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Barnes v. District of Columbia

ERROR to the Supreme Court of the District of Columbia.

This is an action to recover damages for a personal injury received by the plaintiff on the 14th of October, 1871, in consequence of the defective condition of one of the streets of the city of Washington. The accident occurred on K Street east, and arose from the construction of the Baltimore and Potomac Railroad through that street. The road was built by permission of the corporation, and authority was given to the company to change the grade of the streets according to a plan filed. In making this change, a deep pit or excavation was made, into which the plaintiff fell. The questions touching the plaintiff's injury, the defective condition of the street, and the negligence of those having it in charge, were submitted to the jury, and the issue upon each of them was found in favor of the plaintiff. The verdict of the jury, by which they awarded to him the sum of three thousand five hundred dollars as damages, besides his costs, and the judgment thereon, were set aside at the general term of the Supreme Court of the District, and judgment was ordered in favor of the defendant. From this judgment the present writ of error was brought.

Mr. Edwin L. Stanton for the defendant in error.

The charter of the old corporation having been repealed by the act of Feb. 21, 1817, its ordinance granting permission to the railroad company to construct its road was irrelevant in this case, as the District of Columbia is not responsible for the acts of that corporation. The right to pass along the streets having, independently of the municipal ordinance, been granted by Congress to the company, it was obliged to conform to the grade of the streets, unless Congress authorized a different level. The District had no power whatever to act in the matter.

Whether this action is maintainable against the District of Columbia depends upon the terms and conditions of its charter. Weightman v. Corporation of Washington, 1 Black, 50.

Prior to the passage of the act of Feb. 21, 1871, the corporation of the city of Washington had, under congressional enactments, full power and authority to open and keep in repair the streets, alleys, &c., agreeably to the plan of the city; but this act intrusts no control whatever over the streets and avenues to the new corporation, but vests it in a Federal commission authorized to make all regulations which it might deem necessary for keeping them in repair. The act prescribed the powers of the board of public works as distinctly as it did those of other officers, and made it independent of the legislative assembly in respect to the authority committed to it by Congress.

That this entire control of the streets and avenues, with power to make all regulations which it should deem necessary for keeping the same in repair, was committed to the board of public works, not as a department or subordinate agency of the municipality called the District of Columbia, but as a Federal commission, is clearly shown by the legislation of Congress. Its members were appointed by the President of the United States, by and with the advice and consent of the Senate. The acts of May 8, 1872 (17 Stat. 74), and March 3, 1873 (id. 499, 500), and sect. 76 of the Revised Statutes relating to the District of Columbia, providing for the salaries of the members of the board of public works and other officers of the District, enact that no part of the sums thereby appropriated shall be paid to any member of such board 'who shall hold any other Federal office,' or 'who is paid a salary for the discharge of the duties of any other Federal office, under the government of the United States.'

The act of June 20, 1874 (18 Stat. 116), abolishing the office of governor, secretary, board of public works, delegate in Congress, and also the legislative assembly, distinguishes between the accounting officers, other officials, laborers, employes, and the indebtedness of the District, and those of the board of public works. This distinction is also made by the acts of Congress of June 10, 1872 (17 Stat. 350, 351), April 20, 1871 (id. 7), Jan. 8, 1873 (id. 405, 406), and June 23, 1874 (18 id. 210).

The conclusion is thus reached, that by the act of Feb. 21, 1871, the entire control ever the streets and avenues, which are the property of the United States, was given to a Federal commission, with exclusive power to make such regulations at it might deem necessary for keeping the same in repair.

Liability on the part of municipal corporation for the neglect or omission of a corporate duty springs from the particular nature of the duty enjoined, and from the means given for its performance, which must be ample. The duty must relate to the local interests of the municipality, and be imperative, and not discretionary or judicial. Weightman v. The Corporation of Washington, 1 Black, 50; Dill. on Munic. Corp., sect. 765.

Here the duty was not enjoined, nor were the means given. Therefore the liability for injury resulting from neglect of duty, if it exists at all, must appear, upon a fair review of the charter or statutes, to rest upon the municipal corporation an such, and not upon it as an agency of the State, nor upon its officers as independent public officers. Dill. on Munic. Corp., sects. 772, 789; Child v. City of Boston, 4 Allen, 41; Walcott v. Swampscott, 1 id. 101; Martin v. Mayor of Brooklyn, 1 Hill, 550; Detroit v. Blakely, 21 Mich. 84; 9 Am. Law Reg. 680, n.

Mr. W. D. Davidge and Mr. R. K. Elliot, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Barnes v. District of Columbia


text: Talk:Barnes v. District of Columbia

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title: Talk:Barnes v. District of Columbia


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

The municipal corporation, 'The District of Columbia,' was organized under the act of Congress of Feb. 21, 1871. 16 Stat. 419.

The first section of the act creates a municipal corporation by the name of 'The District of Columbia,' with power to sue, be sued, contract, have a seal, and 'exercise all other powers of a municipal corporation, not inconsistent with the laws and constitution of the United States and the provisions of this act.'

By sect. 2 the executive power is vested in a governor, to be appointed by the President, with the consent of the Senate, and to hold his office for four years. Bills passed by the council, and house of delegates, were to be presented to him for approval or rejection.

A secretary of the District is also provided for, whose duties are specified. The legislative power in the District is vested in two bodies,-a council, and house of delegates,-called a legislative assembly; which power it was in the eighteenth section declared should 'extend to all rightful subjects of legislation within said District, consistent with the Constitution of the United States and the provisions of this act.'

It is enacted that the President, with the consent of the Senate, shall appoint a board of health, consisting of five persons, whose duties are pointed out. The salaries of the governor and secretary are prescribed, and are to be paid 'at the treasury of the United States.' The salaries of the members of the legislative assembly are prescribed; but it is not declared where or how or by whom they shall be paid, unless they are included in the general tersm of sect. 38.

By the thirty-seventh section it is provided that there shall be a 'board of public works, to consist of the governor and four other persons to be appointed by the President, with the consent of the Senate, who shall have entire control of and make all regulations which they shall deem necessary for keeping in repair the streets, avenues, and alleys and sewers of the city, and all other works which may be intrusted to their charge by the legislative assembly or Congress.' They are also required to disburse the money collected for such purposes, and to make an annual report of their proceedings to the legislative assembly, and to furnish a duplicate of the same to the governor.

The charters of the cities of Washington and Georgetown are declared to be repealed, except that they are continued in force for certain specified purposes not necessary to be here considered.

The statute creating this corporation, in its first section, declares it to be a body corporate, not only with power to contract, to sue and be sued, and to have a seal, but also that it is a body corporate for municipal purposes, and that it shall exercise all other powers of a municipal corporation, not inconsistent with the constitution and laws of the United States and the provisions of this act.

A municipal corporation, in the exercise of all of its duties, including those most strictly local or internal, is but a department of the State. The legislature may give it all the powers such a being is capable of receiving, making it a miniature State within its locality. Again: it may strip it of every power, leaving it a corporation in name only; and it may create and recreate these changes as often as it chooses, or it may itself exercise directly within the locality any or all the powers usually committed to a municipality. We do not regard its acts as sometimes those of an agency of the State, and at others those of a municipality; but that, its character and nature remaining at all times the same, it is great or small according as the legislature shall extend or contract the sphere of its action.

In his work on Municipal Corporations (sect. 835), Judge Dillon says, 'As the highway of a State, including streets in cities, are under the paramount and primary control of the legislature, and as all municipal powers are derived from the legislature, it follows that the authority of municipalities over streets, and the uses to which they may be put, depends entirely upon their charter, or legislative enactments applicable to them. It is usual in this contry for the legislature to confer upon municipal corporations very extensive powers in respect to streets and public ways within their limits, and the uses to which they may be appropriated. The authority to open, care for, regulate, and improve streets, taken in connection with the other powers usually granted, give to municipal corporations all needed authority to keep the streets free from obstructions and to prevent improper uses, and to ordain ordinances to this end.'

A corporation can act only by its agents or servants. This obvious truth does not imply that the acts must be done by inferior or subordinate agents, but, on the contrary, the higher the authority of the agent, the more evident is the responsibility of the principal. While a State may be represented in various ways, no one will doubt that its act, when declared through the means of its legislature or its governor within their respective spheres, is more emphatically obligatory upon it than when made known through its inferior departments.

A municipal corporation may act through its mayor, though its common council, or its legislative department by whatever name called, its superintendent of streets, commissioner of highways, or board of public works, provided the act is within the province committed to its charge. Nor can it in principle be of the slightest consequence by what means these several officers are placed in their position,-whether they are elected by the people of the municipality, or appointed by the President or a governor. The people are the recognized source of all authority, state and municipal; and to this authority it must come at last, whether immediately or by a circuitous process.

An elected mayor or an appointed mayor derives his authority to act from the same source; to wit, that of the legislature. The whole municipal authority emanates from the legislature. Its legislative charter indicates its extent, and regulates the distribution of its powers as well as the manner of selecting and compensating its agents. The judges of the Supreme Court of a State may be appointed by the governor with the consent of the senate, or they may be elected by the people. But the powers and duties of the judges are not affected by the manner of their selection. The mayor of a city may be elected by the people, or he may be appointed by the governor with the consent of the senate; but the slightest reflecting will show that the powers of this officer, his position as the chief agent and representative of the city, are the same under either mode of appointment. Whether his act in a case in question is the act of and binding on the city depends upon his powers under the charter to act for the city, and whether he has acted in pursuance of them, not at all upon the manner of his election. It is equally unimportant from what source he receives compensation, or whether he serves without it.

When the question is, whether an individual is acting for himself or for another, the inquiry whether that other directed him to do the work and controlled its performance, and whether he promised to pay him for his service, may be important in determining that question. In a case like the one before us, where all the actors are in some form under under the same authority, where all are created by the same legislature, and it is a question of the distribution of conceded power, these suggestions are unimportant.

Nor are these by any means conclusive considerations in any case. A striking instance to the contrary is found in the case of The China, 7 Wall. 53. It is there held, that although the master of the vessel is bound to take a pilot on board his vessel, and bound to take the first one offering his services, the owners are responsible for a collision caused by the negligence of the pilot thus in charge of the vessel.

In the case of the municipal corporation before us, we have no doubt that the governor and the legislative department are equally representatives and agents of that body, unaffected by the circumstance that the one is appointed by the President and the others are elected by the people; or that the one is paid from one source, and the others from another source. They are severally members and parts of a municipal corporation, whose charter emanates from the Congress of the United States, and by which their powers and authority are conferred or defined.

Whether the board of public works is also a part of and an agency of the municipal corporation is the question before us.

1. The authorities state, and our own knowledge is to the effect, that the care and superintendence of streets, alleys, and highways, the regulation of grades, and the opening of new and closing of old streets, are peculiarly municipal duties. No other power can so wisely and judiciously control this subject as the authority of the immediate locality where the work is to be done. Accordingly, although complaints are often made of corruption and venality, as they are, indeed, of all public functionaries, and attempts made to substitute other agencies, the general judgment of the country has always accepted the municipal organization as the one subject to the least objection for the execution of this duty. In inquiring, therefore, where this power was vested in a particular case, we should expect to find that it was given to the municipality.

2. The act of Congress of Feb. 21, 1871, is entitled 'An Act to provide a government for the District of Columbia,' and its intention is to accomplish that end by the means of a municipal corporation called 'The District of Columbia.' The powers given to it are to contract, sue and be sued, to have a seal, and all other powers of a municipal corporation, not inconsistent with the constitution and laws of the United States or the provisions of this act. The powers thus given are to be exercised by the means and agencies in the act specified; and, unless these means and agencies do represent the corporation, it has nothing, and does nothing. It is a nonentity. The first of these is the existence of a governor, who is invested with the executive power in and over the District of Columbia. This office is a large type of a mayoralty; and his acts or declarations, or notices or services upon him, within the sphere of executive authority, are those of or upon the municipal corporation.

The legislative assembly also is a large edition of a common council, and is the especial power and organ of the municipality in regulating its ordinary business and affairs.

The thirty-seventh section defines and locates the power to regulate and repair the streets and highways of the District of Columbia. The persons there referred to are invested with the entire control of the streets, their regulation and repair. It is declared that there shall be 'a board of public works,' of whom the chief agent of the city corporation-viz., the governor-shall be one, and four other persons to be nominated by the President; and to this board is given the power specified. The full text of the section is as follows:--

BOARD OF PUBLIC WORKS.

'SECT. 37. And be it further enacted, That there shall be in the District of Columbia a board of public works, to consist of the governor, who shall be president of said board; four persons, to be appointed by the President of the United States, by and with the advice and consent of the Senate, one of whom shall be a civil engineer, and the others citizens and residents of the District, having the qualifications of an elector therein. One of said board shall be a citizen and resident of Georgetown, and one of said board shall be a citizen and resident of the county outside of the cities of Washington and Georgetown. They shall hold office for the term of four years, sooner removed by the President of the United States. The board of public works shall have entire control of and make all regulations which they shall deem necessary for keeping in repair the streets, avenues, alleys, and sewers of the city, and all other works which may be intrusted to their charge by the legislative assembly or Congress.

'The shall disburse upon their warrant all moneys appropriated by the United States or the District of Columbia, or collected from property-holders in pursuance of law, for the improvement of streets, avenues, alleys and sewers, and roads and bridges; and shall assess, in such manner as shall be prescribed by law, upon the property adjoining and to be specially benefited by the improvements authorized by law and made by them, a reasonable proportion of the cost of the improvement, not exceeding one-third of such cost, which sum shall be collected as all other taxes are collected.

'They shall make all necessary regulations respecting the construction of private buildings in the District of Columbia, subject to the supervision of the legislative assembly.

'All contracts made by the said board of public works shall be in writing, and shall be signed by the parties making the same, and a copy thereof shall be filed in the office of the secretary of the District; and said board of public works shall have no power to make contracts to bind said District to the payment of any sums of money except in pursuance of appropriations made by law, and not until such appropriations shall have been made. All contracts made by said board, in which any member of said board shall be personally interested, shall be void; and no payment shall be made thereon by said District, or any officers thereof. On or before the first Monday in November of each year, they shall submit to each branch of the legislative assembly a report of their transactions during the preceding year, and also furnish duplicates of the same to the governor, to be by him laid before the President of the United States for transmission to the two Houses of Congress; and shall be paid the sum of two thousand five hundred dollars each annually.'

1. The four persons composing this board are nominated by the President, and hold their offices for a fixed period of time. They cannot be removed except by the President of the United States. The same thing is true of the governor and of the secretary of the District; except that, as to them, there is no power of removal. Each is appointed in the same manner, and holds until the expiration of his term and until his successor is qualified. The same is true, also, of the members of the council, except that their term is of shorter duration. It is true, also, in relation to the house of delegates, except that they are elected by the people, and hold their offices for a fixed term of one year. We have already endeavored to show that it is quite immaterial, on the question whether this board is a municipal agency, from what source the power comes to these officers,-whether by appointment of the President, or by the legislative assembly, or by election.

2. This board is invested with the entire control and regulation of the repair of streets and alleys, and all other works which may be intrusted to their charge by the legislative assembly or Congress. They shall disburse all the money appropriated by the legislative assembly or by Congress, or collected from property-holders for the improvement of streets and alleys.

It is to be noticed here, that the municipal corporation, as represented by the legislative assembly, may impose upon this board such other duties as they think proper. The board is to perform 'all other work intrusted to their charge by the legislative assembly or Congress.' In this respect, certainly, it is not an independent body. It is subject to two masters, either of whom may impose upon it any other work it may choose, and which work it is bound to perform. Its dependence upon Congress and upon the legislative assembly in this respect rests upon the same basis. It will not be claimed by any one that it is not subject to the control of Congress, and dependent upon that body.

3. The board shall disburse all moneys appropriated by the United States or the District of Columbia, or collected from property-holders, for improvements of streets or alleys. In doing the two acts here first specified, the board again acts as the hand and agent of the United States or of the District, as the case may be.

4. On or before the first Monday of each year, the board is required to make a report of their transactions during the preceding year to each branch of the legislative assembly, and also to the President, to be placed before Congress by him. This duty is also an indication of their subordination equally to Congress and to the legislative assembly. The powers given to this board are not of a character belonging to independent officers, but rather those which indicate that it is the representative of the municipal corporation.

Notwithstanding these features, and notwithstanding we find this power given by the act which creates the municipality, and that this is one of the powers ordinarily belonging to a municipal government, and although the manner of its bestowal and the selection of the agents who exercise it are similar to that of the other appointees and agents of the municipal corporation, it is still contended that no liability exists on the part of the corporation to compensate the plaintiff for his injuries.

Is is denied that a municipal corporation (as distinguished from a corporation organized for private gain) is liable for the injury to an individual arising from negligence in the construction of a work authorized by it. Some cases hold that the adoption of a plan of such a work is a judicial act; and, if injury arises from the mere execution of that plan, no liability exists. Child v. City of Boston, 4 Allen, 41; Thayer v. Boston, 19 Pick. 511. Other cases hold that for its negligent execution of a plan good in itself, or for mere negligence in the care of its streets or other works, a municipal corporation cannot be charged. City of Detroit v. Blackely, 21 Mich. 84, is of the latter class, where it was held that the city was not liable for an injury arising from its neglect to keep its sidewalks in repair.

The authorities establishing the contrary doctrine that a city is responsible for its mere negligence, are so numerous and so well considered, that the law must be deemed to be settled in accordance with them. English Authorities.-Mayor v. Henley, 2 Cl. & Fin. 331; Mersey Docks v. Gibbs; Same v. Penhallow, 1 H. Ld. Cas. N. S. 93; 1 H. & N. 439; ''Lan. Canal Co. v. Parnably'', 11 Ad. & Ell. 223; Scott v. Mayor, 37 Eng. Law & Eq. 465. United States Authorities.-Weightman v. Washington, 1 Bl. 39; Nebraska v. Campbell, 2 id. 590; Robbins v. Chicago, 4 Wall. 658; Supervisors v. U.S., id. 435; Mayor v. Sheffield, id. 194. ''New York. Davenport v. Ruckman, 37 N. Y. 568; Requa v. Rochester'', 45 id. 129; Rochester W. L. Co. v. Rochester, 3 id. 463; Conrad v. Ithaca, 16 id. 158; Barton v. Syracuse, 36 id. 54. ''Illinois. Browning v. City of Springfield'', 17 Ill. 143; Claybury v. City of Chicago, 25 id. 535; City of Springfield v. Le Claire, 49 id. 476. Alabama.-Smoot v. Mayor of Wecumpka, 24 Ala. N. S. 112. Connecticut.-Jones v. City of New Haven, 34 Conn. 1. North Carolina.-Meares v. Wilmington, 9 Ired. 73. Maryland.-County Commissioners of Anne Arundel County v. Duckett, 20 Md. 468. Pennsylvania.-Pittsburg City v. Grier, 22 Penn. 54; Erie City v. Schwingle, id. 388. Wisconsin.-Cook v. City of Milwaukee, 24 Wis. 270; Ward v. Jefferson, id. 342. Virginia.-Sawyer v. Corse, 17 Gratt. 241; City of Richmond v. Long, id. 375. Ohio.-Western College v. Cleveland, 12 Ohio, N. S. 377; McCombs v. Akron, 15 id. 476; Rhodes v. Cleveland, 10 id. 159.

And here a distrinction is to be noted between the liability of a municipal corporation, made such by acceptance of a village or city charter, and the involuntary quasi corporations known as counties, towns, school-districts, and especially the townships of New England. The liability of the former is greater than that of the latter, even when invested with corporate capacity and the power of taxation. 1 Dillon, sects. 10, 11, 13; 2 id. sect. 761.

The latter are auxiliaries of the State merely, and, when corporations, are of the very lowest grade, and invested with the smallest amount of power. Accordingly, in Conrad v. Ithaca, 16 N. Y. 158, the village was held to be liable for the negligence of their trustees; while in Weet v. Brockport the town was said not to be liable for the same acts by their commissioners of highways. Id. 163, 4, 9. See Brooke's Abridgment, 'Action on the Case;' Russell v. Men of Devon, 2 T. R. 308, and cases there cited; 16 N. Y., supra.

Whether this distinction is based upon sound principle or not, it is so well settled that it cannot be disturbed. Decisions or analogies derived from this source are of little value in fixing the liability of a city or a village. See Dillon, supra.

Again: it is contended that the board of public works of the District of Columbia is an independent body, acting for itself, not forming a part of the corporation, and that the corporation is not responsible for its acts. We have analyzed the power of this body in a previous part of this opinion, and have set out in full the language of the thirty-seventh section.

Upon this point, also, we are able to derive assistance from the adjudged cases.

The case of Bailey v. Mayor, in the Supreme Court of New York, 3 Hill, 531, and again in the Court of Errors, 2 Den. 431, is a leading authority upon this question. In the year 1834, the legislature of the State of New York passed an act 'to provide for supplying the city of New York with pure and wholesome water.' Sess. Laws 1834, p. 531. The act provided that the governor should appoint five persons, to be known as water commissioners, whose duty it was made to examine all matters relative to that subject (sect. 2); to employ such engineers as they should deem necessary (sect. 3); to adopt such plan as they should deem most advantageous for procuring such supply of water; to ascertain the amount of money meeded for the purpose; and to make conditional contracts for the purchase of lands required, subject to the ratification of the common council of New York (sect. 4). The plan, the estimate of the expense, the conditional contracts, and all other matters connected therewith, were to be presented by the commissioners to the common council of New York (sects. 5, 6), who were directed to submit the plan to the electors of New York for their rejuction or approval (sect. 7). If approved, the council were to direct the commissioners to proceed with the work; and the council was authorized to raise by loan $2,500,000, which money was to be applied to the purposes of the act 'by or under the direction of the commissioners' (sect. 11). The commissioners were authorized to enter upon lands, agree for their purchase or take measures for their condemnation (sects. 12-14), and to use the ground or soil under any street or highway within the State for the purpose of introducing the water (sect. 15). The commissioners were authorized to draw on the city comptroller for all sums due for the purchase of lands, and sums due to contractors, and for their own incidental expenses; and the payments were required to be reported to the council once in every six months.

Under this statute a plan was prepared and approved by the citizens of New York, money was raised, and the work was entered upon. It was proved that the commissioners entered into a contract with Crandall & Van Zandt for building a dam across the Croton River, which was about forty miles from the city of New York, and in another county, in pursuance of the plan adopted. The plaintiff offered also to prove that it was so negligently and carelessly constructed, that upon the occurrence of a freshet in 1841 it was swept away, and the property of the plaintiff, real and personal, situate on both sides of the river below the dam, was destroyed to the value of $60,000. The circuit judge rejected the evidence, and directed the plaintiff to be nonsuited. The case was carried to the Supreme Court, where the nonsuit was set aside. The judgment was delivered by Nelson, C. J., whose opinion opens in these words: 'The principal ground taken at the circuit against this action, and the one upon which it was understood the cause there turned, was that the defendants were not chargeable for negligence or unskilfulness in the construction of the dam in question, inasmuch as the water commissioners were not appointed by them, nor subject to their direction or control.' The learned judge repudiates the argument arising from the fact that the commissioners were appointed by the State; that the defendants had no control over their actions; that they were bound to employ them, and submit to the independent exercise of their control. He held that the commissioners were the agents of the city, and that the latter was responsible for their negligent conduct.

The case was then carried to the Court of Errors of the State of New York, 2 Den. 433, where the judgment of the Supreme Court was affirmed. Cnancellor Walworth bases his opinion of affirmance chiefly upon the fact that the city was the owner of the land on which the dam was built, and therefore liable for the negligent conduct of those who built it. Senators Hand, Bockee, and Barlow base their judgments of affirmance on the ground that the commissioners were the agents of the city. Garder, lieutenant-governor, delivered an able dissenting opinion.

This case is nearer to the one we are considering than any other reported in the books. The struggle in the New York courts was between the dictates of that evident justice and good sense which required that the city should indemnify a sufferer for the loss arising from the acts of those doing a work under its authority and for its benefit, and the technical rule which exempted it from liability for acts of officers not under its control or appointed by it.

If these courts had had before them the additional facts which exist in this case,-to wit, that, in the very statute which made the city of New York a municipal corporation, these persons had been appointed to do every thing necessary to be done respecting the care and improvement of the streets, being invested with their exclusive control; that without that body, and two other equally independent bodies (to wit, the mayor and the legislative assembly, neither of them being declared in words to be part of the municipal body), the municipal corporation had no one part of an organized existence,-we think they would have arrived at the same conclusion, but would have found less difficulty in choosing a ground on which to place their judgment.

In the case before us, we think that Congress intended to make the board of public works a portion of the municipal corporation. The governor, or mayor, as he would ordinarily be called, represented the executive department; the legislative assembly, like a common council, had the exclusive authority to pass all laws or ordinances upon the large class of subjects committed to its charge, with certain specified restrictions; and to the board of public works, like an ordinary agent of the corporation, was given the exclusive control of the streets and alleys. Names are not things. Perhaps there is no restriction on the power of Congress to create a State within the limits of the District of Columbia; but it does not make an organization a State to call its mayor a governor, or its common council a legislative assembly, or its superintendent of streets a board of public works, especially when the statute by which they are created opens with a declaration of its intention to create a municipal corporation. We take the body thus organized to be a municipal corporation, and that its parts are composed of the members referred to; and we hold, therefore, that the proceedings by that body, in the repair and improvement of the street out of which the accident in question arose, are the proceedings of the municipal corporation. That in such case the corporation is responsible, we have already cited the authorities to show.

No doubt there are authorities holding views not in all respects in harmony with those we have expressed. Among these are Thayer v. Boston, 19 Pick. 510; Walcott v. Swampscott, 1 Allen, 101; Child v. City of Boston, 4 id. 41. The first of these cases holds that a city corporation is liable in tort, provided the act is done by the authority and order of the city government, or those branches of the government invested with authority to act for the corporation; but that it must appear that the act was done by the express authority of the city, or bona fide in pursuance of a general authority on the subject. To this we assent. Walcott v. Swampscott was an action against a town. The surveyor of highways employed one O'Grady to drive a horse and cart with a load of gravel for the repair of a highway; and, while thus engaged, he came in collision with the plaintiff. The town was held not to be liable, on the theory that the surveyor was not an agent or servant of the town, but an independent officer appointed to perform a public duty in which the town had no interest. In Child v. City of Boston it was held that the city was not responsible for any deficiency in the plan of drainage adopted by the city, although the plaintiff was injured thereby; that the duty in this respect was of a quasi judicial nature, involving discretion, and depending upon public considerations; that in this they acted, not as agents of the city, but as public officers. In this respect the case is in hostility to ''Roch. White Lead Co. v. Rochester'', 3 N. Y. 463, where the city was held liable because it constructed a sewer which was not of sufficient capacity to carry off the water draining into it. The work was well done; but the adoption and carrying out of the plan was held to be an act of negligence. The Boston case, however, holds, that if a sewer, originally well constructed, becomes defective by reason of low lands being filled up so that the outflow is obstructed, it is the duty of the city so to extend the sewer that its efficiency shall be restored, and that for a failure to do so it becomes liable to those whose property is injured by the overflow of the sewer. In its practical results, this is one of the strongest cases to be found in favor of municipal liability.

We do not perceive that the circumstance that the fee of the streets is in the United States, and not in the municipal corporation, is material to the case. In most of the cities of this country, the fee of the land belongs to the adjacent owner; and, upon the discontinuance of the street, the possession would revert to him. The streets and avenues in Washington have been laid out and opened by competent authority. The power and the duty to repair them are undoubted, and would not be different were the streets the absolute property of the corporation. The only questions can be as to the particular person or body by which the power shall be exercised, and how far the liability of the city extends.

The judgment of the General Term is reversed, and the case is remanded to the Supreme Court of the District of Columbia, with directions to affirm the judgment of the Special Term upon the verdict.

MR. JUSTICE FIELD, with whom concurred MR. JUSTICE BRADLEY, dissenting.


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


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Barnes v. District of Columbia/Dissent Field

MR. JUSTICE FIELD, with whom concurred MR. JUSTICE BRADLEY, dissenting.

I dissent from the judgment in this case. I do not think the District of Columbia should be held responsible for the neglect and omissions of officers whom it has no power to select or control.

MR. JUSTICE SWAYNE and MR. JUSTICE STRONG dissented.


text: Talk:Barnes v. District of Columbia/Dissent Field


text:
United States v. Norton (91 U.S. 558)

THIS case came up on a certificate of division between the judges of the Circuit Court of the United States for the Southern District of New York.

Mr. Attorney-General Pierrepont, for the United States, submitted a motion to advance the cause.

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

title: United States v. Norton (91 U.S. 558)


text: Talk:United States v. Norton (91 U.S. 558)


text:
United States v. Norton (91 U.S. 558)/Opinion of the Court

This is a criminal case. The motion to advance is made on behalf of the United States, upon the representation of the Postmaster-General, in substance, that the questions in dispute will embarrass the operations of the government while they remain unsettled. As our rule has but recently gone into operation, we will, in this case, accept this statement as sufficient, and grant the motion. Hereafter, motions to advance upon this ground must state the facts in such manner that we may judge whether the government will be embarrassed in the administration of its affairs by delay. In the present crowded state of the docket, it is our duty to see that cases are not unnecessarily brought forward to the prejudice of others.

The case may be set down for argument on the fifteenth day of March.


text: Talk:United States v. Norton (91 U.S. 558)/Opinion of the Court


text:
Hall v. United States (91 U.S. 559)

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

Argued by Mr. Assistant Attorney-General Edwin B. Smith for defendants, and submitted on printed arguments by H. J. Horn for plaintiffs.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Hall v. United States (91 U.S. 559)


text: Talk:Hall v. United States (91 U.S. 559)


text:
Hall v. United States (91 U.S. 559)/Opinion of the Court

Fifteen hundred dollars per annum are allowed to collectors of internal revenue as salary for their services and that of their deputies, to be paid quarterly. Commissions, in addition to salary, are also allowed to such officers, to be computed upon the amounts by them respectively collected, paid over, and accounted for, under the instructions of the Treasury Department, as follows: Three per cent upon the first $100,000; one per centum upon all sums above $100,000, and not exceeding $400,000; and one-half of one per centum on all sums above $400,000. Such an officer may also keep and render to the proper officers of the treasury an account of his necessary and reasonable charges for stationery and blank-books used in the performance of his official duties, and for postage actually paid on letters and documents received or sent, and exclusively relating to official business; and, if the account is approved by the proper accounting officers, the collector is entitled to be paid for the same: but the provision is that no such account shall be approved, unless it shall state the date and the particular items of every such expenditure, and shall be verified by the oath or affirmation of the collector.

Two provisos are annexed to those enactments: (1.) That the salary and commissions of no collector, exclusive of stationery, blank-books, and postage, shall exceed $10,000 in the aggregate, nor more than $5,000, exclusive of the expenses for rent, stationery, blank-books, and postage, and pay of deputies and clerks, to which such collector is actually and necessarily subjected in the administration of his office. (2.) That the Secretary of the Treasury be authorized to make such further allowances from time to time, as may be reasonable, in cases in which, from the territorial extent of the district, or from the amount of internal duties collected, or from other circumstances, it may seem just to make such allowances. 13 Stat. 231.

Sufficient appears to show that the principal defendant was duly appointed a collector of internal revenue under the act of Congress in that case made and provided, and that the foundation of the suit is the official bond given by the appointee for the faithful discharge of the duties of the office. Breaches of the conditions of the bond having been committed, as alleged, the United States commenced an action of debt in the District Court against the principal and his sureties, claiming the penalties of the bond. Service was made; and the defendants appeared, and pleaded (1.) non est factum; (2.) performance; (3.) set-off in the sum of $8,203.06 for money before that time advanced, paid, laid out, and expended by the defendant to and for the use of the plaintiffs, and at their instance, for the work and labor of the defendant and his servants and deputies, done and performed by him, as such collector, for the plaintiffs, and at their instance and request.

Claim is also made for the same sum in the same plea, upon the ground that it was due and owing to the defendant from the plaintiffs for commissions, expenses, and charges for extra services of himself and his servants, done and performed at the special instance and request of the plaintiffs.

Issue was joined by the plaintiffs upon the first plea; and to the second the plaintiffs reply, and deny that the defendant has well and truly performed the conditions of the writing obligatory, and assign the following breaches: (1.) That he has not accounted for and paid over to the United States all the public moneys whien came into his hands, in compliance with the orders and regulations of the Secretary of the Treasury. (2.) That he did not faithfully execute and perform all the duties of his office, as more fully set forth in the replication.

Both parties, having waived a trial by jury, went to trial before the court without a jury; and the finding and judgment were for the plaintiffs, in the sum of $11,517.63. Exceptions were filed by the defendants; and they sued out a writ of error, and removed the case into the Circuit Court.

Due settlement of the collector's accounts had been made by the accounting officers of the treasury; and the plaintiffs, to support the issue on their part, introduced the certified transcript of the same, to which the defendants objected: but the court overruled the objection, and admitted the evidence; and the defendants excepted. Said transcript included the statement of differences, and showed that the sum of $20,120 was the balance due from the collector.

Collections, it seems, had been made by the officer, for the preceding year, amounting to $77,702.08; and it did not appear that he had been paid during that period any extra allowance above his salary and commissions, nor that any of the charges claimed as set-off had been credited in the settlement of his accounts. Apart from that, it was admitted by the plaintiffs that the defendants had paid into court the sum of $11,435.17, which is to be deducted from the balance found due from the defendants by the accounting officers of the treasury.

Set-offs were claimed by the defendants, as follows: (1.) $5,010 paid by the collector, during the summer and fall of 1866, to sixteen deputy-collectors employed by him during that period in his district. (2.) $648 paid for the hire of clerks in his office during the quarter ending Sept. 30 of the same year. (3.) $1,100 paid for hire of clerks in making out his accounts and returns during that and the succeeding year.

Nothing being alleged to the contrary, it will be assumed that those several claims had been duly presented to the proper officers of the treasury, and that they had been finally disallowed. They were separately offered in evidence at the trial; and the ruling of the court in each instance was, that the same was properly rejected by the accounting officers of the treasury. Seasonable exception to the ruling of the court was taken by the defendants. Appearance was entered by each party in the Circuit Court, and they were both there heard; and the Circuit Court affirmed the judgment of the District Court, and the defendants sued out the present writ of error.

Errors have not been assigned, as required by the rules of the court; but the course of the argument, as exhibited in the printed brief, warrants the conclusion that the only errors relied on are the rulings of the District Court, that the accounts filed in set-off were properly rejected by the accounting officers of the treasury. Defendant litigants had no right to file accounts in set-off at common law; nor did they ever have that right until the passage of the statute of 2 Geo. II., ch. 24, sect. 4, which enacted, in substance and effect, that, where there were mutual debts between the plaintiff and the defendant, one debt may be set against the other, and that such matter may be given in evidence under the general issue, or may be pleaded in bar, so that notice shall be given of the sum or debt intended to be offered in evidence. Chit. on Contr. 948.

Questions of the kind, where the United States are plaintiffs, must be determined wholly by the acts of Congress, as the local laws have no application in such cases. United States v. Eckford, 6 Wall. 490; United States v. Robeson, 9 Pet. 324; Conklin, Treat. 127.

Judgment in such suits is required to be rendered at the return term, unless the defendant shall, in open court, make oath or affirmation that he is equitably entitled to credits which had not been, previous to the commencement of the suit, submitted to the consideration of the accounting officers of the treasury and rejected, and specifying each particular claim so rejected in the affidavit. 1 Stat. 515; United States v. Giles, 9 Cranch, 236; 5 Stat. 83.

Sect. 4 of the same act provides, that, in suits between the United States and individuals, no claim for a credit shall be admitted at the trial, except such as shall appear to have been submitted to the accounting officers of the treasury for their examination, and to have been by them disallowed, unless it shall appear that the defendant, at the time of the trial, is in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting a claim for such credit at the treasury by absence from the United States, or some unavoidable accident.

Claims for credit in suits against persons indebted to the United States, if it appears that the claim had previously been presented to the accounting officers of the treasury for their examination, and had been by them disallowed in whole or in part, may be admitted upon the trial of the suit; but it can only be admitted as a claim for credit, and must be proved to be just and legal before it can be allowed. Equitable claims for credit, if falling within the latter clause of the fourth section of that act, may be admitted at the trial of such a suit, though never presented to and disallowed at the treasury; but the presentation of such a claim will amount to nothing, unless it is proved that the same is justly due to the claimant.

Due returns, it seems, were made by the collecter. It is not questioned that his accounts were regularly settled by the accounting officers of the treasury; nor is it suggested that due credit was not given to him for every thing which he could properly claim, except for the extra services and expenses charged in the accounts filed in set-off; and it appears that those accounts were duly presented to the accounting officers of the treasury, and were by them rejected before the suit was instituted. When the claims were offered, the court admitted the evidence; and the only complaint is, that the court ruled that the claims were properly rejected by the accounting officers of the treasury, which is the only question presented for decision.

Independent of the second proviso to the section defining the compensation to be allowed to such collectors, it would be clear beyond every doubt that no claim of the kind could be allowed by any court, as appears from the acts of Congress upon the subject and the decisions of this court. Legislation upon the subject commenced with respect to collectors of the customs, but was ultimately extended to all executive officers with fixed salaries, or whose compensation was prescribed by law. Sect. 18 of the act of the 7th of May, 1822, provided that no collector, surveyor, or naval officer shall ever receive more than $400 annually, exclusive of his compensation as such officer, and the fines and forfeitures allowed by law for any service he may render in any other office or capacity. 3 Stat. 696.

Prior to that, the settled practice and usage were to require collectors to superintend lights and light-houses in their districts, and to disburse money for the revenue-cutter service. Services of the kind were charged as extra services, and extra compensation was in many cases allowed for such service, until Congress interfered, and by that act gave such officers a fixed compensation, subject to the provision that they should never receive more than $400, exclusive of the fixed compensation, and their due proportion of fines, penalties, and forfeitures. Officers not named in that act also received fixed salaries; and they, whenever they performed extra service under the direction of the head of a department, claimed extra compensation. Claims of the kind were in some instances disallowed; and in certain cases, where litigation ensued, it was decided by this court that such claims were a proper set-off to the money demands of the United States. Miner v. United States, 15 Pet. 423; Gratiot v. United States, id. 336; United States v. Ripley, 7 id. 18.

Litigations of the kind became frequent; and Congress again interfered, and provided that no officer in any branch of the public service, or any other person whose salary or whose pay or emoluments is or are fixed by law and regulations, shall receive any extra allowance or compensation, in any form whatever, for the disbursement of public money or the performance of any other service, unless the said extra allowance or compensation be authorized by law. 5 Stat. 349.

Since then many other acts of Congress have been passed upon the subject, of which one more only will be reproduced. Like the preceding act, it provides that no officer in any branch of the public service, or any other person whose salary, pay, or emoluments is or are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same shall be authorized by law; and the appropriation therefor is explicitly set forth that it is for such additional pay, extra allowance, or compensation. 5 Stat. 510; 9 id. 297, 365, 367, 504, 542, 543, 629; 10 id. 97-100, 119, 120.

Compensation for extra services, where no certain sum is fixed by law, cannot be allowed by the head of a department to any office who has by law a fixed or certain compensation for his services in the office he holds, unless such head of a department is thereto authorized by an act of Congress; nor can any compensation for extra services be allowed by the court or jury as a set-off, in a suit brought by the United States against any officer for public money in his hands, unless it appears that the head of the department was authorized by an act of Congress to appoint an agent to perform the extra service, that the compensation to be paid for the service was fixed by law, that the service to be performed had respect to matters wholly outside of the duties appertaining to the office held by the agent, and that the money to pay for the extra services had been appropriated by Congress. Converse v. United States, 21 How. 470.

None of the conditions precedent suggested existed in the case before the court; and it follows that no such allowance could have been made by the accounting officers of the treasury in settling the accounts of the principal defendant, unless the same had been previously approved by the Secretary of the Treasury, under the second proviso in the twenty-fifth section of the act prescribing the compensation to be allowed to the collectors of internal revenue. 13 Stat. 232.

Authority is there given to the Secretary of the Treasury to make such further allowances to such collectors, from time to time, as may be reasonable; but the power to be exercised in that behalf is one vested in his discretion, both as to time and amount. He may make an allowance one year, and refuse it the next, or he may never make it at all, as to him may seem just and reasonable. No appeal lies from his decision in that regard, either to the accounting officers of the treasury or to the courts. Instead of that his decision is final, unless reversed by Congress.

Judgment affirmed.


text: Talk:Hall v. United States (91 U.S. 559)/Opinion of the Court


text: Category:United States Congress

title: Category:United States Congress


text: Meyer v. Arthur

title: Meyer v. Arthur


text: Talk:Meyer v. Arthur

title: Talk:Meyer v. Arthur


text:
Meyer v. Arthur/Opinion of the Court

ERROR to the Circuit Court of the United States for the Southern District of New York.

This is a suit to recover import duties alleged to have been unlawfully exacted by the defendant, the collector of the port of New York. The articles on which they were charged were white lead, nitrate of lead, oxide of zinc, and dry and orange maineral, imported after the first day of August, 1872. By the second section of the act to reduce duties on imports, passed June 6, 1872, 17 Stat. 230, it was provided that on and after the first day of August, 1872, only ninety per cent of the duties theretofore imposed should be levied upon certain enumerated articles imported from foreign countries; amongst which were the following, as described in the words of the act:--

'All metals not herein otherwise provided for, and all manufactures of metals of which either of them is the component part of chief value, excepting percussion-caps, watches, jewelry, and other articles of ornament;' with a proviso excepting certain kinds of wire-rope, and chains made of steel wire.

The following facts appeared in evidence upon the trial.

Oxide of zinc is manufactured in European establishments, as follows:--

Sheets of zinc ordinarily sold in commerce are placed in retorts. The face of the retort has an opening large enough to admit the sheet. The backs of the retorts are enclosed in a furnace, and the retorts are heated by bituminous coal to a white heat. The action of the heat vaporizes the spelter, which is entirely consumed. The vapor passes out of the mouth of the retort into large pipes, into which currents of air are forced. The vapor combines with the oxygen of the air, and becomes white, snow-like flakes. The current bears these flakes along through the pipes, which terminate in long chambers. At the mouth of the pipes bags are suspended, in which the flakes are caught. No further process is required.

The oxide of zinc in suit was manufactured in this way.

Nitrate of lead is a chemical combination of lead and nitric acid. Lead previously melted and cooled is placed in a vessel filled with dilute heated nitric acid, and subjected to a slight additional heat. The nitrate of lead is formed in crystals upon the side of the vessel. Its form as a commodity in the market is ordinarily that of a white, opaque crystal.

Orange or red lead is made by roasting dry white lead in a furnace, and exposing it to the air which is admitted into the heated receptacle. By this process the white lead loses a portion of its carbonic acid, and absorbs oxygen from the air. Orange or red lead is used by paper-stainers, manufacturers of wall-paper, and for highly-colored cards.

White lead is manufactured as follows:--

Small earthen pots are partially filled with vinegar or acetic acid. Pig-lead of commerce, cast into round perforated plates technically called buckles, are placed in the pots above the acid, and not in contact with it. The pots thus filled are placed in a chamber upon a layer of spent tan-bark. Alternate layers of pots and tan-bark are filled up to the roof of the chamber: air is introduced into the chamber through flues and natural crevices. The tan contains moisture, becomes heated, and evolves carbonic acid. By chemical action the lead is oxidized by the oxygen of the air, and then, in combination with the carbonic acid, becomes a carbonate of the oxide of lead.

The acetic acid does not touch the lead; but its presence facilitates the process of oxidation.

In the course of three months the lead has generally become entirely oxidized, of a white color, but retaining its original shape of a buckle. It is then crushed in rollers, any uncorroded pieces of lead having first been separated from it, then ground and dried. Then, if it is to be sold in oil, it is reground with linseed-oil.

An analysis of the articles in question gave the following results:--

OXIDE OF ZINC.

...........-

.......... .100.

ORANGE MINERAL.

acid ......9.

...........-

DRY WHITE LEAD.

WHITE LEAD IN OIL.

title: Meyer v. Arthur/Opinion of the Court


text: Talk:Meyer v. Arthur/Opinion of the Court


text:
Spencer v. United States

APPEAL from the Court of Claims.

This cause was argued by Mr. Joseph Casey for the appellant, and by Mr. Assistant Attorney-General Edwin B. Smith for the appellee.

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

title: Spencer v. United States


text: Talk:Spencer v. United States

title: Talk:Spencer v. United States


text:
Spencer v. United States/Opinion of the Court

In this case, the Court of Claims has certified here, in answer to inquiries from us, (1) that the cotton in question did not come into the hands of any agent of the United States as abandoned or captured property, and was not sold as such; and (2) that the proceeds of the sale were not paid into the treasury of the United States.

Upon this state of facts, the judgment of the court below was clearly right. It is certain that no suit can be maintained against the United States under the Abandoned and Captured Property Act, if the property has neither been captured, seized, nor sold pursuant to its provisions, and the proceeds are not in the treasury.

Judgment affirmed.


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


text:
McManus v. O'sullivan

ERROR to the Supreme Court of the State of California.

Submitted by Mr. Calhoun Benham for plaintiff, and by Mr. John M. Coghlan and Mr. William Irvine for defendants.

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

title: McManus v. O'sullivan


text: Talk:McManus v. O'sullivan

title: Talk:McManus v. O'sullivan


text:
McManus v. O'sullivan/Opinion of the Court

Terence B. McManus, under whom the plaintiff claims, entered into the possession of the premises in controversy in 1854, or thereabouts. He continued his possession until his death in 1861, at or about which time the defendants entered and held adversely to his estate until the commencement of this action in August, 1867.

When McManus entered, and during all the time he was in possession, the city of San Francisco was asserting title to the property, under a Mexican pueblo right, before the commissioners appointed under the act of Congress providing for the settlement of private land-claims in California, and before the courts upon appeal. A decree was rendered in favor of the city by the Circuit Court of the United States, May 18, 1865. From this decree an appeal was taken to this court; pending which an act was passed, March 8, 1866, entitled 'An Act to quiet the title to certain lands within the corporate limits of the city of San Francisco.' 14 Stat. 4. Upon the passage of this act, the appeal was dismissed.

McManus and his representatives do not pretend to connect themselves with the city title by any actual grant. The extent of their claim is, that their possession was evidence of their connection with the true title, which was at that time the city title. Neither do the defendants assert any claim under the true title. Their only defence is possession adverse to the estate of McManus, but admitted to be not adverse to the city. Against this the plaintiff insists, that, as the defendants did not claim adversely to all the world, their possession adverse to him could not defeat his right of action.

Thus it will be seen that two questions were properly presented to the Supreme Court of California for adjudication; to wit:--

1. Does possession necessarily connect itself with the true title, in the absence of proof to the contrary? and,--

2. Is possession, within the meaning of the statute of limitation in California, adverse to one who claims title, if it is not also adverse to all the world?

If these questions were decided against the plaintiff, no Federal question could be involved. The record, without the opinion of the court, shows that they were presented, and does not show that any Federal question was decided. Under such circumstances, it is proper, if it can be at any time, to look to the opinion of the court, which has been sent here with the record, to ascertain whether, in point of fact, the court necessarily passed by the intermediate questions, and actually did decide as to the effect of the pueblo right and the treaty, with the accompanying acts of Congress, upon the title of the plaintiff.

Looking to that, we find that the court decided that possession did not carry with it the presumption that the plaintiff held under the city title; and that, if the possession of the defendants was adverse to him, it was a bar to his right of action, even though it was not adverse to all the world. These are questions within the exclusive jurisdiction of the State courts, and not subject in any manner to our re-examination. Their decision against the plaintiff made it unnecessary to consider the proposed Federal question. Thus it is seen that the Federal question was, in fact, not decided; and that, in the view the court below took of the case, such a decision was not necessary. It is clear, therefore, that we have no jurisdiction of this case.

Writ of error dismissed.


text: Talk:McManus v. O'sullivan/Opinion of the Court


text:
Dainese v. Cooke

APPEAL from the Supreme Court of the District of Columbia.

Mr. F. P. Cuppy and Mr. John W. Ross for the appellant, and Mr. Edwin L. Stanton for the appellees.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Dainese v. Cooke


text: Talk:Dainese v. Cooke

title: Talk:Dainese v. Cooke


text:
Dainese v. Cooke/Opinion of the Court

There are appeals by Dainese in two cases from decrees of the Supreme Court of the District of Columbia, in one of which he was complainant, and his bill was dismissed. In the other he was defendant, and a perpetual injunction was decreed against him. As the subject-matter of these suits is the same, they will be considered together in this court, and should have been consolidated and heard together in the court below, though two separate decrees were rendered, and separate records are presented to us.

The appellant's bill was filed first. He therein alleges, that having made a contract with one Wesley Frey, on the 29th August, 1872, for the construction of a block of frame buildings on the south side of C Street shouth-east, in Washington City, he applied to Adolph Cluss, inspector of buildings, exhibited to him said contract, and obtained his regular written permit to erect the buildings; that Frey entered upon the work; and, when he had so far progressed with the buildings that he was ready to put on the roof, plaintiff received on the 25th November, from said Cluss, a notification, that, unless he removed them, he, Cluss, would be compelled to take them down at once at complainant's expense. The contract for the buildings, the permit to build, and the demand to remove them, are made exhibits. The latter is based upon the ground that the buildings are not in conformity with the regulations in force in the city, and that they are of insufficient material, and dangerous to the community. The prayer of the bill is for an injunction against the appellees, constituting the board of public works, of which Cluss was a member, to prevent their interference with his buildings. On the filing of this bill a temporary restraining order was granted, and the hearing of the application for injunction set for the seventh day of December.

The record discloses no further action in this case until Jan. 4, when the answer of the appellees and the separate answer of Cluss were filed.

The answer in substance admits that the contract with Frey was shown to Cluss, and that Cluss issued a permit to build. It denies that the buildings conform to the contract or to the permit, and avers that the materials of which they are being constructed are insufficient and dangerous; and that, such being the opinion of Cluss, the inspector of buildings, the board had ordered their further construction to be arrested; and, on the failure of Dainese to conform to their requirements, they ordered that the buildings should be pulled down by the police force.

They annex as exhibits the affidavits of Morsell, Wilson, Edmonston, and Fleming, in support of their allegation of the character of the work; and also the rules and regulations respecting the construction of private buildings, prepared by them as a board of public works.

The next record entry in this case is under date of Jan. 11, 1873, and is as follows: 'This cause came on to be heard on bill, answer, and affidavits. It is thereupon this day adjudged, ordered, and decreed, that complainant's bill be, and hereby is, dismissed.'

On appeal to the general term, this decree was ordered to be affirmed without prejudice. What this qualification may mean we are quite at a loss to determine.

In this record there is no evidence in behalf of defendants except four affidavits filed with their answer as exhibits. There are eleven affidavits on behalf of complainant.

Adverting now to the other case, it presents a bill filed by the appellees, who compose the board of public works, against Dainese and Frey, to prevent them from proceeding with the work on the same buildings, which are the subject of the first suit. This bill was presented to Judge Wylie on the 31st December, 1872, when he granted a restraining order, and set the motion for an injunction for hearing at the City Hall, Jan. 11, 1873, at eleven o'clock A.M. The bill itself was afterwards-to wit, Jan. 2-filed in the Supreme Court. The answer of Frey is filed Jan. 6, and that of Dainese Jan. 7; and the next action is on the eleventh of that month, when the following record entry was made:--

'This cause came on to be heard on bill, answer, and affidavits. The cause was argued by counsel. It is, thereupon, this day adjudged, ordered, and decreed, that the injunction prayed for in said bill be, and the same is hereby, made permanent.'

There is found in this transcript a statement of Dr. Verdi, health-officer; of A. B. Mullett, who styles himself consulting architect of the board of public works; a protest of some twenty citizens against the buildings, also of the trustees of School District No. 3,-all of which are unsworn, and wholly without authentication.

There are but two affidavits in support of the bill,-that of Entwissle and of Wood.

The bill alleges, in the same general terms as the answer to the bill in the first suit, that the buildings were of insufficient material, dangerous to the community, and in violation of the Building Regulations, especially sects. 3, 5, 6, 9, 32, 33, 36. The answer is a specific and full denial of these allegations, and is supported by four affidavits.

There is no replication to the answer in either case, and no stipulation that the affidavits may be treated as depositions on the hearing. There is no order disposing of the application for a preliminary injunction in either case.

Taking, however, the short and sententious order of the court to be as it purports,-a final hearing on bill, answer, and affidavits in each case,-we are of opinion that the preponderance of evidence as to the only issue made is in favor of the appellant. That issue was, whether the materials were so defective as to justify the arrest of the work after so much had been done, and whether the mode of constructing the buildings endangered the public safety.

In deciding this question, the protest of citizens and of the trustees of the school district, the statement of Dr. Verdi and the certificate of Mullett, cannot be considered, because they are not affidavits, and are not evidence under any circumstances, unless by consent.

Looking to the suit against Dainese, we have his full and unequivocal denial of the charges in his answer; and also that of Frey, supported by a decided preponderance of affidavits: and though we may suspect, from the fact that several of these latter are signed with a cross, that the affiants were not the most intelligent men that could be found, they were probably mechanics engaged in the work, and fully capable of telling whether timbers were in a state of decay, or were badly put together. If it be true that the proper officer, on examining appellant's contract, gave a permit for the erection of such buildings as it contemplated,-and of this there is no denial,-the other side should make a clear case of departure from the permit, or danger to public interests, before appellant should be arrested midway in the construction of the buildings, and have them summarily torn down, with all the necessary loss and expense to him of such a course. There is no such clear case made, and the evidence preponderates the other way; and we must, on this ground alone, reverse both decrees.

Usually, when a case in chancery has been heard, and a final decree rendered, this court, if it reverses that decree, will direct such decree as the court below should have rendered; which in this case would be to dismiss the bill of the appellees, and render a perpetual injunction against them on the bill of appellant. But, pending the appeal, the board of public works has been abolished. The buildings undoubtedly have been removed; and no injunction against their removal can restore them, or compensate the appellant for their removal.

Besides, the summary and irregular manner in which the case was tried below leaves this court in great doubt as to what was tried, and on what evidence the cases were heard.

''On the whole, we shall order the decree of the Supreme Court of the District of Columbia to be reversed in each of the cases; that they be remanded to that court for such further proceedings, including leave to amend pleadings, as may be in accordance with equity and with this opinion. Appellant to recover his costs of appeal in both cases''.

title: Dainese v. Cooke/Opinion of the Court


text: Talk:Dainese v. Cooke/Opinion of the Court


text:
Haldeman v. United States

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

Mr. John M. Harlan for the plaintiffs in error.

Mr. Assistant Attorney-General Edwin B. Smith, contra.

Mr. JUSTICE DAVIS delivered the opinion of the court.

title: Haldeman v. United States


text: Talk:Haldeman v. United States

title: Talk:Haldeman v. United States


text:
Haldeman v. United States/Opinion of the Court

This is an action of debt against the plaintiffs in error on a bond conditioned for the performance of official duty by Haldeman, as surveyor of the customs, and depositary of the public moneys, at Louisville, Ky. They pleaded four pleas of judgment recovered for the same cause of action, to each of which the court below sustained a demurrer. The correctness of these rulings presents the only point in the case.

It is a general rule, that a plea of former recovery, whether it be by confession, verdict, or demurrer, is a bar to any new action of the same or the like nature for the same cause. This rule conforms to the policy of the law, which requires an end to the litigation after its merits have been determined. But there must be at least one decision on a right between the parties before there can be said to be a termination of the controversy, and before a judgment can avail as a bar to a subsequent suit. Conceding that this action is between the same parties as well as for the same subject-matter as the former one, are the United States barred from a recovery by reason of any thing alleged in the pleas? The first, second, and fourth pleas are not essentially different. In each the judgment relied on is, 'that the said suit is not prosecuted, and be dismissed.' This entry is nothing more than the record of a nonsuit, although the customary technical language is not used. But the plaintiffs in error deny that this is the effect of the order, and insist that the pleas present a case of retraxit, by which the United States for ever lost their action, because they voluntarily announced to the court, that, on the defendants' paying the costs, the suit would be dismissed. Such an announcement does not imply that they had no cause of action, or, if they had, that they intended to renounce it, or that it was adjusted. Nonsuits are frequently taken, on payment of costs by the adverse party, in order that the controversy may be arranged out of court; but they do not preclude the institution and maintenance of subsequent suits in case of failure to settle the matters in dispute. The defendants, by consenting to pay the costs, gained delay, if nothing more. This doubtless served their purpose; but the idea of turning the mere withdrawal of a suit into an intentional abandonment of the claim or demand asserted thereby is an afterthought.

The third plea alleges that the former suit was identical with this, and was 'dismissed agreed' by the judgment of the court. If this plea is true, the others cannot be; for they recite the judgment differently; and there could have been but one record of the judgment, as there was but one suit. In general, a defendant may in different pleas state as many separaty and independent grounds of defence as he may be advised is material; but this rule has no application to this case. There is but one defence presented, and that required only a single plea. More than this was unnecessary, and in violation of good practice. It is quite apparent, from the language of the record in the fourth plea (the only one which purports to give it in full), that there was no such entry of judgment as stated in the third plea; and on this account it should have been rejected. But, even if it truly recites the entry of judgment, it is still bad. There must have been a right adjudicated or released in the first suit to make it a bar, and this fact must appear affirmatively. The plea does not aver that the parties had by their agreement adjusted the matter in controversy, or that there was any adjudication thereon. Whatever may be the effect given by the courts of Kentucky to a judgment entry 'dismissed agreed,' it is manifest that the words do not of themselves import an agreement to terminate the controversy, nor imply an intention to merge the cause of action in the judgment. Suits are often dismissed by the parties; and a general entry is made to that effect, without incorporating in the record, or even placing on file, the agreement. It may settle nothing, or it may settle the entire dispute. If the latter, there must be a proper statement to that effect to render it available as a bar. But the general entry of the dismissal of a suit by agreement is evidence of an intention, not to abandon the claim on which it is founded, but to preserve the right to bring a new suit thereon, if it becomes necessary. It is a withdrawal of a suit on terms, which may be more or less important. They may refer to costs, or they may embrace a full settlement of the contested points; but, if they are sufficient to bar the plaintiff, the plea must show it. Tried by this test, the third plea is, like the others, bad.

Judgment affirmed.


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


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Twin-Lick Oil Company v. Marbury

APPEAL from the Supreme Court of the District of Columbia.

Mr. J. D. McPherson and Mr. Charles Beasten, Jr., for the appellants.

Mr. Walter S.C.ox and Mr. W. D. Davidge for the appellee.

Mr. JUSTICE MILLER delivered the opinion of the court.

title: Twin-Lick Oil Company v. Marbury


text: Talk:Twin-Lick Oil Company v. Marbury

title: Talk:Twin-Lick Oil Company v. Marbury


text:
Twin-Lick Oil Company v. Marbury/Opinion of the Court

The appellant here, complainant below, was a corporation organized under the laws of West Virginia, engaged in the business of raising and selling petroleum. It became very much embarrassed in the early part of 1867, and borrowed from the defendant the sum of $2,000, for which a note was given, secured by a deed of trust, conveying all the property, rights, and franchises of the corporation to William Thomas, to secure the payment of said note, with the usual power of sale in default of payment. The property was sold under the deed of trust; was bought in by defendant's agent for his benefit, and conveyed to him in the summer of the same year. The defendant was, at the time of these transactions, a stockholder and director in the company; and the bill in this case was filed in April, 1871, four years after, to have a decree that defendant holds as trustee for complainant, and for an accounting as to the time he had control of the property. It charges that defendant has abused his trust relation to the company, to take advantage of its difficulties, and buy in at a sacrifice its valuable property and franchises; that, concealing his knowledge that the lease of the ground on which the company operated included a well, working profitably, and by promises to individual shareholders that he would purchase in the property for the joint benefit of the whole, he obtained an unjust advantage, and in other ways violated his duty as an officer charged with a fiduciary relation to the company. As to all this, which is denied in the answer, and as to which much testimony is taken, it is sufficient to say that we are satisfied that the defendant loaned the money to the corporation in good faith, and honestly to assist it in its business in an hour of extreme embarrassment, and took just such security as any other man would have taken; that when his money became due, and there was no apparent probability of the company paying it at any time, the property was sold by the trustee, and bought in by defendant at a fair and open sale, and at a reasonable price; that, in short, there was neither actual fraud nor oppression; no advantage was taken of defendant's position as director, or of any matter known to him at the time of the sale, affecting the value of the property, which was not as well known to others interested as it was to himself; and that the sale and purchase was the only mode left to defendant to make his money.

The first question which arises in this state of the facts is, whether defendant's purchase was absolutely void.

That a director of a joint-stock corporation occupies one of those fiduciary relations where his dealings with the subject-matter of his trust or agency, and with the beneficiary or party whose interest is confided to his care, is viewed with jealousy by the courts, and may be set aside on slight grounds, is a doctrine founded on the soundest morality, and which has received the clearest recognition in this court and in others. Koehler v. Black River Falls Iron Co., 2 Black, 715; Drury v. Cross, 7 Wall. 299; Luxemburg R.R. Co. v. Maquay, 25 Beav. 586; The Cumberland Co. v. Sherman, 30 Barb. 553; 16 Md. 456. The general doctrine, however, in regard to contracts of this class, is, not that they are absolutely void, but that they are voidable at the election of the party whose interest has been so represented by the party claiming under it. We say, this is the general rule: for there may be cases where such contracts would be void ab initio; as when an agent to sell buys of himself, and by his power of attorney conveys to himself that which he was authorized to sell. But, even here, acts which amount to a ratification by the principal may validate the sale.

The present case is not one of that class. While it is true that the defendant, as a director of the corporation, was bound by all those rules of conscientious fairness which courts of equity have imposed as the guides for dealing in such cases, it cannot be maintained that any rule forbids one director among several from loaning money to the corporation when the money is needed, and the transaction is open, and otherwise free from blame. No adjudged case has gone so far as this. Such a doctrine, while it would afford little protection to the corporation against actual fraud or oppression, would deprive it of the aid of those most interested in giving aid judiciously, and best qualified to judge of the necessity of that aid, and of the extent to which it may safely be given.

There are in such a transaction three distinct parties whose interest is affected by it; namely, the lender, the corporation, and the stockholders of the corporation.

The directors are the officers or agents of the corporation, and represent the interests of that abstract legal entity, and of those who own the shares of its stock. One of the objects of creating a corporation by law is to enable it to make contracts; and these contracts may be made with its stockholders as well as with others. In some classes of corporations, as in mutual insurance companies, the main object of the act of incorporation is to enable the company to make contracts with its stockholders, or with persons who become stockholders by the very act of making the contract of insurance. It is very true, that as a stockholder, in making a contract of any kind with the corporation of which he is a member, is in some sense dealing with a creature of which he is a part, and holds a common interest with the other stockholders, who, with him, constitute the whole of that artificial entity, he is properly held to a larger measure of candor and good faith than if he were not a stockholder. So, when the lender is a director, charged, with others, with the control and management of the affairs of the corporation, representing in this regard the aggregated interest of all the stockholders, his obligation, if he becomes a party to a contract with the company, to candor and fair dealing, is increased in the precise degree that his representative character has given him power and control derived from the confidence reposed in him by the stockholders who appointed him their agent. If he should be a sole director, or one of a smaller number vested with certain powers, this obligation would be still stronger, and his acts subject to more severe scrutiny, and their validity determined by more rigid principles of morality, and freedom from motives of selfishness. All this falls far short, however, of holding that no such contract can be made which will be valid; and we entertain no doubt that the defendant in this case could make a loan of money to the company; and as we have already said that the evidence shows it to have been an honest transaction for the benefit of the corporation and its shareholders, both in the rate of interest and in the security taken, we think it was valid originally, whether liable to be avoided afterwards by the company or not.

If it be conceded that the contract by which the defendant became the creditor of the company was valid, we see no principle on which the subsequent purchase under the deed of trust is not equally so. The defendant was not here both seller and buyer. A trustee was interposed who made the sale, and who had the usual powers necessary to see that the sale was fairly conducted, and who in this respect was the trustee of the corporation, and must be supposed to have been selected by it for the exercise of this power. Defendant was at liberty to bid, subject to those rules of fairness which we have already conceded to belong to his peculiar position; for, if he could not bid, he would have been deprived of the only means which his contract gave him of making his debt out of the security on which he had loaned his money. We think the sale was a fair one. The company was hopelessly involved beside the debt to defendant. The well was exhausted, to all appearance. The machinery was of little use for any other purpose, and would not pay transportation. Most of the stockholders who now promote this suit refused to pay assessments on their shares to aid the company. Nothing was left to the defendant but to buy it in, as no one would bid the amount of his debt.

The next question to be decided is, whether, under the circumstances of this case, the complainant had a right to avoid this sale at the time this suit was brought.

The bill alleges, that, both prior to the sale and since, the defendant made various declarations to other stockholders to the effect that he only designed to purchase the property for the benefit of all or a part of the stockholders; and there is some testimony to show, that, after the sale, he did propose, that, if his debt was paid by the company or the shareholders, he would relinquish his purchase.

But we need not decide whether any of these declarations raised a legal obligation to do so or not; nor whether, without such declarations, the sale and deed were voidable at the election of the complainant,-a proposition which is entitled to more consideration, resting solely on the fiduciary relations of the defendant to the plaintiffs, than on the evidence in this case of the declarations alluded to.

We need not decide either of these propositions, because plaintiff comes too late with the offer to avoid the sale.

The doctrine is well settled, that the option to avoid such a sale must be exercised within a reasonable time. This has never been held to be any determined number of days or years as applied to every case, like the statute of limitations, but must be decided in each case upon all the elements of it which affect that question. These are generally the presence or absence of the parties at the place of the transaction, their knowledge or ignorance of the sale and of the facts which render it voidable, the permanent or fluctuating character of the subject-matter of the transaction as affecting its value, and the actual rise or fall of the property in value during the period within which this option might have been exercised.

In fixing this period in any particular case, we are but little aided by the analogies of the statutes of limitation; while, though not falling exactly within the rule as to time for rescinding, or offering to rescind, a contract by one of the parties to it for actual fraud, the analogies are so strong as to give to this latter great force in the consideration of the case. In this class of cases the party is bound to act with reasonable diligence as soon as the fraud is discovered, or his right to rescind is gone. No delay for the purpose of enabling the defrauded party to speculate upon the chances which the future may give him of deciding profitably to himself whether he will abide by his bargain, or rescind it, is allowed in a court of equity.

In the recent case of Upton, Assignee v. Tribilcock, supra, p. 45, it was held that the purchaser of stock in an insurance company, who had offered to rescind within two or three months because his note had been sent to a bank for collection in fraud of the agreement to the contrary, could not avail himself of that offer to let in as defence other fraudulent representations then unknown to him, when he was sued by the assignee in bankruptcy for the unpaid instalments on that stock after the bankruptcy of the company.

The authorities to the point of the necessity of the exercise of the right of rescinding or avoiding a contract or transaction as soon as it may be reasonably done, after the party with whom that right is optional is aware of the facts which give him that option, are numerous and well collected in the bried of appellees' counsel. The more important are as follows: Badger v. Badger, 2 Wall. 87; Harwood v. R.R. Co., 17 id. 78; Marsh v. Whitman, 21 id. 178; Vigers v. Pike, 8 Cl. & Fin. 650; Wentworth v. Lloyd, 32 Beav. 467; Follansbee v. Kilbreth, 17 Ill. 522.

The cases of Bliss v. Edmonson, 8 DeG. M. & G. 787, Prendergast v. Turton, 1 You. & Coll., while asserting the same general doctrine, have an especial bearing on this case, because they relate to mining property.

The fluctuating character and value of this class of property is remarkably illustrated in the history of the production of mineral oil from wells. Property worth thousands to-day is worth nothing to-morrow; and that which would to-day sell for a thousand dollars as its fair value, may, by the natural changes of a week or the energy and courage of desperate enterprise, in the same time be made to yield that much every day. The injustice, therefore, is obvious, of permitting one holding the right to assert an ownership in such property to voluntarily await the event, and then decide, when the danger which is over has been at the risk of another, to come in and share the profit.

While a much longer time might be allowed to assert this right in regard to real estate whose value is fixed, on which no outlay is made for improvement, and but little change in value, the class of property here considered, subject to the most rapid, frequent, and violent fluctuations in value of any thing known as property, requires prompt action in all who hold an option, whether they will share its risks, or stand clear of them.

The case before us illustrates these principles very forcibly. The officers, and probably all the stockholders, who were not numerous, knew of the sale as soon as made. As there was no actual fraud, they knew all the facts on which their right to avoid the contract depended. They not only refused to join the defendant in the purchase when that privilege was tendered them, but they generally refused to pay assessments on their shares already made, which might have paid this debt.

The defendant then had a survey made of the ground leased to the corporation, the lease being the main thing he had acquired by the sale. When the lines were extended, the lease was found to embrace a well, then profitably worked by another company. Of this piece of good luck he availed himself, and by suit and compromise he obtained possession of that well. He put more of his money into it, and changed what had been a disastrous speculation by the company into a profitable business. With full knowledge of all these facts, the appellant took no action until this suit was brought, nearly four years after the sale; and not until all the hazard was over, and the defendant's skill, energy, and money had made his purchase profitable, was any claim or assertion of right in the property made by the corporation or by the stockholders.

We think, both on authority and principle,-a principle necessary to protect those who invest their capital and their labor in enterprises useful but hazardous,-that we should hold that plaintiff has delayed too long.

Decree affirmed.


text: Talk:Twin-Lick Oil Company v. Marbury/Opinion of the Court


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Bolling v. Lersner

ERROR to the Supreme Court of Appeals of the State of Virginia.

Motion to dismiss for want of jurisdiction. Mr. James V. Brook and Mr. James R. Tucker in support of the motion. Mr. Conway Robinson, contra.

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

title: Bolling v. Lersner


text: Talk:Bolling v. Lersner

title: Talk:Bolling v. Lersner


text:
Bolling v. Lersner/Opinion of the Court

The Circuit Court of Fauquier County, Va., rendered a decree in this cause Sept. 13, 1867. From this decree Lersner prayed an appeal to the District Court of Appeals, May 17, 1869. This was allowed by W. Willoughby, judge. Upon this allowance the appeal was docketed in the Appellate Court, and the parties appeared without objection or protest, and were heard. Upon the hearing, the decree of the Circuit Court was reversed, and the cause remanded with instructions to proceed as directed. When the case came to the Circuit Court upon the mandate of the Appellate Court, Bolling appeared, and objected to the entry of the decree which had been ordered, for the reason, among others, that Willoughby, the judge who allowed the appeal, had been appointed to his office by the commanding-general exercising military authority in Virginia under the reconstruction acts of Congress, and that those acts were unconstitutional and void. This objection was overruled, and a decree entered according to the mandate. From this decree Bolling took an appeal to the Supreme Court of Appeals, where the action of the Circuit Court was affirmed. To reverse this decree of affirmance the present writ of error has been prosecuted.

We cannot re-examine the judgment or decree of a State court simply because a Federal question was presented to that court for determination. To give us jurisdiction, it must appear that such a question was in fact decided, or that its decision was necessarily involved in the judgment or decree as rendered.

In this case, Bolling presented to the court for its determination the question of the constitutionality of the reconstruction acts. This was a Federal question; but the record does not show that it was actually decided, or that its decision was necessary to the determination of the cause. While it, perhaps, sufficiently appears that the judge was appointed under the authority of the acts in question, it also appears that he was acting in the discharge of the duties of his office, and that he had the reputation of being the officer he assumed to be. It also appears, that, after the allowance of the appeal, the case was docketed in the Appellate Court; that Bolling appeared there; that he submitted himself to the jurisdiction of that court without objection, and presented his case for adjudication; that the case was heard and decided; and that the objection to the qualification of the judge who allowed the appeal was made for the first time in the Circuit Court, when the case came down with the mandate.

From this it is clear that the case might have been disposed of in the State court without deciding upon the constitutionality of the reconstruction acts. Thus, if it was held that the objection to the authority of the judge came too late, or that the allowance of an appeal by a judge de facto was sufficient for all the purposes of jurisdiction in the Appellate Court, it would be quite unnecessary to determine whether the judge held his office by a valid appointment. We might, therefore, dismiss the case, because it does not appear from the record that the Federal question was decided, or that its decision was necessary.

But if we go farther, and look to the opinion of the court, which, in this case, has been certified here as part of the record, we find that Federal question was not decided. All the judges agreed that Willoughby was a judge de facto, and that his acts were valid in respect to the public and third parties, even though he might not be rightfully in office. In this the court but followed its own well-considered holding, by all the judges, in Griffin v. Cunningham, 20 Gratt. 31, approved in Quinn v. Cunningham, id. 138, and Teel v. Young, 23 id. 691, and the repeated decisions of this court. Texas v. White, 7 Wall. 733; Thorighton v. Smith, 8 id. 8; Huntington v. Texas, 16 id. 412; Horn v. Lockhart, 17 id. 580.

Writ dismissed for want of jurisdiction.

title: Bolling v. Lersner/Opinion of the Court


text: Talk:Bolling v. Lersner/Opinion of the Court