text:
Tilley v. County of Cook/Opinion of the Court

This was an action of assumpsit, brought by Tilley against the County of Cook and the City of Chicago. The declaration consists of the common counts for work and labor done, goods sold and delivered, money lent and advanced, and upon account stated.

The following is a copy of the account sued on, which was appended to the declaration:--

'The COUNTY OF COOK and the CITY OF CHICAGO to THOMAS TILLEY,     Dr.

'For services as architect in preparing plans, drawings,     specifications, diagrams, estimates, and details for the new      court-house and city hall, and superintendence of erecting      the same, five per cent on $2,909,629, the estimated cost of      the building, the plan being that known as 'Eureka'. . .     $145,481 45'

The defendants pleaded the general issue.

By provision of the Constitution and laws of the State of Illinois, the county affairs of Cook County are managed by a board of commissioners of fifteen persons. Ill. Const. 1870, art. 10, sect. 7. The affairs of the city are controlled by the common council. Private Laws of Illinois, 1863, p. 40.

The County of Cook was the owner of a block of ground in the city of Chicago, known as the court-house square, on which it was proposed to erect a building to be used as a city hall and county court-house, in which the business of the city and county might be conducted.

On July 10, the board of county commissioners, and on July 15, 1872, the common council, adopted, each for itself, the following resolution:--

'Resolved, That it is the sense of the joint meeting that     they recommend to the common council of the city of Chicago      and the board of commissioners of Cook County that the city      of Chicago and the county of Cook will authorize the building      committees of the several boards to offer a prize of five      thousand dollars ($5,000) for the best plan, two thousand      dollars ($2,000) for the second, and one thousand dollars      ($1,000) for the third best plan for a court-house and city      hall, to be erected jointly by the county of Cook and the      city of Chicago, upon the public square in the city of      Chicago, the said plans to be submitted to respective boards,      in conjunction with the board of public works of the city of      Chicago.' On Aug. 5, 1872, the common council of the city and the board of county commissioners passed an order providing for a joint contract between the city and county for the erection of a building on the court-house square, and on Aug. 28, 1872, the contract was executed. It declares that it was for the public convenience that the courts and the offices of the city 'should be located at some one convenient point and readily accessible to each other,' and provides for the erection, by the city and county, of a public building on the court-house square, for the use of the county and city governments respectively, and the courts of record; that the general exterior design of the building shall be of such uniform character and appearance as may be agreed upon by the board of county commissioners and the common council of the city.

The contract further provides as follows:--

'3. That portion of the said building situate west of the     north and south centre line of said block shall be erected by      the city of Chicago at its own expense.

'4. The city of Chicago shall occupy that portion of said     block west of the said centre line for a city hall and      offices incidental to the administration of the city      government, and for no other purpose whatever, except as      hereinbefore provided.

'5. Each of the parties will heat, light, and otherwise     maintain and furnish its own portion of said building.'

On Nov. 25, 1872, the building committees of the common council and the county commissioners published an advertisement calling for designs for the proposed building.

The advertisement declared that, in order to secure suitable designs, the city and county jointly offered the following premiums: For the best design, $5,000; for the second best, $2,000; and for the third best, $1,000.

It provided as follows:--

'Each design must have a device or motto marked on each     drawing, and be accompanied by a sealed letter giving the      name of the author, which will be opened after the final      award is made, only for the purpose of ascertaining the names      of the successful architects and for the return of the      unsuccessful drawings to their authors.

'Each competitor will give the cubical contents of his     building, and an estimate of the cost of the same complete.' Designs were submitted by a large number of architects, and the building committees of the city council and the board of county commissioners made a report awarding the prizes. Tilley, who had adopted for his drawing the word 'Eureka' as the device or motto to distinguish it, was awarded the third prize, of $1,000.

On Aug. 4, the county board, and on Aug. 18, 1873, the city council, adopted the following resolution:--

'That the report of the majority of the joint committee     awarding the prizes for plans of court-house and city hall      shall be concurred in and the award confirmed, provided that      nothing herein or in said report contained shall be construed      as indicating a preference for either of said plans as to      which shall be finally adopted, from which the said building      shall be erected.' awarded to him as a prize.

Afterwards, on August 25, the county commissioners, and on Oct. 10, 1873, the city council, adopted the following resolution: -

'That the plan known as Eureka, or number 5 (five) in the     collection, submitted for court-house and city hall, be and      is hereby, selected and adopted as the plan after which to      build such court-house and city hall (the board of      commissioners of Cook County concurring), subject to such      change and modifications as may hereafter be determined upon      by the common council of the city of Chicago and the county      board, provided the estimate of the architect who presented      said plan as to the cost of construction of the building      shall be verified.'

Upon the trial of the case, the testimony tending to establish the facts above recited having been given in evidence by the plaintiff, he was sworn as a witness in his own behalf, and testified that he was an architect of fifteen years' standing, that he had made the design designated by the word 'Eureka,' and that, after the passage by the city council and board of county commissioners of the resolution last above mentioned, he had verified the cost of the construction of the proposed building in the way customary and usual with architects, which was made up at the rate of thirty-five cents per cubic foot for the building, and was indorsed by fourteen or fifteen architects.

The plaintiff produced before the jury all his plans for which the prize had been awarded him. He offered to prove their value, the time employed and the expense incurred in the preparation of them. The court excluded the evidence so offered.

He further offered evidence to establish that by the usage and custom of architects, in the absence of a special contract, the superintendence of the construction of a building belonged to the architect whose plans were adopted. This was also excluded.

He also offered evidence to prove that by the usage and custom of architects, where prizes for plans were offered, the plans of the successful competitors belonged to them, and, if subsequently adopted as the plans to build by, were always paid for in addition to the prize itself. To this the defendants objected, and the court sustained the objection.

He also offered evidence to establish the value of the services rendered in verifying the cost of the proposed building according to the 'Eureka' plans; to which the defendants objected, and the court sustained the objection.

This was all the evidence given or offered to be given in the cause.

The plaintiff then rested his case; whereupon the court directed the jury to find for the defendants.

The jury returned a verdict for the defendants, and judgment was entered thereon.

To reverse this judgment this writ of error was brought.

It will be observed that no evidence was introduced or offered to show that the plans of the plaintiff were used by the defendants, or either of them, or that the building for which they were used was ever erected.

It is clear that if the plaintiff has any right of action it must arise on the resolutions adopted by by the board of county commissioners, Aug. 25, and the city council, Oct. 10, 1873. All that had taken place before those dates was the making of a contract between the city and the county, by which they agreed to join in the erection of a public building in the court-house square, each party to build and pay for its own part of the structure; an offer by the city and county of three prizes for the best plans; an award of the prizes by which the third prize, of $1,000, was given to the plaintiff in error, with the distinct notice that 'the award should not be considered as indicating a preference for either of said plans as to which should be finally adopted from which the said building should be erected;' and the payment to and the receipt by the plaintiff of the prize awarded him.

By the payment to the plaintiff in error of the prize, the defendants discharged every obligation due from them to him arising out of the preparation of plans for the proposed building. Upon that payment being made, no contract whatever, either express or implied, existed between the plaintiff and the defendants.

If, therefore, the plaintiff had any right of action against defendants, it must have arisen by reason of the adoption of the resolution just mentioned, and what was done by plaintiff after its adoption.

The resolution was the voluntary act of the city council and county commissioners. It was not a proposition, but simply the expression of a purpose to build their structure after the plans of the plaintiff, subject to such changes and modifications as might thereafter be determined upon by the common council and the county board. The resolution was not adopted at his instance or suggestion. Suppose that the day after its adoption the resolution had been reconsidered and rescinded, would the defendants nevertheless have been liable for the value of the plans and for five per cent on the estimated cost of the building for superintendence, amounting in the aggregate to near $146,000?

Suppose a private person should announce his purpose to build a house after a design which he had seen in an architect's office, but before he begins the execution of his purpose changes his mind, never calls for or uses the plans, or even builds the house, is he liable to the architect for the value of the plans and for superintendence? In such a case there certainly in no contract between him and the architect upon which a recovery can be based.

The claim of the plaintiff is that by the adoption of the resolution by the city council and the county board, without any act done or assent on his part, they were bound to go on and erect the building on his plans and expend $2,909,000, its estimated cost.

The resolution did not bind the plaintiff to furnish his plans and superintend the building. There was no mutuality, and, therefore, no consideration,-both of which are essential to a contract. Notwithstanding the resolution, the plaintiff might have said, I will not furnish my plans, and I will not superintend the building, and the defendants would have had no claim on him.

If one does not accede to a promise as made, the other party is not bound by it. Tuttle v. Love, 7 Johns. (N.Y.) 469. When A. signs a writing by which he declares he will sell to B. his house at a certain price, this is a mere proposition and not a contract. Tucker v. Woods, 12 id. 189.

In Wood v. Edwards (19 id. 250), where A. wrote that he had agreed to a substitute for an existing agreement which he would execute, Spencer, C. J., said the proposition of A. to execute the new agreement was not binding on him, as well on the ground of want of consideration as want of mutuality, since the plaintiffs on their part were not bound to execute the agreement.

In the case of Kingston v. Phelps (Peak.N.P.C. 299), the plaintiff proved that the defendant consented to be bound by an award to be made on a submission by other underwriters on the same policy, but the witness proved no agreement on the part of the plaintiff to be bound by the award. Lord Kenyon held that there was no mutuality, and therefore the defendant's agreement was a mere nudum pactum.

An offer of a bargain by one person to another imposes no obligation upon the former, unless it is accepted by the latter upon the terms on which it was made. Any qualification of or departure from them invalidates the offer, unless the same be agreed to by the party who made it. Eliason v. Henshaw, 4 Wheat. 225. See also Webb v. Alton Marine & Fire Insurance Co., 8 Ill. 225; Maclay v. Harvey, 90 id. 525.

In this case, there being only an expression of purpose by one party to erect a building according to plans antecedently made by another, and no obligation entered into by the other party, and no plans used or building erected, there was no contract between the parties, either express or implied.

If we are correct in this conclusion, then all the evidence offered by the plaintiff to prove the value of the plans, and the time employed, and the expenses incurred in their preparation, was irrelevant and immaterial.

The only purpose for which such evidence could be admitted would be to prove the damage sustained by the plaintiff by the breach of his alleged contract with the defendants. But if he had no contract, express or implied, he was entitled to no damage, and could show none.

It is complained that the evidence offered to prove the custom of architects was excluded. We think it was rightly excluded.

Proof of usage can only be received to show the intention or understanding of the parties in the absence of a special agreement, or to explain the terms of a written contract. Hutchinson v. Tatham, Law Rep. 8 C. P. 482; Field v. Lelean, 30 L. J. Ex. 168; Baywater v. Richardson, 1 Ad. & E. 508; Robinson v. United States, 13 Wall. 363.

In all cases where evidence of usage is received, the rule must be taken with this qualification, that the evidence be not repugnant to or inconsistent with the contract. Holding v. Pigott, 7 Bing. 465, 474; Clarke v. Roystone, 13 Mee. & W. 752; Yeats v. Pim, Holt, N. P. 95; Trueman v. Loder, 11 Ad. & E. 589; Bliven v. New England Screw Co., 23 How. 420.

The inference from these principles is inevitable, that, unless some contract is shown, evidence of usage or custom is immaterial.

The plaintiff says he was ready to prove a custom of architects, that when prizes were offered for plans of a building, the successful competitor remained the owner of his own designs, and if they were adopted he was entitled to compensation therefor in addition to the prize, and that, by the same custom, the adoption of his plans entitled him to superintend the erection of the building, and to the usual remuneration therefor. He claims, therefore, that in view of this custom, the adoption of his plans by the passage of the resolution referred to by the city and county boards, amounted to a contract, on the part of the defendants, to pay for the plans and employ him to superintend the erection of the building, and pay him therefor.

The offer of the plaintiff to prove certain facts having been rejected, he must be presumed to be able to prove what he offered to prove. We must, therefore, assume that the custom which he offered to prove did, in fact, exist. But what was that custom? Clearly, that if the building was erected according to the successful plans, the architect was entitled to pay therefor. That was such an acceptance and adoption of his plans as would give him the right to compensation therefor, and the right to superintend the erection of the building and receive the usual remuneration. The custom certainly did not bind the party who offered prizes for plans, after having paid the prizes, to pay also for plans that he never used, and for superintendence of a building that he never erected, merely because he had selected a particular plan and announced his purpose to build in accordance with it. If such were the custom and usage of architects in Chicago, it was an absurd and unreasonable custom, and, therefore, not binding. United States v. Buchanan, 8 How. 83.

If the plaintiff had offered to show that after the passage of the resolution by which his plan was accepted, the defendants had erected their building according to his plans, then the evidence of the custom would have been pertinent. But he made no such offer, and it is to be presumed no such fact existed. The evidence of this custom was, therefore, properly excluded.

The plaintiff complains that he was not allowed to prove the value of his services in verifying the cost to the proposed building according to his plans.

We think the court was right in excluding this evidence. There was no proof nor any offer of proof to show that the services of the plaintiff were rendered at the instance or request of the defendants or either of them. From all that appears, the services were voluntarily rendered by the defendant, and no use whatever was made of the results of his investigation. The law, therefore, does not imply a contract to pay for them, and proof of their value was quite immaterial.

The evidence rejected was properly excluded on another ground. The defendants were charged in the declaration with a joint liability, but there was no privity between them, either by law or contract. The evidence offered was to show a joint liability. So far as it went it failed to do this; on the contrary, it was made to appear that each of the defendants was building its own part of the structure at its own expense, and for its own use. After the award and payment of the prizes they assumed no joint liability, as the evidence admitted clearly showed. And the evidence offered did not tend to establish a joint liability. It did not, therefore, support the case made in the declaration, and was properly excluded from the jury. As the plaintiff asked no leave to amend, this ruling of the court is not a ground of error.

We find no error in the record.

Judgment affirmed.


text: Talk:Tilley v. County of Cook/Opinion of the Court

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text:
County of Chicot v. Lewis

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

The facts are stated in the opinion of the court.

Mr. U. M. Rose for the plaintiff in error.

Mr. Eben W. Kimball, contra.

Mr. JUSTICE BRADLEY delivered the opinion of the court.

title: County of Chicot v. Lewis


text: Talk:County of Chicot v. Lewis

title: Talk:County of Chicot v. Lewis


text:
County of Chicot v. Lewis/Opinion of the Court

The legislature of Arkansas, in 1868, passed an act, the first and second sections of which are as follows:--

'SECT. 1. Be it enacted by the General Assembly of the State     of Arkansas, that any county in this State may subscribe to      the stock of any railroad in this State, now chartered or      incorporated, or which shall hereafter be chartered or      incorporated, under and in accordance with the laws of this      State, and may issue bonds for the amount of such stock so      subscribed, with coupons for interest thereto attached, under      such limitations and restrictions, and upon such conditions      as the county court may require, and the president and      directors of such company may approve: Provided, that the      amount Provided, that the amount one hundred thousand      dollars, and the consent of the inhabitants of such county to      such subscription shall be first obtained in the manner      hereinafter provided.

'SECT. 2. Whenever the president and directors of any such     railroad shall make application to the county court of any      county for such subscription by such county to its stock,      specifying the amount to be subscribed an the condition of      such subscription, and one hundred voters of the county shall      petition the court for such purpose, it shall be the duty of      the court immediately to order an election, to be holden at      the place and in the manner other elections in such county      are holden, for the purpose of determining whether such      subscription shall be made, and at least twenty days' notice      thereof shall be given in the manner provided by law for      other elections, at which election those voting for such      subscription shall have written or printed on their ballots      or tickets the words 'for subscription' or 'against      subscription,' and if a majority of the votes cast shall be      in favor of subscription, the court shall cause such      subscription to be made, and upon its acceptance by the      company, shall cause bonds to be issued in conformity with      such vote.'

Under this act Chicot County subscribed $100,000 to the stock of the Mississippi, Ouachita, and Red River Railroad Company, and $100,000, to the stock of the Little Rock, Pine Bluff, and New Orleans Railroad Company, both subscriptions being made by virtue of a single election held by the voters of the county for that purpose. Bonds were issued for the amount of each subscription, $100,000 thereof payable to the Mississippi, Ouachita, and Red River Railroad Company, or bearer, and $100,000 thereof payable to the Little Rock, Pine Bluff, and New Orleans Railroad Company, or bearer. Each bond contained the following recital:--

'This bond is one of a series numbered from one to two     hundred, inclusively, of like date, tenor, and amount, issued      under an act of the General Assembly of the State of      Arkansas, entitled 'An act to authorize counties to subscribe      stock in railroads,' approved July 23, 1868, and in obedience      to a vote of the people of said county at an election held in      accordance with the provisions of said act authorizing a      subscription of one hundred thousand dollars to the capital      stock of said railroad company.' And each bond was executed      by the judge under the county seal, and attested by the      county clerk.

The present suit was brought by the defendant in error to recover the amount of certain coupons, some of which were attached to bonds issued to one of the railroad companies, and some of them to bonds issued to the other company. The complaint alleged that the plaintiff was purchaser and bona fide owner of the coupons for value. The county put in a plea setting up the fact of a single election in reference to both subscriptions, and the amount of stock subscribed and bonds issued for each road. This plea being demurred to, the question was raised, whether the two subscriptions, amounting in the aggregate to $200,000, were ultra vires of the county under the proviso of the first section of the act. The court below sustained the demurrer and gave judgment for the plaintiff.

We do not well see how a different decision could have been made. The act did not restrict the county to a single subscription. Its language is, 'Any county in this State may subscribe to the stock of any railroad in this State,. . . and may issue bonds for the amount, &c., provided that the amount of such subscription shall not exceed one hundred thousand dollars.' That is, the power to subscribe is general, but no subscription shall exceed $100,000. The meaning might have been more distinctly expressed by using the plural, 'any railroads,' and making the proviso to read, 'the amount of such subscriptions shall not exceed one hundred thousand dollars to any one railroad;' but the same sense is sufficiently indicated by the words actually employed. The power given is a power to subscribe to any railroad. This includes all railroads in the State, without restriction. A subscription to one does not extinguish the power of subscribing to any other railroad: otherwise, a subscription of $1,000 to one railroad would exhaust the power; for the argument is based upon the idea that a single exercise of the power exhausts it and leaves the county functus officio. It may be said, that such a construction might lead to disastrous consequences by opening the door to subscriptions to a ruinous amount. But no subscription can be made without an election in favor of it. The law simply meant to give the county full liberty on the subject, limiting only the amount of a single subscription. That the limitation contained in the proviso has reference to a single subscription only is apparent from a bare reading of the context. Omitting surplus words, the section reads thus: 'Any county in this State may subscribe to the stock of any railroad in this State, and issue bonds therefor; provided that the amount of such subscription [that is, the subscription to any railroad] shall not exceed one hundred thousand dollars.' Here the words 'any railroad' are used distributively, including all railroad taken severally; and the limitation has reference to the subscription to 'any railroad,' that is, to any one railroad taken separately. Had the legislature desired to limit the power of subscription to $100,000, the natural and appropriate mode of doing so would have been either to limit the county to one subscription not to exceed $100,000, or to provide that the amount of its subscriptions should not in the aggregate exceed $100,000. Neither of these things was done. As the law stands, it confers a general power to subscribe to the stock of any railroad in the State for any amount not exceeding $100,000.

This construction of the statute disposes of the case, and renders it unnecessary to consider the other point raised by the defendant in error; namely, that as a bona fide holder of the coupons he is not obliged to go behind the recital in the bonds to which they were attached, which amounted to a declaration by the county authority intrusted with the power to ascertain and determine the fact, that the bonds were issued under the act, and in obedience to an election held in accordance with its provisions. Perhaps a criticism might be made upon this argument, that by comparing the two classes of bonds together it would appear from the several recitals that the county had issued more than $100,000 in amount.

We find no error in the record.

Judgment affirmed.


text: Talk:County of Chicot v. Lewis/Opinion of the Court


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Kilbourn v. Thompson

[Syllabus from pages 168-169 intentionally omitted]

ERROR to the Supreme Court of the District of Columbia.

This is an action for false imprisonment brought by Hallet. Kilbourn against John G. Thompson, Michael C. Kerr, John M. Glover, Jeptha D. New, Burwell P. Lewis, and A. Herr Smith. The declaration charges that the defendants with force and arms took the plaintiff from his house, and without any reasonable or probable cause, and against his will, confined him in the common jail of the District of Columbia for the period of forty-five days. The defendant Kerr died before process was served upon him.

Thompson pleaded first the general issue, and secondly a special plea, wherein he set forth that the plaintiff ought not to have or maintain his action, because that long before and at the said time when the force and injuries complained of by him are alleged to have been inflicted, and during all the time in the said declaration mentioned, a congress of the United States was holden at the city of Washington, there duly authorized and required, and was then and there, and during all the time aforesaid, assembled and sitting; that long before and at the time when said force and injuries are alleged to have occurred, and during all the time mentioned, he, the said Thompson, was, and yet is, sergeant-at-arms of the House of Representatives, and by virtue of his office, and by the tenor and effect of the standing rules and orders ordained and established by said House for the determining of the rules of its proceedings, and by the force and effect of the laws and customs of said House and of said Congress, was then and there duly authorized an required, amongst other things, to execute the command of said House, from time to time, together with all such process issued by authority thereof as shall be directed to him by its speaker; that long before and at the time aforementioned one Michael C. Kerr was the speaker of said House, and by virtue of his office, and by the tenor, force, and effect of said standing rules, orders, laws, and customs, was, among other things, duly authorized and required to subscribe with his proper hand, and to seal with the seal of said House, all writs, warrants, and subpoenas issued by its order; that long before and during said time one George M. Adams was the clerk of said House, authorized and required to attest and subscribe with his proper hand all writs, warrants, and subpoenas issued by order of said House; that it was among other things ordained, established, and practised by and under such standing rules, orders, laws, and customs, that all writs, warrants, subpoenas, and other process issued by order of said House shall be under the hand of the speaker and seal of said House, and attested by said clerk; and so being under said hand and seal, and so attested, shall be executed pursuant to the tenor and effect of the same by the sergeant-at-arms; that said Kerr being such speaker, and said Adams such clerk, and the defendant such sergeant-at-arms, and while said Congress was in session, the House of Representatives on the twenty-fourth day of January, 1876, adopted the following preamble and resolution:--

'Whereas the government of the United States is a creditor of the firm of Jay Cooke & Co., now in bankruptcy by order and decree of the District Court of the United States in and for the Eastern District of Pennsylvania, resulting from the improvident deposits made by the Secretary of the Navy of the United States with the London branch of said house of Jay Cooke & Co. of the public moneys; and whereas a matter known as the real-estate pool was only partially inquired into by the late joint select committee to inquire into the affairs of the District of Columbia, in which Jay Cooke & Co. had a large and valuable interest; and whereas Edwin M. Lewis, trustee of the estate and effects of said firm of Jay Cooke & Co., has recently made a settlement of the interest of the estate of Jay Cooke & Co., with the associates of said firm of Jay Cooke & Co., to the disadvantage and loss, as it is alleged, of the numerous creditors of said estate, including the government of the United States; and whereas the courts are now powerless by reason of said settlement to afford adequate redress to said creditors:

'Resolved, that a special committee of five members of this House, to be selected by the speaker, be appointed to inquire into the matter and history of said real-estate pool and the character of said settlement, with the amount of property involved in which Jay Cooke & Co. were interested, and the amount paid or to be paid in said settlement, with power to send for persons and papers and report to this House.'

That in pursuance and by authority of said resolution said speaker appointed John M. Glover, Jeptha D. New, Burwell B. Lewis, A. Herr Smith, and Henry O. Pratt, who were members of the House of Representatives, to constitute said committee; and the said committee, so appointed, duly organized in the city of Washington, and proceeded to make the inquiry directed; that said committee, by the authority in them vested by said resolution, caused to be issued by the speaker, under his hand and the seal of the House of Representatives, and duly attested by the clerk, a subpoena to said Kilbourn, commanding him to appear before said committee to testify and be examined touching and in regard to the matter to be inquired into by said committee; that said Kilbourn was further commanded and ordered by said subpoena to bring with him certain designated and described records, papers, and maps relating to said inquiry; that subsequently to the issue of the subpoena and before the time when the force and injuries complained of are alleged to have been inflicted, Kilbourn, in obedience to the subpoena, appeared before the committee and was examined by it in relation to and in prosecution of said inquiry, and during his examination said Kilbourn was asked the following question: 'Will you state where each of the five members reside, and will you please state their names?' which question was pertinent and material to the question of inquiry before the committee, but he knowingly and wilfully refused to answer the same; that he, although ordered and commanded by the subpoena to bring with him and produce before the said committee certain records, papers, and maps relating to said inquiry, still when asked by the said committee, 'Mr. Kilbourn, are you now prepared to produce, in obedience to the subpoena duces tecum, the records which you have been required by the committee to produce?' knowingly and wilfully refused to produce them; that subsequently to these refusals, and before the time when the force and injuries complained of are alleged to have been inflicted, to wit, on the fourteenth day of March, 1876, the committee reported to the House, then sitting, the facts above stated, to wit, the resolution creating the committee, the appointment of the members on said committee by the speaker, the issuing of the subpoena duces tecum to said Kilbourn, his appearance before the committee, and his refusal to answer the questions, and his further refusal to produce said records, papers, and maps, and the committee further reported to said House as follows; 'The committee are of opinion and report that it is necessary for the efficient prosecution of the inquiry ordered by the House that the said Hallet Kilbourn should be required to respond to the subpoena duces tecum and answer the questions which he has refused to answer; and that there is no sufficient reason why the witness should not obey said subpoena duces tecum and answer the questions which he has refused to answer; and that his refusal as aforesaid is in contempt of this House,' as by the journal, record, and proceedings, and report in the said House remaining, reference being thereto had, will more fully appear; that on March 14, 1876, it was, in and by the said House, for good and sufficient cause to the same appearing, resolved and ordered that the speaker should forth with issue his warrant, directed to the sergeant-atarms, commanding him to take into custody the body of the said Kilbourn wherever to be found, and the same to have forthwith before the said House, at the bar thereof, to then and there answer why he should not be punished as guilty of contempt of the dignity and authority of the same, and in the mean time to keep the said Kilbourn in his custody to await the further order of the said House. Whereupon such speaker, on the fourteenth day of March, 1876, did duly make and issue his certain warrant under his hand and the seal of the House of Representatives, and duly attested, directed to the defendant, as such sergeant-at-arms, reciting that the House of Representatives had that day ordered the speaker to issue his warrant directed to the sergeant-at-arms, commanding him to take into custody the body of the said Kilbourn wherever to be found, and the same forthwith to have before the said House, at the bar thereof, then and there to answer why he should not be punished for contempt, and in the mean time to be kept in his, the said defendant's, custody to await the further order of the House; therefore it was required in and by said warrant that the defendant, as such sergeant-at-arms as aforesaid, should take into his custody the body of said Kilbourn, and then forthwith to bring him before said House, at the bar thereof, then and there to answer to the charges aforesaid, and to be dealt with by said House according to the Constitution and laws of the United States, and in the mean time to keep said Kilbourn in his custody to await the further order of said House; and the said Kerr, so being such speaker as aforesaid, then and there delivered said warrant to the defendant as sergeant-at-arms to be executed in due form of law; that by virtue and in execution of said warrant the defendant as such sergeant, in order to arrest said Kilbourn and convey him in custody to the bar of the House to answer to the charge aforesaid, and to be dealt with by said House according to the Constitution and laws of the United States, in obedience to the resolution and order aforesaid, and to the tenor and effect of the said warrant, went to said Kilbourn, and then and there gently laid his hands on him to arrest him, and did then and there arrest him by his body and take him into custody, and did then forthwith convey him to the bar of said House, as it was lawful for the defendant to do for the cause aforesaid; and thereupon such proceedings were had in and by said House, that said Kilbourn was then and there forthwith duly heard in his defence, and was duly examined by said House through its speaker, and was asked in said examination the following question, to wit, 'Mr. Killbourn, are you now prepared to answer, upon the demand of the proper committee of the House, where each of these five members reside?' (meaning the members of the pool), which question was pertinent and material to the question under inquiry; but said Kilbourn did knowingly and wilfully refuse to answer the question so asked; that said House, through its speaker, at the same time and place, asked said Kilbourn the further question, to wit, 'Are you (meaning the said Kilbourn) prepared to produce, in obedience to the subpoena duces tecum, the records which you have been required by the committee to produce?' (which said records were pertinent and material to the question under inquiry), but he knowingly and wilfully declined and refused to produce them; that thereupon it was then and there resolved by said House as follows: -

'Resolved, that Hallet Kilbourn having been heard by the House pursuant to the order heretofore made requiring him to show cause why he should no answer questions propounded to him by a committee and respond to the subpoena duces tecum by obeying the same, and having failed to show sufficient cause why he should not answer said questions and obey said subpoena duces tecum, be, and is, therefore considered in contempt of said House because of said failure.

'Resolved, that in purging himself of the contempt for which Hallet Kilbourn is now in custody, the said Kilbourn shall be required to state to the House whether he is now willing to appear before the committee of the House to whom he has hitherto declined to obey a certain subpoena duces tecum, and to answer certain questions and obey said subpoena duces tecum, and answer said questions; and if he answers that he is ready to appear before said committee and obey said subpoena duces tecum, and answer said questions, then said witness shall have the privilege to so appear and obey and answer forthwith, or so soon as said committee can be convened, and that in the mean time the witness remain in custody; and in the event that said witness shall answer that he is not ready to so appear before said committee and obey said subpoena duces tecum, and make answer to said questions as aforesaid, then that said witness be recommitted to the said custody for the continuance of said contempt, and that such custody shall continue until the said witness shall communicate to this House through said committee that he is ready to appear before said committee and make such answer and obey said subpoena duces tecum; and that in executing this order the sergeant-at-arms shall cause the said Kilbourn to be kept in his custody in the common jail of the District of Columbia;'

as by the journal, record, and proceedings of the said resolutions and orders in the said House remaining, reference being thereto had, will more fully appear.

Whereupon said Kerr, so being such speaker, in pursuance of such standing rules and orders as aforesaid, and according to such laws and customs as aforesaid, and in execution of the order contained in said resolutions, did afterwards, to wit, on the fourteenth day of March, 1876, duly make and issue his certain warrant, directed to the defendant, as sergeant-at-arms, in the following words, to wit:-- 'Forty-fourth Congress, First Session, Congress of the United     States.

'IN THE HOUSE OF REPRESENTATIVES, REPRESENTATIVES,

'March 4, 1876.

'TO JOHN G. THOMPSON, Esq.,

'Sergeant-at-Arms of the House of Representatives:

'SIR,-The following resolution has this day been adopted by the House of Representatives:

"Resolved, that in purging himself of the contempt for which Hallet Kilbourn is now in custody, the said Kilbourn shall be required to state to the House whether he is now willing to appear before a committee of this House, to whom he has hitherto declined to obey a certain subpoena duces tecum and answer certain questions, and obey said subpoena duces tecum and make answer to said questions, and if he answers that he is ready to appear before said committee and obey said subpoena duces tecum and answer said questions, then said witness shall have the privilege to so appear and obey and answer forthwith, or so soon as the committee can be convened, and that in the mean time the witness shall remain in custody; and in the event that said witness shall answer that he is not ready to so appear before said committee and obey said subpoena duces tecum and make answer to said questions as aforesaid, then that said witness be recommitted to the said custody for the continuance of such contempt, and that such custody shall continue until the said witness shall communicate to this House, through said committee, that he is ready to appear before said committee and make such answer and obey said subpoena duces tecum; and that in executing this order the sergeant-at-arms shall cause the said Kilbourn to be kept in his custody in the common jail of the District of Columbia.'

'Now, therefore, you are hereby commanded to execute the same accordingly.

'In witness whereof I have hereunto set my hand and caused the seal of the House of Representatives to be affixed the day and year above written.

[SEAL.]

'M. C. KERR, Speaker

'Attest:

'GEORGE M. ADAMS, Clerk.'

That by virtue and in execution of said warrant, according to its tenor and effect, the defendant, as such sergeant-at-arms, in order to arrest the said Kilbourn and convey him in custody to the common jail of the District of Columbia, in obedience to the resolutions and orders aforesaid, went to him and then and there gently laid his hands on him to arrest him, and did then and there arrest him by his body and take him into custody, and forthwith convey him to the common jail of the District of Columbia, and did keep him in custody therein until the eighteenth day of April, 1876, when and on which day, in response to a writ of habeas corpus issued by order of the Chief Justice of the Supreme Court of the District of Columbia, and directed to the defendant as sergeant-at-arms, requiring him to produce the body of Kilbourn before the said Chief Justice at the court-house in the city of Washington, in the District of Columbia; and by direction and order of the said House of Representatives the defendant, as sergeant-at-arms, conveyed the said kilbourn in custody from the common jail of said District to said court-house, and then and there delivered him into the custody of the marshal for the District of Columbia, nor has he had said Kilbourn in his custody since said delivery to said marshal.

Which are the same several supposed trespasses complained of, and no other.

The other defendants pleaded jointly the general issue, and a plea of justification similar to that of the defendant Thompson, except that they alleged themselves to have been members of the House of Representatives, and of a committee of that House, and that what they did was in that capacity, and was warranted by the circumstances.

They also added the following:--

'And these defendants state, that they did not in any manner assist in the last-mentioned arrest and imprisonment of the said Kilbourn, nor were they in any way concerned in the same, nor did they order or direct the same, save and except by their votes in favor of the last above-mentioned resolutions and order commanding the speaker to issue his warrant for said arrest and imprisonment, and (save and except) by their participation as members in the introduction of and assent to said official acts and proceedings of said House, which these defendants did and performed as members of the said House of Representatives in the due discharge of their duties as members of said House, and not otherwise.

'Which are the same several supposed trespasses whereof the said Kilbourn hath above in his said declaration complained against these defendants, and not other or different, with this, that these defendants do aver that the said Kilbourn, the now plaintiff, and the said Kilbourn in the said resolutions, orders, and warrants respectively mentioned, was and is one and the same person, and that at the said several times in this plea mentioned, and during all the time therin mentioned, the said Congress of the United States was assembled, and sitting, to wit, at Washington aforesaid, in the county aforesaid, and these defendants were and are members of the House of Representatives, one of the Houses of said Congress, and as such members, in said participation in the action of the House as avove set forth, voted in favor of said resolutions and orders as above set forth, and saving and excepting said participation in the action of the House as set forth in the body of this plea, they had no concern or connection in any manner or way with said supposed trespasses complained of against them by the plaintiff; and this these defendants are ready to verify.'

The plaintiff demurred to the special pleas of the defendants. The demurrer having been overruled and judgment rendered for the defendants, the plaintiff sued out this writ of error.

The power to punish a citizen for contempt is not in express terms or by implication conferred by the Constitution of the United States upon either House of Congress. Its assumption is in direct contravention of the Fourth and [[United States Bill of Rights|Fifth Amendment]]s. Ex parte Lange, 18 Wall. 163; Ex parte Milligan, 4 id. 2; United States v. Cruikshank, 92 U.S. 542; Loan Association v. Topeka, 20 Wall. 655; Potter's Dwarris, 430; Wilkinson v. Leland, 2 Pet. 627; Calder v. Bull, 3 Dall. 386. It derives no support from the lex parliamenti of England, which was entirely distinct and separate from the jurisdiction of Westminster Hall. King v. Flower, 8 T. R. 314; Brass Crosby's Case, 3 Wils. 188; Regina v. Paty, 2 Ld. Raym. 1105; Burdett v. Abbott, 14 East, 1; Pennock v. Dialogue, 2 Pet. 1; Kirkpatrick v. Gibson, 2 Brock. 388; Floyde's Case, 2 How. St. Tr. 1153; Murray's Case, 1 Wils. 299; Bell's Case, 59 Lords' Jour. 199, 206.

In England the power to punish for contempt is held not to be inherent in legislative assemblies or necessary to the proper discharge of their duties. Kielley v. Carson, 4 Moo. P. C. 63; Fenton v. Hampton, 11 id. 347; Doyle v. Falconer, Law Rep. 1 P. C. 328; Stockdale v. Hansard, 9 Ad. & E. 1.

In the first of these cases, the reasoning in Dunn v. Anderson (6 Wheat. 204), and the assertions of Mr. Justice Story in his Commentaries on the Constitution of the United States, are referred to with disapprobation. Conceding even that the House of Representatives may lawfully investigate the private affairs of a citizen, the proceeding by which the plaintiff was deprived of his liberty was illegal, and the warrant of the speaker void. Congress, by the act of Jan. 24, 1857, c. 19 (11 Stat. 155), as modified by sects. 102 and 104 of the Revised Statutes, prescribed a means for punishing a person who, having by the authority of either House of Congress been summoned as a witness to give testimony or produce papers upon any matter under inquiry before it, or one of its committees, wilfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry. It is the duty of the presiding officer of that House to certify the fact of such refusal to the 'district attorney for the District of Columbia,' whose duty it shall be to bring the matter before the grand jury. No other than the prescribed punishment can be inflicted. Haney v. State, 5 Wis. 529; Scringrour v. State, 1 Chand. (Wis.) 48. This is true in matters of contempt. Bickley v. Commonwealth, 2 J. J. Marsh. (Ky.) 572; Ex parte Edwards, 11 Fla. 174; Dunham v. State, 6 Iowa, 245; People v. Liscomb, 60 N. Y. 559. Double penalties cannot be inflicted. Driskill v. Parrish, 3 McLean, 631; City of Brooklyn v. Toynbee, 31 Barb. (N. Y.) 282; Sipperly v. Railroad Company, 9 How. (N. Y.) Pr. 83; Washburn v. McInroy, 7 Johns. (N. Y.) 134; Tiffany v. Driggs, 13 id. 252.

Because, as a punishment, the law has denounced a loss of two of the rights of citizenship, it does not follow that a third right is to be withheld from the delinquent. Indeed, the reverse result is the reasonable deduction, because it is clear on common principles that no penalty for crime can be inflicted except that which is expressly prescribed. The fact that several penal consequences are annexed by statute to the commission of a breach of law cannot warrant the aggravation by the judicial hand, of the punishment prescribed. The State v. Pritchard, 12 Am. Law Reg. N. S. 518; Ex parte Lange, 18 Wall. 163; Rex v. Wright, 1 Burr. 543; State v. Bishop, 7 Conn. 181; Respublica v. De Longchamps, 1 Dall. 111; Emery's Case, 107 Mass. 172; State v. Egglesht, 41 Iowa, 574.

The House of Representatives has power to arrest and commit persons guilty of a contempt of its authority. Anderson v. Dunn, 6 Wheat. 204; Wickelhausen v. Willett, 10 Abb. (N. Y.) Pr. 164; Yates v. Lansing, 9 Johns. (N. Y.) 395; Hiss v. Bartlett, 3 Gray (Mass.), 468; Johnston v. Commonwealth, 1 Bibb (Ky.), 598; 1 Kent, Com. 236; Story, Const., sects. 845, 849; Rawle, Const. 254; Sergent, Const. Law, 534.

The same doctrine is held by the English courts as applicable to the House of Commons. Burdett v. Abbott, 14 East, 1; Beaumont v. Barrett, 1 Moo. P. C. 59; Howard v. Gossett, 10 Ad. & E. N. S. 359.

The decision of the House as to the fact of contempt is conclusive, and cannot be collaterally impeached. Anderson v. Dunn, supra; Howard v. Gossett, supra; Burdett v. Abbott, supra; Ex parte Kearney, 7 Wheat. 38; Stockdale v. Hansard, 9 Ad. & E. 1; Case of the Sheriff of Middlesex, 11 id. 273.

With the exception of Thompson, the defendants took no part in the proceedings against the plaintiff other than by making their report to the House and there voting, as members, in support of the resolutions. For what they there did they are protected against being 'questioned in any other place.'

Thompson acted under the warrant of the speaker. As an officer of the House, he was charged with the duty of executing its commands, and the law affords him complete protection. Erskine v. Hornbach, 14 Wall. 613; Savacool v. Boughton, 5 Wend. (N. Y.) 170; Eart v. Camp, 16 id. 562; Chegaray v. Jenkins, 5 N. Y. 376; Sprague v. Birchard, 1 Wis. 457.

The authorities cited by the plaintiff in error do not sustain his position that the Revised Statutes having made provision for the punishment of a recusant witness, he cannot be otherwise punished.

The uniform current of authority is the other way. Rex v. Ossulston, 2 Stra. 1107; King v. Pierson, Andr. 310; State v. Yancy, Law Repos. (N. C.) 519; State v. Woodfin, 5 Ired. (N. C.) L. 199; State v. Williams, 2 Spears (S.C..), 26; Ex parte Braunsall, 2 Cowp. 829; Vertner v. Martin, 18 Miss. 103; Foster v. Commonwealth, 8 Watts & S. (Pa.) 77; In re King, 8 Q. B. 129; In re Wright, 1 Exch. 658; Regina v. Martin, 5 Cox, C. C. 356; People v. Stevens, 13 Wend. (N. Y.) 341; Levy v. The State, 6 Ind. 281; Ambrose v. State, id. 351; Phillips v. People, 55 Ill. 429; Moore v. People, 14 How. 13; 2 Bishop, Cr. Law, sect. 264.

Mr. Charles A. Eldredge, Mr. Enoch Totten, and Mr. Noah L. Jeffries, for the plaintiff in error.

Mr. Walter H. Smith and Mr. Frank H. Hurd, contra.

MR. JUSTICE MILLER, after stating the case, delivered the opinion of the court.

title: Kilbourn v. Thompson


text: Talk:Kilbourn v. Thompson

title: Talk:Kilbourn v. Thompson