text:
Walnut v. Wade/Opinion of the Court

This suit was brought upon one thousand and ten coupons for ten dollars each, representing the annual interest on three hundred and twenty-one bonds for the sum of one hundred dollars each, purporting to be executed by the township of Walnut. It was claimed that the bonds were issued in aid of the Illinois Grand Trunk Railway Company, and in payment of stock in that company subscribed for by the plaintiff in error and delivered to it.

The coupons bore the following numbers: From 1 to 200 inclusive, 258, and from 281 to 400 inclusive, and were cut from bonds bearing corresponding numbers.

Before final judgment in the court below the defendant in error took a nonsuit as to all coupons sued on bearing numbers from 301 to 400 inclusive, and withdrew the same from consideration by the court, and left, as the cause of action, only those coupons which bore numbers under 301.

The declaration set out a copy of one of the coupons sued on and averred that all the others were of the same tenor and effect except as to their numbers and date of payment respectively. The copy was as follows:--

'No. 251. Series 4, due January 1, 1875, for $10.

'$10.] WALNUT TOWNSHIP. [No. 251.

'Railroad Bond.

'Interest Warrant.

'Supervisor of Walnut Township pay to bearer, January 1,     1875, ten dollars, at the office of the State treasurer,      Springfield, Illinois.

'WM. SANDERS, Town Clerk

'M. KNIGHT, Supervisor.'

The parties waived a trial by jury and submitted the causo to the court upon the issues of fact as well as of law. The court made a special finding of facts, as follows:--

'First, That said defendant town, by its town clerk and supervisor, did, some time in the month of October, A.D. 1870, make its four hundred bonds for the sum of one hundred dollars each, and numbered consecutively from one to four hundred, inclusive, amounting in the aggregate to the sum of forty thousand dollars, said bonds bearing interest at the rate of ten per cent per annum, payable annually, and the principal thereof payable to the Illinois Grand Trunk Railway or bearer on the first day of January, A.D. 1881, and dated January 1, 1871, said interest being evidenced by ten interest-warrants or coupons for ten dollars each, payable to bearer and attached to said bonds, as set out in the declaration in this case. That said bonds recited on their face that they were issued to said Illinois Grand Trunk Railway by authority of an act of the legislature of the State of Illinois, approved March 25, 1869, entitled 'An Act to amend an act entitled 'An Act to incorporate the Illinois Grand Trunk Railway," and 'in pursuance of a vote of the people of said town, had and taken June 25, 1870,' being the same bonds described in plaintiff's declaration. That the coupons described in said declaration were cut from the first three hundred of said bonds, and are all due and unpaid.

'Second, That at some time in the month of January, A.D. 1871, the supervisor and town clerk of said town, acting for and in behalf of said town, subscribed for forty thousand dollars of the capital stock of said Illinois Grand Trunk Railway, and issued and delivered said four hundred bonds to said railway in payment of said subscription, and that within ten or fifteen days therefrom the said railway corporation sold said bonds for value, and applied the proceeds to the construction of its railroad through said town; and that said plaintiff, on the ___ day of September, A. D. 1871, bought the bonds from which the coupons sued on were detached, and also all the coupons thereto attached and unpaid, in good faith, in the New York market, and paid therefor in money at the rate of ninety-two and one-half cents on the dollar, without actual notice of any defence whatever against said bonds or coupons.

'Third, That the said act of the legislature of the State of Illinois, approved March 25, 1869, entitled 'An Act to amend an act to incorporate the Illinois Grand Trunk Railway,' was duly and constitutionally passed by the General Assembly of said State of Illinois.

'Fourth, That the voters of said town, at an election duly called and held in said town, pursuant to the provisions of said act, on the twenty-fifth day of June, 1870, voted that said town would subscribe for thirty thousand dollars of the capital stock of said railway, and in payment therefor issue the bonds of said town for the amount of said stock, bearing ten per cent interest annually, and the principal sum payable in ten years from their date.

'That on the sixth day of August, 1870, at another election called and held in pursuance of the requirements of said act, the electors of said town voted to subscribe for ten thousand dollars of the capital stock of said railway in addition to the thirty thousand dollars voted on the twenty-fifth day of June, 1870, to be paid for in bonds of said town, bearing the same rate of interest and payable at the same time as the bonds to be issued for said thirty thousand dollars subscription.

'Fifth, That the coupons offered in evidence and upon which judgment is rendered in this case were cut from bonds of said issue numbered from one to three hundred.'

Besides this special finding the record contained a bill of exceptions which embodied all the evidence submitted by both parties in the case.

Upon the special finding the court rendered judgment for the plaintiff below for the principal sum due on the coupons, and for interest thereon from the date when they were payable respectively.

The alleged act of the legislature, by authority of which it was claimed the bonds were issued, is as follows:--

'An Act to amend an act entitled 'An Act to incorporate the     Illinois Grand Trunk Railway.'

'SECTION 1. Be it enacted by the people of the State of     Illinois, represented in the General Assembly, that any city,      incorporated town, or township which may be situated on or      near the route of the Illinois Grand Trunk railway, west of      the city of Mendota, via Prophetstown, to the Mississippi      River, may become subscribers to the stock of said railway,      and may issue bonds for the amount of such stock so      subscribed, with coupons for interest thereto attached, under      such limitations and restrictions and on such conditions as      they may choose, and the directors of said company may      approve the proposition for said subscription, having been      first submitted to the inhabitants of such city, town, or      township, and approved by them; and upon application of any      ten voters of any city, town, or township, as aforesaid,      specifying the amount to be subscribed, and the conditions of      such subscription, it shall be the duty of the clerk of such      city, town, or township immediately to call an election, in      the same manner that other elections for said city, town, or      township are called, for the purpose of determining whether      said city, town, or township will subscribe to the stock of      said railway; and if a majority of said votes shall be 'for subscription,' then the corporate      authorities of said city, town, or township, and the      supervisor and town clerk of said township so voting, shall      cause said subscription to be made; and upon its acceptance      by the directors of said company shall cause bonds to be      issued in conformity with said vote, which bonds shall not be      of less denomination than one hundred dollars, and in no case      bear a higher rate of interest than ten per cent, provided no      such election shall be held until at least thirty days'      previous notice thereof shall be given in the manner      prescribed by law.

'SECT. 2. It shall be the duty of the proper authorities of     any city, town, or township, issuing bonds as aforesaid, to      make all necessary arrangements, and provide for the prompt      payment of all interest and other liabilities accruing      thereon, and to levy such taxes as may be necessary therefor      as other taxes are levied by them.

'SECT. 3. This act shall be liberally construed for the     purposes intended and expressed therein, and shall be held to      be a public act, and shall be in force from and after its      passage.' Approved March 25, 1869.

This act was passed while the Constitution of Illinois of 1848 was in force.

That Constitution contained the following provision (sect. 23 of art. 3):--

'Every bill shall be read on three different days in each     House. . . and every bill having passed both Houses shall be     signed by the speakers of their respective Houses; and no      private or local law which may be passed by the General      Assembly shall embrace more than one subject, and that shall      be expressed in the title.'

On July 2, 1870, a vote was taken by the voters of the State of Illinois, which resulted in the adoption of a new constitution and of certain separate articles, one of which reads as follows, and it took effect that day:--

'No county, city, town, township or other municipality shall     ever become subscriber to the capital stock of any railway or      private corporation, or make donation to or loan its credit      in aid of such corporation: Provided, however, that the      adoption of this article shall not be construed as affecting      the right of such municipality to make such subscriptions where the same have been      authorized under existing laws by a vote of the people of      such municipalities prior to such adoption.'

The first assignment of error relates to the finding of the court, that the act by authority of which the bonds in question were issued 'was duly and constitutionally passed.' The pa intiff in error disputes this finding.

A question arises here whether this finding is open to challenge.

One thing is clear, that there can be no review in this court of the finding of fact made in the court below.

Sect. 649 of the Revised Statutes declares: 'The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury.'

The office of a bill of exceptions, where the facts are tried by the court, is pointed out by sect. 700, Revised Statutes: 'The rulings of the court in the progress of the trial of the cause, if excepted to at the time and duly presented by a bill of exceptions, may be reviewed by the Supreme Court upon a writ of error or upon appeal, and when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the judgment.'

In Norris v. Jackson (9 Wall. 125), this court said: 'A special finding is not a mere report of the evidence, but a statement of the ultimate facts on which the law of the case must determine the rights of the parties; a finding of the propositions of fact which the evidence establishes, and not the evidence on which those ultimate facts are supposed to rest. . . . Whether the finding be general or special, it shall have the same effect as the verdict of a jury; that is to say, it is conclusive as to the facts so found. . . . In the case of a special verdict [finding] the question is presented as it would be if tried by a jury, whether the facts thus found require a judgment for plaintiff or defendant. . . . The bill of exceptions, while professing to detail all the evidence, is no special finding of the facts.'

It is thus seen that the only use which can be made of the bill of exceptions, when there is a special finding of facts, is to present the rulings of the court in the progress of the trial upon questions of law. The facts are conclusively settled by the finding of the court.

But the finding under consideration is not a finding of fact but of law. The question whether an alleged statute 'is really a law or not, is a judicial one, and is to be settled and determined by the court and judges, and is not a question of fact to be determined by a jury.' Town of South Ottawa v. Perkins, 94 U.S. 260; Gardner v. The Collector, 6 Wall. 499.

So, notwithstanding the finding of the court below, the question whether the act of March 25, 1869, was duly and constitutionally passed, is, as one of law, open for examination here,-the decision of the court on it having been excepted to at the proper time. And in deciding it, not only the facts presented by the bill of exceptions, but any other accessible competent evidence may be considered.

The plaintiff in error insists that the evidence set out in the bill of exceptions does not sustain the finding under consideration; in other words, that there is error in law in the holding of the court, that upon the facts disclosed the statute in question was duly and constitutionally passed.

It is settled by the decisions of the Supreme Court of Illinois that the journals of the legislature may be resorted to for the purpose of overthrowing the prima facie evidence of the constitutional enactment of a law furnished by the signatures of the presiding officers of the two Houses. Town of South Ottawa v. Perkins, supra, where those decisions on this subject are collected.

Both parties upon the trial in the court below introduced the journals of the two Houses of the Illinois legislature,-one to prove and the other to disprove the constitutional passage of the law. From this evidence it appears that the bill in question when introduced into the House was designated and distinguished as House Bill No. 231, and with the title 'An Act to amend an act entitled 'An Act to incorporate the Illinois Grand Trunk Railway." It regularly passed the House with this title, having been read three times on three different days and having been referred to and reported by a com ittee.

In the Senate, according to the journals, the proceedings were as follows: On February 8, a message was received from the House to the effect that it had passed House Bill No. 231, entitled an act to amend an act entitled 'An Act to incorporate the Grand Trunk Railway.' On February 9, the bill with the same number and title was read the first and second time and referred to a standing committee. On March 4, House Bill No. 231, for 'An Act to amend an act entitled an act to incorporate the Illinois Grand Trunk Railway,' was reported back with amendments by the committee, to which House Bill No. 231 had been referred, which recommended that as amended it be read a third time and passed. The next day House Bill No. 231, and with the same title, except that the word 'Illinois' was omitted therefrom, was read a third time and passed.

The Senate amendments to House Bill No. 231, with the same title as that under which it passed the House, were agreed to by the House. In the messages between the two Houses, in which the passage of the bill by each is reported to the other, the word 'Illinois' is omitted from the title, but its designation as House Bill No. 231 is preserved. The bill, after its final passage, was enrolled as House Bill No. 231, with the title, 'An Act to amend an act to incorporate the Illinois Grand Trunk Railway,' and it was signed by that title by the presiding officers of both Houses and approved and signed by the governor.

We are now called on to decide whether upon this evidence the court below was justified in holding that the act was duly and constitutionally passed.

The evidence discloses the fact that in its passage through the Senate, according to the journal of that body, the word 'Illinois' was twice dropped from the title of the bill, and that in the message of the House to the Senate and of the Senate to the House reporting the passage of the bill by those bodies respectively, the word 'Illinois' is left out of the title of the bill.

The contention of the plaintiff in error is that the omission of the word 'Illinois' from the title of the bill in several of its stages in the Senate, and especially in its final passage, defeats it as a law and renders the enactment null and void. The ground of this claim is that, according to the journals of the two Houses, 'one bill by one title passed the House and another bill by another title passed the Senate.'

The evidence of the journals of the two Houses satisfies us that beyond question there was but one bill, and that was House Bill No. 231, 'to amend an act entitled an act to incorporate the Illinois Grand Trunk Railway;' that this bill regularly passed through all stages by both Houses without any change in its title, was signed by their presiding officers respectively, and was approved and signed by the governor.

The journals show no amendment to the title of the bill in either House. It is, therefore, perfectly clear that the omission of the word 'Illinois' from the title in some of the stages of its passage through the Senate was a mere clerical error in keeping the journals. The designation of the bill as House Bill No. 231 was preserved in all the stages of its passage through both Houses, and until it was finally signed by the presiding officers of the two Houses and approved by the governor. The statute-book of the State of Illinois shows that only one act was ever passed to incorporate any 'Grand Trunk Railway' and that was the act to incorporate the Illinois Grand Trunk Railway. Therefore the act in question must have been an amendment to that act of incorporation, and could be an amendment to no other.

The fact of the identity of the bill passed by the two Houses is so clear that it seems to us no court could have any doubt on the subject.

In the case of Larrison v. Peoria, Atlanta, & Decatur Railroad Co. (77 Ill. 11), it appeared that by some clerical error the bill was introduced into the Senate as 'Senate Bill No. 453, for an act to incorporate the Peoria, Atlanta, & Danville Railo ad Company,' thus changing the name of Decatur, in the title, to Danville; but as the bill preserved its identity by holding its number, '453,' the Supreme Court of Illinois decided that the act was constitutionally passed. It said:--

'And the question is, was the bill for the act read three times in the Senate before its passage by that body? If the entries on the journal refer to the same bill, then the requirements. of the organic law are satisfied. The question is one of identity. Do these entries show there was one or two bills acted upon by the Senate? The number is the same throughout. About that there is not the pretence of the slightest doubt, and it is manifest that to have more than one bill pending at the same time, with the same number, would lead to confusion ; it would defeat the very object of numbering bills, which is to preserve their identity and prevent confusion.'

Another objection, based on the fact that the journals do not preserve the exact title of the bill in all the stages of its passage through the Senate, is that the title did not at all times conform to the constitutional requirement that the subject of the bill should be expressed therein.

There is no rule of parliamentary law, and there is no provision of the Constitution of Illinois, which requires a bill to preserve the same title through all its stages in both Houses. Larrison v. Peoria, Atlanta, & Decatur Railroad Co., supra; Binz v. Weber, 81 Ill. 288; Plummer v. People, 74 id. 361. But, as already said, it is sufficiently clear from the journals of the two Houses that no change whatever was made in the title of the bill in either House, and that the omission of the word 'Illinois' from the title, as given in the journals of the Senate, was a mere clerical error, which could deceive or mislead no one. We are of opinion that these objections to the act are slender grounds for declaring to be null and void a law which appears on the statute-book of a State, and is found among its archives.

It is next insisted that the title of the act, as it appears upon the statute-book of the State, does not express its subject.

The Supreme Court of Illinois has substantially decided this point against the plaintiff in error in the case of Belleville Railroad Co. v. Gregory, 15 Ill. 20. See also Unity v. Burrage, supra, p. 447, where other cases decided by the Supreme Court of Illinois, on this question, are cited. San Antonio v. Mehaffy, 96 U.S. 312.

We are clear, therefore, that the Circuit Court was right in holding that the act, by authority of which the bonds in question were issued, was duly and constitutionally passed.

It is next contended by the plaintiff in error, that, under the act referred to, the corporate authorities of the township alone could make the subscription to the stock of the railroad company and issue the bonds of the township. This claim is based on sect. 5, art. 9, of the Constitution of Illinois of 1848, which prohibits the legislature from authorizing any person to impose a burden of debt on the township, except the corporate authorities.

The stock was subscribed and the bonds were issued in this case by the supervisor and clerk, and it is insisted that neither the act of the legislature nor the Constitution of the State allowed this to be done; that it could only be done by the corporate authorities, which included the legal voters as well as the supervisor and clerk.

In construing a similar statute, passed under the Constitution of 1848, the Supreme Court of Illinois has decided that, after a vote by the electors of a township in favor of a donation to aid in the construction of a railroad, the supervisor and clerk of the township were the proper corporate authorities to subscribe for the stock of the company, and issue the bonds of the township therefor. Town of Windsor v. Hallett, 97 Ill. 204; Town of Douglass v. Niantic Savings Bank (not yet reported).

These cases are conclusive of this question, if, id eed, it needed any authority to settle it.

The next point made by the plaintiff in error is that the act of March 25, 1869, by authority of which the bonds were issued, did not authorize an election to be held on the question of subscribing stock in the railway company, at which only legal voters should vote ; that the word 'inhabitants,' whose approval the act requires, cannot be construed to mean 'voters' or 'electors.'

No copy of the bonds appears in the pleadings in this case. The special finding of the court, to which alone we are authorized to look to ascertain the facts upon which the judgment of the court rests, declares that the bonds recite on their face that they are issued 'in pursuance of a vote of the people of said town, held and taken June 25, 1870.'

The popular signification of the words 'people of a town' and 'inhabitants of a town' is the same; so that, according to the finding of the court, the bonds recited on their face a substantial compliance with the requirement of the statute that the proposition for the subscription to the stock of the railroad company should be submitted to the 'inhabitants of the town and affirmed by them.' The plaintiff being, as appears from the findings of the court, a bona fide holder of the bonds without notice, is not bound to go behind this recital.

But it is not necessary, in order to maintain the validity of the bonds, to rely on this finding.

The findings of the court show that the 'voters' of said town, on June 25, 1870, voted in favor of the proposition to subscribe $30,000 to the stock of the said railroad company.

We think that, by a fair construction of the act, this was all that was necessary. The act, it is true, requires the approval of the 'inhabitants' of the town. In its broadest sense this would include all sexes, ages, and conditions. To require the approval by a vote of the 'inhabitants' in this sense would be an absurdity. The act itself is its own interpreter, and shows that this is not its meaning. It provides that, upon the application of ten voters, it shall be the duty of the clerk 'to call an election, in the same manner that other elections for said city, town, or township are called, for the purpose of determining whether said city, town, or township will subscribe to the stock of said railway.'

The calls for 'other elections for said city, town, or township' are addressed to the legal voters, and legal voters only are allowed to vote. The act, though carelessly drawn, clearly meant to restrict the election to the voters, and the approval of the 'inhabitants' was to be indicated by the vote of a majority of the legal voters. This approval the finding of the court shows was obtained.

The intimation that the law required two elections for precisely the same purpose, one at which the inhabitants, and the other at which the electors, of the town should vote, imputes to the General Assembly an absurdity in legislation which the language of the act utterly fails to justify.

We think, therefore, that this assignment of error is without substantial ground to rest on.

It appears from the finding of the court that an election was held on June 25, 1870, on the proposition to subscribe $30,000 to said railroad company. The plaintiff in error claims that this proposition was never approved by the directors of the company, and, therefore, that the bonds issued to carry this proposition into effect were issued without authority, and are, therefore, invalid.

There are two answers to this claim: 1. The act of March 25, 1869, does not require the approval of the directors of the company to the proposition as condition precedent to the subscription of stock and the issue of bonds. 2. The court finds that the bonds contained recitals averring that they were issued by authority of the act of March 25, 1869, and in pursuance of a vote of the people of said town, which is in effect an averment that the conditions prescribed by said act to be performed before said bonds could be issued had been in fc t performed. Whether the conditions precedent had been complied with was a question which was in effect left by the law to the 'corporate authorities' who issued the bonds, to decide. The plaintiff, therefore, being a bona fide holder, was not bound to look beyond the legislative act and the recitals in the bonds. Town of Coloma v. Eaves, 92 U.S. 484; Marcy v. Township of Oswego, id. 637.

The bill of exceptions shows that the plaintiff in error objected to the admission in evidence of the coupons sued on, because, 1, they were not presented to the proper officers or demand of payment made thereon and notice given to the drawers before suit ; 2, because they were detached from and not annexed to any bond, and the absence of the bond was not accounted for, and the same were not negotiable paper sufficient to base an action upon; and, 3, because said coupons never were indorsed and are not negotiable by delivery.

None of these grounds of objection are tenable. The form of the coupons does not change their nature. They are evidences of the sums due for interest on the bonds. The fact that they are made payable at a particular place does not make a presentation for payment at that place necessary before a suit can be maintained on them. Wallace v. McConnell, 13 Pet. 136; Irvine v. Withers, 1 Stew. (Ala.) 234; Montgomery v. Elliott, 6 Ala. 701.

The second and third grounds of objection are answered by the decision of this court in Clark v. Iowa City (20 Wall. 583), where it is said: 'Coupons for instalments of interest when severed from bonds are negotiable and pass by delivery. They then cease to be incidents, and become in fact independent claims, and they do not lose their validity if for any cause the bonds are cancelled or paid before maturity, nor their negotiable character, nor their ability to support separate actions.' See also Aurora City v. West, 7 id. 82; Thompson v. Lee County, 3 id. 327.

It is next alleged for error that the Circuit Court allowed interest on the coupons sued on to be included in the judgment.

The coupons bore interest from the day when they were payable. Aurora City v. West, supra; Clark v. Iowa City, supra; Town of Genoa v. Woodruff, 92 U.S. 502.

There is nothing in the act authorizing the issue of the bonds to which the coupons belonged that takes them out of these decisions. And we have been referred to no legislation in the State of Illinois which forbids the allowance of interest on this kind of commercial paper.

The failure to present the coupons for payment does not prevent the running of interest. If the town had shown that it had money ready to pay the coupons at the time and place where they were payable, this would have been a defence to the claim for interest. Wallace v. McConnell, supra. But no such proof was offered, nor was it claimed that the fact existed.

Finally, the fact that the corporate authorities of the plaintiff in error issued bonds to the amount of $40,000, when the election held on June 25, 1870, only authorized the issue of $30,000, can have no effect on the rights of the defendant in error to his judgment in this case. The finding of the court is, that his bonds recited on their face that they were issued by authority of the act of March 25, 1869, and in pursuance of the vote taken June 25, 1870.

There was nothing in the act which placed any limit to the amount of stock which the town might subscribe, and the recitals of the bonds gave no notice to the holder that the bonds issued exceeded the amount of stock which the town had voted to subscribe. There was nothing to arouse the suspicions of a purchaser; nothing to put him on inquiry. As the defendant in error is a bona fide holder for value, the fact that the amount of the bonds issued by the corporate authorities exceeded by $10,000 the amount of stock voted for by the inhabitants June 25, 1870, can have no influence upon his right to a recovery upon the bonds which e holds.

We find no error in the record.

Judgment affirmed.

title: Walnut v. Wade/Opinion of the Court


text: Talk:Walnut v. Wade/Opinion of the Court

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


text:
Ohio v. Frank

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

The facts are stated in the opinion of the court.

Mr. William C. Goudy and Mr. Allan C. Story for the plaintiff in error.

Mr. J. H. Roberts and Mr. Shelby M. Cullom for the defendant in error.

MR. JUSTICE WOODS delivered the opinion of the court.

title: Ohio v. Frank


text: Talk:Ohio v. Frank

title: Talk:Ohio v. Frank


text:
Ohio v. Frank/Opinion of the Court

This was an action upon bonds issued by the town of Ohio, the plaintiff in error, and upon certain unpaid coupons attached to them. The bonds were issued by authority of the act of the legislature of Illinois of March 25, 1869, referred to in Walnut v. Wade, supra, p. 683. That case decided every question raised in this except one, which relates to the matter of interest on the bonds.

That interest was at the rate of ten per cent per annum. In entering judgment the court below included interest upon the bonds at that rate from their maturity until the date of the judgment. This was assigned for error because there was no agreement in the bonds to pay interest after maturity. It was claimed that no interest at all should have been allowed on them after they fell due, but that if any interest was allowed it should have been computed only at the rate of six per cent per annum, which is the legal rate in Illinois.

At the date of the bonds sued on the law of Illinois fixed the rate of interest at six per cent per annum where it was not settled by the contract, but allowed parties to contract for any rate not exceeding ten per cent per annum.

No authority is cited in support of the proposition that no interest should have been allowed on the bonds after their maturity. the case of Holden v. Trust per cent interest should have been Company (100 U.S. 72), to support the claim that only six per cent interest should have been computed on the bonds after their maturity.

That case arose in the District of Columbia, where substantially the same regulations on the subject of interest were prescribed by statute as in Illinois. The court in that case said: 'The rule heretofore applied by this court, under the circumstances of this case, has been to give the contract rate up to the maturity of the contract, and thereafter the rate prescribed for cases where the parties themselves have fixed no rate.' But the court added: 'When a different rule has been established it governs of course in that locality. The question is always one of local law.'

A different rule has been established in Illinois by the decisions of the Supreme Court of that State. In Phinney v. Baldwin (16 Ill. 108), it was held that a note given for a sum of money, bearing interest at a given rate per month, continues to bear that rate of interest as long as the principal remains unpaid.

This rule was followed by the court below in computing the amount of the judgment in this case.

Judgment affirmed.

title: Ohio v. Frank/Opinion of the Court


text: Talk:Ohio v. Frank/Opinion of the Court

title: Talk:Ohio v. Frank/Opinion of the Court


text:
Page:Dictionary of National Biography volume 06.djvu/96

], which was received with high approbation from Dr. Wotton, Samuel Clarke, and other men of letters. On 9 Oct. 1728, shortly after his mother's death, he married Anne Prudom, his mother's niece, a ward of his father, acquiring with her freehold farms in Yorkshire and Essex. On 17 Oct. 1731 his wife died in her twenty-sixth year, leaving one child only, Thomas, born 1730, a previous son, William, having died in infancy. In 1729 he wrote the preface to Bonwicke's life of his son—'A Pattern for Young Students in the University,' &c., London, 12mo; and in the same year he was appointed, through Onslow, the speaker, to print the votes of the House of Commons, an office he held under three speakers, and for nearly fifty years, in spite of efforts to prejudice him as a nonjuror. In 1730 he edited Dr. Wotton's posthumous work, 'A Discourse concerning the Confusion of Languages at Babel,' London, 8vo. In 1731 he wrote 'Remarks on Mr. Bowman's Visitation Sermon on the Traditions of the Clergy,' exposing that gentleman's deficiency in Latin and Greek, as well as in ecclesiastical history. The 'Sermon' and these 'Remarks' made a great stir at the time. In 1732 Bowyer was involved in a literary dispute with Pope, which seems to have ended with the poet's expressing a good opinion of his critic. The same year he published 'The Beau and Academick,' a translation of Haseldine's 'Bellus Homo et Academicus,' recited in the Sheldonian theatre. In 1733 he wrote in the magazines many letters and papers on Stephen's 'Thesaurus.' In May 1736, at the recommendation of Drake, the antiquary, Bowyer was appointed printer to the Society of Antiquaries, of which he was elected a fellow the July following. He made several valuable contributions to the society, of which are noteworthy one on 'The Inscription on Vitellius at Bath,' and a 'Dissertation on the Gule or Yule of our Saxon Ancestors.' The same year, in conjunction with Dr. Birch, he formed the Society for the Encouragement of Learning, an institution which promised well, but had a very brief existence. In 1738 he became liveryman of the Stationers' Company, of which he was afterwards called on the court in 1763, and fined for the office of master in 1771. In 1741 he put into useful form two schoolbooks, 'Selectæ ex Profanis Scriptoribus Historiæ,' and 'Selectæ e Veteri Testamento Historiæ,' with his own prefaces. In 1742 he edited a translation of Trapp's 'Latin Lectures on Poetry,' with additional notes; and also the seventh volume of Dr. Swift's 'Miscellanies,' 8vo; and in 1744 he wrote a pamphlet on the 'Present State of Europe,' chiefly from Puffendorf, which is now exceedingly scarce.

In 1747 he married his housekeeper, a widow, Mrs. Elizabeth Bill, who had lived with him fourteen years. In 1750 he wrote a prefatory critical dissertation to Kuster's treatise, 'De vero usu Verborum Mediorum,' also a Latin preface to Leedes's 'Veteres Poetæ citati,' works, printed together, of which new editions with improvements were issued in 1773, 12mo, 1806, 8vo, 1822, 12mo. The valuable and extensive notes on Colonel Bladen's 'Translation of Caesar's Commentaries' signed 'Typogr.' were by Bowyer, 1750. He also wrote the long preface to Montesquieu's 'Reflections on the Rise and Fall of the Roman Empire,' Lond. 1751, and translated the dialogue between Sylla and Eucrates. The same year he gave to the world the first translation of Rousseau's 'Paradoxical Oration on the Arts and Sciences,' which gained the Dijon prize in 1750, and wrote a preface to the work. Excepting a few brief periods of retirement to Knightsbridge, Bowyer clung to business very closely, and his great labours in producing an immense number of learned works at length told upon his constitution. He therefore entered into partnership in 1754 with Mr. James Emonson, a relative, and Mr. Spens, a corrector of the press, and afterwards editor of 'Lloyd's Evening Post,' and took another house in Kirby Street, Hatton Garden, to enjoy 'a freer and sweeter air' in the garden grounds attached. A separation of partnership took place in 1757, when Bowyer resumed the active duties of his profession. This year he took as his apprentice John Nichols, then thirteen years of age, who was soon entrusted with the management of the office. In 1761, through the interest of the Earl of Macclesfield, president of the Royal Society, Bowyer became printer for that institution, and held the same office under five presidents up to his death. The same year he published 'Verses on the Coronation of their late Majesties, King George II and Queen Caroline,' spoken by scholars of Westminster School, with translations of all the Latin copies. In this humorous pamphlet he had the assistance of Mr. Nichols. In 1762 he edited the thirteenth and fourteenth volumes of Swift's Works, 8vo, and in 1763 appeared his excellent edition of the Greek Testament in 2 vols. 12mo, pp. 488, to which he added 'Conjectural Emendations,' &c., paged separately, pp. 178. These critical notes, selected from the works of Bishop Barrington, Markland, Schultz, Michaelis, Owen, Woide, Gasset, and Stephen Weston, were considered of very great value. A second edition of the 'Conjectural


text:
The Civilta and the Restless

APPEALS from the Circuit Court of the United States for the Southern District of New York.

The facts are stated in the opinion of the court.

Mr. William Allen Butler for the 'Civilta.'

Mr. Lucius E. Chittenden for the 'Restless.'

Mr. Robert D. Benedict, contra.

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

title: The Civilta and the Restless


text: Talk:The Civilta and the Restless

title: Talk:The Civilta and the Restless


text:
The Civilta and the Restless/Opinion of the Court

This is a suit for damage by collision, begun by the owners and master of the schooner 'Magellan' against the ship 'Civilta' and the tug 'Restless.' The libel alleges that the schooner was heading about northeast, having her booms on her port side, and making about two and a half or three knots an hour, and that 'the tug was towing the ship at the rate of about eight or nine knots an hour and headed for the schooner until she was very near to her, when she suddenly sheered to port across the bows of the schooner and just cleared her, but brought the ship down on the schooner.'

The answers both of the tug and the ship state that the course of the tug with the ship following in her wake was southwest and that of the schooner about northeast, which if kept would have carried her at a safe distance on the starboard side of the tug and ship; that the tug and ship kept steadily on their course, until the tug passed the schooner, when the schooner suddenly kept away to the right between the tug and the ship, ran on to the hawser, and was sunk. In this way was presented the principal issue of fact in the case.

The findings were substantially as follows: The tug was towing the ship from New Haven to New York by a hawser about two hundred and seventy feet long, leading astern from the tug. The ship had on board a pilot and the tug was subject to his orders. The night was clear and pleasant and lit by the moon. The wind was light and a little to the west of south. The ship and tug were going between seven and eight knots an hour. The collision occurred a little to the westward of Sand's Point.

The schooner was bound to Boston. She was sailing free with her booms off to port, and was making from two to three knots an hour. Her lights were properly set and burning brightly, as required by law. She had a competent man at her wheel and a competent lookout, and each of them faithfully performed his duty. Her course was about northeast, and it was not changed before the collision.

The ship and tug were seen by those on the schooner bearing a little on their port bow, and the schooner was seen by those on the ship and tug bearing a little on their starboard bow. The courses of the schooner and the ship and tug and the each other just ahead of the tug or between the tug and the ship. The tug did not slow her engine until the schooner had got up to her, and did not stop till the schooner was just striking the hawser. The tug did not change her course until the schooner was up to her or nearly so, and the tug and ship had changed their course about a point to the south before the collision.

The ship struck the schooner on her port side at about the fore-rigging and sunk her. The lights of the schooner were not observed by those on board the tug or those on board the ship, and those on board the tug and ship mistook the course of the schooner. The pilot on the ship gave no orders to the tug.

Upon these facts the court below gave a decree against both the ship and tug and apportioned the damages, one-half to each, with a provision that if either of the vessels should prove insufficient to pay its share the residue might be collected from the other.

The ship and the tug have taken separate appeals.

It was substantially conceded in the argument that upon the findings the schooner is entitled to recover her damages either from the ship or the tug. The effort of each of the respondents has been to throw on the other the entire responsibility for the loss. On the part of the tug, however, it was contended that the findings do not meet the issues raised by the pleadings, but in this we think counsel are in error. It is quite true the finding is that the courses the vessels were on crossed each other just ahead of the tug, or between the tug and the ship, when there is no express averment to that effect either in the libel or the answer, but the finding is certainly not inconsistent with anything that is alleged. A southwest course would be parallel with a northeast course, and the two could not cross; but in the libel it is averred that the schooner was heading about northeast. Such, also, is the statement in the answers, and the finding is the same. A course which varied even a little from northeast might cross one that was southwest. The libel charges the tug with suddenly sheering to port, while the tug and ship say the schooner suddenly kept away to the right. The finding is that the schooner did not change her course, and that the ship and tug only went off their course one opint to the south. Upon the findings courses crossed eac other with occurred because the original courses rossed each other with the vessels in dangerous proximity, and not because of a sudden change of course by the tug as alleged. This we think sufficient.

Upon the findings as they stand we think the decree below was right. The ship and the tug were in law one vessel, and that a vessel under steam. It was their duty, therefore, to keep out of the way. Whether the one vessel, which the two constituted for the purposes of the case, was the ship, or the tug, or both, is the important question.

The tug furnished the motive power for herself and the ship. Both vessels were under the general ordrs of the pilot on the ship, but it is expressly found as a fact that the tug actually received no orders from him. Being on the ship, which was two hundred and seventy feet astern of the tug, it is not to be presumed that he was to do more than direct the general course to be taken by the ship in getting to her place of destination. The details of the immediate navigation of the tug, with reference to approaching vessels, must necessarily have been left to a great extent to those on board of her. She was where she would ordinarily see an object ahead before those on the ship could, and having all the motive power of the combined vessels under her own control, she was in a situation to act promptly and do what was required under the circumstances. That this was expected is clearly shown by the fact that down to the time of the collision the pilot on the ship had found no occasion to direct her movements. Her own pilot or master seems to have managed the navigation satisfactorily. We do not entertain a doubt that, situated as the tug was, in the night, so far away from the ship, it was her duty to do what was required by the law of a vessel under steam, to keep herself and the ship out of the way of an approaching vessel, particularly if the pilot of the ship did not assume actual control for the time being of the navigation of the two vessels.

Such being the case, we think it clear both vessels were in fault. Both mistook the course of the schooner, and neither those on the ship nor those on the tug observed the lights on the schooner, although they were properly set and burning brightly. It was for this reason undoubtedly that neither those on the ship nor those on the tug took any steps in time to avoid the collision. They evidently thought the course they were on would take them by in safety, until it was too late. Both vessels were responsible for the navigation, as has alrendy been seen: the ship because her pilot was in general charge, and the tug because of the duty which rested on her to act upon her own responsibility in the situation in which she was placed. The tug was in fault because she did not on her own motion change her course so as to keep both herself and the ship out of the way; and the ship because her pilot, who was in charge both of ship and tug, neglected to give the necessary directions to the tug, when he saw or ought to have seen that no precautions were taken by the tug to avoid the approaching danger. Had either the ship or the tug done its duty under the circumstances, there could have been no collision.

The decree is in the form sanctioned by this court in The Alabama and the Gamecock, 92 U.S. 695.

Decree affirmed.


text: Talk:The Civilta and the Restless/Opinion of the Court


text:
Railroad Company v. United States (103 U.S. 703)

APPEAL from the Court of Claims.

The facts are stated in the opinion of the court.

Mr. John F. Farnsworth for the appellant.

The Solicitor-General, contra.

MR. JUSTICE MILLER delivered the opinion of the court.


text: Talk:Railroad Company v. United States (103 U.S. 703)


text:
Railroad Company v. United States (103 U.S. 703)/Opinion of the Court

The Philadelphia and Baltimore Central Railroad Company brought suit in the Court of Claims for the amount which it asserted to be due for carrying the mails between the city of Philadelphia and Chester, from July 1, 1873, until March 31, 1877, and recovered a judgment for what was claimed as to all the time mentioned except the period between July 1, 187, and December, 1875.

The service was rendered under a contract to carry by rail the mails from Philadelphia to Port Deposit, in the State of Maryland. Part of the road over which they were carried lies between Philadelphia and Chester, and it belonged to the Philadelphia, Wilmington, and Baltimore Railroad Company. This latter company also carried mails over its own road between these points and continuously to Baltimore.

After the passage of the act of March 3, 1873, c. 231, the Postmaster-General required all the mails carried over these routes to be weighed, and made repeated adjustments of the sums due to each company, and the amounts so found were paid, and received without objection or protest from July 1, 1873, to Dec. 4, 1875. At that date the claimant notified the Postmaster-General that he had not been paying it enough,-in fact, had only been paying it for the distance between Chester and Port Deposit. It turned out that the Philadelphia, Wilmington, and Baltimore Railroad Company had been receiving the compensation for all the mails carried over its road between Philadelphia and Chester, though the claimant had the contract for so much of them as went from Philadelphia to Port Deposit and intermediate points. The Postmaster-General insisted that he was right, and refused to pay the claimant, though the mails were still carried under the then existing contracts until March 31, 1877.

The Court of Claims found in favor of the claimant, and rendered judgment for the sum due after the notification and demand of Dec. 4, 1875, but held that the company was estopped by its acquiescence in the adjustments and the payments it had received without objection or protest, from July 1, 1873, to that period. The claimant appealed.

In this we think the Court of Claims was right. It must be held to have known on what basis of weight and distance these adjustments were made. They were made frequently, and the sums which, by those adjustments, were due to each company were paid monthly or quarterly.

If the claimant, during all this time, stood by contentedly and saw the money which it now claims paid to the other company, and received and receipted for the money paid it on that foundation, it would be inequitable to permit it now to recover, and thus make the government pay twice. For the time the mails were carried after this notice or assertion of the present claim it has recovered judgment, and the government has not appealed. For what it lost by its neglect in making claim on these settlements when receiving payment, it must submit to loss.

Judgment affirmed.


text: Talk:Railroad Company v. United States (103 U.S. 703)/Opinion of the Court


text:
District of Columbia v. Cluss

ERROR to the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Mr. Albert G. Riddle for the plaintiff in error.

Mr. Enoch Totten, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: District of Columbia v. Cluss


text: Talk:District of Columbia v. Cluss

title: Talk:District of Columbia v. Cluss


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

In 1870, the Board of Trustees of Colored Schools for the District of Columbia employed the plaintiff, who is an architect by profession, to prepare the plans and specifications for a school-house in Washington, and to superintend its construction, agreeing to give him for his services five per cent on the cost of the building. This was the ordinary rate of charge as compensation for similar services in the District. In 1872, the building was constructed, and cost about $66,000. The board of trustees approved of the work, and paid the plaintiff $1,100 in cash, and gave him a voucher for $2,155 more, being for the balance due, and also the sum of $255 for services in superintending repairs upon other buildings. This voucher the plaintiff sold and delivered to the Freedman's Savings and Trust Company, for whose benefit this action is brought.

The Board of Trustees of Colored Schools has since been abolished, and a new board organized to take charge of all the public schools, whether of white or colored children. But when the original board existd it was the agent of the District for the purposes intrusted to it, and could bind the District for the services rendered by the plaintiff. The building constructed, and the other buildings upon which the reparirs were made under his superintendence, belong to the District and are used by it for colored schools, yet the amount due him for which the voucher was given has never been paid. The jury were of opinion that the District should pay it, and we agree with them.

The disallowance of the claim by the board of audit, if such had been allowed to be proved, would not have concluded the plaintiff. That board was not a judicial body, whose action judicial body, whose action was final; it exercised little more than the functions of an accountant. A claim allowed by it was not necessarily a valid one; a claim disallowed was not, therefore, illegal. Its action either way left the matter open to contestation in the courts.

Though the contract of the plaintiff with the board of trustees was made before the act creating the District into one municipal corporation, the work was not completed until afterwards, when it was accepted and approved. The new corporation succeeded to the property of the two former ones, and also to their liabilities.

Judgment affirmed.


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


text:
School District v. Insurance Company (103 U.S. 707)

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

The facts are stated in the opinion of the court.

Mr. E. Estabrook, for the plaintiff in error.

Mr. Willard P. Hall, contra.

Mr. JUSTICE MILLER delivered the opinion of the court.


text: Talk:School District v. Insurance Company (103 U.S. 707)


text:
School District v. Insurance Company (103 U.S. 707)/Opinion of the Court

The defendant in error recovered a judgment in the Circuit Court of the United States for the District of Nebraska against the plaintiff in error for the sum of $2,554.70. The judges of the Circuit Court certified a difference of opinion on three questions of law arising in the case, only one of which is necessary to be considered here, namely: 'Whether the said act of the legislature of Nebraska, approved Feb. 2, 1875, recited in the bonds (the coupons of which are in suit), is in conflict with sect. 1 of art. 8 of the Constitution of the State, because the same is a special act conferring corporate powers; and also whether it is in conflict with sect. 19 of art. 2 of the Constitution of the State because it contains more than one subject.'

Indeed, we only propose to consider the first branch of this double question. Sect. 1, art. 8, of the Constitution of Nebraska of 1866-67 reads thus: 'The legislature shall pass no special act conferring corporate powers.'

The act of Feb. 2, 1875, is entitled 'An Act authorizing School District Number 56, of Richardson County, to issue bonds for the purpose of erecting a school building, procuring a site therefor, and for setting apart a fund to pay the same.'

It authorized the school board to issue bonds to the amount of $20,000, payable in ten or twenty years, with ten per cent per annum interest, for that purpose, and required a vote of a majority of the electors of the district before they could be issued. It forbade the sale of these bonds at less than eighty-five cents on the dollar. It also enacted that all the penalties and forfeitures thereafter imposed, for any breach of the ordinances of Falls City, and all money for licenses to sell or traffic in liquors, or any other commodity or license to transact other business, should be paid over to the board of trustees of the school district, as well as all fines imposed by the police judge of said city.

The bonds on which the judgment in this case was rendered were issued under this act, and it was so recited on their face. That this was a special act is not denied. Nor can it be controverted successfully that it confers corporate powers. The power to make a contract of this character, to collect the taxes necessary to pay the debt, to contract for and superintend and pay for the building, to receive the fund mentioned from the authorities of Falls City, are all in their nature corporate acts when performed by a body possessing corporate powers.

The statutes of Nebraska then in force declare that 'every duly organized school district shall be a body corporate, and possess all the usual powers of a corporation for public purposes,'. . . 'and may sue and be sued, purchase, hold, and sell such personal and real estate as the law allows.' The power conferred by the act of 1875 on School District No. 56 was conferred on a corporation, and was to be exercised by it as a corporation. It is, therefore, a corporate power, and was conferred, if at all, by a special act.

In response to this it is said that a school district is only a quasi corporation, and does not come within the constitutional provision. What is meant by the words 'quasi corporation,' as used in the authorities, is not always very clear. It is a phraso generally applied to a body which exercises certain functions of a corporate character, but which has not been created a corporation by any statute, general or special.

Such is not the case here, for the language of the Nebraska statute makes school districts corporations in the fullest sense of the word.

It is next argued that the constitutional provision was only intended to apply to private corporations, as distinguished from those which are part of the body politic, such as counties and towns.

But we see no warrant for this distinction.

There is certainly nothing in the words of the provision to suggest any such distinction or limitation. Nor do we see any reason why the local corporate bodies discharging public functions should not be governed by general and uniform laws as well as those for private enterprises. In fact, the weight of the argument seems to be the other way, for it can very well be seen that the aggregation of individual capital and energy into an associated organization may require different powers for each enterprise so established, while the powers to be exercised by cities, towns, townships, and school districts in the same State may or should be uniform in character all over the State. If any such rule is defensible at all, of which it is not our province to judge, its application to the latter class of corporations seems the more appropriate of the two.

The Constitution of the State of Ohio has a provision similar to that of the State of Nebraska relied on in this case. In the case of State v. Cincinnati (20 Ohio St. 18), the Supreme Court of that State held that in the purview of the constitutional provision there was no distinction between private and municipal corporations. To the same effect is the decision of the same court in Atkinson v. M. & C. Railroad Co., 15 id. 21. The Supreme Court of Nebraska, in Clegg v. School District (8 Neb. 178), held that the statute under which these bonds were issued was void, because forbidden by this clause of the State Constitution.

We are of opinion that this is a sound construction of the Constitution, and that, as to the first question certified to us, it must be answered that the act of Feb. 2, 1875, under which these bonds issued, is in conflict with the Constitution of the State, and is, therefore, void.

We are asked, however, to affirm the judgment because the bonds may be held valid under the powers conferred on school districts by the general statutes.

We are, however, of a different opinion. The general statute had other conditions for creating a debt than the special act mentioned on the face of these bonds. This statute provided a fund which might of itself be sufficient to pay the debt without resort to taxation. The vote of the electors might not have been obtained under the general statute. And as the bonds recite that they were issued under this act, and that the vote was taken under it, we cannot see that power purposed to be exercised under other and very different circumstances can be invoked to give validity to an act which is void by the authority under which it professed to be acting.

h ese views render it unnecessary to answer the other questions certified to us. The judgment of the Circuit Court will be reversed, and the case remanded to that court for further proceedings not inconsistent with this opinion.

So ordered.


text: Talk:School District v. Insurance Company (103 U.S. 707)/Opinion of the Court


text:
The Connecticut

APPEALS from the Circuit Court of the United States for the Eastern District of New York.

Mr. Cornelius Van Santvoord for the 'Connecticut.'

Mr. Abraham Van Santvoord for the 'S. A. Stevens.'

Mr. Welcome R. Beebe for the 'Othello.'

Mr. Henry T. Wring, contra.

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

title: The Connecticut


text: Talk:The Connecticut

title: Talk:The Connecticut


text:
The Connecticut/Opinion of the Court

The question in these appeals is, whether, on the facts found, the decree below was right. The facts in brief are as follows: 'About five o'clock in the morning of Wednesday, Aug. 18, 1875, the steamer 'Connecticut,' assisted by the tug 'S. A. Stevens,' having in tow by a hawser twenty-five boats, arranged in five tiers of five boats each, passed around the battery from the Hudson River to the East River in New York harbor, on her way to the piers at or near Coenties slip in East River. The entire length of the 'Connecticut' and her tow was about 1,050 feet. She passed between Diamond Reef and Governor's Island, taking the centre of the river and heading towards the Brooklyn shore. She kept this course until she reached a point about 1,500 feet above Diamond Reef, and about 100 feet above the drilling-machine on Coenties Reef. She then turned westwardly, across the river, and headed towards the Wall Street Ferry, on the New York shore. Her own engine was stopped when this change of course was made, but that of the 'Stevens' was kept at work. The tide was at the time young flood in the East River, but the last of the ebb in the Hudson River.

About the same time the 'Othello,' an ocean steamer, left her dock at Pier 44 East River, a mile and three-eighths above Diamond Reef, bound for Hull, England. After getting headed down the river, her pilot discovered the 'Connecticut' well on his port hand, and near Diamond Reef. The two vessels were then on courses which if kept would have carried them past each other port to port 300 feet apart. The 'Othello' was on the usual and proper course for steamers of her class going to sea, and running at half speed, or about four knots an hour. She was in charge of a licensed Sandy Hook pilot, who stood on the forward bridge.

When the 'Connecticut' changed her course and headed towards the New York shore, she gave no signal to the 'Othello,' but afterwards, when she was north of Coenties Reef, with her tow tailed its full length crosswise of the channel, and when the 'Othello' was at least one-fourth of a mile away, she did give two blasts of her whistle, indicating that she wished the Othello to go to starboard. At this time, owing to the position of the tow, headed across the river as it was, the 'Othello' could not pass in safety to starboard until the tow was got out of the way. Under these circumstances she kept on at half speed after the signal was given, until within an eighth of a mile of the tow. She then reversed her engine, but it was too late to stop her headway before she came in collision with and sunk the boat 'Sam. Morgan,' one of the tow of the 'Connecticut.' Had she given attention to the signal when sounded, and stopped her engine, no collision would have occurred.

The tug 'Stevens' was a mere helper, and subject to the orders of the 'Connecticut.' The owners of the 'Sam. Morgan' sued all three of the vessels for the loss, and upon the facts as above stated the Circuit Court gave judgment dismissing the libel as to the 'Stevens,' but holding both the 'Connecticut' and 'Othello' responsible, and dividing the loss between them. The 'Connecticut' was held in fault for not giving her signal at or before the time she changed her course, and the 'Othello' for not heeding the signal when it was given, or taking the necs sary precautions against a collision before. All parties have appealed; the libellants because the 'Stevens' was acquitted, and the 'Connecticut' and the 'Othello' each because they were respectively charged with any portion of the loss.

So far as the 'Stevens' is concerned, she was clearly not to blame. She was the mere servant of the 'Connecticut,' and could exercise no will of her own. She was bound to obey orders from the 'Connecticut,' and no part of the responsibility of the navigation, so far as the approaching vessel was concerned, was on her. It was not her duty to signal the movements of the 'Connecticut,' under whose exclusive control she was. The 'Connecticut' is alone responsible for the consequences of her own faults.

Without doubt the 'Connecticut' had the right to go to her landing place, and for that purpose we see no reason why she might not have taken the courses she did. But she was navigating in a crowded harbor with a cumbersome tow, and, do the best she could, her presence would necessarily be an embarrassment to other vessels passing through the channel in which she was. It was her duty as much to notice the movement of the 'Othello' above, as it was that of the 'Othello' to look out for her below. Safety under such circumstances requires all navigators to be watchful and prompt in taking every precaution against mistakes or oversights. From the way the 'Connecticut' was heading when the 'Othello' ought first to have seen her and for some time afterwards, the 'Othello' had the right to assume the vessels would pass in safety port to port. It was proper, therefore, for her to make her calculations accordingly and keep on at the speed she was going. This the 'Connecticut' should also have understood; and since to put herself and her long tow across the channel would necessarily involve a change of action by the 'Othello,' it was certainly her duty to give prompt and timely notice of her intention to execute such a manoeuvre. Had she done this, she might have called attention to her movements and placed the obligation of keeping out of the way on the 'Othello.' She did not, and a collision afterwards occurred which could have been avoided. Under such circumstances the law will charge her with contributing to the loss, unless she clearly shows the contrary. It is quite probable that if the 'Othello' had been on the watch and had noticed the change of course when it was begun, the collision might not have happened; but the very object of signals is to call attention to what is wanted and make sure there is no oversight. In navigating crowded harbors, while the attention of lookouts is called to one object of importance, another may pass unobserved. To avoid the consequences of accidents of this kind, a system of signals has been adopted and lawfully promulgated, which navigators are required to use when the circumstances are such as to make them necessary. To omit them is a fault, the consequences of which may fall on the delinquent party. Here, when the 'Othello' first saw the 'Connecticut,' she was apparently expected to pass to port. The circumstances of the 'Connecticut' were such as to mark it necessary for her to cross the bow of the 'Othello' while that vessel was coming down the river. She could not get by with her tow before the 'Othello' must come to where she or the tow was, unless something was done to prevent it. Clearly it was wrong to attempt such a movement without giving notice.

That the 'Othello' was in fault is equally clear. There was time after the signal was given and before the collision happened for her to have avoided it if she had acted promptly. If the change in the course of the 'Connecticut' had escaped her attention before, it was all the more important that she should be active then. Her pilot ought to have known that she could not pass in safety to starboard until the 'Connecticut' had time to get the tow out of her way. She should therefore have stopped or shaped her course to get ahead of the 'Connecticut,' if that could be done withs afety. She did neither until it was too late. Under these circumstances it was not wrong to charge her with one-half the loss occasioned by the mutual fault of herself and the 'Connecticut.'

Under all the circumstances we think it was right to divide the loss equally between the two defaulting vessels. The decree of the Circuit Court will be consequently affirmed, the costs of each appeal to be paid by the respective appellants; and it is

So ordered.

title: The Connecticut/Opinion of the Court


text: Talk:The Connecticut/Opinion of the Court


text:
Penniman's Case

ERROR to the Supreme Court of the State of Rhode Island.

The facts are stated in the opinion of the court.

Mr. Benjamin F. Thurston in support of the judgment below.

Mr. Harvey N. Shepard, contra.

MR. JUSTICE WOODS delivered the opinion of the court.

title: Penniman's Case


text: Talk:Penniman's Case

title: Talk:Penniman's Case


text:
Penniman's Case/Opinion of the Court

The General Statutes of Rhode Island, chap. 142, contain the following provisions:--

'SECT. 11. Every manufacturing corporation included within     the provisions of this chapter, shall file in the town      clerk's office of the town where the manufactory is      established, annually on or before the 15th day of February,      a certificate, signed by a majority of the directors, truly      stating the amount of its capital stock actually paid in; the      value, as last assessed for a town tax, of its real estate;      the balance of its personal assets, and the amount of its      debts.

'SECT. 12. If any of said companies shall fail to do so, all     the stockholders of said company shall be jointly and      severally liable for all the debts of the company then      existing, and for all that shall be contracted before such notice shall be given, unless such      company shall have been insolvent and assigned its property      in trust for the benefit of its creditors, in which case the      obligation to give notice by the filing of such certificate      shall cease.'

'SECT. 20. Whenever the stockholders of any manufacturing     company shall be liable, by the provisions of this chapter,      to pay the debts of such company, or any part thereof, their      persons and property may be taken therefor on any writ of      attachment or execution, issued against the company for such      debt, in the same manner as on writs and executions issued      against them for their individual debts.

'SECT. 21. The person to whom such officers or stockholders     may render themselves liable as aforesaid may, instead of the      proceedings aforementioned, have his remedy against said      officers or stockholders by bill in equity in the Supreme      Court.'

While these provisions of the statute law were in force, Tweedle recovered judgment against the American Steam and Gas-pipe Company, a manufacturing corporation created by the General Assembly of Rhode Island, and subject to the provisions above recited. Penniman was a stockholder in that corporation. The certificate required by sect. 11 had not been filed. He was, consequently, individually liable in person and property for the satisfaction of the judgment. Therefore, the sheriff, holding the execution issued on the judgment, and finding no goods and chattels of the corporation or of Penniman, arrested him and committed him to jail.

While he was in jail, under the commitment, the General Assembly of Rhode Island, on March 27, 1877, passed an act 'defining and limiting the mode of enforcing the liability of stockholders for the debts of corporations.' It was as follows:--

'SECT. 1. No person shall hereafter be imprisoned, or be     continued in prison, nor shall the property of any such      person be attached, upon an execution issued upon a judgment      obtained against a corporation of which such person is or was      a stockholder.

'SECT. 2. All proceedings to enforce the liability of a     stockholder for the debts of a corporation shall be either by      suit in equity, conducted according to the practice and      course of equity, or by an action of debt upon the judgment      obtained against such corporation; and in any such suit or action such stockholder      may contest the validity of the claim upon which the judgment      against such corporation was obtainedu pon any ground upon      which such corporation could have contested the same in the      action in which such judgment was recovered.

'SECT. 3. All acts and parts of acts inconsistent herewith     are hereby repealed.

'SECT. 4. This act shall take effect from and after the date     of the passage thereof.'

Penniman did not take or offer to take the poor-debtor's oath, on the taking of which he would have been entitled to discharge from imprisonment, but, while he was still in jail under the commitment, applied to the Supreme Court of the State for his release by virtue of the provisions of the act just recited.

His discharge was opposed by Tweedle, the committing creditor, on the ground that the first section of the act, by virtue and force of which he claimed to be discharged from imprisonment, was repugnant to and in violation of sect. 10, art. 1, of the Constitution of the United States, and was, therefore, null and void, because it impaired the obligation of the judgment upon which the commitment had been made, and of the contract on which the judgment was founded.

It was adjudged by the Supreme Court that the section was constitutional and valid, and that by virtue thereof Penniman was entitled to be discharged from further custody under the commitment. He was discharged accordingly.

This judgment of the Supreme Court is brought here on error for review.

It is only necessary to consider that part of sect. 1 of the act above recited which relieves a party from imprisonment upon the execution. Penniman invokes that provision and no other. He was merely relieved from imprisonment, and it is that and that only of which Tweedle complains. Statutes that are constitutional in part only will be upheld, so far as they are not in conflict with the Constitution, provided the allowed and the prohibited parts are severable. Packet Company v. Keokuk, 95 U.S. 80. So that if so much of the section under consideration as relieves a debtor from imprisonment for debt is constitutional and can be severed from the other parts of the enactment, the judgment of the Supreme Court of Rhode Island should be affirmed.

That part of the section which relates to the imprisonment of the debtor, and that which relates to the seizure of his property, are entirely distinct and independent, and either one can stand and be operative, though the other should be declared void. We may, then, in deciding this case, consider sect. 1 as if it read: 'No person shall hereafter be imprisoned, or be continued in prison,. . . upon an execution issued upon a judgment obtained against a corporation of which such person is or was a stockholder.'

The only question, therefore, which we are called on to decide is whether this provision, enacted after the recovery of the judgment against the corporation, by virtue of which the defendant in error was imprisoned, is a law which impairs the obligation of contracts.

In other words, Can a State legislature pass a law abolishing imprisonment for debt on contracts made or judgments rendered when imprisonment of the debtor was one of the remedies to which his creditor was by law entitled to resort?

This court has repeatedly and pointedly answered this question in the affirmative, holding such an enactment not to impair the obligation of the contract.

In Sturges v. Crowninshield (4 Wheat. 122) this court, speaking by Mr. Chief Justice Marshall, said: 'The distinction between the obligation of a contract and the remedy given by the legislature to enforce that obligation, has been taken at the bar and exists in the nature of things. Without impairing the obligation of the contract the remedy may certainly be modified, as the wisdom of the nation shall direct. Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it. But the State may refuse to inflict this punishment, or may withhold this means and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair its obligation.'

The precise question raised in this case came before this court in Mason v. Haile, 12 id. 370. The case was an action of debt, brought in the Circuit Court of Rhode Island, upon two several bonds given by Haile to the plaintiff Mason and one Bates, whom the plaintiff survived; one of which was executed on the 14th and the other on the 29th of March, 1814.

The condition of both bonds was the same, and was as follows: -

'The condition of the above obligation is such that if the above-bounden Nathan Haile, now a prisoner in this State's jail in Providence, within the county of Providence, at the suit of Mason and Bates, do, and shall from henceforth continue to be, a true prisoner in the custody, guard, and safekeeping of Andrew Waterman, keeper of said prison, and in the custody, guard, and safekeeping of his deputy, officers, and servants, or some one of them, within the limits of said prison, until he shall be lawfully discharged, without committing any manner of escape or escapes during the time of restraint, then this obligation to be void, or else to remain in full force and virtue.'

To the declaration upon these bonds the defendant pleaded, in substance, that in June, 1814, after giving the bonds, he presented a petition to the legislature of Rhode Island, praying for relief and the benefit of an act passed in June, 1756, entitled 'An Act for the relief of insolvent debtors.' That in February, 1816, the legislature, upon due hearing, granted the prayer of his petition and passed the following resolution:--

'On petition of Nathan Haile, of Foster, praying for the relief therein stated, that the benefit of an act passed in June, 1756, for the relief of insolvent debtors, may be extended to him. Voted, that the prayer of the petition be, and the same is, hereby granted.'

That the defendant afterwards, in pursuance of said resolution and of the laws of the State, received, in due form, from the proper court, a judgment that 'he should be, and was thereby, fully discharged from all the debts, duties, contracts, and demands,. . . and from all imprisonment, arrest, and restraint of his person therefor.'

To this plea a demurrer was filed, and the judges of the Circuit Court being divided in opinion as to the sufficiency of the plea, the question was certified to this court for final decision.

The case was argued by Mr. Webster for the plaintiff. He urged that the act of February, 1816, liberating the person of defendant from imprisonment and reviving in his favor an obsolete insolvent act of the colonial legislature passed in 1756, and no longer in force, was in the strictest sense a law impairing the obligation of contracts; that it interfered with an actually vested right of the creditor acquired under existing laws and entitling him to a particular remedy against the person of his debtor; that upon the narrowest construction which had ever been given to the prohibition in the Constitution of the United States it impaired the obligation of the bonds; that the obligation of these bonds was entirely destroyed by the act, which was not a general law, but a private act professedly intended for the relief of the party in the particular case.

But this court held the plea good, and the resolution of the legislature of Rhode Island by which the defendant was discharged from imprisonment a valid and constitutional enactment.

The court said: 'Can it be doubted but the legislatures of the States, so far as relates to their own process, have a right to abolish imprisonment for debt altogether, and that such law might extend to present as well as future imprisonment? We are not aware that such a power in the States has ever been questioned. And if such a general law would be valid under the Constitution of the United States, where is the prohibition to be found that denies to the State of Rhode Island the right of applying the same remedy to individual cases. . . . Such laws merely act on the remedy, and that in part only. They o not take away the entire remedy, but only so far as imprisonment forms a part of such remedy. The doctrine of this court in the case of Sturges v. Crowninshield (4 Wheat. 200) applies with full force to the present case.'

Mr. Justice Washington dissented from the opinion in the case, but concurred in so much as related to the discharge of the defendant from imprisonment. He remarked: 'It was stated in Sturges v. Crowninshield that imprisonment of the debtor forms no part of the contract, and, consequently, that a law which discharges his person from imprisonment does not impair its obligation. This I admit, and the principle was strictly applicable to a contract for money. . . . I admit the rights of a State to put an end to imprisonment for debt altogether.'

So in Beers v. Haughton (9 Pet. 329), this court said: 'There is no doubt that the legislature of Ohio possessed full constitutional authority to pass laws whereby insolvent debtors should be released or protected from arrest or imprisonment of their persons on any action for any debt or demand due by them. The right to imprison constitutes no part of the contract, and the discharge of the person of the party from imprisonment does not impair the obligation of the contract, but leaves it in full force against his property and effects.' p. 359. See also Von Hoffman v. City of Quincy, 4 Wall. 535, and Tennessee v. Sneed, 96 U.S. 69.

The general doctrine of this court on this subject may be thus stated: In modes of proceeding and forms to enforce the contract the legislature has the control, and may enlarge, limit, or alter them, provided it does not deny a remedy or so embarrass it with conditions or restrictions as seriously to impair the value of the right. Bronson v. Kinzie, 1 How. 311; Von Hoffman v. City of Quincy, supra; Tennessee v. Sneed, supra.

The result of the decisions of this court above quoted is that the abolition of imprisonment for debt is not of itself such a change in the remedy as impairs the obligation of the contract.

Judgment affirmed.

title: Penniman's Case/Opinion of the Court


text: Talk:Penniman's Case/Opinion of the Court


text:
Steamship Company v. United States

APPEALS from the Court of Claims.

The facts are stated in the opinion of the court.

The Solicitor-General and Mr. Edwin B. Smith, Assistant Attorney-General, for the United States.

Mr. John F. Farnsworth, Mr. William E. Chandler, Mr. Philip Phillips, Mr. Roscoe Conkling, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Steamship Company v. United States


text: Talk:Steamship Company v. United States

title: Talk:Steamship Company v. United States