a right of action subsisted, and that could not be conveyed so as to vest the right to sue in a stranger. Conceding the facts to have been as claimed by the plaintiff in error, this was fatal to his right to recover, and the jury should have been so instructed. Webster v. Cooper, 14 How. 488; Davis v. Gray, 16 Wall. 203; 1 Shep. Touch. 149; Winn v. Cole's Heirs, 1 Miss. 119; Southard v. Central Railroad Co., 26 N. J. L. 13; ''Rector, &c. of King's Chapel v. Pelham'', 9 Mass. 501; Parker v. Nichols, 7 Pick. (Mass.) 111; Nicholl v. New York & Erie Railroad Co., 12 Barb. (N. Y.) 460; Bank v. Kent, 4 N. H. 221; Cross v. Carson, 8 Blackf. (Ind.) 138; Hooper v. Cummings, 45 Me. 359; Propagation of the Gospel in Foreign Parts, 2 Paine, 545; Underhill v. Saratoga & Washington Railroad Co., 20 Barb. (N. Y.) 455; Shannon, Adm'r, v. Fuller, 20 Ga. 566; Thompson v. Bright, 1 Cush. (Mass.) 428.

Bringing suit for the premises by the proper party is sufficient to authorize a recovery, without actual entry or a previous demand of possession. Cornelius v. Ivins, 2 Dutch. (N. J.) 376.

Affirmed.


text: Talk:Ruch v. Rock Island/Opinion of the Court


text: Railroad Companies v. Gaines

title: Railroad Companies v. Gaines


text: Talk:Railroad Companies v. Gaines

title: Talk:Railroad Companies v. Gaines