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Cleveland Insurance Company v. Globe Insurance Company/Opinion of the Court

On the 2d of May, 1872, the Globe Insurance Company, of Cincinnati, filed a petition in the District Court of the United States for the Northern District of Ohio, sitting in bankruptcy, against the Cleveland Insurance Company, asking to have the last-named company adjudged a bankrupt. To this petition the Cleveland Insurance Company in due time appeared and filed its answer, and on the 16th of October, 1874, after hearing in the District Court, a judgment was entered dismissing the petition. On the 16th of December, a bill of exceptions was signed by the district judge and filed in the cause, which contained a statement of all the evidence submitted upon the hearing, with the findings of the District Court thereon both as to the facts and the law. On the same day, the following writ of error, omitting the mere formal parts, was sued out of the Circuit Court:--

'Because in the record and proceedings, and also in the rendition of judgment, in a certain matter which is in the said District Court in bankruptcy before you, wherein the Globe Insurance Company is petitioning creditor against the Cleveland Insurance Company, debtor, a manifest error hath happened, to the great damage of the said Globe Insurance Company, as by its complaint appears; and it being fit that the error, if any there hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, you are hereby commanded, if judgment be therein given, that then, under your seal, distinctly and openly, you send the record and proceedings, with all things concerning the same, to the Circuit Court of the United States for the Sixth Circuit and Northern District of Ohio, together with this writ, so that you have the same at Cleveland, in said district, on the fifth day of January next, in the said Circuit Court to be then and there held, that the record and proceedings aforesaid being inspected, the said Circuit Court may cause further to be done therein to correct that error what of right and according to the law and custom of the United States should be done.'

On the next day, in obedience to the command of this writ, a transcript of the proceedings and judgment of the District Court, including the bill of exceptions, was sent to the Circuit Court, and on the 27th of November, 1875, the Cleveland Insurance Company appeared in the Circuit Court and moved to dismiss the writ, for the following reasons:-- '1st, Because this being a petition in involuntary bankruptcy, where the bankrupt or debtor demanded no jury, but hearing was had to the court, the case is not removable into this court by writ of error, but by petition for review, or other proper process under the first clause of the second section of the Bankrupt Act.

'2d, Because the debt or damages claimed in the petition herein do not amount to more than $500; in fact, no debt or damages are claimed at all.

'3d, Because the writ of error herein was not sued out or taken within ten days after the entry of the decree or decision of the District Court herein, nor were the statutes regulating the granting of writs of error complied with within ten days after the entry of the decree or decision of the District Court.'

This motion was overruled, and on the 15th of June, 1876, the Circuit Court, after hearing, 'as well upon the transcript of the judgment and other proceedings between the parties in the District Court;. . . brought here by writ of error from this court to said District Court, as also upon the matters by the said Globe Insurance Company herein assigned for error,' entered its judgment as follows:--

'Therefore, it is considered that the judgment aforesaid for the errors aforesaid be reversed, annulled, and altogether held for naught, and that the said Globe Insurance Company be restored to all things which it has lost by occasion of said judgment, and recover against the said Cleveland Insurance Company its costs in this behalf expended, taxed at $60.65.

'And thereupon it is ordered that a special mandate be sent down to said District Court to carry this judgment into execution. And it is further ordered that this cause be remanded to the said District Court by writ of procedendo, commanding the judge of said court to proceed according to law to set aside its order dismissing the petition of the said Globe Insurance Company, and thereupon to adjudge the said Cleveland Insurance Company bankrupt, as prayed for in and by said petition of said Globe Insurance Company, and further to proceed in said matter in such manner according to the laws of the land as he shall see proper, the said writ of error to the contrary notwithstanding.' To reverse this judgment the present writ of error has been sued out of this court by the Cleveland Insurance Company, and the Globe Insurance Company now moves to dismiss the suit for want of jurisdiction.

In Sandusky v. National Bank (23 Wall. 289) and Hill v. Thompson (94 U.S. 322) it was decided that the only remedy provided for the correction of errors in a proceeding in the District Court for an adjudication in bankruptcy was such as could be had under the supervisory jurisdiction of the Circuit Court, and as to that jurisdiction it is well settled that the action of the Circuit Court is final and not subject to review in this court. The correctness of these decisions is conceded, but the plaintiff in error claims that as the Circuit Court could only take jurisdiction under its supervisory power, and the case was actually taken to that court by writ of error, this court, under the rule laid down in Stickney v. Wilt (23 Wall. 150), must reverse the judgment of the Circuit Court, and remand the cause with instructions to grant the motion to dismiss the writ.

The section of the Revised Statutes which grants to the Circuit Court its supervisory jurisdiction is as follows:--

'SECT. 4986. The Circuit Court for each district shall have a general superintendence and jurisdiction of all cases and questions arising in the District Court for such district when sitting as a court in bankruptcy;. . . and, except when special provision is otherwise made, may, upon bill, petition, or other proper process, of any party aggrieved, hear and determine the case as in a court of equity; and the powers and jurisdiction hereby granted may be exercised either by the court in term time or in vacation by the circuit justice or the circuit judge of the circuit.'

No particular form of proceeding is required in order to take the case to the Circuit Court for review under this jurisdiction. It is sufficient if some 'proper process' for that purpose is employed; and in Insurance Company v. Comstock (16 Wall. 259), which, like this, was a suit in involuntary bankruptcy against an insurance company, this court held that a writ of error was 'proper process' when the questions to be re-examined arose upon a bill of exceptions taken at a jury trial under sect. 5026, Rev. Stat., to ascertain the alleged fact of bankruptcy. In that case the Circuit Court, upon its own motion, dismissed the writ 'for want of jurisdiction, holding that a writ of error will not lie in such a case to remove the record from the District Court into the Circuit Court for re-examination.' p. 266. In this court it was argued that abundant provision was made for a review of such proceedings under the supervisory power of the Circuit Court, and that a writ of error was improper process; but we held it was clearly wrong to dismiss the writ, and although we could not entertain jurisdiction of the cause, the Circuit Court not having passed upon the merits, we sent it back with the suggestion that the Circuit Court should, under the circumstances, 'grant a rehearing and reinstate the case, and proceed to decide the questions presented on the bill of exceptions.' It is true some stress was laid upon the fact that there had been a trial by jury; but the point was directly made and decided that the Circuit Court could use a writ of error to bring the case up for review under its general superintendence of bankruptcy proceedings. At that time we had not decided that this court could not re-examine such judgments of the Circuit Court, and that question was purposely left open; but Mr. Justice Clifford, in delivering the opinion, said, 'It is clear beyond doubt that the Circuit Court erred in dismissing the writ of error for want of jurisdiction, as it was the right of the excepting party to have the questions, if duly presented by bill of exceptions, re-examined by the Circuit Court.' Since it is now settled that this re-examination must be had under the supervisory jurisdiction of that court, this language is to be interpreted to mean, that when a writ of error is employed as 'process' for the purposes of that jurisdiction, it will not deprive the court of its power to proceed.

Looking to the writ in this case to see under what jurisdiction it was issued, we find that it was in terms sent down to bring up the record and proceedings in a certain matter pending in the District Court sitting in bankruptcy, wherein the Globe Insurance Company was petitioning creditor and the Cleveland Insurance Company was debtor. Thus it is apparent that the proceeding to be reviewed was in bankruptcy, and not a suit at law or in equity. The only jurisdiction, therefore, appropriate to the relief which was asked was the supervisory jurisdiction; and as there is nothing in the form of the writ or otherwise to manifest a contrary intent, it will be presumed that the court actually proceeded under that jurisdiction in all that was done. It follows that the Circuit Court had jurisdiction, and that its judgment is final. The proceeding was one which could only be re-examined under the supervisory jurisdiction, and the process employed to bring the case up was proper under the circumstances. The record which went up carried not only the bill of exceptions, but the entire proceedings below and all the testimony.

There is nothing in the case of Stickney v. Wilt (23 Wall. 150) at all in conflict with this. There, the suit in the District Court was one in equity, and not one in bankruptcy. Such suits can only be taken to the Circuit Court for review by appeal. The case was, however, prosecuted in the Circuit Court, under its supervisory jurisdiction. This was distinctly manifested throughout, and we held that as in that form of proceeding the court had no jurisdiction whatever, we would reverse its decree, and remand the cause with instructions to dismiss the petition for review.

Here, however, the Circuit Court had jurisdiction, and over its judgment we have no control.

The motion to dismiss for want of jurisdiction will be granted; and it is

So ordered.

Mr. JUSTICE CLIFFORD dissenting.


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Cleveland Insurance Company v. Globe Insurance Company/Dissent Clifford

Mr. JUSTICE CLIFFORD dissenting.

Jurisdiction of the district courts as courts of bankruptcy extends to all acts, matters, and things to be done under and in virtue of the bankruptcy, until the final distribution and settlement of the estate of the bankrupt and the close of the proceedings in bankruptcy. Rev. Stat., sect. 4972; 14 Stat. 518.

Circuit courts for each district of their respective circuits have a general superintendence and jurisdiction of all cases and questions arising in the district court for such district, when sitting as a court of bankruptcy, which may be exercised by the court in term time or in vacation by the circuit justice or by the circuit judge of the circuit; and the provision is that such circuit court, circuit justice, or circuit judge may, in term time or vacation, except when special provision is otherwise made upon bill, petition, or other proper process of the party aggrieved, hear and determine the case as in a court of equity. 14 Stat. 518; Morgan v. Thornhill, 11 Wall. 65.

Apart from those two provisions, the third clause of the second section provides that circuit courts shall also have concurrent jurisdiction with the district courts of all cases at law or in equity which may or shall be brought by the assignee in bankruptcy against any person claiming an adverse interest, or by such person against such assignee, touching any property or rights of property of such bankrupt transferable to or vested in such assignee. Smith v. Mason, 14 Wall. 419; Knight v. Cheney, 5 Nat. Bank. Reg. 305.

Petition in bankruptcy against the defendant company was filed in the District Court by the corporation plaintiffs, and they prayed that the defendant company may be declared bankrupt, and that a warrant may be issued to take possession of their estate. Due proceedings followed, and the District Court sitting without a jury decided that the facts set forth in the petition were not proved, and entered a decree dismissing the petition.

Instead of petitioning the Circuit Court for a revision of the ruling and decision of the District Court, under the first clause of the second section of the Bankrupt Act, as the petitioners should have done, they filed a bill of exceptions as in action at law, and the same was signed and sealed by the district judge as in the trial of an information for a seizure on land under the ninth section of the Judiciary Act.

Application was then made by the original petitioners to the Circuit Court for a writ of error to the District Court, which was granted, and the cause was removed into the Circuit Court just as when an action at law tried before a jury is removed from the court of original jurisdiction into an appellate tribunal pursuant to the common-law bill of exceptions, except that the bill of exceptions contains the court's findings of fact as in common-law cases where a jury is waived.

When the cause was entered and the transcript filed in the Circuit Court, the defendant company appeared and moved to dismiss the writ of error, for the following reasons: 1. Because the proceeding being a petition in involuntary bankruptcy, where the bankrupt did not demand a jury and the hearing had been by the District Court, the case is not removable into the Circuit Court by writ of error, but by petition for review or other proper process under the first clause of the second section of the Bankrupt Act. 2. Because the debt or damage claimed in the petition does not amount to $500. 3. Because the writ of error was not sued out within ten days after the entry of the decision in the District Court.

Hearing was had; and the Circuit Court overruled the motion to dismiss the writ of error, and reversed the decree of the District Court with costs, and ordered that a special mandate be sent down to the District Court directing that court to carry the judgment of the Circuit Court into execution and to adjudge the defendant company bankrupt, as prayed in the petition, and to proceed in the matter according to law. Exceptions were filed by the defendant company, and they sued out the present writ of error and removed the cause into this court.

Since the cause has been entered here, the plaintiff company has filed a motion to dismiss the writ of error upon the ground that no appeal lies to this court from a judgment or decree of the Circuit Court exercising the supervisory jurisdiction conferred upon it by the first clause of the second section of the Bankrupt Act. Morgan v. Thornhill, 11 Wall. 65; Smith v. Mason, 14 id. 419.

Both of these cases affirm that rule beyond all doubt, and the same rule is confirmed by every subsequent case upon the same subject; but the difficulty is, that the Circuit Court did not exercise the supervisory jurisdiction which the first section of the Bankrupt Act conferred. Jurisdiction under that clause of the second section of the act is usually exercised in pursuance of a petition for revision, and it must be exercised in some mode of proceeding which will give the defending party the right to answer the allegations of the pleading, as in a bill of complaint, as is plainly to be inferred from the language of the clause, else the hearing would be a mockery, as it would be practically ex parte.

Circuit courts are not courts of bankruptcy, nor have they power to re-examine or review the rulings, decisions, or judgments of the district courts sitting in bankruptcy, except in the cases and in the manner provided by the Bankrupt Act; nor is it pretended that the Bankrupt Act gives the Circuit Court any power whatever in a case like the present, to re-examine the decision or judgment of the District Court by a writ of error.

Suppose the proceedings in the Circuit Court were in every respect erroneous, leaving the losing party without remedy unless the error can be corrected here, still it is insisted that this court is without the power to grant relief. Cases wrongly brought up, it may be admitted, should, as a general rule, be dismissed by the appellate tribunal; but a necessary exception exists to that rule where the effect of a judgment or decree of dismissal will be to give full operation to an irregular and erroneous judgment or decree of the subordinate court in a case where the judgment or decree of such a court is rendered without jurisdiction, or in violation of some legal or constitutional right of the losing party.

Rules of practice are established to promote the ends of justice, and where it appears that a given rule will have the opposite effect from that which it was intended to accomplish, courts of justice have never hesitated to establish an exception to it. Appellate courts, where there is no defect in bringing up a cause, usually affirm or reverse the judgment or decree of the court below; but cases occasionally arise where the proceedings of the subordinate court are so unusual and irregular that the appellate court can neither reverse nor affirm the merits of the case without doing great injustice, and in such cases the appellate court never hesitates to remand the case f


text: Talk:Cleveland Insurance Company v. Globe Insurance Company/Dissent Clifford


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United States v. New Orleans

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

In 1541, the Parliament of England was concerned that the men of the realm were losing their archery skills, whittling away the time playing senseless board and coin games. This concern is clearly set out in the first paragraph of the Act for the Maintenance of Artillery and the Debarring of Unlawful Games, as well as a requirement for all men to practice their bow and arrow skills on a regular basis.

This was a petition presented in April, 1876, by Morris Ranger, the relator, for a writ of mandamus to compel the city of New Orleans to pay three judgments. The petition alleges that he had recovered them in the Circuit Court of the United States for an amount exceeding in the aggregate $59,000 against the city, on its bonds and coupons issued under the provisions of acts of the legislature of Louisiana, passed on the 15th of March, 1854, and designated as Nos. 108 and 109; that executions had been issued upon the judgments and returned unsatisfied; and that there was no property belonging to the city subject to seizure thereon.

It also alleges that in June, 1870, the city had sold eighty thousand shares of stock of the New Orleans, Jackson, and Great Northern Railroad Company, which it held, for the sum of $320,000, and that by the act No. 109, of 1854, these shares were for ever pledged for the payment of the bonds issued under its provisions; that the city should therefore be compelled to pay out of their proceeds so much of the judgments as appears on the face of the records to have been rendered upon the bonds; or, in case their payment cannot be enforced in this way, that it should be compelled to levy and collect a tax for that purpose, and also a tax to pay so much of the judgments as was rendered upon bonds and coupons issued under the act No. 108, of 1854; but that the mayor and administrators, who represent and exercise the powers of the city, refuse to pay the judgments out of any funds in their possession or under their control, or to levy a tax for their payment. The relator therefore prays the court to order them to show cause why a writ of mandamus should not be issued compelling them to apply the proceeds and to levy a tax as mentioned.

The order to show cause was accordingly issued; and the city authorities appeared and filed an answer to the petition, in which they admitted the recovery of a judgment by the relator,-speaking of the three judgments as one,-the issue of executions thereon, and their return unsatisfied, the sale of the eighty thousand shares of the capital stock of the New Orleans, Jackson, and Great Northern Railroad Company for $320,000, and the receipt of the money by their predecessors; and set up as a defence to the prayer of the petition that the judgment was recovered upon certain bonds issued by the city to that company under the act of March 15, 1854, No. 109, making no mention of the act of No. 108; that no tax for the payment of the principal of the bonds is directed to be levied by that act or any other act of the legislature; that, as respects the interest on the bonds, provision is made for its payment out of the back taxes due to the city, and inserted in its budget for 1876; and that the proceeds arising from the sale of the stock of the railroad company are not in the treasury of the city or under their control, having been used and expended by their predecessors. They therefore prayed that the petition be dismissed.

The relator demurred to this answer. The court overruled the demurrer and refused the writ; and from its judgment the case is brought to this court.

The city of New Orleans was incorporated under the name of 'the mayor, aldermen, and inhabitants of the city of New Orleans,' by an act of the legislature, approved Feb. 17, 1805, the sixth section of which provides:--

'The said mayor and city council (aldermen) shall have power to raise by tax, in such a manner as to them may seem proper, upon the real and personal estate within said city, such sum or sums of money as may be necessary to supply any deficiency for the lighting, cleansing, paving, and watering the streets of said city; for supporting the city watch, the levee of the river, the prisons, workhouses, and other public buildings, and for such other purposes as the police and good government of the said city may require.'

An act approved March 8, 1836, amending that act, constituted in effect a new charter, and divided the city 'into three separate sections, each with distinct municipal powers.'

The fourth section provided:--

'Each of said municipalities shall possess separate corporate rights, and are hereby declared to be distinct corporations, and shall possess generally such rights, powers, and capacities as are usually incident to municipal corporations,. . . and, in general, shall possess and exercise within their respective limits all such powers, rights, and privileges as are now possessed by the corporation of New Orleans.'

The three municipalities thus created were, with the city of Lafayette, consolidated into one, by acts approved Feb. 23, 1852. Acts La., 1852, Nos. 71, 72, pp. 42, 55.

Sect. 1 of the former act provides:--

'All that portion of the parish of New Orleans on the left bank of the river Mississippi shall be the city of New Orleans, and all the free white inhabitants thereof shall be a body corporate by the name of the 'city of New Orleans,' and by that name they and their successors shall be known in law, and shall be capable of suing and being sued,' &c.

Sect. 22 provides:--

'That upon the first organization of the common council of the city of New Orleans, as hereinbefore provided, the city of New Orleans, as established by this act, shall be vested with all the powers, rights, privileges, and immunities incident to a municipal corporation, and necessary for the proper government of the same; and upon the said organization of said council all the powers, rights, privileges, and immunities possessed and enjoyed by the first, second, and third municipalities of New Orleans, and by the general council of the city of New Orleans, shall cease and terminate so far as regards the said municipalities and general council, and be vested in the city of New Orleans, as established by this act.'

Sect. 37 provides that the old city debt (prior to 1836) and the debts of the separate municipalities shall be assumed by the city of New Orleans, and that bonds shall be issued therefor, to be called the 'consolidated debt;' and that 'from and after the passage of this act no obligation or evidence of debt of any description whatever, except those herein authorized, shall be issued by the city of New Orleans or under its authority; nor shall any loan be contracted, unless the same be authorized by a vote of the majority of the qualified voters of said city, which shall be taken in the manner prescribed by the city council, after ten days' proclamation by the major, in the newspaper chosen by the city council; and no ordinance creating a debt or loan shall be valid unless such ordinance shall provide ways and means for the punctual payment of running interest during the whole time for which said debt or loan shall be contracted, and for the full and punctual discharge at maturity of the capital borrowed or debt incurred; and such ordinance shall not be repealed until the principal and interest of the capital borrowed or debt incurred are fully paid and discharged.'

In 1854, the legislature passed two acts by which the city was authorized to subscribe to the stock of the New Orleans, Opelousas, and Great Western Railroad Company, and the New Orleans, Jackson, and Great Northern Railroad Company, and to make the subscription immediately payable in bonds of the city, for $1,000 each, having twenty years to run, &c., and requiring the repeal of ordinances authorizing former subscriptions.

The terms of the two last-named acts, mutatis mutandis, are identical. Acts La., 1854, Nos. 108, 109, pp. 69, 72.

The act authorizing the subscription to the stock of the New Orleans, Jackson, and Great Northern Railroad Company provided, among other things, as follows:--

'SECT. 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana, in General Assembly convened, that it shall be lawful for the common council of the city of New Orleans to subscribe to the stock of the New Orleans, Jackson, and Great Northern Railroad Company, in a sum not exceeding $2,000,000.

'SECT. 2. Be it further enacted, &c., that any ordinance authorizing such subscription shall contain the following provisions, to wit:--

'1st, A statement of the number and amount of shares for which the city subscribes.

'2d, That the subscription of the city shall be made by the mayor, and shall be payable in bonds of said city for $1,000 each, having twenty years to run, bearing interest at the rate of six per cent per annum, with interest-coupons attached, payable semiannually in New Orleans or New York, as the company entitled to receive them may prefer, transferable by the indorsement of the president and secretary of said company, and convertible into the stock of said company at the option of the holders, at any time within ten years after their date.

'3d, That a special tax on real estate and slaves shall be levied in January of each year, sufficient to pay the annual interest on said bonds, specifying the rates of said tax, which shall be collected at the same time and in the same manner as the consolidated loan tax of said city; and all ordinances, resolutions, or other acts passed by said council, after the first day of January in each year, except an ordinance to impose said consolidated loan tax, and an ordinance to impose a tax for the payment of interest on bonds which may be hereafter issued for subscription to the New Orleans, Opelousas, and Great Western Railroad Company, shall be null and void, unless a resolution imposing a special tax for the payment of the interest on said bonds issued to the railroad company herein named shall have been previously passed: Provided, that no levy of a tax for the payment of interest on said bonds shall be made after the payment of dividends of six per cent per annum on the stock of said company held by the city, as hereinafter provided, which dividends shall be applied by the city to the payment of the interest. And provided, further, that whenever the dividends on said railroad stock of the city shall amount to more than six per cent per annum, the excess, after the payment of interest, shall be applied to the purchase of the city bonds issued under the provisions of this act; it being understood that when dividends for less than six per cent per annum are received on the railroad stock of the city, a tax for interest shall be levied for the difference only between the amount of said annual dividends and the amount of the annual interest.

* *  *  *  *

'SECT. 3. Be it further enacted, &c., that the city bonds issued to said railroad company shall be received by it at par value, and said railroad company shall issue to the city of New Orleans therefor certificates of stock for an amount equal to the amount of the bonds received, and the stock of the said company thus issued to the city of New Orleans shall remain for ever pledged for the redemption of said bonds: Provided, however, that any holder of said bonds who may desire to convert them into the capital stock of the company to which they may have been issued shall, on application to the treasurer of said city, and on surrender to him of the bonds to be converted, receive from said treasurer a transfer of the stock represented by the bonds surrendered, and said bonds shall be immediately cancelled.'

The other sections are not material for the disposition of the present case.

The following act of the legislature was approved March 6, 1867:--

'SECT. 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana, in general assembly convened, that the mayor and administrators of the city of New Orleans, or such other officers, aldermen, or administrators as may hereafter be ordained and established, be and they are hereby authorized and directed to exchange all recognized and valid bonds of the city of New Orleans and the late cities of Jefferson and Carrollton for bonds known as the premium bonds of the city of New Orleans, in accordance with the plan adopted by the city council, and approved by the mayor on the 25th of May and 31st of August, 1875. The said premium bonds shall be dated the 1st of September, 1875, and bear interest at the rate of five per cent per annum, from the 15th of July, 1875; they shall be signed by the mayor, the administrator of finance, and the administrator of public accounts, as commissioners of the consolidated debt, and countersigned, when issued, by such parties as the council have designated heretofore, or may hereafter designate, with the authorization of the supervising committee hereafter named.

'SECT. 2. Be it further enacted, &c., that all outstanding bonds bearing interest shall have the interest computed up to the first day of July, 1875, and thereafter the said bonds, when exchanged, shall bear interest as provided in the ordinance above ratified, which provides for the premium bonds.

'SECT. 3. Be it further enacted, &c., that the allotment of series and premiums which have been made by virtue of ordinance No. 3233, administration series, adopted Aug. 31, 1875, by the city council, are hereby ratified and approved, and that further allotments shall take place on the fifteenth day of April and the fifteenth day of October of each year, and of premiums on the fifteenth day of January and the fifteenth day of July of each year, or on such other date as the council may prescribe: Provided, that payments be not made later than the fifteenth day of March and the fifteenth day of September of each year.

'SECT. 4. Unimportant.

'SECT. 5. Unimportant.

'SECT. 6. Be it further enacted, &c., that it shall be the duty of the city council, in the month of December of each year, or in the annual budget annually adopted for the ensuing year, to include an amount sufficient to meet and pay the principal and interest of the premium bonds, together with premium included, in the several allotments of series and premiums fixed for such year by the aforesaid ordinances and this act. It shall be the duty of the council annually to levy an equal and uniform tax on all the assessed property within the corporate limits of the city, at a rate sufficient to provide the amount included in the budget as aforesaid, and said tax so levied shall constitute a special fund to be used for no other purpose than the payment of said bonds and interest on the said premiums comprised in said allotments, and the funds so raised shall be placed to the credit of an account to be called the premiumbond account, and no money from said fund shall be paid out except on the joint authority of the commissioners of the consolidated debt. The said tax so to be raised shall be denominated the premium-bond tax, and shall be separately mentioned in the tax rolls and receipts: Provided, that the taxable power of the corporation of the city of New Orleans for all purposes, including general administration, school, police, lighting, salary of officers, court expenses, and every other purpose of government, including the sum to be raised to pay the premium bonds, as above stated, shall never, until the full complete and final payment of the said premium bonds, exceed the rate of one and one-half per cent on the dollar of all the assessed value of property subject to taxation within the limits of the said city of New Orleans. The above limitation of the taxable power of the corporation is hereby declared to be a contract, not only with the holder of the said premium bonds, but also with all residents and tax-payers of the said city, so as to authorize any holder of said premium bonds, resident or tax-payer, to legally object to any rate of taxation in excess of the rate herein limited. It being also a part of the consideration of this contract that the city of New Orleans shall be incompetent to incur any debt or obligation, as now provided by the Constitution of this State, until the final payment and extinction of the premium bonds aforesaid.

'SECT. 7. Be it further enacted, &c., that no tax for the payment of bonds or interest on bonds other than that authorized by the preceding sections, shall be levied either for the year 1876, or any year or years thereafter by the city of New Orleans, and that all existing laws requiring or authorizing the city council to levy any tax whatsoever for bonds or interest on bonds, other than said premium bonds, be and the same are hereby repealed; and it shall be hereafter incompetent for any court to mandamus the officers of said city to levy and collect any interest tax other than that provided in this act, or in case of such mandamus, by a receiver or otherwise, to direct the levy and collection on any such tax.

'SECT. 8. Unimportant.

'SECT. 9. Unimportant.

'SECT. 10. Unimportant.

'SECT. 11. Be it further enacted, &c., that in addition to the obligation of the said city to provide annually the sum required for the execution of the premium-bond plan, at least a tax of one-half of one per cent annually, to be used in the execution of the provisions of this act; and if the product of said half of one per cent be more than adequate for the payment of the drawn premium bonds, and the premiums as above provided, then the surplus to be used in retiring the outstanding bonds; Provided, said half of one per cent taxation be considered as part of the one and a half per cent taxation to which the taxing power of the city is limited in this act; the intention of this section being to limit the city taxation to one and one-half per cent annually until the entire extinction of the bonded debt; to authorize the council to levy annually out of the one and one-half per cent taxation a sum adequate to the annual execution of said premium-bond plan, and after the year 1881 to levy at least one-half of one per cent for the carrying out of said plan, and to distribute the surplus realized therefrom, if any, in retiring the outstanding bonded debt.

'SECT. 12. Unimportant.

'SECT. 13. Unimportant.

'SECT. 14. Unimportant.

'SECT. 15. Be it further enacted, &c., that this act in all its provisions and limitations be held a contract between the city of New Orleans, the holders of said premium-bonds, and the taxpayers or residents of said city, so as to authorize any of the contracting parties to resist any and all contracting of debt by the said city, or increase of taxation above the rate limited in the previous provisions of this act.

'SECT. 16. Be it further enacted, &c., that this act take effect from and after its passage; that all laws or parts of laws inconsistent herewith be and the same are hereby repealed, and that all ordinances of the city of New Orleans conflicting with this act be and are hereby repealed.'

Mr. D. C. Labatt for the plaintiff in error.

1. Whenever a municipality is expressly authorized to levy a tax for the payment of its obligations, it will, by mandamus, be compelled to do so to satisfy a judgment recovered upon them, where an execution has been returned unsatisfied. The Board of Commissioners of Knox County v. Aspinwall et al., 24 How. 376; Von Hoffman v. City of Quincy, 4 Wall. 535; Benbow v. Iowa City, 7 id. 313; Supervisors v. Rogers, id. 175; The Supervisors v. Durant, 9 id. 415; County of Cass v. Johnston, 95 U.S. 360.

2. If the statute authorizing or creating debts does not provide the means of paying them, the power to tax in order to raise the means will be held to be ipso facto conferred, unless there is an express limitation to that power which forbids such inference. Loan Association v. Topeka, 20 Wall. 655; Lowell v. Boston, 111 Mass. 460; Commonwealth v. Commissioners, 37 Pa. St. 277; Same v. Same, 40 id. 348; Same v. Same, 43 id. 403; Coy v. City Council of Lyons City, 17 Iowa, 1; Madison County Court v. Alexander, 1 Walker (Miss.), 523; Gibbons v. Mobile & Great Northern Railroad Co., 36 Ala. 439; Ex parte Selma & Gulf Railroad Co., 45 id. 730; City of Chicago v. Hasley, 25 Ill. 595; Hasbrouck v. Milwaukee, 25 Wis. 122; Ex parte Parsons, 1 Hughes, 282.

3. The provision in the act of 1854, that the stock issued to the city should remain 'for ever pledged for the redemption of said bonds,' does not require the holder of them to first resort to said stock for payment before he can demand it from other funds. On the contrary, only a statutory pledge for the payment of the bonds by way of collateral security was created.

4. It is not alleged in the answer that the statutory limit of taxation has been reached, nor does it appear that any limit existed when these bonds were issued. No limit subsequently imposed can curtail the power or affect the duty of the city in respect to them. Von Hoffman v. City of Quincy, supra; Butz v. Muscatine, 8 Wall. 575; Milner's Adm'r v. Pensacola, 2 Wood, 641, and cases there cited; Commissioners v. Rather, 48 Ala. 446, and cases there cited.

Mr. B. F. Jonas and Mr. Henry C. Miller for the defendants in error.

1. The taxing power is vested in the Legislative Department of the government. A mandamus is only effective to compel the levy of a tax, when that department has directed or authorized such tax to be imposed. If no tax has been provided for the payment of the bonds on which the judgments in this case were recovered, granting the mandamus would be an assumption of legislative power, and the application for the writ must therefore necessarily fail. Rigg v. Johnson County, 6 Wall. 166; Supervisors v. United States, 18 id. 71; Heine v. The Levee Commissioners, 19 id. 655; Rees v. City of Watertown, id. 107.

The act under which the bonds were issued provided only for a tax to pay the annual interest on them until the dividends should amount to that interest. An absolute prohibition of any other tax was, therefore, necessarily implied. It was believed that the stock itself, 'to remain for ever pledged for the redemption of the bonds,' would prove a full equivalent for them, and that before their maturity the dividends on it would not only pay the interest, but produce a surplus. Hence the provision that the excess after paying the interest should be applied to purchase them. A tax for the principal would be repugnant to the manifest intent of the legislature, and it is actually prohibited by evident implication.

2. The relator maintains the doctrine that the power to tax is implied from the power to contract, and that whenever a judgment against a municipal corporation is unpaid, the exercise of the taxing power can be coerced by suit. It is difficult to reconcile that doctrine with the principle, heretofore acknowledged to be axiomatic, that the objects of taxation, the mode in which taxes are to be levied and collected, and the purposes to which they are applied, are subjects under the exclusive control of the Legislative Department. The latter must determine how the public debts are to be provided for; and while taxation is the ordinary means of raising the public revenues, they are often drawn from other sources. But this principle is completely ignored, if the mere power of such a corporation to contract confers on its creditor the right to compel the levy of a tax, when his debt exists in the form of unsatisfied judgments. For if without a law expressly authorizing such levy to pay them, the exercise of the taxing power can be enforced by judicial process, that power will, to a certain extent, be transferred from the law-making branch of the government and be vested in the courts of the country.

3. The act of March 6, 1876, prohibits the city from levying any tax for bonds, or the interest on them, except that thereby authorized, and excludes the relator's bonds. This legislation gave him no right to the tax he asks. The principal of his bonds has been provided for in the act of 1854. The power of the legislature to modify, change, and repeal taxation is unrestricted, provided the taxes in existence when the debt is created are preserved to the creditor. Von Hoffman v. The City of Quincy, 4 Wall. 535.

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

title: United States v. New Orleans


text: Talk:United States v. New Orleans

title: Talk:United States v. New Orleans


text:
United States v. New Orleans/Opinion of the Court

The judge of the Circuit Court accompanied the judgment with an opinion giving the reasons of his decision, which were substantially those stated in the answer of the city: that the statute authorizing the issue of the bonds, upon which the judgments were recovered, made no provision for levying a tax to pay the principal, but intended that it should be paid out of the stock of the railroad company and its revenues; and that the proceeds from the sale of the stock had been already expended by the predecessors of the present city authorities. The court, adopting the view of the city authorities as to the construction of the statute, and the supposed intention of the legislature, proceeded on the principle that the power of taxation belongs exclusively to the legislative branch of the government, and that the judiciary cannot direct a tax to be levied when none is authorized by the legislature; and that the issuing of a mandamus to apply the proceeds received from the sale of the stock would be a futile proceeding, they having been previously used for other purposes. A writ, said the court, could not issue commanding the performance of an admitted impossibility.

The position that the power of taxation belongs exclusively to the legislative branch of the government, no one will controvert. Under our system it is lodged nowhere else. But it is a power that may be delegated by the legislature to municipal corporations, which are merely instrumentalities of the State for the better administration of the government in matters of local concern. When such a corporation is created, the power of taxation is vested in it as an essential attribute, for all the purposes of its existence, unless its exercise be in express terms prohibited. For the accomplishment of those purposes, its authorities, however limited the corporation, must have the power to raise money and control its expenditure. In a city, even of small extent, they have to provide for the preservation of peace, good order, and health, and the execution of such measures as conduce to the general good of its citizens; such as the opening and repairing of streets, the construction of sidewalks, sewers, and drains, the introduction of water, and the establishment of a fire and police department. In a city like New Orleans, situated on a navigable stream, or on a harbor of a lake or sea, their powers are usually enlarged, so as to embrace the building of wharves and docks or levees for the benefit of commerce, and they may extend also to the construction of roads leading to it, or the contributing of aid towards their construction. The number and variety of works which may be authorized, having a general regard to the welfare of the city or of its people, are mere matters of legislative discretion. All of them require for their execution considerable expenditures of money. Their authorization without providing the means for such expenditures would be an idle and futile proceeding. Their authorization, therefore, implies and carries with it the power to adopt the ordinary means employed by such bodies to raise funds for their execution, unless such funds are otherwise provided. And the ordinary means in such cases is taxation. A municipality without the power of taxation would be a body without life, incapable of acting, and serving no useful purpose.

For the same reason, when authority to borrow money or incur an obligation in order to execute a public work is conferred upon a municipal corporation, the power to levy a tax for its payment or the discharge of the obligation accompanies it; and this, too, without any special mention that such power is granted. This arises from the fact that such corporations seldom possess-so seldom, indeed, as to be exceptional-any means to discharge their pecuniary obligations except by taxation. 'It is therefore to be inferred,' as observed by this court in Loan Association v. Topeka (20 Wall. 660), 'that when the legislature of a State authorizes a county or city to contract a debt by bond, it intends to authorize it to levy such taxes as are necessary to pay the debt, unless there is in the act itself, or in some general statute, a limitation upon the power of taxation which repels such an inference.'

The doctrine here stated is asserted by the Supreme Court of Pennsylvania in Commonwealth v. Commissioners of Allegheny County, 37 Pa. 277. That county was authorized by an act of the legislature to subscribe to the capital stock of a railroad company, and to issue its bonds in payment thereof. The interest on them being unpaid, a writ of mandamus was applied for to compel the commissioners of the county to make provision to pay it. The return of the officers set up, among other objections to the writ, that the act authorizing the subscription and issue of the bonds provided no means of payment, either of the principal or interest. To this defence the court said: 'The act of 1843 authorized subscriptions by certain counties to be made as 'fully as any individual could do,' without prescribing more precisely the terms. But by the fifth section of the act of April 18, 1843, counties subscribing are authorized to borrow money to pay for such subscriptions. We have decided that bonds or certificates of loan issued by a municipal corporation is an ordinary and appropriate mode of borrowing money, and the act of 1853 expressly authorized the issue of such securities. The subscriptions were accordingly made, and the bonds issued. Thus was lawful debt incurred by the county; and as no other than the ordinary mode of extinguishing it, or of paying the interest thereon, was provided, it follows, of course, that the ordinary mode of raising the means must be resorted to; namely, to provide for it in the annual assessment of taxes for county purposes.' Again, in the same case, the court said: 'In the next place, it is averred that there is no authority to levy a tax for the payment of the interest by the county. We have already treated of this, and said that the authority to create the debt implies an obligation to pay it; and when no special mode of doing so is provided, it is also implied that it is to be done in the ordinary way,-by the levy and collection of taxes.' In numerous cases, similar language is found in opinions of the State courts, not required, perhaps, to decide the point in judgment therein, but showing a recognition of the doctrine stated. Thus, in Lowell v. Boston (111 Mass. 460), the Supreme Court of Massachusetts, in speaking of bonds which the legislature had authorized the city of Boston to issue, in order to raise funds to be loaned to individuals to aid them in rebuilding that portion of the city which was burned in the great fire of November, 1872, said: 'The issue of bonds by the city, whatever provision may be made for their redemption, involves the possible and not improbable consequence of a necessity to provide for their payment by the city. The right to incur the obligation implies the right to raise money by taxation for payment of the bonds; or, what is equivalent, the right to levy a tax for the purposes for which the fund is to be raised by means of the bonds so authorized.' To the same purport is the language of the Supreme Court of Wisconsin, in Hasbrouck v. Milwaukee, 25 Wis. 122. And in the recent case of Parsons v. The City of Charleston, in the United States Circuit Court, the Chief Justice gave emphatic affirmation to the doctrine. Hughes, 282. Indeed, it is always to be assumed, in the absence of clear restrictive provisions, that when the legislature grants to a city the power to create a debt, it intends that the city shall pay it, and that the payment shall not be left to its caprice or pleasure. When, therefore, a power to contract a debt is conferred, it must be held that a corresponding power of providing for its payment is also conferred. The latter is implied in the grant of the former, and such implication cannot be overcome except by express words excluding it.

In the present case, the indebtedness of the city of New Orleans is conclusively established by the judgments recovered. The validity of the bonds upon which they were rendered is not now open to question. Nor is the payment of the judgments restricted to any species of property or revenues, or subject to any conditions. The indebtedness is absolute. If there were any question originally as to a limitation of the means by which the bonds were to be paid, it is cut off from consideration now by the judgments. If a limitation existed, it should have been insisted upon when the suits on the bonds were pending, and continued in the judgments. The fact that none is thus continued is conclusive on this application that none existed.

If the question were an open one, our conclusion would be the same. The act of 1854 provided that the railroad company should issue to the city certificates of stock for an amount equal to the amount of bonds received; and that the stock should remain 'for ever pledged for the redemption of said bonds.' It is plain that this language was intended only to create a statutory pledge by way of collateral security for the payment of the bonds. It does not import that the holders of the bonds were to be thereby precluded from looking to the city, or that they were obliged to have recourse, in the first instance, to the pledge. The city, by the terms of the bonds, was primarily liable; and nothing in the language of the act in any respect affects this primary liability. The bondholder is not compelled to look to the security, but may proceed directly against the city without regard to it. Besides, as was justly observed by counsel, if we could seek the intention of the legislature from other considerations than the words of the statute, it would be still plainer that no such construction could be given to its language. The object of issuing the bonds for the stock was to aid the company in obtaining funds to build its road. If the stock had been available, the bonds would not have been needed; the stock would have been sold. But it was not available; and it is difficult to believe that the bonds would have been any more so, if their payment had been limited to the revenues and proceeds of the stock. The proposal of such a scheme for raising money would not have indicated much wisdom on the part of the legislature; to have assented to it would have indicated less on the part of the bondholders. And even if the bondholders had been required to look for payment of the bonds only to the revenues and proceeds of the stock, it comes with bad grace from the city, not to say evinces an insensibility to its obligations, to allege exemption from liability after its authorities have sold the stock and diverted the proceeds to other uses.

This construction is not affected, as contended by counsel, by the statutes of 1852 and 1853, restraining cities and towns from creating any indebtedness without providing at the same time for the payment of the principal and interest. Those statutes were not limitations on the power of the legislature to authorize the creation of debts by cities upon other conditions. It does not follow that because it was deemed expedient, as a general rule, to prohibit cities and towns from incurring debts on their own motion, without making provision for their payment, that the legislature might not authorize the incurring of a particular obligation without such provision. And it will be found, upon examination, that the act of 1854 prescribed the details of the ordinance which should be passed by the city in the execution of the authority conferred, and that the ordinance passed conformed to them. Butz v. Muscatine, 8 Wall. 575; Amey v. Allegheny, 24 How. 364; Commonwealth v. Pittsburg, 34 Pa. St. 496; Commonwealth v. Commissioners, 40 id. 348; Commonwealth v. Perkins, 43 id. 400; Fosdick v. Perrysburg, 4 Ohio St. 472.

There is nothing, therefore, in the positions of counsel to impair the validity of the bonds upon which the judgments were recovered, if we were at liberty to consider them on this application. But, as already said, the judgments are conclusive upon this point. Owing the debt, the city has the power to levy a tax for its payment. By its charter, in force when the bonds were issued, it was invested, in express terms, 'with all the powers, rights, privileges, and immunities incident to a municipal corporation and necessary for the proper government of the same.'

As already said, the power of taxation is a power incident to such a corporation, and may be exercised for all the purposes authorized by its charter or subsequent legislation. Whatever the legislature empowers the corporation to do is presumably for its benefit, and may, in 'the proper government of the same,' be done. Having the power to levy a tax for the payment of the judgments of the relator, it was the duty of the city, through its authorities, to exercise the power. The payment was not a matter resting in its pleasure, but a duty which it owed to the creditor. Having neglected this duty, the case was one in which a mandamus should have been issued to enforce its performance. Knox County v. Aspinwall, 24 How. 376; Von Hoffman v. City of Quincy, 4 Wall. 535; Benbow v. Iowa City, 7 id. 313; Supervisors v. Rogers, id. 175; The Supervisors v. Durant, 9 id. 415; County of Cass v. Johnston, 95 U.S. 360.

The judgment of the court below must, therefore, be reversed, and the cause remanded with directions to issue the writ as prayed in the petition of the relator; and it is

So ordered.

NOTE.-Three other cases against the city, on the relation respectively of Charles Parsons, of William S. Peterkin, and of James Wadick, were argued at the same time as the preceding case. The city was represented by the same counsel. Mr. D. H. Chamberlain and Mr. William B. Hornblower appearing for Parsons, and Mr. Thomas J. Semmes and Mr. Robert Mott for the relator in each of the other cases.

MR. JUSTICE FIELD, in delivering the opinion of the court, remarked, that each of the cases was, in all essential particulars, similar to that of United States v. New Orleans; and, upon the authority of the decision therein, the judgment below must be reversed, and each cause remanded with directions to issue a writ of mandamus to levy and collect a tax, as prayed by the relator, to pay the judgment described in his petition, with lawful interest thereon; and it is

So ordered.


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


text:
Railroad Company v. Grant

MOTION to dismiss a writ of error to the Supreme Court of the District of Columbia.

This is a writ of error sued out by the Baltimore and Potomac Railroad Company, the defendant below, on the 6th of December, 1875, to reverse a judgment rendered against it for $2,250 by the Supreme Court of the District of Columbia. At that time sects. 846 and 847 of the Revised Statutes relating to the District of Columbia, defining the jurisdiction of this court in that class of cases, were in force.

They are as follows:--

'SECT. 846. Any final judgment, order, or decree of the Supreme Court of the District may be re-examined and reversed or affirmed in the Supreme Court of the United States, upon writ of error or appeal, in the same cases and in like manner as provided by law in reference to the final judgments, orders, and decrees of the circuit courts of the United States.

'SECT. 847. No cause shall be removed from the Supreme Court of the District to the Supreme Court of the United States, by appeal or writ of error, unless the matter in dispute in such cause shall be of the value of $1,000 or upward, exclusive of costs, except in the cases provided for in the following section.'

On the 25th of February, 1879, Congress passed 'An Act to create an additional associate justice of the Supreme Court of the District of Columbia, and for the better administration of justice in said District,' sects. 4 and 5 of which are as follows:--

'SECT. 4. The final judgment or decree of the Supreme Court of the District of Columbia in any case where the matter in dispute, exclusive of costs, exceeds the value of $2,500, may be re-examined and reversed or affirmed in the Supreme Court of the United States, upon writ of error or appeal, in the same manner and under the same regulations as are provided in cases of writs of error on judgments or appeals from decrees rendered in a circuit court.

'SECT. 5. All acts or parts of acts inconsistent with the provisions of this act are hereby repealed.'

The defendant in error now moves to dismiss the writ of error, on the ground that the jurisdiction of this court has been taken away.

Mr. Richard T. Merrick and Mr. William F. Mattingly, for the defendant in error, in support of the motion, cited McNulty v. Batty, 10 How. 72; Norris v. Crocker, 13 id. 429; Insurance Company v. Ritchie, 5 Wall. 541; Ex parte McArdle, 7 id. 506; Steward v. Kahn, 11 id. 502.

Mr. Enoch Totten, contra.

Insurance Company v. Ritchie (5 Wall. 541) and Ex parte McArdle (7 id. 506), cited by the defendant in error, are not applicable to this case, because the repealing statute in the former case expressly prohibited and took away the entire appellate jurisdiction, and in the latter case was purely a partisan enactment, providing that this court should not possess or exercise any appellate jurisdiction in cases of the character mentioned, where appeals 'have been or may hereafter be taken.'

Norris v. Crocker (13 How. 429) was an action to recover a severe penalty, imposed by statute for the benefit of the owners of fugitive slaves; and the statute having been repealed, the penalty, of course, fell with it.

The sole question seems to be whether the legislature intended by the act of Feb. 25, 1879, to vacate all appeals and writs of error then pending in causes involving less than the value prescribed, or only to establish a new regulation applicable to future cases. All that were pending at the passage of that act were and are here by virtue of the former one. When the amount involved is $2,500, or upwards, there can be no doubt about the jurisdiction. Does the last act repeal the former absolutely, so as to forbid this court to exercise the jurisdiction which had previously vested? If it does, that result is brought about by implication only. Repeals by implication are not favored, and these two acts not being necessarily inconsistent, one may be applied to pending and the other to future appeals.

One statute is not to be construed as a repeal of another, if it be possible to reconcile them. McCool v. Smith, 1 Black, 459; Harford v. United States, 8 Cranch, 109; Sedgwick, Stat. and Const. Law, 127; Bowen v. Lease, 5 Hill (N. Y.), 221; Wood v. United States, 16 Pet. 342.

The last act is silent as to pending causes. It seems fair to conclude that if Congress had intended to interfere with them, the intention would have been declared in apt and unmistakable terms.

All statutes are to be construed as operating prospectively, unless the language is express to the contrary, or there is a necessary implication to that effect. United States v. Heth, 3 Cranch, 399; Harvey v. Tyler, 2 Wall. 347; Prince v. United States, 2 Gall. 204.

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

title: Railroad Company v. Grant


text: Talk:Railroad Company v. Grant

title: Talk:Railroad Company v. Grant


text:
Railroad Company v. Grant/Opinion of the Court

The single question presented by this motion is whether there is any law now in force which gives us authority to reexamine, reverse, or affirm the judgment in this case. Nearly seventy years ago, Mr. Chief Justice Marshall said, in Durusseau v. United States (6 Cranch, 307), that this 'court implies a legislative exception from its constitutional appeallate power in the legislative affirmative description of those powers. Thus a writ of error lies to the judgment of a circuit court, where the matter in controversy exceeds the value of $2,000. There is no express declaration that it will not lie where the matter in controversy shall be of less value. But the court considers this affirmative description as manifesting the intent of the legislature to except from its appellate jurisdiction all cases decided in the circuits where the matter in controversy is of less value and implies negative words.' There has been no departure from this rule, and it has universally been held that our appellate jurisdiction can only be exercised in cases where authority for that purpose is given by Congress.

It is equally well settled that if a law conferring jurisdiction is repealed without any reservation as to pending cases, all such cases fall with the law. United States v. Boisdore's Heirs, 8 How. 113; McNulty v. Batty, 10 id. 72; Norris v. Crocker, 13 id. 429; Insurance Company v. Ritchie, 5 Wall. 541; Ex parte McArdle, 7 id. 514; The Assessor v. Osbornes, 9 id. 567; United States v. Tynen, 11 id. 88.

Sect. 847 of the Revised Statutes, relating to the District of Columbia, is in irreconcilable conflict with the act of 1879. The one gives us jurisdiction when the amount in dispute is $1,000 or more; the other in effect says we shall not have jurisdiction unless the amount exceeds $2,500. It is clear, therefore, that the repealing clause in the act of 1879 covers this section of the Revised Statutes.

The act of 1879 is undoubtedly prospective in its operation. It does not vacate or annul what has been done under the old law. It destroys no vested rights. It does not set aside any judgment already rendered by this court under the jurisdiction conferred by the Revised Statutes when in force. But a party to a suit has no vested right to an appeal or a writ of error from one court to another. Such a privilege once granted may be taken away, and if taken away, pending proceedings in the appellate court stop just where the rescinding act finds them, unless special provision is made to the contrary. The Revised Statutes gave parties the right to remove their causes to this court by writ of error and appeal, and gave us the authority to re-examine, reverse, or affirm judgments or decrees thus brought up. The repeal of that law does not vacate or annul an appeal or a writ already taken or sued out, but it takes away our right to hear and determine the cause, if the matter in dispute is less than the present jurisdictional amount. The appeal or the writ remains in full force, but we dismiss the suit, because our jurisdiction is gone.

It is claimed, however, that, taking the whole of the act of 1879 together, the intention of Congress not to interfere with our jurisdiction in pending cases is manifest. There is certainly nothing in the act which in express terms indicates any such intention. Usually where a limited repeal only is intended, it is so expressly declared. Thus, in the act of 1875 (18 Stat. 316), raising the jurisdictional amount in cases brought here for review from the circuit courts, it was expressly provided that it should apply only to judgments thereafter rendered; and in the act of 1874 (id. 27), regulating appeals to this court from the supreme courts of the Territories, the phrase is, 'that this act shall not apply to cases now pending in the Supreme Court of the United States where the record has already been filed.' Indeed, so common is it, when a limited repeal only is intended, to insert some clause to that express effect in the repealing act, that if nothing of the kind is found, the presumption is always strong against continuing the old law in force for any purpose. We think it will not be claimed that an appeal may now be taken or a writ of error sued out upon a decree or a judgment rendered before the act of 1879 took effect, if the matter in dispute is not more than $2,500; but it seems to us there is just as much authority for bringing up new cases under the old law as for hearing old ones. There is nothing in the statute which indicates any intention to make a difference between suits begun and those not begun. If, as is contended, the object of Congress was to raise our jurisdictional amount because of the increase of the judicial force in the District, we see no good reason why those who had commenced their proceedings for review of old judgments should be entitled to more consideration than those who had not. No declaration of any such object on the part of Congress is found in the law; and when, if it had been the intention to confine the operation of what was done to judgments thereafter rendered or to cases not pending, it would have been so easy to have said so, we must presume that Congress meant the language employed should have its usual and ordinary signification, and that the old law should be unconditionally repealed.

Without more, we conclude that our jurisdiction in the class of cases of which this is one has been taken away, and the writ will accordingly be dismissed, each party to pay his own costs; and it is

So ordered.


text: Talk:Railroad Company v. Grant/Opinion of the Court


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Boom Company v. Patterson

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

The plaintiff is a corporation created by the laws of Minnesota, known as the Mississippi and Rum River Boom Company, and the defendant is a citizen of the State of Illinois.

The facts are stated in the opinion of the court.

Mr. William Lochren for the plaintiff in error.

Mr. Charles E. Flandrau for the defendant in error.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Boom Company v. Patterson


text: Talk:Boom Company v. Patterson

title: Talk:Boom Company v. Patterson


text:
Boom Company v. Patterson/Opinion of the Court

The plaintiff in error is a corporation created under the laws of Minnesota to construct booms between certain designated points on the Mississippi and Rum Rivers in that State. It is authorized to enter upon and occupy any land necessary for properly conducting its business; and, where such land is private property, to apply to the District Court of the county in which it is situated for the appointment of commissioners to appraise its value and take proceedings for its condemnation. It is unnecessary to state in detail the various steps required to obtain the condemnation. It is sufficient to observe that the law is framed so as to give proper notice to the owners of the land, and secure a fair appraisement of its value. If the award of the commissioners should not be satisfactory to the company, or to any one claiming an interest in the land, an appeal may be taken to the District Court, where it is to be entered by the clerk 'as a case upon the docket' of the court, the persons claiming an interest in the land being designated as plaintiffs, and the company seeking its condemnation as defendant. The court is then required to 'proceed to hear and determine such case in the same manner that other cases are heard and determined in said court.' Issues of fact arising therein are to be tried by a jury, unless a jury be waived. The value of the land being assessed by the jury or the court, as the case may be, the amount of the assessment is to be entered as a judgment against the company, which is subject to review by the Supreme Court of the State on a writ of error.

The defendant in error, Patterson, was the owner in fee of an entire island and parts of two other islands in the Mississippi River above the Falls of St. Anthony, in the county of Anoka, in Minnesota. These islands formed a line of shore, with occasional breaks, for nearly a mile parallel with the west bank of the river, and distant from it about one-eighth of a mile. The land owned by him amounted to a little over thirty-four acres, and embraced the entire line of shore of the three islands, with the exception of about three rods. The position of the islands specially fitted them, in connection with the west bank of the river, to form a boom of extensive dimensions, capable of holding with safety from twenty to thirty millions of feet of logs. All that was required to form a boom a mile in length and one-eighth of a mile in width was to connect the islands with each other, and the lower end of the island farthest down the river with the west bank; and this connection could be readily made by boom sticks and piers.

The land on these islands owned by the defendant in error the company sought to condemn for its uses; and upon its application commissioners were appointed by the District Court to appraise its value. They awarded to the owner the sum of $3,000. The company and the owner both appealed from this award. When the case was brought before the District Court, the owner, Patterson, who was a citizen of the State of Illinois, applied for and obtained its removal to the Circuit Court of the United States, where it was tried. The jury found a general verdict assessing the value of the land at $9,358.33, but accompanied it with a special verdict assessing its value aside from any consideration of its value for boom purposes at $300, and, in view of its adaptability for those purposes, a further and additional value of $9,058.33. The company moved for a new trial, and the court granted the motion, unless the owner would elect to reduce the verdict to $5,500. The owner made this election, and judgment was thereupon entered in his favor for the reduced amount. To review this judgment the company has brought the case here on a writ of error.

The only question on which there was any contention in the Circuit Court was as to the amount of compensation the owner of the land was entitled to receive, and the principle upon which the compensation was to be estimated. But the company now raise a further question as to the jurisdiction of the Circuit Court. Objections to the jurisdiction of the court below, when they go to the subject-matter of the controversy and not to the form merely of its presentation or to the character of the relief prayed, may be taken at any time. They are not waived because they were not made in the lower court.

The position of the company on this head of jurisdiction is this: that the proceeding to take private property for public use is an exercise by the State of its sovereign right of eminent domain, and with its exercise the United States, a separate sovereignty, has no right to interfere by any of its departments. This position is undoubtedly a sound one, so far as the act of appropriating the property is concerned. The right of eminent domain, that is, the right to take private property for public uses, appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty. The clause found in the Constitutions of the several States providing for just compensation for property taken is a mere limitation upon the exercise of the right. When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. The property may be appropriated by an act of the legislature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is interested. But notwithstanding the right is one that appertains to sovereignty, when the sovereign power attaches conditions to its exercise, the inquiry whether the conditions have been observed is a proper matter for judicial cognizance. If that inquiry take the form of a proceeding before the courts between parties,-the owners of the land on the one side, and the company seeking the appropriation on the other,-there is a controversy which is subject to the ordinary incidents of a civil suit, and its determination derogates in no respect from the sovereignty of the State.

The proceeding in the present case before the commissioners appointed to appraise the land was in the nature of an inquest to ascertain its value, and not a suit at law in the ordinary sense of those terms. But when it was transferred to the District Court by appeal from the award of the commissioners, it took, under the statute of the State, the form of a suit at law, and was thenceforth subject to its ordinary rules and incidents. The point in issue was the compensation to be made to the owner of the land; in other words, the value of the property taken. No other question was open to contestation in the District Court. Turner v. Halloran, 11 Minn. 253. The case would have been in no essential particular different had the State authorized the company by statute to appropriate the particular property in question, and the owners to bring suit against the company in the courts of law for its value. That a suit of that kind could be transferred from the State to the Federal court, if the controversy were between the company and a citizen of another State, cannot be doubted. And we perceive no reason against the transfer of the pending case that might not be offered against the transfer of the case supposed.

The act of March 3, 1875, provides that any suit of a civil nature, at law or in equity, pending or brought in a State court, in which there is a controversy between citizens of different States, may be removed by either party into the Circuit Court of the United States for the proper district; and it has long been settled that a corporation will be treated, where contracts or rights of property are to be enforced by or against it, as a citizen of the State under the laws of which it is created, within the clause of the Constitution extending the judicial power of the United States to controversies between citizens of different States. Paul v. Virginia, 8 Wall. 177. And in Gaines v. Fuentes (92 U.S. 20), it was held that a controversy between citizens is involved in a suit whenever any property or claim of the parties, capable of pecuniary estimation, is the subject of litigation and is presented by the pleadings for judicial determination. Within the meaning of these decisions, we think the case at bar was properly transferred to the Circuit Court, and that it had jurisdiction to determine the controversy.

Upon the question litigated in the court below, the compensation which the owner of the land condemned was entitled to receive, and the principle upon which the compensation should be estimated, there is less difficulty. In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in a sale of property between private parties. The inquiry in such cases must be what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses. Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is unable to put it to any use. Others may be able to use it, and make it subserve the necessities or conveniences of life. Its capability of being made thus available gives it a market value which can be readily estimated.

So many and varied are the circumstances to be taken into account in determining the value of property condemned for public purposes, that it is perhaps impossible to formulate a rule to govern its appraisement in all cases. Exceptional circumstances will modify the most carefully guarded rule; but, as a general thing, we should say that the compensation to the owner is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future.

The position of the three islands in the Mississippi fitting them to form, in connection with the west bank of the river, a boom of immense dimensions, capable of holding in safety over twenty millions of feet of logs, added largely to the value of the lands. The boom company would greatly prefer them to more valuable agricultural lands, or to lands situated elsewhere on the river; as, by utilizing them in the manner proposed, they would save heavy expenditures of money in constructing a boom of equal capacity. Their adaptability for boom purposes was a circumstance, therefore, which the owner had a right to insist upon as an element in estimating the value of his lands.

We do not understand that all persons, except the plaintiff in error, were precluded from availing themselves of these lands for the construction of a boom, either on their own account or for general use. The clause in its charter authorizing and requiring it to receive and take the entire control and management of all logs and timber to be conveyed to any point on the Mississippi River must be held to apply to the logs and timber of parties consenting to such control and management, not to logs and timber of parties choosing to keep the control and management of them in their own hands. The Mississippi is a navigable river above the Falls of St. Anthony, and the State could not confer an exclusive use of its waters, or exclusive control and management of logs floating on it, against the consent of their owners. Whilst in Atlee v. Packet Company (21 Wall. 389) we held that a pier obstructing navigation, erected in the river as part of a boom, without license or authority of any kind except such as arises from the ownership of the adjacent shore, was an unlawful structure, we did not mean to intimate that the owner of land on the Mississippi could not have a boom adjoining it for the receiption of logs of his own or of others, if he did not thereby impede the free navigation of the stream. Aside from this, we do not think that the State is precluded by any thing in the charter of the company from giving a license to the defendant in error to construct a boom near his lands. Moreover, the United States, having paramount control over the river, may grant such license if the State should refuse one. The adaptability of the lands for the purpose of a boom was, therefore, a proper element for consideration in estimating the value of the lands condemned. The contention on the part of the plaintiff in error is, that such adaptability should not be considered, assuming that this adaptability could never be made available by other persons, by reason of its supposed exclusive privileges; in other words, that by the grant of exclusive privileges to the company the owner is deprived of the value which the lands, by their adaptability for boom purposes, previously possessed, and therefore should not now receive any thing from the company on account of such adaptability upon a condemnation of the lands. We do not think that the owner, by the charter of the company, lost this element of value in his property.

The views we have expressed as to the justness of considering the peculiar fitness of the lands for particular purposes as an element in estimating their value find support in the several cases cited by counsel. Thus, In the Matter of Furman Street (17 Wend. 669), where a lot upon which the owner had his residence was injured by cutting down an embankment in opening a street in the city of Brooklyn, the Supreme Court of New York said that neither the purpose to which the property was applied, nor the intention of the owner in relation to its future enjoyment, was a matter of much importance in determining the compensation to be made to him; but that the proper inquiry was, 'What is the value of the property for the most advantageous uses to which it may be applied?' In Goodwin v. Cincinnati & Whitewater Canal Co. (18 Ohio St. 169), where a railroad company sought to appropriate the bed of a canal for its track, the Supreme Court of Ohio held that the rule of valuation was what the interest of the canal company was worth, not for canal purposes or for any other particular use, but generally for any and all uses for which it might be suitable. And in Young v. Harrison (17 Ga. 30), where land necessary for an abutment of a bridge was appropriated, the Supreme Court of Georgia held that its value was not to be restricted to its agricultural or productive capacities, but that inquiry might be made as to all purposes to which it could be applied, having reference to existing and prospective wants of the community. Its value as a bridge site was, therefore, allowed in the estimate of compensation to be awarded to the owner.

These views dispose of the principle upon which the several exceptions by the plaintiff in error to the rulings of the court below in giving and in refusing instructions to the jury were taken, and we do not deem it important, therefore, to comment upon them.

Judgment affirmed.


text: Talk:Boom Company v. Patterson/Opinion of the Court


text:
Scull v. United States

APPEAL from the District Court of the United States for the Western District of Missouri.

This is an appeal from a decree dismissing, on demurrer, the bill of the complainants, who, with the exception of one, their alienee, claim to be the heirs-at-law of Captain Don Joseph Valliere, who died intestate in the city of New Orleans in the year 1799. The suit was brought under the act entitled 'An Act for the final adjustment of private land-claims in the States of Florida, Louisiana, and Missouri, and for other purposes,' approved June 22, 1860. 12 Stat. 85.

The claim in this case is founded on three instruments of writing, of which translations are given in the record.

1. An order of Baron de Carondelet, Spanish governor of Louisiana:--

'11th June, 1793, to Captain Don Joseph Valliere, in the District of Arkansas, a tract of land, situated on the White River, extending from the rivers Norte Grande and Cibolos to the source of the said White River, ten leagues in depth.

'BARON DE CARONDELET.'2. A certificate of survey by Charles Trudeau:--

'DON CARLOS TRUDEAU, Royal and Private Surveyor of the Province of Louisiana.

'I certify having measured, in favor and in presence of Don Joseph Valliere, captain of the stationary regiment of Louisiana, a portion of land situated in the jurisdiction of Arkansas, on the north and south banks of Rio Blanco; bounded on the east, or on the inferior limit, by the Rio Norte Grande, the Rio Blanco, and the Rio Cibolos; on the west, or superior limit, by the fountain-head or origin of the most western branch of the said Rio Blanco and by vacant lands of his majesty; separated from said vacant lands by a line beginning at the said fountain-head of the most western branch of Rio Blanco, running southwest ten leagues in depth; on the north by the lands of his majesty, separated from these by a drawn line, beginning at the Rio Norte Grande, commencing at a point ten leagues distant in a direct line from its mouth or confluence with the Rio Blanco, running in a course nearly west until it meets the fountain-head or origin of the most western branch of the Rio Blanco, and on the south side by vacant lands of his majesty, separated from these by a line drawn apart, beginning at a point where ends the southwest limit, ten leagues from the fountain-head or origin of the most western branch of the Rio Blanco, running on a parallel line with said Rio Blanco descending, ten leagues in depth, until it meets Rio Cibolos, at a distance of ten leagues in a direct line from Rio Blanco. All of which is now fully demonstrated in the figurative plan which precedes,-in which are shown the dimensions and courses of the boundaries, the trees and monuments serving as artificial and natural boundaries. The lines and limits have been made at the request of the grantee and in compliance with the order of the governor-general, Baron de Carondelet, of the ___ of June of the present year. All of which I certify that it may be everywhere valid. I give these presents, together with the figurative plan which precedes, on the 24th of October, 1793.

'CARLOS TRUDEAU, Surveyor-General.'

The figurative plan is the form following:-- 3. A cession or grant by Carondelet:--

'For the benefit of the public, and for the greater encouragement of agriculture and industry of the country, I have judged it expedient to take steps for the surveying and granting the royal lands of the provinces:

Therefore, I grant to Don Joseph Valliere, captain of the regiment stationed in Louisiana, a portion of land in the jurisdiction of Arkansas, situate on both banks of the White River, ten leagues on both banks, beginning at the origin of the most western branch or source of the White River, and running southwest ten leagues, descending from thence on the south by parallel line with White River, at the distance of ten leagues, until it intersects the Buffalo River at a point ten leagues in a direct line with White River, from thence descending the Buffalo River to its confluence with the White River; following this as far as the mouth of the Great North Fork of the White River, up the same to a point ten leagues in a direct line from its mouth, from thence ascending the White River to the north in a westerly direction ten leagues from the same as far as its source, which will be better seen on the figurative plan made by my order by the surveyor-general, Don Carlos Trudeau, of this province, 24th of October last (it being impossible for the royal surveyor to make an actual survey at this time), and in virtue of my order in June, of the current year, by which I made him a grant and ordered the surveyor-general to put him in possession, according to the usual form, in consequence of the power which has been conferred on me by our lord the king (God preserve), I grant, in his royal name, to the said Don Joseph Valliere, captain of the regiment of infantry of Louisiana, the said portion described above, in order that he may dispose of it, he and his legitimate successors, as property belonging to him. Done in New Orleans, 22d of December, 1793.

'EL BARON DE CARONDELET.'

A diagram, made in 1876, is filed with the bill as an exhibit, accompanied by an affidavit of Mr. George H. Day, 'a practical city surveyor, duly appointed as such by the city of Brooklyn,' that it is a true and faithful diagram description and extent of the lands covered by the grant. The description as therein set forth is that the tract is 'situated on both sides of White River (or Rio Blanco), in the States of Missouri and Arkansas, extending from the north fork of White River (or Rio Norte Grande) westerly to its source 37 7/8 miles in depth on both sides (or ten leagues).

'Beginning at the origin or terminal of main fork of White River in Madison County, Arkansas, in township 13 north, range 25 west, from thence south 37 7/8 miles (or ten leagues) to a point in township 7 north, range 25 west; thence continuing on a line drawn parallel with the main courses of the said White River and at a distance of 37 7/8 miles therefrom (or ten leagues) on a line drawn north of west 33 1/2 miles to a point in township 8 north and range 31 west; thence northwesterly 52 7/10 miles to a point in the Indian Territory or Cherokee County near Flint Creek; thence north by east 46 7/10 miles to a point in tonwship 23 north, range 34 west, in McDonald County, Missouri; thence northeasterly 60 8/10 miles to a point in township 28 north, range 26 west, in Lawrence County, Missouri; thence easterly 48 miles to a point in township 29 north, and range 18 west, and distant from a point on White River 37 7/8 miles (or ten leagues); thence southeasterly 45 6/10 miles to a point on the Big North Fork of White River in township 24 north, and range 12 west, distant 37 7/8 miles (or ten leagues) northerly in a direct line from the mouth of the north fork of said White River; thence southerly down the north fork of White River (or Rio Norte Grande) to its mouth in township 18 north, range 12 west; thence southwesterly up the White River to the mouth of Buffalo Fork of White River; thence westerly, following said Buffalo Fork (or Rio Cibolos), to its source in township 14 north, range 24 west; thence southwesterly to the terminal or source of White River, the place of beginning, as more full shown on the map annexed, containing 11,370 square miles.'

The complainants allege that 'Rio Blanco' is the White River of the State of Arkansas, having its source in the most westerly part thereof, running through the southwesterly portion of the State of Missouri, and thence through the said State of Arkansas, and emptying into the Mississippi River; that Rio Cibolos is the Buffalo River, a branch of the said White River; that Rio Norte Grande is the Great North Fork River of the State of Arkansas, and a branch of the said White River; that neither they nor any parties holding title under the original claimant have possessed and cultivated any of said lands for the period of twenty years prior to the filing of the petition; that the lands are partly situated in the counties of Ozark, Douglass, Taney, Christian, Stone, and Barry of the State of Missouri, and are within the jurisdiction of the court below; and that all or nearly all of them have been disposed of by the United States. The complainants pray that they may be allowed upon the trial to show by competent evidence what portion of the lands now remains undisposed of and claimed by the United States; that a patent may be issued therefor; and that warrants or scrip be awarded to them and their legal representatives, as an equivalent for the lands, portion of the said grant, which have been disposed of by the United States; and for such other decree as to the court may seem just.

Mr. William H. Duryea and Mr. J. Warren Greene for the appellants.

Mr. Assistant Attorney-General Smith, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Scull v. United States


text: Talk:Scull v. United States

title: Talk:Scull v. United States