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The Protector (78 U.S. 82)/Opinion of the Court

Mr. Justice NELSON had thus delivered it:

The motion made by the appellees to dismiss the case from the docket for want of jurisdiction, is grounded upon a defect of the title of the parties in the appeal as allowed. The title is, 'William A. Freeborn & Co. v. The Ship Protector and owners.' This defect in a writ of error has been held fatal to the jurisdiction of the court since the case of Deneale et al. v. Stump's Executors, down to the present time. Nor can the writ be amended, according to repeated decisions of this court. The only question before us is, whether the same rule applies to appeals in admiralty. Originally, decrees in equity and admiralty were brought here for re-examination by a writ of error, under the twenty-second section of the Judiciary Act. This was changed by the act of March 3, 1803, by which appeals were substituted in place of the writs of error in cases of equity, admiralty, and prize; but the act provides 'that the appeals shall be subject to the same rules, regulations, and restrictions as are prescribed in law in cases of writs of error.'

In Owings et al. v. Andrew Kincannon, the appeal was dismissed because all the parties to the decree below had not joined in it. Chief Justice Marshall, in delivering the opinion of the court, referred to the case of Williams v. The Bank of the United States, which was a writ of error, where it was held that all the defendants must join, and applied the same rule to the ease of an appeal. He cited the act of 1803, and observed that 'the language of the act which gives the appeal appears to us to require that it should be prosecuted by the same parties who would have been necessary in a writ of error.' But the case of Francis O. J. Smith, appellant, v. Joseph W. Clark et al., is more direct to the point before us. It was a motion to docket and dismiss in the case of an appeal, under the 43d rule of the court. The certificate of the clerk, upon which it was founded, described the parties as in the title above. Chief Justice Taney, in giving the opinion of the court, stated that the certificate conformed to the rule in all respects but one, and that was in the statement of the parties. The respondents were stated to be Joseph W. Clarke and others, from which it appeared that there were other respondents, parties to the suit, who were not named in the certificate. He then referred to the case of a writ of error, where it was held that all the parties must be named in the writ, and the name of one or more of them, and others, were not a sufficient description; and, also, to the case of Holliday et al. v. Baston et al., where the same principle was applied to a writ of error docketed under the 43d rule, and observed the same reason for requiring all the parties whose interests were to be affected by the judgment, to be named in the writ of error, applied with equal force to the case of an appeal from a decree. And the motion to docket and dismiss for the above defect was overruled. The opinion of the court in the present case is, that no distinction in respect to the question before us can be made between the case of an appeal under the act of 1803, and of a writ of error; and that the decisions referred to directing the dismissal of the latter from the docket for want of jurisdiction, apply with equal force to the former. This result disposes of the motions on the part of the appellant to amend the petition of appeal, citation, and bond, and also the motion to amend the libel.

MOTION TO DISMISS GRANTED.

Mr. Justice SWAYNE (with whom concurred Mr. Justice BRADLEY) dissenting:

I dissent from the conclusions announced by the court in this case. The defect objected to is, in my judgment, amendable under the 32d section of the Judiciary Act of 1789, and I think an amendment should be permitted to be made.


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Page:A short history of social life in England.djvu/55

Rh their homes, each family taking the name of some ancestor. Thus the family of the Wellings named their new home Wellington, the family of the Paddings, Paddington, of the Millings, Millington.

Their houses varied with the wealth or rank of their owners; all were of wood, for the Angles and Saxons had only one word for "to build," and that was "getimbrian." The centre of the homestead lay in the long public hall, with its hearth-fire in the midst—the smoke escaping as best it might through holes in the roof. This was the common living-room, and not infrequently, when night fell and the fire flickered low, the common sleeping-room, where weary men threw themselves down to sleep on bundles of straw. The walls of the hall were hung with tapestry worked by the ladies, to keep out the draughts, which must have been piercing in winter, for the doors were never closed.

The hospitality of our forefathers was proverbial. Any stranger presenting himself at the door was cordially welcomed; water was brought to wash his feet and his hands, and he took his place at meat with the family. The food, though simple, was abundant. A board placed on trestles in the centre served as a

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text: Talk:The Protector (78 U.S. 82)/Opinion of the Court


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United States v. Tynen

On certificate of division in opinion between the judges of the Circuit Court for the District of California; the case was thus:

Tynen, the defendant, was indicted under the thirteenth section of the act of Congress of March 3d, 1813, entitled 'An act for the regulation of seamen on board the public and private vessels of the United States.' The general object of the act, as expressed in its title, was carried out in the first eleven sections.

They declared that it should not be lawful, after the termination of the war then existing with Great Britain, to employ on board any public or private vessels of the United States any persons except citizens of the United States, or persons of color natives of the United States; and they required naturalized citizens thus employed to produce to the commanders of public vessels, or collectors of customs, as the case might be, a certified copy of the act by which they were naturalized, setting forth the naturalization and the date thereof. They also contained various clauses to give effect to these requirements, but, at the same time, declared that the provisions of the act should not preclude the employment, as seamen, of the subjects or citizens of any foreign nations, which should not have prohibited, by treaty or special convention with the United States, the employment on board of her public or private vessels of native citizens of the United States, who had not become citizens or subjects of such nation.

The twelfth section declared that no person living within the United States after the act took effect should be admitted to become a citizen who should not, for the continued term of five years next preceding his admission, have resided within the United States, without being at any time absent therefrom.

Then followed the thirteenth section, upon which the indictment was found. That section declares it to be felony 'to falsely make, forge, or counterfeit, or cause or procure to be falsely made, forged, or counterfeited, any certificate or evidence of citizenship referred to in the act, or to pass, utter, or use as true any false, forged, or counterfeited certificate of citizenship, or to make sale or dispose of any certificate of citizenship to any person other than the person for whom it was originally issued, and to whom it may, of right, belong;' and prescribes as punishment for the offence imprisonment for a period of not less than three nor more than five years, OR a fine in a sum not less than $500 nor more than $1000, at the discretion of the court.

The indictment charged the defendant with the second of the offences here designated; that he did wilfully, falsely, and feloniously pass, utter, and use as true a false, forged, and counterfeited certificate of citizenship purporting to have been issued by one of the District Courts of California, and setting forth, with particularity, a compliance with the several requirements of the law for the naturalization of aliens.

The indictment did not allege what use was made by the defendant of the forged certificate, or any purpose for which it was uttered; and the defendant demurred. The several grounds of demurrer-reduced to substantially one-were that the indictment did not charge that the certificate or evidence of naturalization was forged to accomplish any purpose contemplated by the act of Congress under which the indictment was found, or for any other unlawful purpose, or with intent to injure the United States, or any State, person, corporation, or association.

Upon this demurrer the question arose whether the indictment charged any offence against the laws of the United States, and whether it were necessary for the indictment to aver that the certificate or evidence of citizenship mentioned in it was produced to the commander of a public vessel of the United States or to a collector of the customs, as provided in previous sections of the act, when naturalized citizens were employed as seamen on board of the public or private vessels of the United States. Upon these questions the judges of the Circuit Court were opposed in opinion, and a certificate of division having been prepared accordingly the case was sent to this court. While pending here, on the 14th July, 1870, Congress passed an act entitled 'An act to amend the naturalization laws and to punish crimes against the same, and for other purposes,' which embraced the whole subject of frauds against the naturalization laws. It declared all the acts mentioned in the thirteenth section of the law of 1813 felonies, but also declared a great number of other acts of a fraudulent character in connection with the naturalization of aliens felonies, in addition, and made the infliction of a larger punishment for each offence discretionary with the court. Thus it authorized imprisonment AND fine, either or both, in the court's discretion, where the former act gave one OR the other only; and where the act of 1813 made the imprisonment not less than three years and the fine not less than $500, the new act made the imprisonment not less than one year and the fine not less than $300.

The matter now to be considered by this court was, what was the effect of this act of July 14th, 1870, upon the provisions of the thirteenth section of the act of 1813; and if it worked a repeal of those provisions, what was the proper action to be taken by the court on the certificate of division?

Mr. Akerman, the Attorney-General, and Mr. B. H. Bristow, Solicitor-General, for the United States; no one appearing for the defendant.

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

title: United States v. Tynen


text: Talk:United States v. Tynen

title: Talk:United States v. Tynen


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United States v. Tynen/Opinion of the Court

An opposition of opinion, like that in the court below, occurred between the judges of the Circuit Court for the Southern District of New York, in a similar case which came before this court at the December Term of 1868, but as the opposition arose upon a motion to quash the indictment, the case was dismissed for want of jurisdiction. In the present case the questions presented have ceased to be material, and, consequently, it has become unnecessary to determine them, for, since they arose in the Circuit Court, Congress has passed a statute amending the naturalization laws, and prescribing certain punishments for their violation, which has worked a repeal of the provisions of the 13th section of the act of 1813. That statute, which was approved on the 14th of July, 1870, declares not only that the commission of the several acts mentioned in the 13th section of the law of 1813 shall constitute a felony, but that also a great number of other acts of a fraudulent character in connection with the naturalization of aliens, shall constitute a similar offence, and has made the infliction of a larger punishment for each offence discretionary with the court. The act of 1813 imposes as punishment, either imprisonment or fine, at the discretion of the court. The act of 1870 authorizes either of these punishments, or both, in the like discretion of the court. The act of 1813 allows the imprisonment to run between three and five years, and the fine to extend between five hundred and one thousand dollars. The act of 1870 fixes the imprisonment between one and five years, and the fine between three hundred and one thousand dollars.

There is no express repeal of the 13th section of the act of 1813 declared by the act of 1870, and it is a familiar doctrine that repeals by implication are not favored. When there are two acts on the same subject the rule is to give effect to both if possible. But if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first; and even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act.

Now between the provisions of the act of 1813 and the act of 1870 there is a clear repugnancy. The first act makes the punishment for the offences designated imprisonment or fine. It provides that the punishment shall be one or the other, and in so doing declares that it shall not be both. The second act allows both punishments in the discretion of the court; it thus permits what the first law prohibits.

Again, the act of 1813 provides that the imprisonment, when imposed as a punishment, shall not be less than three years, and may be extended to five. The act of 1870 allows the imprisonment to be fixed at one year, and from that period upwards to five years. In this also it permits what the first act forbids.

Again, the act of 1813 declares that the fine, when imposed, shall not be less than five hundred dollars. The act of 1870 allows the fine to be as low as three hundred dollars, thus authorizing what the first act declares shall not be done.

When repugnant provisions like these exist between two acts, the latter act is held, according to all the authorities to operate as a repeal of the first act, for the latter act expresses the will of the government as to the manner in which the offences shall be subsequently treated.

One of the earliest cases on this subject is that of Rex v. Cator, reported in 4th Burrow. There were two English statutes against enticing and seducing artificers in the manufactures of the kingdom into foreign service. The penalty under the first statute was, for the first offence, a fine of one hundred pounds and three months' imprisonment; for the second offence, the fine was discretionary and imprisonment for twelve months. Under the second statute the penalty was, for the first offence, a fine of five hundred pounds and twelve months' imprisonment; for the second offence the fine was one thousand pounds and two years' imprisonment. The latter act, said Lord Mansfield, seems to be a repeal of the former act; it was made to supply the deficiencies of the former. Accordingly, the defendant, who had been convicted under both statutes, was sentenced under the last. In Rex v. Davis, it appeared that there were two statutes against killing deer in an inclosed park. The first statute made the offence a felony punishable with death. The last statute punished the first offence with a fine, and made the second offence a felony; and the twelve judges were unanimously of opinion that the last statute amounted to a repeal of so much of the first as related to the offence of felony.

There are numerous cases in the modern reports to the same effect. We will cite only one, which was decided in this court, that of Norris v. Crocker et al. In that case the defendants were sued in an action of debt to recover the penalty of five hundred dollars upon the 4th section of the act of Congress of February, 1793, respecting fugitives from justice and persons escaping from the service of their masters. That section provided that any person who should, knowingly and willingly, obstruct or hinder the claimant, his agent, or attorney, in seizing or arresting the fugitive from labor, or should rescue him from such claimant, agent, or attorney, when arrested by the authority given by the act, or should harbor or conceal him, after notice that he was a fugitive from labor, should forfeit and pay for each of these offences the sum of five hundred dollars, to be recovered by the claimant in an action of debt.

Pending the action brought under this section against the defendants, Congress, in 1850, passed an act amendatory of and supplementary to the act of February, 1793, the seventh section of which embraces the offences specified in the act of 1793, and creates new offences, and affixes to each a different punishment from that named in the old act, prescribing a fine not exceeding one thousand dollars, and imprisonment not exceeding six months upon indictment and conviction of the offender, and declaring that the offender shall also forfeit and pay, by way of civil damages, to the party injured, the sum of one thousand dollars for each fugitive lost, to be recovered by action of debt. The act of 1850 contained no clause repealing, in terms, the act of 1793, and the counsel of the government contended that it only added cumulative remedies, and was intended to give greater facilities to the master of the slave in securing the fugitive, and could not be construed to have a retrospective operation and wipe out liabilities incurred under the old act, and thus deprive the master of rights of action in suits pending, that had accrued to him; and that the court would not favor repeals by implication. But the court held unanimously, Mr. Justice Catron delivering the opinion, that the last act was plainly repugnant to the first, observing also that, as a general rule, it was 'not open to controversy, that when a new statute covers the whole subject of an old one, adds offences, and prescribes different penalties for those enumerated in the old law, that the former statute is repealed by implication, as the provisions of both cannot stand together.'

By the repeal of the 13th section of the act of 1813 all criminal proceedings taken under it fell. There can be no legal conviction, nor any valid judgment pronounced upon conviction, unless the law creating the offence be at the time in existence. By the repeal the legislative will is expressed that no further proceedings be had under the act repealed. In Norris v. Crocker the court said that, as the plaintiff's right to recover in that case depended entirely on the statute, its repeal deprived the court of jurisdiction over the subject. As said by Mr. Justice Taney, in another case, 'The repeal of the law imposing the penalty is of itself a remission.' In the case at bar, when the 13th section of the act of 1813 was repealed, there was no offence remaining for the court to punish in virtue of that section.

It follows that in this case no answer can be returned to the questions certified to us, but that the case must be remanded to the court below with directions

TO DISMISS THE INDICTMENT.


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 370 into the pulpit, but no one listened to a word he said; for they all looked too much at her, and wondered whence she came; and the Prince, he was far deeper in love than either of the former times. He had no eyes, or ears, or sense for anything, but just to sit and stare at her.

So when the sermon was over, and the King's daughter was to go out of the church, the Prince had got a firkin ot pitch poured out in the porch, that he might come and help her over it; but she didn't care a bit—she just put her foot right down into the midst of the pitch, and jumped across it; but then one of her golden shoes stuck fast in it, and as she got on her horse, up came the Prince running out of the church, and asked whence she came.

"I'm from Combland," said Katie. But when the Prince wanted to reach her the gold shoe, she said,—

So the Prince couldn't tell still what had become of her, and he went about a weary time all over the world asking for "Combland;" but when no one could tell him where it lay, he ordered it to be given out everywhere that he would wed the woman whose foot could fit the gold shoe.

So many came of all sorts from all sides, fair and ugly alike; but there was no one who had so small a foot as to be able to get on the gold shoe. And after a long, long time, who should come but Katie's wicked stepmother, and her daughter, too, and her the gold shoe fitted; but ugly she was, and so loathly she looked, the Prince only kept


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New Albany v. Burke

APPEAL from the Circuit Court for the District of Indiana; the case being thus:

Burke and others, complainants in the court below, were equitable owners of a judgment recovered on the 14th day of November, 1857, in the Circuit Court of Floyd County, Indiana, against the New Albany and Sandusky City Junction Railroad Company, an insolvent corporation. The judgment was obtained in a suit brought by certain trustees to foreclose a mortgage given by the company to secure the payment of 110 bonds of $1000 each, and such proceedings were had in the suit that there was not only a decree of foreclosure and an order to sell the mortgaged property, but a personal judgment against the company. The mortgaged premises were sold under the order, and, the proceeds of sale having proved insufficient to satisfy the judgment, an execution was issued for the residue, which, December 1, 1858, was returned unsatisfied. Nothing further was done until January 29, 1868, when Burke having purchased the interest of several of the equitable owners of the judgment, this bill was filed by him and the other equitable owners whose interests he had not acquired, against the railroad company, the city of New Albany, and others. It averred the ownership of the judgment by the complainants, the failure of the company to put any portion of its railroad into operation or to lay any part of the track thereof, and its having become insolvent about the 30th day of April, 1857. It charged further that the company, having expended all its means, abandoned all further efforts to build the road, and that its roadbed and right of way had been sold. It also charged that since the year 1858 it had not kept up its organization or elected any new officers. The bill then proceeded to charge that the city of New Albany was indebted to the company in the sum of $393,000, besides interest, growing out of a subscription to its capital stock, made on the 19th of November, 1853, in part payment of which 200 bonds of $1000 each had been delivered to the company, and that certain other parties, whom the bill made defendants, were indebted in smaller sums in a similar manner. The bill further charged that none of these bonds except 7 had been negotiated by the company, but that, on the contrary, 197 of them had been returned to the city in pursuance of an illegal compromise, and that the city subscription to the stock had been cancelled. The complainants therefore charged that the city still remained a debtor to the company, and they prayed relief that the amount of debt that might be ascertained, and that so much thereof as was necessary to satisfy the judgment might be decreed to be thus applied.

To this bill the city of New Albany set up several defences; some of form, some to the merits. Among these last, it set up:

1st. That the city was not indebted to the company when the bill was filed; that the adjustment by the city and the company was, at the time it was made (September 7th, 1857), a compromise, made in good faith, by which the city ceased to be indebted to the company, and that the adjustment was effective and valid as against all persons.

2d. That if the complainants had rights against the city and might have impeached the validity of the arrangement by which the city recovered its bonds and obtained a cancellation of its subscription, they had slept so long upon these rights that a court of equity would not afford them relief.

These two defences were the only ones which the court considered; the others having been of such a character, as that if these two were sufficient, it was unnecessary to say anything about them.

As to the facts, it appeared that in November, 1853, pursuant to an ordinance of the common council of the city, a subscription had been made by the city to the stock of the railroad of $400,000, payable in city bonds, upon the call of the company, and that the council assumed the power to pass an ordinance which some persons asserted to be void, but which others considered had been subsequently ratified, if void originally, by an ordinance of March 7th, 1855; the railroad company now, upon the passage of this ordinance of ratification, agreeing and binding itself that not more than $250,000 of bonds should be called for until the road should be completed and put into order to its junction with the Ohio and Mississippi Railroad, and then but for the purpose of furnishing it, &c. Pursuant to the subscription, the officers of the city delivered to the railroad company 200 city bonds, for $1000 each, payable to bearer, and redeemable in ten and payable in twenty years. At the time of thus delivering the bonds the railroad company was actively engaged in prosecuting its enterprise, and represented to the officers of the city that it was essential to the completion of its road that the company should obtain money by the sale of the bonds. Shortly, however, after the delivery of the bonds, and while all of them, except 7, remained unsold, several suits were instituted by taxpayers of the city to resist the payment of a tax levied for the payment of interest; the ground of the suits being that the subscription was void. These suits led to protracted litigation, and raised such doubts as to the validity of the bonds, as to render it impossible for the railroad company to sell or negotiate them except at a ruinous sacrifice. In August, 1857, the railroad company represented to the city that in consequence of this failure to obtain money on the bonds, the company had found itself without means to carry on the work, and had abandoned its enterprise. It had apparently expended all the cash and real estate received by it in payment for stock, and had pledged the 200 city bonds (except the 7 sold) to different persons, for sundry sums, borrowed for the purpose of prosecuting the work. It thus had no means to pay the amounts so borrowed upon pledge of the city bonds, and it appeared that unless the city provided the means, the whole of the bonds were in danger of being sold for the payment of the loans, and that owing to the doubts cast upon their validity, the whole of them would not have sold for more than sufficient to pay the sums for which they were pledged.

The railroad company therefore proposed to the city that if the latter would provide means for the payment of the sums so borrowed, and redeem the bonds from the pledgees, they should be returned to the city and cancelled.

The city, relying, apparently, on the representation of the railroad company as to the condition of its affairs, passed an ordinance, published immediately afterwards, by which it accepted the proposition of the railroad company, upon condition that the latter would cancel the subscription of the city, and consent to the repeal of all ordinances and amendments relating thereto. This condition was accepted by the railroad company, and the agreement was carried into effect. The city paid the sums of money for which the bonds were pledged, amounting to more than $36,000. All the bonds, except the 7 that had been sold, were returned to the city and cancelled, and the subscription of stock was cancelled.

The arrangement seemed to have been made in good faith by the city, and for the purpose of preventing the large amount of its bonds being sacrificed for the payment of the debts for which they stood pledged.

As to the second of the above-mentioned defences, it seemed that neither the complainants nor any other person, had ever controverted the validity of the adjustment made between the city and the railroad company, nor instituted proceedings to have it set aside as fraudulent and void, until the bill of complaint in this case was filed, more than ten years after the agreement was concluded. However, one of the complainants was a non-resident of Indiana, and swore that he never knew of the city subscription until after the suit was brought. It was shown, nevertheless, that he had gone to New Albany in 1858, in order to examine the company's concerns. His attorney knew of it, and one witness thought that he did also.

The court below decreed in favor of the complainants for the balance due on their judgments, amounting to over $70,000 in the aggregate, against the railroad company and the city, and dismissed the bill as to the other defendants. The city appealed to this court.

Messrs. Burke, Porter, and Harrison, in support of the ruling below:

Is the compromise set up by the city valid?

1. Clearly not, upon the principles settled by this court in the case of Bell v. Railroad Company, that the officers of a municipal corporation authorized, by special statute and vote of the people, toi subscribe for stock in a railroad company, have no power to compromise such subscription and abandon the enterprise, and that all their power is derived from the statute and the vote of the people, and that whenever the subscription is made and the corporate bonds delivered, their power ceases, and they have no more power to compromise the subscription or abandon the enterprise than any other residents of the municipality.

2. The compromise, as the case shows, was fraudulent in fact, and it can hardly be doubted that there was a design upon the part of the city and railroad officers to withdraw from the reach of creditors all the available means of the railroad company.

3. The compromise is still more clearly fraudulent in law.

The transaction was an attempt upon the part of the officers of an insolvent and failing corporation, which had expended all its cash and other subscriptions in a vain attempt to construct its railroad, and had no means to meet the demands of clamorous creditors, to release its principal debtor and stock subscriber from the payment of what was due to the company without receiving the money due. Now repeated judicial decisions have settled the rule, that the officers of a money corporation are trustees for the creditors, and that they cannot give away the assets of the corporation, release its debtors without payment, or do any other act prejudicial to its creditors. That the capital stock of such a corporation is a trust fund irrevocably pledged to the creditors of the corporation, and that such capital stock cannot be diminished or squandered under the name of dividends or otherwise. No court has more firmly adhered to this rule than this court. In one case the court say:

'When that portion of the capital, not paid in cash, is required to pay the creditors of the company, the stockholders cannot be allowed to refuse payment unless they show such an equity as would entitle them to a preference over the creditors, if the capital had been paid in cash.'

II. Another objection urged is, staleness; that this suit should have been commenced sooner. But it appears that some of the owners of the judgments were non-residents of Indiana, and that they had no knowledge of the facts on which equitable relief is demanded.

Moreover, the bonds of the city, the interest of which is now sought to be subjected, were not to fall due for twenty years, that is, not until 1874; and there was at no time interest enough due on them to pay the amount due on complainant's judgment, up to about the time this bill was filed.

Mr. T. A. Hendricks, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: New Albany v. Burke


text: Talk:New Albany v. Burke

title: Talk:New Albany v. Burke


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New Albany v. Burke/Opinion of the Court

Assuming that the subscription made by the city to the capital stock of the company in 1853, though undoubtedly invalid at first, became valid by the ratification ordinance adopted March 7, 1855; that thereby the city came under obligation to give its bonds to the company in payment for the stock, so far as they had not already been given, we come directly to the question, what was the effect of the arrangement made in August and September, 1857? Here the situation of the parties at the time is of importance to be considered.

The railroad company had undertaken to build a railroad from New Albany to Sandusky City, and it had commenced the work, relying mainly upon the bonds of the city to raise the money necessary. It had, however, been disappointed. Suits had been commenced for injunctions to restrain the collection of a tax for paying the interest, and the consequence was that the bonds could not be sold without a runious sacrifice, if sold at all. These suits were still pending. Meanwhile the company had borrowed thirty-six thousand dollars, pledging the bonds to the amount of eighty thousand dollars as collateral security. The loan had fallen due, and the holders were demanding payment, and threatening to sell the collaterals. The company was utterly unable to redeem the pledge. Its available means were completely exhausted. It could neither go on with its work nor in any manner relieve itself. According to the weight of the evidence the bonds pledged, together with all the others still held by the company, would not have sold for enough to have paid the thirty-six thousand dollars borrowed.

Turning now to the condition of the city. It had ratified its invalid subscription with an irrevocable engagement on the part of the company, that not more then $250,000 should be called for until the railroad should be completed and put in running order at least to its junction with the Ohio and Mississippi Railroad, and then only for the purpose of furnishing the road with depots, rolling stock, &c. It had paid its bonds to the extent of $200,000 on the subscription, and it was liable to be called upon for $50,000 more. For the remainder it was liable only upon a contingency that has never happened, and that never can happen. The consideration for its subscription, it is true, had not failed, though the motive that induced it, namely, the construction of the railroad, no longer existed. The credit of the bonds which it had issued was gone, and had it issued the remaining fifty thousand dollars, they could not have been sold for more than $8000 or $10,000. It was in these circumstances that the company applied to the city, stating its own helplessness, and it was then that the arrangement was made by which the city assumed to pay the debt of $36,000 due by the company, and sundry other moneys, and in consideration thereof obtained from the company one hundred and ninety-three bonds, which had not been negotiated, and a cancellation of the stock subscription. Was this transaction valid?

The bonds were negotiable instruments, payable to bearer in not less than ten and not more than twenty years, and, of course, passing from hand to hand by delivery. Had the whole subscription been paid, it must have been with similar bonds. And the manifest design of the subscription was to create bonds for sale in the market as the convenience or the necessities of the railroad company might require. There was no restriction in the contract upon the power of disposition, and none at law, or in equity, unless it be that the company could not part with the bonds in fraud of its stockholders or its creditors. And it had the right, which all other debtors had at the time, to make preferences among its creditors-to pay one rather than another. It is not to be disputed that, situated as the company was at the time when the contract of August and September, 1857, was made, with the debt of $36,000 pressing upon it, and with no other means of relief, it might have sold the entire lot of two hundred and forty-three bonds which it held, or was entitled to call for, at the best price that could have been obtained, and might have applied the entire proceeds, had they been needed, to pay that single debt. Of this, neither the stockholders nor the other creditors could have complained. What more has been done now? No doubt such a course would have involved an equal sacrifice to the company, and would, in the end, have been more disastrous to the city. Time has revealed that the bonds were worth more than they could have been sold for, but we are to look at the circumstances as they were when the transaction took place, in considering what was its nature and whether it was legal. But if a sale by the company at the market price, and an application of the whole proceeds to the payment of the $36,000 debt, would have been unimpeachable, why is it less so because the city became the purchaser? Beyond doubt, the city might lawfully buy its own bonds. Had the company sold to a stranger, and then the city become a purchaser from the stranger, it will not be contended that any creditor of the company could complain. And it can make no difference whether the purchase was made directly or indirectly from the first holder of the bonds, assuming that there was no fraud. The transaction, or the arrangement of August and September, 1857, was, in substance, plainly nothing more than a purchase by the city of its own bonds, some of which had been issued, and others of which it was under obligation to issue, at the call of the vendor. The price paid was $36,000, besides some thousands more which the purchaser undertook to pay. Looking at it in the light of subsequent events, it was no doubt an advantageous purchase for the city; and, if the uncontradicted evidence is to be believed, it was deemed at the time an advantageous sale or arrangement for the company. Certainly it did not place the company in any worse position than it must have held had it not been made.

It is, however, contended by the complainants, that the arrangement was fraudulent, both in law and in fact, and that neither the common councils of the city nor the directors of the railroad company had power to make it. In support of the proposition, that the transaction was ultra vires, we are referred to Bell v. Railroad Company, but that case is very unlike the present. There a popular vote, under legislative sanction, had instructed the police board to subscribe a defined amount, leaving to them no discretion. The police board were agents to carry out the popular will, with limited powers. It was not, therefore, for them to subscribe a less amount, or make any other contract, than the one they had been directed to make; and this court well said that a municipal corporation, like the board of police, could not modify or alter the stock subscription voted by the people in the absence of power from the legislature. The decision, however, was placed upon other grounds. But in the present case the common council were free to exercise their own discretion. They were under no obligation to subscribe at all, and they might take as little or as much stock as they pleased, not exceeding six hundred thousand dollars. Besides, as we have seen, the arrangement assailed by the complainants was not a modification of the subscription previously made, or a bonus given for a release. It was rather a purchase of the city debt. We think it was not beyond the power of the contracting parties.

And we are not able to perceive that it was fraudulent, either in law or in fact. It may well be doubted whether the complainants can be heard in alleging fraud. It is clear the arrangement made is binding upon the railroad company, through which, as well as against which, they claim. They can, therefore, have no standing in court, unless the arrangement was absolutely null for want of power in the parties to make it, or unless it was fraudulent as against them, and therefore voidable at their suit. We have already seen that it was not a nullity, and the bill does not charge that it was fraudulent. It avers that the arrangement and compromise and attempted cancellation of the subscription were entirely null and void, but it does not allege that they were fraudulently made. In urging fraud now the complainants are setting up a case not made by the pleadings. But it is not necessary to place our decision on this ground. No doubt the subscribed capital stock of a corporation is a fund held by it in trust for its creditors, as is also all its other property, and had the railroad company released, without equivalent consideration, or given it away, its action would have been fraudulent, and might have been set aside by a court of equity. But certainly it was in the power of the directors to apply the subscription on bonds taken in payment to the extinguishment of debts, and, if thus applied in good faith, all being obtained for it that it was worth, no one has been wronged. It is, therefore, a question of fact to be determined by the evidence, whether the bonds and the balance of the city's subscription were thus applied. Upon this subject we have already remarked at considerable length. We may add the evidence is convincing that the contract between the city and the company was made in the utmost good faith, with no intention to wrong creditors of the latter; that it was at the time considered advantageous to the company, and it is not proved that all was not paid for the bonds issued and to be issued that they could have been sold for in the market.

We will not pursue this branch of the case further. Were it even conceded that the arrangement of August and September, 1857, might have been set aside at the instance of creditors of the company, the laches of the complainants is fatal to their bill. This suit was not brought until the 29th day of January, 1868. The contract assailed was consummated September 8, 1857. It was not made in secret. There was no attempt at concealment. On the contrary, the ordinance of the city was published at the time. The insolvency of the company, as well as its abandonment of its work on the railroad, was known. It is asserted in complainants' bill. Injunction suits were then pending against the city. The return of nulla bona to the complainants' execution against the railroad company was made on the first of December, 1858. Then their right, if any they had, to attack the compromise as fraudulent was perfect. Yet they remained inactive more than nine years, and it was not until after a speculator had purchased a large part of the judgment that this bill was brought. An attempt has been made to excuse this long delay, by the testimony of one of the complainants that he had never heard of the compromise of the city's subscription until a time which was subsequent to the commencement of the suit. But he does not say that he had not full possession of the means of detecting the fraudulent arrangement, if it was fraudulent, or that there had been any concealment; and the possession of such means of knowledge is, in equity, the same as knowledge itself. Moreover, the other evidence in the case is irreconcilable with this statement of the witness. He had attorneys who knew of the compromise from the first. He himself went to New Albany, in the spring of 1858, for the purpose of making a thorough examination of the affairs of the company, and another witness thinks he was then informed of the arrangement. There is not the slightest evidence that any other one of the complainants was not fully apprised of what had been done from the time of the transaction, and certainly they all had the fullest means of knowledge. No excuse is, therefore, shown for their long delay, and it is difficult to see why they are not barred by the rule in equity analogous to the statute of limitations. Upon this subject it is unnecessary to cite authorities. They are to be found in numbers in the decisions of this court, as well as elsewhere. It is not to be questioned that a direct suit at law, founded upon alleged fraud in making the compromise, would have been barred by the Indiana statutory limitation of six years. It cannot be maintained that supine negligence and lapse of time are less efficient in a court of equity.

These views of the case render it unnecessary to consider the other defences set up against the complainants' right to recover.

DECREE REVERSED, and the cause remanded, with instructions to DISMISS the complainants' bill as against the city of New Albany.


text: Talk:New Albany v. Burke/Opinion of the Court


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Dows v. City of Chicago

APPEALS from decrees of the Circuit Court of the United States for the Northern District of Illinois in two suits; one original, the other a cross suit. The bill in the original suit was filed by the complainant to restrain the collection of a tax levied by the city of Chicago upon shares of the capital stock of the Union National Bank of Chicago, owned by him. The bank was organized and doing business in the city of Chicago, under the general banking act of Congress, and the complainant was a citizen and resident of the State of New York.

The principal grounds alleged for the relief prayed were, that there was, in the tax of the shares of the bank, a want of uniformity and equality with the tax of other personal property in Illinois, as required by the constitution of that State; and that the shares of the bank followed the person of the owner, and were incapable of having any other situs than that of his domicile, and were not, therefore, property within the jurisdiction of the State.

Other objections, relating principally to the manner in which the tax lists were prepared, the want of notice of the assessment to the complainant, and the absence of any deductions for debts, were also urged, tending more to show irregularities in the proceedings than invalidity in the tax. No special circumstances respecting the tax, or its enforcement, were alleged in support of the equitable jurisdiction of the court.

The bill in the cross suit was filed by the Union National Bank of Chicago, and, besides alleging the illegality of the tax assessed, on various grounds, averred that if the shares were permitted to be sold, irreparable damage would not only be done to each of the shareholders, but also to the bank, which would be thereby subjected to great loss of standing and other injury, for the redress of which the law afforded no remedy; and that such also would be the result if the bank paid the taxes, and was subjected to suits by each of the shareholders by reason of doing so; and that in either event a multiplicity of suits would be rendered necessary to adjust the rights of the parties. A demurrer was interposed to the bills, original and cross. The Circuit Court sustained the demurrers to both, and the complainants in the two cases electing to abide by their bills, the court entered decrees dismissing the bills. From these decrees appeals were taken.

Messrs. M. F. Fuller and J. H. Roberts, for the appellants.

M. F. Tuley, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Dows v. City of Chicago


text: Talk:Dows v. City of Chicago

title: Talk:Dows v. City of Chicago


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Dows v. City of Chicago/Opinion of the Court

According to the view we take of this case, it is unnecessary to consider the force of any of the objections urged by the appellants to the decrees rendered. Assuming the tax to be illegal and void, we do not think any ground is presented by the bill justifying the interposition of a court of equity to enjoin its collection. The illegality of the tax and the threatened sale of the shares for its payment constitute of themselves alone no ground for such interposition. There must be some special circumstances attending a threatened injury of this kind, distinguishing it from a common trespass, and bringing the case under some recognized head of equity jurisdiction before the preventive remedy of injunction can be invoked. It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public.

No court of equity will, therefore, allow its injunction to issue to restrain their action, except where it may be necessary to protect the rights of the citizen whose property is taxed, and he has no adequate remedy by the ordinary processes of the law. It must appear that the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, or where the property is real estate, throw a cloud upon the title of the complainant, before the aid of a court of equity can be invoked. In the cases where equity has interfered, in the absence of these circumstances, it will be found, upon examination, that the question of jurisdiction was not raised, or was waived. Such was the case of The Bank of Utica v. The City of Utica, where the tax was illegal, and the chancellor stated that the complainant had a complete remedy at law, but as the parties submitted themselves to the jurisdiction of the court, he passed upon the case and enjoined the defendants from collecting the tax. So in the case of The Utica Manufacturing Company v. The Supervisors of Oneida County, a demurrer to a bill filed to restrain an illegal tax having been overruled, the chancellor affirmed the ruling, stating, however, that as no question was raised by counsel respecting the jurisdiction of the court, he had not considered whether it was a proper case for equitable cognizance.

Numerous cases are found in the reports where jurisdiction has been taken under similar circumstances and the collection of an illegal tax restrained, but our attention has not been called to any well-considered case where a court of equity has interfered by injunction after its jurisdiction was questioned, except upon some one of the special circumstances mentioned.

The decision of the Court of Appeals of New York in Heywood v. The City of Buffalo, is in conformity with the views here expressed. In that case the court held the general rule to be that a court of equity will not entertain an action by the party aggrieved for relief against an erroneous or illegal assessment, but said that this rule was subject to three exceptions, substantially these: where the enforcement of the assessment would lead to a multiplicity of suits, or where it would produce irreparable injury, or where the assessment on the face of the proceedings was valid, and extrinsic evidence would be required to show its invalidity. Whenever a case was made by the pleadings falling within either of these exceptions, the court said that equity would interfere to arrest the excessive litigation, or prevent the irreparable injury, or remove the cloud upon the title, but would not interfere where none of these circumstances existed. In Susquehanna Bank v. The Supervisors of Broome County, the same doctrine was substantially repeated, the court declaring that a bill to restrain the collection of a tax would not lie unless the case was brought within some acknowledged head of equity jurisdiction.

The Supreme Court of Illinois is equally clear upon this question. In the case of Cook County v. The Chicago, Burlington, and Quincy Railroad Company, the subject was considered, and the court said that it had been unable to find any decision, in its previous adjudications, asserting a right to bring a bill to restrain the collection of a tax illegally assessed, without regard to special circumstances. It concludes an examination of its former decisions by stating, that while it was considered settled that a court of equity would never entertain a bill to restrain the collection of a tax, except in cases where the tax was unauthorized by law, or where it was assessed upon property not subject to taxation, it had never held that jurisdiction would be taken in these excepted cases without special circumstances, showing that the collection of the tax would be likely to produce irreparable injury, or cause a multiplicity of suits.

Upon principle this must be the case. The equitable powers of the court can only be invoked by the presentation of a case of equitable cognizance. There can be no such case, at least in the Federal courts, where there is a plain and adequate remedy at law. And except where the special circumstances which we have mentioned exist, the party of whom an illegal tax is collected has ordinarily ample remedy, either by action against the officer making the collection or the body to whom the tax is paid. Here such remedy existed. If the tax was illegal, the plaintiff protesting against its enforcement might have had his action, after it was paid, against the officer or the city to recover back the money, or he might have prosecuted either for his damages. No irreparable injury would have followed to him from its collection. Nor would he have been compelled to resort to a multiplicity of suits to determine his rights. His entire claim might have been embraced in a single action.

We see no ground for the interposition of a court of equity which would not equally justify such interference in any case of threatened invasion of real or personal property.

The cross-bill filed by the bank presents different features. That institution insists that if it paid the tax levied upon the shares of all its numerous stockholders out of the dividends upon their shares in its hands, which it is required to do by the law of the State, or if the shares were sold, it would be subjected to a multiplicity of suits by the shareholders, and were it an original bill the jurisdiction of the court might be sustained on that ground. But as a cross-bill it must follow the fate of the original bill.

DECREES AFFIRMED IN BOTH SUITS.


text: Talk:Dows v. City of Chicago/Opinion of the Court


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The Collector v. Day

ERROR to the Circuit Court for the District of Massachusetts; the case being thus:

The Constitution of the United States ordains that

'Congress shall have power to lay and collect taxes, duties imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises, shall be uniform throughout the United States.'

And an amendment to it, that

'The powers not delegated to the United States are reserved to the States respectively, or to the people.'

With these provisions in force as fundamental law, Congress by certain statutes passed in 1864, '5, '6, and '7, enacted that

'There shall be levied, collected, and paid annually upon the gains, profits, and income of every person residing in the United States,. . . whether derived from any kind of property, rents, interest, dividends, or salaries, or from any profession, trade, employment or vocation, carried on in the United States or elsewhere, or from any other source whatever, a tax of 5 per centum on the amount so derived, over $1000.'

Under these statutes, one Buffington, collector of the internal revenue of the United States for the district, assessed the sum of $61.50 upon the salary, in the years 1866 and 1867, of J. M. Day, as judge of the Court of Probate and Insolvency for the County of Barnstable, State of Massachusetts. The salary was fixed by law, and payable out of the treasury of the State. Day paid the tax under protest, and brought the action below to recover it.

The case was submitted to the court below on an agreed statement of facts, upon which judgment was rendered for the plaintiff. The defendant brought the case here for review; the question being, of course, whether the United States can lawfully impose a tax upon the income of an individual derived from a salary paid him by a State as a judicial officer of that State.

Mr. Akerman, Attorney-General, and Mr. John C. Ropes (with a brief of Mr. Ropes), for the collector, plaintiff in error:

In the exercise of its granted powers, the Federal government is supreme. Under the general power of taxation, every man and every thing throughout the country (exports excepted) are subject to taxation in the discretion of Congress, provided that the power be exercised for the purposes declared in the Constitution, and not for unauthorized purposes, and that the conditions of its exercise, prescribed in the Constitution, uniformity, &c., be complied with.

1. What was granted to the Federal government was the power of taxation for certain purposes (the common debts, the common defence, the general welfare), for none of which were the particular States bound any longer to provide. These burdens were now thrown on the general government, and the resources on which each State had been able to draw to meet the requisitions of the Congress of the Confederation for money to defray these burdens, were naturally placed at the direct disposal of the United States. The idea was, not to exempt certain classes of persons or objects from their share of the public burdens; to exempt a judge of probate, for instance, from his share of the tax necessary to meet the interest on the public debt, or support the army and navy; but merely to lay these public duties on the general government instead of the States. With the duties went also the power to discharge them; the general government took by the Constitution an exclusive rights to tax imports, and shared with the States the rights of taxation retained by them. Nobody was to be exempted; nobody was to be taxed any more than he had been before. It was simply a change of the sovereign charged with the public duty, and who was therefore clothed with the power to discharge that duty. When the United States repays to a particular State money expended by that State for the public welfare, and originally raised by State taxation from the incomes of State officers among others, nobody imagines that the State officers can claim their share of this tax from the State. Why should they not therefore pay it in the first instance to the United States?

So a section of the statute now under consideration, taxing the issues of State banks so excessively as to drive their notes out of circulation, has been held constitutional. And the court were unanimous in the opinion, that Congress can tax the property of the banks and of all other corporate bodies of a State, the same as that of individuals.

It will not be pretended, on the other side, that the income of an individual derived exclusively from State stock would be exempted from this income tax. Yet the courts have recognized a strong analogy between the taxation of the issues of a bank, of the office of an officer, and of stock as such: is there not a similar analogy between income derived from the business of the bank, from the dividends of the stock, and from the salary of the office? If one is taxable, are not they all?

Again: who are to be thus exempted from bearing all direct share in the maintenance of the National government? Is the exemption to be confined to judges of State courts? or are all officers of the State and municipal governments to be equally exempt? If not, why not?

Further: suppose the defendant in error had been drafted into the army under a general conscription law, would his office have saved him? If it would, how far is this exemption to extend? Are justices of the peace and aldermen exempt? And is it to be supposed that the number of persons exempt in a particular State from military duty depends on the laws of that State; that the fact of a man's holding a commission as a State judge exempts him from serving in the army of the United States in time of war?

It will doubtless be urged that within the sphere of their jurisdiction, the States are as independent of the Federal government, as the government, within its sphere, is independent of the States; and that a government whose officers are taxed cannot be considered independent.

But this independence of the States is confined to a certain sphere by the terms of one objection. That is to say, it is an independence consistent with the supreme authority of another government over its citizens, and its property, for certain of the most important purposes of government. Can that State be in any sense independent, all of whose citizens may, against their will, be drafted into the army; and all of whose citizens, except its officers (to adopt the defendant's theory), may be at any time deprived by another government of a percentage of their income to defray the expense of a war, to which, perhaps, they are all opposed? Is it any more an abridgment of the independence and sovereignty of a State to tax the agents of the people, than to tax the people themselves?

None of these abstract theories are pertinent to the case. The people, acting through the States, have given to the general government certain duties to perform, and a general power of taxation to enable it to perform those duties. Whoever and whatever would have been liable for such taxation had the States been independent, and retained these charges in their own hands, are made liable for the same taxation from the new government. The sphere of the latter was limited by express provisions; by restricting the objects for which taxes could be levied; by defining the mode of levying them so as to insure uniformity throughout the country; by excluding exports from all liability to taxation; and, in general, by conferring upon the general government a few only of the powers possessed by a nation. But when the general government acts within its prescribed limits and for its prescribed purposes, its power overrides everything in the country, and there is no limit to its reach. It is of no avail to plead that a man is a State officer, or that his income was paid him by the State; if the government need him or his money for legitimate purposes, they can take both in the way pointed out by the Constitution; exactly as the government of his own State could have done had it retained the powers which it has expressly granted to the United States.

Do we then assert for the general government that it can tax the State governments out of existence? By no means: no more than it can tax the people out of existence. The United States taxes must be uniform; they can be levied only for certain definite objects; they must be conformed to the general principles and practice of taxation. Whatever injury they do to the State governments is an incidental injury. The taxes would have to be levied by the States themselves if they had not granted the power to do so to the United States. No more money is exacted of the citizen in one case than in the other. The power of the general government is only to be exercised for certain purposes, and then only under certain conditions. These provisions were thought adequate to guard against encroachment on the part of the Federal government in the matter of taxation; and as long as the Federal government levies its taxes with the uniformity required by the Constitution, there is and can be no danger to the State governments, for the reason that the officer can be taxed no more than the citizen,-the burden falls on all alike. Whatever burden the people of the United States are willing to impose on themselves can be borne by the State officers in common with the rest of the people, without any injury to the State governments.

The difficulty about this subject has arisen from the mistake of applying the language used by this court, when the propriety of subjecting the powers and property of the United States to the varying taxation of the different States, was in question, to a case where the United States proposes to impose its uniform taxes on the persons and property in all the States, over which and over whom it holds, by virtue of an express grant, a concurrent power of taxation with the States themselves.

It has been decided that a State cannot tax the means used by the general government to execute its granted powers; because, in the first place, the Constitution expressly provided that in the exercise of these powers, the general government should be supreme; because, in the next place, exemption from State taxation was implied in the very grant itself; and also, because it would be practically impossible to carry out the powers granted to the general government if their execution was to be hindered by the taxation which any State might see fit to impose on the means used to carry them out. So far as this question was concerned, it was as if the several States had granted these powers to a foreign government; had guaranteed that in the exercise of these powers the laws of that government should be supreme; and had then undertaken to tax the banks stock, and the other means used to carry out these powers. And had the foreign government, in its turn, granted similar powers to the several States, and had then undertaken to tax the agents and means used by the State to carry out these powers, the same reasoning would exempt the officers and agencies of the State. But this is not our case. There never was any grant of powers by the United States to the several States. Consequently there is no parallel. The States reserved to themselves whatever rights of government they did not grant to the United States; they granted to the United States a concurrent right with themselves of taxation for certain objects; and if in the exercise of that right the United States taxes officers and private citizens alike, it does so by virtue of that grant of concurrent taxation.

All that we contend for is the common liability of State officers for their property. If indeed Congress should impose a license tax on all State officers-should require a man to pay fifty dollars, for instance, in order to discharge the duties of a judge of probate, or State treasurers to pay to the United States 5 per cent. of all moneys in their hands-the constitutionality of the enactments might well be doubted. It might be tested by the inquiry whether they were passed to carry out the purposes for which the right of taxation was given to Congress; whether, in fact, their purpose was not manifestly to injure the State governments.

But taxation of the incomes of State officers derived from their salaries is exactly that taxation which the State makes. Therefore, the right to do the same for certain objects was granted to the United States under the general power of concurrent taxation.

It will be said that the tax in this case is in reality a tax on the revenues of the State, which are withdrawn from the taxing power of Congress. But inasmuch as a tax in all respects similar is imposed on the State officers by the State itself, we have, if this proposition be true, the singular spectacle of a State taxing its own revenues. The same observation may be made regarding the operation of the income tax on the salaries of United States officers. The truth is, that in no proper sense is a tax upon income derived from a salary paid by a State or by the United States a tax upon the State treasury, or upon that of the United States.

A similar consideration is an answer to the suggestion that this income tax is a tax upon the State officers, as such. It is no more so than the like tax imposed by the State itself. The propriety of making all officers bear their proportion of the public burdens has commended this course alike to the States and the general government; but shall we say that the State taxes the office of a judge of probate? Or that the United States taxes the office of a major-general? Is it not clear that when the salary has been paid, it belongs to the officer who receives it, and that he must contribute out of his substance as well to the support of the army and navy of his country as of the schools and poor-houses of his State? Is there any subjugation of State authority here?2. But adopt the general theory of the other side, that this case is controlled by the cases in which the right of the States to tax the agencies of the Federal government has been denied, we submit, that according to these cases the tax in question can be sustained.

The cases referred to are cases of attempted direct interference by the States with the means used by the general government to carry out its powers; the difference between them and the present case is striking, and material.

In McCulloch v. Maryland, the leading case, the State of Maryland undertook to tax the issues of notes of a bank of the United States. The court held that this was a tax on the means used by the general government to execute one of their powers, and that the sovereignty of the State did not extend to those means. But the court said that the real estate of the bank, and the property of the citizens of the State in the bank, which are subject to the sovereignty of the State, were liable to State taxation.

In Weston v. Charleston, the city of Charleston undertook to tax '''six and seven per cent. stock of the United States.' The court said that this was a tax upon the contract subsisting between the United States and the individual-a tax on the power to borrow money'' on the credit of the United States, which was not within the sovereignty of the State.

In Dobbins v. The Commissioners of Erie County, the case stated shows that the plaintiff had been rated and assessed with county taxes 'as an officer of the United States, for his office, as such, valued at $500.' And the statute of Pennsylvania authorized an assessment upon 'all offices and posts of profit.' The court held that the statute could not comprehend the offices of the United States, and that is the point adjudged. The dicta and reasoning in the opinion, or of the judge who delivered it, are of no authority. The case fell precisely within the principles laid down in McCulloch v. Maryland, and followed in Weston v. Charleston; namely, that a State cannot tax the means used by the government of the Union to execute its powers. The court also held that no State could diminish by taxation the amount of the compensation paid by the United States to their officers; but that this principle could not serve also to exempt State officers from taxation by the United States, is more than intimated in the following sentence from the opinion of the court:

'The officers execute their officers for the public good. This implies their right of reaping from thence the recompense the services they may render may deserve; without that recompense being in any way lessened, except by the sovereign power from whom the officer derives his appointment, or by another sovereign power to whom the first has delegated the right of taxation over all the objects of taxation in common with itself, for the benefit of both.'

If now we apply to the tax in question the test laid down by Chief Justice Marshall in McCulloch v. Maryland-if we measure the power of taxation by the extent of sovereignty-we find a distinct grant from the States to the United States of sovereignty, and of the sovereign power of taxation over all the objects of taxation (except exports)-exclusive as regards imports-concurrent with the States as regards everything else. We find this defendant's income derived from his salary as judge of probate, regarded as a proper object of taxation by the State, and taxed as other property; the inference is unavoidable that it is equally taxable by the United States.

But if it be argued that the sovereignty of the States requires that the same exemptions should be made from the taxation of the United States, which have been made from the taxation of the States in favor of the means used by the general government to execute its sovereign powers-we maintain—

a. That it has never yet been held that a State cannot tax the income of an officer of the Federal government as property.

b. But the conclusive answer to this argument is, that this court has already decided otherwise in Veazie Bank v. Fenno. We refer specially to this case. It was a case almost parallel to McCulloch v. Maryland-where the question was, whether a tax of 10 per cent. on the issues of a State bank was valid; and the court held it was valid. It held, in Veazie Bank v. Fenno, by a majority of the court, that the United States could lawfully tax the operations of a State bank, even with the purpose of driving its issues of notes out of circulation.

But to this point it is not necessary for us to go in the case before us. All the court were agreed that the property of the banks, and of all other incorporated institutions of the States, could be taxed by the United States the same as that of individuals; that is to say, that property acquired under a grant from a State, in the exercise of one of its sovereign powers, is subject to that uniform taxation which the Federal government can impose upon all the property in the country. Now all that we contend for in this case is, that property, paid to an individual as an officer of a State by a State, in the exercise of its constitutional power to have such officers, is subject to the same taxation from the Federal government.

Mr. Dwight Foster, contra.

Mr. Justice NELSON delivered the opinion of the court.

title: The Collector v. Day


text: Talk:The Collector v. Day

title: Talk:The Collector v. Day


text:
The Collector v. Day/Opinion of the Court

The case presents the question whether or not it is competent for Congress, under the Constitution of the United States, to impose a tax upon the salary of a judicial officer of a State?

In Dobbins v. The Commissioners of Erie County, it was decided that it was not competent for the legislature of a State to levy a tax upon the salary or emolumnets of an officer of the United States. The decision was placed mainly upon the ground that the officer was a means or instrumentality employed for carrying into effect some of the legitimate powers of the government, which could not be interfered with by taxation or otherwise by the States, and that the salary or compensation for the service of the officer was inseparably connected with the office; that if the officer, as such, was exempt, the salary assigned for his support or maintenance while holding the office was also, for like reasons, equally exempt.

The cases of McCulloch v. Maryland, and Weston v. Charleston, were referred to as settling the principle that governed the case, namely, 'that the State governments cannot lay a tax upon the constitutional means employed by the government of the Union to execute its constitutional powers.'

The soundness of this principle is happily illustrated by the Chief Justice in McCulloch v. Maryland. 'If the States,' he observes, 'may tax one instrument employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent-rights; they may tax judicial process; they may tax all the means employed by the government to an excess which would defeat all the ends of government.' 'This,' he observes, 'was not intended by the American people. They did not design to make their government dependent on the States.' Again, 'That the power of taxing it (the bank) by the States may be exercised so far as to destroy it, is too obvious to be denied.' And, in Weston v. The City of Charleston, he observes: 'If the right to impose the tax exists, it is a right which, in its nature, acknowledges no limits. It may be carried to any extent within the jurisdiction of the State or corporation which imposes it which the will of each State and corporation may prescribe.'

It is conceded in the case of McCulloch v. Maryland, that the power of taxation by the States was not abridged by the grant of a similar power to the government of the Union; that it was retained by the States, and that the power is to be concurrently exercised by the two governments; and also that there is no express constitutional prohibition upon the States against taxing the means or instrumentalities of the general government. But, it was held, and, we agree properly held, to be prohibited by necessary implication; otherwise, the States might impose taxation to an extent that would impair, if not wholly defeat, the operations of the Federal authorities when acting in their appropriate sphere.

These views, we think, abundantly establish the soundness of the decision of the case of Dobbins v. The Commissioners of Erie, which determined that the States were prohibited, upon a proper construction of the Constitution, from taxing the salary or emoluments of an officer of the government of the United States. And we shall now proceed to show that, upon the same construction of that instrument, and for like reasons, that government is prohibited from taxing the salary of the judicial officer of a State.

It is a familiar rule of construction of the Constitution of the Union, that the sovereign powers vested in the State governments by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States. That the intention of the framers of the Constitution in this respect might not be misunderstood, this rule of interpretation is expressly declared in the tenth article of the amendments, namely: 'The powers not delegated to the United States are reserved to the States respectively, or to the people.' The government of the United States, therefore, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication.

The general government, and the States, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former in its appropriate sphere is supreme; but the States within the limits of their powers not granted, or, in the language of the tenth amendment, 'reserved,' are as independent of the general government as that government within its sphere is independent of the States.

The relations existing between the two governments are well stated by the present Chief Justice in the case of Lane County v. Oregon. 'Both the States and the United States,' he observed, 'existed before the Constitution. The people, through that instrument, established a more perfect union, by substituting a National government, acting with ample powers directly upon the citizens, instead of the Confederate government, which acted with powers greatly restricted, only upon the States. But, in many of the articles of the Constitution, the necessary existence of the States, and within their proper spheres, the independent authority of the States, are distinctly recognized. To them nearly the whole charge of interior regulation is committed or left; to them, and to the people, all powers, not expressly delegated to the National government, are reserved.' Upon looking into the Constitution it will be found that but a few of the articles in that instrument could be carried into practical effect without the existence of the States.

Two of the great departments of the government, the executive and legislative, depend upon the exercise of the powers, or upon the people of the States. The Constitution guarantees to the States a republican form of government, and protects each against invasion or domestic violence. Such being the separate and independent condition of the States in our complex system, as recognized by the Constitution, and the existence of which is so indispensable, that, without them, the general government itself would disappear from the family of nations, it would seem to follow, as a reasonable, if not a necessary consequence, that the means and instrumentalities employed for carrying on the operations of their governments, for preserving their existence, and fulfilling the high and responsible duties assigned to them in the Constitution, should be left free and unimpaired, should not be liable to be crippled, much less defeated by the taxing power of another government, which power acknowledges no limits but the will of the legislative body imposing the tax. And, more especially, those means and instrumentalities which are the creation of their sovereign and reserved rights, one of which is the establishment of the judicial department, and the appointment of officers to administer their laws. Without this power, and the exercise of it, we risk nothing in saying that no one of the States under the form of government guaranteed by the Constitution could long preserve its existence. A despotic government might. We have said that one of the reserved powers was that to establish a judicial department; it would have been more accurate, and in accordance with the existing state of things at the time, to have said the power to maintain a judicial department. All of the thirteen States were in the possession of this power, and had exercised it at the adoption of the Constitution; and it is not pretended that any grant of it to the general government is found in that instrument. It is, therefore, one of the sovereign powers vested in the States by their constitutions, which remained unaltered and unimpaired, and in respect to which the State is as independent of the general government as that government is independent of the States.

The supremacy of the general government, therefore, so much relied on in the argument of the counsel for the plaintiff in error, in respect to the question before us, cannot be maintained. The two governments are upon an equality, and the question is whether the power 'to lay and collect taxes' enables the general government to tax the salary of a judicial officer of the State, which officer is a means or instrumentality employed to carry into execution one of its most important functions, the administration of the laws, and which concerns the exercise of a right reserved to the States?

We do not say the mere circumstance of the establishment of the judicial department, and the appointment of officers to administer the laws, being among the reserved powers of the State, disables the general government from levying the tax, as that depends upon the express power 'to lay and collect taxes,' but it shows that it is an original inherent power never parted with, and, in respect to which, the supremacy of that government does not exist, and is of no importance in determining the question; and further, that being an original and reserved power, and the judicial officers appointed under it being a means or instrumentality employed to carry it into effect, the right and necessity of its unimpaired exercise, and the exemption of the officer from taxation by the general government stand upon as solid a ground, and are maintained by principles and reasons as cogent as those which led to the exemption of the Federal officer in Dobbins v. The Commissioners of Erie from taxation by the State; for, in this respect, that is, in respect to the reserved powers, the State is as sovereign and independent as the general government. And if the means and instrumentalities employed by that government to carry into operation the powers granted to it are, necessarily, and, for the sake of self-preservation, exempt from taxation by the States, why are not those of the States depending upon their reserved powers, for like reasons, equally exempt from Federal taxation? Their unimpaired existence in the one case is as essential as in the other. It is admitted that there is no express provision in the Constitution that prohibits the general government from taxing the means and instrumentalities of the States, nor is there any prohibiting the States from taxing the means and instrumentalities of that government. In both cases the exemption rests upon necessary implication, and is upheld by the great law of self-preservation; as any government, whose means employed in conducting its operations, if subject to the control of another and distinct government, can exist only at the mercy of that government. Of what avail are these means if another power may tax them at discretion?

But we are referred to the Veazie Bank v. Fenno, in support of this power of taxation. That case furnishes a strong illustration of the position taken by the Chief Justice in McCulloch v. Maryland, namely, 'That the power to tax involves the power to destroy.' The power involved was one which had been exercised by the States since the foundation of the government, and had been, after the lapse of three-quarters of a century, annihilated from excessive taxation by the general government, just as the judicial office in the present case might be, if subject, at all, to taxation by that government. But, notwithstanding the sanction of this taxation by a majority of the court, it is conceded, in the opinion, that 'the reserved rights of the States, such as the right to pass laws; to give effect to laws through executive action; to administer justice through the courts, and to employ all necessary agencies for legitimate purposes of State government, are not proper subjects of the taxing power of Congress.' This concession covers the case before us, and adds the authority of this court in support of the doctrine which we have endeavored to maintain.

JUDGMENT AFFIRMED.


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Page:Popular tales from the Norse (1912).djvu/557

 Rh his word sore against his will Still they got ready the wedding-feast, and she was dressed up and decked out as a bride; but as they rode to church, a little bird sat upon a tree and sang,—

And, sure enough, when they looked to it, the bird told the truth, for blood gushed out of the shoe.

Then all the maids and women who were about the palace had to go up to try on the shoe, but there was none of them whom it would fit at all.

"But where's Katie Woodencloak?" asked the Prince, when all the rest had tried the shoe, for he understood the song of birds very well, and bore in mind what the little bird had said.

"Oh, she! think of that!" said the rest; it's no good her coming forward. "Why, she's legs like a horse."

"Very true, I daresay," said the Prince; "but since all the others have tried, Katie may as well try too."

"Katie!" he bawled out through the door; and Katie came trampling up-stairs, and her wooden cloak clattered as if a whole regiment of dragoons were charging up.

"Now, you must try the shoe on, and be a Princess, you too," said the other maids, and laughed and made game of her.

So Katie took up the shoe, and put her foot into it like nothing, and threw off her wooden cloak; and so there she stood in her gold kirtle, and it shone so that the sunbeams


text: Talk:The Collector v. Day/Opinion of the Court


text:
United States Code/Title 11/Chapter 5/Section 509

§ 509. Claims of codebtors

 * (a) Except as provided in subsection (b) or (c) of this section, an entity that is liable with the debtor on, or that has secured, a claim of a creditor against the debtor, and that pays such claim, is subrogated to the rights of such creditor to the extent of such payment.

 * (b) Such entity is not subrogated to the rights of such creditor to the extent that—
 * (1) a claim of such entity for reimbursement or contribution on account of such payment of such creditor’s claim is—
 * (A) allowed under section 502 of this title;
 * (B) disallowed other than under section 502 (e) of this title; or
 * (C) subordinated under section 510 of this title; or
 * (2) as between the debtor and such entity, such entity received the consideration for the claim held by such creditor.

 * (c) The court shall subordinate to the claim of a creditor and for the benefit of such creditor an allowed claim, by way of subrogation under this section, or for reimbursement or contribution, of an entity that is liable with the debtor on, or that has secured, such creditor’s claim, until such creditor’s claim is paid in full, either through payments under this title or otherwise.


text:
Transportation Company v. Downer

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

This case was an action against the Western Transportation Company to recover damages sustained by the plaintiff from the loss of eighty-four bags of coffee belonging to him which the company had undertaken to transport from New York to Chicago. The company was a common carrier, and in the course of the transportation had shipped the coffee on board of the propeller Buffalo, one of its steamers on the lakes. The testimony showed that the steamer was seaworthy, and properly equipped, and was under the command of a competent and experienced master, but on entering the harbor of Chicago in the evening she touched the bottom, and not answering her helm, got aground, and during the night which followed kept pounding, and thus caused the hold to fill with water. The result was, that the coffee on board was so damaged as to be worthless.

The bill of lading given to the plaintiff by the transportation company at New York, exempted the company from liability for losses on goods insured and losses occasioned by the 'dangers of navigation on the lakes and rivers.' The defence made in the case was, that the loss of the coffee came within this last exception.

Upon the trial the plaintiff having shown that the defendant had the coffee for transportation, and that the same was lost, the defendant then showed by competent evidence that the loss was occasioned in the manner above stated, that is, by one of the 'dangers of lake navigation.' The plaintiff then endeavored to prove that this danger and the consequent loss might have been avoided by the exercise of proper care and skill. The defendant moved the court to instruct the jury as follows:'If the jury believe from the evidence that the loss of the coffee in controversy was within one of the exceptions contained in the bill of lading offered in evidence, that is to say, if it was occasioned by perils of navigation of the lakes and rivers, then the burden of showing that this loss might have been avoided by the exercise of proper care and skill is upon the plaintiff; then it is for him to show that the loss was the result of negligence.'

The court refused to give this instruction and the defendant excepted, and at the request of the plaintiff, gave instead, the following, to the giving of which the defendant also excepted, viz.:

'The bill of lading in this case excepts the defendant from liability, when the property is not insured, from perils of navigation. It is incumbent on the defendant to bring itself within the exception, and it is the duty of the defendant to show that it has not been guilty of negligence.'

The plaintiff recovered, and the defendant brought the case here on writ of error.

Messrs. J. N. Jewett and G. B. Hibbard, for the plaintiff in error:

The case of Clark v. Barnwell, in this court, shows that the doctrine for which we contended below is the true one, and the principle of that case has been recognized and established in numerous other cases.

Mr. J. T. Mitchell, contra:

The weight of authority is in favor of the instruction complained of.

In Whitesides v. Russell, a steamboat ran on a rock in the Ohio River and knocked a hole in her bottom, whereby her cargo was damaged. The bill of lading excepted losses by 'dangers of the river,' and the carrier was held to have the onus of proving, not only how the loss occurred, but that he had used due diligence and skill.

So in Hays v. Kennedy, where Lowrie, C. J., says:

'From the very nature of the relation the burden of the proof of a loss by inevitable accident is thrown upon the carrier. He must prove not only an accident which the law admits as inevitable in its character, but also that he was guilty of no fault in falling into the danger, or in his efforts to extricate himself from it.'

In Graham v. Davis, the Supreme Court of Ohio decided this precise point. The case was ably argued and elaborately considered both on principle and on authority, and the decision is entitled to great weight. The reason of it is stated by Ranney, J., with clearness.

This rule is established also in other States.

If the case of Clark v. Barnwell-relied on by the other side for the position that it is sufficient for the carrier to show an accident, which may or may not be a danger of navigation (that is, such a danger as reasonable skill and care could not avoid), to put on the plaintiff the burden of proving negligence-can be considered as deciding so broad a proposition, then it is erroneous in principle and against the great weight of authority. It is supported only by a Nisi Prius opinion of Lord Denman, and the cases in the United States courts, which have followed it as authority, without examining the ground upon which it rested. The principal State courts in which it has been cited have refused to follow so clear a departure from established principles.

But the decision does not in reality go to the extent claimed. In that case, the carrier proved affirmatively that his ship was tight and staunch, well equipped and manned, and that the cargo was well stowed and dunnaged. He, in fact, proved all the elements of proper skill and care on his part. The case was argued and decided on the evidence, not on the burden of proof. The subject of the burden of proof was not argued at all, and the remarks of the court upon it were not necessary to the result arrived at. The decision was right on the evidence, and it is fairly inferrible from the report, that all that was meant to be laid down as to the burden of proof was, that after the carrier had proved due care and skill (which he had done in that case), the plaintiff was still at liberty to rebut that evidence, and assume the burden of proving negligence. This is unexceptionable doctrine, and the case is authority for so much, but not for anything more.

Mr. Justice FIELD delivered the opinion of the court.

title: Transportation Company v. Downer


text: Talk:Transportation Company v. Downer

title: Talk:Transportation Company v. Downer