text:
Stephenson v. Brooklyn Cross-Town Railroad Company/Opinion of the Court

We shall consider each of the patents in the order above stated. The invention described in the O'Haire patent consists of a combination and arrangement of devices by which the rear door of a street car can be opened and closed by the driver from the front platform where he stands, in order to let passengers into or out of the car. The drawing by which the specification is illustrated shows the frame of an ordinary street car provided with a door which is supported upon and moves back and forth upon suitable pulleys and ways, which, it is said, may be arranged in any desired manner. Passing through the bar from which the hand-straps are suspoended, and which is made hollow, is a rod or rock-shaft which has a lever or crank upon its front end within easy reach of the driver. Upon its rear end is a similar lever or crank carrying a roller, which works up and down in a rectangular guiding-frame secured to the rear edge of the door, and by which the door is opened and closed. The driver, by a slight push upon the front lever, can open the door, or, by a pull towards him, can close it without moving off his seat. The claim is as follows: 'The rod, i, crank or lever, 3, and guiding-frame, 6, secured to the door and combined with an operating lever for the driver, substantially as shown and described.'

The infringement charged against the defendant was the use of cars containing an 'improvement in operating car-doors,' described in the patent of George M. Brill, dated December 1, 1874. The device covered by this patent was substantially the same as that described in the O'Haire patent, except that the rock-shaft ran along the bottom of the car instead of through the bar from which the hand-straps were suspended. There is no evidence to show that O'Haire's invention antedates the application for his patent, which was made on June 27, 1873. Considering the state of the art at that time, we are of opinion that the device covered by his patent does not embody anything new which the defendant infringes. The opening and closing of the rear door of a street car from the front platform is not new. The specification of the O'Haire patent says: 'I am aware that it is not new to operate the door from the front platform of the car, as this has heretofore been accomplished by means of an endless cord which passes through the rods to which the holding-straps are secured, and I therefore dis laim such invention.' At the date of O'Haire's application it was well known, as is shown by the evidence, that doors and window-shutters guided by slides, both in vehicles and apartments, were opened and closed by mechanism used by persons placed in such situations that they could neither reach nor open and close the doors or shutters directly. The device of O'Haire must, therefore, to be the subject of a valid patent, embody some new means for accomplishing this end. The elements of which his contrivance was made up were the rod or rock-shaft, reaching from the front to the rear of the car, the lever by which a rocking motion was given to the shaft, and the means used for communicating motion from the shaft to the door.

The testimony is conclusive to show that there is nothing new in the rock-shaft or in the lever by which it is moved. Long before the date of O'Haire's application, the evidence is clear that rock-shafts operated by a lever or crank were used to open and close the doors of furnaces, and the window and door openings of sugar refineries, by persons standing at a distance from the windows and doors to be opened and closed. A rock-shaft moved by a lever at the end of a railway carriage for the purpose of opening and closing the sliding-doors of the carriage was described in the English letters patent set out in the record of John Johnson, dated March 3, 1857. The use of a rock-shaft for a similar purpose, namely, the opening and closing of sliding window-blinds, is also shown in the patent of David Kidder, dated June 8, 1869. Rock-shafts, for the same purpose, are shown in the patent of Darwin D. Douglass, dated June 11, 1861, and the patent of W. H. Brown, dated February 23, 1864. The shaft in the Brown patent was moved by a lever, and in the Kindder and Douglass patents by a knob attached to its end, which is the well-known equivalent of a lever. It appears, therefore, that the use of a rock-shaft actuated by a lever for communicating motion was an old device which had been in use long before the date of the O'Haire patent.

It remains to consider the mode adopted by O'Haire for communicating motion from his rock-shaft to the door of the car. We find it to be one of a number of old and well-known devices for changing rotary into horizontal or rectilinear motion. The testimony shows that the devices long used for this purpose are a pinion or segment a pinion whose teeth interlock with the teeth of a straight bar or rack or a rigid lever attached at one end to the rock-shaft, and having on the other a pin or roleer working in a slot formed on the door or shutter to be moved. Sometimes the slot is in the lever, and the pin or roller is on the door or shutter. These devices perform the same functions in substantially the same manner, and have long been recognized as mechanical equivalents. The device covered by the patent of O'Haire, therefore, consists of a rock-shaft with a lever attached for the purpose of giving the shaft a rocking motion, combined with a well-known and long-used device by which the rocking motion was changed into a rectilinear motion and communicated to the door of a car. No one of these devices can be claimed as new. If there is any ingenuity displayed in the contrivance described in the O'Haire patent, it must, therefore, be in the combination of these devices to attain a result. The claim of the patent is for such a combination. But in our opinion this combination was anticipated by the patents of both Douglass and Brown before mentioned.

The inventions described in these patents are for the opening and closing of outside shutters from the inside of a house, without opening the windows; and they consist of a rock-shaft passing through the wall of the house, to which a rocking motion is imparted from the inside of the house, in the one case, by a knob, and in the other, by a lever or handle on the inner end of the shaft. By means of a pinion on the outer end of the rock-shaft, applied to a toothed rack on the shutter, a rectilinear sliding motion is imparted to the shutter, which is thus opened and closed. The rock-shafts in these patents are identical with the rod or shaft in the O'Haire patent; the lever in the Brown patent, by which the rock-shaft is moved, is the same as the lever in the O'Haire patent, and the knob in the Douglass shaft is its well-known equivalent; and the contrivance by pinion and rack for transmitting motion from the rock-shaft to the shutter is the well-known and long-used equivalent of the devices used for a similar purpose in the O'Haire contrivance. We find, therefore, that none of the separate elements of the devices described in the O'Haire patent are new, nor is the combination new. So far, therefore, we find no patentable invention in the contrivance described in the patent under consideration. It was said by this court, in Smith v. Nichols, 21 Wall. 112, that 'a mere carrying forward a new or more extended application of the original thought, a change only in form, proportions, or degree, the substitution of equivalents, doing substantially the same thing in the same way by substantially the same means, with better results, is not such invention as will sustain a patent.' So, in Pennsylvania R. Co. v. Locomotive Truck Co. 110 U.S. 490, S.C.. 4 SUP. CT. REP. 220, Mr. Justice GRAY, delivering the opinion of the court, said: 'The application of an old process or machine to a similar or analogous subject, with no change in the manner of application and no result substantially distinct in its nature, will not sustain a patent, even if the new form of result has not before been contemplated.' These authorities are pertinent. See, also, Vinton v. Hamilton, 104 U.S. 485; Blake v. City and County of San Francisco, ante, 692.

If, therefore, there is any patentable novelty in the O'Haire contrivance, it is in the placing of the rock-shaft inside the bar to which the hand-straps are attached. But the plaintiff's counsel, in order to bring the device used by the defendant within the monopoly of the O'Haire patent, insist that this is no part of the patented contrivance, and the testimony shows that the defendant does not use it. We are of opinion, therefore, that construing the patent of O'Haire, in view of the state of the art at the date of its issue, as we are compelled to do, in order to leave any ground whatever on which it can be sustained, the defendant does not infringe.

We have next to consider the patent granted to the plaintiff, dated March 30, 1875, 'for an improvement in signaling devices for street cars.' The specification thus states the object of the contrivance described in the patent. 'The prevalence of street cars managed by the driver, without the aid of a conductor, makes it necessary that every possible facility should be provided for him as well as the passengers. The ordinary street car has a signal-bell located at each end, with a bell-strap attached thereto, which runs centrally along the ridge or highest part of the ceiling. This strap, as thus located, is inaccessible to many passengers. My improvement is intended to remedy this trouble, and consists in a new combination and arrangement, with a street car, of bells or gongs and of the cords or straps which operate them, whereby passengers can, without rising from their seats, signal to the driver. This is of primary importance to invalids, ladies, and children, and that more especially when the car is crowded.'

The device covered by the patent consists of the placing of two bells attached to the rafters of the bonnet or hood of the driver's platform, one at each corner of the front end of the car. To the hammer of each bell is attached one end of a bell-cord, the other end of which is attached to the inner side of the rear wall of the car, the cords being led along the lower margin of the ceiling, one on each side the car, from which bell-pulls or hand-straps are suspended at intervals within easy reach of the seated passengers, so that they, without rising from their seats, can ring the bell. The claim was as follows: 'In a street car two bell-cords, each provided with a system of pull-straps, and arranged in such manner follows: 'In a street car two bell-cords, of the roof on the opposite sides of the as to pass along the lower margin or gong attached to the outside of the driver's end of the car, substantially as and for the purposes set forth.' We are of opinion that there is no patentable invention described in this patent. Bell-straps or cords running from one end of an omnibus or street car to the other, under the middle of the ceiling, were well known and in common use years before the application of Stephenson for his patent. The fact that they were so placed and used is mentioned in the specification. The evidence also establishes the fact, that before the year 1870 it was a common practice to attach pendant bell-pulls or hand-straps to this central cord so as to bring it within easier reach of the passengers. The evidence shows that many of the cars in which such hand-straps or bell-pulls were used were built and sold in New York. The use of such pendant hand-straps, long before the application of Stephenson for the patent now under consideration, is conclusively proven.

It is also shown by the evidence that as early as the year 1861 a bell-cord or strap running along the sides of the cars above the heads of the passengers was publicly used on streets cars in Boston and Philadelphia, and the same arrangement of the cord or strap was shown in the patent of Charles Carr, issued July 5, 1870. When, therefore, the patent of Stephenson for his improvement in signaling devices for street cars was applied for in March, 1875, the only advance in the art which his specification showed was the applying to the cords running along the sides of the cars of the bell-pulls or hand-staps which had before then been attached to the cord running over the middle of the aisle. This, in our judgment, did not require the least degree of ingenuity, and cannot be called invention. Hotchkiss v. Greenwood, 11 How. 248; Stimpson v. Woodman, 10 Wall. 117; Atlantic Works v. Brady, 107 U.S. 192; S.C.. 2 SUP. CT. REP. 225; Slawson v. Grand-street R. Co. 107 U.S. 649; S.C.. 2 SUP. CT. REP. 663; King v. Gallun, 109 U.S. 99; S.C.. 3 SUP. CR. REP. 85; Phillips v. City of Detroit, 111 U.S. 604; S.C.. 4 SUP. CT. REP. 580. The patent, therefore, by which the plaintiff seeks to embrace in his monopoly such an arrangement of the signal-cords and hand-straps of a street car is void.

The third patent, which the plaintiff avers is infringed by the defendant, is for the improvement in street cars granted to John Stephenson, the appellant, September 7, 1875, on an application dated August 7, 1874. It is thus described in the specification: 'In running street cars it has been found to be a serious source of trouble to have the driver continually turning around to ascertain when it is necessary to stop to permit passengers to enter or leave the car, as such constantly takes away his attention from his horses, and that frequently when it is most required. To obviate this trouble is the object of my present improvement. My invention, for this purpose, consists in combining a mirror with the front hood of the car, it being so arranged in connection therewith, and with an opening in the front end of the car, as to give to the driver a clear view of the inside of the car and through the entrance door of the latter, and that without the necessity of his having to turn around for such purposes, thereby enabling him, without withdrawing his attention from the horses, to see when it is necessary to stop, either to receive a passenger or to allow one to get out. This mirror is set at a small angle to a horizontal plane, so that its upper edge will project rearwardly beyond its lower edge, it being placed at such angle as will enable it, through the opening, F, in the front end of the car, to give the best view of the interior of the car, and through the glass windows of the entrance door, A.'

The claim was as follows: 'The combination of a bonnet, E, provided with a mirror, C, with an opening, or an opening covered by a transparent medium, F, in the front end of a street car, substantially as and for the purposes set forth.'

A combination is patentable only when the several elements of which it is composed produce by their joint action a new and useful result, or an old result, in a cheaper or otherwise more advantageous way. The elements of which the combination described in this patent is composed were all old and well known. They were a mirror, the hood of a street car over the driver's platform, and a glass panel in the front end of the car over the door. We are of opinion that the alleged combination of these three elements, as described in this patent, is not patentable. There is, in fact, no combination, but a mere aggregation of separate devices, each of which performs the function for which, when used separately, it was adapted, and does not contribute to any new result, the product of their joint use. The result attained is merely the reflection of an object in a mirror. The hood and the glass panel in the end of the car do not change in any degree the function of the mirror. It is used as a mirror only. The function of the hood is not changed by the mirror or glass panel, or both. It is a hood only on which, as in the wall of a room, the mirror is hung. The use of a glass, instead of a wooden panel, in the front end of the car, simply removes an opaque obstacle between the mirror and the object to be reflected by it. Neither one of the three elements of the alleged combination performs any new office or imparts any new power to the others, and combined, they do not produce any new result or any old result more cheaply or otherwise more advantageously. There is, therefore, no patentable combination.

This conclusion is illustrated and confirmed by the following cases: Hailes v. Von Wormer, 20 Wall. 353; Reckendorfer v. Faber, 92 U.S. 347; Pickering v. McCullough, 104 U.S. 310.

It results from the views we have expressed that the decree of the circuit court dismissing the bill was right. It is therefore affirmed.


text: Talk:Stephenson v. Brooklyn Cross-Town Railroad Company/Opinion of the Court

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text:
Chapman v. Brewer

On the tenth of October, 1873, John Whittlesey, a creditor of Benjamin C. Hoyt and Enoch C. Hoyt, copartners under the name of B. C. Hoyt & Son, filed a petition in bankruptcy in the district court of the United States for the Western district of Michigan, praying that the said two persons, 'partners as aforesaid,' might be declared bankrupts. The petition contained the prescribed allegations, and set forth, as the demand of the petitioner, a promissory note made by the partnership, in its firm name, to his order. It alleged, as one act of bankruptcy, that the firm had 'fraudulently stopped payment' of its commercial paper 'within a period of fourteen days,' om tting to add 'and not resumed payment within said period.' It alleged, as a second act of bankruptcy, that the firm had 'suspended and not resumed payment' of its commercial paper 'within a period of fourteen days.' Before anything was done on this petition except to file it, and on the twelfth of January, 1874, Daniel Chapman procured to be issued by the circuit court of the county of Berrien, in the state of Michigan, an attachment against the lands and personal property of the said persons, as such copartners, for the sum of $4,895.44, in a suit brought by him in that court, against them, to recover a money demand, which attachment the sheriff, on that day, levied on certain real estate in that county. Enoch C. Hoyt died on the twenty-fifth of February, 1874. On the fifth of March, 1874, a petition, indorsed 'amended petition,' was filed by Whittlesey in the bankruptcy court, containing the same averments as the first petition, with the addition of the words so omitted in the first petition. In the body of the petition there was no mention of its being an amended petition, nor did it allude to the first petition, or to the death of Enoch C. Hoyt, and its prayer was the same as that of the first petition. It was verified March 3, 1874. On the fourteenth of April, 1874, an order was made in the suit in the state court, entering the default of Benjamin C. Hoyt, for want of an appearance, on proof of personal service on him of the attachment and of the filing of the declaration; and on the sixteenth of April, 1874, an order was made on affidavit, suggesting the death of Enoch C. Hoyt, since the issuing of the attachment, and ordering that the action proceed against the surviving defendant, Benjamin C. Hoyt. On the second of May, 1874, an order was made by the bankruptcy court, stated in it to be made on the appearance and consent of 'solicitors for the alleged bankrupts,' reciting that it had been shown that Enoch C. Hoyt had 'departed this life since the commencement of the proceeding in said matter,' and ordering that all proceedings should stand against Benjamin C. Hoyt, survivor of himself and Enoch C. Hoyt, and that they might be prosecuted against him, with like effect as if Enoch C. Hoyt had not died, and that the individual property of Enoch C. Hoyt be surrendered by the marshal to his proper representatives. On the same day Benjamin C. Hoyt filed a denial of bankruptcy, signed by his attorneys, as follows: 'And now the said Benjamin C. Hoyt appears and denies that he has committed the act of bankruptcy set forth in said petition, and avers that he should not be declared bankrupt for any cause in said petition alleged, and he demands that the same be inquired of by a jury.' On the eighth of May, 1874, in the suit in the state court, a judgment was rendered in favor of the plaintiff, against Benjamin C. Hoyt, for $4,930.15, and costs; and on the same day an execution was issued thereon, under which, on that day, the sheriff levied on the same real estate which he had levied on under the attachment. On the first of June, 1874, an adjudication was made by the bankruptcy court in these words: 'ADJUDICATION OF BANKRUPTCY ON CREDITORS' PETITION.

'''Western District of Michigan, ss.-In the District Court of     the United States for the Western District of Michigan. In     Bankruptcy''.

'In the matter of BENJAMIN C. HOYT, against whom a petition     in bankruptcy was filed on the nineteenth day of October, A.      D. 1873. At Grand Rapids, in said district, on the first day     of June, A. D. 1874. Before Hon. SOLOMON L. WITHEY, District     Judge.

'This matter came on to be heard at Grand Rapids, in said     court, the respondent having withdrawn his denial and demand      for a jury, and having, by his attorneys, Hughes, O'Brien &      Smiley, consented thereto. And thereupon, and upon     consideration of the proofs in said matter, it was found that      the facts set forth in said petition were true, and it is      therefore adjudged that Benjamin C. Hoyt became bankrupt,      within the true intent and meaning of the act entitled 'An      act to establish a uniform system of bankruptcy throughout      the United States,' approved March 2, 1867, before the filing      of the said petition, and he is therefore declared and      adjudged a bankrupt accordingly. And it is further ordered     that the said bankrupt shall, within five days after this      order, make and deliver, or transmit by mail, postpaid, to      the marshal, as messenger, a schedule of his creditors and      inventory of his estate, in the form and verified in the      manner required of the petitioning debtor by the said act.

'Witness the honorable SOLOMON L. WITHEY, Judge of the said     District Court, and the seal thereof, at Grand Rapids, in      said district, on the first day of June, A. D. 1874.

ISAAC H. PARRISH,

[Seal.]

'Clerk of District Court for said District.'

In the certificate made by the clerk of the district court of the United States for the Western district of Michigan, certifying the copies of the bankruptcy papers, he certifies 'that the foregoing is a true copy of the petition for adjudication filed October 10, 1873, copy of amended petition, order continuing proceedings, denial of bankruptcy by B. C. Hoyt, and adjudication of bankruptcy, on file in the proceedings of said court in said entitled matter.' This is mentioned because, in the adjudication, the petition is referred to as filed October 19, 1873.

On the sixteenth of December, 1873, an alias execution was issued in the suit in the state court, which the sheriff, on that day, levied on real estate in Berrien county other than that before levied on by him. On the first of October, 1874, the register in bankruptcy executed to Joseph W. Brewer an assignment in these words:

'''In the District Court of the United States for the Western     District of Michigan. In Bankruptcy''.

'In the matter of BENJAMIN C. HOYT, Bankrupt.

'Western District of Michigan, ss.: Know all men by these     presents, that Joseph W. Brewer, of the village of St. Joseph, in the county of Berrien and state of Michigan, in     said district, has been duly appointed assignee in said      matter: Now, therefore, I, J. Davidson Burns, register in      bankruptcy in said district, by virtue of the authority      vested in me by the fourteenth section of an act of congress      entitled 'An act to establish a uniform system of bankruptcy      throughout the United States,' approved March 2, A. D. 1867,      do hereby convey and assign to the said Joseph W. Brewer,      assignee as aforesaid, all the estate, real and personal, of      the said Benjamin C. Hoyt, bankrupt aforesaid, including all      the property, of whatever kind, of which he was possessed, or      in which he was interested or entitled to have on the tenth      day of October, A. D. 1873, with all his deeds, books, and      papers relating thereto, excepting such property as is      exempted from the operation of this assignment by the      provisions of said fourteenth section of said act, to have      and to hold all the foregoing premises, to the said Joseph W.      Brewer, and his heirs, forever, in trust, nevertheless, for      the use and purposes, with the powers, and subject to the      conditions and limitations, set forth in said act.

'In witness thereof, I, the said register, have hereunto  set my hand and caused the seal of said court to be   affixed, this first day of October, A. D. 1874.

[Seal.]

'J. DAVIDSON BURNS, Register in Bankruptcy.'

On the twenty-seventh of January, 1876, Brewer filed a bill in equity, in the circuit court of the United States for the Western district of Michigan, against Chapman, (the judgment creditor,) and the sheriff who had levied under the first execution, and the deputy-sheriff who had levied under the second execution, setting forth the filing of the first petition in bankruptcy, and its contents; averring 'that the usual order to show cause was thereupon made by said district court, and a certified copy thereof duly served on said Benjamin C. and Enoch C. Hoyt, who subsequently, and in due time, appeared in said bankruptcy matt r;' and alleging the death of Enoch C. Hoyt, the making of the order of March 2, 1874, the adjudication of bankruptcy, the appointment of and assignment to the assignee, the facts in regard to Chapman's judgment, executions, and levies, and threats by the officers to sell the real estate levied on. The bill makes no mention of the amended petition in bankruptcy or of the attachment. It states that the executions are outstanding; that the real estate so levied on was the separate property of Benjamin C. Hoyt at the date of filing the petition; that the plaintiff, as assignee, is the owner and in possession of all of it, except certain specified lots; and that said levies constitute a cloud on his title, and embarrass and hinder him in disposing of the property, and notices of the levies have been recorded in the office of the register of deeds of the county. The prayer of the bill is that the levies be decreed void as against the plaintiff, as assignee, and the defendants be decreed to release to the plaintiff, as assignee, all their right and title and interest, acquired under the levies, in and to the real estate he is so in possession of, and, on their failure to do so, the decree be ordered to have the effect of said release, and he have leave to record the same in the office of said register of deeds, and the defendants be enjoined from selling or interfering with the real estate the plaintiff is so in possession of. The bill also prays for such other and further relief as shall be equitable and just.

The answer denies the validity of the petition set forth in the bill, and denies that Benjamin C. Hoyt was adjudicated a bankrupt on the footing of that petition, or on any petition of which he had notice, and denies the validity of the adjudication. It sets up the attachment levy, and admits the existence of most of the material facts alleged in the bill, and that the property was the separate property of Benjamin C. Hoyt, but denies that the plaintiff is entitled to any equitable relief. A replication was filed, and proofs were taken, establishing the facts above set forth, and that Brewer had acted as assignee since October 3, 1874, and had had the management and custody and possession of the property, and paid taxes on it, since October 10, 1874, and that it was worth about $10,000.

The circuit court made a decree on April 15, 1880, adjudging that Benjamin C. Hoyt, 'at the date of the filing of the petition in bankruptcy against him, namely, on the tenth day of October, 1873, was the owner in fee of the' lands described in the bill as those of which the plaintiff was in possession; that the plaintiff succeeded to the interest which said Hoyt had in those lands on the tenth of October, 1873, and was and is the owner in fee, and in the actual possession, of them; that each of said execution levies was and is a cloud on the title of the plaintiff as assignee to said lands, and was and is void as against him; that the defendants execute to the plaintiff a release of their interest in said lands under said levies, and, on their failure to do so, the decree should have all the force and effect of such release, and might be recorded in the office of the register of deeds of said county; and that an injunction issue, restraining the defendants from selling, disposing of, or interfering with said lands under said levies, and from making any new or further levies on any of said lands, under said judgment. An injunction to that effect was issued and served January 3, 1881. Chapman has appealed to this court.

H. F. Severens, for appellant.

[Argument of Counsel from pages 164-166 intentionally omitted]

John W. Stone, for appellee.

BLATCHFORD, J.

title: Chapman v. Brewer


text: Talk:Chapman v. Brewer

title: Talk:Chapman v. Brewer


text:
Chapman v. Brewer/Opinion of the Court

The principal question considered by the circuit court, as appears from its opinion accompanying the record, was whether, the judgment and levies in the suit in the state court being prior to the appointment of the assignee in bankruptcy, although that suit was not begun till after the first petition in bankruptcy was filed, the circuit court had authority to enjoin a sale of the lands on the executions. The appellant take the points that nothing appears to have been done under the first petition in bankruptcy; that no order appears to have been made or notice given thereon; that the second petition was a new petition, and does not profess to be, and was not, an amended petition, and was not filed under any order authorizing it as an amendment; and that the adjudication recites the date of filing of the petition as October 19th, instead of October 10th. The questions presented here by the appellant are (1) whether the alleged cloud on the plaintiff's title was a proper ground for equitable jurisdiction; (2) whether the circuit court had authority to interfere with the proceedings of the state court; (3) whether the assignee should not have made himself a party to the proceedings in the state court, or have intervened therein; (4) whether the bill and the proof correspond, and whether the bill is adapted to contest the validity of such lien as arose by virtue of the attachment.

All the bankruptcy proceedings, except the appointment of the assignee, and the assignment to him, and all the proceedings in the suit in the state court, except the issuing and levy of the second execution, took place before the enactment of the Revised Statutes on the twenty-second of June, 1874. The Revised Statutes purport to re-enact the statutes in force on December 1, 1873. At the latter date none of the proceedings in bankruptcy had taken place save the filing of the first petition, and the state court proceedings had not been begun.

The bankruptcy act in force on December 1, 1873, was the act of March 2, 1867, c. 176 (14 St. 517,) the fourteenth section of which provided that the assignment to an assignee in bankruptcy 'shall relate back to the commencement of said proceedings in bankruptcy, and thereupon, by operation of law, the title to all such property and estate, both real and personal, shall vest in said assignee, although the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the commencement of said proceedings.' The provision of section 5044 of the Revised Statutes is that the assignment 'shall relate back to the commencement of the proceedings in bankruptcy, and by operation of law shall vest the title to all such property and estate, both real and personal, in the assignee, although the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the commencement of the bankruptcy proceedings.' Under these provisions, if the bankruptcy proceedings were commenced October 10, 1873, they were begun before the state court attachment was made, and the assignment, when made, related back to October 10, 1873, and vested title in the assignee as of that date, and overreached and defeated all claim under the attachment. Bank v. Sherman, 101 U.S. 403; Conner v. Long, 104 U.S. 228. If the bankruptcy proceedings were not begun till March 5, 1874, the attachment, having been made within four months next preceding that date, was dissolved by the making of the assignment, and the title of the assignee vested as of March 5, 1874, which was before any execution levy. In this view it would not be necessary to notice any of the objections made as to the first petition, or as to the second petition regarded as an amended petition, were it not that the bill is founded on the first petition. The date of October 19th in the adjudication must be regarded as a clerical or typographical error. The proper date is stated in the bill and admitted in the answer, and is stated in the clerk's certificate and in the bankruptcy assignment, and in a stipulation signed by the solicitors. Enoch C. Hoyt died February 25, 1874, before the second petition was filed, and the order made by the bankruptcy court, May 2, 1874, states that he had died 'since the commencement of the proceeding in said matter;' and it was that fact, in co nection, probably, with the fact that no order to show cause had been served on Enoch C. Hoyt, which made it necessary for that order to direct the marshal to surrender to the representatives of Enoch C. Hoyt all his individual property.

It is also objected by the defendant that the petition was filed against the firm, and that the record does not show that the petitioner filed any proof of his claim, or any proof of bankruptcy. By section 36 of the act of 1867, (section 5121 of the Revised Statutes,) where two persons, partners in trade, should be adjudged bankrupt, not only was the property of the firm to be taken and administered, but also the separate estate of each partner. When Enoch C. Hoyt died, the partnership estate vested in the survivor, and the proceedings were, by consent of attorneys then appearing for the survivor, ordered to stand against him as survivor, and to proceed against him as survivor. He appeared by attorney, and consented to an adjudication. By section 41 of the act of 1867, (section 5026 of the Revised Statutes,) the appearance and consent of the debtor were made a waiver of other notice. The adjudication states that, on consideration of the proofs, it was found that the facts set forth in the petition were true. It was not necessary to show in this case what the proofs were. If the district court had jurisdiction of the subject-matter, and the bankrupt voluntarily appeared, and the adjudication was correct in form, it is conclusive of the fact decreed, and can be impeached only by a direct proceeding in a competent court, and can no more be attacked collaterally in a suit like the present than any other judgment. Michaels v. Post, 21 Wall. 398. The adjudication and the assignment embraced the individual property of Benjamin C. Hoyt; and it is alleged in the bill, and admitted in the answer, that the property levied on by the defendants was his individual property.

These views cover all the objections made to the bankruptcy proceedings, and it must be held that the adjudication was regular and valid, and refers to, and was made on, the first petition, as amended by the second, and on a proceeding commenced when the first petition was filed.

It is objected that the bill makes no mention of the attachment. But the answer sets up the attachment and the levy thereunder. The question as to whether a priority of right was acquired thereby was raised by the pleadings, and the decree makes no reference to the attachment, but annuls the execution levies. By section 2 of the act of 1867, the circuit court of the district has jurisdiction of all suits in equity brought by an assignee in bankruptcy against any person claiming an adverse interest touching any property of the bankrupt transferable to or vested in the assignee. This provision is re-enacted in section 4979 of the Revised Statutes. By section 720 of the Revised Statutes it is provided that 'the writ of injunction shall not be granted by any court of the United States, to stay proceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.' It is contended for the appellant (1) that a suit in equity will not lie for the relief granted; (2) that, at all events, there was no power to award the injunction.

That the defendant claimed an adverse interest touching the property is clear. The question is whether the plaintiff can have relief in equity. He was in possession of the land, and, as he says, of the only building there was on it. By statutory provisions in Michigan, commencing with section 29 of the act of April 23, 1833, (Code 1833, p. 358,) followed by section 1 of the act of March 28, 1840, (No. 76, p. 127,) and the Revised Statutes of 1846, (title 21, c. 90, § 36, p. 360,) and now in force as section 6626 of Howell's Statutes, 'any person having the actual possession of, and legal or equitable title to, lands, may institute a suit in chancery against any other person etting up a claim thereto in opposition to the title claimed by the complainant, and, if the complainant shall establish his title to such lands, the defendant shall be decreed to release to the complainant all claim thereto.' If there should be a sale on the executions, there would be a sheriff's deed; and, by another statute of the state, such deed is made prima facie evidence of the regularity of the sale. Act February 19, 1867, No. 20, § 2, now in force as section 5678 ofHowell's Statutes. It is held by the supreme court of Michigan that the statute first cited covers a claim of a lien on land, and that a lien which may result in a sale and a deed constitutes such a cloud that equity will afford relief. Scofield v. City of Lansing, 17 Mich. 437, 447, 448. Especially will this be done, if the lien is not void on its face, as the lien here is not, but is a cloud on the plaintiff's title. Therefore, the plaintiff could obtain, under the Michigan statute, and in a court of Michigan, the relief he has had. In such a case, a circuit court of the United States, having otherwise jurisdiction in the case, will, as a general rule, administer the same relief in equity which the state courts can grant. Clark v. Smith, 13 Pet. 195, 203; Case of Broderick's Will, 21 Wall. 503, 519, 520; Van Norden v. Morton, 99 U.S. 378, 380; Cummings v. National Bank, 101 U.S. 153, 157; Holland v. Challen, 110 U.S. 15; S.C.. 3 SUP. CT. REP. 495; Reynolds v. Crawfordsville Bank, 112 U.S. 405; S.C.. ante, 213. It has general power given to it, irrespective of citizenship, to grant equitable relief, in a suit in equity by an assignee in bankruptcy against any person who claims an adverse interest touching the assigned property.

We are not disposed, however, to rest the case upon jurisdiction arising from the Michigan statute. We hold that, under the equity jurisdiction conferred by the bankruptcy act, the circuit court had authority to remove this cloud on the plaintiff's title. It was the duty of the assignee to remove it, and to obtain a title which would enable him to sell the land for the benefit of the estate. The claim of the defendants, under the levies, is one which ought not to be enforced. It has no validity as against the rights of the plaintiff; it throws a cloud on his title; he is in possession, and cannot sue at law; and the papers supporting the defendant's claim are not void on their face. Story, Eq. Jur. §§ 700, 705; 3 Pom. Eq. Jur. §§ 1398, 1399, and cases cited; Pettit v. Shepherd, 5 Paige, 493; Carroll v. Safford, 3 How. 463; Ward v. Dewey, 16 N. Y. 519; Mustian v. Jones, 30 Ga. 951; Martin v. Graves, 5 Allen, 601; Stout v. Cook, 37 Ill. 283; Clouston v. Shearer, 99 Mass. 209; Sullivan v. Finnegan, 101 Mass. 447; Anderson v. Talbot, 1 Heisk. 407; Marsh v. City of Brooklyn, 59 N. Y. 280; O'Hare v. Downing, 130 Mass. 16, 19. In Pettit v. Shepherd it was held that a court of chancery might interpose to prevent the giving of a conveyance, under pretense of right, which would operate as a cloud upon the title to real estate. In O'Hare v. Downing it is said that 'a court of chancery will restrain by injunction a threatened levy of execution upon real estate which is not legally subject to such a levy, and thus prevent a cloud upon the title, without compelling the owner of the land to wait until the levy has been completed, and then admit himself to be disseized, in order to maintain a writ of entry.' Much more will it prevent a sale after a levy.

But it is contended that the circuit court had no authority to award or issue the injunction. The jurisdiction of that court in this case is conferred by the 'law relating to proceedings in bankruptcy;' and we think the injunction was authorized by that law. The court of bankruptcy was authorized, (section 5024 of the Revised Statutes,) where a petitio in involuntary bankruptcy was filed, to restrain all persons by injunction from interfering with the debtor's property. The jurisdiction of suits in equity, given to the circuit court by section 2 of the act of 1867, (section 4979 of the Revised Statutes,) was given to it concurrently with the district courts. It must be held that congress, in authorizing a suit in equity, in a case like the present, has, in order to make the other relief granted completely effective, authorized an injunction, as necessarily incidental and consequent, to prevent further proceedings under the levies already made and new levies under the judgment. But for the supposed inhibitory force of section 720, a court of equity, in granting on the merits the other relief here granted, would necessarily have power to award the injunction. We think the circuit court was authorized to award it here, within the exception in section 720.

It is urged that the plaintiff should have made himself a party to the proceedings in the state court, and have contested the matter there, under the authority given to him by section 14 of the act of 1867, (section 5047 of the Revised Statutes,) to defend suits pending against the bankrupt at the time of the adjudication. As the assignment in bankruptcy was not made till October, 1, 1874, and the judgment and the levy under the first execution were in May, 1874, we do not think the assignee was called upon to take any steps in the state court, after the assignment, to obtain relief. He was entitled to pursue the remedy he did.

The cases of Krippendorf v. Hyde, 110 U.S. 276, S.C.. 4 SUP. CT. REP. 27, and Covell v. Heyman, 111 U.S. 176, S.C.. 4 SUP. CT. REP. 355, are relied on by the appellant to show that the decree in this case was erroneous. The view urged is that, by virtue of the levy by the sheriff, the state court acquired custody, control, and jurisdiction of the property, which could not be disturbed by the circuit court. But the doctrine of those cases has no application in favor of the appellant in a case like the present. In the first case it was held that after property had been attached by a marshal of the United States, on mesne process from a circuit court of the United States, a third person, claiming its ownership, could, without reference to citizenship, come into the circuit court for redress, by ancillary proceedings. In the second case it was held, in pursuance of the decision in Freeman v. Howe, 24 How. 450, that possession of property by a marshal of the United States, under a writ of execution from a circuit court of the United States, could not be disturbed by virtue of a writ of replevin from a state court, issued by a third person. E converso, as was held in Taylor v. Carryl, 20 How. 583, property seized by a sheriff, under process of attachment from a stae court, cannot be taken from the sheriff by initial admiralty process, issuing from a district court of the United States. But those were none of them cases where, under the bankruptcy act, an assignee in bankruptcy claimed a paramount title, and resorted to regular judicial proceedings to first vacate and declare void the adverse title, and sweep it away, and then have such final process in regard to the subject-matter of the title as should be necessary to make the decree effective. And in Covell v. Heyman, the court, speaking by Mr. Justice MATTHEWS, after explaining the point of the decision in Freeman v. Howe, says: 'The same principle protects the possession of property, while thus held by process issuing from state courts, against any disturbance under process of the courts of the United States, excepting, of course, those cases wherein the latter exercise jurisdiction for the purpose of enforcing the supremacy of the constitution and laws of the United States.' This exception includes the present case. The bankruptcy proceeding dissolved the state attachment, and the bankruptcy act conferred on the assignee a paramount title, which he was empowered by that act to enforce, by proper equitable remedies, in the circuit court, against the adverse title set up by virtue of the suit in the state court. Decree affirmed.

title: Chapman v. Brewer/Opinion of the Court


text: Talk:Chapman v. Brewer/Opinion of the Court


text:
Morgan and Anothers

Edward Roby, for petitioner.

W. H. Calkins, A. C. Harris, and A. L. Osborne, for respondent.

title: Morgan and Anothers


text: Talk:Morgan and Anothers

title: Talk:Morgan and Anothers


text:
Morgan and Anothers/Opinion of the Court

WAITE, C. J. for a writ of mandamus requiring the circuit court of the United States for the district of Indiana to amend a judgment entered January 20, 1883, in a cause wherein the relators were plaintiffs, and Frederick Eggers, defendant, 'so as to conform to the complaint in said cause, and to the finding or verdict of the court rendered upon the trial of said cause.' The suit was ejectment to recover the possession of 'all of the north part of lot 2, in sec. 36, T. 38 N., R. 10 W. of the second principal meridian, which lies west of the track of the Lake Shore & Michigan Southern Railroad, and north of a line parallel with the north line of said lot 2, and seven hundred and fifty-three feet south therefrom.' The judgment entry, which includes the only finding in the case, is as follows: 'And the court, having heard the evidence and being fully advised, finds for the plaintiffs, and orders and adjudges that they are entitled to, and shall have and recover of defendant, the possession of so much of said lot two (2) as lies south of the south line of lot number one, (1,) as indicated by a fence constructed and maintained by the defendant as and on said south line, said fence running from the state line easterly to Lake Michigan; and assessing the damages at $1 and costs taxed at $_____, which the plaintiffs shall recover of defendant. All of which is finally ordered, adjudged, and decreed.' After this entry the petitioner moved the court to amend and reform the judgment so that it would 'conform to the complaint in said court and to the finding or verdict;' but the court, on full consideration, decided that the finding and judgment were not separate and distinct, and that the meaning was clear. The entry was to be construed as finding and adjudging that the plaintiffs were only entitled to recover the possession of so much of the premises sued for as lies south of the fence indicated. For this reason the motion was denied.

It is an elementary rule that a writ of mandamus may be used to require an inferior court to decide a matter within its jurisdiction and pending before it for judicial determination, but not to control the decision. Ex parte Flippin, 94 U.S. 350; Ex parte Railway Co. 101 U.S. 720; Ex parte Burtis, 103 U S. 238. Here a judgment has been rendered and entered of record by the circuit court in a suit within its jurisdiction. The judgment is the act of the court. It is recorded ordinarily by the clerk as the ministerial officer of the court, but his recording is in legal effect the act of the court, and subject to its judicial control. The clerk records the judgments of the court, but does not thereby render the judgments. If there is error in the judgment as rendered, it cannot be corrected by mandamus, but resort must be had to a writ of error or an appeal. Ex parte Loring, 94 U.S. 418; Ex parte Perry, 102 U.S. 183.

If a clerk in performing the ministerial act of recording a judgment has committed an error, the court may on motion at the proper time correct it, or it may do so in a proper case upon its own suggestion without waiting for the parties. Here * the plaintiffs, believing that the judgment as recorded did not conform to the finding, moved the court to amend it in that particular. This motion the court entertained, but, being of the opinion that the judgment had been correctly recorded, refused the amendment which was asked. In this the court acted judicially, and its judgment on the motion can no more be reviewed by mandamus than that which was originally entered in the cause.

The writ is denied, with costs.


text: Talk:Morgan and Anothers/Opinion of the Court


text:
Page:Eskimo Life.djvu/217

Rh first cousins, or between any near relations, is prohibited. Even foster-children, who happen to have been brought up in the same household, cannot marry. A man should, if possible, seek his wife in another village.

This rule answers to the so-called law of exogamy, or prohibition of marriage with blood relations, with people of the same family name, or even belonging to the same clan (among the Chinese), gotra (among the Hindus), or gens (among the Romans?), which is also found in slightly different forms in the Greek, and formerly in the Catholic, Church, among the Slavonic and Indian races, and in many other quarters. Plutarch says of the Romans that in earlier times they no more thought of marrying women of the same stock than they would in his day think of marrying aunts or cousins. Our own forefathers, in long past ages, probably observed the law of exogamy, which, however, stands in sharp opposition to the feeling now dominant in Norway, that natives of the same place should be chosen in marriage, and if possible near relatives, even first cousins. It seems to be the general rule that we find the widest circles of prohibition against marriage among savage peoples, while among modern and civilised nations a greater freedom prevails. Exogamy would thus appear to be a relic of barbarism from which we

title: Page:Eskimo Life.djvu/217


text:
Chesapeake Railway Company v. Miller

''Wm. J. Robertson, Geo. F. Edmunds, and Jas. H. Ferguson'', for plaintiff in error.

C. C. Watts, for defendant in error.

MATTHEWS, J.

title: Chesapeake Railway Company v. Miller


text:
Page:Stubbs's Calendar or The Fatal Boots.djvu/45

Rh nothing else to do, and being bent upon bettering my condition, I did some very pretty things in that way. But I was not hot-headed and imprudent, like most young fellows. Don't fancy I looked for beauty! Pish!—I wasn’t such a fool. Nor for temper; I don't care about a bad temper: I could break any woman's heart in two years. What I wanted was to get on in the world. Of course I didn’t prefer an ugly woman, or a shrew; and, when the choice offered, would certainly put up with a handsome, good-humoured girl, with plenty of money, as any honest man would.

Now there were two tolerably rich girls in our parts: Miss Magdalen Crutty, with twelve thousand pounds (and, to do her justice, as plain a girl as ever I saw), and Miss Mary Waters, a fine, tall, plump, smiling, peach-cheeked, golden-haired, white-skinned lass, with only ten. Mary Waters lived with her uncle, the Doctor, who had helped me into the world, and who was trusted with this little orphan charge very soon after. My mother, as you have heard, was so


text: Talk:Chesapeake Railway Company v. Miller


text:
Chesapeake Railway Company v. Miller/Opinion of the Court

This writ of error brings into review a final decree of the supreme court of appeals of the state of West Virginia dismissing the bill of complaint filed by the plaintiff in error, the error assigned being that that court gave effect to a statute of the state alleged to be void, on the ground that it impaired the obligation of a contract between the plaintiff in error and the state of West Virginia. The statute thus drawn in question is an act of the legislature of West Virginia, passed March 7, 1879, subjecting the property of the plaintiff in error in that state to taxation. The contract alleged to be thus broken by the state is one of exemption from taxation, contained in the seventh section of an act of the legislature of West Virginia, passed March 1, 1866, entitled 'An act to incorporate the Covington & Ohio Railroad Company,' and is in the following words: '(7) The rate of charge by said company for passengers and freight transported on the main line and branches of said railroad shall never exceed the highest allowed by law to other railroads in the state, and no discrimination shall be made in such charges against any connecting railroad or canal company chartered by the state, and no taxation upon the property of the said company shall be imposed by the state until the profits of said company shall amount to ten per cent. on the capital of the company.'

The plaintiff in error, (complainant below,) alleging that it was entitled to the benefit of this exemption by way of contract with the state, and that no profits had been made by it upon its capital, prayed for an injunction to restrain the appellee, the auditor of West Virginia, from proceeding under the act of March 7, 1879, to assess and collect any tax upon its property within the state.

The plaintiff in error became a party to the contract contained in the act of March 1, 1866, to incorporate the Covington & Ohio Railroad Company, in the following manner: This act was similar in its terms to one passed about the same date by the general assembly of the state of Virginia. Both had in view the completion of a railroad from Covington, in Virginia, to some point on the Ohio river, the construction of which had been undertaken by the state of Virginia as a public work by its own means, but which was suspended, after an expenditure of several millions of dollars, in consequence of the breaking out of the civil war in 1861. A portion of it was within the territory that became West Virginia, and thenceforward that part of the work fell within the jurisdiction and ownership of the new state. To provide for its completion was the object of the act of March 1, 1866, to incorporate the Covington & Ohio Railroad Company. That ct did not, by its terms, create a corporation, but authorized a future organization under it. It ceded to the company, when constituted and certified as thereinafter provided, 'all the rights, interest, and privileges, of whatsoever kind, in and to the Covington & Ohio Railroad, and appurtenances thereunto belonging, now the property of the state of West Virginia, upon condition that it shall within six months after its incorporation, as provided in the tenth section of the act, commence, and within six years complete, equip, and operate a railroad,' etc., as therein described; and a failure to comply with this condition operated to forfeit the title to the road, which should then revert to the state.

The act also appointed commissioners on the part of the state to act in conjunction with others appointed by the state of Virginia, whose duty it was to offer the benefits of the charter 'for the acceptance of capitalists, so as to secure the speediest and best construction, equipment, and operation of said railroad.' 'To this end,' it added, 'they are empowered to make a contract with any parties who shall give the best terms and the most satisfactory assurances of capacity and responsibility, and to introduce into said contract any additional stipulations for the benefit of the state and in furtherance of the purposes herein declared and not inconsistent with this act, which contract shall be, to all intents and purposes, as much a part of this charter as if the same had been herein included at the time of the passage of this act.' The certificate of these commissioners of the due execution of such a contract, and the organization of the company, should operate to confer upon said company all the benefits of this charter, subject only to the provisions of the Code of Virginia for the government of internal improvement companies, so far as not inconsistent with that act.

On February 26, 1867, the legislature of West Virginia passed an act to provide for the completion of a line or lines of railroad from the waters of the Chesapeake to the Ohio river, which authorized the consolidation of the Covington & Ohio Railroad Company, when organized under the act of March 1, 1866, with one or more of several other railroad companies, including the West Virginia Central Railway Company; the consolidated company to be known as the Chesapeake & Ohio Railroad Company, and to be vested with 'all the rights, privileges, franchises, and property which may have been vested in either company prior to the act of consolidation.' It was also thereby provided that the Virginia Central Railroad Company and the West Virginia Central Railway Company, or either of them, 'may contract with the Covington & Ohio Railroad commissioners for the construction of the railroad from Covington to the Ohio river, and in the event such contract be made, the said Virginia Central Railroad Company, or the West Virginia Central Railway Company, shall be known as the Chesapeake & Ohio Railroad Company, and shall be entitled to all the benefits of the charter of the Covington & Ohio Railroad, and to all the rights, interests, and privileges which by this act are conferred upon the Chesapeake & Ohio Railroad Company when organized.'

Accordingly, on August 31, 1868, the commissioners of Virginia and of West Virginia entered into a contract with the Virginia Central Railroad Company, by which the Chesapeake & Ohio Railroad Company was formed, and under which it was organized, and the same was approved, ratified, and confirmed by an act of the legislature of West Virginia, 'confirming and amending the charter of the Chesapeake & Ohio Railroad Company, passed January 26, 1870.' Among other things, it was therein provided that the company might borrow such sums of money, at a rate of interest not exceeding 8 per cent. per annum, as might be necessary, in addition to the funds arising from stock subscriptions for the completion of the road, and should have power to execute a lien on its propert and resources to secure the payment of the principal and interest of such loans; and the Chesapeake & Ohio Railroad Company was thereby declared to be entitled to all the benefits of the charter of the Covington & Ohio Railroad, and to all the rights, interests, benefits, and privileges, and be subject to all the duties and responsibilities, provided and declared in the said contract, and in the statutes therein referred to. In pursuance of these powers, the Chesapeake & Ohio Railroad Company completed the contemplated line of railroad and put the same in operation; not, indeed, strictly within the time limited in the charter, but the forfeiture thereby incurred was released by an act of the legislature of West Virginia, passed February 20, 1877.

In the mean time, to raise the funds necessary to complete the construction and equipment of the road, a large amount of bonds had been issued by the company, secured by several deeds of trust, the particulars of which are fully set out in the bill; and default in the payment of interest having occurred, due proceedings for the foreclosure and sale of the property embraced in the deeds of trust were prosecuted to final decrees in the courts of Virginia and West Virginia; so that, in the latter, all of the railroad and other property situate in that state, were brought to sale under a decree of the circuit court for the county of Kanawha, in West Virginia, rendered on December 18, 1877, and were sold and conveyed to the purchasers, who, in pursuance of the statute then in force, applicable thereto, became a corporation under the name of the Chesapeake & Ohio Railway Company, the plaintiff in error in these proceedings. The statute under which these proceedings took place was an act of the legislature of West Virginia passed February 18, 1871, relating to sales made under deeds of trust, or mortgages by railroads or other internal improvement companies in that state, as amended by an act passed February 20, 1877, extending its provisions to judicial sales.

It was provided by these acts that 'if a sale be made under a deed of trust or mortgage executed by a railroad or other internal improvement company in this state, on all its works and property, and there be a conveyance pursuant thereto, such sale and conveyance shall pass to the purchaser at the sale, not only the works and property of the company, as they were at the time of making the deed of trust or mortgage, but any works which the company may, after that time and before the sale, have constructed, and all other property of which it may be possessed at the time of the sale, other than debts due to it. Upon such conveyance to the purchaser, the said company shall ipso facto be dissolved. And the said purchaser shall forthwith be a corporation by any name which may be set forth in said conveyance, or in any writing signed by him or them, and recorded in the recorder's office of any county wherein the property so sold, or any part thereof, is situated, or where said conveyance is recorded.

'(2) The corporation created by or in consequence of such sale and conveyance shall succeed to all such franchises, rights, and privileges, and per-form all such duties, as would have been had or should have been performed by the first company, but for such sale and conveyance; save only that the corporation so created shall not be entitled to debts due to the first company, and shall not be liable for any debts of, or claims against, the said first company, which may not be expressly assumed in the contract of purchase; and that the whole profits of the business done by such corporation shall belong to the said purchaser and his assigns. His interest in the corporation shall be personal estate, and he, or his assigns, may create so many shares of stock therein as he or they may think proper, not exceeding, together, the amount of stock in the first company at the time of the sale, and assign the same in a book kept for that purpose. The said shares shall t ereupon be on the footing of shares in joint-stock companies generally, except only that the first meeting of the stockholders shall be held on such day and at such place as shall be fixed by the said purchaser, of which notice shall be published for four successive weeks in a newspaper printed in each county in the state wherein said corporation may do business.'

These provisions are copied from the Code of Virginia of 1860, c. 61, §§ 28, 29, 31. This circumstance is material to the case, as urged by the plaintiff in error, in view of the provision of the first section of the act of the legislature of West Virginia of March 1, 1866, to incorporate the Covington & Ohio Railroad Company, which provided for its future organization as a corporation, 'according to the provisions of the Code of Virginia, second edition, for the government of incorporated companies.' It remains to be added that the legislature of West Virginia passed an act on January 31, 1879, to amend section 7 of the act to incorporate the Covington & Ohio Railroad Company, so as to omit from it altogether the clause containing the exemption from taxation. Chapter 5, W. Va. Acts, 1879. That the Chesapeake & Ohio Railroad Company, by virtue of its organization as a corporation under the act of March 1, 1866, became entitled to the exemption from taxation secured by the seventh section of that act, and that as a matter of contract, is not denied or disputed. Whether the Chesapeake & Ohio Railway Company succeeded to that right and immunity is a question to be determined. It is quite clear that, as a contract originally entered into between the state of West Virginia and the stockholders who organized the Chesapeake & Ohio Railroad Company under the act of March 1, 1866, it was personal to that corporation, and intended to benefit those who should be induced to subscribe to its stock. Every circumstance that is referred to for the purpose of proving its nature as a contract, such as, that the state had already sunk a large amount of money in an incomplete and therefore unprofitable public work, that it was very desirous to induce private capitalists to finish its construction, and to that end was willing to cede to them the property itself, and the franchises of a railroad connected with it, and, by way of further inducement, to exonerate the property in their hands from all burdens of taxation until the investment yielded a profit equal to 10 per cent. upon the capital invested, also proves that the only persons in contemplation as beneficiaries of these privileges and immunities were those who were willing to risk their money in an enterprise the future success of which could only be regarded as doubtful. The contract was not for the benefit of those who should become creditors of the company, further than the fact that the property of the company was itself exempted from the charge of taxation would enhance its credit by securing to mortgage bondholders a lien which could not be subordinated by the state. It was not made with the creditors of the company, nor was it conferred as a franchise inhering in the property itself, so as to pass by way of incumbrance or assignment to mortgagees or purchasers. The language of the clause which contains the exemption is explicit. It is that 'no taxation upon the property of the said company shall be imposed by the state until the profits of the said company shall amount to 10 per cent. on the capital of the company.' But one company is spoken of, and that is the company to be incorporated under the act. The property to be exempt is the property of that company and of no other, and while it continues to be the property of that company, and no longer. And the exemption is to cease when the profits of that particular company have reached the limit designated, and that limit is measured by a ratable proportion fixed with reference to the capital to be subscribed to form that company and no other. And there are no words of assignability attached, e ther expressly or by any implication, to this immunity. The reasons for considering such an exemption to be a privilege pertaining to the corporation, and not inhering in the property and passing to an assignee, were fully stated by Mr. Justice FIELD in delivering the opinion of the court in the case of Morgan v. Louisiana, 93 U.S. 217, and have been uniformly applied to similar cases subsequently. Wilson v. Gaines, 103 U.S. 417; Louisville & N. R. Co. v. Palmes, 109 U.S. 244; S.C.. 3 SUP. CT. REP. 193; Memphis & L. R. R. Co. v. Railroad Com'rs, 112 U.S. 609; S.C.. ante, 299; ''St. Louis, I. M. & S. Ry. Co. v. Railroad Com'rs'', 113 U.S. 465; S.C.. ante, 529. And the circumstances of the case distinguish it from that of Humphrey v. Pegues, 16 Wall. 244.

There is no claim made that the exemption passed to the trustees in the trust deeds or mortgages given to secure the payment of the bonds of the company, and none can be made that it passed to the purchasers by the judicial sale made under the decree for foreclosure and sale by force of the statute declaring what such a sale should pass. The language of the act upon this subject is that 'such sale and conveyance shall pass to the purchaser at the sale, not only the works and property of the company as they were at the time of making the deed of trust or mortgage, but any works which the company may, after that time and before the sale, have constructed, and all other property of which it may be possessed at the time of the sale other than debts due to it.' So far, nothing is said of what rights, privileges, franchises, and immunities shall vest in the purchaser in respect to the property, the title to which is thus conveyed. The act, however, proceeds to say that 'upon such conveyance to the purchaser the said company shall ipso facto be dissolved.' From this it necessarily follows that all privileges, which, by the terms of its charter were personal to it, ceased with its dissolution. But the statute adds: 'And the said purchaser shall forthwith be a corporation by any name which may be set forth in said conveyance, or in any writing signed by him or them, and recorded in the recorder's office of any county wherein the property so sold, or any part thereof, is situated, or where said conveyance is recorded.' Thus is formed a new corporate body succeeding to the title of the property sold and conveyed to it, but deriving its existence from this law, and not from the original act of incorporation which constituted the charter of its predecessor, and with such powers, rights, privileges, franchises, and immunities only as are conferred upon it by the law which has brought it into being. These are defined in the next succeeding section. So far as material to the question its language is: 'The corporation created by or in consequence of such sale and conveyance shall succeed to all such franchises, rights, and privileges, and perform all such duties, as would have been had or should have been performed by the first company, but for such sale and conveyance,' etc.

It is earnestly contended, on behalf of the plaintiff in error, that by virtue of this language it is entitled to enjoy the property formerly belonging to the Chesapeake & Ohio Railroad Company, its predecessor, precisely as though it had been incorporated under the charter of that company, and therefore with the exemption from taxation which was conceded to that company. But, broad, general, and comprehensive as the language is, we cannot, in reference to the subject-matter now in hand, apply it with that force and meaning. The words used are, it will be observed, 'franchises, rights, and privileges, * *  * as would have been had *  *  * by the first company, but for such sale,' etc. There is no express reference to a grant of any exemption or immunity; nothing is said in relation to the subject of taxation. The words actually used do not necessarily embrace a grant of such an exemption. As was said, on this point, in Morgan v. Louisiana, 93 U.S. 217-233: 'Much confusion of thought has arisen in this case and similar cases from attaching a vague and undefined meaning to the term 'franchises.' It is often used as synonymous with rights, privileges, and immunities, though of a personal and temporary character; so that, if any one of these exists, it is loosely termed a 'franchise,' and is supposed to pass upon a transfer of the franchises of the company. But the term must always be considered in connection with the corporation or property to which it is alleged to appertain. The franchises of a railroad corporation are rights or privileges which are essential to the operations of the corporation, and without which its road and works would be of little value; such as the franchise to run cars, to take tolls, to appropriate earth and gravel for the bed of its road, or water for its engines, and the like. They are positive rights or privileges, without the possession of which the road of the company could not be successfully worked. Immunity from taxation is not one of them. The former may be conveyed to a purchaser of the road as part of the property of the company; the latter is personal, and incapable of transfer without express statutory direction.'

Here there is no such express statutory direction. Nor is there an equivalent implication by necessary construction. There is nothing in the language itself, nor the context, nor the subject-matter of the legislation, nor the situation and relation of the parties to be affected, which indicates that a grant of an exemption from taxation to a particular railroad corporation, or to a class of such, was in the contemplation of the legislature. The subject-matter of this legislation was not the original construction of railroads, but the operation of railroads already constructed. The state was not in the attitude of a contractor, soliciting subscriptions of capital, in the formation of companies to undertake the risk of public improvements, for the benefit of the state, with the hazard of loss and perhaps financial ruin to the first promoters, and offering exemptions from taxation as a consideration, by way of contract, for the acceptance of its proposals. It was legislating in reference to enterprises already undertaken, prosecuted, and completed by companies originally thus incorporated, and who, by reason of insolvency, had been stripped of their property by creditors, and sentenced by the law to dissolution; and the purpose of the statute was simply to provide suitable means of incorporating the purchasers, to facilitate their use of the property in operating it for the benefit of the public, as designed from the beginning. These purchasers had not bought the immunity now demanded either from the state or the prior possessor. The contract of the creditors would be fully met, on failure of payment of the stipulated debt, by subjecting to sale the property pledged for its payment, with such rights, franchises, and privileges only as were necessary for its beneficial use and enjoyment. The immunity from taxation, as we have already said, was not necessarily included in that designation. The debtor corporation, and its creditors combined, could not confer upon the purchasers any rights which were not assignable; and, as no consideration moved to the state for a renewal of the grant, there is no motive for finding, by mere construction and implication, what the words of the law have failed to express. That certainly is not a reasonable interpretation for which no sufficient reason can be assigned.

We conclude, therefore, that the act from which the plaintiff in error derives its corporate existence and powers in West Virginia does not contain a renewal of the grant by exemption from taxation, which, in the seventh section of the act of March 1, 1866, applied to the Chesapeake & Ohio Railroad Company. Were it otherwise, so that we should be constrained to hold that the language of the act of West Virgi ia of February 18, 1871, as amended by that of February 20, 1877, had the force of a grant to the plaintiff in error of the exemption of taxation vested by the seventh section of the act of March 1, 1866, in the Chesapeake & Ohio Railroad Company, nevertheless we should be compelled also to hold, on distinct grounds, that the exemption thus conferred did not take effect as a contract, protected from repeal by the constitution of the United States. On the supposition now made, it would still be true that all the rights of the plaintiff in error, as a corporation, other than the title to the property it acquired by the judicial sale, had their origin in and depended upon the acts of 1871-77, under and by which it was created a corporation. It can, in no sense, be regarded as the identical corporate body, of which it became the successor, merely discharged by a process of insolvency from further liability for past debts, which is the view pressed upon us in argument by counsel for plaintiff in error. The language of the statutes expressly contradicts this assumption. The old corporation in terms is dissolved. The purchasers are as explicitly declared to become a corporation, and its corporate powers are conferred by reference to those which had belonged to their predecessors. The language of the law, the reason involved in its provisions, and the precedents of cases heretofore decided by this court, foreclose further controversy on this point. Shields v. Ohio, 95 U.S. 319; Railroad Co. v. Georgia, 98 U.S. 359; Railroad Co. v. Georgia, 98 U.S. 359; Louisville & N. R. Co. v. Palmes, 109 U.S. 244; S.C.. 3 SUP. CT. REP. 193. That being the case, all grants of corporate powers, rights, privileges, franchises, and immunities are taken, subject to existing laws, remaining unrepealed. At the time the plaintiff in error became a corporation, chapter 53, § 8, of the Code of West Virginia of 1869, which took effect April 1, 1869. was in force, and has never been repealed. It enacted, among other things, as follows: ' * *  * And the right is hereby reserved to the legislature to alter any charter or certificate of incorporation hereafter granted to a joint stock company, and to alter or repeal any law applicable to such company.' The constitution of the state of West Virginia of 1863, article 11, § 5, also provides as follows:

'(5) The legislature shall pass general laws whereby any number of persons associated for mining, manufacturing, insuring, or other purpose useful to the public, excepting banks of circulation and the construction of works of internal improvement, may become a corporation, on complying with the terms and conditions thereby prescribed; and no special act incorporating or granting peculiar privileges to any joint-stock company or association, not having in view the issuing of bills to circulate as money or the construction of some work of internal improvement, shall be passed. No company or association, authorized by this section, shall issue bills to circulate as money. No charter of incorporation shall be granted under such general laws, unless the right be reserved to alter or amend such charter at the pleasure of the legislature, to be declared by general laws. No act to incorporate any bank of circulation or internal improvement company, or to confer additional privileges on the same, shall be passed, unless public notice of the intended application for such act be given under such regulations as shall be prescribed by law.'

The incorporation of the plaintiff in error comes within the provisions, both of the constitution and the Code of 1868. Its charter is the law of 1871 as amended by that of 1877. Its certificate of incorporation is the conveyance to it, by the name it has chosen, as a purchaser at the judicial sale, or set forth in some writing signed by such purchaser, and recorded as required. It is a charter granted under a general law, which the constitution declares to be subject to legislativ alteration and amendment. The laws subject its property to taxation, and which form the subject of the present controversy, are but the exercise of that legislative discretion, which, as it became the law of the contract itself, cannot be complained of as a breach of the contract.

The conclusion is not weakened by the suggestion that the rights of the plaintiff in error originate in the provisions of the Code of Virginia, referred to in the act of March 1, 1866, incorporating the Covington & Ohio Railroad Company, and of which the acts of 1871-77 are re-enactments. For even then they would not antedate the provision of the constitution of 1863, nor avoid the effect of the reasoning of this court in the case of ''St. Louis, I. M. & S. Ry. Co. v. Railroad Com'rs'', 113 U.S. 465; S.C.. ante, 529. The rights of the plaintiff in error, as a corporation, are determined by the law in force when it came into being, although there is no ground on which it can be contended that there was any legislative contract in the act of March 1, 1866, for the further creation of any corporation in favor of possible purchasers at judical sales under decrees of foreclosure of deeds of trust or mortgages. In either view the result is the same, and for the reasons given the decree of the supreme court of appeals of the state of West Virginia is affirmed.


text: Talk:Chesapeake Railway Company v. Miller/Opinion of the Court


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City of Litchfield v. Ballou

John M. Palmer, for appellant.

D. T. Littler, for appellees.

MILLER, J.

title: City of Litchfield v. Ballou


text: Talk:City of Litchfield v. Ballou

title: Talk:City of Litchfield v. Ballou


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City of Litchfield v. Ballou/Opinion of the Court

This is an appeal from a decree in chancery of the circuit court for the Southern district of Illinois. The suit was commenced by a bill brought by Ballou against the city of Litchfield. Complainant alleges that he is the owner of bonds, issued by the city of Litchfield, to a very considerable amount. That the money received by the city for the sale to him of these bonds was used in the construction of a system of water-works for the city, of which the city is now the owner. He alleges that one Buchanan, who was the owner of some of these bonds, brought suit on them in the same court, and was defeated in his action in the circuit court and in the supreme court of the United States, both of which courts held the bonds void. He now alleges that, though the bonds are void, the city is liable to him for the money it received of him, and as by the use of that money the water-works were constructed, he prays for a decree against the city for the amount, and if it is not paid within a reasonable time, to be fixed by the court, that the water-works of the city be sold to satisfy the decree. The bill also charges that he was misled to purchase the bonds by the false statements of the officers, agents, and attorneys of the city, that the bonds were valid. Other parties came into the litigation, and answers were filed. The answer of the city denies any false representations as to the character of the bonds; denies that all the money received for them went into the water-works, but part of it was used for other purposes, and avers that a larger part of the sum paid for the water-works came from other sources than the sale of these bonds, and it cannot now be ascertained how much of that money went into the works. The case came to issue, and some testimony was taken, the substance of which is that much the larger part of the money for which the bonds were sold, was used to pay the contractors who built the water-works, while a very considerable proportion of the cost of these works was paid for out of taxation and other resources than the bonds. There is no evidence of any false or fraudulent representations by the authorized agents of the city. The bonds were held void in the case of Buchanan v. Litchfield, 102 U.S. 278, because they were issued in violation of the following provision of the constitution of Illinois: 'ARTICLE IX.

'Sec. 12. No county, city, township school-district, or      other municipal corporation, shall be allowed to become      indebted in any manner, or for any purpose, to an amount,      including existing indebtedness, in the aggregate exceeding      five per centum on the value of the taxable property therein,      to be ascertained by the last assessment for state and county      taxes previous to the incurring of such indebtedness.'

It was made to appear as a fact in that case that at the time the bonds were issued the city had a pre-existing indebtedness exceeding 5 per cent. of the value of its taxable property, as ascertained by its last assessment for state and county taxes. The bill in this case is based upon the fact that the bonds are for that reason void, and it makes the record of the proceedings in that suit an exhibit in this. But the complainant insists that, though the bonds are void, the city is bound, ex oequo et bono, to return the money it received for them. It therefore prays for a decree against the city for the amount of the money so received. There are two objections to this proposition: (1) If the city is liable for this money, an action at law is the appropriate remedy. The action for money had and received to plaintiff's use is the usual and adequate remedy in such cases where the claim is well founded, and the judgment at law would be the exact equivalent of what is prayed for in this bill, namely, a decree for the amount against the city, to be paid within the time fixed by it for ulterior proceedings. In this view the present bill fails for want of equitable jurisdiction. (2) But there is no more reason for a recovery on the implied contract to repay the money than on the express contract found in the bonds.

The language of the constitution is that no city, etc., 'shall be allowed to become indebted in any manner or for any purpose to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of its taxable property.' It shall not become indebted. Shall not incur any pecuniary liability. It shall not do this in any manner; neither by bonds, nor notes, nor by express or implied promises. Nor shall it be done for any purpose; no matter how urgent, how useful, how unanimous the wish. There stands the existing indebtedness to a given amount in relation to the sources of payment as an impassable obstacle to the creation of any further debt, in any manner, or for any purpose whatever. If this prohibition is worth anything it is as effectual against the implied as the express promise, and is as binding in a court of chancery as a court of law.

Counsel for appellee in their brief, recognizing the difficulty here pointed out, present their view of the case in the following language: 'The theory of relief assumed by the bill is that, notwithstanding the bonds were wholly invalid, and no suit at law could be successfully maintained either upon the bonds or upon any contract as such growing out of the bonds, yet, as the city of Litchfield is in possession of the money received for the bonds,-or, which is the same thing, its equivalent in property identified as having been procured with this money,-and having repudiated and disclaimed its liability in respect of the bonds, it must, upon well-established equitable principles, restore to the complainants what it actually received, or at least so much of what it received as is shown now to be in its possession and in its power to restore.' If such be the theory of the bill, the decree of the court is quite unwarranted by it. The money received by the city from Ballou has long passed out of its possession, and cannot be restored to complainant. Neither the specific money nor any other money is to be found in the safe of the city, or anywhere else under its control. And the decree of the court, so far from attempting to restore the specific money, declares that there is due from the city of Litchfield to complainants a sum of money, not that original money, but a sum equal in amount to the bonds a d interest on them from the day of their issue. Is this a decree to return the identical money or property received, or is it a decree to pay as on an implied contract the sum received, with interest for its use?

As regards the water-works, into which it is said the money was transmuted, if the theory of counsel is correct, the water-works should have been delivered up to plaintiffs as representing their money as property which they have purchased, and which, since the contract has been declared void, is their property, as representing their money. In this view the restoration to complainants of the property which represents their money, puts an end to obligations on both sides growing out of the transaction. The complainants, having recovered what was theirs, have no further claim on the city. The latter having dischaged its trust by returning what complainant has elected to claim as his own, is no longer liable for the money or any part of it. But here also the decree departs from what is now asserted to be the principle of the bill. Having decreed an indebtedness where none can exist, and declared that complainant has a lien on, not the ownership of, the water-works, it directs a sale of the water-works for the payment of this debt and the satisfaction of this lien. If this be a mode of pursuing and reclaiming specific property into which money has been transmuted, it is a new mode. If the theory of appellee's counsel be true, there is no lien on the property. There is no debt to be secured by a lien. That theory discards the idea of a debt, and pursues the money into the property and seeks the property, not as the property of the city to be sold to pay a debt, but as the property of complainants into which his money, not the city's, has been invested for the reason that there was no debt created by the transaction.

The money received on the bonds having been expended, with other funds raised by taxation, in erecting the water-works of the city, to impose the amount thereof as a lien upon these public works would be equally a violation of the constitutional prohibition, as to raise against the city an implied assumpsit for money had and received. The holders of the bonds and agents of the city are participes criminis in the act of violating that prohibition, and equity will no more raise a resulting trust in favor of the bondholders than the law will raise an implied assumpsit against a public policy so strongly declared. But there is a reason why even this cannot be done.

Leaving out of view the question of tracing complainants' money into these works, it is very certain that there is other money besides theirs in the same, property. The land on which these works are constructed was bought and paid for before the bonds were issued or voted. The streets through which the pipes are laid is public property into which no money of the complainants entered. Much, also, of the expense of construction was paid by taxation or other resources of the city. How much cannot be known with certainty, because, though the officers of the city testify that on the books a separate water-works account was kept, there is no evidence that the funds which went to build these works are traceable by those books to their source in any instance. If the complainants are after the money they let the city have, they must clearly identify the money or the fund, or other property which represents that money, in such a manner that it can be reclaimed and delivered without taking other property with it, or injuring other persons or interfering with others' rights. It is the consciousness that this cannot be done which caused the court and counsel to resort to the idea of a debt and a lien which cannot be sustained. A lien of a person on his own property, which is and has always been his, in favor of himself, is a novelty which only the necessities of this case could suggest. Another objection to this assertion of a right to the property is that he bondholders, each of whom must hold a part of whatever equity there is to the property, are numerous and scattered, and the relative amount of the interest of each in this property could hardly be correctly ascertained. The property itself cannot be divided; its value consists in its unity as a system of water-works for the city. Without the land and the use of the streets, the value of the remainder of the plant is gone. In these, complainants can have no equity.

The decree of the court is reversed, and the case remanded, with directions to dismiss the bill.

I am requested to say that Mr. Justice HARLAN dissents from the judgment and opinion of the court.


text: Talk:City of Litchfield v. Ballou/Opinion of the Court


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Page:Eskimo Life.djvu/218

176 Norwegians have very thoroughly freed ourselves. It is very difficult to explain the origin of this law. Many writers, as we know, seek to trace it to the primitive conception of woman as a chattel, and commonly as a captive of the spear, whence it followed that a wife ought not to be taken from among relations or friends, but should be carried off from another tribe. Although the scientific authorities are against me, it appears to me by no means impossible that we may also find at the root of the custom the belief that marriage between near relations produces a weakly progeny. This belief, at any rate, prevails among almost all nations in the form of a dread of incest. It is true that modern research has sought to show that marriage between kinsfolk is not injurious; but whether well-founded or not, the contrary belief has undoubtedly been entertained, and from it the law of exogamy would naturally follow. The fact that among the Greenlanders it goes the length of forbidding marriage between people of the same village is easily explicable when we think of the above mentioned customs, which render it impossible to be sure who may or may not be half-brothers and sisters.

In several respects the morality of the heathen Eskimos stands considerably higher than that which one generally finds in Christian communities. As I

title: Page:Eskimo Life.djvu/218


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Gloucester Ferry Company v. Commonwealth of Pennsylvania

In March, 1865, the Gloucester Ferry Company, the plaintiff in error here, was incorporated by the legislature of New Jersey to establish a steam-boat ferry from the town of Gloucester, in that state, to the city of Philadelphia, in Pennsylvania, with a capital stock of $50,000, divided into shares of $50 each. During that year it established, and has ever since maintained, a ferry between those places, across the river Delaware, leasing or owning steam ferry-boats for that purpose. At each place it has a slip or dock on which passengers and freight are received and landed; the one in Gloucester it owns, the one in Philadelphia it leases. Its entire business consists in ferrying passengers and freight across the river between those places. It has never transacted any other business. It does not own, and has never owned, any property, real or personal, in the city of Philadelphia other than the lease of the slip or dock mentioned. All its other property consists of certain real estate in the county of Camden, New Jersey, needed for its business, and steam-boats engaged in ferriage. These boats are registered at the port of Camden, New Jersey. It has never owned any boats registered at a port of Pennsylvania, and its boats are never allowed to remain in that state, except so long as may be necessary to discharge and receive passengers and freight. In Jury, 1880, the auditor general and the treasurer of the state of Pennsylvania stated an account against the company of taxes on its capital stock, based upon its appraised value, for the years 1865 to 1879, both inclusive, finding the amount of $2,593.96 to be due the commonwealth. From this finding an appeal was taken to the court of common pleas of Philadelphia, and was there heard upon a case stated, in which it was stipulated that if the court were of opinion that the company was liable for the tax, judgment against it in favor of the commonwealth should be entered for the above amount; but if the court were of opinion that the company was not liable, judgment should be entered in its favor.

A statute of Pennsylvania, passed June 7, 1879, 'to provide revenue by taxation,' in its fourth section enacted as follows: 'That every company or association whatever, now or hereafter incorporated by or under any law of this commonwealth, or now or hereafter incorporated by any other state or territory of the United States or foreign government, and doing business in this commonwealth, or having capita employed in this commonwealth in the name of any other company or corporation, association or associations, person or persons, or in any other manner, except foreign insurance companies, banks and savings institutions, shall be subject to and pay into the treasury of the commonwealth annually a tax to be computed as follows, namely: If the dividend or dividends made or declared by such company or association as aforesaid, during any year ending with the first Monday of November, amount to six or more than six per centum upon the par value of its capital stock, then the tax to be at the rate of one-half mill upon the capital stock for each one per centum of dividend so made or declared; if no dividend be made or declared, or if the dividend or dividends made or declared do not amount to six per centum upon the par value of said capital stock, then the tax to be at the rate of three mills upon each dollar of a valuation of the said capital stock,' made in accordance with the provisions of another section of the act. It was under the authority of this act that the taxes in question were stated against the company by the auditor general and the state treasurer.

The court of common pleas held that the taxes could not be lawfully levied, for there was no other business carried on by the company in Pennsylvania except the landing and receiving of passengers and freight, which is a part of the commerce of the country, and protected by the constitution from the imposition of burdens by state legislation. It therefore gave judgment in favor of the company. The case being carried on a writ of error to the supreme court of the state, the judgment was reversed, and judgment ordered in favor of the commonweath for the amount mentioned. To review this latter judgment, the case is brought here.

John G. Johnson, M. E. Olmsted, Sanil Dickson, and M. P. Henry, for plaintiff in error.

Robert Snodgrass, for defendant in error.

[Argument of Counsel from pages 199-202 intentionally omitted]

FIELD, J.


text: Talk:Gloucester Ferry Company v. Commonwealth of Pennsylvania