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Pennsylvania v. Wheeling and Belmont Bridge Company (59 U.S. 421)/Opinion of the Court

The preceding order having been filed in the office of the clerk of the supreme court on the 27th day of June, a writ of injunction, with a certified copy of the decree of the supreme court, entered at May term, 1852, annexed thereto, was issued and delivered to the marshal of the District of Columbia, as follows:

THE UNITED STATES OF AMERICA.

In the Supreme Court of the United States, ss.

The President of the United States of America, to the Wheeling and Belmont Bridge Company, its president, managers, officers, engineers, agents, contractors, and servants, and to each and every of them, and to all persons whomsoever, greeting:

Whereas, the State of Pennsylvania hath made application before the Honorable R. C. Grier, one of the justices of the supreme court of the United States, for an injunction as prayed for in her bill of complaint exhibited before said justice, and filed in the supreme court of the United States:

And whereas, upon hearing of said application, the following order was made:--

[In the injunction, the preceding order was recited.]

We, therefore, having regard to the matter aforesaid, do strictly enjoin and command the said Wheeling and Belmont Bridge Company, its president, managers, officers, engineers, agents, contractors, and servants, and all persons acting by their instigation, authority, advice, procurement, or otherwise, to observe and obey the aforesaid order and injunction.

Hereof fail not, under the full penalty of the law thence ensuing.

Witness the Honorable Roger B. Taney, chief justice of the supreme court of the United States, this 28th day of June, A. D. 1854.

Attest, WM. THOMAS Clerk of the Supreme Court of the United States.

The writs of injunction being served upon the company by leaving a copy at its office and with its president and secretary, and also upon the managers of the company, they proceeded to erect the bridge notwithstanding the injunction, and it was completed in November.

At December term, 1854, the complainant, by her counsel, having given previous notice to the company, filed a motion for a sequestration against the company, for a contempt of court in disobeying the injunction, and a motion for an attachment against the officers personally for their contempt in disobeying the injunction. The motions were as follows:--

And now, to wit, at the December term, 1854, comes the State of Pennsylvania, by her attorney-general, and moves the court to order and direct a writ to be issued against the Wheeling and Belmont Bridge Company, to sequestrate its estate, real, personal, and mixed, and the rents, issues, and profits thereof, its privileges and franchises, goods, chattels, rights, credits, moneys, and effects, for a contempt of court, by breach of and disobedience to the lawful writ, process, orders, decree, and commands of the supreme court of the United States.

The breaches and disobedience to said writ, process, orders, decree, and commands aforesaid, are stated and charged specifically as follows:--

1. That after service upon the Wheeling and Belmont Bridge Company, by the marshal of the District of Columbia, of a copy of a writ of injunction issued out of said court, pursuant to an order of allowance made on the 26th day of June, 1854, by the Honorable R. C. Grier, one of the judges of the said supreme court, the said company have disobeyed said writ of injunction, and are engaged in doing and performing acts, and have caused and procured acts to be done, in disobedience of said injunction and of the process and authority of said court.

2. That after service upon said company by the marshal aforesaid, of a copy of the decree entered by said supreme court at the adjourned term of May, 1852, in the case of The State of Pennsylvania v. The Wheeling and Belmont Bridge Company and others, said company have disobeyed said decree.

3. That since the service of the writ of injunction and decree as aforesaid upon said company, said company have stretched, suspended, and placed, and caused and procured to be stretched, suspended, and placed, iron cables, ropes, wires, or chains, over and across the eastern channel of the Ohio River, between Zane's Island and the main Virginia shore, at Wheeling, in disobedience of said injunction; and have erected and constructed, and are engaged in creating and constructing, and in causing and procuring to be erected and constructed, a bridge over and across the said channel, at a less elevation than is prescribed by the said decree of the supreme court of the United States, entered as aforesaid, at the adjourned term of May, 1852, and in disobedience of said writ of injunction; and have kept and maintained, and are keeping and maintaining, cables, wires, chains, timbers, and planks suspended in, over, and across the said channel, at a less elevation than is prescribed by the decree aforesaid.

4. That since the service of said writ and decree as aforesaid, the said company have obstructed the free navigation of the said channel of the Ohio River, and have caused and procured the same to be obstructed, and are now keeping the same obstructed, in breach and disobedience of said writ of injunction and decree.

F. W. HUGHES, Attorney-General of Pennsylvania.

And now, to wit, at the December term, 1854, comes the State of Pennsylvania, by her attorney-general, and moves the court for an order that Charles Ellet, Jr., James Baker, and E. H. Fitzhugh stand committed to the jail of the District of Columbia, for a contempt of court, by breach of and disobedience to the lawful writ, process, order, decree, and commands of the supreme court of the United States.

[The breaches set out were the same as above.]

A motion for a writ of assistance to execute the decree of this court made in May, 1852, was also filed, praying the court to order and direct such a writ to the marshal of the District of Columbia.

A motion was also made for an award of execution for the costs decreed in May, 1852.

The defendants appeared by their counsel, and resisted the foregoing motions under the 6th and 7th sections of the act of congress, (10 Stat. at Large, 112,) entitled.

'An act making appropriations for the service of The Post-Office Department during the fiscal year ending the thirtieth of June, one thousand eight hundred and fifty-three, and for other purposes.

SEC. 6. And be it further enacted, that the bridges across the Ohio River at Wheeling, in the State of Virginia, and at Bridgeport, in the State of Ohio, abutting on Zane's Island, in said river, are hereby declared to be lawful structures, in their present position and elevation, and shall be so held and taken to be, any thing in any law or laws of the United States to the contrary notwithstanding.

SEC. 7. And be it further enacted, that the said bridges are declared to be and are established post-roads for the passage of the mails of the United States, and that the Wheeling and Belmont Bridge Company are authorized to have and maintain their said bridges at their present site and elevation, and the officers and crews of all vessels and boats navigating said river, are required to regulate the use of their said vessels and boats, and of any pipes or chimneys belonging thereto, so as not to interfere with the elevation and construction of said bridges.

The defendants also moved to dissolve the injunction granted by Mr. Justice Grier.

At December term, 1854, these several motions came on to be heard, and were argued by Mr. Edwin M. Stanton, for the State of Pennsylvania and by Mr. Johnson and Mr. Charles M. Russell, for the defendants.

Mr. Stanton, for the complainant, made the following points, viz:--

1. That at the date of the passage of the act of congress legalizing the Wheeling Bridge, the State of Pennsylvania had by the judgment of the supreme court of the United States, 'a just and legal right to have the navigation of the Ohio River made free by the removal of the bridge, or by its alteration,' in conformity with the decree entered in May, 1852.

2. That this right is not taken away by congress declaring the bridge to be a 'lawful structure,' because congress has no judicial authority to review or reverse the judgment of the supreme court, and such declaration is not within the scope of the legislative authority of congress.

3. It is not taken away by the bridge being 'established as a post-road,' because under the power to establish post-roads, congress has no authority to construct or maintain a road within a State to the injury of private property or individual right.

4. It is not taken away by the requirements of the act imposing on vessels the duty 'not to interfere with the construction and elevation of the bridge,' because those requirements are imposed for an object not intrusted to the general government, nor in execution of its commercial power; and they operate to tax the exports of a State, and give a preference by a regulation of commerce to the ports of one State, over the ports of another.

5. It could not be taken away by any power of congress without just compensation, and none is rendered.

6. It was the duty of the defendants to obey the command of the court, by removing or altering their bridge as required by the decree; and for their disobedience, they are in contempt, and they are in further contempt by rebuilding the bridge in defiance of the decree, and of the injunction issued on the 27th of June, 1854, and should be dealt with accordingly by sequestration and attachment.

7. The decree of the court remains now in force, and the complainant is entitled to have it executed by writ of assistance and to have process to compel the payment of the costs awarded by the decree.

The counsel for the defendants made the following points, viz:

I. On the motion to dissolve the injunction.

1. The injunction was awarded without 'reasonable notice of the time and place' of the application. Act of March 2, 1793, § 5.

2. It was awarded by a judge of a different circuit from that in which it was to operate. Laws U.S.Courts, p. 34, note.

3. It was awarded without requiring bond and security to indemnify the defendant.

4. It was awarded on a bill filed either to carry on the proceedings in a pending suit, or to carry into effect a decree made in a former suit; and this bill does not lie, nor is it in proper form for either purpose. Story's Eq. Plead. § 352, 429; Adams v. Dowdings, 2 Madd, 53.

5. Congress has legalized the Wheeling Bridge; act of August 31, 1852; and had constitutional power to legalize it. See the opinions formerly delivered in the Wheeling Bridge case. The act may be sustained under the power to regulate commerce; Gibbons v. Ogden, 9 Wheat. 1; United States v. Coombs, 12 Pet. 72, (op. 78); or under the power to established postroads; or under both powers. And this, notwithstanding the compact between Virginia and Kentucky; Pollard's Lessee v. Hagam, 3 How. 212, (op. 229, 230;) The Society for propagating the Gospel v. Wheeler, 2 Gallis, C. C. R. 138; Evans v. Easton, 1 Pet. C. C. R. 322. But that compact does not apply.

6. A motion was offered to make absolute the decree in said bill mentioned, and was dismissed by this court for want of prosecution on the 15th day of December, 1853.

II. Against the motion for the writ of assistance.

The same authorities as above and hereafter cited.

III. Against motions for attachment and sequestration.

1. The evidence offered, does not show that the parties have been guilty of contempt.

2. The injunction was, and is a nullity, because awarded without notice, without requiring bond, and by a judge having no jurisdiction.

3. The injunction was not regularly issued, or served by proper officers.

4. The injunction did not point out the duties it required of the defendants with adequate certainty. In effect it commanded the defendants to observe the requirements of a decree which 'required' nothing such as the order of injunction vaguely seemed to assume that it did acquire. That decree was on its face interlocutory and left open the questions which the injunction may assume to have been decided. Birchett v. Bollings, 5 Munf. 442.

5. The court has no power to inflict summary punishment for disobedience to any mere order of a judge at chambers. Such disobedience can only be punished, if at all, by indictment. Act of 1831, c. 99, 4 Stats. at Large, 487.

M. Justice NELSON delivered the opinion of the court.

The motion in this case is founded upon a bill filed to carry into execution a decree of the court, rendered against the defendants at the adjourned term in May, 1852, which decree declared the bridge erected by them across the Ohio River, between Wheeling and Zane's Island, to be an obstruction of the free navigation of the said river, and thereby occasioned a special damage to the plaintiff, for which there was not an adequate remedy at law, and directed that the obstruction be removed, either by elevating the bridge to a height designated, or by abatement.

Since the rendition of this decree, and on the 31st August, 1852, an act of congress has been passed as follows: 'That the bridges across the Ohio River at Wheeling, in the State of Virginia, and at Bridgeport, in the State of Ohio, abutting on Zane's Island, in said river, are hereby declared to be lawful structures in their present positions and elevations, and shall be so held and taken to be any thing in the law or laws of the United States to the contrary notwithstanding.

And further: 'That the said bridges be declared to be and are established post-roads for the passage of the mails of the United States, and that the Wheeling and Belmont Bridge Company are authorized to have and maintain their bridges at their present site and elevation; and the officers and crews of all vessels and boats navigating said river are required to regulate the use of their said vessels, and of any pipes or chimneys belonging thereto, so as not to interfere with the elevation and construction of said bridges.'

The defendants rely upon this act of congress as furnishing authority for the continuance of the bridge as constructed, and as superseding the effect and operation of the decree of the court previously rendered, declaring it an obstruction to the navigation.

On the part of the plaintiff, it is insisted that the act is unconstitutional and void, which raises the principal question in the case.

In order to a proper understanding of this question it is material to recur to the ground and principles upon which the majority of the court proceeded in rendering the decree now sought to be enforced.

The bridge had been constructed under an act of the legislature of the State of Virginia; and it was admitted that act conferred full authority upon the defendants for the erection, subject only to the power of congress in the regulation of commerce. It was claimed, however, that congress had acted upon the subject and had regulated the navigation of the Ohio River, and had thereby secured to the public, by virtue of its authority, the free and unobstructed use of the same; and that the erection of the bridge, so far as it interfered with the enjoyment of this use, was inconsistent with and in violation of the acts of congress, and destructive of the right derived under them; and that, to the extent of this interference with the free navigation of the river, the act of the legislature of Virginia afforded no authority or justification. It was in conflict with the acts of congress, which were the paramount law.

This being the view of the case taken by a majority of the court, they found no difficulty in arriving at the conclusion, that the obstruction of the navigation of the river, by the bridge, was a violation of the right secured to the public by the constitution and laws of congress, nor in applying the appropriate remedy in behalf of the plaintiff. The ground and principles upon which the court proceeded will be found reported in 13 How. 518.

Since, however, the rendition of this decree, the acts of congress, already referred to, have been passed, by which the bridge is made a post-road for the passage of the mails of the United States, and the defendants are authorized to have and maintain it at its present site and elevation, and requiring all persons navigating the river to regulate such navigation so as not to interfere with it.

So far, therefore, as this bridge created an obstruction to the free navigation of the river, in view of the previous acts of congress, they are to be regarded as modified by this subsequent legislation; and, although it still may be an obstruction in fact, is not so in the contemplation of law. We have already said, and the principle is undoubted, that the act of the legislature of Virginia conferred full authority to erect and maintain the bridge, subject to the exercise of the power of congress to regulate the navigation of the river. That body having in the exercise of this power, regulated the navigation consistent with its preservation and continuation, the authority to maintain it would seem to be complete. That authority combines the concurrent powers of both governments, state and federal, which, if not sufficient, certainly none can be found in our system of government.

We do not enter upon the question, whether or not congress possess the power, under the authority in the constitution, 'to establish post-offices and post-roads,' to legalize this bridge; for, conceding that no such powers can be derived from this clause, it must be admitted that it is, at least, necessarily included in the power conferred to regulate commerce among the several States. The regulation of commerce includes intercourse and navigation, and, of course, the power to determine what shall or shall not be deemed in judgment of law an obstruction to navigation; and that power, as we have seen, has been exercised consistent with the continuance of the bridge.

But it is urged, that the act of congress cannot have the effect and operation to annul the judgment of the court already rendered, or the rights determined thereby in favor of the plaintiff. This, as a general proposition, is certainly not to be denied, especially as it respects adjudication upon the private rights of parties. When they have passed into judgment the right becomes absolute, and it is the duty of the court to enforce it.

The case before us, however, is distinguishable from this class of cases, so far as it respects that portion of the decree directing the abatement of the bridge. Its interference with the free navigation of the river constituted an obstruction of a public right secured by acts of congress.

But, although this right of navigation be a public right common to all, yet, a private party sustaining special damage by the obstruction may, as has been held in this case, maintain an action at law against the party creating it, to recover his damages; or, to prevent irreparable injury, file a bill in chancery for the purpose of removing the obstruction. In both cases, the private right to damages, or to the removal, arises out of the unlawful interference with the enjoyment of the public right, which, as we have seen, is under the regulation of congress. Now, we agree, if the remedy in this case had been an action at law, and a judgment rendered in favor of the plaintiff for damages, the right to these would have passed beyond the reach of the power of congress. It would have depended, not upon the public right of the free navigation of the river, but upon the judgment of the court. The decree before us, so far as it respect the costs adjudged, stands upon the same principles, and is unaffected by the subsequent law. But that part of the decree, directing the abatement of the obstruction, is executory, a continuing decree, which requires not only the removal of the bridge, but enjoins the defendants against any reconstruction or continuance. Now, whether it is a future existing or continuing obstruction depends upon the question whether or not it interferes with the right of navigation. If, in the mean time, since the decree, this right has been modified by the competent authority, so that the bridge is no longer an unlawful obstruction, it is quite plain the decree of the court cannot be enforced. There is no longer any interference with the enjoyment of the public right inconsistent with law, no more than there would be where the plaintiff himself had consented to it, after the rendition of the decree. Suppose the decree had been executed, and after that the passage of the law in question, can it be doubted but that the defendants would have had a right to reconstruct it? And is it not equally clear that the right to maintain it, if not abated, existed from the moment of the enactment?

A class of cases that have frequently occurred in the state courts contain principles analogous to those involved in the present case. The purely internal streams of a State which are navigable belong to the riparian owners to the thread of the stream, and, as such, they have a right to use the waters and bed beneath, for their own private emolument, subject only to the public right of navigation. They may construct wharves or dams or canals for the purpose of subjecting the stream to the various uses to which it may be applied, subject to this public easement. But, if these structures materially interfere with the public right, the obstruction may be removed or abated as a public nuisance.

In respect to these purely internal streams of a State, the public right of navigation is exclusively under the control and regulation of the state legislature; and in cases where these erections or obstructions to the navigation are constructed under a law of the State, or sanctioned by legislative authority, they are neither a public nuisance subject to abatement, nor is the individual who may have sustained special damage from their interference with the public use entitled to any remedy for his loss. So far as the public use of the stream is concerned, the legislature having the power to control and regulate it, the statute authorizing the structure, though it may be a real impediment to the navigation, makes it lawful. 5 Wend. 448, 449; 15 Ib. 113; 17 T. R. 195; 20 Ib. 90, 101; 5 Cow. 165.

It is also urged that this act of congress is void, for the reason that it is inconsistent with the compact between the States of Virginia and Kentucky, at the time of the admission of the latter into the Union, by which it was agreed, 'that the use and navigation of the River Ohio, so far as the territory of the proposed, or the territory that shall remain within the limits of this commonwealth, lies thereon, shall be free and common to the citizens of the United States,' and which compact was assented to by congress at the time of the admission of the State.

This court held, in the case of Green et al. v. Biddle, 2 Wheat. 1, that an act of the legislature of Kentucky in contravention of the compact was null and void, within the provision of the constitution forbidding a State to pass any law impairing the obligation of contracts. But that is not the question here. The question here is, whether or not the compact can operate as a restriction upon the power of congress under the constitution to regulate commerce among the several States? Clearly not. Otherwise congress and two States would possess the power to modify and alter the constitution itself.

This is plain that it is unnecessary to pursue the argument further. But we may refer to the case of Wilson v. Mason, 1 Cranch, 88, 92, where it was held that this compact, which stipulated that rights acquired under the commonwealth of Virginia shall be decided according to the then existing laws, could not deprive congress of the power to regulate the appellate jurisdiction of this court, and prevent a review where none was given in the state law existing at the time of the compact. Again, it is insisted that the act of congress is void, as being inconsistent with the clause in the ninth section of article first of the constitution, which declares that 'no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another.'

It is urged that the interruption of the navigation of the steamboats engaged in commerce and conveyance of passengers upon the Ohio River at Wheeling from the erection of the bridge, and the delay and expense arising therefrom, virtually operate to give a preference to this port over that of Pittsburg; that the vessels to and from Pittsburg navigating the Ohio and Mississippi rivers are not only subjected to this delay and expense in the course of the voyage, but that the obstruction will necessarily have the effect to stop the trade and business at Wheeling, or divert the same in some other direction or channel of commerce. Conceding all this to be true, a majority of the court are of opinion that the act of congress is not inconsistent with the clause of the constitution referred to-in other words, that is not giving a preference to the ports of one State over those of another, within the true meaning of that provision. There are many acts of congress passed in the exercise of this power to regulate commerce, providing for a special advantage to the port or ports of one State, and which very advantage may incidentally operate to the prejudice of the ports in a neighboring State, which have never been supposed to conflict with this limitation upon its power. The improvement of rivers and harbors, the erection of light-houses, and other facilities of commerce, may be referred to as examples. It will not do to say that the exercise of an admitted power of congress conferred by the constitution is to be withheld, if it appears, or can be shown, that the effect and operation of the law may incidentally extend beyond the limitation of the power. Upon any such interpretation, the principal object of the framers of the instrument in conferring the power would be sacrificed to the subordinate consequences resulting from its exercise. These consequences and incidents are very proper considerations to be urged upon congress for the purpose of dissuading that body from its exercise, but afford no ground for denying the power itself, or the right to exercise it.

The court are also of opinion that, according to the true exposition of this prohibition upon the power of congress, the law in question cannot be regarded as in conflict with it.

The propositions originally introduced into the convention, from which this clause in the constitution was derived, declared that congress shall not have power to compel vessels belonging to citizens or foreigners to enter or pay duties or imposts in any other State than that to which they were bound, nor to clear from any other than that in which their cargoes were laden. Nor shall any privilege or immunity be granted to any vessels on entering or clearing out, or paying duties or imposts, in one State in preference to another. Also, that congress shall not have power to fix or establish the particular ports for collecting the duties or imposts in any State, unless the State should neglect to fix them upon notice. I give merely the substance of the several propositions.

Luther Martin, in his letter to the legislature of Maryland, says that these propositions were introduced into the convention by the Maryland delegation; and that without them, he observes, it would have been in the power of congress to compel ships sailing in or out of the Chesapeake to clear or enter at Norfolk, or some port in Virginia-a regulation that would be injurious to the commerce of Maryland. It appears also, from the reports of the convention, that several of the delegates from that State expressed apprehensions that under the power to regulate commerce congress might favor ports of particular States, by requiring vessels destined to other States to enter and clear at the ports of the favored ones, as a vessel bound for Baltimore to enter and clear at Norfolk.

These several propositions finally took the form of the clause in question, namely: 'No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter or clear or pay duties in another.' 1 Elliot's Deb. 266, 270, 279, 280, 311, 375; 5 Ib. 478, 483, 502, 545.

The power to establish their ports of entry and clearance by the States was given up, and left to congress. But the rights of the States were secured, by the exemption of vessels from the necessity of entering or paying duties in the ports of any State other than that to which they were bound, or to obtain a clearance from any port other than at the home port, or that from which they sailed. And, also, by the provision that no preference should be given, by any regulation of commerce or revenue, to the ports of one State over those of another. So far as the regulation of revenue is concerned, the prohibition in the clause does not seem to have been very important, as, in a previous section, (8,) it was declared, that 'all duties, imposts, and excises, shall be uniform throughout the United States;' and, as to a preference by a regulation of commerce, the history of the provision, as well as its language, looks to a prohibition against granting privileges or immunities to vessels entering or clearing from the ports of one State over those of another. That these privileges and immunities, whatever they may be in the judgment of congress, shall be common and equal in all the ports of the several States. Thus much is undoubtedly embraced in the prohibition; and it may, certainly, also embrace any other description of legislation looking to a direct privilege or preference of the ports of any particular State over those of another. Indeed, the clause, in terms, seems to import a prohibition against some positive legislation by congress to this effect, and not against any incidental advantages that might possibly result from the legislation of congress upon other subjects connected with commerce, and confessedly within its power.

Besides, it is a mistake to assume that congress is forbidden to give a preference to a port in one State over a port in another. Such preference is given in every instance where it makes a port in one State a port of entry, and refuses to make another port in another State a port of entry. No greater preference, in one sense, can be more directly given than in this way; and yet, the power of congress to give such preference has never been questioned. Nor can it be without asserting that the moment congress makes a port in one State a port of entry, it is bound, at the same time, to make all other ports in all other States ports of entry. The truth seems to be, that what is forbidden is, not discrimination between individual ports within the same or different States, but discrimination between States; and if so, in order to bring this case within the prohibition, it is necessary to show, not merely discrimination between Pittsburg and Wheeling, but discrimination between the ports of Virginia and those of Pennsylvania.

Upon the whole, without pursuing the examination further, our conclusion is, that, so far as respects that portion of the decree which directs the alteration or abatement of the bridge, it cannot be carried into execution since the act of congress which regulates the navigation of the Ohio River, consistent with the existence and continuance of the bridge; and that this part of the motion, in behalf of the plaintiff, must be denied. But that, so far as respects that portion of the decree which directs the costs to be paid by the defendants, the motion must be granted.

A motion has also been made, on behalf of the plaintiff, for attachments against the president of the Bridge Company and others, for disobedience of an injunction issued by Mr. Justice Grier, in vacation, on the 27th June, 1854.

It appears that since the rendition of the decree of this court and the passage of the act of congress, and before any proceedings taken to enforce the execution of the decree, notwithstanding this act, the bridge was broken down, in a gale of wind, leaving only some of the cables suspended from the towers across the river. Upon the happening of this event, a bill was filed by the plaintiff, and an application for the injunction above mentioned was made, which was granted, enjoining the defendants, their officers and agents, against a reconstruction of the bridge, unless in conformity with the requirements of the previous decree in the case. The object of the injunction was to suspend the work, together with the great expenses attending it, until the determination of the question by this court as to the force and effect of the act of congress, in respect to the execution of the decree. The defendants did not appear upon the notice given of the motion for the injunction, and it was, consequently, granted without opposition.

After the writ was served, it was disobeyed, the defendants proceeding in the reconstruction of the bridge, which they had already begun before the issuing or service of the process.

A motion is now made for attachments against the persons mentioned for this disobedience and contempt.

A majority of the court are of opinion, inasmuch as we have arrived at the conclusion that the act of congress afforded full authority to the defendants to reconstruct the bridge, and the decree directing its alteration or abatement could not, therefore, be carried into execution after the enactment of this law, and inasmuch as the granting of an attachment for the disobedience is a question resting in the discretion of the court, that, under all the circumstances of the case, the motion should be denied.

Some of the judges also entertain doubts as to the regularity of the proceedings in pursuance of which the injunction was issued.

Mr. Justice WAYNE, Mr. Justice GRIER, and Mr. Justice CURTIS, are of opinion that, upon the case presented, the attachment for contempt should issue, and in which opinion I concur.

The motion for the attachment is denied, and the injunction dissolved.

Mr. Justice GRIER.

I concur with the majority of this court, that in cases where this court has original jurisdiction, an interlocutory or preliminary injunction may be awarded, in vacation, by any judge of the court. I differ with the majority in declining to punish a wanton contempt of the process of the court.

I concur with my brother McLean, that congress cannot annul or vacate any decree of this court; that the assumption of such a power is without precedent, and, as a precedent for the future, it is of dangerous example.

Mr. Justice WAYNE.

I concur with Mr. Justices Nelson, Grier, and Curtis, in thinking that the attachment for contempt should have been granted by this court.

I concur with the majority of the court in the view taken by them of the liability of the defendants for the costs of this suit.

I dissent from the majority of the court in the opinion given, that the 6th and 7th sections of the act of the 31st August, 1852, (10 Stats. at Large, 112,) relieve the defendants from the operation of the judgment of this court in behalf of the plaintiff. That judgment was for the abatement of a nuisance of which the plaintiff complained. This court decided it was a nuisance, causing injury and great pecuniary loss, inasmuch as it prevented the State of Pennsylvania from navigating the Ohio River at all stages of its waters, to the uninterrupted navigation of which they had a right under the constitution of the United States. I know of no power in congress to interfere with such a judgment, under the pretence of a power to legalize the structure of bridges over the public navigable rivers of the United States, either within the States, or dividing States from each other, or under the commercial power of congress to regulate commerce among the States. Nor does the power of congress to establish post-offices and post-roads give any power to congress to do more between the States, or within the States, than to declare the routes for carrying the mails upon roads already existing, and to designate the localities upon those roads where post-offices shall be kept for the delivery and transmission of letters, and other things or parcels which congress may declare to be mailable. Whatever congress may have intended by the act of August, 1852, I do not think it admits of the interpretation given to it by the majority of the court; and if it does, then my opinion is that the act would be unconstitutional.

I concur with many of the views taken by Mr. Justice McLean in his dissenting opinion; but I shall take another opportunity to express my opinion fully upon the action of this court and of congress in this case.

This cause came on to be heard upon the bill of complaint, an order by the Honorable R. C. Grier, an associate justice of this court, on the 23th day of June, 1854, granting an injunction as prayed for in the said bill, and upon the motion by the complainant for writs of assistance, of sequestration, and of attachment against the said respondent, and upon a motion by the respondent to dissolve the said injunction, and was fully argued by counsel on both sides; upon consideration whereof, and after mature deliberation thereupon had, it is now here ordered and decreed by this court that the said motion by the said complainant for writs of assistance, of sequestration, and of attachment, be and the same is hereby overruled, and that the said injunction, so as aforesaid granted, be and the same is hereby dissolved.


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text:
Goslee v. Shute

This was an appeal from the circuit court of the United States for the eastern district of Louisiana.

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

The district court held that both boats were in fault, and divided the damages, and ordered judgment to be entered against The Magnolia for $17,900.

From this decision both parties appealed to the circuit court, where the judgment of the district court was reversed, and the libel dismissed with costs. The libellants, who were owners of The Autocrat, appealed to this court.

It was argued by Mr. Sargent and Mr. Crittenden, for the appellants, on whose side was also filed an argument by Mr. Pike. For the appellees, it was argued by Mr. Benjamin.

Mr. Justice McLEAN delivered the opinion of the court.

title: Goslee v. Shute


text: Talk:Goslee v. Shute

title: Talk:Goslee v. Shute


text:
Goslee v. Shute/Opinion of the Court

This is an appeal in admiralty, from the circuit court for the eastern district of Louisiana.

The libellant charges, that on a trip from New Orleans to Memphis in the steamer Autocrat, with a full cargo and a great number of passengers, The Magnolia ran into her, forward of the wheel on her larboard side, which caused her to sink in less than ten minutes; by which the boat and cargo were lost, and the lives of several passengers.

On the hearing in the district court, it was held that both boats were in fault; and, under the well-established rule of the admiralty, the damage was divided. From that decision an appeal was taken to the circuit court, which reversed the decree of the district court. The appeal now before us is from the circuit court.

As usual, in collision cases, there is some conflict among the witnesses in regard to the facts of the case, as well as to matters of opinion.

On the 9th of February, 1852, the steamboat Magnolia, descending the Mississippi River, one hundred miles above New Orleans, about five o'clock in the morning, landed to wood, on the left bank of the river, at a place called Col. Robinson's wood-yard. Before the boat left the wood-yard, when the pilot was on deck and about to take the helm, his attention was called to an ascending boat, which was near Bayou Goula, a mile and a half or two miles below. When first seen, the ascending boat was running to the right bank of the river.

There is a bar on the left side of the river about a mile below the wood-yard. The course of ascending boats is to cross into the bend, just above Bayou Goula, and keep up the right shore some six or seven miles. This course was taken by The Autocrat, averaging, generally, less than one hundred yards from the right shore.

On leaving the wood-yard, The Magnolia backed out on both wheels, her bow being fast on the shore; as she came off both engines were stopped, and then the boat went ahead on both wheels to check her up. As soon as this was done, her stern being opposite the wood-yard, the larboard engine was stopped, to let her come round by the action of the starboard wheel. The Autocrat continued up the right bank until she came opposite, or nearly opposite, to Col. Butler's residence. At this place she was within less than one hundred yards of the shore, when she changed her course to the left shore, nearly in the direction of the wood-yard which had a few minutes before been left by The Magnolia. The river at this place is about three quarters of a mile wide.

In rounding, The Magnolia passed the middle of the river, but as her bow was thrown down the stream, The Autocrat, turning suddenly to the right, approached her with a speed of some ten or twelve miles an hour. As The Autocrat approached, by a tap of the bell she signified her intention to cross to the left bank, and before the bow of The Magnolia, whose bell was rung two taps, indicating the same direction. Seeing the imminent danger, The Magnolia rang her bells to back; and it is stated by her pilot, that when the collision happened she lay upon the water, not having a descending movement of more than at the rate of a mile or a mile and a half to the hour. The Autocrat struck her with so much force as to turn her bow up the stream. In less than ten minutes The Autocrat sunk in deep water. It was not more than five minutes after The Magnolia left the wood-yard, until the collision occurred. The pilot says The Magnolia was brought round, as soon as could be done, by the action of her starboard wheel.

The nose of The Magnolia struck The Autocrat's guard near the forward part of the cylinder, on the larboard side, and the hull, at the other end of the cylinder, and brought up in her wheel. The collision took place not far from the middle of the river, somewhat nearer to the right bank than to the left. After the boats were separated, the machinery of The Autocrat continued to work for a few minutes, her course being directed to the right bank, on reaching which, she went down.

Entire accuracy of witnesses as to the direction and position of the boats in a case of collision at night, is not to be expected. The peril is too great and absorbing to note and detail the events as they transpired, by the officers and hands of either boat. The leading facts being ascertained by the weight of the testimony, when properly considered, will lead to a more just result than by a minute examination of the evidence.

What was the duty of the respective boats, when they first came within view of each other? The Magnolia was at the wood-yard on the left bank of the river; The Autocrat was near Bayou Goula, crossing over to the right bank of the river, about a mile and a half below the wood-yard.

Although there is some contrariety of evidence in regard to the usage which should govern the respective boats, occupying the positions above stated, yet the weight of the evidence clearly establishes the rule, that the ascending boat should keep near the right bank and the descending one about in the middle of the river. Each boat was bound to keep a vigilant and competent watch, and to slacken the speed of the boat and stop it, as the danger becomes imminent. This is dictated by a common prudence of a qualified pilot.

The principal fact relied on to show fault in The Magnolia is, that she left the wood-yard, and described too large a circle in rounding; that the larboard wheel should have made backwater, which would have reduced the circle and have thrown the bow down the stream in less time.

After a misfortune has happened, it is easy to see how it might have been avoided. If The Magnolia had remained at the wood-yard some eight or ten minutes longer, there could have been no collision. But this is not a fair mode of trying the case. Had the officers of The Magnolia a right to expect that The Autocrat would not depart from her course; and if she had not done so, could the boats have come in contact? It is clear, if the ascending boat had continued near the right bank of the river, there would have been no collision. This is an important fact. Admit that The Magnolia passed the middle of the stream in rounding, still ample space was left for the ascending boat. One third or even one fourth of the river, the water being deep, was sufficient for this purpose. The testimony shows that at least one third of the river, along the right bank, was open for The Autocrat.

But it is said that the pilot of The Autocrat, seeing The Magnolia was rounding off from the wood-yard, had a right to conclude that it intended to cross over to the right bank. This was a little after five o'clock in the morning; daylight was breaking, but the stars had not disappeared.

Being acquainted with the locality of the wood-yard, and the general course of the river, the pilot of The Autocrat must be presumed to know that a large boat could not round in a narrow circle. His inference would naturally be, that the boat was rounding from the wood-yard, and not to cross the stream. But admit that the direction of The Magnolia was doubtful-it was the duty of the officers of The Autocrat to slacken her speed, and even to stop her engines, until those doubts were removed. No such precautions were used. The Autocrat, by a great pressure of steam, was propelled onward, changing her course; and in attempting to pass the bow of The Magnolia, came in contact with her. Her pilot had hoped, it seems, to pass her stern; but to any prudent man, either attempt would have been considered a dangerous experiment. His great error, however, consisted in leaving the way established by usage; such to him would have been the way of safety. Every deviation from it, in meeting a boat, is always hazardous, and often fatal.

There was another defect, in not having an efficient watch on The Autocrat. This is indispensable, especially in navigating our western rivers. The captain was asleep; the watchman did not occupy the proper position; there, in fact, was no watch to direct or advise the pilot; he seems to have been left to the exercise of his own judgment, unaided by suggestions or facts from any quarter. This is enough to charge The Autocrat with fault.

Leaving the wood-yard by The Magnolia, under the circumstances, was not charged as a fault in the libel, nor was it so stated in the protest. The Magnolia had an efficient watch at the proper place for observation, and an experienced pilot. She rounded in the ordinary way. While the pilot of The Autocrat was a mile from The Magnolia, he ascertained that she was a descending boat. Still under the impression that she intended to run down the right bank, the course of The Autocrat was so changed across the river, in the direction of the wood-yard, as to bring the boats in conflict. Had the pilot of The Autocrat designed to produce a collision, he could not have taken a different course from the one he did take. From intimidation, or some other cause, he showed a culpable defect of judgment, and a disregard of the established usage.

The Magnolia seems to have taken every precaution she was required to take to avoid the collision. She was in her proper place, near the middle of the river, moving down the stream with less force than the current. If The Autocrat had met the crisis with the same precaution, a collision could have caused little or no damage.

The decree of the circuit court is affirmed.

Mr. Chief Justice TANEY, Mr. Justice WAYNE, and Mr. Justice DANIEL dissented.

title: Goslee v. Shute/Opinion of the Court


text: Talk:Goslee v. Shute/Opinion of the Court


text:
Wood v. Davis

THIS was an appeal from the circuit court of the United States for the northern district of Illinois.

The case is stated in the opinion of the court.

It was argued by Mr. St. George T. Campbell and Mr. Browning, for the appellants, and Mr. Carlisle, for the defendant.

The argument turned chiefly upon the point, whether Foster and Stohl, who held the deed, and Hooper and Campbell, who held the note, were real or nominal parties in the cause.

Mr. Justice NELSON delivered the opinion of the court.

title: Wood v. Davis


text: Talk:Wood v. Davis

title: Talk:Wood v. Davis


text:
Wood v. Davis/Opinion of the Court

This is an appeal from a decree of the circuit court of the United States for the northern district of Illinois.

Davis, a citizen resident of Illinois, filed a bill in the 14th judicial circuit of that State, in chancery, against the appellants, citizens and residents of Pennsylvania, and four other persons who will be more particularly noticed hereafter, setting out various dealings and business transactions between the complainant and the appellants, under the firm of Wood, Abbott, and Co., from the year 1843 down to the year 1849. That in October of the latter year, the firm, claiming to be largely in advance to the complainant, sent one of the partners to his place of business for the purpose of procuring a settlement of the accounts, and security for the balance of indebtedness. The balance was ascertained to be some $29,000, the payment of which was eventually secured by the conveyance of certain parcels of real estate; the firm, at the same time, entering into an agreement to resell and reconvey the same for the amount of the debt and interest, in one, two, three, and four years. The complainant also gave his notes for the amount for the purchase-money. All the notes have been paid, and parcels of the land reconveyed from time to time, except the last note of $6,000, and the parcels of land retained as security for its payment.

This note having become due, the firm of Wood, Abbott, and Co., the appellants, transmitted it and a deed of the land to Foster and Stohl, with directions to collect the money, and on receipt of the same to deliver the deed to the complainant. The note having been presented for payment, it was refused, upon which they placed it in the hands of Hooper and Campbell, attorneys at law, for collection. The bill in this case was filed against Wood, Abbott, and Co., the appellants, Stohl and Foster, the agents, and Hooper and Campbell, the attorneys, setting out the facts substantially as above stated, together with the additional charges that the account presented by the firm of Wood, Abbott, and Co., was overcharged and fraudulently made up, and that a much less balance was due to them than the amount secured upon a fair and equitable adjustment. The bill avers that Stohl and Foster had no interest in the transaction except to receive the money on the note, and to deliver the deed as agents of Wood, Abbott, and Co.; and that Hooper and Campbell have no interest, except as attorneys for the collection of the note. There is a prayer for subpoena against all the defendants, and for answers; also that an account be taken between the complainant and Wood, Abbott, and Co.; and the note be given up, and the deed be delivered to complainant; that an injunction be issued, enjoining Stohl and Foster, and Hooper and Campbell, from delivering over the note to the appellants.

The firm of Wood, Abbott, and Co. entered their appearance at November term, 1853, and petitioned the court, under the 12th section of the judiciary act, for a removal of the cause to the circuit court of the United States, on the ground that they were citizens and residents of the State of Pennsylvania, which application was granted.

The appellants, afterwards, in April, 1854, filed an answer to the bill in the circuit court of the United States; and on the 29th of June, 1855, that court ordered the cause to be remanded back to the state court from which it was sent.

The case is now here on an appeal from that order.

The ground upon which the cause was remanded is, that four of the defendants were citizens of the State of Illinois-namely, Stohl and Foster, and Hooper and Campbell-the same State of which the complainant was a citizen. And this presents the question whether or not these defendants were parties in interest in the subject of litigation, or, in other words, were proper or necessary parties in the suit. It has been repeatedly decided by this court, that formal parties, or nominal parties, or parties without interest, united with the real parties to the litigation, cannot oust the federal courts of jurisdiction, if the citizenship, or character of the real parties, be such as to confer it within the 11th section of the judiciary act. 7 Cranch, 98; 3 Ib. 267; 8 Wheat. 421; 5 Cranch, 303.

It would be difficult to state a case of parties more destitute of interest, or in which they were used merely as formal parties, than in the case of these defendants. Stohl and Foster were simply agents of Wood Abbott, and Co., with special instructions in which the complainant had no participation, and which could be recalled at any time before carried into execution; and, until carried into execution, the complainant certainly could set up no right under them, much less a right in disregard and defiance of them. Even if the state court had gone on and decreed against these defendants, and compelled a surrender of the note, or a delivery of the deed in the absence of the principals, it could not have extinguished the note, or have transferred the title to the land, as the decree could have had no binding effect upon them. Before the surrender could extinguish the note, or the delivery could have the effect to pass the estate in the land, the decree must operate upon the principals, the real parties in interest, and coerce them to make such surrender or delivery. The agents had no authority to represent them in the litigation. Nor had they any interest of their own in the subject in controversy. This is not the case of a stakeholder, or holder of a deed as an escrow, where a trust has been created by the parties which is sought to be enforced by one of them. In all such cases the trustee may be a proper party, as he has a duty to perform, and which the court may enforce if improperly neglected or refused.

The above view applies with equal if not greater force to the case of the attorneys.

Even if there could be any doubt about the correctness of the view above taken, after the real parties in interest appeared and took upon themselves the defence, the defendants, Stohl and Foster, and Hooper and Campbell, were no longer parties in interest, or necessary parties, as the possession of the note and of the deed by the agents and the attorneys, was, in judgment of law, the possession of the principals and clients, and any decree or injunction against them would bind the agents or attorneys. 6 Ves. 143; 1 Mer. 123; 1 Daniel's Pr. 343; 7 Hare, 428; Story Eq. Pl. §§ 229, 231, 232.

We are satisfied that the decision of the court below was erroneous, and that the order remanding the cause to the state court must be reversed, and the cause restored to its place in the circuit court of the United States.

title: Wood v. Davis/Opinion of the Court


text: Talk:Wood v. Davis/Opinion of the Court

title: Talk:Wood v. Davis/Opinion of the Court


text:
Fouvergne v. Municipality No 2 of the City of New Orleans

THIS was an appeal from the circuit court of the United States for the eastern district of Louisiana, sitting as a court of equity.

The principal circumstances of the case, which furnished the basis of the judgment of this court, are set forth in the opinion.

The entire case was one which covered a vast deal of ground. For the appellants there was a brief filed by Mr. S. Paul, of nearly 150 pages, which was adopted by Mr. Taylor, and one by Mr. Taylor himself, of the same size. On the part of the appellees, the brief of Mr. Janin was only 30 pages. These papers contained a vast deal of research into the civil law upon many points of the case which were not noticed in the opinion of the court, whose judgment rested upon a single point as disposing of the case. It is not necessary, therefore, to report them.

The case was argued by Mr. Taylor and Mr. Lewis, for the appellants, and by Mr. Janin, for the appellees.

Mr. Justice CAMPBELL delivered the opinion of the court.


text: Talk:Fouvergne v. Municipality No 2 of the City of New Orleans


text:
Fouvergne v. Municipality No 2 of the City of New Orleans/Opinion of the Court

The plaintiff filed her bill in chancery to recover a share of the succession of Marie Josepha Deslondes, (wife of Bertrand Gravier,) who died at New Orleans, in November, 1792, without lineal heirs, she claiming to be one of the heirs at law of said decedent. After the death of his wife, Bertrand Gravier placed a petition before the first alcalde of New Orleans, stating that his wife had made a will before a notary and three assisting witnesses; that the testamentary dispositions, as set down, conformed to her instructions, and were given while she was of a sound mind, but she had lost her consciousness before she had signed the paper; and prayed that the assisting witnesses might be examined to prove the will, and that the same might be declared valid in all its parts, in the same manner as if she had signed it. An order was made by the alcalde on this petition, with the approbation of the assessor of the intendancy, and the sanction of the governor and intendant-general, directing the notary to take the examination of the witnesses, as the petitioner had solicited. The witnesses, on their examination, testified that the notary had drawn the will in accordance with the directions of the testatrix, and they were given when her mind and memory were sound; but that before the formal writing was finished she had lost her consciousness, and did not therefore sign the same. Upon the return of the depositions to the alcalde, he entered the following decree:--

Under advisement, [vistos.] The will, proved by a legalized notarial act to have been made by Dona Maria Josefa Deslondes, who was the lawful wife of Don Bertrand Gravier, is declared valid and subsisting; let it be kept and executed in all its parts; and in order that this declaration, relative to said will, may remain permanent, there shall be placed on the notarial register, and on the original will, a note referring to the proceedings, giving to the parties interested certified copies of both documents, whenever they may ask for them. And whereas the said Don Bertrand Gravier, sole heir, has attained the years of majority, and that the property is notoriously large, there is, for this reason, no necessity for judicial proceedings; and for security for payment of the six thousand dollars to the absent heirs, he (Gravier) will immediately mortgage the plantation until final payment, or till otherwise agreed to by the parties. Whereupon, these proceedings terminated, let the costs be taxed by D'n Louis Liotaud, after acceptance and oath, and let them be paid by the heir, twenty-four reals having been received as the assessor's fee.

(Signed) PEDRO DE MARIGNY,

LICENTIATE MANUEL SERRANO.

Thus decreed by D'n Pedro de Marigny, knight of the order of St. Louis, and first alcalde for his majesty, having original jurisdiction in this city and its judicial precincts, with the approbatory opinion of D'n Manuel Serrano, assessor general of this intendancy, and he signed the same in the city of New Orleans, the 21st November, 1792.

(Signed) PEDRO PEDESCLAUX,

''Not. Pub.''

By this will, the testatrix bestowed legacies in favor of a number of her relations, and instituted her husband for her sole and universal heir, in order that after her death he should inherit the remainder of her property. The defendants claim the property described in the bill under titles derived from this heir.

The bill charges that Bertrand Gravier, fraudulently induced the notary to prepare a will for his wife, and witnesses to attest the act, and, although the legal formalities were wanting which were necessary to its validity, a 'sham decree' of probate was procured from the alcalde by the corrupt agency of the said instituted heir. The defendants deny these allegations, and they have not been supported by testimony. The will has remained without contestation for above a half century. The alcalde, assessor, notary, and witnesses, maintained during their lives a good reputation for probity. The property of the testatrix was distributed without opposition, according to the provisions of the will, and is now held, under titles derived from the instituted heir. This evidence disposes of the allegations of the bill, except those which impugn the sufficiency of the act as a legal instrument.

That question, in our opinion, is closed by the decree of the alcalde. That decree declares the will to be valid and subsisting, and directs its execution. We are obliged to treat the decree as the judicial act of a court of competent jurisdiction. In fact, it was the only judicial authority in the province of Louisiana, except that exercised by the governor.

This decree remains in full force, never having been impeached, except in this collateral way. The courts of the United States have no probate jurisdiction, and must receive the sentences of the courts to which the jurisdiction over testamentary matters is committed, as conclusive of the validity and contents of a will; an original bill cannot be sustained upon an allegation that the probate of a will is contrary to law. If any error was committed in allowing the probate, the remedy is in the state courts, according to their appropriate modes of proceeding; such was the decision of this court in Tarver v. Tarver, 9 Pet. 174.

The decision of this question is sufficient to dispose of the case, and we decline any inquiry in reference to any other which was discussed at the hearing.

Decree of the circuit court affirmed.


text: Talk:Fouvergne v. Municipality No 2 of the City of New Orleans/Opinion of the Court


text:
Page:Syria, the land of Lebanon (1914).djvu/148

SYRIA, THE LAND OF LEBANON You pass along a dirty alley to an insignificant wooden door in a high stone wall. Just inside is the porter's cell; then comes a dark, vaulted passageway, which either has a sharp bend in it or else is screened at the farther end; then—

The open court which you enter may be three hundred feet across. Its tessellated pavement is of white marble inlaid with arabesques of darker stone. In the center is a fountain with designs of colored limestone set into its marble walls. Potted flowers bloom luxuriantly in the warm sunlight, and birds sing to the accompaniment of the splashing water. In the grateful shade of small fruit trees are placed bright rugs and soft cushions and tabarets made of rare woods inlaid with mother-of-pearl. The many lofty windows in the red and yellow striped walls of the surrounding dwelling are curtained with gorgeous silks.

At one side, usually the south, a spacious alcove reaches to the height of the second-story ceiling. This liwân, or drawing-room, is entirely open to the court; but its floor is raised a foot or two above the pavement outside, and its decorations are as rich and elaborate as if it were a huge, glittering jewel-box. No figures of men or animals are seen, for Moslems are forbidden to make representations of any living creature in the heavens above or the earth beneath or the waters under the earth; yet it is [ 112 ]


text:
Ledoux v. Black

THIS case was brought up from the supreme court of Louisiana by a writ of error, issued under the 25th section of the judiciary act.

The case is stated in the opinion of the court.

It was argued by Mr. Carlisle and Mr. Badger, for the plaintiffs in error, and by Mr. Benjamin, for the defendants.

Mr. Justice CATRON delivered the opinion of the court.

title: Ledoux v. Black


text: Talk:Ledoux v. Black

title: Talk:Ledoux v. Black


text:
Ledoux v. Black/Opinion of the Court

This cause is brought here from the supreme court of Louisiana, by writ of error, under the 25th section of the judiciary act of 1789. The only question presented for our consideration is, which party has the better right to the land in dispute? The defendant, Black, claims title under an entry made in 1808, and a patent founded on the entry, dated in 1810, in the name of General Lafayette, for a thousand acres. The validity of this title as against the United States is not denied; but the plaintiffs claim to have an elder title, by virtue of a concession to Ursino Bouligny, of forty arpens front by forty arpens in depth, dated January 10, 1796, of which the plaintiffs are assignees. They allege that under an act of congress of February, 1813, Bouligny prosecuted his claim to the proper register and receiver, who reported in its favor on the 20th of November, 1816; that their report was confirmed by act of congress, the 11th of May, 1820, and that claim was regularly surveyed by order of the surveyor-general of Louisiana, in 1843, and the survey approved in 1844.

To show the point made and decided on these facts, by the supreme court of Louisiana, we give an extract of their opinion, which is found in the record:--

'Conceding,' (says the court,) 'for the sake of argument, that the claim of the plaintiffs was filed in the land-office in the manner required by law, before the issuing of the patent to General Lafayette; that it has been confirmed by the act of congress of the 11th of May, 1820, and that the confirmation should be made to refer back to the date of the original title, unless that title or a survey made under it by the Spanish surveyor, in compliance with the order of the governor, will enable the court to ascertain the specific boundaries of the land granted, the location of the warrant under which the patent issued to General Lafayette cannot be disturbed. We have uniformly adhered to the rule laid down by our predecessors in the cases of Lefebvre v. Cameau, 11 L. R. 323; Slack v. Orillon, 11 L. R. 587; Lott et al. v. Prudhomme et al. 3 R. R. 293; Metoyer v. Larenaudi ere, 6 R. R. 139.

'In the case of Lott, the court say, referring to the other two: 'We then held, that when the boundaries of a confirmed claim are vague and uncertain, and are to be fixed by the operations of the surveying department, or such confirmation is only the recognition of a pre existing right or claim, and before the survey and location the government sells a part of the land not necessarily embraced within the tract confirmed, the title of the purchaser will prevail.' Let us test the title of the plaintiffs by that rule, and ascertain whether the land now claimed is necessarily embraced within the tract confirmed to them, supposing that such a confirmation had taken place.

'There was no survey under the Spanish government, and no possession by the grantee. The boundaries are to be ascertained exclusively by the calls of the requ ete, and of the order of the governor upon it. Both describe the land as a tract of forty arpens front by forty deep, in the district of Point Coup ee, en el parage, called the Lagoon of the Raccourci. It is not stated whether the land is to front upon the Lagoon, or upon the Mississippi River; and as one location would answer the calls as well as the other, the description is, perhaps, on that ground alone defective. Lafayette v. Blanc, 3 Annual R. 59.

'But supposing that the front was intended to be upon the river, where is it to begin, how is it to run, and where is it to end? Whether the words of description used mean at the place called the Lagoon, or in the vicinity of the Lagoon, the starting-point of the survey is alike uncertain, and the designation of it by the surveyor who located the grant purely arbitrary, so far at least as it affects the rights of the defendants.'

Until the confirmation took place, (supposing the act of 1820 did confirm Bouligny's claim,) no valid title as against the United States was vested in the grantee to any specific tract of land. We need only to refer to the case of De Vilemont v. The United States, 13 How. 266, for authority to this effect. The cases are alike in all their features.

Nor did the mere act of confirmation tend to locate the claim, and sever the land from the public domain; this could only be done by a public survey, and which was not done till 1844. Up to that date the government could sell and convey a legal title to General Lafayette, regardless of the fact that Bouligny's concession existed, and might be surveyed on the land previously granted. This question was settled by the decision in the case of Menard's Heirs v. Massey, 8 How. 301, and is not now open to controversy.

We order that the judgment of the supreme court of Louisiana be affirmed.

title: Ledoux v. Black/Opinion of the Court


text: Talk:Ledoux v. Black/Opinion of the Court


text: In the Matter of the United States v. Booth (59 U.S. 476)


text: Talk:In the Matter of the United States v. Booth (59 U.S. 476)


text:
In the Matter of the United States v. Booth (59 U.S. 476)/Opinion of the Court

THESE two cases will be reported together, although in some respects they were dissimilar. In both, however, writs of error had been issued by this court directed to the supreme court of Wisconsin. In the first case, viz: The United States v. Booth, the writ was not returned, and Mr. Cushing, (attorney-general,) filed a copy of the record and moved the court to docket the case, and set it down for argument at the next term. In the other case, viz: Ableman v. Booth, the writ was returned, accompanied by a certified copy of the record, and the case stood regularly upon the trial docket.

In the case of the United States v. Booth, the motion of the attorney-general was as follows:--

And now the attorney-general comes into court and says that, to the writ of error in the present case to the supreme court of the State of Wisconsin, issued by the chief justice of the United States, no return has been made; whereupon he moves that an authentic copy of the record of the said supreme court of the State of Wisconsin in the case, and of the writ of error, with certificate of other proceedings since had, may be filed, and the case entered, and proceed to final judgment on the said copies.

The other proceedings, mentioned in the above motion were comprised in the following certificates, &c.

1. A petition of the attorney-general, reciting the facts stated in the opinion of the court, and praying for a writ of error to remove the case from the supreme court of Wisconsin to this court.

2. The allowance of the writ on the 21st of April, 1855. On the 5th of September, 1855, John R. Sharpstein, district attorney of the United States, made oath before Judge Miller, judge of the district court, that he delivered the writ of error to Lafayette Kellogg, Esq., clerk of the supreme court of Wisconsin, at his office in Madison, on the 30th of May, 1855.

3. The citation to Booth and the service of it by Ableman, the marshal.

4. The following affidavit by Sharpstein:--

I, John R. Sharpstein, attorney of the United States for said district, do solemnly swear, that I have been informed by Lafayette Kellogg, Esq., clerk of the supreme court of the State of Wisconsin, and also by Abram D. Smith, an associate justice of said court, that the said court directed the said clerk to make no return to the writ of error issued out of the supreme court of the United States, in the above entitled cause, and by this deponent served, according to law and the rules of the said last-mentioned court, and that the said supreme court of the State of Wisconsin further directed the said clerk to enter no order upon the journal or records of said court concerning the same, and further deponent says not.

J. R. SHARPSTEIN.

5. A copy of the record.


text: Talk:In the Matter of the United States v. Booth (59 U.S. 476)/Opinion of the Court


text:
Ableman v. Booth (59 U.S. 479)

Mr. Chief Justice TANEY delivered the opinion of the court.

title: Ableman v. Booth (59 U.S. 479)


text: Talk:Ableman v. Booth (59 U.S. 479)

title: Talk:Ableman v. Booth (59 U.S. 479)


text:
Ableman v. Booth (59 U.S. 479)/Opinion of the Court

Upon looking into the transcript in this case, we find that the questions of constitutional law which it involves arose in a preliminary proceeding in the case between the same parties, of which we have just spoken. In that case, the whole subject was disposed of in the state court, and the principal question in it is precisely the same with that which is presented in this, which the attorney-general proposes to argue. The two cases ought to be argued together. It would hardly be proper for the court, where questions of so much interest are concerned, to hear a portion of them at one term and a portion of them at another. All of the questions which are involved in the two cases have grown out of one transaction, and depend upon the same facts, and it is impossible to decide one without disposing of the principal question in the other. The court, therefore, will not hear the argument in these cases separately. They must be argued together. And as the principal case is not before the court in a form that will enable the court to hear it at the present term, this preliminary portion of it must be continued until the next term, to be argued when the whole subject is ready for hearing.


text: Talk:Ableman v. Booth (59 U.S. 479)/Opinion of the Court


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Bacon v. Robertson

THIS was an appeal from the circuit court of the United States for the southern district of Mississippi.

The transaction to which the suit relates was partly and incidentally brought before the notice of this court in 16 How. 106.

The facts are stated in the opinion of the court.

It was argued by Mr. Wharton and Mr. Yerger, for the appellants, and Mr. Lawrence, for the appellees.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Bacon v. Robertson


text: Talk:Bacon v. Robertson

title: Talk:Bacon v. Robertson


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Bacon v. Robertson/Opinion of the Court

This bill was filed in the circuit court against William Robertson, a trustee, appointed to liquidate the affairs of the late Commercial Bank of Natchez, Mississippi, and such of the stockholders of the bank as are citizens of that State, and is prosecuted by a number of stockholders, owning one fifth part of the capital stock, for themselves, and such of the stockholders as are not citizens of Mississippi, or defendants in the bill.

The Commercial Bank was incorporated and organized under enactments of the legislature in 1836, with a capital of $3,050,000, divided into shares of $100 each, which are now distributed among two hundred and eighty persons.

The corporation carried on the business of banking through the agency of presidents, directors, cashiers, and other officers, at Natchez, and four other towns of Mississippi, for a number of years. During this time there was a temporary suspension of specie payments, which the bill avers to have been accidental, and to have formed the only ground for the proceedings taken against the corporation. In June, 1845, the circuit court of Adams county rendered a judgment against the bank, upon an information in the nature of a quo warranto preferred pursuant to the act of the legislature of July, 1843. By this judgment the bank was 'prejudged and excluded from further holding or exercising the liberties, privileges, and franchises granted by the said charter;' 'the liberties, privileges, and franchises granted to the bank were seized' by the State; the 'property, books, and assets of the bank' were adjudged to be seized and delivered to a trustee, who might have execution therefor. William Robertson was appointed that trustee 'to take charge of the books and assets of the bank.' His duties are declared, conformably to the act of 1843, which will be considered in another part of this opinion.

The bank appealed from this judgment, and in the spring session of the high court of errors and appeals, in 1846, it was affirmed. William Robertson entered upon the office of trustee in July, 1846. He took possession of money, stocks, evidences of debt, and real estate having a nominal value of near four millions of dollars, and continues to hold them, except in so far as he has applied them to the payment of the charges of the trust, and the debts of the corporation. The bill alleges that all the debts have been paid, and that only a small sum is due for costs, and that property of great value, consisting of money, stocks, evidences of debt, bonds, and personalty, remains with the trustee, who refuses to account for them to the stockholders. The object of the bill is to establish the title of the stockholders to this surplus, and to obtain the ratable shares of such of them as are able and willing to join as plaintiffs in this suit. The bill names a number of the stockholders as parties, and is fitted to embrace all by the representation of these.

The defendants joined in a general demurrer to the bill; a decree of dismissal was rendered at the hearing at the circuit, and, by appeal, was taken up to this court to revise that decision.

When the defendant, Robertson, assumed the office of trustee, his duties were defined by two acts of the legislature of Mississippi. The act of July, 1843, directed the institution of suits against such of the banking corporations of the State as had violated their charters in such a manner as to incur their forfeiture, and prescribed the form of the suits for the enforcement of that forfeiture. It enacted 'that upon a judgment of forfeiture against any bank, the debtors of the bank shall not be released from their debts and liabilities to the same; but it was made the duty of the circuit court, rendering the said judgment, to appoint one or more trustees to take charge of the books and assets of the banks; who should sue for and collect all debts due such bank, and sell and dispose of all property owned by it, or held by others for its use; and the proceeds of the debts, when collected, and of the property when sold, to apply, as may hereafter be directed by law, to the payment of the debts of such bank. The trustee was made subject to a criminal prosecution for embezzlement, conversion of the trust property, as a failure to account for it according to law; and both acts prescribed a bond to be given to secure the faithful performance of his duty. The act of February, 1846, amended and enlarged the scope of the act of 1843, and was applicable to all trustees appointed under either.

This act provided a summary remedy in favor of the trustee to obtain the control of the corporate property; for an inventory to be made to the first court, after his appointment; for an order of sale of all the corporate property at auction, for cash, after a notice of ninety days, at specified places; for commissioners to audit the claims against the banks, and for their presentation to these commissioners; for early decisions upon the exceptions to their report; for a final decree of distribution, first, in the payment of expenses, then public dues, costs, and fees, the debts reported, and, lastly, 'the surplus, if any shall be ratably distributed among the stockholders.' There was a provision that the bills of the bank should be receivable for debts, and that the debtor might redeem from any purchaser of his debt or obligation, (so sold,) during two years, by paying the purchase-money, all costs, and twelve and a half per cent. interest. The object of the two statutes can hardly be misconceived. They are parts of a system, the latter act being auxiliary to, and adopted in aid of, the provisions of the earlier act of 1843-the two acts containing the full expression of the will of the legislature. The circumstances of the legislature enabled it to defer the promulgation of its entire policy until the year 1846. The exigencies of the State were entirely answered by the directions given in 1843 to the executive officers to take initiatory measures for placing these corporations under restraint, and for the security of their property. To effectuate these, involved delay and litigation, and the legislature might well await their issue, before unfolding their whole plan of liquidation and settlement. The two statutes which embody it have formed the subject of much discussion in the courts of Mississippi, and difficulty has been experienced there in carrying them into execution. No suit has been instituted there by the stockholders, though their rights have been incidentally debated, both at the bar and by the supreme appellate court. To comprehend the import of this legislation, we must consider the mischiefs it was designed to prevent or remove, and the mode adopted to accomplish the end; for the legislation is of a character wholly remedial. The common law of Great Britain was deficient in supplying the instrumentalities for a speedy and just settlement of the affairs of an insolvent corporation whose charter had been forfeited by a judicial sentence. The opinion usually expressed as to the effect of such a sentence was unsatisfactory and questioned. There had been instances in Great Britain of the dissolution of public or ecclesiastical corporations by the exertion of the public authority, or as a consequence of the death of their members, and parliament and the courts had affirmed in these instances that the endowments they had received from the prince or pious founders would revert in such a case. Stat. de terris Templariorum, 17 Edw. II.; Dean and Canons of Windsor, Godb. 211; Johnson v. Norway, Winch. 37; Owen, 73; 6 Vin. Abr. 280. What was to become of their personal estate and of their debts and credits had not been settled in any adjudged case, and as was said by Pollexfen in the argument of the quo warranto against the city of London, was perhaps 'non definitur in jure.' Solicitor Finch, who argued for the crown in that cause, admitted, 'I do not find any judgment in a quo warranto of a corporation being forfeited.' Treby, on behalf of the city, said, 'the dissolving a corporation by a judgment in law, as is here sought, I believe is a thing that never came within the compass of any man's imagination till now; no, not so much as in the putting of a case. For in all my search, (and upon this occasion I have bestowed a great deal of time in searching,) I cannot find that it ever so much as entered into the conception of any man before; and I am the more confirmed in it because so learned a gentleman as Mr. Solicitor has not cited any one such case wherein it has been (I do not say adjudged but) even so much as questioned or attempted; and, therefore, I may very boldly call this a case primae impressionis.' The argument of Pollexfen was equally positive. The power of courts to adjudge a forfeiture so as to dissolve a corporation was affirmed in that case, but the effect of that judgment was not illustrated by any execution, and the courts were relieved from their embarrassment by an act of parliament annulling it. Smith's case, 4 Mod. 53; Skin. 310; 8 St. Tri. 1042, 1057, 1283. Nor have the discussions since the Revolution extended our knowledge upon this intricate subject. The case of Rex v. The Amery, 2 D. & E. 515, has exerted much influence upon text writers. The questions were, whether a judgment of seizure quousque upon a default was final, and if so, whether the king's grant of pardon and restitution would overreach and defeat a charter granting to a new body of men the same liberties intermediate the seizure and the pardon. The king's bench, relying upon the Year-book of 15 Edw. IV., declared the judgment to be final and the new charter irrepealable. But the House of Lords reversed the judgment. The judges, upon an examination of the original roll of the case in the Year-book, discovered that it did not support the conclusion drawn from it, and Chief Baron Eyre says, 'that Lord Coke had adopted the doctrine too hastily.' The discussions upon this case show how much the knowledge of the writ of quo warranto as it had been used and applied under the Plantagenets and Tudors, had gone from the memories of courts and lawyers. 4 D. & E. 122, Tan. on Quo Warranto, 24. In Colchester v. Seaber, 3 Bur. 1866, where the suit was upon a bond, and the defence was, that certain facts had occurred to dissolve the corporation, and that the creditor's claim was extinguished on the bond, Lord Mansfield said, 'without an express authority, so strong as not to be gotten over, we ought not to determine a case so much against reason as that parliament should be obliged to interfere.' The question occurs here, could parliament interfere? And the answer would be by their authorizing a suit to be brought notwithstanding the dissolution. These are all cases of municipal corporations where the corporations had no rights in the property of the corporation in severalty. The courts of Westminster have found much difficulty in applying the principles settled in regard to such, to the commercial and trading corporations that have come into existence during this century. The courts there within the last twelve months have been troubled to discuss whether a commercial corporation could recover damages for the breach of a parol contract, or whether the contract should have had a seal to make it valid. Austra. R. M. N. Co. v. Marzetti, 32 L. & E. 572; 3 Ib. 420. It may be admitted that the courts of law could not give any relief to the shareholders of a corporation disfranchised by a judicial sentence in respect to a corporate right. Their modes of proceeding do not provide for the case as they have not for many others. 1 Plow. 276, 277; Richards v. Richards, 2 B. & Adol. 447; Will. Ex. 1129. But this concession does not involve an acknowledgment that the rights of the corporations are extinguished. Courts of chancery have been forced into a closer contact with these associations, and have formed a more rational conception of their constitution and a more accurate estimate of their importance to the industrial relations of society. Those courts have evinced a spirit of accommodation of their modes of proceeding so as to adapt them to the changing exigencies of society. Lord Cottenham, in Wallworth v. Holt, 4 M. & C. 635, in reference to the conduct of suits in which similar associations were concerned, said: 'I think it is the duty of this court to adapt its practice and course of proceeding to the existing state of society, and not, by too strict an adherence to rules and forms established under different circumstances, to decline to administer justice and to enforce rights for which there is no other remedy.' In the same spirit, Sir James Wigram, V. C., observes: 'Corporations of this kind are in truth little more than private partnerships; and in cases which may be easily suggested, it would be too much to hold that a society of private persons associated together in undertakings which, though certainly beneficial to the public, are nevertheless matters of private property, are to be deprived of their civil rights inter se, because, in order to make their common objects more attainable, the crown or legislature have conferred upon them the benefit of a corporate character.' Foss v. Harbottle, 2 Hare, 491. These just views which have afforded to wise chancellors a sufficient motive to enlarge the scope and relax the rigor of the rules of chancery proceeding, so as to bring the civil rights of individuals in whatever form they may exist, or however complicated or ramified, under the protection of legitimate judicial administration, have been adopted in the United States, not simply for the improvement of methods of proceeding, but also for the adjustment of rights and the assertion of responsibilities among the members of such associations. In the Bank of the United States v. Deveaux, 5 Cr. 61, this court held 'that the technical definition of a corporation does not uniformly circumscribe its capacities, but that courts for legitimate purposes will contemplate it more substantially; and the court in that case allowed the corporation to use its corporate name for the purposes of suit in the courts of the United States to represent the civil capacities of the persons who composed it. So the court has held that corporate acts need not to be evinced by writing, nor corporate contracts by a common seal; that corporations are liable on contracts made or defaults or torts committed by their officers or agents in the course of their employment. 12 Wheat. 40; Ib. 64; 6 How. 344; 14 Ib. 468. In Lennox v. Roberts, 2 Wheat. 373, the court gave effect to a general assignment of a corporation of its choses in action made in anticipation of the expiration of its charter, and which was designed to preserve to the corporators their rights of property. In the Mumma v. Potomac Company, 8 Pet. 281, it held that the assignment of all the property of a corporation and the surrender and cancellation of its charter with the consent of the legislature, did not defeat the right of the judgment creditor to satisfaction out of the property which had belonged to it. The power of courts of equity in cases like these was recognized as adequate to maintain the rights of the parties beneficially interested, and this doctrine was repeated and developed in Curran v. Arkansas, 15 How. 304.

The tendency of the discussions and judgments of the court of chancery in Great Britain, and of the courts of this country, is to concede the existence of a distinct and positive right of property in the individuals composing the corporation, in its capital and business, which is subject in the main to the management and control of the corporation itself; but that cases may arise where the corporators may assert not only their own rights, but the rights of the corporate body. And no reason can be given why the dissolution of a corporation, whether by judicial sentence or otherwise, whose capital was contributed by shareholders, for a lawful and perhaps laudable enterprise, with the consent of the legislature, should suspend the operation of these principles, or hinder the effective interference of the court of chancery for the preservation of individual rights of property in such a case. The withdrawal of the charter-that is, the right to use the corporate name for the purposes of suits before the ordinary tribunals-is such a substantial impediment to the prosecution of the rights of the parties interested, whether creditors or debtors, as would authorize equitable interposition in their behalf, within the doctrine of chancery precedents. Stainton v. The Carron Company, 23 L. and E., 315; Travis v. Milne, 9 Hare, 141; 2 Ib. 491. For the sentence of forfeiture does not attain the rights of property of the corporators or corporation, for then the State would appropriate it. If those rights are put an end to, it would seem to be rather from a careless disregard, or hardened and reckless indifference to consequences, on the part of the public authority, than from any preconceived plan or purpose. For, according to the doctrine of the text writers on this subject, the consequences are visited without any discrimination; the losses are imposed upon those who are not blameworthy, and the benefits are accumulated upon those who are without desert. The effects of a dissolution of a corporation are usually described to be, the reversion of the lands to those who had granted them; the extinguishment of the debts, either to or from the corporate body, so that they are not a charge nor a benefit to the members. The instances which support the dictum in reference to the lands, consist of the statutes and judgments which followed the suppression of the military and religious orders of knights, and whose lands returned to those who had granted them, and did not fall to the king as an escheat; or of cases of dissolution of monasteries and other ecclesiastical foundations, upon the death of all their members; or of donations to public bodies, such as a mayor and commonalty. But such cases afford no analogy to that before us. The acquisitions of real property by a trading corporation are commonly made upon a bargain and sale, for a full consideration, and without conditions in the deed; and no conditions are implied in law in reference to such conveyances. The vendor has no interest in the appropriation of the property to any specific object, nor any reversion, where the succession fails. If the statement of the consequences of a dissolution upon the debts and credits of the corporation is literally taken, there can be no objection to it. The members cannot recover nor be charged with them, in their natural capacities, in a court of law. But this does not solve the difficulty. The question is, has the bon a fide and just creditor of a corporation, dissolved under a judicial sentence for a breach in its charter, any claim upon the corporate property for the satisfaction of his debt, apart from the reservation in the act of the legislature which directed the prosecution? Can the lands be resumed in disregard of their rights by vendors, who have received a full payment of their price, and executed an absolute conveyance? Can the careless, improvident, or faithless debtor, plead the extinction of his debt, or of the creditor's claim, and thus receive protection in his delinquency? The creditor is blameless-he has not participated in the corporate mismanagement, nor procured the judicial sentence; he has trusted upon visible property acquired by the corporation, in virtue of its legislative sanction. How can the vendors of the lands or the delinquent debtors resist the might of his equity? But, if the claims of the creditor are irresistible, those of the stockholder are not inferior, at least against the parties who claim to hold the corporate property. The money, evidences of debt, lands, and personalty acquired by the corporation, were purchased with the capital they lawfully contributed to a legitimate enterprise, conducted under the legislative authority. The enterprise has failed under circumstances, it may well be, which entitle the State to withdraw its special support and encouragement; but the State does not affirm that any cause for the confiscation of the property, or for the infliction of a heavier penalty, has arisen. It is a case, therefore, in which courts of chancery, upon their well-settled principles, would aid the parties to realize the property belonging to the corporation, and compel its application to the satisfaction of the demands which legitimately rest upon it.

In our view of the equity of this bill we have the support and sanction of the legislature of Mississippi. Their legislation excludes all the consequences which have been imputed as necessary to a sentence of dissolution on a civil corporation. From the plenitude of their powers, for the amelioration of the condition of the body politic, and the supply of defects in their system of remedial laws, they have afforded a plan for the liquidation and settlement of the business of these corporations in which the equities of the creditors and shareholders respectively are recognized, as attaching to all the corporate property of whatever description. And the inquiry arises, who is authorized to obstruct the enforcement of these equities in so far as the stockholders of the Commercial Bank of Natchez are concerned? The creditors have been satisfied. The defendant in the present suit is the trustee appointed under these legislative enactments. His demurrer confesses that he has received money, stocks, evidences of debt, lands, and personal property, which he refuses to distribute. He claims that the stockholders have no rights since the dissolution of the corporation, and if any, they must be looked for in the circuit court of Adams county, Mississippi. But the trustee cannot deny the title of the stockholders to a distribution. To collect and distribute the property of the corporation among the creditors and stockholders, is his commission-for this end he was placed in the possession of the property, and was armed with all the powers he has exercised.

His title is in subordination to theirs, and his duties are to maintain their rights and to consult their advantage. Pearson v. Lindley, 2 Ju. 758; 3 Pet. 43; 4 Bligh. 1; Willis Trus. 125, 172, 173. He is estopped from making the defence of a want of title in the stockholders. Nor is the objection to the jurisdiction of this court tenable. Ten years have nearly elapsed since this trust was created. The acts of the legislature contemplated a prompt and speedy settlement. They direct the reduction of all the property into ready money, and an early distribution among the parties concerned. The trustee confesses that he has not sold the lands nor personal estate, and that he has refused to distribute the money. He has committed a palpable breach of trust, according to the case made by the bill and as confessed by the demurrer. All the other trusts having been fulfilled, the stockholders are entitled to such an administration as will be most beneficial to them, or to a sale of the trust property in the manner prescribed by the statute of Mississippi. Nor is the objection to the form of the suit tenable. If the trust estate had been liquidated and the interests of the stockholders ascertained, any stockholder might have maintained a suit for his aliquot share without including any other stockholder. Smith v. Snow, 3 Mad. C. R. 310. But the trust estate has not been sold, nor are the names of all the stockholders ascertained, the trustee is called on to account, and the bill asks for the collection and disposal of the remaining property under the authority of the court of chancery.

The stockholders are interested in these questions, and are then proper parties to the bill. The number of the parties renders it impracticable to bring all before the court, and therefore the suit may be prosecuted in the form which has been employed in this suit. This court sustained such a bill in the case of Smith v. Swormstedt, 16 How. 288.

We do not intend to decide any of the questions of the cause which may arise as to the mode of administering the relief prayed for in this bill. Our opinion is that the plaintiffs have shown a proper case for equitable interposition by the circuit court, and that the decree of that court dismissing the bill is erroneous.

Decree reversed, and cause remanded.

title: Bacon v. Robertson/Opinion of the Court


text: Talk:Bacon v. Robertson/Opinion of the Court