text:
Willard v. Tayloe

APPEAL from the Supreme Court of the District of Columbia.

This was a suit in equity for the specific performance of a contract for the sale of certain real property situated in the city of Washington, in the District of Columbia, and adjoining the hotel owned by the complainant, Willard, and known as Willard's Hotel.

The facts out of which the case arose were as follows:

In April, 1854, the defendant leased to the complainant the property in question, which was generally known in Washington as 'The Mansion House,' for the period of ten years from the 1st of May following, at the yearly rent of twelve hundred dollars. The lease contained a covenant that the lessee should have the right or option of purchasing the premises, with the buildings and improvements thereon, at any time before the expiration of the lease, for the sum of twenty-two thousand and five hundred dollars, payable as follows: two thousand dollars in cash, and two thousand dollars, together with the interest on all the deferred instalments, each year thereafter until the whole was paid; the deferred payments to be secured by a deed of trust on the property, and the vendor to execute to the purchaser a war ranty deed of the premises, subject to a yearly ground-rent of three hundred and ninety dollars.

At the time of this lease gold and silver, or bank bills convertible on demand into it, were the ordinary money of the country, and the standard of values. In 1861 the rebellion broke out, lasting till 1865. In the interval, owing to the influx of people, property in the metropolis used for hotels greatly increased in value, and as was alleged by Tayloe, who produced what he deemed a record to show the fact, the complainant, Willard, assigned an undivided half of the property which had been leased to him as abovementioned to a brother of his. In December, 1861, the banks throughout the country suspended payments in specie, and in 1862 and 1863, the Federal Government issued some hundred millions of notes, to be used as money, and which Congress declared should be a tender in the payment of debts. Coin soon ceased to circulate generally, and people used, in a great degree, the notes of the government to pay what they owned.

On the 15th of April, 1864, two weeks before the expiration of the period allowed the complainant for his election to purchase the property having greatly increased in value since 1854, the year in which the lease was made-the complainant addressed a letter to the defendant, inclusing a check, payable to his order, on the Bank of America, in New York, for two thousand dollars, as the amount due on the 1st of May following on the purchase of the property, with a blank receipt for the money, and requesting the defendant to sign and return the receipt, and stating that if it were agreeable to the defendant he woul have the deed of the property, and the trust deed to be executed by himself, prepared between that date and the 1st of May. To this letter the defendant, on the same day, replied that he had no time then to look into the business, and returned the check, expressing a wish to see the compliant for explanations before closing the matter.

On the following morning the complainant called on the defendant and informed him that he had two thousand dollars to make the first payment for the property, and offered the money to him. The money thus offered consisted of notes of the United States, made by act of Congress a legal tender for debts. These the defendant refused to accept, stating that he understood the purchase-money was to be paid in gold, and that gold he would accept, but not the notes, and give the receipt desired. It was admitted that these notes were at the time greatly depreciated in the market below their nominal value. On repeated occasions subsequently the complainant sent the same amount-two thousand dollars-in these United States notes to the defendant in payment of the cash instalment on the purchase, and as often were they refused by him. On one of these occasions a draft of the deed of conveyance to be executed by the defendant, and a draft of the trust deed to be executed by the complainant, were sent for examination, with the money. This last was prepared for execution by the complainant alone, and contained a provision that he might, if he should elect to do so, pay off the deferred payments at earlier dates than those mentioned in the lease. These deeds were returned by the defendant, accompanied with a letter expressing dissatisfaction at the manner in which he was induced to sign the lease with the clause for the sale of the premises, but stating that as he had signed it he 'should have carried the matter out' if the complainant had proffered the amount which he knew he had offered for the property, meaning by this statement, as the court understood it, if he had proffered the amount stipulated in gold. No objection was made to the form of either of the deeds.

Soon afterwards the defendant left the city of Washington, with the intention of being absent until after the 1st of May.

On the 29th of April the complainant, finding that the defendant had left the city, and perceiving that the purchase was not about to be completed within the period prescribed by the covenant in the lease, and apprehensive that unless legal proceedings were taken by him to enforce its execution his rights thereunder might be lost, instituted the present suit.

In the bill he set forth the covenant giving him the right or option to purchase the premises; his election to purchase; the notice to the defendant; the repeated efforts made by him to obtain a deed of the property; his offer to pay the amount required as the first instalment of the purchase-money in United States notes, and to execute the trust deed stipulated to secure the deferred payments, and the refusal of the defendant to receive the United States notes and to execute to him a deed of the premises. It also set forth the departure of the defendant from the city of Washington, and his intended absence beyond the 1st of May following, and alleged that the appeal was made to the equitable interposition of the court, lest on the return of the defendant he might refuse to allow the complainant to complete the purchase, and urge as a reason that the time within which it was to be made had passed. The bill concluded with a prayer that the court decree a specific performance of the agreement by the defendant, and the execution of a deed of the premises to the complainant; the latter offering to perform the agreement on his part according to its true intent and meaning.

The bill also stated some facts, which it is unnecessary to detail, tending to show that the acquisition of the property in question was of especial importance to the complainant.

The answer set up that the complainant, even on his own showing, had no case; that there was no proper tender; that even if the complainant once had a right to file a bill in his sole right-the way in which the present bill was filed-he had lost right by the transfer of the half to his brother; that the complainant had not demanded an execution even of the contract which he himself set forth, but by the drafts of the trust deed sent to Tayloe, and which was the trust deed of which he contemplated the execution, he proposed to pay, at his own option, the whole purchase-money before the expiration of the ten years, and thus would interfere with the duration of that security and investment in the identical property leased, which had been originally contemplated and provided for; thus subjecting the defendant to risk and expense in making a new investment. The answer concluded with an allegation, that 'by the great national acts and events which had occurred when the complainant filed his bill, and which were still influencing all values and interests in the country, such a state of things bad arisen and now existed, as according to equity and good conscience ought to prevent a decree for specific performance in this case, upon a demand made on the last day of a term of ten years, even if in strict law (which was denied) the complainant was entitled to make such demand.'

Both Taylor and Willard were examined as witnesses. The former testified, that when the lease was executed he objected to a stipulation for a sale of the premises, and that Willard said it should go for nothing. Willard swore that he had said no such thing.

The court below dismissed the bill, and Willard took the present appeal.

Messrs. Curtis, Poland, and Howe, for the appellant, contended, that when Willard, within the prescribed time, notified to the respondent his election to purchase, the contract became complete.

That where a contract for the conveyance of lands was in its nature and circumstances unobjectionable, it was as much a matter or course for a court of equity to decree its specific performance, as it was for a court of law to give damages for its breach.

That the money payable by Willard to Taylor became a debt, as soon as Willard had signified to Tayloe his option to make the purchase, and that being a 'debt,' it was capable of being discharged in notes of the United States made a legal tender for debts by the act of Congress; the counsel here going into a learned argument to show that Congress had power under the Constitution to make its notes a valid tender for payment of private debts.

Messrs. Cox and McPherson, contra, and in support of the decree below, argued-

That in point of fact the purpose of the arrangement between Tayloe and Willard, was but to give to Willard, well known as a hotel-keeper in Washington, a control, during ten years, of property adjoining his hotel, in order to prevent competition with it; and that this was presumable from the lease itself, and was made certain by the testimony of Tayloe, who swears that on his objecting to the clause giving the right to purchase, Willard agreed that it should 'go for nothing.'

That the specific performance of contracts was a matter to be regulated pre-eminently by the suggestions of good conscience; that the rebellion, which between 1861 and 1865 brought countless numbers of strangers to Washington, had made a great and unexpected augmentation in the value of property used for hotels; that this might be ground even for rescinding a contract; or if not so, that certainly it was ground for requiring a complainant asking performance to show a most exact compliance with his obligations.

That in this case there was no proper tender: that the statutes under which the notes were tendered by Willard to Tayloe if indeed they were meant to operate on then existing contracts were unconstitutional; moreover, that they were not so meant to operate, and of course that this contract was without their scope. Independently of which, that payment of the amount to be paid by Willard to entitle himself to a conveyance, was not the payment of a debt, but the performance of a condition.

That the deed of trust tendered by Willard contemplated an execution by himself alone; whereas it ought to have been by himself and his brother, to whom he had conveyed a half of his interest in the property, and moreover that it changed the dates at which the deferred payments should be made.

To this it was replied, that even if the tender in notes was bad, still, since Congress had declared them a good tender, and this court had never yet decided the reverse of such a position, that Willard did nothing wrong in tendering them; especially since he subjected himself to the court's direction, and was ready to tender coin if this court thought that he was bound to do so.

That the contract having been fair when made, each party took the risk of changes in value; and that here when made it was highly advantageous to Tayloe.

That the defence, that the covenant was obtained by some parol assurance that it would not be enforced was not set up in the answer, and was inconsistent with admitted facts, and in all violation of a leading rule of evidence.

That the fact, that the draft of a trust deed sent by Willard to Tayloe did not conform to the contract, could, under the circumstances, have no legal bearing on the case.

That the omission of the name of Willard's brother was unimportant, since only parties to the contract are proper parties to a bill; and a sub-purchaser of an undivided interest in the contract is not a necessary party.

Mr. Justice FIELD, after stating the facts of the case, delivered the opinion of the court, as follows:

title: Willard v. Tayloe


text: Talk:Willard v. Tayloe

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title: Talk:Willard v. Tayloe


text:
Willard v. Tayloe/Opinion of the Court

The covenant in the lease giving the right or option to purchase the premises was in the nature of a continuing offer to sell. It was a proposition extending through the period of ten years, and being under seal must be regarded as made upon a sufficient consideration, and, therefore, one from which the defendant was not at liberty to recede. When accepted by the complainant by his notice to the defendant, a contract of sale between the parties was completed. This contract is plain and certain in its terms, and in its nature and in the circumstances attending its execution appears to be free from objection. The price stipulated for the property was a fair one. At the time its market value was under fifteen thousand dollars, and a greater increase than one-half in value during the period of ten years could not then have been reasonably anticipated.

When a contract is of this character it is the usual practice of courts of equity to enforce its specific execution upon the application of the party who has complied with its stipulations on his part, or has seasonably and in good faith offered, and continues ready to comply with them. But it is not the invariable practice. This form of relief is not a matter of absolute right to either party; it is a matter resting in the discretion of the court, to be exercised upon a consideration of all the circumstances of each particular case. The jurisdiction, said Lord Erskine, 'is not compulsory upon the court, but the subject of discretion. The question is not what the court must do, but what it may do under [the] circumstances, either exercising the jurisdiction by granting the specific performance or abstaining from it.'

And long previous to him Lord Hardwicke and other eminent equity judges of England had, in a great variety of cases, asserted the same discretionary power of the court. In Joynes v. Statham, Lord Hardwicke said: 'The constant doctrine of this court is, that it is in their discretion, whether in such a bill they will decree a specific performance or leave the plaintiff to his remedy at law.' And in Underwood v. Hitchcox the same great judge said, in refusing to enforce a contract: 'The rule of equity in carrying agreements into specific performance is well known, and the court is not obliged to decree every agreement entered into, though for valuable consideration, in strictness of law, it depending on the circumstances.'

Later jurists, both in England and in the United States, have reiterated the same doctrine. Chancellor Kent, in Seymour v. Delancy, upon an extended review of the authorities on the subject, declares it to be a settled principle that a specific performance of a contract of sale is not a matter of course, but rests entirely in the discretion of the court upon a view of all the circumstances; and Chancellor Bates, of Delaware, in Godwin v. Collins, recently decided, upon a very full consideration of the adjudged cases, says, that a patient examination of the whole course of decisions on this subject has left with him 'no doubt that, as a matter of judicial history, such a discretion has always been exercised in administering this branch of equity juriprudence.'

It is true the cases cited, in which the discretion of the court is asserted, arose upon contracts in which there existed some inequality or unfairness in the terms, by reason of which injustice would have followed a specific performance. But the same discretion is exercised where the contract if fair in its terms, if the enforcement, from subsequent events, or even from collateral circumstances, would work hardship or injustice to either of the parties.

In the case of the City of London v. Nash, the defendant, a lessee, had covenanted to rebuild some houses, but, instead of doing this, he rebuilt only two of them, and repaid the others. On a bill by the city for a specific performance Lord Hardwicke held that the covenant was one which the court could specifically enforce; but said, 'the most material objection for the defendant, and which has weight with me, is that the court is not obliged to decree a specific performance, and will not when it would be a hardship, as it would be here upon the defendant to oblige him, after having very largely repaired the houses, to pull them down and rebuild them.' In Faine v. Brown, similar hardship, flowing from the specific execution of a contract, was made the ground for refusing the decree prayed. In that case the defendant was the owner of a small estate, devised to him on condition that if he sold it within twenty-five years one-half of the purchasemoney should go to his brother. Having contracted to sell the property, and refusing to carry out the contract under the pretence that he was intoxicated at the time, a bill was filed to enforce its specific execution, but Lord Hardwicke is reported to have said that, without regard to the other circumstances, the hardship alone of losing half the purchase-money, if the contract was carried into execution, was sufficient to determine the discretion of the court not to interfere, but to leave the parties to the law.

The discretion which may be exercised in this cleass of cases is not an arbitrary or capricious one, depending upon the mere pleasure of the court, but one which is controlled by the established doctrines and settled principles of equity. No positive rule can be laid down by which the action of the court can be determined in all cases. In general it may be said that the specific relief will be granted when it is apparent, from a view of all the circumstances of the particular case, that it will subserve the ends of justice; and that it will be withheld when, from a like view, it appears that it will produce hardship or injustice to either of the parties. It is not sufficient, as shown by the cases cited, to call forth the equitable interposition of the court, that the legal obligation under the contracts to do the specific thing desired may be perfect. It must also appear that the specific enforcement will work no hardship or injustice, for if that result would follow, the court will leave the parties to their remedies at law, unless the granting of the specific relief can be accompanied with conditions which will obviate that result. If that result can be thus obviated, a specific performance will generally in such cases be decreed conditionally. It is the advantage of a court of equity, as observed by Lord Redesdale in Davis v. Hone, that it can modify the demands of parties according to justice, and where, as in that case, it would be inequitable, from a change of circumstances, to enforce a contract specifically, it may refuse its decree unless the party will consent to a conscientious modification of the contract, or, what would generally amount to the same thing, take a decree upon condition of doing or relinquishing certain things to the other party.

In the present case objection is taken to the action of the complainant in offering, in payment of the first instalment stipulated, notes of the United States. It was insisted by the defendant at the time, and it is contended by his counsel now, that the covenant in the lease required payment for the property to be made in gold. The covenant does not in terms specify gold as the currency in which payment is to be made; but gold, it is said, must have been in the contemplation of the parties, as no other currency, except for small amounts, which could be discharged in silver, was at the time recognized by law as a legal tender for private debts.

Although the contract in this case was not completed until the proposition of the defendant was accepted in April, 1864, after the passage of the act of Congress making notes of the United States a legal tender for private debts, yet as the proposition containing the terms of the contract was previously made, the contract itself must be construed as if it had been the concluded to take effect subsequently.

It is not our intention to express any opinion upon the constitutionality of the provision of the act of Congress, which makes the notes of the United States a legal tender for private debts, nor whether, if constitutional, the provision is to be limited in its application to contracts, made subsequent to the passage of the act. These questions are the subject of special consideration in other cases, and their solution is not required for the determination of the case before us. In the view we take of the case, it is immaterial whether the constitutionality of the provision be affirmed or denied. The relief which the complainant seeks rests, as already stated, in the sound discretion of the court; and, if granted, it may be accompanied with such conditions as will prevent hardship and insure justice to the defendant. The suit itself is an appeal to the equitable jurisdiction of the court, and, in asking what is equitable to himself, the complainant necessarily submits himself to the judgment of the court, to do what it shall adjudge to be equitable to the defendant.

The kind of currency which the complainant offered, is only important in considering the good faith of his conduct. A party does not forfeit his rights to the interposition of a court of equity to enforce a specific performance of a contract, if he seasonably and in good faith offers to comply, and continues ready to comply, with its stipulations on his part, although he may err in estimating the extent of his obligation. It is only in courts of law that literal and exact performance is required. The condition of the currency at the time reples and imputation of bad faith in the action of the complainant. The act of Congress had declared the notes of the United States to be a legal tender for all debts, without in terms, making any distinction between debts contracted before, and those contracted after its passage. Gold had almost entirely disappeared from circulation. The community at large used the notes of the United States in the discharge of all debts. They constituted, in fact, almost the entire currency of the country in 1964. They were received and paid out by the government; and the validity of the act declaring them a legal tender had been sustained by nearly every State court before which the question had been raised. The defendant, it is true, insisted upon his right to payment in gold, but before the expiration of the period prescribed for the completion of the purchase, he left the city of Washington, and thus cut off the possibility of any other tender than the one made within that period. In the presence of this difficulty, respecting the mode of payment, which could not be obviated, by reason of the absence of the defendant, the complainant filed his bill, in which he states the question which had arisen between them, and invokes the aid of the court in the matter, offering specifically to perform the contract on his part according to its true intent and meaning. He thus placed himself promptly and fairly before the court, expressing a willingness to do whatever it should adjudge he ought in equity and conscience to do in the execution of the contract.

Nothing further could have been reasonably required of him under the circumstances, even if we should assume that the act of Congress, making the notes of the United States a legal tender, does not apply to debts created before its passage, or, if applicable to such debts, is, to that extent, unconstitutional and void.

In the case of Chesterman v. Mann, it was held by the Court of Chancery of England, that were an underlessee had a covenant for the renewal of his lease, upon paying to his lessor a fair proportion of the fines and expenses to which the lessor might be subjected in obtaining a renewal of his own term from the superior landlord, and of any increased rent upon such renewal, and there was a difference between the parties as to the amount to be paid by the underlessee, he might apply for a specific performance of the covenant, and submit to the court the amount to be paid. So here in this case, the complainant applies for a specific performance, and submits the amount to be paid by him to the judgment of the court.

We proceed to consider whether any other circumstances have ariven since the covenant in the lease was made, which renders the enforcement of the contract of sale, subsequently completed between the parties, inequitable. Such circumstances are asserted to have arisen in two particulars; first, in the greatly increased value of the property; and second, in the transfer of a moiety of the complainant's original interest to his brother.

It is true, the property has greatly increased in value since April, 1854. Some increase was anticipated by the parties, for the covenant exacts, in case of the lessee's election to purchase, the payment of one-half more than its then estimated value. If the actual increase has exceeded the estimate then made, that circumstance furnishes no ground for interference with the arrangement of the parties. The question, in such cases, always is, was the contract, at the time it was made, a reasonable and fair one? If such were the fact, the parties are considered as having taken upon themselves the risk of subsequent fluctuations in the value of the property, and such fluctuations are not allowed to prevent its specific enforcement. Here the contract, as already stated, was, when made, a fair one, and in all its attendant circumstances, free from objection. The rent reserved largely exceeded the rent then paid, and the sum stipulated for the property largely exceeded its then market value.

The transfer, by the complainant to his brother, of one-half interest in the lease, assuming now, for the purpose of the argument, that there is, in the record, evidence, which we can notice, of such transfer, in no respect affects the obligation of the defendant, or impairs the right of the complainant to the enforcement of the contract. The brother is no party to the contract, and any partial interest he may have acquired therein, the defendant was not bound to notice. The owners of partial interests in contracts for land, acquired subsequent to their execution, are not necessary parties to bills for their enforcement. The original parties on one side are not to be mixed up in controversies between the parties on the other side, in which they have no concern.

If the entire contract had been assigned to the brother, so that he had become substituted in the place of the complainant, the case would have been different. In that event, the brother might have filed the bill, and insisted upon being treated as representing the vendee. The general rule is, that the parties to the contract are the only proper parties to the suit for its performance, and, except in the case of an assignment of the entire contract, there must be some special circumstances to authorize a departure from the rule.

The court, says Chancellor Cottenham, in Tasher v. Small, 'assumes jurisdiction in cases of specific performance of contracts, because a court of law, giving damages only for the non-performance of the contract, in many cases, does not afford an adequate remedy. But in equity, as well as at law, the contract constitutes the right, and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining, as nearly as possible, in the same situation as the defendant had agreed that he should be placed in. It is obvious, that persons, strangers to the contract, and, therefore, neither entitled to the rights nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it.'

When the complainant has received his deed from the defendant, the brother may claim from him a conveyance of an interest in the premises, if he have a valid contract for such interest, and enforce such conveyance by suit; but that is a matter with which the defendant has no concern.

It seems that the draft of the trust deed, to secure the deferred payments, sent to the defendant for examination, was prepared for execution by the complainant alone, and contained a stipulation that he might, if he should so elect, pay off the deferred payments at earlier dates than those mentioned in the covenant in the lease; and it is objected to the complainant's right to a specific performance, that the trust deed was not drawn to be executed jointly by him and his brother, and that it contained this stipulation. A short answer to this objection is found in the fact, that the parties had disagreed in relation to the payment to be made, and until the disagreement ceased no deeds were required. It is admitted that the form of the trust deed was not such a one as the defendant was bound to receive, but as it was sent to him for examination, good faith and fair dealing required him to indicate in what particulars it was defective, or with which clauses he was dissatisfied. Whether it was the duty of the complainant or defendant to prepare the trust deed, according to the usage prevailing in Washington, is not entirely clear from the evidence. There is testimony both ways. The true rule, independent of any usage on the subject, would seem to be that the party who is to execute and deliver a deed should prepare it. It is, however, immaterial for this case, what rule obtains in Washington. Until the purchase-money was accepted, there was no occasion to prepare any instrument for execution. So long as that was refused the preparation of a trust deed was a work of supererogation. Besides, the execution of the trust deed by the complainant was to be simultaneous with the execution of a conveyance by the defendant. The two were to be concurrent acts; and if the complainant was to prepare one of them, the defendant was to prepare the other, and it is not pretended that the defendant acted in the matter at all.

The objection to the trust deed, founded upon the omission of the name of the complainant's brother as a co-grantor, does not merit consideration. All that the defendant had to do was to see that he got a trust deed, as security for the deferred payments, from the party to whom he transferred the title.

The defendant states in his testimony that when the lease was executed he objected to the stipulation for a sale of the premises, and that the defendant told him that it should go for nothing. And it has been argued by counsel that this evidence should control the terms of the covenant. The answer to the position taken is brief and decisive. First, nothing of the kind is averred in the answer; second, the testimony of the defendant in this particular is distinctly contradicted by that of the complainant, and is inconsistent with the attendant circumstances; and third, the evidence is inadmissible. When parties have reduced their contracts to writing, conversations controlling or changing their stipulations are, in the absence of fraud, no more received in a court of equity than in a court of law.

Upon a full consideration of the positions of the defendant we perceive none which should preclude the complainant from claiming a specific perpormance of the contract.

The only question remaining is, upon what terms shall the decree be made? and upon this we have no doubt.

The parties, at the time the proposition to sell, embodied in the covenant of the lease, was made, had reference to the currency then recognized by law as a legal tender, which consisted only of gold and silver coin. It was for a specific number of dollars of that character that the offer to sell was made, and it strikes one at once as inequitable to compel a transfer of the property for notes, worth when tendered in the market only a little more than one-half of the stipulated price. Such a substitution of notes for coin could not have been in the possible expectation of the parties. Nor is it reasonable to suppose, if it had been, that the covenant would ever have been inserted in the lease without some provision against the substitution. The complainant must, therefore, take his decree upon payment of the stipulated price in gold and silver coin. Whilst he seeks equity he must do equity.

The decree of the court below will, therefore, be REVERSED, and the cause remanded with directions to enter a decree for the execution, by the defendant to the complainant, of a conveyance of the premises with warranty, subject to the yearly ground-rent specified in the covenant in the lease, upon the payment by the latter of the instalments past due, with legal interest thereon, in gold and silver coin of the United States, and upon the execution of a trust deed of the premises to the defendant as security for the payment of the remaining instalments as they respectively become due, with legal interest thereon, in like coin; the amounts to be paid and secured to be stated, and the form of the deeds to be settled, by a master; the costs to be paid by the complainant.

The CHIEF JUSTICE with NELSON, J., concurred in the conclusion as above announced-that the complainant was entitled to specific performance on payment of the price of the land in gold and silver coin-but expressed their inability to yield their assent to the argument by which, in this case, it was supported.

title: Willard v. Tayloe/Opinion of the Court


text: Talk:Willard v. Tayloe/Opinion of the Court


text:
Butz v. City of Muscatine

In error to the Circuit Court of the United States for the District of Iowa.

The case was this:

A code of the State of Iowa, adopted in 1851, and known as the code of that year, after enacting that neither the public property of any city corporation necessary to carrying on the general purposes for which the corporation was established, nor the property of private citizens shall be levied on to pay the debt of such corporation, goes on to enact that if any corporation against which judgment has been obtained has no property which can be seized, 'a tax must be levied on as early as practicable sufficient to pay off the judgment, with interest and costs.' And by the code a failure on the part of the officers of the corporation to levy such a tax in the case prescribed, makes them personally responsible for the debt.

With this code in force, the city of Muscatine was incorporated; and in 1852, it was enacted specially in reference to that city, by an amendment to its charter, that an assessor should be appointed, whose duty it should be 'to make an assessment of the property of the city subject to taxation, and upon whose assessment the council may levy a tax of not exceeding one per cent. upon the value, in any one year.'

With this provision in force, the city, which under its charter had 'power to borrow money for any purpose in its discretion,' &c., did borrow, under that power, in the year 1854, money, issuing bonds, of which one Butz, of Pennsylvania, bought a large amount.

In 1860, the State of Iowa re-enacted the provisions of its already mentioned code of 1851, on the subject of executions. But on a question whether those general provisions of the code applied to a case like that of the charter of Muscatine, where there was a limitation about taxes, the Supreme Court of Iowa determined, more than once, that it did not.

With these State decisions unquestioned in any way in the State courts, Butz, whose bonds were unpaid, and who had a return of nulla bona to an execution against the city of Muscatine, after judgment had by him on them against the city, applied in 1867 to the court below, the circuit Court of the United States for Iowa, for a Mandamus against the city officers to levy, under the provisions of the code, a tax 'sufficient to pay off the judgment, with interest and costs.' The city, relying on the limitation in its amended charter, and on the decisions of the Supreme Court of the State, made return, that under the laws of Iowa they were not permitted to levy a tax exceeding in amount one per cent, upon the taxable property of the city for all purposes in any one year; that this amount had been levied for the year 1867; that a part of it had been collected, and that for a part the taxpayers were delinquent; that the entire amount collected had been expended for the necessary current and incidental expenses of the city, and that the entire amount levied and collected for the year 1868 would be needed for the same purposes for the year, and that those expenses were a paramount lien upon the fund.

The plaintiffs demurred to the return. The Circuit Court overruled the demurrer. The plaintiffs elected to abide by it, and judgment was entered against them.

The questions now here were—

1. Whether the construction given by the Supreme Court of Iowa to the provisions of the codes and to the charter of the city was one which in the judgment of this court could, in itself, be sustained?

2. If not, then-since the effect of the decisions in question was to deprive creditors of the only practicable means of enforcing against certain corporations which had made them, contracts solemnly entered into by those corporations prior to the date of the decisions-whether this was a case where the Supreme Court would adhere to its rule, confessedly obligatory in most cases, that it would follow, irrespectively of what it might itself think of the correctness of such decisions, the decisions given by the State courts in the construction of their own State statutes; the question here more particularly arising on a writ of error in ordinary course to a Circuit Court of the United States, and not on a writ to the Supreme Court of the State, in which case this court has power by the Judiciary Act to re-examine and reverse any decision of such a court, where there has been drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the laws of the United States, and the decision has been in favor of such their validity.

Mr. Grant, for the creditor, plaintiff in error; no counsel appearing for the city of Museatine.

Jr. Justice SWAYNE delivered the opinion of the court, first stating the case.

title: Butz v. City of Muscatine


text: Talk:Butz v. City of Muscatine

title: Talk:Butz v. City of Muscatine


text:
Butz v. City of Muscatine/Opinion of the Court

This case is brought before us by a writ of error to the Circuit Court of the United States for the District of Iowa.

The case as presented in the record is as follows: Upon the petition of the relator an alternative writ of mandamus was issued to the defendants in error, wherein it was set forth that it had been represented to the court that the relator, on the 16th of May, 1867, recovered a judgment against the city of Muscatine for the sum of $57,615 16/100, with interest at the rate of seven per cent. per annum, upon which judgment an execution had been issued and returned 'no property found;' that the business of the corporation was managed by the mayor and aldermen, whose duty it was to cause its taxes to be levied and collected, and to provide for the payment of all judgments recovered against it; that this judgment was for interest on certain bonds executed by the city in 1854; that it was the duty of the mayor and aldermen to provide for the payment of the interest as it fell due; that it was their duty to levy and collect taxes and pay such judgments when recovered; that a demand had been made on the mayor and aldermen to levy and collect the taxes necessary to pay this judgment, interest, and costs; that they had refused and denied their authority to do so; that the city has no property liable to execution; that by the laws of Iowa when the debt was created and when the judgment was recovered, the public property of the city and the private property of its citizens were exempt from levy and sale to pay this debt and judgment, but that it was made the duty of the mayor and aldermen, as early as practicable after it was recovered, to levy a tax sufficient to pay the judgment, with interest and costs; that they had refused to perform that duty, and that the relator was without other adequate remedy at law.

The mayor and aldermen were therefore commanded forthwith to levy a sufficient tax on the taxable property of the city-for the year 1867-to pay the judgment, interest, and costs, and to pay them, or to appear and show cause why they refused to do so.

The defendants in their return set forth—

(1.) A denial of the duties alleged to rest upon them.

(2.) That under the laws of Iowa they are not permitted to levy or collect a tax exceeding in amount one per cent. upon the taxable property of the city for all purposes in any one year; that this amount has been levied for the year 1867; that a part of it has been collected and a part is delinquent; that the entire amount collected has been expended for the necessary current and incidental expenses of the city, and that the entire amount levied and collected for the year 1868 will be needed for the same purposes for that year, and that those expenses are a paramount lien upon the fund.

Other matters are set forth in the return which it is not necessary particularly to mention.

The plaintiffs demurred to the return. The court overruled the demurrer. The plaintiffs elected to abide by it, and judgment was entered against them.

By the statute of Iowa of 22d of January, 1852, entitled 'An act to amend the charter of the city of Muscatine, approved February 1, 1851,' it was enacted that an assessor should be appointed, whose duty it should be 'to make an assessment of the property of the city subject to taxation, and upon whose assessment the council may levy a tax of not exceeding one per cent. upon the value in any one year.' This statute was in force when the writ was issued and when the return was made. If there were no other statutory provisions bearing on the subject it would be conclusive in support of the judgment rendered by the court below.

The code of 1860, chapter 110, title 'Execution,' declares as follows: 'Sec. 3274. Public buildings owned by the State, or any county, city, school district, or other civil corporation, and any other public property which is necessary and proper for carrying out the general purpose for which any such corporation is organized, are exempt from execution. The property of a private citizen can in no case be levied upon to pay the debt of a civil corporation.' 'Sec. 3275. In case no property is found on which to levy, or which is not exempted by the last section, or if, after judgment, the creditor elect not to issue execution against such corporation, he is entitled to the amount of his judgment and costs in the ordinary evidences of indebtedness issued by that corporation; and, if the debtor corporation issues no scrip or evidence of debt, a tax must be levied as early as practicable, sufficient to pay off the judgment with interest and costs.'

'Sec. 3276. A failure on the part of the officers of the corporation to comply with the requirements of the last section, renders them personally responsible for the debt.'

These regulations were contained in the code of 1851, and have been in force ever since. They were re-enacted in the code of 1860, and have a controlling effect upon the determination of this case. The limitation in the act of 1852, touching the exercise of the power of taxation by the city council, applies to the ordinary course of their municipal action. Whenever that action is voluntary, and there is no debt evidenced by a judgment against the city, to be provided for, one per cent. is the maximum of the tax they are authorized to impose. But when a judgment has been recovered, the case is within the regulations of the code. Those provisions are then brought into activity, and operate with full force, until the judgment, interest, and costs are satisfied. The limitation in the act of the 1852 has no application in such cases, and imposes no check, if larger taxation be necessary. The contingency is one not contemplated, and not provided for by the act of 1852. If the legislature had intended to qualify the requirement prescribed by the code, it is to be presumed it would have done so, in language as clear as that which it has employed to express the duty to be performed. It leaves no room for doubt or construction. Nothing can be more simple and direct than the terms in which the levy of a sufficient tax is enjoined. The extent of the necessity is the only limitation, express or implied, in the code of the amount to be levied. We cannot interpolate a restriction by importing it from another act which has no necessary relation to the class of cases for which the code intended to provide. When the judgment is recovered the duty arises, and it can be satisfied only by paying the debt, interest, and costs, in the manner prescribed. The source whence the means are to be drawn is described, and full power is given to collect them.

There is no difficulty as to authority to levy a tax of the requisite amount, whatever it may be. Section 3276 of the code declares, that a failure on the part of the officers of the corporation to perform the duty enjoined, shall render them 'personally responsible for the debt.'

In the construction of a statute, what is clearly implied is as effectual as what is expressed.

The minutest details could not have made the meaning and effect of these provisions clearer than they are. The limitation in the act of 1852 is confined to the city of Muscatine. The regulations of the code are general in their terms, and apply to all the municipal corporations mentioned in section 3274.

If these views be not correct, the position of the judgment creditor is a singular one. All the corporate property of the debtor is exempt by law from execution. The tax of one per cent. is all absorbed by the current expenses of the debtor. There is neither a surplus nor the prospect of a surplus which can be applied upon the judgment. The resources of the debtor may be ample, but there is no means of coercion. The creditor is wholly dependent for payment upon the bounty and the option of the debtor. Until the debtor chooses to pay, the creditor can get nothing. The usual relations of debtor and creditor are reversed, and the judgment, though solemnly rendered, is as barren of results as if it had no existence. Such are the effects which must necessarily follow from the theory, if maintained, of the defendants in error. Nothing less than the most cogent considerations could bring us to conclusion that it was the intention of law-making power of so enlightened a State to produce, by its action, such a condition of things in its jurisprudence.

The writ of mandamus is the appropriate remedy, and the relator is entitled to the benefit of it.

There are several adjudications of the highest court of the State more or less adverse to the views we have expressed. We do not deem it necessary more particularly to advert to them. Entertaining the highest respect for those by whom they were made, we have yet been unable to concur in the conclusions which they announce. It is alike the duty of that court and of this to decide the questions involved in this class of cases, as in all others, when presented for decision. This duty carries with it investigation, reflection, and the exercise of judgment. It cannot be performed on our part, by blindly following in the footsteps of others and substituting their judgment for our own.

Were we to accept such a solution we should abdicate the performance of a solemn duty, betray a sacred trust committed to our charge, and defeat the wise and provident policy of the Constitution which called this court into existence.

The defendants in error have not submitted any brief or argument. We have had no assistance from them in this way. But it has been suggested in their behalf that we are concluded by the more limited interpretation of the provisions of the code which have been given to them by the Supreme Court of the State.

To this we think there are several answers:

1. In all the cases brought here under the 25th section of the Judiciary Act this court has never hesitated to determine for itself the construction and effect of any statute of a State, brought under review, without reference to the previous adjudications of the highest court of the State upon the subject. In the opinion delivered in the case of the Jefferson Branch of the State Bank of Ohio v. Skelley, it was well asked of what value would the appellate power of this court be to the party aggrieved, if such were not the rule. In that case and in all the other cases brought here, involving the same question, an act of the legislature of Ohio was pronounced invalid, and the judgments of the Supreme Court of the State were reversed. Cases may be brought here from the Circuit Court of such a character that it is necessary to the right administration of justice that we should proceed upon the same principle in deciding them. Indeed, questions which are identical, may be brought here in both ways. Under such circumstances it will hardly be insisted that State adjudications are to control in one case and not in the other. Our duty depends upon the questions involved, and not upon the channel through which the case comes before us. Where the settled decisions in relation to a statute, local in its character, have become rules of property, these remarks have no application. In such cases this court will, as it always has done, follow such adjudications. The cases of a different character, involving State statutes, in which the adjudications of the courts of the States in relation to them have been departed from by this court, extend in an unbroken series from an early period after its organization to the present time.

2. It is set forth in the writ that the judgment was recovered upon bonds issued by the city in 1854. This not being denied by the return, according to the settled law of pleading, is admitted. The act of 1852 and the provisions of the code were in force at that time, and entered into and formed a part of the contract of the parties. They prescribed one of the remedies to which the bondholders were entitled in the event of default by the city. It has been uniformly held by this court that such remedies are within the protection of the Constitution of the United States, and that any State law which substantially impairs them is as much prohibited by that instrument as legislation which impairs otherwise the obligation of the contract. If the remedy be taken away the contract is in effect annulled. Nothing is left of it, of any value to the party whose rights are thus invaded. This subject was fully considered in Van Hoffman v. The City of Quincy. It was there held that laws for the collection of the requisite taxes, existing when the bonds were issued, subsequently repealed, still subsisted for the purposes of the contract, and that a writ of mandamus might issue from the Circuit Court to enforce them. Here the remedy is taken away; not by a subsequent repeal, but by subsequent judicial decisions. The effect upon the contract is the same as if the provisions of the code had been repealed. This court construes all contracts brought before it for consideration, and in doing so its action is independent of that of the State courts, which may have exercised their judgment upon the same subject. This is one of the functions we are called upon to perform in this case. The fact that one of the elements in the case is a statute of the State does affect the legal result. We are of the opinion that under the statutes of Iowa, in force when the contract was made, the relator is entitled to the remedy he asks, and that this right can no more be taken away by subsequent judicial decisions than by subsequent legislation. It is as much within the sphere of our power and duties to protect the contract from the former as from the latter, and we are no more concluded by one than the other. We cannot in any other way give effect to the contract of the parties as we understand it. This contract was entered into in 1854. The earliest of the adjudications to which we have referred was made in 1862. If the construction ultimately given to the statute had preceded the issuing of the bonds, and become the settled law of the State before that time, the case, as regards this point, would have presented a different aspect.

3. The case involves the process of the courts of the United States. It is peculiarly the province of this court to decide all questions relating to that subject.

The judgment is REVERSED and the cause will be remanded to the court below, with instructions to sustain the demurrer, and to proceed

IN CONFORMITY WITH THIS OPINION.

Mr. Justice FIELD did not sit in the case.


text: Talk:Butz v. City of Muscatine/Opinion of the Court


text:
United States v. Smith (75 U.S. 587)

ON certificate of division between the judges of the Northern District of Ohio; the case being this:The act of June 30th, 1864, 'to provide internal revenue to support the government, to pay interest on the public debt, and for other purposes,' enacts, by its 71st section, that no person shall carry on the business of a coal oil distiller until he have obtained a license in the manner prescribed.

The 73d section subjects all persons who violate the enactment to fine and imprisonment.

'The 74th section enacts that all licenses granted after the 1st day of May in any year, shall continue inforce until the 1st day of May in any year next succeeding.'

The 53d section of the same act provides that any person required by law to be licensed as a distiller, before distilling any spirits, shall, in addition to what is required by other provisions of law, make an application for a license to the assessor of the district; and that before the same is issued the person applying shall give bond with surety conditioned that he will render to the assessor, on the certain days of each month, during the continuance of the license, an exact account of the number of gallons of spirits distilled, &c., and that he will pay to the collector the duties on them.

And the 94th section provides that 'distillers of coal oil shall be subject to all the provisions of laws applicable to distillers of spirits with regard to licenses, bonds, &c., and all other provisions designed for the purpose of securing the payment of duties, so far as the same may, in the judgment of the Commissioner of Internal Revenue, and under regulations prescribed by him, be deemed necessary for that purpose.'

The act of June 30th, 1864-which is one of great length, and contains a hundred and eighty-two sections, some of them with numerous subdivisions and schedules-repeals a prior act of July 1st, 1862, with a title similar to its own.

With this statute of 1864 in force, Smith got a license as a distiller of coal oil on the 27th May, 1865, and gave bond with surety conditioned that he, Smith, should conform to all the provisions of an act entitled 'An act to provide internal revenue,' &c., approved July 1st, 1862, and of such other act or acts as were then or might thereafter be in that behalf enacted.

Upon suit brought by the United States against him and his surety in the court below, for breaches of the condition of the bond at various times during the months of June and July, 1866, the judges there were divided in opinion upon the question whether he or his surety were liable for any breach after the 1st of May, 1866; to wit, after the expiration of the license granted to them in May, 1865.

Mr. Hoar, Attorney-General, and Mr. Field, Assistant Attorney-General, for the United States; Mr. Wills, contra.

Mr. Justice GRIER delivered the opinion of the court.

title: United States v. Smith (75 U.S. 587)


text: Talk:United States v. Smith (75 U.S. 587)


text:
United States v. Smith (75 U.S. 587)/Opinion of the Court

The act of July 1st, 1862, has been inserted in the bond ex majori cautela; for it is admitted that the act of June 30th, 1864, entitled 'An act to provide internal revenue, to support the government, to pay the interest on the public debt, and for other purposes,' is the only act applicable to this case. The act of 1862 was repealed by it.

As might be expected in an act embracing the almost innumerable subjects of taxation contained in this one, and covering more than seventy pages of the statute-book, provisions may probably be found in one part of it difficult to be reconciled with some contained in other parts. Yet, when carefully examined, we find no difficulty in answering the question proposed.

The seventy-first section of the act is the one which prescribes the conditions under which licenses shall be given.

The seventy-third section subjects all persons who neglect it, to fine and imprisonment.

The seventy-fourth section fixes the limit to the license, beyond which time the parties to the bond are not bound to answer for any breach of the condition.

The provisions of the fifty-third and ninety-fourth sections of the act, which subject distillers of coal oil to the provisions of the act applicable to the distillers of spirits, 'so far as the same may, in the judgment of the Commissioner of Internal Revenue, be deemed necessary,' have no application to the point. The commissioner has exercised no judgment, and prescribed no regulations on the subject, so far as appears. The bond has no reference to such conditions as are required in distillery bonds, and cannot be affected by them. "Tis not so written in the bond.'

ORDERED that it be certified to the judges of the Circuit Court, in answer to the question submitted, that the defendants are

NOT LIABLE.


text: Talk:United States v. Smith (75 U.S. 587)/Opinion of the Court


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The Potomac

APPEAL from a decree of the Circuit Court of New York, in a case of collision between the schooner Bedell and the steamer Potomac, in the Chesapeake Bay, resulting in the total loss of the schooner. The collision occurred on a starlight night in July. The schooner was heading about north, going up the bay, sailing by the wind, closehauled, with a fresh breeze, west-northwest. Whether or not she had a light on board was a matter about which the evidence was contradictory; the weight of it being to the effect that she had not. The steamer, with a good lookout and a full number of seamen, was descending the bay and sailing due south at about nine miles an hour, with all her lights set and brightly burning. When about three-quarters of a mile off the schooner was discovered on the starboard bow of the steamer by the lookout of the steamer, who reported the fact to the officer in charge. The order was immediately given to starboard the helm two points, and after this was done, and the mate who had the command saw the vessel about half a point on the starboard bow, the further order was given and executed to steady the helm.

In addition to this, the mate, in watching the movements of the schooner, discovered, notwithstanding his efforts to give her a wife berth to the west, that she was still approaching nearer the steamer, and again starboarded his helm, and slowed and backed. The captain of the schooner, however, about two minutes before the collision, ordered her helmsman to put her helm hard up; and the movements of the steamer thus proved ineffectual to prevent the boats coming together. He had not seen the steamer until when within half a mile of her. When the vessels struck, the schooner had fallen off from about a north course to nearly an east one.

The helmsman of the steamer testified, that the mate of the steamer was asleep when the schooner was reported to him; but this the mate denied. It was certain that he was on deck immediately afterwards, unconfused and energetic.

When the vessels struck, the captain of the schooner, who was hauled over the railing upon the steamer, and so saved, was asked by the mate why he had kept his vessel right across the steamer's bows; to which he replied that he did not understand the steamer's lights till too late; and while talking afterwards with the captain said that he had 'no one to blame but himself.' Subsequently, in a conversation at the notary's office, where he happened to be, making his protest, he stated that he 'mistook the steamer's lights, and supposed them to be on the stern instead of on the bow.'

The District Court decreed against the steamer; a decree which the Circuit Court reversed. The question in this court was whether the reversal was right.

Mr. E. C. Benedict, for the appellant; Mr. B. R. Curtis, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: The Potomac


text: Talk:The Potomac

title: Talk:The Potomac


text:
The Potomac/Opinion of the Court

It is a rare occurrence in the history of cases of this kind. where a sailing vessel and steamship approaching each other in opposite directions, or on intersecting lines, have come in contact, that the sailing vessel has been adjudged to be in fault. The law casting the greater responsibility on the steamer on account of her motive power, and the sailing vessel having an easy duty to perform, it has been generally found on investigation, that the collision was the result of a relaxation of vigilance on the part of the officers of the steamer. It has sometimes happened, however, that the steamer was not to blame, and the present case, in our opinion, is one of that character. It is unnecessary to restate the rules of navigation, obligatory upon vessels in the predicament these were on the night in question. They were elaborately presented by this court in the case of The Steamship Co. v. Rumball, and were recently affirmed in the case of The Carroll. One of these rules requires the steamer to keep out of the way of the sailing vessel; but to enable her to do this effectively, the law imposes the corresponding obligation on the sailing vessel to keep her course. If, therefore, the steamer adopts proper measures of precaution to avoid the collision, which would have been effective if the schooner had not changed her course, she is not chargeable for the consequences of the collision. Any other rule would condemn the steamer, no matter how gross the misconduct of the sailing vessel.

That the steamer, on this occasion, seasonably employed the proper measures to have prevented this disaster, and that it would not have occurred, if the schooner had been equally mindful of her duty, is, we think, unmistakably shown by the evidence. The proceedings taken on board the steamer were enough, if the schooner had kept her course, to have placed the respective boats out of reach of danger. The accident could have happened in no other way than by a change of the schooner's course, and that this was made is evident, for when the vessels collided the schooner had fallen off from about a north course to nearly an east course. Besides, the only man on board the schooner who was examined as a witness, says that he put his helm hard up, by the captain's order, about two minutes before the collision. If the schooner had kept her course, instead of porting her helm and changing it to the eastward, the collision would not have occurred.

The effect of the change of course was to bring the schooner directly across the steamer's track, and to render what followed inevitable. There is nothing in the record to show a justification for this change of course, and it will not do to say it was taken on account of the dangerous proximity of the vessels, for at the united rate at which they were running, they were, according to the testimony of the wheelsman of the schooner as to the point of time when he ported her helm, at least half a mile apart. We think it is clear that this change of course was adopted earlier than the wheelsman says; but be this as it may, whenever adopted there was no necessity for it, either real or apparent, and the persons in charge of the schooner do not furnish even an excuse for their conduct.

It is not seen in what respect the steamer was remiss. She had the full complement of competent seamen, the necessary lookout and lights, and began her measures to keep clear of the schooner as soon as she was observed. That she was not sooner observed was not the fault of those in charge of the steamer, for the schooner was sailing without a light; and there is nothing to show that the lookout of the steamer, by vigilant watching, could have reported her any sooner. It is true the evidence is somewhat conflicting on the point of whether the schooner had a light or not, but the better opinion on the whole case is, that she had no light.

If the persons on board the steamer were watchful, it was not the case with those in control of the schooner, for, if they had been equally attentive to their business, they would not have allowed the steamer-sailing as she was in a starlight night, and with her lights brightly burning-to have approached within a half mile, without being seen by them.

We have considered this case thus far without reference to the admissions of the master of the schooner on this subject, but if we give them their proper weight, they corroborate very strongly the view we take of the cause of this collision. The master admitted, as soon as he was taken on board the steamer after the disaster, that the collision occurred through his fault, and this admission was repeated when he noted his protest. His statements on the point were full and explicit, and could not have been easily misunderstood; but if they were not true, or were misunderstood, why was he not called to contradict or explain them? The legality of this evidence cannot be questioned, for courts of admiralty have uniformly allowed the declarations of the master, in a case of collision, to be brought against the owner, on the ground that when the transaction occurred, the master represented the owner, and was his agent in navigating the vessel. This sort of evidence is confined to the confessions of the master, and cannot be extended to any other person in the employment of the boat, for in no proper sense has the owner intrusted his authority to any one but the master. The authorities on this subject are collected in the case of The Enterprise.

It has been argued that the lookout and helmsman of the steamer, whose testimony was taken by the owner of the schooner, prove want of vigilance on the part of the steamer. We have carefully examined this testimony, and cannot see that it materially contradicts the testimony given by the officers of the steamer, save in one particular. The helmsman says the mate was asleep when the schooner was reported to him, but this the mate expressly denies. It is not necessary, however, to determine this point, because the evidence clearly shows that as soon as the schooner was discovered and reported, and there was a necessity for action, the mate was wide awake, and promptly gave the necessary order to starboard the helm, which order was as promptly executed. This was timely done, and would have been effectual but for the subsequent fault of the schooner, for which she is adjudged to bear the loss caused by this collision.

title: The Potomac/Opinion of the Court


text: Talk:The Potomac/Opinion of the Court

title: Talk:The Potomac/Opinion of the Court


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Drehman v. Stifle

IN error to the Supreme Court of Missouri; the case being thus:

In 1854, Mrs. Tyler leased to one Drehman, a house and lot in St. Louis for twenty years, that is to say, till 1874; and by the terms of the lease convenanted to keep the said Drehman in lawful possession of the premises during the term for which they were leased to him. In 1860, Mrs. Tyler sold the fee of the premises to one Stifle, who thus became landlord to Drehman, her lessee.

In 1861, during the late rebellion, Stifle, as 'colonel of the home guards,' pursuant to an order from his military superior, took possession of the lot, removed all the buildings, and held and used the property for his own private purposes. Stifle being thus in possession and use of the property, Drehman, proceeding under the statutes of Missouri concerning landlords and tenants, in force when the lease was made, and still in force, brought in 1863 an action of forcible entry and detainer against him, before a justice of the peace, to recover possession of the premises and the value of the rents. The section of the statute of Missouri, under which the suit was brought, enacts that 'the merits of the title shall in no wise be inquired into, on any complaint, which shall be exhibited by virtue of the provisions of the act.' The justice, on the 31st of December, 1863, rendered a judgment in his favor for restitution, for $5000 damages, and for rent at the rate of $60 per month, to be paid from the time of the recovery until restitution should be made, and for costs. Stifle removed the case by appeal to the St. Louis Land Court, where a verdict and judgment were rendered in his favor. Drehman appealed to the Circuit Court of St. Louis County. Before, however, the case came on to be heard there, a constitution of Missouri, adopted in 1865, ordained as follows:

'No person shall be prosecuted in any civil action for or on account of any act by him done, performed or executed, after the first of January, one thousand eight hundred and sixty-one, by virtue of military authority vested in him by the government of the United States, or that of this State, to do such acrs, or in pursuance to orders received by him from any person vested with such authority; and if any action or proceeding shall have heretofore been, or shall hereafter be, instituted against any person for the doing of any such act, the defendant may plead this section in bar thereof.'

The case coming on to be heard in the Circuit Court in May, 1866, that is to say, after the constitution containing the above-quoted clause passed into force, Stifle relied for his defence upon it. Drehman, on the other hand, set up that it was in the face of that clause of the Constitution of the United States, which declares that 'no State shall pass any bill of attainder,. . . or law impairing the obligation of contracts.'

The court instructed the jury, that if the facts established by the evidence to their satisfaction brought the case within this provision of the constitution of Missouri, the defence was valid, and that the defendant was entitled to the verdict. Drehman excepted. The jury found for Stifle, and the court gave judgment accordingly. Drehman, therefore, appealed to the Supreme Court of the State, which affirmed the judgment, and he accordingly brought the case to this court, under the 25th section of the Judiciary Act, for review.

Mr. J. Hughes, for the plaintiff in error (a brief of Mr. J. C. Moody being filed), contended that the clause of the Missouri constitution, by which alone the action of Drehman was defeated, did contain the elements both of a bill of attainder, and of a law impairing the obligation of contracts.

1. It was a bill of attainder. The constitution in which it is attempted to be ordained, was reviewed in Cummings v. Missouri. In that case another clause of the same constitution sought to divest Cummings, a priest, of his power to preach, that is to say, of his right to his profession, by requiring priests to take an oath which he could not take. Here another clause forbids persons to prosecute claims for loss of property, by providing a bar to suits if pending when the ordinance passed. Though the owner is neither charged with nor convicted of a crime, he is deprived of his property without judicial trial as completely as if he were both charged and convicted. If the Convention had declared, by ordinance, that Drehman had committed treason, and that because of his crime his property was forfeited, and his right of action against the defendant barred, this would unquestionably have been a 'bill of pains and penalties.' Is it any less a bill of pains and penalties when it inflicts the penalty without imputing the crime as a foundation? Does the Constitution of the United States prohibit the bill of attainder with a crime imputed as a pretext, and permit an enactment containing all the essential elements of attainder, when there is no pretext assigned?

On this question, Cummings v. Missouri seems to us to be conclusive.

The court there says:

'The deprivation is effected with equal certainty in one case as it would be in the other, but not with equal directness. The purpose of the lawmaker in the case supposed, would be openly avowed; in the case existing it is only disguised. The legal result must be the same, for what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not with shadows. Its inhibition was levelled at the thing, not the name.'

That depriving a man of his property is a punishment as well as an injury, can hardly be denied since the cases of Cummings v. Missouri and Ex parte Garland. And the same thing is true as to depriving him of a possession secured to him by the law even irrespectively of the question of merits. He is deprived of a legal right; a prim a facie right and title; which may prove an absolute one in the end.

It is admitted the plaintiff had the right to the property since 1854, by lease extending until 1874; that he obtained two judicial determinations of that right in this cause in 1863; that an appeal was taken by the respondent from such judicial determinations, and pending an appeal that this constitution was adopted by the Convention. The court below says by its instructions, that since the adoption the plaintiff has no right to the property, or, which is the same thing, that the respondent is protected by the new constitution in forcibly depriving the plaintiff of his property, and that the subsequent detainer of it cannot afford any cause of action, under the proceedings in the cause.

2. It impairs the obligation of a contract. By the lease, Mrs. Tyler covenanted to keep her tenant in lawful possession of the premises during the whole term of the lease. This was a contract; it became obligatory upon Stifle, by virtue of his being the assignee of the reversion of the estate. The contract had reference to the laws of the State concerning landlords and tenants, in force when it was made and when the suit was commenced; laws which protected the rights of the landlord and tenant respectively. One of these laws gave a remedy to Drehman to enforce the contract by the proceeding of forcible entry and detainer. That law was yet unrepealed and in force. In 1863 the judicial tribunals rendered a judgment against the defendant, and in favor of the plaintiff, for possession, rents, damages, and costs, found to be due under the contract and the laws then in force. The ordinance pleaded in bar of this action was passed in 1865,-eleven years after the contract was made, four years after the breach alleged and liabilities had accrued, and two years after judgment had been rendered in this cause in favor of the plaintiff. Yet the court says the ordinance, by its retrospective operation, is now a complete bar and defence to this action. Before the ordinance was passed, the defendant was adjudged to owe the plaintiff $7000, upon his obligation assumed in this contract. Since the passage the courts say that there is no liability; that the ordinance is a complete bar, and furnishes a new defence. Does it not impair and annul the obligations of the contract?

Numerous authorities, as early as Sturgis v. Crowninshield, and only ending with Hawthorne v. Calef, show that it does.

Mr. Hoar, Attorney-General, and Mr. M. Blair, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Drehman v. Stifle


text: Talk:Drehman v. Stifle

title: Talk:Drehman v. Stifle


text:
Drehman v. Stifle/Opinion of the Court

This case is brought here by a writ of error issued under the 25th section of the Judiciary Act of 1789, to the Supreme Court of the State of Missouri.

Drehman held the lot to which the controversy between the parties relates by a lease terminating in 1874, and built upon the premises a dwelling-house, store, and other improvements. The lessor sold and conveyed the reversion to Stifle. The house was rendered untenantable by fire. Stifle, as colonel of the 'home guards,' pursuant to an order from his military superior, took possession of the lot, removed all the buildings, and has since held and used the property for his own private purposes. Thereafter, on the 22d of December, 1863, Drehman commenced an action of forcible entry and detainer against Stifle, before a justice of the peace, to recover possession of the premises. The justice rendered a judgment in his favor for restitution, for a large amount of damages, for a specified sum for rent per month, to be paid from the time of the recovery until restitution should be made, and for costs. Stifle removed the case by appeal to the St. Louis Land Court, where a verdict and judgment were rendered in his favor. Drehman appealed to the Circuit Court of St. Louis County.

Upon the trial at that court Stifle relied for his defence upon the 4th section of the constitution of Missouri, adopted in 1865, which is as follows:

'Section 4. No person shall be prosecuted in any civil action for or on account of any act by him done, performed or executed, after the first of January, one thousand eight hundred and sixty-one, by virtue of military authority vested in him by the government of the United States, or that of this State, to do such acts, or in pursuance to orders received by him from any person vested with such authority; and if any action or proceeding shall have heretofore been, or shall hereafter be, instituted against any person for the doing of any such act, the defendant may plead this section in bar thereof.'

The court instructed the jury, substantially, that if the facts established by the evidence to their satisfaction, brought the case within this provision, the defence was valid and the defendant was entitled to their verdict. Drehman excepted. The jury found for Stifle, and the court gave judgment accordingly. Drehman thereupon appealed to the Supreme Court of the State, which affirmed the judgment, and he has brought the case to this court for review.

Two grounds of jurisdiction here and of error below are relied upon:

I. It is alleged that this section of the constitution of Missouri 'is a bill of pains and penalties within the meaning of the Constitution of the United States, and therefore invalid.'

The Constitution of the United States declares that 'no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.' When the Constitution was adopted, bills of attainder and bills of pains and penalties were well known in the English law. Each of those terms had a clear and well-defined meaning. Bills of attainder were acts of Parliament whereby sentence of death was pronounced against the accused. Courts of justice were employed only to register the edict and carry the sentence into execution. Bills of pains and penalties were acts denouncing milder punishments. The term 'bill of attainder' in the National Constitution is generical, and embraces bills of both classes. It is too clear to require discussion that the provision in question of the constitution of Missouri belongs to neither of the categories mentioned. If not the opposite of penal, there is certainly nothing punitive in its character. It simply exempts from suits in a certain class of cases those who might otherwise be harassed by litigation and made liable in damages. It is rather in the nature of the indemnity acts, also well known in the English law.

II. It is insisted that this section 'is a law impairing the obligation of contracts, in violation of the Constitution of the United States.'

This proposition is founded upon a provision in the lease that the lessor should keep the lessee 'in lawful possession of the said leased premises during this lease,' &c. It is said that this covenant became obligatory upon Stifle by virtue of his being the assignee of the reversion of the estate; that the law of landlord and tenant of Missouri, in force when the lease was executed, became a part of the contract; that one of the remedies to which Drehman was entitled by this law to enforce the covenant in question was the proceeding by forcible entry and detainer; that this section of the constitution of Missouri, as construed by the Supreme Court of the State, has deprived him of that remedy, and thus impairs the obligation of his contract. This view of the subject is supported by the counsel for the plaintiff in error with ingenuity, research, and ability; but they have failed to convince us of the soundness of the proposition.

The 26th section of the statute of Missouri upon the subject of forcible entry and detainer declares as follows: 'The merits of the title shall in no wise be inquired into on any complaint which shall be exhibited by virtue of the provisions of this act.' This proceeding has no relation to the rights of property of the parties. It turns entirely on the facts of lawful possession by the plaintiff and unlawful entry by the defendant. The defendant may have a valid title, the plaintiff possession without any title; and yet the defendant, having entered without the plaintiff's consent, may be dispossessed, and the plaintiff be restored to possession. If a party desires to assert his title and enforce his rights, he must resort to the remedies provided for that purpose. This form of procedure is not one of them. It cannot, therefore, be maintained that this remedy entered into the contract between the lessor and lessee. The legislature might have abolished it, by repealing the statute, without impairing any right within the meaning of the contract provision of the Federal Constitution, acquired while the statute was in force. In this respect it stands on the same footing with any other action ex delicto.

Whether the instructions excepted to were right or wrong is an inquiry which lies beyond the sphere of our powers and duties. If an action of covenant or ejectment had been brought, and it had been held that the constitution of Missouri affected the right of recovery, the question would perhaps have presented a different aspect. But no such case is before us, and we have not had occasion to consider the subject. The right of a State legislature to pass retroactive laws, where there is no inhibition in the constitution of the State, provided they do not impair the obligation or a contract, and are not ex post facto in their character, is too well settled to admit of doubt. We find no error in the record of which we can take cognizance.

JUDGMENT AFFIRMED.

title: Drehman v. Stifle/Opinion of the Court


text: Talk:Drehman v. Stifle/Opinion of the Court


text:
Hepburn v. Griswold

ERROR to the Court of Appeals of Kentucky, the case being this:

On the 20th of June, 1860, a certain Mrs. Hepburn made a promissory note, by which she promised to pay to Henry Griswold on the 20th of February, 1862, eleven thousand two hundred and fifty 'dollars.'

At the time when the note was made, as also at the time when it fell due, there was, confessedly, no lawful money of the United States, or money which could lawfully be tendered in payment of private debts, but gold and silver coin.

Five days after the day when the note by its terms fell due, that is to say, on the 25th of February, 1862, in an exigent crisis of the nation, in which the government was engaged in putting down an armed rebellion of vast magnitude, Congress passed an act authorizing the issue of $150,000,000 of its own notes, and enacted in regard to them, by one clause in the first section of the act, as follows:

'And such notes, herein authorized, shall be receivable in payment of all taxes, internal duties, excises, debts, and demands of every kind due to the United States, except duties on imports, and of all claims and demands against the United States of every kind whatsoever, except for interest upon bonds and notes, which shall be paid in coin; and shall also be lawful money and a legal tender in payment of all debts, public and private, within the United States, except duties on imports and interest as aforesaid.'

The note given by Mrs. Hepburn not being paid at maturity, interest accrued on it. And in March, 1864, suit having been brought on the note in the Louisville Chancery Court, she tendered in United States notes issued under the act mentioned, $12,720, the amount of principal of the note with the interest accrued to the date of tender, and some costs, in satisfaction of the plaintiff's claim. The tender was refused. The notes were then tendered and paid into court; and the chancellor, 'resolving all doubts in favor of the Congress,' declared the tender good and adjudged the debt, interest and costs to be satisfied accordingly.

The case was then taken by Griswold to the Court of Errors of Kentucky, which reversed the chancellor's judgment, and remanded the case with instructions to enter a contrary judgment.

From the judgment of the Court of Errors of Kentucky, the case was brought by Mrs. Hepburn here.

The cause was first argued at the Term of December, 1867, upon printed briefs submitted by Mrs. Preston for the plaintiff in error, and Mr. Griswold contra. Subsequently, upon the suggestion of Mr. Stanbery, then Attorney-General, as to the great public importance of the question, the court ordered the cause and other causes involving, incidentally, the same question, to stand over to December Term, 1868, for reargument, with leave to the government to be heard. Accordingly, at that term the constitutionality of the provision in the act making the notes above-described a legal tender, was elaborately argued by Mr. B. R. Curtis (counsel for the plaintiff in error, in Willard v. Tayloe,) and by Mr. Evarts, Attorney-General, for the United States, in support of the provision, and by Mr. Clarkson N. Potter (of counsel for the defendant in error in this case), against the provision.

And the constitutionality of the provision had been argued at different times, by other counsel, in five other cases, which it was supposed by their counsel might depend on it, but four of which were decided on other grounds; to wit, in support of the constitutionality by Mr. Carlisle, Mr. W. S.C.ox, Mr. Williams, Mr. S. S. Rogers, Mr. B. R. Curtis, Mr. L. P. Poland, Mr. Howe, and against it by Mr. Bradley, Mr. Wilson, Mr. Johnson, Mr. John J. Townsend, Mr. McPherson, Mr. Wills, in Thomson v. Riggs, in Lane County v. Oregon, in Bronson v. Rodes, in Willard v. Tayloe, and in Broderick v. Magraw. The question was therefore thoroughly argued. And it was held long under advisement.

It is deemed unnecessary here to present the arguments, already in part presented, in some of the cases named, the matter in the present case being fully argued on both sides, from the bench.

The CHIEF JUSTICE delivered the opinion of the court.

title: Hepburn v. Griswold


text: Talk:Hepburn v. Griswold

title: Talk:Hepburn v. Griswold