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Graham v. Norton

ERROR to the Circuit Court for the District of Louisiana; the case being this:

The 13th section of the Judiciary Act enacts that—

'The Supreme Court shall have power to issue writs of mandamus in cases warranted by the processes and usages of law to any courts appointed or persons holding office under the authority of the United States.'

The 14th section, referring to certain courts of the United States, including the Circuit and District Courts, enacts that they

'Shall have power to issue writs of scire facias, habeas corpus, and ALL OTHER writs not specially provided for by statute which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.'

With these statutory enactments in force, one Norton, the assignee in bankruptcy of certain bankrupts, presented, in May, 1871, his petition to the District Court of the United States, setting forth that before the persons now represented by him had been declared bankrupts, they had each paid to the State of Louisiana certain amounts respectively, 'as taxes imposed by it under an act of the legislature; that the legislature had then recently, by a more recent act, declared the illegality of the said taxes, and enacted that they should be refunded to the parties who paid them, or to their proper representatives, and that the auditor of public accounts of the State should issue to the said parties, or to their proper representatives, certificates of the amount paid by them; that by operation of law, and the assignments of all the assets, rights, and interests, to the petitioner of the said bankrupts, he, the said Norton, was entitled to the several amounts illegally collected by the State and to receive from the auditor the certificates; which, however, the auditor refused to issue to him; he accordingly prayed for a mandamus ordering the auditor of public accounts, one Graham, to deliver to him, as assignee in bankruptcy of the persons mentioned, certificates for the amount of taxes illegally collected,' &c.

The District Court granted the mandamus and the Circuit Court affirmed its action; whether rightly was now the question here on appeal by the auditor.

Mr. P. Phillips (a brief of Mr. T. Hunton being filed on the same side), for the appellant; Mr. T. J. Durant, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Graham v. Norton


text: Talk:Graham v. Norton

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

title: Talk:Graham v. Norton


text:
Graham v. Norton/Opinion of the Court

We are of opinion that neither the District nor the Circuit Court had jurisdiction to issue a writ of mandamus in this case. This court has held that the writ may be used for the purpose of enforcing a judgment rendered by the Circuit Court, where its use by the State court for that purpose is sanctioned by State laws, but in such cases it is used as a process for the enforcement of judgments and not as an original proceeding.

In the thirteenth section of the Judiciary Act this court is clothed with power to issue 'writs of mandamus in cases warranted by the processes and usages of law to any courts appointed or persons holding office under the authority of the United States.' This express authority to issue writs of mandamus to National courts and officers has always been held to exclude authority to issue these writs to State courts and officers. The only exception is that just adverted to, where they have been issued as process to enforce judgments.

The fourteenth section clothes all the courts of the United States with power to issue certain specific writs, and all other writs which may be necessary for the exercise of their respective jurisdictions. Of course Circuit Courts may issue writs of mandamus when necessary to the exercise of their jurisdiction, but they have no authority to issue it as an original writ in any case. The absence of the power in the Circuit Courts to issue writs of mandamus, except as ancillary to a jurisdiction already acquired, is so well explained in Bath County v. Amy, that it is unnecessary to pursue the subject further.

JUDGMENT REVERSED, and the case remanded with directions to

DISMISS THE SUIT FOR WANT OF JURISDICTION.

I concur in the judgment of the court, on the ground that the case was not on its merits a proper one for a mandamus. I think it unnecessary to pass upon the question whether the bankrupt court may or may not in any case issue a mandamus to an officer of a State.

title: Graham v. Norton/Opinion of the Court


text: Talk:Graham v. Norton/Opinion of the Court


text:
City of Richmond v. Smith

ERROR to the Circuit Court for Virginia; the case being thus:

On the 2d of April, 1865-the rebellion then in throes, and the city of Richmond lying open to the entry of the government troops that had beleaguered it-its council, in order to prevent drunkenness, and some of the horrors incident to the occupation of a town by an invading army, passed certain resolutions, hereinafter set forth, for the destruction of all liquor in the city; and pledging the faith of the city to the owner for payment of its value. A stock of liquor owned by one Smith was thus destroyed, and on the suppression of the rebellion and and return of peace, Smith sued the city accordingly.

The declaration contained two counts; one special and the other general. The special count alleged that,

'Whereas, on the 2d of April, 1865, in the then condition of the government and army of what were then called the Confederate States of America, and in contemplation of the said army giving way to the army of the United States of America, there was held in the said city a meeting of the council of the said city for what was then considered a work of necessity, and at the said meeting the council of said city adopted certain resolutions as follows:

'1. Resolved, That it is the imperative duty of this council, in case of the evacuation of this city by the government and army, to provide, as far as it can, for the immediate destruction of the stock of liquor in the city.

'2. Resolved, That a committee of twenty-five citizens in each ward be appointed by the president, to act on behalf of the city, and proceed at once to accomplish this object, that said committee destroy, on the premises, all the liquor they can find, giving receipts for the same to the holders.

'3. Resolved, That the faith of the city be, and is hereby, pledged for the payment of the value of all liquor so destroyed to the holders of said receipts.

'And the plaintiff avers that, during the evening of the same 2d day of April, 1865, and the morning of the next day, there did occur such evacuation of the said city by the government and army, as was contemplated by the first of said resolutions; and that a committee was appointed, according to the second of said resolutions; and that, on the 3d day of April, 1865, said committee did, in pursuance of said second resolution, destroy on the premises a large quantity of liquor found by them, and in most of the cases did give receipts for the same to the holders; and among the liquor so destroyed, and for which no receipts were so given, was a large quantity of whisky, brandy, rum, and alcohol, to wit-particulars given-the total value of all which liquors amounts to the sum of $2832, whereof the plaintiff was before, and at the time of such destruction, lawfully possessed as of his own property, by means whereof the faith of the said city was, and is, pledged for the value of all the said liquor of the plaintiff so destroyed, to the plaintiff, which value amounts to a large sum of money, to wit, to the sum of $2832, of all which the defendant heretofore, to wit, on the 3d day of April, 1865, had due notice; by reason whereof the defendant became liable to pay to the plaintiff the said value, amounting, as aforesaid, to a large sum of money, to wit, the sum last specified; and, being so liable, the said defendant, in consideration thereof, afterwards, to wit, on the day and in the year last mentioned, undertook and promised to pay him the same when the said defendant should be thereto afterwards requested.'

To this special count the defendant demurred, but the court overruled the demurrer; the city excepting. A defendant, by the practice of Virginia, not losing the benefit of his demurrer by pleading over, the city then pleaded specially,

'That, at the time of the destruction of the liquor of the plaintiff, and long prior thereto, it had been determined by the Confederate government to set fire to the tobacco warehouses and other buildings in said city, upon the evacuation of the city, against the protest and remonstrance of the said council, and that one of the said warehouses was situated near the premises of the said plaintiff; that, in pursuance of the said determination the Confederate government did on the day aforesaid, set fire to the said warehouses and other buildings, whereby the premises of the plaintiff and all the property on them were destroyed by fire; and that said city had no means by which it could arrest and extinguish the fire; and that at the instant when the said committee were destroying the said liquor, the house of the plaintiff, in which the liquor was stored, was about to take fire, and did in a short time thereafter actually take fire and was consumed, and that the said liquors would have been consumed therein, as the said plaintiff was wholly unable to remove the same; and the defendant avers that the liquor of the plaintiff so destroyed by the committee as aforesaid would, if the same had not been so destroyed by the committee, have been consumed by the said fire; and that by reason thereof the liquor was of no value to the plaintiff, and by its destruction as aforesaid the said plaintiff has sustained no loss.'

The plaintiff demurred generally. The demurrer was sustained.

The parties went to trial; agreeing to waive a trial by jury, and to submit all questions of law and fact to the decision of the court, 'with authority to draw all the inferences and conclusions that a jury is authorized to draw from the evidence, and with liberty to either party to except to the judgment of the court in the same manner and to the same extent that he might except to the verdict of a jury, and to object to the same for the same reasons, and with the right to appeal from the same.'

On the hearing the plaintiff gave evidence to show the destruction and value of his liquor; and in showing this, they showed that he got no receipts from the committee; that they had no time to give them, and here rested.

The record now proceeded in these words:

'And this being all the evidence he offered here closed his case.

'And then the defendant offered no evidence except evidence to prove the facts alleged and set forth in said special plea, but the court refused to receive said evidence and excluded the same; to which opinion of the court refusing to receive said evidence and excluding the same, the defendant excepted, and tendered this his bill of exceptions, and prayed that the same might be signed, sealed, and reserved to him, which is done accordingly.

'HUGH L. BOND,

'Judge of the Circuit Court of the United States for the 4th Circuit and District of E. Virginia.'

[SEAL.]

The court found the facts generally for the plaintiff, and gave judgment accordingly for $2832, with interest from the 3d of April, 1865.

To this judgment the defendant excepted, and the case was now here on error.

In this court the case was submitted on printed briefs, the only error assigned in that of the plaintiff in error being that—

'The Circuit Court erred in overruling the demurrer to the special count in the plaintiff's declaration.'

It is proper to mention that in the case of Jones & Co. v. City of Richmond, on a suit against the city arising on the same resolutions, the Court of Appeals of Virginia had decided that the city was liable to the holders of receipts given under the resolutions of the city council.

Mr. L. R. Page, for the city, plaintiff in error:

There was error in overruling the demurrer to the special count in the declaration.

The liability of the city, if any there be, for the destruction of the plaintiff's liquors, can only be upheld upon the ground that the city made a valid contract to pay for their value. The destruction of this property was not a taking of private property for public uses, for which compensation is required to be made. The resolves of the city council were made and executed for the public weal, at a time of imminent peril. The rights of private property, sacred as they are, must yield to the higher demands of the public safety. In such cases salus populi, suprema est lex. The proceedings upon which the plaintiff below rested his claim, are like those where an individual or a municipality raze houses to prevent the spread of an existing conflagration; and it is well settled that this may be done without responsibility to the owner for the damages he sustains.

In Mouse's Case, Lord Coke says:

'For the commonwealth, a man shall suffer damage, as for the saving of a city or town, a house shall be plucked down if the next be on fire. This every man may do, without being liable to an action.'

There was, therefore, no consideration for the undertaking of the city to pay the value of the liquors destroyed. The judge who delivered the opinion derives the power of the city of make the order and pledge, from the general welfare clause in the charter. Similar provisions are to be found in the charter of nearly every municipality in the land, and yet it is believed no case can be found where the exercise of such powers has been maintained, unless there was express authority therefor, either in the charter or some general statute. It is manifest that the language of this general provision must be construed with reference to the other powers granted the city, otherwise the specific grant of powers would have been useless, and it is further manifest that the power to be exercised under these general words, must be exercised by fixed by-laws, rules, or ordinances, and not by some isolated and instantaneous act.

The decision is questioned by Dillon in his able treatise on Municipal Corporations, and it is there intimated that the order for the destruction of liquors was not within the scope of the corporate powers of the city.

But if the decision in Jones & Co. v. The City of Richmond, as to the validity of this contract, be binding in this forum because it may be regarded as a local question, then it is insisted that the defendant in error has not brought himself within the terms of the resolutions of the council so as to entitle him to maintain this suit. He holds no receipt from the commissioners authorized to destroy the property, and the faith of the city is pledged only to those who hold such receipts.

Mr. W. F. Mattingly, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: City of Richmond v. Smith


text: Talk:City of Richmond v. Smith

title: Talk:City of Richmond v. Smith


text:
City of Richmond v. Smith/Opinion of the Court

Prior to the surrender of the city of Richmond to the Federal forces, and in contemplation of that event, which took place on the same day, the city council adopted the following resolutions: (1.) That it is the imperative duty of this council, in case of the evacuation of this city by the government and army, to provide as far as it can for the immediate destruction of the stock of liquor in the city. (2.) That a committee of twenty-five citizens in each ward be appointed by the president to act in behalf of the city and proceed at once to accomplish this object; that said committee destroy on the premises all the liquor they can find, giving receipts for the same to the holders. (3.) That the faith of the city be, and is hereby, pledged for the payment of the value of all liquors so destroyed to the holders of said receipts.

Such evacuation of the said city by the government and army as that contemplated by the first resolution did occur during the evening of that day and the morning of the next day, and it appears that the committee contemplated by the second resolution was appointed, and that they, on the following day, in pursuance of said second resolution, destroyed on the premises of the plaintiff the liquors mentioned in the declaration, of the value specified in the bill of particulars filed in the case and annexed to the declaration.

Payment having been refused the plaintiff brought an action of assumpsit against the corporation defendants to recover the value of the liquors destroyed, as promised in the third resolution. Service was made, and the defendants having entered their appearance demurred to the special count, but the court overruled the demurrer and the parties having waived a jury submitted the cause under the pleadings to the decision of the court.

Two pleas were pleaded by the defendants, as follows: (1.) That they never undertook and promised as alleged in the declaration. (2.) That prior to the destruction of the liquors as alleged, the Confederate government determined, in case the city should be evacuated as supposed, to set fire to the warehouses and other buildings in the city, and that they did on that day set fire to such warehouses and buildings, including the premises of the plaintiff, and that the same were destroyed by fire; that the building in which the liquors were stored took fire shortly after the liquors were destroyed, and was consumed, and that the liquors, if they had not been destroyed, would have been consumed.

Issue was joined upon the first plea and the plaintiff demurred to the second, and the court sustained the demurrer and held the plea to be insufficient. Evidence was introduced by the plaintiff and the court rendered judgment in his favor for the sum of two thousand eight hundred and thirty-two dollars, and the defendants excepted and removed the cause into this court.

Before proceeding to examine the questions which have been discussed at the bar, it becomes necessary to refer to certain other portions of the record, and more particularly to the agreement signed by the counsel waiving a trial by jury and submitting all questions of law and fact arising on the trial of the cause to the decision of the court. By that agreement it is also stipulated that the court may 'draw all the inferences and conclusions that a jury is authorized to draw from the evidence, and with liberty to either party to except to the judgment of the court in the same manner and to the same extent that he might except to the verdict of a jury, and to object to the same for the same reasons.'

Parties have a right to waive a trial by jury and submit the issues of fact to the determination of the Circuit Court, but they cannot by any such agreement make it the duty of this court to draw inferences and conclusions of fact from the evidence, nor to examine such inferences and conclusions of fact as may be drawn from the evidence by the Circuit Court.

Pursuant to that agreement the court made a general finding as follows: 'The court finds the facts for the plaintiff,' and rendered judgment that the plaintiff recover of the defendants the sum of two thousand eight hundred and thirty-two dollars, with interest. Exceptions were taken at the time to the opinions of the court given against the defendants, but there is no exception to any ruling of the court in admitting or rejecting evidence, and no prayers for instructions of any kind were presented to the court.

Issues of fact in civil causes pending in the Circuit Courts may, if the parties so agree, be tried and determined by the court without the intervention of a jury, but such a submission necessarily implies that the facts shall be found by the court, and the act provides that the finding may be either general or special, and that it shall have the same effect as the verdict of a jury. Consequently where the finding is general nothing is open to review but the rulings or, perhaps, the instructions of the court as presented in a bill of exceptions, which is sufficient to show that nothing is open to reexamination in this case except the ruling of the court in sustaining the demurrer of the plaintiff to the second plea of the defendants.

Much discussion of that question is certainly not required, as the theory of the plea is that if the defendants had not destroyed the liquors they would have been destroyed by fire, which is alleging what cannot be known, as the liquors might have been rescued from the conflagration by the energy of the citizens or of the police. Impending dangers give no immunity to one man to destroy the property of another. As well may a man in good health claim the right to take the life of his neighbor who is sick, and offer as a defence for his crime that the sick man would have died of his disease if he, the defendant, had withheld the mortal blow.

Suppose, however, the exceptions to the judgment are sufficient to raise the questions which the defendants desire to present for decision, still the court would feel constrained to affirm the judgment upon the ground that the Supreme Court of the State have decided in an analogous case that the corporate authorities of the city had authority under the charter of the city to make the order for the destruction of the liquors and to give the pledge for payment, and that the defendants are responsible for the value of the liquors destroyed under that order. State courts certainly have a right to expound the statutes of the State, and having done so, those statutes, with the interpretation given to them by the highest court of the State, become the rules of decision in the Federal courts.

Viewed in any reasonable light, the court is of the opinion that there is no error in the record.

JUDGMENT AFFIRMED.

I dissent from the judgment of the court in this case. A resolution adopted by the common council of an insurgent city just before its occupation by our armies, for the purpose of keeping any class of property out of its hands by destroying the same, is a sheer act of war, and no contract or stipulation for indemnity to persons whose property was thus destroyed had any validity after the collapse of the Confederacy. The owners of tobacco, cotton, or machinery destroyed on similar occasions are just as much entitled to set up stipulations for indemnity. The wounded soldier has just as good a right to claim damages from the Confederate soldier who wounded him.


text: Talk:City of Richmond v. Smith/Opinion of the Court


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Hanauer v. Woodruff

ON certificate of division in opinion between the judges of the Circuit Court for the Eastern District of Arkansas; the case being thus:

Hanauer sued Woodruff in the court below upon a promissory note executed by the latter, at Memphis, Tennessee, on the 22d of December, 1861, for $3099, payable twelve months after date, if not before, with interest after maturity at the rate of 8 per cent. per annum. The case was tried in the District of Arkansas, by the Circuit Court, without the intervention of a jury, by stipulation of the parties. And the court found, specifically, that the only consideration of the note was certain bonds, issued by authority of the convention which attempted to carry the State of Arkansas out of the Federal Union, by an ordinance of secession; that these bonds were issued for the purpose of supporting the war levied by the insurrectionary bodies then controlling that State against the Federal government, and were styled 'war-bonds' on their face, and that the purpose of their issue was well known to both the plaintiff and defendant. The court further found that at the time of the transaction between the parties, that is, at the time the note was given, these war-bonds had at Memphis and in Arkansas a value 25 per cent. below their par value; that those received by the defendant were not used nor intended to be used by him in direct support of the war, but were received by him to be used in the ordinary course of his business; and that bonds of this character were at that time used as a circulating medium in Arkansas and about Memphis, in the common and ordinary business transactions of the people.

Upon the facts thus found, the following questions of law arose, upon which the judges of the Circuit Court were divided in opinion:

1st. Was the consideration of the note void on the ground of public policy, so that no action could be sustained upon it in the Federal courts?

2d. Was the consideration of the note illegal under the principles of public law, the Constitution of the United States, and the laws of Congress, and the proclamations of the President relating to the rebellion, which existed and was pending when the note was made?

3d. If the bonds were a sufficient consideration to sustain the action, what was the measure of damages?

These three questions were now sent up to this court for answers.

Mr. A. H. Garland, for the plaintiff, Hanauer:

1. While it is true the bonds for which the note in suit was given were issued to be used in carrying on the war against the United States, yet as the particular bonds obtained by the defendant of the plaintiff were not used or intended to be used in support of that war, the contract is not void, but stands upon a good and valid consideration. The issuing of the bonds by the State of Arkansas can have no bearing on the matter now in question, unless both the parties to the note participated, in making their contract, in the intention with which the bonds were issued. The contract must grow out, of, immediately, or be connected with, the immoral or illegal act to vitiate it; and if the promise be entirely disconnected from the illegal consideration or act, and is founded on a new consideration, it is good; and this though the party to whom the promise is made is the contriver and the conductor of the illegal act. This is the view taken by this court in Armstrong v. Toler, Kennett v. Chambers, and by other courts in numberless cases.

The defendant got the bonds and used them legitimately, and they were worth to him not much less than the sum expressed on their face. He did not use them for the war, nor did he intend to do so. To him they were as money. He should not be heard to say they were not money.

Recovery was denied in Hanauer v. Doane, because the notes sued on were given for goods sold in aid of the rebellion, both buyer and seller having knowledge of the use intended to be made of the goods.

2. But the finding by the court, that the bonds were used as a circulating medium among the people within the Confederate lines at and about Memphis, and had there much value, brings the case directly within Thorington v. Smith. The doctrine of that case leaves nothing to discuss here. Indeed, without Thorington v. Smith, upon general principles, this court has fully recognized as law all that is asked for Hanauer, and places that recognition upon the very cases already cited in this argument.

3. What is the measure of damages?

This question is almost solved in determining the other. The note was given for so many dollars; and nothing less than dollars, as contracted for, will discharge the contract. The parties made their own contract and used plain words to express their meaning.

Mr. Justice FIELD delivered the opinion of the court, as follows:

title: Hanauer v. Woodruff


text: Talk:Hanauer v. Woodruff

title: Talk:Hanauer v. Woodruff


text:
Hanauer v. Woodruff/Opinion of the Court

The first question presented is embraced within the second, for if the consideration of the note was illegal under the Constitution of the United States and the laws of Congress, there can be no inquiry whether it was void for reasons of public policy. There can be no public policy in this country which contravenes the law of the land. And that the consideration was illegal and void under the Constitution and laws of the United States, does not admit of a doubt. If the Constitution be, as it declares on its face it is, the supreme law of the land, a contract or undertaking of any kind to destroy or impair its supremacy, or to aid or encourage any attempt to that end, must necessarily be unlawful, and can never be treated in a court sitting under that Constitution and exercising authority by virtue of its provisions, as a meritorious consideration for the promise of any one. The obligations of a traitorous combination, issued expressly to make war against and overthrow the government of the United States, can never give validity to any transaction which must seek the courts of that government for enforcement.

The issuing of the bonds in question was an act of open hostility to the United States; it was an act by which the convention declared its adherence to their enemies, and it gave aid and comfort to them. The purpose of their issue being inscribed upon their face, notice of their character was imparted to every one. Wherever they were carried, they showed the taint of their origin, and no one could take them, or give currency to them, or part with value for them, without knowingly adding to the strength of the insurgents, and thus in some degree furthering their cause.

An ingenious argument is presented on the part of the able and learned counsel of the plaintiff, by which it is attempted to sustain the validity of the note in suit on the ground that it is a contract collateral to that upon which the bonds were issued, and therefore not tainted by it; and on the further ground that it is a contract based upon a valid consideration within the authority of the decision in the case of Thorington v. Smith.

Neither ground can be maintained. The contract expressed by the note is indeed collateral to that upon which the bonds were issued; that is to say, it is not the same, but a different contract. Yet it is connected with that contract by the fact that the bonds constitute its consideration; it therefore gives value and currency to those bonds, and to that extent advances the purposes for which the bonds were issued. It thus draws to itself the illegality of the original transaction.

When a contract is thus connected by its consideration with an illegal transaction a court of justice will not aid its enforcement. It is sometimes said that the test whether a demand connected with an illegal transaction is capable of being enforced at law, is, whether the plaintiff requires any aid from the illegal transaction to establish his case. This test was given in Simpson v. Bloss, by the court of Common Pleas, in England. But it is too narrow in its terms and excludes many cases where the plaintiff might establish his case independently of the illegal transaction, and yet would find his demand tainted by that transaction. He might, in some instances, establish his case by showing a simple loan of money, or a simple sale of goods, yet the court would hold the contract of loan or sale to be invalid if at the time the money was loaned or the goods were sold he knew they were to be used for an illegal and criminal transaction, and the contract was made to further its execution. Such was the decision of this court in the recent case of this same plaintiff against Doane, reported in 12th Wallace. There goods were sold to the defendant, the vendor knowing at the time that they were to be used in aid of the rebellion, and it was held that the sale was, from this knowledge, an illegal transaction on the part of the vendor and did not constitute a valid consideration for the note of the purchaser; and it was further held that due-bills given by the purchaser when taken up and paid by third parties with knowledge of the purpose for which they were issued, were equally invalid as a consideration for his note in their hands.

But notwithstanding the narrow terms of the test mentioned in the English decision, the present case falls directly within them. No inquiry can be made into the consideration of the note in suit without disclosing that it consists of bonds issued by one of the insurgent States to support the war levied by them against the United States. The plaintiff, therefore, cannot establish his case, his demand being contested, without aid from that illegal and treasonable transaction.

The decision in Thorington v. Smith, does not control the present case. There it appeared that the plaintiff, Thorington, had sold a parcel of land situated in Montgomery, Alabama, to the defendant for $45,000. At that time, Alabama was in the occupation of the civil and military authorities of the Confederate States. There was no gold or silver coin, nor were there any notes of the United States in circulation in that State. The only currency in ordinary use, in which the daily business of the people was carried on, were treasury notes of the Confederate States, which in form and general appearance resembled bank bills. In these notes $35,000 of the purchase-money of the land were paid, and a note was given for the balance, payable by its terms in dollars. It was by that term that Confederate notes were designated.

Upon the suppression of the rebellion these notes became of course valueless. Thorington then filed a bill to enforce a vendor's lien upon the land sold, claiming the balance of the stipulated purchase-money in lawful money of the United States. The defendant set up as a defence that the purchase of the land was made at Montgomery, Alabama, where the parties at the time resided; that the only currency then in vogue there consisted of treasury notes of the Confederate government; that the contract price for the land, $45,000, was to be paid in those notes; that $35,000 were thus paid; that the note in suit given for the balance was to be paid in the same manner, and that the actual value of the land in lawful money of the United States was only $3000. The court below held that as the payment was to be made in Confederate notes the contract was illegal, and dismissed the suit, and the case was brought to this court for review. One of the questions presented, and the most important one was, whether the contract thus made for the payment of Confederate notes during the rebellion, between parties residing in the Confederate States, could be enforced in the courts of the United States.

In examining this question, the court referred to the establishment of the Confederate government in 1861, and to the power it exercised over the territory of the States confederated in insurrection, observing that it was the actual government of all the territory of the insurgent States, except those portions protected from its control by the presence of the armed forces of the United States. It then considered the character of this government, and classed it in that description of de facto governments, which were aptly termed governments to paramount force. The distinguishing features of this kind of government, the court said, were, '(1) that its existence is maintained by active military power within the territories and against the rightful authority of an established and lawful government; and (2) that while it exists it must necessarily be obeyed in civil matters by private citizens, who by acts of obedience rendered in submission to such force, do not become responsible as wrongdoers for those acts, though not warranted by the laws of the rightful government.'

Illustrations of this sort of government were found in the case of Castine, in Maine, reduced to British possession during the war of 1812, and in the case of Tampico, in Mexico, occupied by the troops of the United States during the war with that country in 1846 and 1847.

As to Castine, that place was captured in September, 1814, by the British forces, and remained in their possession until the ratification of the treaty of peace of February, 1815. 'By the conquest and military occupation of Castine,' this court said, by Mr. Justice Story, in United States v. Rice, 'the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British government and were bound by such laws, and such only as it chose to recognize and impose. From the nature of the case no other laws could be obligatory upon them, for where there is no protection or allegiance, or sovereignty, there can be no claim to obedience.'

As to Tampico, that place was taken possession of in November, 1846, by the military forces of the United States, and in December following the entire State of Tamaulipas, in which Tampico is situated, was reduced to military subjection by our forces, and both Tampico and the State remained in our occupation until the treaty of peace in 1848. While thus captured and held in subjection other nations were bound, as this court said, speaking through Chief Justice Taney, in Fleming v. Page, 'to regard the country, while our possession continued, as the territory of the United States, and to respect it as such. For by the laws and usages of nations, conquest is a valid title while the victor maintains the exclusive possession of the conquered country. The citizens of no other nation, therefore, had a right to enter it without the permission of the American authorities, nor to hold intercourse with its inhabitants, nor to trade with them. As regarded all other nations, it was a part of the United States, and belonged to them as exclusively as the territory included in our established boundaries.'

After referring to these cases of Castine and Tampico the court said that it was among the governments, of which these are examples, that the Confederate government established for the insurgent States must be classed, though it differed from them in the circumstance that its authority did not originate in lawful acts of regular war; that it was not, however, on that account less actual or less supreme; that to the extent of its actual supremacy, however gained, in all matters of government within its military lines, the power of the insurgent government could not be questioned; that though that supremacy did not justify acts of hostility to the United States, it made obedience to its authority in civil and in local matters not only a necessity, but a duty; and that without such obedience civil order was impossible. It was by this government, said the court, exercising its power through an immense territory, that the Confederate notes were issued early in the war; that they became in a short time almost exclusively the currency of the insurgent States; that while the war lasted they were used as money in nearly all the business transactions of many millions of people; and that they must, therefore, be regarded as a currency imposed on the community by irresistible force.

From these considerations the court held that it followed 'as a necessary consequence from this actual supremacy of the insurgent government as a belligerent within the territory where it circulated, and from the necessity of civil obedience on the part of all who remained in it, that this currency must be considered in courts of law in the same light as if it had been issued by a foreign government temporarily occupying a part of the territory of the United States. Contracts stipulating for payments in this currency cannot be regarded for that reason only as made in aid of the foreign invasion in the one case or of the domestic insurrection in the other. They have no necessary relation to the hostile government, whether invading or insurgent. They are transactions in the ordinary course of civil society, and though they may indirectly and remotely promote the ends of the unlawful government, are without blame, except when proved to have been entered into with actual intent to further invasion or insurrection.' And so the court held that such contracts could be enforced in the courts of the United States, after the restoration of peace, to the extent of their just obligation.

There is nothing in the case at bar which has any analogy to the case cited. In the latter case the transaction was in a currency imposed by irresistible force upon the community, in which currency the commonest transactions in the daily life of millions of people, even in the minutest particulars, were carried on, and without the use of which there would have been no medium of exchange among them. The simplest purchase in the market of daily food would, without its use, have been attended with inconveniences which it is difficult to estimate. It would have been a cruel and oppressive judgment, if all the transactions of the many millions of people, composing the inhabitants of the insurrectionary States, for the several years of the war, had been held tainted with illegality, because of the use of this forced currency, when those transactions were not made with any reference to the insurrectionary government.

In the case at bar the war-bonds issued by the secession ordinance of Arkansas, though used as a circulating medium in that State and about Memphis, did not constitute any forced currency which the people in that State and city were obliged to use. They were only a circulating medium in the sense that any negotiable money instruments, in the payment of which the community has confidence, constitute a circulating medium. The difference between the two cases is the difference between submitting to a force which could not be controlled, and voluntarily aiding to create that force.

The first two questions certified to us must, therefore, be answered in the affirmative. The third question does not show any matter upon which the judges of the Circuit Court were divided in opinion, but, in any event, it requires no answer.

I assented with much reluctance to the opinion in the case of Thorington v. Smith.

But I did assent to it on the ground that, while it was unsupported by and in some degree at variance with the general doctrine of the turpitude of consideration as affecting the validity of contracts, it was necessary to be established as a principle to prevent the grossest injustice in reference to transactions of millions of people for several years in duration.

I think the present case comes within that principle.

But I am content that the case of Thorington v. Smith shall be so limited, modified, and explained as to make it inapplicable to any further class of cases at all probable in the history of this country.

The necessity in which it was founded has passed or is rapidly passing away, and I acquiesce.


text: Talk:Hanauer v. Woodruff/Opinion of the Court


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Flanders v. Tweed (82 U.S. 450)

ERROR to the Circuit Court for the District of Louisiana, in which court Tweed sued Flanders, deputy general agent of the Treasury Department of the United States, to recover damages caused by an alleged unlawful seizure and detention of certain cotton of his, Tweed's. Judgment being given for the plaintiff the treasury agent appealed.

Mr. S. F. Phillips, Solicitor-General, for the plaintiff in error; Mr. T. D. Lincoln, contra.

Mr. Justice CLIFFORD stated the case, and delivered the opinion of the court.

title: Flanders v. Tweed (82 U.S. 450)


text: Talk:Flanders v. Tweed (82 U.S. 450)

title: Talk:Flanders v. Tweed (82 U.S. 450)


text:
Flanders v. Tweed (82 U.S. 450)/Opinion of the Court

Tweed claims that he was the owner of four hundred and ninety-five bales of cotton; that the defendant, on the sixth of March, 1866, unlawfully seized and took the same into his possession, and that he unlawfully detained the cotton until the fifteenth of May in the same year, when he, the plaintiff, obtained possession of the cotton by virtue of two writs of sequestration which he instituted in the same court for that purpose, and that he expressly reserved the right to recover damages for the seizure and detention of the cotton in his petition in each of the sequestration suits; that the cotton declined in value to the amount of thirty thousand dollars during the period the possession of the same was unlawfully withheld from the possession of the plaintiff by the defendant; that in consequence of said unlawful detention of the cotton, the plaintiff was compelled to pay and did pay interest to the amount of one hundred and sixty dollars, and insurance to the amount of two hundred dollars, and storage to the amount of one thousand dollars; that he was compelled to institute the two suits of sequestration to recover the possession of the cotton, and that he was compelled to pay and did pay counsel fees, clerk's fees, and marshal's fees to the further amount of seven thousand dollars. He also charges that the defendant, during the period he wrongfully withheld the possession of the cotton from the plaintiff, sent fifty bales of the same to be rebaled, whereby the cotton in those bales was diminished in value to the amount of one thousand dollars, for all which he claims damages in the sum of thirty-nine thousand three hundred and sixty dollars.

Service was made and the defendant appeared and filed an answer in which, among other things, he alleged that he was a deputy general agent of the Treasury Department; that the cotton, before and at the time the writs of sequestration were issued, was in his custody and control as such officer, and that it was held by him as an official act in administering the laws of Congress in relation to the States in insurrection and rebellion; that the cotton, when the plaintiff caused the same to be seized, sequestered, and taken into the custody of the officer of the court, was, by virtue of his possession under color of those laws, in the due and actual custody, control, and possession of the United States, and that the issuing and executing the writs of sequestration and taking the cotton into possession by the officer under the same were in all respects acts of lawless and unjustifiable trespass and violence.

Evidence was introduced to the jury, and the jury, under the instructions of the court, returned their verdict in favor of the plaintiff, and the defendant excepted and removed the cause into this court.

Exceptions were taken by the defendant to the instructions given by the court to the jury, but the counsel for the United States who appear for the defendant submit the exceptions without argument. None of the questions presented in the exceptions are assigned for error, and in view of the circumstances the court does not deem it necessary to re-examine those questions.

Nothing remains for the consideration of the court except the error assigned founded upon the verdict of the jury, from which it appears that they found damages in favor of the plaintiff, as follows:

For decline in cotton,........... $6,994

" insurance premiums,...............160

" lawyer's fees,................. 6,000

" storage,....................... 1,000

" clerk's and marshal's fee,..... 1,126


text: Talk:Flanders v. Tweed (82 U.S. 450)/Opinion of the Court


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Tomlinson v. Jessup

APPEAL from the Circuit Court for the District of South Carolina; the case being this:

Jessup, of New York, and owner of a number of shares in the Northeastern Railroad Company, a corporation created in 1851 by the State of South Carolina, filed a bill in the court below against Tomlinson and others, officers of the State of South Carolina, to enjoin them from levying a tax on the property of the road.

The question was whether the property was liable to taxation under the legislation of the State.

The act incorporating the company contained a grant of the usual powers of railroad companies, and the charter was for the term of fifty years. At the time of its passage the 41st section of an act of the General Assembly, passed in December, 1841, was in force, as follows:

'It shall become part of the charter of every corporation, which shall, at the present, or any succeeding session of the General Assembly, receive a grant of a charter, or any renewal, amendment, or modification thereof (unless the act granting such charter, renewal, amendment, or modification shall, in express terms, except it), that every charter or incorporation granted, renewed, or modified as aforesaid, shall at all times remain subject to amendment, alteration, or repeal, by the legislative authority.'

The act of incorporation did not except the charter of the company from the operation of this section. The company received extensions of their powers and privileges at various times subsequently, but in no case did the amendatory acts except the company from the operation of that section.

By an act, passed December 19th, 1855, entitled 'An Act to amend the charter of the Northeastern Railroad Company, and for other purposes,' it was enacted as follows:

'That the stock of the said company, and the real estate that it now owns or may hereafter acquire, which is connected with or subservient to the works authorized in the charter of the said company, shall be, and the same is hereby exempted from all taxation during the continuance of the present charter of the said company.'

This latter act did not except in terms the charter of the company from the provisions of the 41st section of the act of 1841, above recited.

The present constitution of South Carolina was adopted in 1868, and article 9, section 1, is as follows:

'The General Assembly shall provide, by law, for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, real, personal, and possessory, except mines and mining claims, the proceeds of which alone shall be taxed; and also exempting such property as may be exempted by law for municipal, educational, literary, scientific, religious, or charitable purposes.'

Article 12, section 2, is as follows:

'The property of corporations now existing or hereafter created, shall be subject to taxation, except in cases otherwise provided for in this constitution.'

On the 15th of September, 1868, the General Assembly passed an act entitled 'An Act providing for the assessment and taxation of property,' the first section of which declares

'That all real and personal property in this State, and personal property of residents of the State, which may be kept or used temporarily out of this State, with the intention of bringing the same into the State, or which has been sent out of the State for sale and not yet sold; all moneys, credits, investments, in bonds, stocks, joint stock companies or otherwise, of parties resident in this State, shall be subject to taxation.'

Subsequent acts provided specially for the taxation of the property of railroad companies, under which the officers of the State were proceeding to assess and tax the property of the Northeastern Railroad Company, when the present bill was filed.

The court below granted an injunction; at first temporary, and then final; and from the final injunction the officers of the State appealed.

Messrs. D. T. Corbin and D. H. Chamberlain, for the appellants; T. G. Barker, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Tomlinson v. Jessup


text: Talk:Tomlinson v. Jessup

title: Talk:Tomlinson v. Jessup


text:
Tomlinson v. Jessup/Opinion of the Court

The constitution of South Carolina, adopted in 1868, declares that the property of corporations then existing or thereafter created, shall be subject to taxation, except in certain cases, not material to the present inquiry. The subsequent legislation of the State carried out this requirement and provided for the taxation of the property of railroad companies; and the question presented is, whether the act of December, 1855, to amend the charter of the Northeastern Railroad Company, exempted the property of that company from such taxation. The company was incorporated in 1851, and at that time a general law of the State was in existence, passed in 1841, which enacted that the charter of every corporation subsequently granted, and any renewal, amendment, or modification thereof, should be subject to amendment, alteration, or repeal by legislative authority, unless the act granting the charter or the renewal, amendment, or modification, in express terms excepted it from the operation of that law. The provisions of that law, therefore, constituted the condition upon which every charter of a corporation subsequently granted was held, and upon which every amendment or modification was made. They were as operative and as much a part of the charter and amendment, as if incorporated into them.

The act amending the charter of the Northeastern Railroad Company, passed in December, 1855, provided that the stock of the company, and the real estate it then owned, or might thereafter acquire, connected with or subservient to the works authorized by its charter, should be exempted from taxation during the continuance of the charter. This act contained no clause excepting the amendment from the provisions of the general law of 1841. It was, therefore, itself subject to repeal by force of that law.

It is true that the charter of the company when accepted by the corporators constituted a contract between them and the State, and that the amendment, when accepted, formed a part of the contract from that date and was of the same obligatory character. And it may be equally true, as stated by counsel, that the exemption from taxation added greatly to the value of the stock of the company, and induced the plaintiff to purchase the shares held by him. But these considerations cannot be allowed any weight in determining the validity of the subsequent taxation. The power reserved to the State by the law of 1841 authorized any change in the contract as it originally existed, or as subsequently modified, or its entire revocation. The original corporators, or subsequent stockholders, took their interests with knowledge of the existence of this power, and of the possibility of its exercise at any time in the discretion of the legislature. The object of the reservation, and of similar reservations in other charters, is to prevent a grant of corporate rights and privileges in a form which will preclude legislative interference with their exercise if the public interest should at any time require such interference. It is a provision intended to preserve to the State control over its contract with the corporators, which without that provision would be irrepealable and protected from any measures affecting its obligation.

There is no subject over which it is of greater moment for the State to preserve its power than that of taxation. It has nevertheless been held by this court, not, however, without occasional earnest dissent from a minority, that the power of taxation over particular parcels of property, or over property of particular persons or corporations, may be surrendered by one legislative body, so as to bind its successors and the State. It was so adjudged at an early day in New Jersey v. Wilson; the adjudication was affirmed in Jefferson Bank v. Skelly, and has been repeated in several cases within the past few years, and notably so in the cases of The Home of the Friendless v. Rouse and Wilmington Railroad v. Reed. In these cases, and in others of a similar character, the exemption is upheld as being made upon considerations moving to the State which give to the transaction the character of a contract. It is thus that it is brought within the protection of the Federal Constitution. In the case of a corporation the exemption, if originally made in the act of incorporation, is supported upon the consideration of the duties and liabilities which the corporators assume by accepting the charter. When made, as in the present case, by an amendment of the charter, it is supported upon the consideration of the greater efficiency with which the corporation will thus be enabled to discharge the duties originally assumed by the corporators to the public, or of the greater facility with which it will support its liabilities and carry out the purposes of its creation. Immunity from taxation, constituting in these cases a part of the contract with the government, is, by the reservation of power such as is contained in the law of 1841, subject to be revoked equally with any other provision of the charter whenever the legislature may deem it expedient for the public interests that the revocation shall be made. The reservation affects the entire relation between the State and the corporation, and places under legislative control all rights, privileges, and immunities derived by its charter directly from the State. Rights acquired by third parties, and which have become vested under the charter, in the legitimate exercise of its powers, stand upon a different footing; but of such rights it is unnecessary to speak here. The State only asserts in the present case the power under the reservation to modify its own contract with the corporators; it does not contend for a power to revoke the contracts of the corporation with other parties, or to impair any vested rights thereby acquired.

DECREE REVERSED, and the cause remanded with directions to

DISMISS THE SUIT.


text: Talk:Tomlinson v. Jessup/Opinion of the Court


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Tomlinson v. Branch

APPEAL from the Circuit Court for the District of South Carolina.

Branch and others, stockholders of the South Carolina Railroad Company, filed a bill in equity in the court below against the said company, as also against one Tomlinson, the State Auditor, and others, certain county collectors, to enjoin the company from paying and the others from collecting certain taxes imposed on the said company in pursuance of an act of the legislature of South Carolina, passed in April, 1868, and another act passed in February, 1870; it being alleged in the bill that the said company was, by its charter, exempt from taxation, and that no adequate legal remedy existed under the laws of the State to obtain redress; and that the company declined to adopt any measures for obtaining it.

The question in the case was whether the company was entitled to an exemption from taxation which the legislature could not abrogate or disregard; it being conceded that the company was made taxable, if the legislature had the power to tax it.

The property of the company was derived from two sources, one portion being a railroad from Charleston to Hamburg, opposite the town of Augusta, Georgia, which was constructed by and formerly belonged to the South Carolina Canal and Railroad Company, and the other being roads extending from Branchville on the line of the first road, to Columbia and Camden, which were constructed by the South Carolina Railroad Company under its own charter. This court distinguished between the two parts.

The diagram will exhibit the roads, as well as another one from Columbia towards Augusta, incidentally mentioned in the case.

Messrs. D. H. Chamberlain, D. T. Corbin, and P. Phillips, for the appellants; Messrs. J. Conner and A. G. McGrath, contra.

Mr. Justice BRADLEY stated the cases as respected both parts of the road, and delivered as to each the opinion of the court.

title: Tomlinson v. Branch


text: Talk:Tomlinson v. Branch

title: Talk:Tomlinson v. Branch


text:
Tomlinson v. Branch/Opinion of the Court

The South Carolina Canal and Railroad Company was chartered by the legislature of South Carolina in December, 1827, for the purpose of constructing a railroad or canal, or both, from Charleston to each of the towns of Columbia, Camden, and Hamburg, with the exclusive right for that purpose for thirty-six years. In a supplement of January, 1828, amongst other things, it was enacted as follows, viz.:

'That during the first period of thirty-six years the stock of the company, and the real estate that may be purchased by them and connected with, and be subservient to the works herein authorized, shall be exempted from taxation.'

Under this charter the company constructed a railroad from Charleston to Hamburg only, a distance of nearly 140 miles. This road was completed in 1833, and it is admitted that the thirty-six years of exemption from taxation expired in 1869, and cannot be invoked in support of the present suit.

In 1835 the Cincinnati and Charleston Railroad Company was incorporated by the legislature of South Carolina, for the purpose of establishing a communication by railroad between Cincinnati and Charleston, through the States of Kentucky, Tennessee, North Carolina, and South Carolina, with power to construct branches not conflicting with any chartered rights, and with power to use any section of the said railroad before the whole should be completed. By the 43d section of this charter it was enacted that the capital stock of this company, the dividends thereon, and all the property and estate, real and personal, belonging to said company, should be forever exempt from taxation, unless the dividends should exceed lawful interest. Subsequently the project of extending the road into other States was abandoned, and the name of the company was changed, first to that of the Louisville, Cincinnati, and Charleston Railroad Company, and afterwards to that of the South Carolina Railroad Company. The company never built any portion of the railroad authorized by its charter, except from Branchville to Columbia, and a branch to Camden. The exclusive privileges conceded to the South Carolina Canal and Railroad Company rendered it difficult, if not impracticable, to effect a communication with Charleston without the consent of that company. Hence negotiations for an amalgamation of interests between the two companies took place as early as 1837, and it was practically effected in that and the ensuing years. The mode in which it was done was that the stockholders of the South Carolina Canal and Railroad Company exchanged their stock in that company for an equal number of shares in the Louisville, Cincinnati, and Charleston Railroad Company (afterwards called the South Carolina Railroad Company), and received in addition a bonus of twenty-five per cent. By this means the latter company acquired the entire control of the former, and used the road of the former company between Branchville and Charleston, instead of building a separate road of their own.

In 1843, by an act of the legislature passed the 19th of December, this amalgamation was formally legalized. The section relating to this subject was expressed in the following terms:

'That whenever the written consent of all the stockholders of the South Carolina Canal and Railroad Company shall have been obtained, the said South Carolina Canal and Railroad Company shall be merged in the said South Carolina Railroad Company, and thereupon and thereafter all the rights, privileges, and property belonging to the said South Carolina Canal and Railroad Company shall be vested in the said South Carolina Railroad Company, and the said South Carolina Railroad Company shall be liable for all the debts and contracts of the said South Carolina Canal and Railroad Company; and the stock and property of the said South Carolina Railroad Company shall be subject to the same liens and charges to which the stock and property of the said South Carolina Canal and Railroad Company may be liable, and in the same relative order in which the said liens and charges now stand.'

It is conceded that the terms of this law were complied with. And now the defendants in error contend that by the 'merger' of the South Carolina Canal and Railroad Company in the South Carolina Railroad Company, the property of the former is held by the latter, with all the rights and privileges of its own charter attaching thereto, including the right of perpetual exemption from taxation.

If this is so, the State, by giving the latter company the power to acquire the property of the former, has lost a valuable prerogative in reference to that property, which it possessed up to the time when the act of 1843 was passed-namely, the right to tax the property after the expiration of the thirty-six years. Such a conclusion of the rights of the State ought not to be admitted without a clear expression of the legislative assent. It does not seem to us that the section in question contains such clear assent. In declaring that the one company shall be merged in the other, and that the rights, privileges, and property of the one shall be vested in the other, the legislature cannot be understood to mean that the restrictions, limitations, and burdens affecting that property, and imposed for the benefit of the public or of individuals, shall not go with it. The rights and privileges go with it, and those rights and privileges can with difficulty be separated from the restrictions and duties by which they are measured and qualified. For example, the right to charge toll and freight can hardly be separated from the limitation of the rates of toll and freight which the charter of the merged company imposed. If the rates of freight were limited in that charter to five cents per ton per mile, can it be claimed that the new company is discharged from that limitation altogether? Or if its own charter allows a charge of ten cents per ton per mile, can it claim the right to charge ten cents for freight transported on the old road? If the hypothesis were reversed, and the old charter allowed ten cents, whilst the new allowed but five, the company would not hesitate, under the grant of the rights and privileges of the old, to continue to charge ten cents, as the former company had done. And they would have reason on their side. Had it been intended that the road and property of the old company should be owned and controlled by the new company under its own charter, in the same manner as its other property, it would have been easy to have so declared. Not having so declared, we cannot presume that such was the intent. The keeping alive of the rights and privileges of the old company, and transferring them to the new company in connection with the property, indicates the legislative intent, that such property was to be holden in the same manner and subject to the same rights as before. The owners of the property were to lose no rights by the transfer, nor was the public to lose any rights thereby. Of course, these remarks do not apply to those corporate rights and franchises of the old company, which appertain to its existence and functions as a corporation. These became merged and extinct. But all its rights and duties, its privileges and obligations, as related to the public, or to third persons, remain, and devolve upon the new company. This seems to us the most obvious and natural coustruction of the act, and leads to the conclusion that, as to the road, property, and works appertaining to the main line from Charleston to Hamburg, the South Carolina Railroad Company has no claim to exemption from taxation.

This view of the subject is corroborated by the decision of this court in the case of The Philadelphia, Wilmington, and Baltimore Railroad Company v. Maryland. It there appeared that the railroad line between Baltimore and Philadelphia had originally belonged to several distinct organizations chartered by the States of Maryland, Delaware, and Pennsylvania. One of these companies was exempt from certain taxation, and it was claimed by the consolidated company that this exemption was transferred to it and affected all parts of the line. The act authorizing the union of the several companies provided that the 'said body corporate so formed should be entitled. . . to all the powers and privileges and advantages then belonging to the former corporations.' And the new company claimed the exemption from taxes as one of the privileges and exemptions acquired. But the court held that the exemption did not extend to a portion of the line to which it had not extended before the union. It considered the evident meaning of the law to be, that whatever privileges and advantages either of the former companies possessed should in like manner be held and possessed by the new company, to the extent of the road which the said former companies had respectively occupied before the union; that it should stand in their place, and possess the power, rights, and privileges they had severally enjoyed in the portions of the road which had previously belonged to them.

It seems to us that this decision is directly in point, and governs that branch of the case now under consideration.

Reference is made, however, to certain decisions of the courts of South Carolina, which, it is contended, settle the question the other way.

The first case referred to is South Carolina Railroad Company v. Blake, which arose out of an attempt of the South Carolina Railroad Company to condemn certain land for its purposes in Charleston. The owner disputed the right of condemnation on the ground that the road and works had long before been located, and that, therefore, the power was gone. But the court held that the power existed under both charters, and might be exercised under either-first, showing by affidavit the necessity of the use. The observations on the subject of taxation were obiter dicta; but, as far as the judgment goes it does not seem to us to militate against the views we have taken, but rather to confirm them by recognizing the continued vitality of the powers contained in the old charter. These cannot fairly be claimed without accepting also its duties and burdens.

Another case was that of ''The State ex rel. South Carolina Railroad Company v. Hood, State Treasurer, in which the company claimed exemption from a State income tax imposed in 1867, under a law passed the year preceding, taxing the gross incomes of all railroads not exempt by law''. The Court of Appeals held that the company was exempt by law, both under the thirty-six years' exemption in the old charter (which had not then expired), and under the exemption in the charter of 1835; and expressly waived the consideration of the effect of the act of union passed in 1843. This case, therefore, furnishes no authority on the subject.

The remaining case is that of The South Carolina Railroad Company v. The Columbia and Augusta Railroad Company, decided in 1867. The defendant company, in that case, was chartered in 1858 with authority to construct a railroad from Columbia to Augusta. The South Carolina Railroad Company claimed that this would be an invasion of its exclusive privileges, as guaranteed in the charter of the South Carolina Canal and Railroad Company and in that of the Cincinnati and Charleston Railroad Company. The learned chancellor, by whom the case was decided, assumed that the South Carolina Railroad Company was entitled to both guarantees; but he held that the projected road would not be an infringement of either. The guarantee given to the old company was that of an exclusive right (for thirty-six years from the completion of its road) of having a railroad between Charleston as one terminus, and the towns of Columbia, Camden, and Hamburg, respectively; and the guarantee given to the Cincinnati and Charleston Railroad Company was, that for thirty-six years from January first, 1836, the State should not authorize any other road within twenty miles of its road, which should connect any points thereon, or should run in the general direction thereof; which exclusive privilege was not to extend to branches, but only to the main road. The chancellor held that the first guarantee secured the company only against other roads leading to Charleston, which the projected road did not do; and that the second guarantee secured the company only against roads interfering with the main line of the Cincinnati and Charleston company, which the projected road did not do, because this main line, as originally contemplated, was to extend from Charleston, via Branchville and Columbia, to Cincinnati; and the only part of it ever constructed was the road from Charleston via Branchville to Columbia; with which the projected road did not interfere. This was all that the chancellor decided. It is true that, in the course of his opinion, he does say that after the acquisition of the old road, extending from Charleston to Hamburg, the charter of the South Carolina Railroad Company extended over it, the same as if that company had built it. But that proposition was not material to the conclusion to which he came. And when he assumed that the guarantee of the old charter still subsisted with regard to the old road, and based his judgment upon that assumption as one of its grounds, his opinion is virtually an authority for the other proposition, that the company must be regarded as holding the old road, so far as the rights of the public are concerned, subject to the conditions and limitations of that charter, as well as with its privileges and immunities.

Be this, however, as it may, we find nothing in this case or the other cases referred to, which, in our view, affects the authority of the case of The Philadelphia, Wilmington, and Baltimore Railroad Company v. Maryland, or the soundness of the conclusion to which we have come, as before expressed.

The next inquiry relates to the line of railroad constructed by the South Carolina Railroad Company, under its own charter; being that portion between Branchville and Columbia and Camden. We have seen that the company, by its original charter granted in 1835, had the grant of a perpetual exemption from taxation. We have already decided that it is competent for the legislative power to grant such an exemption. But it is contended on the part of the State, that this exemption, and all other chartered privileges of the company, are subject to alteration and repeal, by virtue of the 41st section of an act, passed in December, 1841, by which it is declared—

'That it shall become part of the charter of every corporation, which shall, at the present, or any succeeding session of the General Assembly, receive a grant of a charter, or any renewal, amendment, or modification thereof (unless the act granting such charter, renewal, amendment, or modification shall, in express terms, except it), that every charter or incorporation granted, renewed, or modified as aforesaid, shall at all times remain subject to amendment, alteration, or repeal, by the legislative authority.'

Now, there can be no doubt but that the act of 1843, authorizing the consolidation of the two companies, or the merger of the one into the other, was an act modifying the charter of the South Carolina Railroad Company; but the third section of that act withdrew the charter from the operation of the act of 1841. It was in these words:

'SECTION 3. The said South Carolina Railroad Company is hereby excepted from the provisions of the forty-first section of an act entitled, An act to incorporate certain villages, &c. [referring to the act in question], but nothing herein contained shall be construed as exempting the said company from the provisions of the said forty-first section, upon any future grant, renewal, or modification of their charter.'

The allegation on the part of the State is, that subsequent legislation was obtained by the company, which modified its charter, and thus rendered the whole charter liable to subsequent alteration and repeal. The legislation referred to consists of two several acts, namely: 'An act to lend the credit of the State to secure certain bonds, to be issued by the South Carolina Railroad Company, and for other purposes, passed December 21st, 1865;' and 'An act to amend the act last aforesaid, passed the 19th day of September, 1866.' It is very doubtful whether these acts can be regarded as amending or modifying the charter of the company. They merely authorize the extension of certain bonds made by the company (which the State had guaranteed), by the issue of new bonds of like character, and the continuation of the mortgage for securing the payment of said bonds. But whatever may be thought on this point, the third section of the act of 1843 clearly withdraws from the operation of the act of 1841 (by which power to amend and repeal is reserved) the entire charter of the company except as to future grants, renewals, and modifications. Such future grants only were to be subject to alteration and repeal. This seems to us conclusive of the point raised, and no further argument is necessary.

It is our opinion, therefore, that the part of the line now under consideration is exempt from taxation; and that so much of the decree as relates thereto is correct.

DECREE REVERSED, with directions to enter a decree making the injunction perpetual as to all that part of the line and railroad of said South Carolina Railroad Company, which extends from Branchville to Columbia and Camden, and as to all property and stock of said company, properly apportionable and applicable to the said portion of line and railroad, and dismissing the bill as to all the residue of the railroad property and stock of said company, and that such further proceedings be had as may be necessary to perfect and carry out said decree.

At the same time with the preceding case was argued and adjudged another appeal, from the same court, the case, namely, of the

CITY OF CHARLESTON v. BRANCH,

in which case Branch had filed a bill against the councils of the said city and against the same South Carolina Railroad Company, to prevent the former from collecting and the latter from paying a tax, levied by the city on the station-house of the railroad, and the property appurtenant to it in the said city. The principles involved were the same as in the last case, and the court below granted the injunction, thus holding the property free from taxation. The city appealed.

After argument by the same counsel as in the former case, the opinion of the court was delivered by

The principles laid down in the preceding case must be applied to this. All parts of the road and property formerly belonging to the South Carolina Canal and Railroad Company, and all appendages and appurtenances thereof, are liable to taxation; whilst all property acquired by the South Carolina Railroad Company directly under its own charter, and for purposes connected with its original road, is exempt from taxation. Prim a facie the railroad terminus and depot in Charleston, and the property accessory thereto, belong to the South Carolina Canal and Railroad Company portion of the joint property. But if it can be fairly shown that any of the company's property in Charleston, claimed to be taxable, was acquired by the South Carolina Railroad Company for the accommodation of the business belonging to its original roads, or for the joint accommodation of the entire system of roads under its control, such property will, pro tanto, and in fair proportion, be exempt from taxation.

DECREE REVERSED, and the record remitted to the Circuit Court with directions to proceed

IN CONFORMITY WITH THIS OPINION.


text: Talk:Tomlinson v. Branch/Opinion of the Court


text:
City of Charleston v. Branch

in which case Branch had filed a bill against the councils of the said city and against the same South Carolina Railroad Company, to prevent the former from collecting and the latter from paying a tax, levied by the city on the station-house of the railroad, and the property appurtenant to it in the said city. The principles involved were the same as in the last case, and the court below granted the injunction, thus holding the property free from taxation. The city appealed.

After argument by the same counsel as in the former case, the opinion of the court was delivered by

Mr. Justice BRADLEY:

title: City of Charleston v. Branch


text: Talk:City of Charleston v. Branch

title: Talk:City of Charleston v. Branch


text:
City of Charleston v. Branch/Opinion of the Court

The principles laid down in the preceding case must be applied to this. All parts of the road and property formerly belonging to the South Carolina Canal and Railroad Company, and all appendages and appurtenances thereof, are liable to taxation; whilst all property acquired by the South Carolina Railroad Company directly under its own charter, and for purposes connected with its original road, is exempt from taxation. Prim a facie the railroad terminus and depot in Charleston, and the property accessory thereto, belong to the South Carolina Canal and Railroad Company portion of the joint property. But if it can be fairly shown that any of the company's property in Charleston, claimed to be taxable, was acquired by the South Carolina Railroad Company for the accommodation of the business belonging to its original roads, or for the joint accommodation of the entire system of roads under its control, such property will, pro tanto, and in fair proportion, be exempt from taxation.

DECREE REVERSED, and the record remitted to the Circuit Court with directions to proceed

IN CONFORMITY WITH THIS OPINION.


text: Talk:City of Charleston v. Branch/Opinion of the Court


text:
Prout v. Roby

APPEAL from the Supreme Court of the District of Columbia; in which court John Roby, asserting himself to be grandson and heir-at-law of a certain Jane Mallion, filed, A.D. 1865, a bill against Robert Prout (the now appellant), in order to have an account taken of rents received by him, the said Robert, from a lot on Capitol Hill, Washington, D. C., leased A.D. 1820, on a small ground-rent, by William Prout, ancestor of him, the said Robert, to one Porter 'in trust for the said Jane Mallion, her heirs and assigns,' with a right on the part of her and them to have, at any time, a conveyance in fee simple on payment of the principal of the rent; and on which lot (the said Jane dying A.D. 1852 intestate and leaving no personal representative) the said Robert Prout, without any such demand on the premises, of arrears of rent, as gave him a right of re-entry, had assumed to re-enter as for a common-law forfeiture; and the bill praying, moreover, in the event of certain findings, a conveyance in fee simple to him, the said John Roby, complainant.

Mr. Bradley, for the appellant; Mr. Totten, contra.

Mr. Justice SWAYNE stated the facts and delivered the opinion of the court.

title: Prout v. Roby


text: Talk:Prout v. Roby

title: Talk:Prout v. Roby


text:
Prout v. Roby/Opinion of the Court

On the 14th of April, A.D. 1820, William Prout, the ancestor of the appellant, leased to Jonathan Porter, as trustee for Jane Mallion, the premises described in the bill. The lease was for the term of ninety-nine years, and was renewable for successive terms of that duration forever. Rent amounting to $25.80 was to be paid at the end of each succeeding year, while the lease should subsist. It was stipulated that if the rent should at any time be due and unpaid for the period of sixty days, and there should not be sufficient property upon the premises wherefrom to make the amount due by levy, the lessor, his heirs or assigns, might re-enter and hold the premises as if the lease had not been executed. It was further stipulated that if Porter, as such trustee, or Jane Mallion, her heirs or assigns, should at any time thereafter pay to the lessor, his heirs or assigns, the sum of $430 over and above the rents then due, the lessor, his heirs or assigns, should thereupon execute to Jane Mallion, her heirs or assigns, a deed of release for the leasehold premises. There was a further provision that Jane Mallion might dispose of her interest in the premises by will, and that the will should pass the title which she held, subject to the conditions and requirements of the lease, in favor of the lessor, his heirs and assigns. The bill alleges that Jane Mallion left but one child, Mary Ann Roby, her only heir-at-law, who was the original complainant in this litigation. Porter died many years before this bill was filed. It does not appear that he left any heir, or that there has ever been any legal representative. Prout, the lessor, also died many years ago. The appellant holds title to the leasehold premises by descent and partition. Upon the death of Jane Mallion, Vandora Mallion, her husband, who survived her, assumed the possession and control of the property and received the accruing rents down to his death, which occurred in February, 1853. He devised all his property, real, personal, and mixed, to the Reverend Edward Knight, now also deceased. Knight claimed and possessed the leasehold estate under the will, and received the rents until a subsequent period, when he abandoned the possession thus acquired. At a later period the appellant entered into possession and has since received the rents and appropriated them to his own use. The bill prays for an account, that the appellant be credited with the stipulated rent and the stipulated purchasemoney, and if the rents and profits which he has received exceed the amount of these items that he be decreed to pay the surplus and convey the premises; and if the rents and profits received fall short of his credits, that then upon payment of the amount of the difference, he be decreed to convey. The defendant answered, and testimony was taken by both parties. The complainant died pendente lite, and her son and only heir-at-law, John T. Roby, was made complainant in her place by a bill of revivor. The defendant denied that Mary Ann Roby was the child of Jane Mallion. The court below ordered this question to be submitted to a jury in the proper court of law, and that both parties should be at liberty to read upon the trial all the depositions taken in the case pertinent to the issue. The jury found for the complainant and the verdict was certified back to the Equity court. It does not appear that any motion was made by the appellant in either court for a new trial, nor does it appear whether any evidence in addition to that specified in the order of the court was or was not given to the jury. The Equity court decreed for the complainant, and the defendant thereupon removed the case to this court by appeal.

No particular phraseology is necessary to create the provision for a feme covert technically designated in the law as her separate estate. As in all other cases of instruments to be construed, the controlling test is the intent of the parties. That, in whatever language it may be clothed, constitutes the contract. Here the meaning is so clear that no room is left for doubt. The intervention of the trustee and the power of disposition by will, could have had no purpose but to give to the cestui que trust the same power over the lease as if she had been a feme sole, and to place it beyond the reach and control of her husband both during her life and after her death. These facts are irreconcilable with any other view of the subject. No interest in the lease could vest in the husband without some act on her part in his favor. No such act was done. His assumption of control over the premises after her death was simply usurpation, and no right or title passed under his will to his devisee. What he did and what Knight did may therefore be laid out of view, as of no legal consequence in the case. It is not shown that there is, or ever was, any personal representative of Jane Mallion. The maxim applies that what does not appear is to be presumed not to exist.

It is insisted by the counsel for the complainant that the proofs are insufficient to establish the heirship of Mary Ann Roby. It was competent for the court which tried the issue, and for the court which ordered it to be tried, to set aside the verdict and award a new trial, or the latter court might at the hearing have disregarded the verdict if it were proper to do so, and it is within the power of this court to do the same thing. But it does not appear that the appellant objected to anything that occurred during the progress of the trial, nor that he took any action in either court touching the verdict after it was found, nor does it appear what evidence oral or otherwise was before the jury. The court having decreed according to the finding, we think the appellant should be held concluded, and that under the circumstances we ought not to go behind it in our examination of the case. The testimony in the record fails to satisfy us that the verdict ought to be disregarded. The objection comes from the party called upon to convey, under the covenant of one with whom he is in privity of blood and estate. If Mary Ann Roby were not the heir-at-law, the true heirs, whenever they appear, not being parties, will not be affected by this litigation.

The re-entry of the appellant cannot avail him. If there had been a personal representative of Jane Mallion after her death, the title to the leasehold term being personalty, would have passed to and vested in him. There being no such representative, it fell into abeyance, and has since so continued. The covenant to convey, passed by descent to the heir-at-law as if it had been contained in a separate instrument. If there had been a personal representative with sufficient assets, the heir could have called upon him to pay the purchase-money. In that event, the personal representative would have been a necessary party. But the heir saks no such relief. He proposes to make payment aliunde. Hence there is no necessity for the presence of an administrator. If the covenant had been to convey, upon the payment of the purchase-money during the life of the lease, putting an end to the lease would have destroyed the covenant. But the covenant is to convey whenever the purchasemoney should be paid. In such cases the conveyance may be demanded at any time, and the existence or non-existence of the lease when the demand is made is immaterial to the rights of the parties. But if the covenant were different in this particular from what it is, and belonged to the class first mentioned, the result would be the same. The re-entry was without effect. Connor v. Bradley and wife was a case arising in the city of Washington, under a lease of the same lessor, and identical as regards the right of re-entry with the one here under consideration. It was there said that the statute of 4 George II, ch. 28, was in force in the county of Washington. Upon examination, that statute is found to contain nothing applicable to this case. This leaves the rights of the parties to be determined by the common law. In that case this court said: 'It is a settled rule at the common law, that where a right of re-entry is claimed on the ground of forfeiture for the non-payment of rent, there must be proof of a demand of the precise sum due, at a convenient time before sunset upon the day when the rent is due, upon the land, at the most notorious place of it, though there be no person on the land to pay.' The legal propositions thus stated, are fully sustained by the authorities.

In this case it is not shown that any demand was ever made upon the premises. It is in proof that an officer went there twice to distrain for rent in arrear, and that he did not find sufficient property to satisfy the costs, but when this occurred, and what amount of rent was then claimed to be in arrear, is not disclosed. This testimony is wholly immaterial. If the requirements of the law had been complied with, or if the appellant had enforced the forfeiture by a recovery in ejectment, upon tender of the amount due with interest and costs at the proper time, relief would have been given; in the former case in equity by injunction, and in the latter by motion and stay of execution. Where it is necessary to take an account between the parties, no tender need be made before bringing the bill. This subject was fully examined in Sheets v. Selden.

The appellant is entitled to be paid the rent in arrear, and the amount of his expenditures for taxes, both with interest, and the purchase-money, before he can be required to convey. All this we understand to be carefully provided for in the decree of the court below. The directions for taking the account are clear and explicit. The appellant is entitled to nothing more.

DECREE AFFIRMED.

title: Prout v. Roby/Opinion of the Court


text: Talk:Prout v. Roby/Opinion of the Court

title: Talk:Prout v. Roby/Opinion of the Court