text:
Irwin v. Williar

The defendants in error were plaintiffs below, and brought this action against the plaintiff in error, as surviving partner of the firm of Irwin & Davis, to recover a balance alleged to be due, growing out of certain sales of wheat for future delivery, claimed to have been made by the defendants in error for the firm of Irwin & Davis upon their order. The liability of the plaintiff in error was denied on two grounds: (1) That the transactions were made by Davis, the deceased partner, without the knowledge, assent, or authority of the plaintiff in error, and were not within the scope of the partnership business; and (2) that the sales were wagering contracts and void.

It appears from the bill of exceptions that there was evidence on the trial tending to prove the following state of fact: Irwin, the plaintiff in error, and Davis, who died in October, 1877, became partners in 1872 in the ownership and operation of a flouring-mill and appurtenances at Brazil, Clay county, Indiana. Their contract of partnership contemplated the buying of grain-both wheat and corn-and its manufacture into flour and meal, and the sale of such grain as might accumulate in excess of that required for manufacturing; and did not contemplate, as between themselves, the buying and selling of grain in large quantities for speculation. The capacity of the mill did not exceed 60 barrels of flour per day; its average manufacture was 30. The working capital of the firm varied from $2,000 to $4,000. Irwin resided at Butler, in Pennsylvania, and visited Brazil rarely. Appurtenant to the mill was a warehouse for the storage of grain, equipped with appliances for loading and unloading grain, in bulk, into and from railroad cars. Soon after the formation of the partnership, and as part of its business, Davis, in its name, began and continued to ship corn and oats to Indianapolis, and corn and flour to Baltimore, for sale and immediate delivery, in consignments not exceeding $1,000 each in value, and in the year 1875 several such consignments had been made to the defendants in error at Baltimore for sale on account of the firm by Davis. In all their business correspondence, including that with the defendants in error, who were commission merchants and grain brokers in Baltimore, the cards and letter-heads were as follows: 'Brazil Flouring-Mills; Irwin & Davis, millers and dealers in grain, Brazil, Ind.' This letter-head was used with the knowledge of Irwin, who, however, had no knowledge of any transaction by Davis, on account of the firm, in the purchase or sale of grain for future delivery. Prior to 1877, in point of fact, Davis had given no orders for the purchase of grain in Baltimore, or any eastern market, and during that year, in the months of July, August, and September, he shipped to defendants in error 31 car-loads of wheat, of about 380 bushels each, for sale, which was accounted for.

The transactions which form the subject of this suit were as follows: On July 12, 1877, Davis, by cipher telegrams and letters, gave an order to defendants in error to sell 20,000 bushels of wheat for delivery in August, and followed that up with similar orders until the last, on September 3d, a period of 53 days, making an aggregate of 30,000 bushels for delivery in August, 105,000 bushels in September, and 30,000 bushels in October,-in all, 165,000 bushels. These orders were reported by the defendants in error as executed at the prices named, amounting in gross to $251,794.84. At or before maturity these contracts of sale were settled by defendants in error on account of Davis & Irwin according to the custom of the corn and flour exchange in Baltimore, of which the former were members, at and through the members of which substantially all the business of buying and selling grain at that city was done. In these settlements the differences between the prices at which the wheat had been sold and those which the brokers would have been compelled to pay, or did pay, as the market prices, at the time of settlement, for wheat to deliver, or in fact delivered, in execution of the sales, amounted to $17,217.95, which was the balance sued for and recovered in this action. Davis did not consign or deliver to defendants in error any of the wheat so contracted to be sold on their account, although he had during the same period consigned other wheat to defendants in error, as above stated, but which, pursuant to orders given at the time, had been sold on arrival, but not applied on contracts of sale for future delivery. The defendants in error actually delivered on account of Davis & Irwin about 40,000 bushels of wheat on their contracts, which they purchased in open market for that purpose, but as to the rest, settled by paying the differences between the contract and market prices.

There was evidence tending to show that among the general usages and customs obtaining at Baltimore among grain commission merchants were the following, which were well known, and which had long existed and been uniformaly observed among the members of said corn and flour exchange and others engaged in the buying and selling of grain on commission at said city, viz.:

(1) That a commission merchant buying or selling grain upon the order of a customer for future delivery entered into such contract in his own name, thereby becoming personally responsible to the party with whom he contracted for the performance of the contract, the name of his principal being never, or but rarely, disclosed.

(2) That such commission merchant held himself and stood responsible to his principal or customer for the performance by the other party with whom he entered into such contract of purchase or sale of such contract, and for making good the contract to his principal in case of the insolvency or default from any cause of such other party.

(3) That purchases or sales to fill orders of customers are usually made on the floor of the corn and flour exchange, by open public offer to the members of the board there assembled. That when it so occurs as that a commission merchant, who upon the order of one customer has sold to (or vice versa purchased from) another commission merchant grain for a certain future delivery, and afterwards, upon the order of another customer, buys (or vice versa sells) a like amount of like grain for the same future delivery, from (or to) the same commission merchant, the two commission merchants, as between themselves, set off one contract against the other and mutually surrender or cancel them, settling between them the difference in price, each substituting on his books in the place and stead of the other the new or second customer, upon whose order he made the second purchase or sale. Thus, if commission merchant A., upon the order of his customer X., has sold grain for a designated future delivery to commission merchant B., and afterwards, upon the order of customer Y., buys like grain for like delivery from B., A. and B. adjust the difference, cancel their contracts, and surrender any margins that may have been put up by them, and in such case A. substitutes his second customer, Y., in placy of B., so that the grain he had sold on the order of X. would be delivered to Y. instead of to B.; A., standing as guarantor to Y. that X. will deliver the grain, and to X. that Y. will receive and pay for it, and that X. shall receive the full price at which the grain had been contracted to B.

(4) That where such second transaction is not with the same commission merchant with whom the first had occurred, but a different one, and it is found that a circuit of like contracts exists, by which commission merchant A. has sold grain to merchant B., who has sold like grain to C., who has made like sale to A., the commission merchants settle as among themselves by what is called a 'ring.' The parties in such case do not make successive deliveries until the grain comes round again to the commission merchant from whom it started, nor does each buyer pay the full amount of his purchase money to his immediate seller, but receives or pays, as the case may be, the amount of the net profit he would have received or of net loss he would have sustained if the settlement has not been made by a 'ring.'

In such case all margins put up by the commission merchants are restored, the contracts surrendered, and the contracts or orders of their undisclosed principals, upon whose instructions they had entered into those contracts, are held in lieu of the contracts so surrendered, each commission merchant being responsible to each of his customers for performance by the other. The settlements of differences, made by defendants in error on account of Davis & Irwin, were made in pursuance of these customs, but there was no evidence that Davis & Irwin had any actual knowledge of them. There was evidence also tending to prove that Irwin had no knowledge of the transactions between Davis and the defendants in error until after they had been completed. On the trial it was claimed on behalf of the defendant below that the transactions in question were not authorized by the partnershp agreement; that they were not in the regular course of the partnership business, and were not within its apparent scope. On that point, among other things, the circuit court charged the jury as follows: '(4) If Irwin permitted Davis to hold himself and Irwin out to the world as partners in the business of dealing in grain, he became liable with Davis on contracts for the sale and purchase of grain for future delivery, and in that case it is not material that Irwin should have actual knowledge of particular sales or purchases in the firm name; and if Irwin knew that Davis was holding the firm out as dealers in grain, and did not protest or give public notice to the contrary, he is responsible as partner for all contracts made by Davis in the firm name, within the apparent scope of the business of dealing in grain. If Davis, as partner, did in fact buy and sell grain, and if in his correspondence with customers and others, including the plaintiffs, he employed printed letter-heads or cards representing the firm of Irwin & Davis as grain dealers, this was a holding out of that firm as a partnership engaged in that business, and if before and at the time of the dealings with the plaintiffs Irwin knew that the firm was thus held out as grain dealers, he is liable as a partner. If, therefore, you believe from the evidence that Irwin & Davis held themselves out as dealers in grain as well as in flour, and that plaintiffs dealt with Davis, supposing they were dealing with the firm, and in so doing advanced their own money in fulfilling such contracts, you should find for the plaintiffs in whatever sum the evidence may show them to be entitled to on account of such advancements, unless you think the defendant has shown that the transactions between the plaintiffs and Irwin & Davis were gambling transactions.' This was excepted to, and it is now assigned for error.

John M. Butler, for plaintiff in error.

W. D. Davidge, T. A. Hendricks, and C. Baker, for defendants in error.

MATTHEWS, J.

title: Irwin v. Williar


text: Talk:Irwin v. Williar

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

title: Talk:Irwin v. Williar


text:
Irwin v. Williar/Opinion of the Court

The proposition contained in this charge is that the business of dealing in grain, no matter how much it may be restricted by agreement between the partners, and no matter how it may have been qualified by the actual practice of the firm, necessarily authorizes each partner to bind the others by unknown contracts in distant markets for unlimited sales and purchases of grain for future delivery. And so the jury must have understood it; for they were told that 'if Erwin permitted Davis to hold himself and Irwin out to the world as partners in the business of dealing in grain, he became liable with Davis on contracts for the sale and purchase of grain for future delivery, and in that case it is not material that Irwin shoud have actual knowledge of particular sales or purchases in the firm name;' and 'if Davis, as partner did, in fact buy and sell grain, and if, in his correspondence with customers and others, including the plaintiffs, he employed printed letter-heads or cards representing the firm of Irwin & Davis as grain dealers, this was a holding out of that firm as a partnership engaged in that business;' and 'if, therefore, you believe from the evidence that Irwin & Davis held themselves out as dealers in grain as well as in flour, and that the plaintiffs dealt with Davis, supposing they were dealing with the firm, etc., you should find for the plaintiffs,' etc. This was equivalent to directing the jury to find a verdict for the plaintiffs in the action, for the only facts to which their attention was directed as material were not disputed, viz., that the firm had been in the habit of buying and selling grain, and had constantly used letter-heads describing themselves as dealers in grain. In this, we think, there was error. The liability of one partner, for acts and contracts done and made by his copartners without his actual knowledge or assent, is a question of agency. If the authority is denied by the actual agreement between the partners, with notice to the party who claims under it, there is no partnership obligation. If the contract of partnership is silent, or the party with whom the dealing has taken place has no notice of its limitations, the authority for each transaction may be implied from the nature of the business according to the usual and ordinary course in which it is carried on by those engaged in it in the locality which is its seat, or as reasonably necessary or fit for its successful prosecution. If it cannot be found in that, it may still be inferred from the actual though exceptional course and conduct of the business of the partnership itself, as personally carried on with the knowledge, actual or presumed, of the partner sought to be charged. In the present case the partnership agreement cannot affect the question, because it is not claimed on the one hand that it conferred actual authority to make the transactions in dispute, nor, on the other, that the defendants in error had any notice of its limitations. And so, too, any implication that might have arisen from a previous course of business of this character, carried on by Davis with the knowledge of Irwin, must be rejected, for it is not claimed that any foundation in proof existed for it.

The only remaining ground for the implied authority by which it can be claimed that Irwin was bound by the contracts of his partner is that arising from the intrinsic nature of the business in which the partnership was actually engaged, or from the usual and ordinary course of conducting it at the locality where it was carried on. What the nature of that business in each case is, what is necessary and proper to its successful prosecution, what is involved in the usual and ordinary course of its management by those engaged in it, at the place and time where it is carried on, are all questions of fact, to be decided by the jury, from a consideration of all the circumstances which, singly or in combination, affect its character or determine its peculiarities, and from them all, giving to each its due weight, it is its province to ascertain and say whether the transaction in question is one which those dealing with the firm had reason to believe was authorized by all its members. The difficulty and duty of drawing the inference suitable to each case from all its circumstances cannot be avoided or supplied by affixing or ascribing to the business some general name, and deducing from that, as a matter of law, the rights of the public and the duties of the partners. Dealing in grain is not a technical phrase from which a court can properly infer as matter of law authority to bind the firm in every case irrespective of its circumstances; and if, by usage, it has acquired a fixed and definite meaning as a word of art in trade, that is matter of fact to be established by proof and found by a jury. It may mean one thing at Brazil, in Indiana, another at Baltimore. It may not be the same when standing alone with what it is in connection with a flouring-mill in a small interior town. It may mean dealing in grain on hand for present delivery for cash or on credit, or it may mean, also, dealing in futures by means of contracts of sale or purchase for purposes of speculating upon the course of the market. We are quite clear that the latter feature of the business, as it may sometimes be prosecuted, is not as matter of law an essential characteristic of every business to which the name of dealing in grain may be properly assigned. And yet this is distinctly what in the present case was given to the jury as the law, and in that respect the circuit court erred.

As the judgment now under review would have to be reversed for the error just pointed out, it is not necessary for the purpose of disposing of the present writ of error to proceed further to examine other assignments; but as the case must be remanded for a new trial, in which the remaining questions may again arise, it seems appropriate now to dispose also of them.

It was contended on the part of the defendant below that the transactions on which the suit was founded were void as wagering transactions. On this point the court charged the jury as follows:

'(5) If you find that the dealings with the plaintiffs were within the scope of the partnership, you will next consider whether the dealings were gambling transactions. The burden of showing that the parties were carrying on a wagering business, and were not engaged in legitimate trade or speculation, rests upon the defendant. On their face these transactions are legal, and the law does not, in the absence of proof, presume that parties are gambling. A person may make a contract for the sale of personal property for future delivery which he has not got. Merchants and traders often do this. A contract for the sale of personal property which the vendor does not own or possess, but expects to obtain by purchase or otherwise, is binding if an actual transfer of property is contemplated. A transaction which on its face is legitimate cannot be held void as a wagering contract by showing that one party only so understood and meant it to be. The proof must go further, and show that this understanding was mutual,-that both parties so understood the transaction. If, however, at the time of entering into a contract for the sale of personal property for future delivery, it be contemplated by both parties that at the time fixed for delivery the purchaser shall merely receive or pay the difference between the contract and the market price, the transaction is a wager, and nothing more. It makes no difference that a bet or wager is made to assume the form of contract. Gambling is none the less such because it is carried on in the form or guise of legitimate trade.

'(6) It is not sufficient for the defendant to prove that Irwin & Davis never understood that they were to deliver wheat in fulfillment of the sales made for them by the plaintiffs. The presumption is that the plaintiffs expected Irwin & Davis to execute their contracts, expected them to deliver the amount of grain sold, and before you can find that the sales were gambling transactions and void, you must find from the proof that the plaintiffs knew or had reason to believe that Irwin & Davis contemplated nothing but a wagering transaction, and acted for them accordingly. If the plaintiffs made sales of wheat for Irwin & Davis for future delivery, understanding that these contracts would be filled by the delivery of grain at the time agreed upon, Irwin & Davis were liable to the plaintiffs, even though they meant to gamble, and nothing more.'

No objection seems to be made to this charge, so far as it defines what constitutes a wagering contract, and we accept it as a correct statement of the law upon that point. The generally accepted doctrine in this country is, as stated by Mr. Benjamin, that a contract for the sale of goods to be delivered at a future day is valid, even though the seller has not the goods, nor any other means of getting them than to go into the market and buy them; but such a contract is only valid when the parties really intend and agree that the goods are to be delivered by the seller and the price to be paid by the buyer; and if, under guise of such a contract, the real intent be merely to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract, then the whole transaction constitutes nothing more than a wager, and is null and void. And this is now the law in England by force of the statute of 8 & 9 Vict. c. 109, § 18, altering the common law in that respect. Benj. Sales, §§ 541, 542, and notes to 4th Amer. Ed. by Bennett.

In Reed v. Anderson, 48 Law T. (N. S.) 74, the defendant was nevertheless adjudged liable to refund to the plaintiff the amount lost by the latter by a bet on a horse-race, made in his own name, but for the defendant, at his request; and this was followed in Thacker v. Hardy, 4 Q. B. Div. 685. There the plaintiff was employed by the defendant as a broker to speculate for him on the stock exchange. It was never intended between the parties that the defendant should take up the contracts into which the plaintiff entered on his behalf, but the plaintiff was to arrange matters so that nothing but 'differences' should be actually payable to or by the defendant. The plaintiff having entered into such contracts on the defendant's behalf, in respect of which he became, by the rules of the stock exchange, personally liable, he sued the defendant for his commissions, and for indemnity against the liability he had incurred. It was held that the agreement between the plaintiff and defendant was not a gaming contract, within the meaning of the statute. The case was distinguished from Grizewood v. Blane, 11 C. B. 536, which was an action on a contract for the future delivery of railway shares, in which JERVIS, C. J., left it to the jury to say 'what was the plaintiff's intention and what was the defendant's intention at the time of making the contracts, whether either party really meant to purchase or to sell the shares in question; telling them that if they did not, the contract was, in his opinion, a gambling transaction, and void.' This ruling was held to be correct.

In Rountree v. Smith, 108 U.S. --, [S.C.. 2 SUP. CT. REP. 630,] it was said that brokers who had negotiated such contracts, suing, not on the contracts themselves, but for services performed and money advanced for defendant at his request, though they might under some circumstances be so connected with the immorality of the contract as to be affected by it, they are not in the same position as a party sued for the enforcement of the original agreement. It is certainly true that a broker might negotiate such a contract without being privy to the illegal intent of the principal parties to it, which renders it void, and in such a case, being innocent of any violation of law, and not suing to enforce an unlawful contract, has a meritorious ground for the recovery of compensation for services and advances. But we are also of the opinion that when the broker is privy to the unlawful design of the parties, and brings them together for the very purpose of entering into an illegal agreement, he is particeps criminis, and cannot recover for services rendered or losses incurred by himself on behalf of either, in forwarding the transaction.

In England, it is held that the contracts, although wagers, were not void at common law, and that the statute has not made them illegal, but only non-enforceable, (Thacker v. Hardy, ubi supra;) while generally, in this country, all wagering contracts are held to be illegal and void as against public policy. Dickson's Ex'r v. Thomas, 97 Pa. St. 278; Gregory v. Wendell, 40 Mich. 432; Lyon v. Culbertson, 83 Ill. 33; Melchert v. ''Amer. Union Tel. co.'' 3 McCrary, 521; S.C.. 11 Fed. Rep. 193, and note; Barnard v. Backhaus, 52 Wis. 593; [S.C.. 9 N. W. Rep. 595;] Kingsbury v. Kirwan, 77 N. Y. 612; Story v. Salomon, 71 N. Y. 420; Love v. Harvey, 114 Mass. 80.

The charge of the court, however, is objected to on behalf of the plaintiff in error as misleading by the statement embodied in it, that 'on their face these transactions are legal.' We presume that nothing more was meant by this than what had just before been said in the charge, that the burden of proof to show the illegality of the transactions was upon the defendant, who affirmed it, the presumption being that men ordinarily in their business transactions do not intend to violate the law. It is argued, however, that the expression is ambiguous and misleading, as calculated to convey to the jury an opinion that the transactions as disclosed by the evidence were not merely lawful in form, but also in fact, without other proof to the contrary. We do not doubt that the question whether the transactions came within the definition of wagers is one that may be determined upon the circumstances, the jury drawing all proper inferences as to the real intent and meaning of the parties; for, as was properly said in the charge, 'it makes no difference that a bet or wager is made to assume the form of a contract. Gambling is none the less such because it is carried on in the form or guise of legitimate trade.' It might therefore be the case that a series of transactions, such as that described in the present record, might present a succession of contracts, perfectly valid in form, but which, on the face of the whole, taken together, and in connection with all the attending circumstances, might disclose indubitable evidences that they were mere wagers. The jury would be justified in such a case, without other evidence than that of the nature and circumstances of the transactions, in reaching and declaring such a conclusion.

Objection was made at the trial, by the plaintiff in error, to proof of the customs of the grain commission merchants operating through the corn and flour exchange, and exception was taken to its admission. They were also made the subject of a charge to the jury, to which exception was taken. That portion of the charge is as follows:

'(7) The testimony tends to show that a general custom obtained among grain commission merchants in Baltimore to the following effect: When one commission merchant, upon the order of acustomer, sells to another commission merchant a quantity of grain for future delivery, and where it occurs that at some other time before the maturity of the contract the same commission merchant receives an order from another customer to purchase the same or a larger quantity of the same kind of grain for the same future delivery, and he executes this second order by making the purchase from the same commission merchant to whom he had made the sale in the other case, that then, in such case, the two commission merchants meet together and exchange or cancel the contracts as between themselves, adjusting the difference in the prices between the two contracts, and restoring any margins that may have been put up, and that from that time forth the first commission merchant holds for the benefit of the customer for whom he sold the order or contract of the purchaser for whom he bought, so that the wheat of the selling customer may, when delivered, be turned in on the order or contract of the purchasing customer, and that the commission merchant is held responsible as guarantor to his customer. The evidence further tends to show a custom obtaining among commission merchants at Baltimore to the further effect that, though the second transaction may have been had with a different commission merchant from the one with which the first transaction was had, yet where it can be found that a series of contracts are in existence for the sale of like grain for like delivery, so that the seller owes the wheat to the buyer to whom he sold, and he to another, who owes like wheat for like delivery to the first commission merchant, that then, in such case, they settle by what they call 'a ring,'-that is, they all reciprocally surrender or cancel their contracts, adjust the price differences between themselves, and surrender all margins that had been put up; that in all such eases the commission merchant substitutes the contract of another customer in place of that with the commission merchant whose contract has been canceled or surrendered, and that he guaranties to his customer the performance of the contract originally made on his behalf. I say to you, gentlemen, that these customs are founded in commercial convenience; that they are not in contravention of the law; and that they are valid.'

The case which the plaintiffs below stated in their declaration was that, in pursuance of orders from the defendant's firm, they had sold to responsible purchasers the wheat mentioned for future delivery, and on failure of Irwin & Davis to forward the grain for delivery when due, upon instructions from them, the plaintiffs had purchased the necessary quantity and delivered the same, in performance of the contracts; the recovery sought being for the difference between what it cost them to purchase the grain delivered and the prices received on the contracts of sale. The proof was, except as to 40,000 bushels actually delivered, that the settlements, in pursuance of which these advances were made by the plaintiff below on account of Irwin & Davis, were made according to the customs of the grain and flour exchange, which were admitted in evidence. The bill of exceptions states that 'there was evidence tending to show that after the making of divers of the contracts for sale of wheat in the declaration mentioned, which were made to members of said corn and flour exchange, the same were, before the expiration of the respective times therein named for the delivery of the wheat, settled and canceled as between the plaintiffs and the said respective parties with whom they had, in the first instance, contracted said sales by mutual surrender of contracts pursuant to the customs aforesaid; and that the orders of customers, in the fulfillment of which said canceled contracts had been made, were substituted by the plaintiff's in lieu of such canceled or surrendered contracts, and held in the lieu and stead thereof for the use and benefit of said Irwin & Davis, in accordance with the usages and customs aforesaid; the plaintiffs standing as guarantors to said Irwin & Davis that the respective parties so ordering the wheat would accept and pay for it on delivery, and that said Irwin & Davis should receive the full price at which the respective sales on their behalf had originally been made.'

The question is, there being no evidence that Irwin & Davis had any knowledge of the existence of these customs, whether they were bound by them. The relation between the parties to this litigation was that of principal and agent; and the defendants in error, acting as brokers, in executing the orders to sell, undertook to obtain, and, as they allege in their declaration, did obtain, a responsible purchaser; so that the plaintiff in error would, upon the contract of sale against such purchaser when disclosed, have been entitled to maintain an action in case of default in his own name. Although the broker guarantied the sale, it was not a sale to himself; for, being agent to sell, he could not make himself the purchaser. The precise effect, therefore, of the custom proved, was that at the time of settlement, in anticipation of the maturity of the contracts, the brokers, by an arrangement among themselves, by a process of mutual cancellation, reduced the settlement to a payment of differences, exchanging contracts, so as to substitute new purchasers and new sellers respectively for the balances. The question is not whether in a given case, without the assent, express or implied, of the principal, this change of his rights and obligations can be effected, (for that proposition is not doubtful,) but whether the fact of his transacting business through a member of the exchange, without other knowledge of the custom, makes it part of his contract with the broker.

In Nickalls v. Merry, L. R. 7 H. L. 530, it was sais by Lord CHELMSFORD, p. 543, that the contract 'having been made between a broker and a jobber, members of the stock exchange, the usage of that body enters into, and to a certain extent determines and governs, the nature and effect of the contract.' To what extent such a custom shall be allowed to operate, as between the broker and his principal, was very thoroughly considered and finally decided by the house of lords in the case of Robinson v. Mollett, L. R. 7 H. L. 802, after much division of opinion among the judges. The custom questioned in that case was one established in the London tallow trade, according to which brokers, when they received an order from a principal for the purchase of tallow, made a contract or contracts in their own names, without disclosing their principals, either for the specific quantity of tallow so ordered, or to include such order with others in a contract for the entire quantity, or in any quantities at their convenience, at the same time exchanging bought and sold notes with the selling brokers, and passing to their principals a bought note for the specific quantity ordered by them. When a broker so purchased in his own name, he was personally bound by the contract. On the usual setting days the brokers balanced between themselves the purchases and sales made, and made or received deliveries to or from their principals, as the case might be, or if their principals refused to accept or deliver, then they sold or bought against them, and charged them with the loss, if any; or if delivery was not required on either side, then any difference arising from a rise or fall in the market was paid by one to the other. It was held that this custom did not bind a principal giving an order to a broker to purchase for him, being ignorant of its existence. It was admitted by Lord CHELMSFORD, p. 836, 'that if a person employs a broker to transact for him upon a market, with the usages of which the principal is unacquainted, he gives authority to the broker to make contracts upon the footing of such usages, provided they are such as regulate the mode of performing the contracts and do not change their intrinsic character;' and he added, 'of course, if the appellant knew of the existence of the usage, and chose to employ the respondents without any restriction upon them, he might be taken to have authorized them to act for him in conformity to such usage.' Mr. Justice BRETT, in his opinion, p. 816, points out very clearly that the custom, if allowed to prevail, would work a change in the relation between the broker and his principal, by permitting the agent to buy, to convert himself into a principal to sell. Mr. Baron CLEASBY, p. 828, said. 'The vice of the usage set up in the present case cannot be appreciated by examining its parts separately. It must be looked at as a whole, and its vice consists, I apprehend, in this: that the broker is to make the contract of purchase for another whose interest as buyer is to have the advantage of every turn of the market; but if the broker may eventually have to provide the goods as principal, then it becomes his interest as seller that the price which he is to receive should have been as much in favor of the seller as the state of the market would admit. Thus the two positions are opposed.'

The principle of this decision seems to us to be incontrovertible, and applies in the present case. The ground of the action is that the defendants in error, at the request of Irwin & Davis, had made certain contracts for the sale and future delivery of grain; that these contracts were made in the name of the brokers, on which, therefore, they were personally liable, but in which Irwin & Davis were the principals; that the latter were bound to perform them, or to place in the hands of their brokers means of performance within the proper period, or to indemnify them against the consequences of non-performance; that Irwin & Davis in all these particulars became in default, and the plaintiffs were required to perform out of their own means, which they did by purchasing grain for delivery at the market price, or paying the difference between that and the contract price. The custom proved was offered to show this performance and consequent loss; and in doing so it disclosed that the brokers did not perform the original contracts of sale actually made, but delivered equal quantities of grain, or its market value, in fulfillment of contracts of purchase made by them for others, and which, by the process of mutual exchange authorized by this custom, had come into their hands for that purpose. This exchange and substitution and payment of differences to effect it, working as it does a complete change in the nature of the seller's rights and obligations, cannot be made without his assent, and that assent can be implied only from knowledge of the custom which it is claimed authorizes it. The circuit court therefore erred in permitting proof of this custom, without evidence that the defendant below had knowledge of it, and in not instructing the jury to disregard it, if they were satisfied from the evidence that such knowledge had not been satisfactorily shown.

The judgment of the circuit court is therefore reversed, with directions to grant a new trial; and it is so ordered.

title: Irwin v. Williar/Opinion of the Court


text: Talk:Irwin v. Williar/Opinion of the Court


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Hurtado v. People of the State of California

The constitution of the state of California adopted in 1879, in article 1, § 8, provides as follows: 'Offenses heretofore required to be prosecuted by indictment, shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county.' Various provisions of the Penal Code regulate proceedings before the examining and committing magistrate in cases of persons arrested and brought before them upon charges of having committed public offenses. These require, among other things, that the testimony of the witnesses shall be reduced to writing in the form of depositions; and section 872 declares that if it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, the magistrate must indorse on the depositions an order, signed by him, to that effect, describing the general nature of the offense committed, and ordering that the defendant be held to answer thereto. Section 809 of the Penal Code is as follows: 'When a defendant has been examined and committed, as provided in section 872 of this Code, it shall be the duty of the district attorney, within thirty days thereafter, to file in the superior court of the county in which the offense is triable, an information charging the defendant with such offense. The information shall be in the name of the people of the state of California, and subscribed by the district attorney, and shall be in form like an indictment for the same offense.'

In pursuance of the foregoing provision of the constitution, and of the several sections of the Penal Code of California, the district attorney of Sacramento county, on the twentieth day of February, 1882, made and filed an information against the plaintiff in error, charging him with the crime of murder in the killing of one Jose Antonio Stuardo. Upon this information, and without any previous investigation of the cause by any grand jury, the plaintiff in error was arraigned on the twenty-second day of March, 1882, and pleaded not guilty. A trial of the issue was thereafter had, and on May 7, 1882, the jury rendered its verdict, in which it found the plaintiff in error guilty of murder in the first degree. On the fifth day of June, 1882, the superior court of Sacramento county, in which the plaintiff in error had been tried, rendered its judgment upon said verdict, that the said Joseph Hurtado, plaintiff in error, be punished by the infliction of death, and the day of his execution was fixed for the twentieth day of July, 1882. From this judgment an appeal was taken, and the supreme court of the State of California affirmed the judgment. On the sixth day of July, 1883, the superior court of said county of Sacramento ordered that the plaintiff in error be in court on the eleventh day of July, 1883, in order that a day for the execution of the judgment in said cause should be fixed. In pursuance of said order, plaintiff in error, with his counsel, appeared at the bar of the court, and thereupon the judge asked him if he had any legal reason to urge why said judgment should not be executed, and why an order should not then be made fixing the day for the execution of the same. Thereupon the plaintiff in error, by his counsel, objected to the execution of said judgment, and to any order which the court might make fixing a day for the execution of the same, upon the grounds (7) that it appeared upon the face of the judgment that the plaintiff in error had never been legally, or otherwise, indicted or presented by any grand jury, and that he was proceeded against by information made and filed by the district attorney of the county of Sacramento, after examination and commitment by a magistrate of the said county; (8) that the said proceedings, as well as the laws and constitution of California, attempting to authorize them, and the alleged verdict of the jury, and judgment of the said superior court of said county of Sacramento, were in conflict with and prohibited by the fifth and fourteenth articles of amendment of the constitution of the United States, and that they were therefore void; (9) that the said plaintiff in error had been held to answer for the said crime of murder by the district attorney of the said county of Sacramento, upon an information filed by him, and had been tried and illegally found guilty of the said crime, without any presentment or indictment of any grand or other jury, and that the judgment rendered upon the alleged verdict of the jury in such case was and is void, and if executed would deprive the plaintiff in error of his life or liberty without due process of law. Thereupon the court overruled the said objections, and fixed the thirtieth day of August, 1883, as the time for the execution of the sentence. From this latter judgment the plaintiff in error appealed to the supreme court of the state. On the eighteenth day of September, 1883, the supreme court of the state affirmed the said judgment, to review which the present writ of error was allowed and has been prosecuted.

A. L. Hart, for plaintiff in error.

John T. Carey, for defendant in error.

MATTHEWS, J.


text: Talk:Hurtado v. People of the State of California


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Hurtado v. People of the State of California/Opinion of the Court

It is claimed on behalf of the prisoner that the conviction and sentence are void, on the ground that they are repugnant to that clause of the fourteenth article of amendment to the constitution of the United States, which is in these words: 'Nor shall any state deprive any person of life, liberty, or property without due process of law.' The proposition of law we are asked to affirm is that an indictment or presentment by a grand jury, as known to the common law of England, is essential to that 'due process of law,' when applied to prosecutions for felonies, which is secured and guarantied by this provision of the constitution of the United States, and which accordingly it is forbidden to the states, respectively, to dispense with in the administration of criminal law. The question is one of grave and serious import, affecting both private and public rights and interests of great magnitude, and involves a consideration of what additional restrictions upon the legislative policy of the states has been imposed by the fourteenth amendment to the constitution of the United States. The supreme court of California, in the judgment now under review, followed its own previous decision in Kalloch v. ''Super. Ct.'' 56 Cal. 229, in which the question was deliberately adjudged. Its conclusion was there stated as follows: 'This proceeding, as [it] is regulated by the constitution and laws of this state, is not opposed to any of the definitions given of the phrases 'due process of law' and 'the law of the land;' but, on the contrary, it is a proceeding strictly within such definitions, as much so in every respect as is a proceeding by indictment. It may be questioned whether the proceeding by indictment secures to the accused any superior rights and privileges; but certainly a prosecution by information takes from him no immunity or protection to which he is entitled under the law.' And the opinion cites and relies upon a decision of the supreme court of Wisconsin in the case of Rowan v. State, 30 Wis. 129. In that case the court, speaking of the fourteenth amendment, says: 'But its design was not to confine the states to a particular mode of procedure in judicial proceedings, and prohibit them from prosecuting for felonies by information instead of by indictment, if they chose to abolish the grand jury system. And the words 'due process of law' in the amendment do not mean and have not the effect to limit the powers of state governments to prosecutions for crime by indictment; but these words do mean law in its regular course of administration, according to prescribed forms, and in accordance with the general rules for the protection of individual rights. Administration and remedial proceedings must change, from time to time, with the advancement of legal science and the progress of society; and, if the people of the state find it wise and expedient to abolish the grand jury and prosecute all crimes by information, there is nothing in our state constitution and nothing in the fourteenth amendment to the constitution of the United States which prevents them from doing so.'

On the other hand, it is maintained on behalf of the plaintiff in error that the phrase 'due process of law' is equivalent to 'law of the land,' as found in the twenty-ninth chapter of Magna Charta; that by immemorial usage it has acquired a fixed, definite, and technical meaning; that it refers to and includes, not only the general principles of public liberty and private right, which lie at the foundation of all free government, but the very institutions which, venerable by time and custom, have been tried by experience and found fit and necessary for the preservation of those principles, and which, having been the birthright and inheritance of every English subject, crossed the Atlantic with the colonists and were transplanted and established in the fundamental laws of the state; that, having been originally introduced into the constitution of the United States as a limitation upon the powers of the government, brought into being by that instrument, it has now been added as an additional security to the individual against oppression by the states themselves; that one of these institutions is that of the grand jury, an indictment or presentment by which against the accused in cases of alleged felonies is an essential part of due process of law, in order that he may not be harassed and destroyed by prosecutions founded only upon private malice or popular fury. This view is certainly supported by the authority of the great name of Chief Justice SHAW and of the court in which he presided, which, in Jones v. Robbins, 8 Gray, 329, decided that the twelfth article of the bill of rights of Massachusetts, a transcript of Magna Charta in this respect, made an indictment or presentment of a grand jury essential to the validity of a conviction in cases of prosecutions for felonies. In delivering the opinion of the court in that case, MERRICK, J., alone dissenting, the chief justice said: 'The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense, and anxiety of a public trial before a probable cause is established by the presentment and indictment of a grand jury, in case of high offenses, is justly regarded as one of thesecurities to the innocent against hasty, malicious, and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty. * *  * It having been stated,' he continued, 'by Lord COKE, that by the 'law of the land' was intended a due course of proceeding according to the established rules and practice of the courts of common law, it may, perhaps, be suggested that this might include other modes of proceeding, sanctioned by the common law, the most familiar of which are, by informations of various kinds, by the officers of the crown, in the name of the king. But, in reply to this, it may be said that Lord COKE himself explains his own meaning by saying by 'the law of the land.' as expressed in Magna Charta, was intended due process of law; that is, by indictment or presentment of good and lawful men. And further, it is stated. On the authority of Blackstone, that informations of every kind are confined by the constitutional law to misdemeanors only. 4 Bl. Comm. 310.' Referring again to the passage from Lord COKE, he says, page 343: 'This may not be conclusive, but, being a construction adopted by a writer of high authority before the emigration of our ancestors, it has a tendency to show how it was then understood.'

This passage from COKE seems to be the chief foundation of the opinion for which it is cited; but a critical examination and comparison of the text and context will show that it has been misunderstood; that it was not intended to assert that an indictment or presentment of a grand jury was essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used. In beginning his commentary on this chapter of Magna Charta, (2 Inst. 46,) COKE says: 'This chapter containeth nine several branches: (1) That no man may be taken or imprisoned but per legem terroe,-that is, by the common law, statute law, of custom of England; for the words per legem terroe, being towards the end of this chapter, doe referre to all the precedent matters in this chapter, etc. (2) No man shall be disseized, etc., unless it be by the lawful judgment, that is. verdict, of his equals, (that is, of men of his own condition,) or by the law of the land, (that is, to speak it once for all,) by the due course and process of law.' He then proceeds to state that (3) no man shall be outlawed, unless according to the law of the land; (4) no man shall be exiled, unless according to the law of the land; (5) no man shall be in any sort destroyed, 'unless it be by the verdict of his equals, or according to the law of the land;' (6) 'no man shall be condemned at the king's suite, either before the king in his bench, where the pleas are coram rege, (and so are the words nec super eum ibimus to be understood,) nor before any other commissioner or judge whatsoever, and so are the words nec super eum mittemus to be understood, but by the judgment of his peers, that is, equals, or according to the law of the land.'

Recurring to the first clause of the chapter, he continues: '(1) No man shall be taken (that is) restrained of liberty by petition or suggestion to the king, or to his council, unless it be by indictment or presentment of good and lawful men, where such deeds be done. This branch and divers other parts of this act have been notably explained by divers acts of parliament, etc., quoted in the margent.' The reference is to various acts during the reign of Edward III. And reaching again the words 'nisi per legem terroe,' he continues: 'But by the law of the land. For the true sense and exposition of these words see the statute of 37 E. 3, cap. 8, where the words, 'by the law of the land' are rendered, without due proces of law, for there it is said, though it be contained in the great charter, that no man be taken, imprisoned, or put out of his freehold without proces of the law; that is by indictment of good and lawfull men, where such deeds be done in due manner, or by writ originall of the common law. Without being brought in to answere swere but by due proces of the common law. No man be put to answer without presentment before justices, or thing of record, or by due proces, or by writ originall, according to the old law of the land. Wherein it is to be observed that this chapter is but declaratory of the old law of England.'

It is quite apparent from these extracts that the interpretation usually put upon Lord COKE's statement is too large, because if an indictment or presentment by a grand jury is essential to due process of law in all cases of imprisonment for crime, it applies not only to felonies, but to misdemeanors and petty offenses, and the conclusion would be inevitable that informations as a substitute for indictments would be illegal in all cases. It was indeed so argued by Sir FRANCIS WINNINGTON in Prynn's Case, 5 Mod. 457, from this very language of Magna Charta, that all suits of the king must be by presentment or indictment, and he cited Lord COKE as authority to that effect. He attempted to show that informations had their origin in the act of 11 Hen. VII. c. 3, enacted in 1494, known as the infamous Empson and Dudley act, which was repealed by that of 1 Hen. VIII. c. 6, in 1509. But the argument was overruled, Lord HOLT saying that to hold otherwise 'would be a reflection on the whole bar.' Sir BARTHOLOMEW SHOWER, who was prevented from arguing in support of the information, prints his intended argument in his report of the case under the name of The King v. Berchet, 1 Show. 106, in which, with great thoroughness, he arrays all the learning of the time on the subject. He undertakes to 'evince that this method of prosecution is noways contrariant to any fundamental rule of law, but agreeable to it.' He answers the objection that it is inconvenient and vexatious to the subject by saying, (page 117:) 'Here is no inconvenience to the people. Here is a trial per pais, fair notice, liberty of pleading dilatories as well as bars. Here is subpoena and attachment, as much time for defense, charge, etc., for the prosecutor makes up the record, etc.; then, in case of malicious prosecution, the person who prosecutes is known by the note to the coroner, according to the practice of the court.' He answers the argument drawn from Magna Charta, and says 'that this method of prosecution no way contradicts that law, for we say this is per legem terroe et per communem legem terroe; for otherwise there never had been so universal a practice of it in all ages.' And referring to COKE's comment, that 'no man shall be taken,' i. e., restrained of liberty, by petition or suggestion to the king or his council unless it be by indictment or presentment, he says, (page 122:) 'By petition or suggestion can never be meant of the king's bench, for he himself had preferred several here; that is meant only of the king alone, or in council, or in the star chamber. In the king's bench the information is not a suggestion to the king but to the court upon record;' and he quotes 3 Inst. 136, where Coke modifies the statement by saying, 'The king cannot put any to answer, but his court must be apprized of the crime by indictment, presentment, or other matter of record,' which, Shower says, includes an information. So it has been recently held that upon a coroner's inquisition taken concerning the death of a man, and a verdict of guilty of murder or manslaughter is returned, the offender may be prosecuted and tried without the intervention of a grand jury. Reg. v. Ingham, 5 Best & S. 257. And it was said by BULLER, J., in * Rex slander in charging the plaintiff with felony a justification is pleaded which is found by the jury, that of itself amounts to an indictment, as if it had been found by the grand jury, and is sufficient to put the party thus accused on his trial.

The language of Lord COKE applies only to forfeitures of life and liberty at the suit of the king, and hence appeals of murder, which were prosecutions by private persons, were never regarded as contrary to Magna Charta. On the contrary, the appeal of death was by Lord HOLT 'esteemed a noble remedy, and a badge of the rights and liberties of an Englishman.' Rex v. Toler, 1 Ld. Raym. 557; 12 Mod. 375; Holt, 483. We are told that in the early part of the last century, in England, persons who had been acquitted on indictments for murder were often tried, convicted, and executed on appeals. Kendall, Trial by Battel, (3d Ed.) 44-47. An appeal of murder was brought in England as lately as 1817, but defeated by the appellant's declining to accept the wager of battel. Ashford v. Thornton, 1 Barn Ald. 405. The English statutes concerning appeals of murder were in force in the provinces of Pennsylvania and Maryland. Report of Judges, 6 Bin. 599-604; Kitty, Md. St. 141, 143, 158. It is said that no such appeal was ever brought in Pennsylvania; but in Maryland, in 1765, a negro was convicted and executed upon such an appeal. Soaper v. Tom, 1 Har. & McH. 227. See note to Paxton's Case, Quincy, (Mass.) 53, by Mr. Justice GRAY.

This view of the meaning of Lord COKE is the one taken by MERRICK, J., in his dissenting opinion in Jones Robbins, supra, who states his conclusions in these words: 'It is the forensic trial, under a broad and general law, operating equally upon every member of our community, which the words 'by the law of the land,' in Magna Charta, and in every subsequent declaration of rights which has borrowed its phraseology, make essential to the safety of the citizen, securing thereby both his liberty and his property, by preventing the unlawful arrest of his person, or any unlawful interference with his estate.' See, also, state v. Starling, 15 Rich. (S.C..) Law, 120.

Mr. Reeve, in 2 Hist. Eng. Law, 43, translates the phrase, nisi per legale judicium parium suorum vel per legem terroe, 'but by the judgment of his peers, or by some other legal process or proceeding adapted by law to the nature of the case.' Chancellor KENT, (2 Comm. 13,) adopts this mode of construing the phrase. Quoting the language of Magna Charta, and referring to Lord COKE's comment upon it, he says: 'The better and larger definition of due process of law is that it means law in its regular course of administration through courts of justice.' This accords with what is said in Westervelt v. Gregg, 12 N. Y. 202, by DENIO, J., p. 212: 'The provision was designed to protect the citizen against all mere acts of power, whether flowing from the legislative or executive branches of the government.' The principle and true meaning of the phrase have never been more tersely or accurately stated than by Mr. Justice JOHNSON in Bank of Columbia v. Okely, 4 Wheat. 235-244: 'As to the words from Magna Charta, incorporated into the constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at last settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.' And the conclusion rightly deduced is as stated by Mr. Cooley, (Const. Lim. 356:) 'The principles, then, upon which the process is based, are to determine whether it is 'due process' or not, and not any considerations of mere form. Administrative and remedial process may be changed from time to time, but only with due regard to the landmarks established for the protection of the citizen.'

It is urged upon us, however, in argument, that the claim made in behalf of the plaintiff in error is supported by the decision of this court in Murray's Lessee v. ''Hoboken Land & Imp. Co.'' 18 How. 272. There, Mr. Justice CURTIS, delivering the opinion of the court, after showing (page 276) that due process of law must mean something more then the actual existing law of the land, for otherwise it would be no restraint upon legislative power, proceeds as follows: 'To what principle, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.' This, it is argued, furnishes an indispensable test of what constitutes 'due process of law;' that any proceeding otherwise authorized by law, which is not thus sanctioned by usage, or which supersedes and displaces one that is, cannot be regarded as due process of law. But this inference is unwarranted. The real syllabus of the passage quoted is that a process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country; but it by no means follows, that nothing else can be due process of law. The point in the case cited arose in reference to a summary proceeding, questioned on that account as not due process of law. The answer was, however exceptional it may be, as tested by definitions and principles of ordinary procedure, nevertheless, this, in substance, has been immemorially the actual law of the land, and, therefore, is due process of law. But to hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians.

This would be all the more singular and surprising, in this quick and active age, when we consider that, owing to the progressive development of legal ideas and institutions in England, the words of Magna Charta stood for very different things at the time of the separation of the American colonies from what they represented originally. For at first the words nisi per legale judicium parium had no reference to a jury; they applied only to the pares regni, who were the constitutional judges in the court of exchequer and coram rege. Bac. Abr. 'Juries,' (7th Ed. Lond.) note; 2 Reeves, Hist. Eng. Law, 41. And as to the grand jury itself, we learn of its constitution and functions from the assize of Clarendon, (A. D. 1164,) and that of Northampton, (A. D. 1176;) Stubbs, Chart. 143-150. By the latter of these, which was a republication of the former, it was provided that 'if any one is accused before the justices of our lord the king of murder or theft or robbery, or of harboring persons committing those crimes, or of forgery or arson, by the oath of 12 knights of the hundred, or, if there are no knights, by the oath of 12 free and lawful men, and by the oath of four men from each township of the hundred, let him go to the ordeal of water, and, if he fails, let him lose one foot. And at Northampton it was added, for greater strictness of justice, (pro rigore justitioe,) that he shall lose his right hand at the same time with his foot, and adjure the realm and exile himself from the realm within 40 days. And, if he is acquitted by the ordeal, let him find pledges and remain in the kingdom, unless he is accused of murder or other base felony by the body of the country and the lawful knights of the country; but, if he is so accused as aforesaid, although he is acquitted by the ordeal of water, nevertheless he must leave the kingdom in 40 days, and take his chattels with him, subject to the rights of his lords, and he must adjure the kingdom at the mercy of our lord the king.' 'The system thus established,' says Mr. Justice STEPHENS, (1 Hist. Crim. Law Eng. 252,) 'is simple. The body of the country are the accusers. Their accusation is practically equivalent to a conviction, subject to the chance of a favorable termination of the ordeal by water. If the ordeal fails, the accused person loses his foot and his hand. If it succeeds, he is, nevertheless, to be banished. Accusation, therefore, was equivalent to banishment, at least.' When we add to this that the primitive grand jury heard no witnesses in support of the truth of the charges to be preferred, but presented upon their own knowledge, or indicted upon common fame and general suspicion, we shall be ready to acknowledge that it is better not to go too far back into antiquity for the best securities for our 'ancient liberties.' It is more consonant to the true philosophy of our historical legal institutions to say that the spirit of personal liberty and individual right, which they embodied, was preserved and developed by a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give, from time to time, new expression and greater effect to modern ideas of self-government.

This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law. Sir JAMES MACKINTOSH ascribes this principle of development to Magna Charta itself. To use his own language: 'It was a peculiar advantage that the consequences of its principles were, if we may so speak, only discovered slowly and gradually. It gave out on each occasion only so much of the spirit of liberty and reformation as the circumstances of succeeding generations required, and as their character would safely bear; for almost five centuries it was appealed to as the decisive authority on behalf of the people, though commonly so far only as the necessities of each case demanded.' 1 Hist. Eng. 221.

The constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of the English law and history; but it was made for an undefined and expanding future, and for a people gathered, and to be gathered, from many nations and of many tongues; and while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. Due process of law, in spite of the absolutism of continental governments, is not alien to that Code which survived the Roman empire as the foundation of modern civilization in Europe, and which has given us that fundamental maxim of distributive justice, suum cuique tribuere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not useful forms.

The concessions of Magna Charta were wrung from the king as guaranties against the oppressions and usurpations of his prerogative. It did not enter into the minds of the barons to provide security against their own body or in favor of the commons by limiting the power of parliament; so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history, were never regarded as inconsistent with the law of the land; for notwithstanding what was attributed to Lord COKE in Bonham's Case, 8 Reporter, 115, 118a, the omnipotence of parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the commons. In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incorporated into bills of * rights, They were limitations upon all the powers of government, legislative as well as executive and judicial. It necessarily happened, therefore, that as these broad and general maxims of liberty and justice hald in our system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guaranty, not particular forms of procedure, but the very substance of individual rights to life, liberty, and property. Restraints that could be fastened upon executive authority with precision and detail, might prove obstructive and injurious when imposed on the just and necessary discretion of legislative power; and while, in every instance, laws that violated express and specific injunctions and prohibitions might without embarrassment be judicially declared to be void, yet any general principle or maxim founded on the essential nature of law, as a just and reasonable expression of the public will, and of government as instituted by popular consent and for the general good, can only be applied to cases coming clearly within the scope of its spirit and purpose, and not to legislative provisions merely establishing forms and modes of attainment. Such regulations, to adopt a sentence of Burke's 'may alter the mode and application, but have no power over the substance of original justice.' Tract on Popery Laws, 6 Burke's Works, (Ed. Little & Brown,) 323.

Such is the often repeated doctrine of this court. In Munn v. Illinois, 94 U.S. 113-134, the chief justice, delivering the opinion of the court, said: 'A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken * away without due process; but the law itself, as a rule of conduct, may be changed at the will or even at the whim of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.' And in Walker v. Sauvinet, 92 U.S. 90, the court said: 'A trial by jury in suits at common law pending in state courts is not, therefore, a privilege or immunity of national citizenship which the states are forbidden by the fourteenth amendment to abridge. A state cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the state courts affecting the property of persons must be by jury. This requirement of the constitution is met if the trial is had according to the settled course of judicial proceedings. Due process of law is process according to the law of the land. This process in the states is regulated by the law of the state.' In Kennard v. Louisiana ex rel. 92 U.S. 480, the question was whether a mode of trying the title to an office, in which was no provision for a jury, was due process of law. Its validity was affirmed. The chief justice, after reciting the various steps in the proceeding, said: 'From this it appears that ample provision has been made for the trial of the contestation before a court of competent jurisdiction; for bringing the party against whom the proceeding is had before the court and notifying him of the case he is required to meet; for giving him an opportunity to be heard in his defense; for the deliberation and judgment of the court; for an appeal from this judgment to the highest court of the state, and for hearing and judgment there. A mere statement of the facts carries with it a complete answer to all the constitutional objections urged against the validity of the act.' And Mr. Justice MILLER, in Davidson v. New Orleans, 96 U.S. 97-105, after showing the difficulty, if not the impossibility, of framing a definition of this constitutional phrase which should be 'at once perspicuous, comprehensive, and satisfactory,' and thence deducing the wisdom 'in the ascertaining of the intent and application of such an important phrase in the federal constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require,' says, however, that 'it is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has by the laws of the state fair trial in a court of justice, according to the modes of proceeding applicable to such a case.' See, also, Missouri v. Lewis, 101 U.S. 22-31; Ex parte Wall, 107 U.S. 288-290; [2 SUP. CT. REP. 569.]

We are to construe this phrase in the fourteenth amendment by the usus loquendi of the constitution itself. The same words are contained in the fifth amendment. That article makes specific and express provision for perpetuating the institution of the grand jury, so far as relates to prosecutions for the more aggravated crimes under the laws of the United States. It declares that 'no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness against himself.' It then immediately adds: 'nor be deprived of life, liberty, or property without due process of law.' According to a recognized canon of interpretation, especially applicable to formal and solemn instruments of constitutional law, we are forbidden to assume, without clear reason to the contrary, that any part of this most important amendment is superfluous. The natural and obvious inference is that, in the sense of the constitution, 'due process of law' was not meant or intended to include, ex vi termini, the institution and procedure of a grand jury in any case. The conclusion is equally irresistible, that when the same phrase was employed in the fourteenth amendment to restrain the action of the states, it was used in the same sense and with no greater extent; and that if in the adoption of that amendment it had been part of its purpose to perpetuate the institution of the grand jury in all the states, it would have embodied, as did the fifth amendment, express declarations to that effect. Due process of law in the latter refers to that law of the land which derives its authority from the legislative powers conferred upon congress by the constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the principles of the common law. In the fourteenth amendment, by parity of reason, it refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure. 'The fourteenth amendment,' as was said by Mr. Justice BRADLEY in Missouri v. Lewis, 101 U.S. 22-31, 'does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each state prescribes its own modes of judicial proceeding.'

But it is not to be supposed that these legislative powers are absolute and despotic, and that the amendment prescribing due process of law is too vague and indefinite to operate as a practical restraint. It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but, in the language of Mr. Webster, in his familiar definition, 'the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,' so 'that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society,' and thus excluding, as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments and decrees, and other similar special, partial, and arbitrary exertions of power under the forms of legislation. Abritrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both state and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government.

The supreme court of Mississippi, in a well-considered case, (Brown v. Levee Com'rs, 50 Miss. 468,) speaking of the meaning of the phrase 'due process of law,' says: 'The principle does not demand that the laws existing at any point of time shall be irrepealable, or that any forms of remedies shall necessarily continue. It refers to certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized. If any of these are disregarded in the proceedings by which a person is condemned to the loss of life, liberty, or property, then the deprivation has not been by 'due process of law."

'It must be conceded,' said this court, speaking by Mr. Justice MILLER, in Loan Ass'n v. Topeka, 20 Wall. 655-662, 'that there are such rights in every free government beyond the control of the state. A government which recognized no such rights,-which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power,-is after all but a despotism. It is true, it is a despotism of the many,-of the majority, if you choose to call it so,-but it is nevertheless a despotism. It may be doubted, if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many.'

It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.

The constitution of Connecticut, adopted in 1818 and in force when the fourteenth amendment took effect, requires an indictment or presentment of a grand jury only in cases where the punishment of the crime charged is death or imprisonment for life, and yet it also declares that no person shall 'be deprived of life, liberty or property but by due course of law.' It falls short, therefore, of that measure of protection which it is claimed is guarantied by Magna Charta to the right of personal liberty; notwithstanding which it is no doubt justly said in Swift's Digest, 17, that 'this sacred and inestimable right, without which all others are of little value, is enjoyed by the people of this state is as full extent as in any country on the globe, and in as high a degree as is consistent with the nature of civil government. No individual or body of men has a discretionary or arbitrary power to commit any person to prison; no man can be restrained of his liberty, be prevented from removing himself from place to place as he chooses, be compelled to go to a place contrary to his inclination, or be in any way imprisoned or confined, unless by virtue of the expressed laws of the land.' * Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law. It is, as we have seen, an ancient proceeding at common law, which might include every case of an offense of less grade than a felony, except misprision of treason; and in every circumstance of its administration, as authorized by the statute of California, it carefully considers and guards the substantial interest of the prisoner. It is merely a preliminary proceeding, and can result in no final judgment, except as the consequence of a regular judicial trial, conducted precisely as in cases of indictments. In reference to this mode of proceeding at the common law, and which he says 'is as ancient as the common law itself,' Blackstone adds, (4 Comm. 305:) 'And as to those offenses in which informations were allowed as well as indictments, so long as they were confined to this high and respectable jurisdiction, and were carried on in a legal and regular course in his majesty's court of king's bench, the subject had no reason to complain. The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same judges, as if the prosecution had originally been by indictment.'

For these reasons, finding no error therein, the judgment of the supreme court of California is affirmed.


text: Talk:Hurtado v. People of the State of California/Opinion of the Court


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Washer v. Bullitt Company

[Syllabus from page 558 intentionally omitted]

[Statement of Case from pages 559-561 intentionally omitted]

Augustus E. Willson, for plaintiff in error.

James Speed, for defendant in error.

WOODS, J.

title: Washer v. Bullitt Company


text: Talk:Washer v. Bullitt Company

title: Talk:Washer v. Bullitt Company


text:
Washer v. Bullitt Company/Opinion of the Court

The defendant in error contends that the appeal should be dismissed because the amount in controversy is less than $5,000, and therefore not sufficient to give this court jurisdiction. This contention is based on the averments of the original petition, which showed that the suit was brought to recover only $3,184.39, the balance due for work done under the contract sued on, and for $500 damages. In the amended petition all the averments of the original petition by which the amount in controversy was reduced below $5,000 were withdrawn, and it was averred that the sum of $5,325.14 was due to the plaintiffs for work done under the contract. It was as competent for the plaintiffs, when leave had been given them to amend their petition, to amend it in respect to the sum for which judgment was demanded as in any other matter. The admission in the original petition of the payment of $1,800 was specifically withdrawn in the amended petition, and after the withdrawal of that admission it nowhere appeared in the record that said sum was ever paid. The admission might have been made by the inadvertence or mistake of the plaintiffs or their counsel; but, however made, it was within their power to withdraw it without assigning reasons for the withdrawal. They were not inexorably bound by the averments of the original petition. When a petition is amended by leave of the court, the cause proceeds on the amended petition. It was upon the amended petition that the judgment of the court below was given, and the question brought here by this writ of error is the sufficiency of the amended petition. If its averments show that this court has jurisdiction, the jurisdiction will be maintained without regard to the original petition. It has been held by this court that after a case had been dismissed by it for want of jurisdiction, the pleadings being technically defective, the circuit court might allow an amendment so as to show the jurisdiction, and on a decree newly rendered the case might be again brought to this court. Jackson v. Ashton, 10 Pet. 480. As the amended petition avers that there is due the plaintiffs a sum exceeding $5,000, we are of opinion that the jurisdiction of this court is plain upon the face of the record.

We now come to the merits of the case. The demurrer admits the execution of the contract by Ridgway, the county commissioner, under authority of an order of the county court; its subsequent ratification by orders of the county court, composed of the county judge and a majority of the justices of the county, directing the levy of taxes to pay for work done under the contract, and directing the application of the money so raised to that purpose; and admits that there is due the plaintiffs the sum of $5,325.14 for the work so done. The county of Jefferson raises no objection to the building of the bridge. So far as appears, it is quite willing that Bullitt county should erect the bridge, provided it does so at its own expense. The land-owners at the Jefferson county end of the bridge, over and on whose premises a part of the bridge rests, make no objection. On the contrary, they have granted a right of way to Bullitt county over their lands to and across the bridge. The only controversy between the parties is whether Bullitt county had authority to make the contract sued on, by which it undertook at its own cost to build across a boundary stream a bridge, one end of which was within the territory of another county. The statute law of Kentucky applicable to this question is as follows: Section 1 of article 16, c. 28, Gen. St. Ky. p. 305, provides: 'County courts have jurisdiction to lay and superintend the collection of the county levy, erect and keep in repair necessary public buildings, bridges, and other structures, and superintend the same; regulate and control the fiscal affairs and property of the county; * *  * provide for the good condition of the public highways in the county; and to execute all of its orders consistent with law and within its jurisdiction.'

Sections 36, 37, and 38 of article 1, c. 94, Gen. St. p. 767, declare as follows:

'Sec. 36. When the county court of any county shall deem it advisable to erect a bridge or causeway over any place between that and an adjoining county, the court shall appoint a commissioner, and notify the court of the adjoining county thereof, and request the latter to appoint a like commissioner; and it shall be the duty of the court so requested to appoint such commissioner. The persons so appointed shall meet at the place so proposed for erecting the bridge or causeway, and agree on a plan for the same, and contract for the erection thereof; and each of said county courts shall levy the costs of such work on its county in proportion to the number of tithables in each county.

'Sec. 37. When the county court of one county shall think it expedient to build a bridge or causeway, and shall appoint a commissioner on its part as provided in the preceding section, and the court of the adjoining county shall refuse to appoint a commissioner, * *  * the circuit court of the county refusing may issue a writ of mandamus to the county court to show cause why an order shall not be entered up, directing the appointment of the commissioner, and the erection of such bridge or causeway, etc.

'Sec. 38. When the mandamus is returned, the circuit court shall hear and consider such evidence touching the matter as either party may adduce, and shall either dismiss the proceedings or award a peremptory mandamus, as may seem proper.' At common law a bridge was a common highway, and the county was bound to repair it. Reg. v. Sainthill, 2 Ld. Raym. 1174; 3 Salk. 76; Rex v. Kent, 13 East, 220. Under the statute of 22 Henry VIII., which has been held to be merely declaratory of the common law, when part of a bridge happened to be in one shire and the other part in another, the respective shires were bound to repair within their respective limits. Woolr. Ways, 200. But when a bridge which crossed a river dividing two counties was maintained by one of the counties under the statute of 23 Henry VIII., it was held that under the same statute it was compellable to repair the highway as a part of the bridge for a distance of 300 feet from each end of the bridge, although one end was in another county. Rex v. ''Inhab. of Devon'', 14 East, 477. It is therefore clear that at the common law a county might be required to maintain a bridge or causeway across its boundary line, and extending into the territory of an adjoining county. The same rule prevails in this country. 'A county is one of the territorial divisions of a state, created for public political purposes connected with the administration of the state government, and being in its nature and objects a municipal organization, the legislature may exercise control over the county agencies, and require such public duties and functions to be performed by them as fall within the general scope and objects of the municipal organization.' Talbot Co. v. Queen Anne's Co. 50 Md. 245. It may even impose on one county the expense of an improvement by which it mainly is benefited, but in which the whole state is interested. Co. of Mobile v. Kimball, 102 U.S. 691. 'A county is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration in matters of finance, education, provision for the poor, military organization, and of means of travel and transportation,' etc. Hamilton Co. v. Mighels, 7 Ohio St. 109.

In the case of Agawam v. Hampden, 130 Mass. 528, it was said by the court that 'it is well settled that the legislature may enact that a particular road or bridge shall be a public highway, or may direct it to be laid out as such by county commissioners, and in either case may order the cost thereof, * *  * as well as the cost of maintaining it or keeping it in repair, to be paid either by the commonwealth or by the counties, cities, or towns in which it lies, or which may be determined by commissioners appointed by the counties to be specially benefited thereby.' See, also, Norwich v. Co. Com'rs, 13 Pick. 60; Atty. Gen. v. Cambridge, 16 Gray, 247; Scituate v. Weymouth, 108 Mass. 128.

It is therefore not open to question that the legislature may, in its discretion, authorize or require one county to build, at its own expense, a bridge or road across the boundary line between it and another county. When, therefore, the legislature of Kentucky authorized the county court of any county to arect and keep in repair necessary public bridges, the act may well be construed to authorize the county court of one county to build at its own expense a bridge, which it should adjudge to be necessary for the use of the people of the county, over a stream which formed the boundary line of the county. The power conferred upon the county court by the statute of Kentucky to erect and keep in repair necessary public bridges, includes within its terms a bridge across the county boundary, as well as one wholly within the county limits. Unless, therefore, there is other legislation which modifies the power thus conferred, the authority of Bullitt county to contract for the erection of the bridge in question is plain.

It is insisted by the defendant in error that sections 36 and 37 of article 1, c. 94, above quoted, furnish an invariable rule, which must be followed before the county court can make any contract for the erection of a bridge across the county boundary; that is to say, the bridge must be adjudged necessary to the people of both counties in proportion to their taxable property, commissioners must be appointed for each county, and they must agree upon the plans and enter into a contract for the erection of the bridge; and that unless all these things concur there can be no bridge. We think such a construction of the statute is not tenable. It may frequently happen that a bridge or causeway across the boundary line between two counties may be of vital necessity to one and of little use to the other. It may often happen that a county, to be little or not at all benefited by a proposed bridge, may successfully oppose before the circuit court the entering of an order directing the appointment of a commissioner in its behalf, or the erection of the bridge in part at its expense in proportion to its taxable property. The hold that the adjoining county could not, under these circumstances, build at its own expense a bridge necessary for the use of its inhabitants, would be an unwarrantable construction of the statute. In our opinion these proceedings are necessary only when the county, desiring to erect a bridge over a stream dividing it from an adjoining county, seeks to compel the adjoining county to bear its share of the expense. If its county court adjudges that the bridge is necessary for the inhabitants of their county, but is of opinion that it is not of sufficient importance to the people of the adjoining county to justify the laying of a tax to aid in its erection, in proportion to the taxable property of such adjoining county, they may build the bridge at the expense of their own county. It is not necessary to go through the formalties prescribed by the statute to compel involuntary aid from the adjoining county, when it is clear that such aid ought not to be and cannot be exacted. But according to the averments of the declaration the statute was pursued in this case as far as was possible. The county court of Bullitt county appointed its commissioner, and notified the fact to the county court of Jefferson county, and requested it to appoint a like commissioner, which it did. The commissioners so appointed met at the place proposed for the erection of the bridge, but they could not and did not agree upon a plan or make a contract for the construction of the bridge. Nothing further could be done under sections 36 and 37. Bullitt county, therefore, fell back upon the power conferred by section 1 of article 16, c. 28, and made a contract by which it became responsible for the entire cost of the bridge. Its power to do this was, we think, clear.

We find nothing in the decisions of the court of appeals of Kentucky contrary to this view.

The case of Nelson Co. v. Washington Co. 14 B. Mon. 92, is much relied on by the defendant in error. We have been able to see nothing in that case applicable to the controversy in this. The proceeding was one begun in the circuit court by Washington county under section 7 of the act of 1797, which is similar to sections 36 and 37 of article 1, c. 94, supra, to compel the justices of Nelson county to appoint commissioners to act with commissioners appointed by Washington county in fixing the manner and conditions of building a bridge across Chaplin river, the boundary between the two counties, and to show cause why they should not 'lay a levy' to build such bridge. The court of appeals merely decided that Nelson county could not be compelled to levy a tax to build the bridge until commissioners had been appointed to decide upon its site and cost, and before it had united in the contract to build the bridge. It is true, the court said that 'until a joint commission is constituted to act in obedience to the requisitions of the statutes, neither of the counties is bound, nor can either be compelled, to tax their citizens in any way to raise the money to build the bridge.' That might be true when the proceeding was to compel the building of a bridge at the joint cost of the two counties; but this remark can have no application to this case, where one of the two counties has by her contract undertaken to pay the entire cost of the bridge under the general power conferred by section 1 of article 16, c. 28.

In our opinion the county court of Bullitt county had power to contract for the construction at the cost of Bullitt county of the bridge in question, having adjudged that it was necessary for the public use. It follows that the demurrer to the amended petition should have been overruled. The judgment of the circuit court sustaining the demurrer at the costs of the plaintiff must be reversed, and the cause remanded for further proceedings in conformity with this opinion.


text: Talk:Washer v. Bullitt Company/Opinion of the Court


text:
Killian v. Ebbinghaus (110 U.S. 568)

H.W. Garnett and Convay Robinson Jr., for appellants.

P. E. Dye andF. P. Cuppy, for appellee.

WOODS, J.

title: Killian v. Ebbinghaus (110 U.S. 568)


text: Talk:Killian v. Ebbinghaus (110 U.S. 568)