text:
Kirtland v. Hotchkiss

ERROR to the Supreme Court of Errors, Litchfield County, State of Connecticut.

Charles W. Kirtland, a citizen of Connecticut, instituted this action for the purpose of restraining the enforcement of certain tax-warrants levied upon his real estate in the town in which he resided, in satisfaction of certain State taxes, assessed against him for the years 1869 and 1870. The assessment was by reason of his ownership, during those years, of certain bonds, executed in Chicago, and made payable to him, his executors, administrators, or assigns in that city, at such place as he or they should by writing appoint, and, in default of such appointment, at the Manufacturers' National Bank of Chicago. Each bond declared that 'it is made under, and is, in all respects, to be construed by the laws of Illinois, and is given for an actual loan of money, made at the city of Chicago, by the said Charles W. Kirtland to the said Edwin A. Cummins, on the day of the date hereof.' They were secured by deeds of trust, executed by the obligor to one Perkins, of that city, upon real estate there situated, the trustee having power by the terms of the deed to sell and convey the property and apply the proceeds in payment of the loan, in case of default on the part of the obligor to perform the stipulations of the bond.

The statute of Connecticut, under which the assessment was made, declares, among other things, that personal property in that State 'or elsewhere' should be deemed, for purposes of taxation, to include all moneys, credits, choses in action, bonds, notes, stocks (except United States stocks), chattels, or effects, or any interest thereon; and that such personal property or interest thereon, being the property of any person resident in the State, should be valued and assessed at its just and true value in the tax-list of the town where the owner resides. The statute expressly exempts from its operation money or property actually invested in the business of merchandizing or manufacturing, when located out of the State. Conn. Revision of 1866, p. 709, tit. 64, c. 1, sect. 8.

The court below held that the assessments complained of were in conformity to the State law, and that the law itself did not infringe any constitutional right of the plaintiff.

This writ of error is prosecuted by Kirtland upon the ground, among others, that the statute of Connecticut thus interpreted and sustained is repugnant to the Constitution of the United States.

Mr. Ashbel Green, Mr. William Cothren, and Mr. Julien T. Davies, for the plaintiff in error.

The statutes of Connecticut in question are unconstitutional, because,--

I. They regulate commerce among the several States. Const. U.S., art. 1, subd. 3, sect. 8; Laws of Conn., Revision of 1866, p. 709, tit. 64, c. 1, sect. 8, p. 713, sect. 24; Laws of 1872, c. 113. The power to impose discriminating burdens upon property is a power to prohibit or destroy. The plaintiff in error was burdened on account of the foreign origin of his bonds and mortgages, and was therefore unconstitutionally taxed. Welton v. State of Missouri, 91 U.S. 275; Brown v. Maryland, 12 Wheat. 436; Crandall v. State of Nevada, 6 Wall. 35; Case of the State Freight Tax, 15 id. 232; Cook v. Pennsylvania, 97 U.S. 566. The grant of power by the Constitution to Congress to regulate commerce was intended to secure absolutely and uniformly free commerce between the States. Crandall v. State of Nevada, supra; Erie Railroad Co. v. State, 31 N. J. L. 531. Money is both the subject and instrument of commerce. Johnson, J., in Gibbons v. Ogden, 9 Wheat. 589; McLean, J., in Nathan v. Louisiana, 8 How. 80; Daniel, J., in United States v. Marigold, 9 id. 567. The unconstitutionality of a tax is determined by the subject upon which the tax is laid. St. Louis v. Ferry Company, 11 Wall. 423; Ward v. Maryland, 12 id. 418; Case of the State Freight Tax, supra. The tax falls, in this case, upon money that is exported from Connecticut. If it be constitutional, that State could, so far as loaning money is concerned, prescribe non-intercourse between her citizens and those of other States. For the purposes of taxation, no deduction from the assessed valuation of his real estate is permitted to a party in Illinois, by reason of his mortgage indebtedness. Connecticut attempts to regulate commerce among the several States, inasmuch as her statutes discriminate in taxation against resident mortgagees who loan in Illinois, where no such deduction is permitted, in favor of her own residents, making similar loans on lands within her own limits. Revision of 1866, tit. 64, c. 1, pp. 709, 715, sects. 8, 35, 36, 37.

II. They 'abridge the privileges or immunities of citizens of the United States.' [[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]] Const., sect. 1. One of these 'privileges or immunities' is the right to pass in and out of all the States. Crandall v. State of Nevada, supra. This right cannot exist in conjunction with a nullifying right by the State where the citizen resides to tax or impose discriminating burdens upon him for his acts, his lawful business, or his property in another State. Lamb v. Bowser, 7 Biss. 315, 372.

III. They tax property or business situated without the State of Connecticut.

The maxim that personal property follows the owner has no force, independent of comity. Savigny, System des Heutigen Romischen Rechts, vol. viii. p. 171, sect. 366; Wharton's Private International Law, sects. 11, 13, 297. See p. 126, id.; Green v. Van Buskirk, 7 Wall. 150; Hervey v. Rhode Island Locomotive Works, 93 U.S. 664; Lewis v. Woodford, 58 Tenn. 25; Birtwhistle v. Vardill, 3 Barn. & Cress. 438, 451.

It has no application to the taxation of visible tangible property, Hoyt v. Commissioners of Taxes, 23 N. Y. 224; Pacific Steamship Co. v. Commissioners of Taxes, 46 How. Pr. (N. Y.) 315; State Tax on Foreign-held Bonds, 15 Wall. 300; nor to the taxation of negotiable choses in action. ''State Tax on Foreign-held Bonds Case, supra; British Com. Life Ins. Co. v. Commissioners of Taxes, 31 N. Y. 32; State of Missouri v. St. Louis County'', 47 Mo. 594; People v. ''Home Ins. Co., 29 Cal. 533; Attorney-General v. Bowens'', 4 Mee. & W. 172. It does not apply to non-negotiable choses in action, in cases of administration of the assets of a deceased person, Beers v. Shannon, 73 N. Y. 292; Noonan v. Bradley, 9 Wall. 405; see Journal du Palais, Cour de Cassation, Aug. 27, 1850 (1851, p. 205); nor in cases of confiscation, Miller v. United States, 11 Wall. 268; Brown v. Kennedy, 15 id. 591; 3 Phillimore, International Law, sect. 567, p. 688; nor in cases of foreign bankruptcy, Ogden v. Saunders, 12 Wheat. 358; Harrison v. Stenny, 5 Cranch, 289, nor in cases of attachment. It has no proper application to non-negotiable choses in action in cases of taxation. Attorney-General v. Dimond, 1 Cromp. & J. 356; Attorney-General v. Hope, 8 Bli. N. S. 44; Burchese, Operations de la Bourse, Paris, 1877, pp. 248, 861; Tappan v. Merchants' National Bank, 19 Wall. 490; Fisher v. Commissioners of Bush County, 19 Kan. 414; Varner v. Calhoun, 48 Ala. 178; Bridges v. Mayor, 33 Ga. 113.

The tax in question does not fall upon a 'person,' because it is not a poll-tax. A tax upon a person, with reference to his property, falls upon the property. Bank of Commerce v. New York City, 2 Black, 620; Bank Tax Case, 2 Wall. 200. It is not a tax upon property situated in Connecticut. 1. The money lent by the plaintiff in error belongs to his debtor. Railway Company v. Jackson, 7 Wall. 263. See 42 Conn. 438. 2. The bonds have always been in Illinois, and cannot be taxed by Connecticut. Hoyt v. Commissioners, 23 N. Y. 224; State Tax on Foreign-held Bonds, supra. 3. That debts evidenced by the bonds are not valuable independent of the debtor's property, which can be taxed only in Illinois, where it is situated. 4. The rights of the plaintiff in error, evidenced by his bonds, are protected only by Illinois, and hence cannot be taxed by Connecticut. Tappan v. ''Merchants' Nat. Bank'', 19 Wall. 440; Catlin v. Hall, 21 Vt. 122; Fisher v. Commissioners of Bush Co., 19 Kan. 414; Bridges v. Mayor, 33 Ga. 113; People v. Gardiner, 51 Barb. (N. Y.) 352; Varner v. Calhoun, 48 Ala. 178. It really falls on acts of business performed and to be performed in Illinois, of which the bonds are the record and the evidence. Wolsey's Political Science, vol. i. p. 75. Those acts of business have an exclusive situs for taxation in Illinois, whose jurisdiction alone protects them.

IV. They are repugnant to the exclusive sovereignty of Illinois over property and acts of business within her borders, and hence are void under the provisions of the Constitution of the United States. 1. The laws of Connecticut should not be allowed to affect property and business whose situs is in Illinois. The power of Illinois to tax money within her limits, or an act of loaning and borrowing money there, must, under our form of government, exclude the power of another State from taxing Illinois money, or an act of loaning and borrowing in Illinois. Mager v. Grima et al., 8 How. 490; Story's Confl. of Laws, p. 257; The Appolon, 9 Wheat. 370; Ogden v. Saunders, 12 id. 213; Hervey v. Locomotive Works, 93 U.S. 664; Pennoyer v. Neff, 95 id. 722; Guillander v. Howell, 35 N. Y. 657; Lamb v. Bowser, 7 Biss. 315; Desmazes v. ''Mutual Ben. Life Ins. Co.'', 7 Ins. L. J. 927; Baldwin v. Hale, 1 Wall. 223; Green v. Collins, 3 Cliff. 494; D'Arcy v. Ketchum, 11 How, 73; Whitcomb v. ''Phoenix Ins. Co.'', 8 Ins. L. J. 624. 2. No express provision of the United States Constitution is necessary, if its spirit sustains a prohibition upon the interference of one State with the sovereignty of another. Ward v. Maryland, 12 Wall. 427; McCullough v. Maryland, 4 Wheat. 416; Crandall v. State of Nevada, 6 Wall. 35; Passenger Tax Cases, 7 How. 283; Weston v. City of Charleston, 2 Pet. 462. 3. The tax laws of Illinois are, and those of Connecticut are not, a part of the contracts evidenced by plaintiff's bonds. Taxation of them by Connecticut lays a greater burden upon the contracts than Illinois has declared they shall bear. The statutes in question fail to give 'full faith and credit' to the 'public acts' of Illinois. Const. U.S., art. 4, sect. 1; Edwards v. Kearey, 96 U.S. 595; Walker v. Whitehead, 16 Wall. 314.

V. They impair the obligation of the plaintiff's contract, and deprive him of a portion of its fruits. Such an impairment is forbidden by the Constitution of the United States. Walker v. Whitehead, 16 Wall. 314; Planters' Bank v. Sharp, 6 How. 301.

VI. They deprive the plaintiff in error of his property without due process of law. [[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]], Const. U.S. 1. The advertisement of sale by the defendant in error of plaintiff's land is the first step of a 'taking' of his land. 2. Such advertisement was without 'due process of law,' because the statutes conferring the power to advertise being unconstitutional conferred no jurisdiction upon any person to tax or to sell the land. There can be no 'due process of law,' even in attempted taxation, without jurisdiction of the subject of taxation, and such jurisdiction does not exist in the absence of protection of that subject by the taxing power. United States v. Rice, 4 Wheat. 246; Wicks v. Dinyee, 7 Cranch, 481; St. Louis v. Ferry Co., 11 Wall. 430; State Tax on Foreign-held Bonds, supra; Tappan v. Merchants' Bank, 19 id. 490; Railroad Tax, 18 id. 229; Loan Association v. Topeka, 20 id. 655. An arbitrary execution on a subject not within the jurisdiction of a State is not taxation but confiscation.

VII. They violate sect. 2, art. 4, of the Constitution of the United States, which declares that 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.' See art. 4 of Articles of Confederation; Slaughter-House Cases, 16 Wall. 75. The business of loaning money is thus guaranteed to a citizen of another State upon the same footing as to taxation with the citizens of the State within which the business is carried on. Corfield v. Corzell, 4 Wash. 371; Paul v. Virginia, 8 Wall. 168; Williams v. Bruffy, 96 U.S. 176; Ward v. Maryland, 12 Wall. 430; Bradwell v. State, 16 id. 130; Crandall v. State of Nevada, 6 id. 35.

Mr. Morris W. Seymour, contra.

MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

title: Kirtland v. Hotchkiss


text: Talk:Kirtland v. Hotchkiss

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

title: Talk:Kirtland v. Hotchkiss


text:
Kirtland v. Hotchkiss/Opinion of the Court

We will not follow the interesting argument of counsel by entering upon an extended discussion of the principles upon which the power of taxation rests under our system of constitutional government. Nor is it at all necessary that we should now attempt to state all limitations which exist upon the exercise of that power, whether they arise from the essential principles of free government or from express constitutional provisions. We restrict our remarks to a single question, the precise import of which will appear from the preceding statement of the more important facts of this case.

In McCulloch v. State of Maryland (4 Wheat. 428), this court considered very fully the nature and extent of the original right of taxation which remained with the States after the adoption of the Federal Constitution. It was there said 'that the power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable to the utmost extent to which the government may choose to carry it.' Tracing the right of taxation to the source from which it was derived, the court further said: 'It is obvious that it is an incident of sovereignty, and is coextensive with that to which it is an incident. All subjects over which the sovereign power of a State extends are objects of taxation, but those over which it does not extend are, upon the soundest principles, exempt from taxation.'

'This vital power,' said this court in Providence Bank v. Billings (4 Pet. 563), 'may be abused; but the Constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the State governments. The interest, wisdom, and justice of the representative body, and its relations with its constituents, furnish the only security, when there is no express contract, against unjust and excessive taxation, as well as against unwise legislation.'

In St. Louis v. The Ferry Company (11 Wall. 423), and in State Tax on Foreign-held Bonds (15 id 300), the language of the court was equally emphatic.

In the last-named case we said that, 'unless restrained by provisions of the Federal Constitution, the power of the State as to the mode, form, and extent of taxation is unlimited, where the subjects to which it applies are within her jurisdiction.'

We perceive no reason to modify the principles announced in these cases or to question their soundness. They are fundamental and vital in the relations which, under the Constitution, exist between the United States and the several States. Upon their strict observance depends, in no small degree, the harmonious and successful working of our complex system of government, Federal and State. It may, therefore, be regarded as the established doctrine of this court, that so long as the State, by its laws, prescribing the mode and subjects of taxation, does not entrench upon the legitimate authority of the Union, or violate any right recognized, or secured, by the Constitution of the United States, this court, as between the State and its citizen, can afford him no relief against State taxation, however unjust, oppressive, or onerous.

Plainly, therefore, our only duty is to inquire whether the Constitution prohibits a State from taxing, in the hands of one of its resident citizens, a debt held by him upon a resident of another State, and evidenced by the bond of the debtor, secured by deed of trust or mortgage upon real estate situated in the State in which the debtor resides.

The question does not seem to us to be very difficult of solution. The creditor, it is conceded, is a permanent resident within the jurisdiction of the State imposing the tax. The debt is property in his hands constituting a portion of his wealth, from which he is under the highest obligation, in common with his fellow-citizens of the same State, to contribute for the support of the government whose protection he enjoys.

That debt, although a species of intangible property, may, for purposes of taxation, if not for all others, be regarded as situated at the domicile of the creditor. It is none the less property because its amount and maturity are set forth in a bond. That bond, wherever actually held or deposited, is only evidence of the debt, and if destroyed, the debt-the right to demand payment of the money loaned, with the stipulated interest-remains. Nor is the debt, for the purposes of taxation, affected by the fact that it is secured by mortgage upon real estate situated in Illinois. The mortgage is but a security for the debt, and, as held in State Tax on Foreignheld Bonds (supra), the right of the creditor 'to proceed against the property mortgaged, upon a given contingency, to enforce by its sale the payment of his demand,. . . has no locality independent of the party in whom it resides. It may undoubtedly be taxed by the State when held by a resident therein,' &c. Cooley on Taxation, 15, 63, 134, 270. The debt, then, having its situs at the creditor's residence, both he and it are, for the purposes of taxation, within the jurisdiction of the State. It is, consequently, for the State to determine, consistently with its own fundamental law, whether such property owned by one of its residents shall contribute, by way of taxation, to maintain its government. Its discretion in that regard cannot be supervised or controlled by any department of the Federal government, for the reason, too obvious to require argument in its support, that such taxation violates no provision of the Federal Constitution. Manifestly it does not, as is supposed by counsel, interfere in any true sense with the exercise by Congress of the power to regulate commerce among the several States. Nathan v. Lousiana, 8 How. 73; Cooley on Taxation, 62. Nor does it, as is further supposed, abridge the privileges or immunities of citizens of the United States, or deprive the citizen of life, liberty, or property without due process of law, or violate the constitutional guaranty that the citizens of each State shall be entitled to all privileges of citizens in the several States.

Whether the State of Connecticut shall measure the contribution which persons resident within its jurisdiction shall make by way of taxes, in return for the protection it affords them, by the value of the credits, choses in action, bonds, or stocks which they may own (other than such as are exempted or protected from taxation under the Constitution and laws of the United States), is a matter which concerns only the people of that State, with which the Federal government cannot rightly interfere.


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United States Code/Title 42/Chapter 85/Section 7426

§ 7426. Interstate pollution abatement CAA § 126

(a) Written notice to all nearby States
Each applicable implementation plan shall—
 * (1) require each major proposed new (or modified) source—
 * (A) subject to part C of this subchapter (relating to significant deterioration of air quality) or
 * (B) which may significantly contribute to levels of air pollution in excess of the national ambient air quality standards in any air quality control region outside the State in which such source intends to locate (or make such modification),
 * to provide written notice to all nearby States the air pollution levels of which may be affected by such source at least sixty days prior to the date on which commencement of construction is to be permitted by the State providing notice, and
 * (2) identify all major existing stationary sources which may have the impact described in paragraph (1) with respect to new or modified sources and provide notice to all nearby States of the identity of such sources not later than three months after August 7, 1977.

(b) Petition for finding that major sources emit or would emit prohibited air pollutants
Any State or political subdivision may petition the Administrator for a finding that any major source or group of stationary sources emits or would emit any air pollutant in violation of the prohibition of section 7410 (a)(2)(D)(ii) of this title or this section. Within 60 days after receipt of any petition under this subsection and after public hearing, the Administrator shall make such a finding or deny the petition.

(c) Violations; allowable continued operation
Notwithstanding any permit which may have been granted by the State in which the source is located (or intends to locate), it shall be a violation of this section and the applicable implementation plan in such State—
 * (1) for any major proposed new (or modified) source with respect to which a finding has been made under subsection (b) of this section to be constructed or to operate in violation of the prohibition of section 7410 (a)(2)(D)(ii) of this title or this section, or
 * (2) for any major existing source to operate more than three months after such finding has been made with respect to it.

The Administrator may permit the continued operation of a source referred to in paragraph (2) beyond the expiration of such three-month period if such source complies with such emission limitations and compliance schedules (containing increments of progress) as may be provided by the Administrator to bring about compliance with the requirements contained in section 7410 (a)(2)(D)(ii) of this title or this section as expeditiously as practicable, but in no case later than three years after the date of such finding. Nothing in the preceding sentence shall be construed to preclude any such source from being eligible for an enforcement order under section 7413 (d) of this title after the expiration of such period during which the Administrator has permitted continuous operation.


text: Talk:Kirtland v. Hotchkiss/Opinion of the Court


text:
Parish v. United States (100 U.S. 500)

APPEAL from the Court of Claims.

The facts are stated in the opinion of the court.

Mr. John B. Sanborn and Mr. Ralph P. Lowe for the appellant.

The Solicitor-General, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Parish v. United States (100 U.S. 500)


text: Talk:Parish v. United States (100 U.S. 500)


text:
Parish v. United States (100 U.S. 500)/Opinion of the Court

This action was commenced in the Court of Claims, under an act of Congress specially authorizing it, approved May 31, 1872.

There is nothing in the act which furnishes any rule for its decision, though some of its provisions are emphasized in the argument of counsel. The action was brought on the following contract:--

'Article of agreement made this fifth day of March, 1863, between Henry Johnson, medical store-keeper, United States army, and acting medical purveyor, Washington, D. C., on the one part, and Joseph W. Parish and William L. Huse, comprising the firm of Joseph W. Parish & Co., of the city of St. Louis, State of Missouri, of the other part, witnesseth:--

'That the said Henry Johnson, medical store-keeper United States army, for and on behalf of the United States of America, and the said Joseph W. Parish and William L. Huse, comprising the firm of J. W. Parish & Co., for themselves, their heirs, executors, and administrators, have mutually agreed, and by these presents do mutually covenant and agree, to and with each other, in the manner following, viz.:--

'First, That said J. W. Parish & Co. shall deliver at Memphis, Tennessee; Nashville, Tennessee; St. Louis, Missouri; and Cario, Illinois, the whole amount of ice required to be consumed at each respective point and vicinity during the remainder of the year 1863. Ice to be in quality A No. 1, and delivered at two thousand (2,000) pounds to the ton.

'Second, That for each and every ton of ice delivered at Nashville, Tennessee, and accepted by the medical officer in charge, the said J. W. Parish & Co. shall receive the sum of twenty-five dollars ($25).

'Third, That for each and every ton of ice delivered at St. Louis, Missouri, and accepted by the medical officer in charge, the said J. W. Parish & Co. shall receive the sum of sixteen dollars ($16).

'Fourth, That for each and every ton of ice delivered at Cario, Illinois, and accepted by the medical officer in charge, the said J. W. Parish & Co. shall receive the sum of twenty dollars ($20).

'Fifth, That for each and every ton of ice delivered at Memphis, Tennessee, and accepted by the medical officer in charge, the said J. W. Parish & Co. shall receive the sum of twenty dollars ($20).

'Sixth, All the ice delivered under this contract to be subjected to the inspection and approval of the medical officer in charge of the post where it is delivered, and such as does not conform to the specifications set forth in this contract shall be rejected.

'Seventh, That payments shall be made from time to time on receipted bills of lading and duplicate accounts certified to by the medical officer in charge of the post where it is delivered.

'Eighth, No member of Congress shall be admitted to any share herein or any benefit to arise therefrom.

'Ninth, It is further agreed that the said J. W. Parish & Co. will allow three (3) working days for discharging each cargo at either one of the points before mentioned; after that time demurrage to be allowed by the said Henry Johnson, medical store-keeper, United States army, as per charter-party or bill of lading of the vessel.

'In witness whereof, the undersigned have hereunto placed their hands and seals the day and date above written.

[SEAL.] 'HENRY JOHNSON,

'''Med. Store-keeper U.S. A. Acting Med. Purveyor''.

'J. W. PARISH & CO.'

Under this contract, there was delivered and paid for by the government, at the stipulated prices, 12,768 tons of ice, about which there is no dispute.

The controversy grows out of the following correspondence and the acts of parties under it:--

'ASSISTANT SURGEON-GENERAL'S OFFICE,

'ST. LOUIS, MISSOURI, March 25, 1863.

'Messrs. J. W. PARISH & CO.:

'GENTLEMEN,-I am instructed by the Assistant Surgeon-General to direct that the ice which you have agreed to deliver at the points designated in your contract shall be distributed in the following quantities, viz.:--

'At St. Louis 5,000 tons,

'At Cario 5,000 tons,

'At Memphis 10,000 tons,

'At Nashville 10,000 tons,

making the total of 30,000 which you have contracted to deliver. The ice to be delivered at Nashville and Memphis is for the use of the sick of the armies in the field, and should be furnished without delay.

'Very respectfully, your ob't servant,

'By order of the Assistant Surgeon-General:

(Sig.) 'JOSEPH B. BROWN,

'Surgeon United States Army.'

A copy of this order being received at the Surgeon-General's office, the following telegram and letter were sent to Assistant Surgeon-General Wood:--

'SURGEON-GENERAL'S OFFICE,

'March 31, 1863.

'Parish & Co. have not contracted for 30,000 tons of ice. Suspend the order you gave him.

(Sig.) 'W. A. HAMMOND, Surgeon-General

'Col. R. C. WOOD, Asst. Surgeon-General U.S. Army, St.     Louis.'

'SURGEON-GENERAL'S OFFICE,

'WASHINGTON, D. C., March 31, 1863.

'SIR,-Your communication of the 25th instant to J. W. Parish & Co., in regard to the quantities of ice to be delivered at the different points for which they contract, forwarded to this office for the information of the Surgeon-General, has been received.

'I am instructed to inform you that the contract with Parish & Co. was made for such quantities as might be needed; and that the ice should be ordered from them, from time to time, to different points, in lots of a few hundred tons, as needed.

'Very respectfully, your obedient servant,

'C. H. ALDEN, Assistant Surgeon, U.S. A.

'Col. R. C. WOOD, Assistant Surgeon-General, St. Louis, Mo.'

'ASSISTANT SURGEON-GENERAL'S OFFICE,

'ST. LOUIS, MISSOURI, March 31, 1863.

'TO J. W. PARISH & CO. (Care C. H. WICKER & CO.),

'Chicago, Ill.:

'I am instructed by the Surgeon-General to suspend the order I have given you till further instructions are given from him.

(Sig.) 'R. C. WOOD, Asst. Surgeon-General.'

In the finding of facts by the Court of Claims, it is said that it does not appear that this last despatch was received by the claimants, though they had knowledge of the notice by oral information from the Assistant Surgeon-General at St. Louis, on the second day of April.

The sixth finding of fact by the Court of Claims, which is also important, is thus stated:--

'Prior to the delivery to the said Parish of Joseph B. Brown's letter of March 25, 1863, set forth in finding V, the said Parish had purchased for delivery under the contract sued on 8,100 tons of ice; and after the delivery of said letter to him, he set about purchasing ice for delivery in pursuance of said letter; and thereafter, and before he was, on the second day of April, 1863, apprised of the aforesaid order of Surgeon-General Hammond, of March 31, he had purchased or contracted for the purchase of 23,000 tons of ice.'

If we add to this that 10,000 tons of this latter purchase was made at Lake Pipin, on the upper Mississippi River, which was stored there at the time and which became a total loss, and that the order of the Surgeon-General suspending the order of the Assistant Surgeon-General remained in that condition and has never been revoked or modified, we have the main elements on which the case was decided in the court below by dismissing the claimants' petition.

The petitioners claim to recover the contract price of the entire 30,000 tons, after deducting what they have been paid and the reasonable cost of delivering the ice not received by the government.

The opinion of the Court of Claims found in the record bases the dismissal of the petition on the ground that the Assistant Surgeon-General, in making the order on claimants for the 30,000 tons of ice, was acting so wholly without authority, that Parish & Co. had no right to treat it as of any validity or as one which they were bound to regard. In the argument of the case before us, the counsel for government abandons this view of the matter, and, we think, very properly. We apprehend if the case were reversed, and the United States were suing for damages incurred by a refusal of the contractors to conform to this order, the amount specified being needed and not forthcoming, there would be no question of the validity of the notice of the Assistant Surgeon-General.

The office of Surgeon-General is one of the distinct or separate bureaus of the administrative service of the War Department. It has been found, in regard to many of these bureaus, and even to the heads of departments, that it is impossible for a single individual to perform in person all the duties imposed on him by his office. Hence statutes have been made creating the office of assistant secretaries for all the heads of departments.

It would be a very singular doctrine, and subversive of the purposes for which these latter offices were created, if their acts are to be held of no force until ratified by the principal secretary or head of department. It was to relieve the over-burdened principal of some part of those duties that the office of assistant was created. In the immense increase of business in the office of Surgeon-General during the war, similar relief was found necessary, and the office of Assistant Surgeon-General was created.

For the very reason that the prompt exercise of the powers of the bureau was essential in the field of operations of the army, the assistant in this case was located at St. Louis, over a thousand miles from the city of Washington. He was appointed for the purpose of exercising, at that place, the functions of the office of Surgeon-General. He was by law the Assistant Surgeon-General. If no virtue attached to his acts until approved by the Surgeon-General in Washington, any inferior clerk would have answered the purpose as well. It is not intended to deny that he was subordinate to the chief of his bureau; could be ordered to do or not to do particular things; and when an order made by him was disapproved, it might be revoked by that officer. But until so revoked or disapproved it was valid, and parties required to act under it had a right to rely on it.

The order of the 25th of March, made within twenty days after the contract was signed, was an unequivocal demand, under that instrument, that the amount of 30,000 tons, part of an unlimited quantity which might have been required of the contractor, should be delivered as therein directed. No one familiar with the climate and the sources of supply could doubt that, to enable him to fulfil this demand, made at that season, required promptitude and diligence in securing the ice. If claimants had failed to have the amount thus demanded ready for use when required, the officers of the government would have procured it at any price in the market, a price which would have been enormously enhanced by this very demand, and the claimants would have been liable for the difference between what the government paid under these circumstances and the price fixed in the agreement. They were therefore under an imperative necessity to prepare to fulfil this requirement.

Impelled by this necessity, the Court of Claims finds that between the time they received the order and the second day of April, when they first learned of its suspension by the Surgeon-General, they purchased over 23,000 tons of ice. They were then informed, not that the order was revoked, but that it was suspended. It never was revoked. It remained suspended until the time during which the entire delivery was to be made was passed; and during that time 10,000 tons of the ice melted away at Lake Pepin, and was a total loss. As we have already stated, 12,768 tons were delivered and paid for; 10,000 tons perished by melting. What became of the 7,232 tons, neither received by the government nor lost at Lake Pepin, is not disclosed by the record, nor whether claimants made by selling it to others or lost by it, in that or any other way.

What are the rights of the parties under these circumstances?

If claimants intended to treat the matter as a completed contract to deliver 5,000 tons at St. Louis, 5,000 at Cario, 10,000 at Memphis, and 10,000 at Nashville, after the order of Brown, and to hold the government to the contract price for all those amounts, they should have delivered, or tendered, or offered to deliver, and demanded payment.

If the order had been revoked instead of suspended, and they intended to deny the right of the government to revoke it, they must clearly have offered a delivery to make the government liable. Had they offered to deliver, and been in condition to deliver, or, to use the old forms of declaration, if they had shown that they were ready and willing to deliver after such revocation, it would still remain a question as to the measure of damages, or rather, whether the government did not have a right to countermand the order and pay for what it actually received, and the necessary loss of claimants from the change of the order.

In point of fact, the order was never revoked but suspended, so that the claimants could not tell whether it would be revoked or revived, and they never made, or offered to make, delivery of the amount demanded by that order. The government did require, accept, and pay for part of it. The balance was never delivered or tendered.

Without elaborating the matter, we are of opinion that, as the claimants neither delivered or offered to deliver the remainder, they cannot recover either the contract price or the profits they might have made if they had done so. And as the government left the demand suspended, so that while claimants were compelled to purchase under the original order, and could not safely dispose of it while it remained unrevoked, they are entitled to recover what they paid for the ice that was lost, and what expense they were at in making the purchase and in keeping it until it was lost. So if they lost any thing on the other ice not purchased at Lake Pepin, but purchased before they learned of the order of suspension, they should recover that.

Bulkley v. United States (19 Wall. 37) is an analogous case. Bulkley had contracted to do all the transportation of supplies from Fort Leavenworth to army posts further west which might be required of him by the government. He was notified that 1,700,000 pounds would be needed, and made large preparations to meet this requirement. The United States did not need half this amount, and the freight was not delivered to him. He claimed the profits which he would have made by the terms of the contract if the freight had been delivered and carried. This court said he could not recover profits, but that, 'in making ready to meet the requirements of the notice, he was subjected to the loss of time, to trouble and expense. He is entitled to be paid accordingly.'

We think the case before us comes within that principle. Claimants are entitled to the expenses and losses incident to the preparation to meet the demand of the notice served on them. The cost of the ice purchased at Lake Pepin and lost, the expense bestowed upon its care, and the time and expense of making that purchase, and any sum actually lost in regard to the other 7,232 tons of ice purchased to enable them to meet that requirement, must form the measure of plaintiffs' recovery. Because these are not found by the Court of Claims, the judgment of that court will be reversed and the case remanded, that their damages may be ascertained and judgment rendered accordingly; and it is

So ordered.


text: Talk:Parish v. United States (100 U.S. 500)/Opinion of the Court


text:
United States v. Bowen

APPEAL from the Court of Claims.

Charles Bowen filed in the court below his petition alleging that the United States unlawfully withheld from him $270, being the amount due him from Sept. 13, 1876, when he was admitted as an inmate of the 'Soldiers' Home,' to Dec. 4, 1877, upon his pension theretofore granted, by reason of a wound received by him in the military service of the United States.

That court found the following facts:--

1. The claimant was a private in Company B, Third Regiment United States Infantry, from the 9th of March, 1861, to the 9th of March, 1864, and during that time, under the provisions of sect. 7 of the act of March 3, 1859 (11 Stat. 434), there was deducted from his pay the sum of $4.57.

2. An invalid pension was granted to him March 13, 1865, at $8 per month, commencing March 9, 1864, by certificate No. 39,050; the monthly rate of such pension was increased from $8 to $15, Jan. 21, 1867, to commence June 6, 1866; and from $15 to $18, July 8, 1876, to commence June 4, 1872.

3. On the 13th of September, 1876, he was admitted as an inmate of the Soldiers' Home, and his pension from that date to the 4th of December, 1877, to wit, the sum of $264.60, was regularly paid to the treasurer of that institution.

The court found as a conclusion of law that the claimant should recover the sum of $264.60. Judgment in his favor having been rendered therefor, the United States appealed.

The fifth section of the act entitled 'An Act to found a military asylum for the relief and support of invalid and disabled soldiers of the army of the United States,' approved March 3, 1851 (9 Stat. 595), provides 'that any pensioner on account of wounds or disability incurred in the military service, although he may not have contributed to the funds of the institution, shall be entitled to all the benefits herein provided, upon transferring his pension to said asylum for and during the period that he may voluntarily continue to receive such benefits.'

The act of March 3, 1859, making appropriations for the support of the army for the year ending June 30, 1860 (11 id. 431), changes the name of the institution to 'Soldiers' Home,' and the sixth section declares that 'all pensioners, on account of wounds or disability incurred in the military service, shall transfer and surrender their pensions to the institution, for and during the time they may remain therein, and voluntarily continue to receive its benefits.'

Sect. 4820 of the Revised Statutes provides that 'the fact that one to whom a pension has been granted for wounds or disability received in the military service, has not contributed to the funds of the Soldiers' Home, shall not preclude him from admission thereto; but all such pensioners shall surrender their pensions to the Soldiers' Home during the time they remain therein and voluntarily receive its benefits.'

The Attorney-General for the United States.

The whole controversy arises from interpolating in the Revised Statutes 'such' between 'all' and 'pensioners,' where the latter words occur in the sixth section of the act of March 3, 1859; and its determination depends upon the answer to the inquiry, Did the revision of the statutes repeal the law requiring an inmate of the Soldiers' Home, who had contributed twelve and a half cents per month during his service, to transfer his pension to the institution, or did Congress merely intend to incorporate in them the then existing law?

The appellee contends that 'such' works so manifest a change in the antecedent law, that the declared intent of the revision, namely, to 'revise and consolidate the statutes in force on the 1st of December, 1873,' is not to be regarded, and that it is not of any importance what had been the settled law by clear expressions in the statutes for fourteen previous years. The appellant submits that these considerations, together with the otherwise rigid adherence in the chapter of the Revised Statutes entitled the 'Soldiers' Home,' to the language, chronology, and provisions of the antecedent law, demonstrate that the revisers only attempted to collate, and that Congress did not mean to change, the law as it stood at that date.

Spencer, J., in Taylor v. Delancy, 2 Cai. (N. Y.) Cas. 149, discussing the revision of 1801, lays down the following rule: 'Where the law antecedently to the revision was settled, either by clear expressions in the statutes, or adjudications on them, the mere change of phraseology shall not be deemed or construed a change of the law, unless such phraseology evidently purports an intention in the legislature to work a change.'

This rule was approved and adopted by Kent, himself one of the revisers of 1801, in Yates's Case (4 Johns. (N. Y.) 317, 359); and it has received the indorsement of all the courts which have considered the question. Burnham v. Stevens, 33 N. H. 247; Ash v. Ash, 9 Ohio St. 383; Conger v. Barker, 11 id. 1; Croswell v. Crane, 7 Barb. (N. Y.) 191; Ennis v. Crump, 6 Tex. 34; Dominick v. Michael, 4 Sandf. (N. Y.) 374; Goodell v. Jackson, 20 Johns. (N. Y.) 722; Theriat v. Hart, 2 Hill (N. Y.), 380; Hoffman v. Delihanty, 13 Abb. (N. Y.) Pr. 388; In re Brown, 21 Wend. (N. Y.) 316; Allen v. Ramsey, 6 Metc. (Mass.) 635.

It was competent, therefore, for the appellant to examine the prior statutes, to determine whether a radical change in them was intended by Congress by the insertion of the word in question.

''Mr. Matt. H. Carpenter, contra''.

The chapter of the Revised Statutes, entitled 'The Soldiers' Home,' in which sect. 4820 is found, was evidently intended as the only provision to regulate and govern that institution, and to repeal all existing laws relating thereto. Covering their whole subject, and embracing all that was intended to be preserved of them, it becomes a complete law in itself, providing every thing necessary to the perfect management and discipline of the 'Soldiers' Home.' Such is the natural inference from its general character and particular provisions, and it leaves no room for doubt as to the intention of its framers. It therefore repeals all former statutes on the same subject. Ellis v. Page, 1 Pick. (Mass.) 45; Smith, Comm. on Stat. Constr., sects. 785, 786; Boucicault v. Hart, 13 Blatch. 52; Holmes v. Wiltz, 11 La. Ann. 446; United States v. Hammond, 2 Woods, 203; Jones v. Smart, 1 Tenn. 44.

That section is expressed in clear, concise, and intelligible language, leaving nothing for interpretation or conjecture, and the construction for which the appellee contends has been uniformly given to it by the Commissioner of Pensions, who is charged with the duty of executing its provisions. His interpretation, to use the language of the court in United States v. Moore (95 U.S. 760), is 'entitled to the most respectful consideration, and ought not to be overruled without the most cogent reasons.'

It is unnecessary, however, to contend that the prior statutes are repealed by implication, for sect. 5596 repeals them in express terms. It declares, that 'all acts of Congress passed prior to said first day of December, one thousand eight hundred and seventy-three, any portion of which is embraced in any section of said revision, are hereby repealed, and the sections applicable thereto shall be in force in lieu thereof.'

MR. JUSTICE MILLER delivered the opinion of the court.

title: United States v. Bowen


text: Talk:United States v. Bowen

title: Talk:United States v. Bowen


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

This is an appeal from a judgment of the Court of Claims in favor of appellee for $264.60, for pension money withheld by the government.

The action of the government officers in that respect was founded on their opinion that Bowen, who was cared for in the Soldiers' Home, belonged to the class who, by sect. 4820 of the revision, surrendered their pensions while inmates of the home. That section enacts that 'the fact that one to whom a pension has been granted for wounds or disability received in the military service has not contributed to the funds of the Soldiers' Home, shall not preclude him from admission thereto. But all such pensioners shall surrender their pensions to the Soldiers' Home during the time they remain there and voluntarily receive its benefits.'Bowen was the recipient of an invalid pension but he had contributed to the funds of the Soldiers' Home, and the single question in the case is whether that fact withdraws him from the clause which requires pensioners to surrender their pensions to the home while inmates of it.

If the qualifying word such is restricted to pensioners described in the sentence which immediately precedes it, then Bowen does not belong to that class, and is not bound to surrender his pension. There is no other class of pensioners described in that section to whom the word such can refer than those who have not contributed to the funds of the home, and Bowen does not belong to that class. The history of the institution affords good reason for that interpretation. The Soldiers' Home was bought and built, and is supported now very largely, by money deducted from the monthly pay of the soldiers of the regular army. But there is a class of persons who have received wounds in the military service, or incurred ill health while in such service, from whose pay no deduction was made as a contribution to the home, who received pensions as invalids, and, by virtue of this section, are entitled to be cared for at that place. There is a manifest propriety in a rule which requires of this class that, when supported out of the fund to which they did not contribute, their pensions should go to increase that fund; while those who have been giving of their monthly pay for years should receive its benefits when they come to need them, without giving also the pension which is the bounty of a grateful government. There is no antecedent use of the word 'pensioners' in the chapter of which sect. 4820 is a part, and which embraces the legislation of Congress concerning the Soldiers' Home, to which the word such can refer, but the immediately preceding sentence in the same section. If the construction claimed by counsel for the government be correct, that word is useless, for it would express the idea with precision by reading, 'But all pensioners shall surrender their pensions to the Soldiers' Home during the time they remain therein and voluntarily receive its benefits.' The question, therefore, is whether we shall read the section 'all pensioners' or 'all such pensioners.'The word, however, as there used, has an appropriate reference to the class of pensioners who have not contributed to the funds of the institution, and no sound canon of construction will authorize us to disregard it, when to do so changes very materially the meaning of the section.

It is urged in opposition to this view that as the law stood prior to the revision, as shown by the act of March 3, 1859 (11 Stat. 431), all invalid pensioners who accepted the benefit of the home were bound to surrender to its use their pensions while there; and it must be conceded that such was the law.

But, as the revision embraces that act as well as all others on the subject, it is, by the express language of the repealing clause, sect. 5596, no longer in force. Counsel for government, admitting that it is no longer in force, independently of the section of the revision which we are called on to construe, insist that a resort may be had to the law which was the subject of revision, to interpret any thing left in doubt by the language of the revisers.

This principle is undoubtedly sound; and, where there is a substantial doubt as to the meaning of the language used in the revision, the old law is a valuable source of information. The Revised Statutes must be treated as the legislative declaration of the statute law on the subjects which they embrace on the first day of December, 1873. When the meaning is plain, the courts cannot look to the statutes which have been revised to see if Congress erred in that revision, but may do so when necessary to construe doubtful language used in expressing the meaning of Congress. If, then, in the case before us, the language of sect. 4820 was fairly susceptible of the construction claimed by the government, as well as of the opposite one, the argument from the provision of the statute as it stood before the revision would be conclusive. But, for the reasons already given, we are of opinion that the reasonable force of the language used in that section, taken in connection with the whole of the chapter devoted to that subject, and the accepted canons of interpretation, leave room for no other construction than that only invalid pensioners who had not contributed to the funds of the Soldiers' Home were bound to purchase its benefits by surrendering to it their pensions.

As the Court of Claims acted on this construction, its judgment is

Affirmed.


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


text: Mount Pleasant v. Beckwith

title: Mount Pleasant v. Beckwith


text: Talk:Mount Pleasant v. Beckwith

title: Talk:Mount Pleasant v. Beckwith


text:
Mount Pleasant v. Beckwith/Opinion of the Court

APPEAL from the Circuit Court of the United States for the Eastern District of Wisconsin.

In 1873, Charles Beckwith filed his bill in the court below, against the town of Mount Pleasant, the town of Caledonia, and the city of Racine, in Racine County, Wisconsin, to enforce the payment of certain bonds issued in the year 1853, by the town of Racine in said county, in payment of stock for which it subscribed in the Racine, Janesville, and Mississippi Railroad Company.

The legislature of the Territory of Wisconsin, by an act approved Jan. 2, 1838, among other things, established the towns of Racine and Mount Pleasant, and defined their boundaries; and by an act approved Feb. 7, 1842, created and established the town of Caledonia, and defined its boundaries and those of Racine and Mount Pleasant.

The legislature of the State of Wisconsin, by an act approved Aug. 8, 1848, incorporated the city of Racine and defined its boundaries.

By an act approved April 2, 1853, the town of Racine was authorized and empowered to subscribe to the capital stock of the Racine, Janesville, and Mississippi Railroad Company, to the amount of $50,000, and to pay therefor in the bonds of the town, payable within twenty years, in the manner prescribed by said act; and on or about Dec. 6, 1853, it subscribed for and took $50,000 dollars of said stock, and issued its bonds accordingly.

In 1856, the legislature changed the boundaries of the towns of Mount Pleasant and Racine, and, in 1857, changed and defined those of the towns of Racine, Caledonia, and Mount Pleasant.

The board of supervisors of Racine County, Dec. 2, 1859, changed the name of the town of Racine to Orwell.

The legislature, by an act approved March 30, 1860, vacated Orwell, and attached its territory to Caledonia and Mount Pleasant, and, by an act approved March 17, 1871, took from the latter a portion of such territory and added it to the city of Racine.

On March 30, 1860, the value of property of individuals within the jurisdiction of the town of Orwell was:--

There came within the jurisdiction of the town of Caledonia of this property:--

Personal property of the value of 15,167.

And within the jurisdiction of Mount Pleasant:--

Personal property of the value of 22,757.

In 1874, the value of property in the town of Caledonia, which was on that part of its territory attached in 1860, was:--

And the value of property within Mount Pleasant on that part of its territory attached in 1860 from Orwell was:--

Personal property 35,470.00And within the limits of the city of Racine on that part of its territory attached in 1871:--

Neither Mount Pleasant nor Caledonia by any corporate act moved the legislature of Wisconsin for the passage of any of the laws changing any of the territorial boundaries above specified or referred to.

The defendants filed separate general demurrers to the bill, which were overruled. They then answered.

There was evidence tending to show that the stock of the Racine, Janesville, and Mississippi Railroad Company was worth from fifty to seventy-five per cent of its par value from 1853 to 1856, the date of the last transaction in stock proven, and that no records of the town of Orwell ever came to the possession of either the town of Mount Pleasant or the town of Caledonia.

Upon hearing, the court below, April 18, 1876, entered the following decree:--

'This cause came on to be heard on the twelfth day of May, A.D. 1875, upon the pleadings and proofs reported by the master, and, having been argued by counsel, the court took the same under advisement; and a further computation of the amount due to this date upon the bonds described in the complainant's bill and exhibited in the proofs having been directed and made and filed by the master, bearing date the eighteenth day of April, 1876; and it satisfactorily appearing to the court that the town of Racine, a municipal corporation in the county of Racine, in said Eastern District of Wisconsin, and then having within its boundaries and municipal jurisdiction the territorial area described in the complainant's bill,-on or about the sixth day of December, 1853, made, executed, and delivered the bonds described in his bill upon the consideration, under the authority, and in the manner in said bill set forth; that the said town of Racine continued in existence as such municipal corporation, and by the same name and with the changes in its territorial boundaries set forth in the complainant's bill, until on or about the second day of November, 1859, when the county board of supervisors of Racine County, within which county said town of Racine was located, by a resolution of said board, changed the name of said town from 'The Town of Racine' to 'The Town of Orwell,' and that the township and municipal corporation theretofore known as the town of Racine remained in existence in and by the name of the town of Orwell, and with the same territorial limits which the town of Racine had prior to such change of name, until on or about the thirtieth day of March, 1860, when the legislature of the State of Wisconsin, by an act approved March 30, 1860, vacated and extinguished the corporation and body politic known as the town of Orwell, in the county of Racine, and declared that said corporation should thereafter have no existence as a body politic and corporate. That in and by the same act of the legislature of said State, the whole territory of said town of Orwell, formerly known as the town of Racine, was attached to the defendants, the town of Mount Pleasant and the town of Caledonia, in the proportions and by the boundary lines in said act named, and that no provision was made in or by said act for the payment of the corporate debts of said township and body politic theretofore known by the names of the town of Racine and the town of Orwell. And it further appearing to the court that, on or about the seventeenth day of March, 1871, by an act of the legislature of Wisconsin, approved March 17, and published March 18, 1871, a portion of the lands and territory which had been within the town of Orwell at the time it was vacated, and which, by the act vacating Orwell, was attached to Mount Pleasant, was detached from the town of Mount Pleasant and attached to the defendant, the city of Racine, and in and by said act it was provided that the defendant, the city of Racine, should assume and pay so much of the municipal indebtedness of the former town of Racine, if any, as the lands described in the addition to said city might be or become legally chargeable with and liable to pay.

'And it further appearing that the complainant, at the time of filing his said bill, was and now is the owner in good faith and for value of the bonds in the bill mentioned, and upon which there is due at this date the sum of $23,080.20.

'Now, at the January Term of this court, to wit, on the eighteenth day of April, 1876, the court being sufficiently advised, and being of the opinion that the municipal indebtedness of said town of Racine, otherwise known as the town of Orwell, was not extinguished by said act of the legislature, vacating and disorganizing said township, and distributing its territory to other townships and municipal corporations, and that an equitable liability for such indebtedness accrued against the defendants, to which such territory was distributed, in the proportion which the taxable property received by each and the valuation thereof bore to the whole taxable property and the whole debt of such vacated town.

'Now, therefore, it is considered, adjudged, and decreed that the master's report of the amount due on the bonds set forth in complainant's bill, and of the respective proportions and valuations of the taxable property received by each of the defendants from said town of Orwell, or which belonged to said town immediately prior to the vacation thereof, be and the same is adopted, ratified, and confirmed.

'And it is further adjudged and decreed that the complainant, Charles Beckwith, do have and recover of and from the defendants, the town of Mount Pleasant, the town of Caledonia, and the city of Racine, the sum of $23,080.20, hereby adjudged due to him from them for principal and interest upon the bonds described in the complainant's bill, and which sum it is adjudged the complainant have and recover from the defendants severally, and that the defendants severally pay the same in the proportions and respective amounts following, to wit:--

'That the complainant, Charles Beckwith, have and recover of and from the defendant, the town of Caledonia, the sum of $9,281.50, and interest thereon from this date; and also the further sum of $58.37, being one-third of complainant's costs and disbursements of the action, as taxed, and hereby adjudged to the complainant.

'That the complainant, Charles Beckwith, have and recover of and from the defendant, the town of Mount Pleasant, the sum of $10,742.70, and interest from this date; and also the further sum of $58.37, being one-third of complainant's costs, as taxed.

'And that the complainant, Charles Beckwith, have and recover of and from the defendant, the city of Racine, the sum of $3,056, and interest thereon from this date; and also the further sum of $58.36, being one-third of complainant's costs, taxed and adjudged to him as aforesaid.

'And it is further adjudged that the complainant have execution against said defendants severally, to collect said several sums decreed to be paid by each, in the manner provided by law.'

From this decree the town of Mount Pleasant and the town of Caledonia appealed to this court.

Mr. L. S. Dixon and Mr. John T. Fish for the appellants.

The court below erred,--

1. In holding the appellants liable to pay the debt of the town of Racine (or Orwell), incurred in the purchase of stock in a railroad company, or that such debt became that of the appellants, to be enforced against them upon any ground or in any form of proceeding. Hampshire v. Franklin, 16 Mass. 76; Barkley v. Levee Commissioners, 1 Woods, 254; Girard v. Philadelphia, 7 Wall. 1; Atkins v. Randolph, 31 Vt. 226; Laramie County v. Albany County et al., 92 U.S. 307; Town of Depere v. Bellevue, 31 Wis. 120; Milwaukee v. Milwaukee, 12 id. 102; Hasbruck v. Milwaukee, 13 id. 37-43; Mills v. Charton, 29 id. 413; ''State ex rel. McCurdy v. Tappan, Town Clark'', id. 664; People v. Batchellor, 53 N. Y. 128; Horton v. Town of Thompson, 71 id. 513; People v. Mayor, 51 Ill. 17 St. Louis v. Russell, 9 Mo. 503; 1 Dillon, Municipal Corporations, c. 4, sect. 43; Cooley, Const. Lim., marginal p. 231 (4th ed. 284).

2. In holding that the property of individuals within the jurisdiction of the town of Racine (or Orwell) was the primary fund upon which the complainant had the right to rely for the payment of his debt; that the transfer of such property to the jurisdiction of the appellants transferred to them the liability to pay the claims of creditors of that town, and that such liability was that of individual debtors and not that of trustees. Barkley v. Levee Commissioners et al., 93 U.S. 258; Rees v. City of Watertown, 19 Wall. 107; Heine v. The Levee Commissioners, id. 655.

3. In holding that the power of taxation conferred upon the town of Racine by act of 1853 was by the act of 1860 transferred to the appellants, to be exercised by them severally upon all the taxable property within their jurisdiction. Havemeyer v. Iowa County, 3 Wall. 294; Mumma v. The Potomac Company, 8 Pet. 281; Railroad Company v. Maine, 96 U.S. 499; Railroad Company v. State of Georgia, 98 id. 359; Miller v. The State, 15 Wall. 478; Attorney-General v. Railroad Companies, 35 Wis. 425; Barkley v. Levee Commissioners, 1 Woods, 254; s. c. 93 U.S. 258; Broughton v. Pensacola, id. 266; Milner's Administrators v. City of Pensacola, 2 Woods, 632; Rees v. Watertown, supra; Heine v. The Levee Commissioners, supra; 1 Dillon, Municipal Corporations, sect. 116, and cases cited in note.

4. In holding that it had jurisdiction in equity, or that the appellants were in equity and good conscience liable to pay the complainant's claim against that town. Heine v. The Levee Commissioners, supra.

Mr. William P. Lynde, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

Explicit authority from the legislature was given to the supervisors of the town of Racine to subscribe for the stock of the railroad company mentioned in the act conferring the power, to an amount not exceeding $50,000, provided a majority of the legal voters of the municipality, at a meeting of the town duly called and held for the purpose, shall vote in favor of making the proposed subscription. Sess. Laws Wis. (1853) p. 11.

Pursuant to that authority, the proper officers of the town, on the 6th of December, 1853, subscribed for the capital stock of the railroad company to the amount of $50,000, and issued one hundred bonds of the corporation, each in the sum of $500, in payment of the subscription for the stock, the bonds being made payable in twenty years from date, with coupons attached for annual interest at the rate of seven per cent. Twenty of those bonds with their coupons are now held by the complainant, numbered from seventy to eighty-nine, inclusive, and of which he became the lawful holder within one month subsequent to their date,-all of which, as he alleges, remain wholly unpaid, principal and interest.

Various facts and circumstances are alleged in the bill of complaint of an equitable nature, and which the complainant insists are of a character to show that he has no remedy at law, and which tend strongly to show that he is entitled to relief in equity. Appended to those several allegations is the prayer of the complainant, that the three respondents may answer the matters charged, and that the court will ascertain the respective liabilities of the respondents to the complainant, and decree the amount due to him from each of the respondent municipalities, and for general relief.

Service was made, and the respective respondents appeared and separately demurred to the bill of complaint. Hearing was had, and the court overruled the several demurrers and directed that the respondents should answer the matters charged in the bill of complaint by a given day. Separate answers were accordingly filed by the respective respondents, no objection being made that they were not filed in time.

Sufficient appears to show that on the 2d of January, 1838, the town of Racine and the town of Mount Pleasant were by the same act created municipal corporations, with boundaries as set forth in the bill of complaint. Private Laws Wis. (1838) 168.

Four years later, the town of Caledonia was incorporated, her territory being taken from the two towns before mentioned, without any provision being made that the new town should bear any portion of the indebtedness of either of the old towns. Id. (1842) 10.

Both parties concur in these propositions, and it appears that the city of Racine, which is a distinct municipality from the town by the same name, was incorporated by the act of the 8th of August, 1848, with boundaries as correctly set forth in the transcript. Id. (1848) 80.

Subsequent changes, if any, made in the boundaries of these municipalities, not herein made the subject of comment, are regarded as immaterial in the present investigation.

Additional territory was subsequently taken from the town of Racine and was annexed to the city of Racine, and by a still later act another fraction of her territory was annexed to the town of Mount Pleasant, neither act containing any regulations as to existing indebtedness. Id. (1856) 148-416.

Prior to that, to wit, on the 6th of March in the same year, the legislature of the State, by an act of that date, annexed a much larger tract, taken from the towns of Racine and Mount Pleasant, to the city of Racine, as described in the record; but the Supreme Court of the State decided that a certain feature of the act was unconstitutional and void. Slauson v. The City of Racine, 13 Wis. 398.

In consequence of that decision, the towns from which the territory annexed was taken continued to exercise jurisdiction over it for the period of fifteen years longer, until a portion of the same territory then constituting a part of the town of Mount Pleasant was again annexed to the city of Racine, on the condition that the city 'shall assume and pay so much of the municipal indebtedness of the town as the lands described in the first section of that act may be or become legally chargeable with and liable to pay.' Private Laws Wis. (1871) 723.

Throughout these several changes, except the last, the annexation in every instance was made without any regulation that the town to which the territory was annexed should pay any portion of the indebtedness of the town from which the territory annexed was taken. Still not satisfied, the legislature, by the act of the 23d of February, 1857, rearranged the boundaries of each of the three towns, as therein is fully set forth and described. Id. (1857) 103.

Two years later, the county supervisors changed the name of the town of Racine to Orwell; but the prior name will be used throughout in this opinion, as less likely to produce confusion in the statement of facts. From the time the legislature re-arranged the boundaries of the three towns they remained without alteration until the legislature, March 30, 1860, by a public act, vacated and extinguished the corporation and body politic known as the town of Racine, then called Orwell, and enacted that thereafter it should have no existence as a body politic and corporate. Sess. Laws Wis. (1860) p. 218.

Sect. 2 of the act also provided that all that part of the territory of the town lying north of the described line should be annexed to and hereafter form a part of the town of Caledonia, and that all that part of the territory lying south of that line should become and continue to be a part of Mount Pleasant.

Each of the respondent towns refer in their answer to the legislation of the State in respect to their incorporation and boundaries, which need not be reproduced, as they are accurately set forth in the preceding statement.

Two of the respondents, to wit, the town of Mount Pleasant and the town of Caledonia, deny in their answers that any statute of the State has ever been passed which would authorize the municipal authorities of these towns to levy and collect a tax to pay either the principal or interest of the bonds described in the bill of complaint, and allege that the corporate authorities of those towns have never assumed or undertaken any trust or duty in the premises, or have ever, in any way, recognized the acts of the town which issued the bonds or the validity of the same. Nor does the answer of the other respondent, to wit, the city of Racine, differ very materially from those filed by the two towns first named, except that the pleader avers that the city was only made liable for such portion of the indebtedness of the old town as is described in the act enlarging the limits of the respondent city, and pleads as a separate defence that the complainant has an adequate remedy at law.

Replications were filed by the complainant, and the parties entered into a stipulation that the proofs should be taken by the master, and that they might be read and used at the final hearing as the evidence in the case, subject to legal objection. Proofs were accordingly taken by the master, and he reported the depositions of the witnesses examined, with an agreed statement of facts. Arguments of counsel followed, and the Circuit Court entered a decree in favor of the complainant against each respondent.

Two of the towns, to wit, Mount Pleasant and Caledonia, appealed to this court, and assign for error the following causes: 1. That the Circuit Court erred in holding that the appellants are liable to pay the debt of the town of Racine incurred in the purchase of stock in the aforesaid railroad company, or that the debt of that town became the debt of the appellants, to be enforced against them in any form of proceeding. 2. That the Circuit Court erred in holding that the property of the individuals within the jurisdiction of that town constituted the primary fund to which the complainant had the right to look for the payment of his debt, and that the transfer of their property to the jurisdiction of the appellants rendered them liable to pay the debts due to the creditors of the town whose powers and jurisdiction terminated by the transfer. 3. That the Circuit Court erred in holding that the power of taxation previously vested in the town which issued the bonds in question was, by the act annexing its territory to the appellant towns, transferred to the appellants to be severally exercised by them upon all the taxable property within their respective jurisdictions. 4. That the Circuit Court erred in holding that it had jurisdiction in equity of the case, or that the appellants are in equity and good conscience liable to pay the claim of the complainant against the town whose territory was annexed to the appellant corporations.

Counties, cities, and towns are municipal corporations created by the authority of the legislature, and they derive all their powers from the source of their creation, except where the Constitution of the State otherwise provides. They have no inherent jurisdiction to make laws or to adopt governmental regulations, nor can they exercise any other powers in that regard than such as are expressly or impliedly derived from their charters or other statutes of the State.

Corporations of the kind are composed of all the inhabitants of the territory included within the political organization, each individual being entitled to participate in its proceedings; but the powers of the organization may be modified or taken away at the mere will of the legislature, according to its own views of public convenience, and without any necessity for the consent of those composing the body politic. Corporate rights and privileges are usually possessed by such municipalities; and it is equally true that they are subject to certain legal obligations and duties, which may be increased or diminished at the pleasure of the legislature, from which all their powers are derived.

Institutions of the kind, whether called cities, towns, or counties, are the auxiliaries of the State in the important business of municipal rule; but they cannot have the least pretension to sustain their privileges or their existence upon any thing like a contract between themselves and the legislature of the State, because there is not and cannot be any reciprocity of stipulation between the parties, and for the further reason that their objects and duties are utterly incompatible with every thing partaking of the nature of compact.

Instead of that, the constant practice is to divide large municipalities and to consolidate small ones, or set off portions of territory from one and annex it to another, to meet the wishes of the residents or to promote the public interests as understood by the legislature,-it being everywhere understood that the legislature possesses the power to make such alterations and to apportion the common property and burdens as to them may seem just and equitable.

Alterations of the kind are often required to promote the public interests or the convenience and necessities of the inhabitants; and the public history shows that it has been the constant usage in the States to enlarge or diminish the power of towns, to divide their territory by set-off and annexation, and to make new towns whenever the legislature deems it just and proper that such a change should be made. Old towns may be divided and new ones incorporated out of parts of the territory of those previously organized; and in enacting such regulations the legislature may apportion the common property and the common burdens, and may, as between the parties in interest, settle all the terms and conditions of the division of their territory, or the alteration of the boundaries, as fixed by any prior law.

State legislation may regulate the subject; but if the legislature omits to do so, the presumption, as between the parties, is that they did not consider that any regulation was necessary. Where none is made, in case of division the old corporation owns all the public property within her new limits, and is responsible for all the debts of the corporation contracted before the act of separation was passed. Debts previously contracted must be paid entirely by the old corporation, not has the new municipality any claim to any portion of the public property, except what falls within her boundaries, and to that the old corporation has no claim whatever. Laramie County v. Albany County, 92 U.S. 307; Bristol v. New Chester, 3 N. H. 521.

Apply these principles to the admitted facts of the case, and it is clear that every one of the described changes made in the limits and boundaries of the respondent municipalities become wholly immaterial in this investigation, except the last two, as hereafter more fully explained.

Before the passage of those two acts, the claim of the complainant against the town of Racine was, beyond all question, valid and collectible. Nobody controverts that proposition, and it is clear that no defence to the action could have been sustained for a moment. By the act of March 30, 1860, the legislature of the State vacated and extinguished the corporation and body politic formerly known as Racine, then called Orwell, and annexed the whole area of the territory included in the municipality to the two adjacent towns of Mount Pleasant and Caledonia, in the proportions and by the boundary lines described in the second section of the legislative act. Had legislation stopped there, it is clear that the city of Racine would not have been liable for any portion of the debt of the extinguished municipal corporation; but it did not stop there, as appears by what follows.

Prior to the passage of that act, the old town of Racine was the sole obligor in the bonds held by the complainant; and there certainly is nothing in the provisions of that act which tends in the least degree to create any liability on the part of any other municipality for the indebtedness of that town, except the towns of Mount Pleasant and Caledonia. Nothing had previously occurred to create any liability on the part of the city of Racine to pay any proportion of the debts of the old town of Racine, which issued the bonds described in the bill of complaint.

Until the passage of the act of the 17th of March, 1871, the rights of all parties remained unchanged. By that act a portion of the territory formerly belonging to the old town of Racine was set off from the town of Mount Pleasant and was annexed to the city of Racine. Appended to that act, and a part of it, was the provision that the city to which the described territory was annexed 'shall assume and pay so much of the indebtedness of the town of Racine as the lands described in the first section of the act may be or become legally chargeable with and liable to pay.' Private Laws Wis. (1871) 723.

Enough appears in that provision of direct legislation to show that the city of Racine was thereby made liable for the debts of the extinguished town of Racine in the proportion therein described; and the clear inference from the provision is that the town of Mount Pleasant, prior to the passage of that act, was liable for the debts of that old municipality in proportion to the whole extent of the territory annexed to her by the prior act which extinguished the old municipal corporation. None, it is presumed, will deny the liability of the city of Racine for those debts in the proportion described in the act creating the liability, and hence it is that the corporate authorities of the city acquiesced in the decree of the Circuit Court without appeal.

Parties who do not appeal from the final decree of the Circuit Court cannot be heard in opposition to the same when the case is regularly brought here by other proper parties. They may be heard in support of the decree and in opposition to every assignment of error, but they cannot be heard to show that the decree below was erroneous. The Stephen Morgan, 94 U.S. 599.

Concede that, and it follows that the only question open in the case for examination is whether the other two respondent municipal corporations are liable to any extent for the debts of the extinguished municipality, portions of whose territory were transferred by the legislature into their respective jurisdictions. We say, liable to any extent, because the question of amount was submitted to the master, and the record shows that neither of the appellants excepted to the master's report. Gordon v. Lewis, 2 Sum. 143; McMicken v. Perin, 18 How. 507. Nor do either of the assignments of error allege that the master committed any error in that regard. Brockett v. Brockett, 3 id. 691.

Viewed in that light, as the case should be, it is clear that if the appellants are liable at all they are liable for the respective amounts specified in the decree. Harding v. Handy, 11 Wheat. 103; Story v. Livingston, 13 Pet. 359.

Where one town is by a legislative act merged in two others, it would doubtless be competent for the legislature to regulate the rights, duties, and obligations of the two towns whose limits are thus enlarged; but if that is not done, that it must follow that the two towns succeed to all the public property and immunities of the extinguished municipality. Morgan v. Beloit, City and Town, 7 Wall. 613, 617.

It is not the case where the legislature creates a new town out of a part of the territory of an old one, without making provision for the payment of the debts antecedently contracted, as in that case it is settled law that the old corporation retains all the public property not included within the limits of the new municipality, and is liable for all the debts contracted by her before the act of separation was passed. Town of Depere and Others v. Town of Bellevue and Others, 31 Wis. 120, 125.

Instead of that, it is the case where the charter of one corporation is vacated and rendered null, the whole of its territory being annexed to two others. In such a case, if no legislative arrangements are made, the effect of the annulment and annexation will be that the two enlarged corporations will be entitled to all the public property and immunities of the one that ceases to exist, and that they will become liable for all the legal debts contracted by her prior to the time when the annexation is carried into operation.

Speaking to the same point, the Supreme Court of Missouri held that where one corporation goes entirely out of existence by being annexed to or merged in another, if no arrangements are made respecting the property and liabilities of the corporation that ceases to exist, the subsisting corporation will be entitled to all the property and be answerable for all the liabilities. Thompson v. Abbott, 61 Mo. 176, 177.

Grant that, and it follows that when the corporation first named ceases to exist there is then no power left to control in its behalf any of its funds, or to pay off any of its indebtedness. Its property passes into the hands of its successor, and when the benefits are taken the burdens are assumed, the rule being that the successor who takes the benefits must take the same cum onere, and that the successor town is thereby estopped to deny that she is liable to respond for the attendant burdens. Swain v. Seamens, 9 Wall. 254, 274; Pickard v. Sears, 6 Ad. & Ell. 474.

Powers of a defined character are usually granted to a municipal corporation, but that does not prevent the legislature from exercising unlimited control over their charters. It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, overrule their legislative action wenever it is deemed unwise, impolitic, or unjust, and even abolish them altogether, in the legislative discretion, and substitute in their place those which are different. Cooley, Const. Lim. (4th ed.) 232.

Municipal corporations, says Mr. Justice Field, so far as they are invested with subordinate legislative powers for local purposes, are mere instrumentalities of the State for the convenient administration of their affairs; but when authorized to take stock in a railroad company, and issue their obligations in payment of the stock, they are to that extent to be deemed private corporations, and their obligations are secured by all the guaranties which protect the engagements of private individuals. Broughton v. Pensacola, 93 U.S. 266, 269.

Modifications of their boundaries may be made, or their names may be changed, or one may be merged in another, or it may be divided and the moities of their territory may be annexed to others; but in all these cases, if the extinguished municipality owes outstanding debts, it will be presumed in every such case that the legislature intended that the liabilities as well as the rights of property of the corporation which thereby ceases to exist shall accompany the territory and property into the jurisdiction to which the territory is annexed. Colchester v. Seaber, 3 Burr. 1866.

Neither argument nor authority is necessary to prove that a State legislature cannot pass a valid law impairing the obligations of a contract, as that general proposition is universally admitted. Contracts under the Constitution are as sacred as the Constitution that protects them from infraction, and yet the defence in this case, if sustained, will establish the proposition that the effect of State legislation may by such as to deprive a party of all means of sustaining an action of any kind for their enforcement. Cases, doubtless, may arise when the party cannot collect what is due under the contract; but he ought always to be able by some proper action to reduce his contract to judgment.

Suppose it be admitted that the act of the State legislature annulling the charter of the municipality indebted to the complainant, without making any provision for the payment of outstanding indebtedness, was unconstitutional and void, still it must be admitted that the very act which annulled that charter annexed all the territory and property of the municipality to the two appellant towns, and that they acquired with that the same power of taxation over the residents and their estates that they previously possessed over the estates of the inhabitants resident within their limits before their boundaries were enlarged.

Extinguished municipal corporations neither own property, nor have they any power to levy taxes to pay debts. Whatever power the extinguished municipality had to levy taxes when the act passed annulling her charter terminated, and from the moment the annexation of her territory was made to the appellant towns, the power to tax the property transferred, and the inhabitants residing on it, became vested in the proper authorities of the towns to which the territory and jurisdiction were by that act transferred; from which it follows that for all practical purposes the complainant was left without judicial remedy to enforce the collection of the bonds or to recover judgment for the amounts they represent.

When the appellant towns accepted the annexation, their authorities knew, or ought to have known, that the extinguished municipality owed debts, and that the act effecting the annexation made no provision for their payment. They had no right to assume that the annulment of the charter of the old town would have the effect to discharge its indebtedness, or to impair the obligation of the contract held by its creditors to enforce the same against those holding the territory and jurisdiction by the authority from the legislature and the public property and the power of taxation previously held and enjoyed by the extinguished municipality.

Express provision was made by the act annulling the charter of the debtor municipality for annexing its territory to the appellant towns; and, when the annexation became complete, the power of taxation previously vested in the inhabitants of the annexed territory as a separate municipality ceased to exist, whether to pay debts or for any other purpose,-the reason being that the power, so far as respected its future exercise, was transferred with the territory and the jurisdiction over its inhabitants to the appellant towns, as enlarged by the annexed territory; from which it follows, unless it be held that the extinguishment of the debtor municipality discharged its debts without payment, which the Constitution forbids, that the appellant towns assumed each a proportionate share of the outstanding obligations of the debtor town when they acquired the territory, public property, and municipal jurisdiction over every thing belonging to the extinguished municipality.

Corporations of a municipal character, such as towns, are usually organized in this country by special acts or pursuant to some general State law; and it is clear that their powers and duties differ in some important particulars from the towns which existed in the parent country before the Revolution, where they were created by special charters from the crown, and acquired many of their privileges by prescription, without any aid from Parliament. Corporate franchises of the kind granted during that period partook much more largely of the nature of private corporations than do the municipalities created in this country, and known as towns, cities, and counties. Power exists here in the legislature, not only to fix the boundaries of such a municipality when incorporated, but to enlarge or diminish the same subsequently, without the consent of the residents, by annexation or set-off, unless restrained by the Constitution, even against the remonstrance of every property holder and voter within the limits of the original municipality.

Property set off or annexed may be benefited or burdened by the change, and the liability of the residents to taxation may be increased or diminished; but the question, in every case, is entirely within the control of the legislature, and, if no provision is made, every one must submit to the will of the State, as expressed through the legislative department. Inconvenience will be suffered by some, while others will be greatly benefited in that regard by the change. Nor is it any objection to the exercise of the power that the property annexed or set off will be subjected to increased taxation, or that the town from which it is taken or to which it is annexed will be benefited or prejudiced, unless the Constitution prohibits the change, since it is a matter, in the absence of constitutional restriction, which belongs wholly to the legislature to determine. Courts everywhere in this country hold that, in the division of towns, the legislature may apportion the burdens between the two, and may determine the proportion to be borne by each. Sill v. The Village of Corning, 15 N. Y. 297; Mayor v. ''State, ex rel. of the Board of Police of Baltimore, 15 Md. 376; City of Olney v. Harvey'', 50 Ill. 453; Borough of Dunmore's Appeal, 52 Pa. St. 374.

Public property and the subordinate rights of a municipal corporation are within the control of the legislature; and it is held to be settled law that, where two separate towns are created out of one, each, in the absence of any statutory regulation, is entitled to hold in severalty the public property of the old corporation which falls within its limits. North Hempsted v. Hempsted, 2 Wend. (N. Y.) 109; The Hartford Bridge Company v. East Hartford, 16 Conn. 149, 171.

Extensive powers in that regard are doubtless possessed by the legislature; but the Constitution provides that no State shall pass any 'law impairing the obligation of contract,' from which it follows that the legislature, in the exercise of any such power, cannot pass any valid law impairing the right of existing creditors of the old municipality. 1 Dillon, Municipal Corp. (2d ed.), sect. 41; Van Hoffman v. City of Quincy, 4 Wall. 535, 554; Lee County v. Rogers, 7 id. 181, 184; Butz v. City of Muscatine, 8 id. 575, 583; Furman v. Nichol, id. 44, 62.

Where a municipal corporation has the power to contract a debt, it has, says Dixon, C. J., by necessary implication, authority to resort to the usual made of raising money to pay it, which undoubtedly is taxation. ''State, ex rel. Hasbrouck, v. The City of Milwaukee'', 25 Wis. 122, 133.

Whenever the charter of a city, at the time of the issue of bonds, made it the duty of the city authorities to levy and collect the amount, when reduced to judgment, like other city charges, the same court held that a subsequent act of the legislature prohibiting the city from levying such a tax would be repugnant to the Constitution. Soutter v. The City of Madison, 15 id. 30.

State control over the division of the territory of the State into cities, towns, and districts, unless restricted by some constitutional limitation, is supreme, but the same court admits that it cannot be exercised to annul another regulation of the Constitution. Chandler v. Boston, 112 Mass. 200; 6 Cush. (Mass.) 580.

Cities or towns, whenever they engage in transactions not public in their nature, act under the same pecuniary responsibility as individuals, and are as much bound by their engagements as are private persons, nor is it in the power of the legislature to authorize them to violate their contracts. The Western Saving Fund Society v. The City of Philadelphia, 31 Pa. St. 175. 185.

Text-writers concede almost unlimited power to the State legislatures in respect to the division of towns and the alteration of their boundaries, but they all agree that in the exercise of these powers they cannot defeat the rights of creditors nor impair the obligation of a valid contract. 1 Dillon, Municipal Corp., sect. 128; Blanchard v. Bissell, 11 Ohio St. 96; Lansing v. County Treasurer, 1 Dill. 522, 528.

Concessions of power to municipal corporations are of high importance; but they are not contracts, and consequently are subject to legislative control without limitation, unless the legislature oversteps the limits of the Constitution. Layton v. New Orleans, 12 La. Ann. 515.

Bonds having been issued and used by a city for purchasing land for a park, which was pledged for the payment of the bonds, held, that a subsequent act of the legislature authorizing a sale of a portion of the park, free of all liens existing by virtue of the original act, was in violation of the Federal Constitution, as impairing the obligation of contracts. Brooklyn Park Com. v. Armstrong, 45 N. Y. 234, 247.

Laws passed by a State impairing the obligation of a contract are void, and if a State cannot pass such a law, it follows that no agency can do so which acts under the State with delegated authority. Cooley, Const. Lim. (4th ed.) 241; Angell & Ames on Corp. (9th ed.), sects. 332, 333.

Municipal debts cannot be paid by an act of the legislature annulling the charter of the municipality, and, if not, then the creditors of such a political division must have some remedy after the annulment takes place. Without officers, or the power of electing such agents, a municipal corporation, if it can be so called, would be an entity very difficult to be subjected to judicial process or to legal responsibility; but when the entity itself is extinguished, and the inhabitants with its territory and other property are transferred to other municipalities, the suggestion that creditors may pursue their remedy against the original contracting party is little less than a mockery. Public property, with the inhabitants and their estates, and the power of taxation, having been transferred by the authority of the legislature to the appellants, the principles of equity and good conscience require that inasmuch as they are, and have been for nearly twenty years, in the enjoyment of the benefits resulting from the annexation, they shall in due proportions also bear the burdens. New Orleans v. Clark, 95 U.S. 644, 654.

Equitable rules of decision are sufficiently comprehensive in their reach to do justice between parties litigant, and to overcome every difficulty which can be suggested in this case. States are divided and subdivided into such municipalities, called counties, cities, towns, and school districts, and the legislature of every State is required every year to pass laws modifying their charters and enlarging or diminishing their boundaries. Nor are the questions presented in this case either new in principle or difficult of application. New forms are given to such charters in every day's experience, when the limits of an old corporation are changed by annexation of new territory, or portions of the territory of the old municipality are set off and annexed to another town. Both corporations in such a case continue, though it may be that the charters are much changed, and that the inhabitants of the territory annexed or set off fall under different officers and new and very diverse regulations. Beckwith v. City of Racine, 7 Biss. 142, 149.

Pecuniary burdens may be increased or diminished by the change; but in the absence of express provisions regulating the subject, it will be presumed in every case where both municipalities are continued, that the outstanding liabilities of the same remain unaffected by such legislation. Unlike that in this case, the charter of the old town was vacated and annulled, from which it follows that the same principles of justice require that the appellant towns, to which the territory, property, and inhabitants of the annulled municipality were annexed, should become liable for its outstanding indebtedness.

Decree affirmed.

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


text: Talk:Mount Pleasant v. Beckwith/Opinion of the Court


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Mount Pleasant v. Beckwith/Dissent Miller

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

I am of opinion that it requires legislation to make a legal obligation against the new town, and make the apportionment of the debt; and I dissent on that ground from the judgment and opinion of the court in this case.

NOTE.-Mount Pleasant v. Cornell, on appeal from the Circuit Court of the United States for the Eastern District of Wisconsin, was argued at the same time and by the same counsel as was the preceding case.

MR. JUSTICE CLIFFORD, in delivering the opinion of the court, remarked, that it embraced substantially the same facts as that case, and must be decided in the same way.


text: Talk:Mount Pleasant v. Beckwith/Dissent Miller


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United States v. Murry

APPEAL from the Court of Claims.

The facts are stated in the opinion of the court.

The Solicitor-General for the United States.

Mr. John N. Oliver, contra.

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

title: United States v. Murry


text: Talk:United States v. Murry

title: Talk:United States v. Murry