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Kenicott v. The Supervisors/Opinion of the Court

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

The Central Railroad of Illinois runs, in a large part of its course, north and south through the State just named. The great extent of its course, and the important places through which it passes or to which it leads, made it a matter very desirable to the towns in adjoining districts on the east and west of it to connect themselves by other railroads with it. Among the towns on the east, and about eighteen miles to the east of the road, was Mount Vernon, a place situate in Jefferson County, a county on the east of the road, whose course runs parallel to the whole of the western line of the county. This town, moving early in the matter, the legislature of Illinois, in February, 1855, chartered a company, called the Mount Vernon Railroad Company, whose immediate purpose was, with the aid of a mortgage on certain lands in Jefferson County, known as the 'swamp and overflowed lands,' to build a road from Mount Vernon, in Jefferson County aforesaid, to the Illinois Central. Such a road, of course, would run west through the estern part of Jefferson County, cross its western line, and connect soon after with the desired trunk of the Illinois Central.

The charter, in its seventh, eighth, and ninth sections, reads thus:

'SECTION 7. The corporation may borrow such sums of money as they deem advisable, and upon such terms as they may agree for the carrying out of the objects of this act, and may provide any security therefor they think best, by bond and mortgage, or otherwise.

'SECTION 8. The County Court of Jefferson County are hereby authorized and empowered to subscribe for such amount of the capital stock of said company as they may think proper. They may issue the bonds of the county, and provide for the payment of the principal and interest thereof, by sale or mortgage, one or both, of the swamp and overflowed lands of said county, and dispose of such bonds for money to pay, or in payment of their subscription to said stock; all and each to be upon such time, terms, and in such mode as they may deem best; or they may make such other disposition of said swamp and overflowed lands in aid of the construction and maintenance of said railroad as they deem best for the public interest of said county.

'SECTION 9. Before any disposition is made of said swamp and overflowed lands, or any subscription to the stock of said company, the said County Court may, at any regular or special term of said court, order a special election to be held for the purpose of taking the sense of the qualified voters of the county thereupon-giving such notice thereof as they may deem proper-and which shall be conducted, and returns made, canvassed, and published in all respects as other county elections. The County Court shall prepare a proposition or propositions of the mode or modes, one or more, containing a brief, clear, distinct idea of the plan or plans proposed by them for aiding in constructing of said road; which said proposition shall be printed at large as an election ticket, and the voters may express their will on said proposition by writing 'Yea' and 'Nay' on a separate ticket. The proposition or plan having the highest number of votes shall be adopted by the County Court.'

But in addition to the sections thus quoted followed another and very important one in these words:

'SECTION 10. Any county through which said road may run, and every county through which any other railroad may run with which this road may be joined, connected, or intersected, may, and are hereby authorized and empowered to aid in the construction of the same, or of such other road with which it may so connect; and for this purpose the provisions of the seventh, eighth, and ninth sections of this act shall extend, include, and be applicable to every such county, and every such railroad.'

So far as to Jefferson County; and this 10th section.

On the east again of Jefferson County, and, like it, having 'swamp and overflowed lands,' and like it interested in gaining a connection with the great trunk of the Illinois Central, was Wayne County; the west line of this county being about eleven miles east of the town of Mount Vernon.

On the same day of February, 1855, when the charter already mentioned was granted, a charter had been granted to another company, named the Belleville and Fairfield Railroad Company, whose purpose was the construction of a road from Belleville (a place in Illinois near St. Louis, and west of the Illinois Central), through Nashville (Illinois) and Mount Vernon, to Fairfield, a place in Illinois nearly east of Mount Vernon, and so finally to Louisville, Kentucky. This road, which ran from west to east, was chartered so as to run through both the counties of Jefferson and Wayne, and by the terms of the 10th section of the Mount Vernon road might 'be joined, connected, or intersected' with it.

This charter to the Belleville and Fairfield road being in existence, the County Court of Wayne County, on the 1 th of March, 1856, made a deed of its swamp lands to one Charles Wood, in trust for that company or any other company that would build a railroad through the county. This deed recited that a connection had been made between the Mount Vernon and the Belleville and Fairfield roads, by which the latter would become a part of and elongation of the former; that the power to appropriate the swamp lands in Wayne County through which the said road was situated was brought into operation; that a vote had been taken in November, 1855, to appropriate and donate said lands for the purpose of aiding in constructing the said road, and that this power had been conferred by the 9th section of the charter of the Mount Vernon company, and that in execution of such authority and power the deed was made by the County Court. The deed contained a proviso, that if the road should not be made in a certain time the land should be reconveyed by Wood to the county.

An act of the Illinois legislature, passed February 14th, 1857, amendatory of the charter of this Belleville and Fairfield company, and extending its line of transit, changed the name of the company to 'The St. Louis and Louisville Railroad Company.' The proposed line of the road as thus enlarged crossed the Illinois Central and was located directly through five different counties, of which Wayne was one. The act declared:

'SECTION 4. The vote heretofore taken in Wayne County to donate the swamp lands to the Belleville and Fairfield Railroad Company, &c., and the conveyance of said land by the County Court of said county in trust for the use of the said railroad company are, and the same are hereby declared to be legal and valid.

'SECTION 5. Each county through which said railroad runs may donate the swamp lands of such county to the St. Louis and Louisville Railroad.'

In this state of things the county of Wayne held an election in November, 1858, in which the question was thus proposed to the voters:

'For appropriating the swamp lands of Wayne County as a bonus to any company for building a railroad through said county.

'Against the same.'

A majority of votes was cast in favor of the proposition, and thereupon soon after this time two persons, named Van Duser and Smith, entered into a contract with Wayne County for building that part of the road of the Belleville and Fairfield company (or, as it now was, the St. Louis and Louisville company) lying between the east line of Wayne County and Mount Vernon, thus running across the entire width of Wayne County. This contract having been partially executed by Van Duser and Smith was assigned to the Mount Vernon Railroad Company, in which they had become the chief stockholders, and that company undertook the construction of this portion of the road.

The county of Jefferson entered into a like contract for the construction of the Mount Vernon road, from Mount Vernon to the Illinois Central.

On the 20th of April, 1859, S. J. Wilson and T. M. Scott, judges of the County Court of Wayne County, mortgaged the whole, about 100,000 acres, of the swamp and overflowed lands of the county to Isaac Seymour, of New York, in trust to secure the payment of bonds to the amount of $800,000, to be issued by the Mount Vernon Railroad Company. The recitals of the mortgage ran thus:

'WHEREAS, The Congress of the United States duly passed an act, approved September the 28th, A.D. 1850, entitled 'An act to enable the State of Arkansas and other States to reclaim the swamp lands within their limits,' and in pursuance thereof the Secretary of the Interior of the United States caused a patent to be issued to the State of Illinois for all the swamp and overflowed lands within its limits, to be situated under the direction of the commissioners of the Land Office:

'And whereas, The legislature of the said State of Illinois passed an act, approved by the governor of said State on the 22d of January, A.D. 1852, entitled 'An act to dispose of the swamp and overflowed lands, and to pay the expenses o selecting and surveying the same,' which said act authorized the appropriation and disposal of said lands for such purposes as may be deemed expedient by the court or county judges:

'And whereas, The legislature of the State of Illinois passed an act, approved by the governor of said State on the 15th of February, A.D. 1855, entitled 'An act to incorporate the Mount Vernon Railroad Company,' whereby all such persons and corporations as shall become stockholders under the provisions of the said act, and their successors, were duly incorporated into a body politic and corporate under the name of the Mount Vernon Railroad Company, and the parties of the first part were duly authorized and empowered to make such disposition of the swamp and overflowed lands within the said county of Wayne, in aid of the construction and maintenance of the said railroad, as they deem best for the public interest of said county:

'And whereas, At a special term of the said County Court of the county of Wayne, held on the 28th of September, A.D. 1855, an order was duly made and entered by the same court, whereby a special election was ordered and directed on the 5th of November, A.D. 1855, to be held for the purpose of taking the sense of the qualified voters of the county upon the mortgaging that portion of the said overflowed and swamp lands hereinafter described, for the purpose of aiding in the construction and maintenance of the said the Mount Vernon Railroad; and the said County Court did then and there order public notice of such special election to be given by advertisements, in accordance with the statute laws of said State of Illinois, which said notice was given and published in conformity with the terms and provisions of said order; and the said County Court did prepare a proposition containing a brief, clear, and distinct idea of the plan proposed by them for aiding in constructing said road, and did cause the said propositions to be duly printed at large as an election ticket, and presented to the said qualified voters of said county, to be used at such election, in the words and figures following, to wit:

'For appropriating the swamp lands of Wayne County as a bonus to any company for building a railroad through said county.'

'Against the same.'

'And the said special election was duly held, pursuant to said notice, on the said 5th day of November, A.D. 1855, and conducted in all things in conformity to the provisions of said charter and the laws of the said State of Illinois, and the returns thereof made, canvassed, and published in all respects as other county elections are required to be in and by the said laws:

'And whereas, The said proposition or plan above stated received the highest number of votes, and a majority of all the votes given at such election, and a majority of the qualified voters of the said county of Wayne expressed their will by writing and voting 'Yea' upon the said several printed propositions or tickets cast by them at the said election; and whereas, upon the returns of said special election being duly made, canvassed, and published as aforesaid, the County Court of the county of Wayne did adopt the proposition or plan having the highest number of votes as aforesaid, and did order and adjudge and determine to execute a mortgage in conformity to such proposition or plan, and to the provision of this instrument, to the parties of the second part as trustees upon the land hereinafter described, for the purpose of aiding in the construction and maintenance of the said Mount Vernon Railroad, which said order was duly made in open court on the 20th of April, A.D. 1859:

'And whereas, By virtue of the said several acts and proceedings the parties of the first part have become endowed with the requisite power and authority to dispose of and mortgage the said lands for the purpose of aiding the construction and maintenance of the railroad of the said Mount Vernon Railroad Company, and the said parties deem it best for the public interest of th said county of Wayne that the lands hereinafter described should be mortgaged to the party of the second part, trustee and commissioner, duly appointed and selected by both the said parties of the first part and the said the Mount Vernon Railroad Company, upon the terms and conditions particularly set forth:

'And whereas, The said the Mount Vernon Railroad Company has deemed it advisable to provide for the issue and disposal, now and hereafter, of its construction bonds, for the purpose of raising funds, from time to time, for the construction and completion of the railroad, and for the equipment thereof, and the expenses of organizing and operating the same, and thereby to become indebted to divers persons, bodies politic or corporate, who shall become holders of such construction bonds and obligations in the just and full sum in the aggregate of $800,000, secured to be paid by their 400 construction bonds or obligations of and for $500 each, and by their 600 construction bonds or obligations of and for $1000 each, to the extent of $800,000 in the aggregate, to bear date on the first day of _____, A.D. 1859, and be payable in fifteen years from the date thereof, which will be in the year 1874, at the Bank of North America, in the city of New York, with interest at the rate of 7 per centum per annum, payable semi-annually at the Bank of North America, in said city of New York, on the 1st day of May and November, in each year, to be secured hereby; all which bonds are to have warrants for the payments of the interest thereon attached, and to be in the form following, the respective number and amounts thereof being omitted:

'The Mount Vernon Railroad Company acknowledges itself to owe Isaac Seymour or bearer $1000, which said company hereby promises to pay on presentation of this bond hereof at the Bank of North America, in the city of New York, on the first day of May, A.D. 1874, with interest thereon at the rate of 7 per cent. per annum, semi-annually, on the first day of May and November in each year, until the said principal sum shall be paid on presentation of the proper interest warrants hereto annexed at the said Bank of North America.

'This bond is one of a series of 400, of $500 each, and 600 of $1000 each, of like term and date, not exceeding in the whole the sum of $800,000, issued and to be issued for the purpose of the construction and the completion of the said railroad, and the expenses incident thereto. Full payment of the principal and interest of the whole issue of these bonds is secured by a mortgage bearing even date herewith to the said Isaac Seymour, of the city of New York, as trustee, of 100,000 acres of land in the county of Wayne, in the State of Illinois, granted by the said State and county, for the purpose of constructing and maintaining said railroad, and also by a mortgage to said Isaac Seymour, as trustee of said railroad, its branches, and other real and personal property of said company.

'In witness whereof the said the Mount Vernon Railroad Company has caused this bond to be executed and attested in its behalf, by its president and treasurer, and its interest warrants to be signed by its secretary, and its corporate seal to be hereto affixed at the _____, in the State of _____, this ___ day of _____, A.D. 1859.'

'Which said construction bonds or obligations are primarily secured by this indenture, and the lands herein described, and the avails thereof, are to constitute a primary fund for the payment of the principal and interest of the said bonds.

'Now, therefore, this indenture witnesseth: That the said parties of the first part, in consideration of the premises and of one dollar to them severally paid by the parties of the second part at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, remised, released, conveyed, and confirmed, and, by these presents, do grant, bargain, sell, remise, release in full of, convey, and conf rm to the party of the second part, his successors, and the survivors of them, and the heirs and assigns of such survivors, forever, all and singular the land and premises situate and lying and being in the county of Wayne, and the State of Illinois, bounded and described as follows, that is to say.'

[Here followed a description by tracts of all the lands mortgaged; these being the swamp and overflowed lands in question.]

'To have and to hold all and singular the lands and premises hereby granted or intended so to be, and each and every part and parcel thereof, with the appurtenances, unto the said party hereto of the second part, his successors and assigns, forever, as joint tenants, and not as tenants in common, for the uses and purposes in this indenture set forth and declared.

'And this indenture further witnesseth that the said parties of the first part, for themselves and their successors do covenant and agree that if default shall be made in the payment of the interest upon the said construction bonds or obligations, so that a sum equal to one year's interest of the whole amount of the said construction bonds or obligations already issued and secured by these presents, [?] or that if default shall be made in the payment of the principal of said construction bonds or obligations, that then and from thenceforth it shall and may be lawful for the said parties of the second part to enter into and upon and take possession of all and singular the lands and all the premises included or intended to be included in this mortgage.'

This mortgage was accompanied by a deed of trust of the same date between the same parties, with recitals similar to it, and equally in the interests of the bondholders. Both, as appeared by an entry in the records of the County Court, were thus recognized in that tribunal. The entry was thus:

APRIL SPECIAL TERM, 1859.

'At a special term of the County Court of Wayne County, began and held at the court-house in Fairfield, on the 20th day of April, 1859. Present, Hon. S. J. Wilson, judge; T. M. Scott, associate; J. W. Barnhill, clerk.'

'And now, on this day, the court executed to Isaac Seymour, of the city of New York, a deed of trust to certain swamp and overflowed lands lying in said Wayne County. The conditions and provisions of said trust deed will more fully appear by reference to said trust deed, which is entered of record in the recorder's office of said county in mortgage-book 'B,' pages 330 to 341; and also executed a mortgage on the same lands to the said Isaac Seymour, as collateral security, to enable the Mount Vernon Railroad Company to procure money to build a railroad through Wayne, from the eastern boundary of said Wayne County to Mount Vernon, in Jefferson County; and which mortgage is referred to and is recorded in the recorder's office of said Wayne County, in mortgage-book 'B,' pages 341 to 359.

'And it is ordered by the court that S. J. Wilson be, and he is hereby, appointed a commissioner to act as the attorney of said Isaac Seymour, trustee as aforesaid, in the said county of Wayne, State of Illinois.'The Mount Vernon Railroad Company issued the bonds such exactly as were described in the recitals above given of the mortgage; and certain of them (to the extent of $73,000) passed into the hands of one Kenicott and others, citizens of Massachusetts. These holders of the bonds had paid value for them before their maturity, without notice of any defect or infirmity in the bonds or in the mortgage. The interest being unpaid, they filed a bill in the court below against the Board of Supervisors of Wayne County impleaded with the Mount Vernon Railroad Company, to foreclose the mortgage given as already mentioned by the county just named.

In its answer, the defendant insisted that the Mount Vernon Railroad Company was not located in, did not run in the county of Wayne, and had no authority or right to run or locate its road through that county. It was denied that there was any ther railroad running through the county of Wayne with which the Mount Vernon road was joined, or connected, or intersected, and it was averred that it did not then connect with any railroad in the county of Wayne. Proofs were taken, and the bill was dismissed upon the ground that the proofs failed to show that at the date of the mortgage and deed of trust for securing the payment of the bonds there was any line of railroad constructed, or authorized to be constructed, through the county of Wayne, with which the Mount Vernon railroad was joined, connected, or intersected. The plaintiffs thereupon appealed to this court.

Mr. J. C. Robinson, for the county of Wayne, in support of the judgment below, argued that the Mount Vernon railroad could not under its charter run through Wayne County; that upon the most liberal construction to be given to the tenth section the power depended on the existence of one of two facts:

1st. That the Mount Vernon road may run through Wayne County; OR

2d. That some other railroad may run through that county with which the Mount Vernon road 'may be joined, connected, or intersected.'Now there was no proof of any consolidation of the roads; a matter in Illinois confessedly to be done only in a way prescribed by statute. The case was sought, in fact, to be rested on a sort of connection by contract of the Mount Vernon road at Mount Vernon, with a railroad through Wayne County, to be built by the effort of Wayne County, from east to west, and so on to Mount Vernon. But no such power can be got from any provision which is contained in the Mount Vernon charter; and as to any proposition that a county by virtue of its municipal organization possesses power to build a railroad, the idea is one which no one in this day would advance. A county, as the law is now settled to be, is created by the law-making power, a municipal organization for the purposes of government alone, and sustains to the sovereign power the relation of a mere corporation, with only such powers as have been expressly granted, or result by necessary implication.

No doubt under the laws of Illinois a county may sell and convey its real estate. But neither under those laws nor independently of them may a county make a gift, a pure donation, of its property. The vote taken here was 'for appropriating the swamp lands of Wayne County as a bonus to any company for building a railroad through said county.' Such a vote was a nullity. To give away, without any consideration, the property of the public is beyond the power of any county court, or even of the people themselves.

By the eighth section of the charter of the Mount Vernon road, the Cournty Court is required 'to prepare a proposition or propositions OF THE MODE OR MODES, one or more, containing a brief, clear, distinct idea OF THE PLAN OR PLANS proposed by them for aiding in constructing of SAID ROAD.'

'For appropriating the swamp lands of Wayne County as a bonus to any company for building a railroad through said county.'

Does this proposition embrace a 'brief, clear, distinct idea' of a 'plan' to aid in the construction of the Mount Vernon Railroad, whose nearest point to Wayne County is eleven miles west of its most western boundary, and by mortgaging these lands to secure the payment of the bonds to be issued by that company? No one will say it does.

As to the recitals in the mortgage which we suppose will be set up by way of estoppel, it is enough to say that these complainants are entire strangers to that instrument, and can take no benefit from it; there is no proof in the record that they ever saw or heard of it, and of course their action could n t have been at all influenced by it. Under such facts there can be no application of the law of estoppel, as it does not operate as to strangers.

Neither does the doctrine of estoppel apply to a grantor acting officially as a public agent or trustee.

Mr. W. B. Scates, contra, for the bondholders.

Mr. Justice HUNT delivered the opinion of the court.

The following propositions may be considered as settled in this court.

1. If an election or other fact is required to authorize the issue of the bonds of a municipal corporation, and if the result of that election, or the existence of that fact, is by law to be ascertained and declared by any judge, officer, or tribunal, and that judge, officer, or tribunal, on behalf of the corporation, executes, or issues the bonds, with a recital that the election has been held, or that the fact exists, or has taken place, this will be sufficient evidence of the fact to all bon a fide holders of the bonds.

2. If there be lawful authority for the municipality to issue its bonds, the omission of formalities and ceremonies, or the existence of fraud on the part of the agents of the municipality issuing the bonds, cannot be urged against a bon a fide holder seeking to enforce them.

3. There must, however, be an original authority, by statute, to the municipality to issue the bonds. Municipal corporations have not the power, except through the special authority of the legislature, to issue corporate bonds which will bind their towns; neither have they the power to sell or mortgage the lands belonging to such towns without special authority.

The alleged absence of such authority is the basis of the defence to the mortgage sought to be foreclosed in the present action. Four several and distinct grounds on which such power is based are urged by the plaintiffs. But one of these will be examined. The court is satisfied with the authority to be found in the 10th section of the act to incorporate the Mount Vernon Railroad Company. An examination of the others is not necessary.

The town of Mount Vernon is situated in Jefferson County, and some 18 miles easterly of the Illinois Central Railroad. This road passes within a short distance of the westerly line of said county, and nearly parallel with it. Wayne County is still east of Jefferson County, the whole of the latter county lying between Wayne and the Illinois Central road. In the month of February, 1855, the legislature of Illinois passed an act to incorporate the Mount Vernon Railroad Company, for the purpose of building a railroad from Mount Vernon to the Illinois Central Railroad, or to its Chicago branch. The 7th section of the act provided that the company might borrow money and secure the same by bond or mortgage. By the 8th section it was enacted that the county of Jefferson might issue its bonds and provide for the payment thereof by the sale or mortgage of its swamp or overflowed lands, or that they might make such other disposition of the lands in aid of the construction and maintenance of the railroad as they deemed best for the public interests of the county.

The 9th section provided that the question of aiding the railroad, and of the mode in which such aid should be given, should be submitted to the decision of the voters of the county.

The 10th section was in the following words:

'Any county through which said road may run, and every county through which any other railroad may run, with which this road may be joined, connected, or intersected, may, and are hereby authorized and empowered to aid in the co struction of the same or of such other road with which it may so connect; and for this purpose the provisions of the seventh, eighth, and ninth sections of this act shall extend, include, and be applicable to every such county and every such railroad.'

The provisions of the 7th, 8th, and 9th sections of the charter of the Mount Vernon Railroad Company were thus made applicable to any other county than that of Jefferson, through which that road should run, or through which any other railroad should run, which might join, intersect, or connect with the Mount Vernon road. Such other county was expressly authorized to aid in the construction of the Mount Vernon road, or of such other road with which it might so connect.

No reasonable construction of this act will require that the road to be aided should be actually built before the county was authorized to give it aid. That theory would no doubt add greatly to the security of the county, and would relieve it from many of the perplexing questions which so commonly arise. If, however, the road were actually built, no aid would be needed in its construction. The aid might, in that event, be useful to its stockholders, or might relieve it from embarrassments, but a road which is built can neither need nor receive aid in its construction. That is a fact accomplished. The language of this act expressly authorizes the swamp or overflowed lands to be used by the counties in aid of the construction of the road, and it seems to be quite plain that the aid was intended to be given before the road was built, and that the counties were expected to take the ordinary risk of the success of the undertaking in which they embarked their property.

The county of Wayne held an election in November, 1858, and voted that these lands should be applied in aid of any company that would build a railroad through the county. Soon after this time Van Duser & Smith entered into a contract with Wayne County for building that part of the road of the Belleville and Fairfield Company lying between the east line of Wayne County and Mount Vernon, thus running across the entire width of Wayne County. This contract was assigned to the Mount Vernon Railroad Company, who undertook the construction of this portion of the road.

The county of Jefferson entered into a like contract for the construction of the Mount Vernon road, from Mount Vernon to the Illinois Central.

It was for the purpose of aiding in the construction of the road thus undertaken to be built by the Mount Vernon Railroad Company from the east line of Wayne County to Mount Vernon, the charter of that company also requiring its road to be built from Mount Vernon to the Illinois Central, that the bonds in question were issued. They were sold under the authority of the county of Wayne, by its agents, and the proceeds were applied as was intended by the county. The Belleville and Fairfield Railroad Company, afterwards changed to the St. Louis and Louisville Railroad Company, was chartered for the construction of a railroad from St. Louis, on the Mississippi, to Mount Carmel, on the Wabash River. Its proposed line crossed the Illinois Central, and was located directly through five different counties, among which was the county of Wayne. It was that portion of the line of this road through the county of Wayne that was located and surveyed by the Mount Vernon Railroad Company and of which the construction was undertaken by that company, as the assignee of Van Duser & Smith. Some portion of the work had then been done. This brought the county of Wayne within the terms of the 10th section already quoted, and authorized its action in the issue of bonds to aid in its construction.

These were existing contracts, under which the contracting parties were taking efficient measures for the construction of the road. Those contracting parties could make no objection to the power of the counties so to contract. The contracts were valid and obligatory against them, and would be effectual, if carr ed out, to make the railroad connections needed by the county.

The authority to construct the connecting road, and the entering into a contract for its construction, formed a connection within the meaning of the 10th section.

Such was also the opinion and the assertion of the county of Wayne, when, in November, 1856, it conveyed these lands to Charles Wood, in trust for certain railroads that should build a road through that county.

The deed to Wood recites that a connection had been made between the Mount Vernon road and the others mentioned, that a vote had been taken in the county of Wayne authorizing that deed, and that it was made in pursuance thereof. This deed was recognized and confirmed by the legislature, and expressly declared to be valid in the passage of the act of February 14th, 1857, to amend the charter of the Belleville and Fairfield Railroad Company. The lands were afterwards reconveyed to the county by Mr. Wood.

Holding that there was valid power for the giving of the mortgage in question by the county of Wayne under the 10th section of the Mount Vernon charter, and that there was in fact and in law a sufficient connection with other roads, we do not deem it necessary either to examine the other alleged sources of authority for the execution of the mortgage, or the alleged acts of the county in confirmation of it. Under the circumstances stated, we are also of the opinion that there was a sufficient submission of the question to the voters of the county, and that as against bon a fide holders for value the question is not an open one. It has been decided at the present term of this court, that where a note secured by a mortgage is transferred to a bon a fide holder for value before maturity, and a bill is filed to foreclose the mortgage, no other or further defences are allowed as against the mortgage than would be allowed were the action brought in a court of law upon the note.

In this action to foreclose the mortgage, the case stands in this respect as it would stand had the present suit been brought directly upon the bonds, and without reference to the mortgage.

The execution of the deed and mortgage by Wilson and Scott, the judges of the county court of Wayne County, and on behalf of the county, was a sufficient execution by the county. In the mortgage and trust deed all the proceedings to authorize a conveyance by the county are recited-the title of the swamp lands in the county through an act of Congress; the authority of the State to dispose of the same by the courts or county judges; the passage of the act incorporating the Mount Vernon Railroad Company and that the parties of the first part were duly authorized on behalf of the county to make disposition of the land in aid of the construction of the railroad; that the question had been referred to and passed upon by the voters of the county; that, by virtue of all the proceedings recited, the said judges, parties of the first part, had become endowed with power to dispose of the lands; therefore they conveyed, as set forth. This conveyance was, on the 20th of April, 1859, by an order that day entered in its minutes, recognized and confirmed as the act of the county of Wayne by its authorized agents, and by which the lands were mortgaged and conveyed. The 7th section of the Mount Vernon Railroad act, above referred to, vests the power to dispose of these lands in the county court. This body must act by agents, and none can be more suitable and appropriate than the judges of the court. By the 2d section of the act to dispose of swamp and overflowed lands, passed January 22d, 1852, it is provided that in the cases in the 1st section mentioned, the deed of conveyance shall be made by the judges of the county court as such, and countersigned by the clerk with his official seal. In reference to sales at auction, it is provided by the 11th section that a conveyance shall be executed by 'the court, signed in their official capacity,' and cou tersigned by the clerk. The signature of the clerk is nowhere declared to be an absolute prerequisite. In effect this was a conveyance on behalf of the county, by their agents for that purpose duly appointed. By the 7th section of the Mount Vernon charter the county court was authorized to sell or mortgage the lands, or to make such other disposition of them 'as they may deem best for the public interest.' No mode was pointed out in which a conveyance should be made. No particular signature was made a condition to the validity of the conveyance. There is no ground for the objection to the form here adopted, viz.: by a deed of trust and mortgage, signed by the judges of the county court. In form and in substance the deed was well executed, and valid as the deed of the county.

The objection to the word 'bonus' in the proposition submitted to the voters of Wayne County is not valid. This submission, in connection with the general subject of a failure to comply with the requisites prescribed by the statute, has been already discussed. Upon its individual merits we are also of the opinion that the objection is not valid. It is a verbal criticism merely-an objection to the words and not to the substance of the submission. A proposition was submitted to the voters, of which the affirmative was in these words: 'For appropriating the swamp lands of Wayne as a bonus to any company for building a railroad through said county.' It is said that the word 'bonus' condemns the submission; that this word means a gratuity, a voluntary donation, a gift, and that a town or county cannot, although it have the direct authority of the legislature, give away its property. When this question is properly before us it will be disposed of. It does not, however, arise in this case. In the first place, if it be assumed that the word is correctly defined as a gift, or gratuity, that meaning is controlled and limited by the connection in which it is here used, to wit: that in consideration of it the company receiving the lands will undertake to build a railroad through the county. It is not simply a bonus, but a bonus to any company who shall undertake the great task of building a railroad through the county, a task which, it is loudly complained, has not yet been performed by any one.

But, secondly, the meaning of the word bonus is not that given to it by the objection. It is thus defined by Webster: 'A premium given for a loan or a charter or other privilege granted to a company; as, the bank paid a bonus for its charter; a sum paid in addition to a stated compensation.' It is not a gift or gratuity, but a sum paid for services, or upon a consideration in addition to or in excess of that which would ordinarily be given.

Upon the principles announced in the opening of this opinion, the plaintiffs are entitled to a judgment for the amount of the bonds held by them. If we are right in the positions taken, there was indeed no real defence to the bonds.

We think there was error in the decision of the case; that the judgment must be

REVERSED, AND A NEW TRIAL HAD.

Mr. Justice MILLER and Mr. Justice FIELD dissented.

Mr. Justice DAVIS did not sit.


text: Talk:Kenicott v. The Supervisors/Opinion of the Court

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


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Page:Dictionary of National Biography volume 59.djvu/43

 and nominated William de Saunford as his attorney in Ireland for one year (ib. 1292–1301, p. 66). On 11 Oct. he rented the manor of Lydel for three years from John Wake (ib. p. 96). In November 1294 he demised rentals of 30l. a year in value from properties in St. Lawrence Lane, Cordwanerstrete, and Dowgate, to Edmund, the king's brother (ib. p. 106). On 16 Sept. 1296 he received letters of protection for one year while in Scotland on the king's service (ib. p. 201). On 12 Jan. 1297 he was appointed at the head of a commission to determine the site and state of Berwick-on-Tweed and assess property there (ib. pp. 226–7). Waleys was commissioned to levy a thousand men in Worcester for the king's service on 23 Oct. 1297 (ib. p. 393).

In 1298 the aldermen and other citizens were summoned before the king at Westminster, when he restored to them their privileges, including that of electing a mayor. They accordingly elected Henry Waleys as mayor for the third time. He was presented to the king at Fulham, but shortly afterwards set out for Lincoln on urgent private business, after appointing deputies to act in his absence (, Liber Albus, p. 16). He was soon afterwards summoned by the king into Scotland, and had to appoint a deputy (ib. p. 528). The safe conduct of the city had been a matter of concern to the king during the previous year, and the warden and aldermen had received a special ordinance on 14 Sept. 1297. This was followed by a further writ from the king addressed to Waleys as mayor on 28 May 1298 requiring him to preserve the peace of the city which had been much disturbed by the night brawls of bakers, brewsters, and millers (, Memorials of London, pp. 36–7).

Waleys through his loyalty to the king incurred much enmity from his fellow-citizens. There appears to have been during his last mayoralty an open feud between him and his sheriffs, Richard de Refham and Thomas Sely. These officials appeared at a court of aldermen on Friday in Pentecost week 1299, and agreed to pay the large sum of 100l. if during the rest of the term of their shrievalty they should be convicted of having committed trespass, either by word or deed, against Waleys while mayor of London (, Memorials, p. 41). About the same time (18 April) Waleys received from the king, as a reward for his long service, a grant of houses with a quay and other appurtenances in Berwick-on-Tweed, forfeited to the king by Ralph, son of Philip, and partly burnt and devastated by the king's foot soldiers, he being required to repair the premises and lay out upon them at least a hundred marks (Cal. Pat. Rolls, 1292–1301, p. 408).

On 26 Dec. 1298 Waleys and Ralph de Sandwich [q. v.] were constituted a commission of oyer and terminer relative to a plot to counterfeit the king's great and privy seal, and to poison the king and his son (ib. p. 459). In March 1300, he being absent from England on his own affairs, Stephen de Gravesende was substituted for him on another commission concerning the theft of money, plate, and jewels from the house of Hugh de Jernemuth in ‘the town of Suthwerk’ (ib. p. 547). Waleys possessed much property in the city, including houses near Ivy Lane, Newgate Street (ib. p. 98), a house called ‘Le Hales,’ and St. Botolph's wharf (, Liber Albus, p. 478); but his place of business was probably in the ward of Cordwainer, which he represented as alderman.

Waleys appears to have died in 1302, in which year his executors procured a grant for an exchange of property with the priory of Holy Trinity, under the provisions of his will. This was stated to have been enrolled in the court of husting, but no record of it can be found in the official calendar (Cal. of Ancient Deeds, ii. 47).

[Orridge's Citizens of London and their Rulers; Thomson's Chronicles of London Bridge; Sharpe's Calendar of Wills in the Court of Husting; authorities above cited.]  WALFORD, CORNELIUS (1827–1885), writer on insurance, born in Curtain Road, London, on 2 April 1827, was the eldest of five sons of Cornelius Walford (d. 1883) of Park House Farm, near Coggeshall, Essex, who married Mary Amelia Osborn of Pentonville. He is said to have been for a short time at Felsted school. At the age of fifteen he became clerk to Mr. Pattisson, solicitor at Witham, where he acquired much experience in the tenure and rating of land. He was appointed assistant secretary of the Witham building society, and, having in early life acquired a knowledge of shorthand, he acted as local correspondent of the ‘Essex Standard.’ About 1848 he settled at Witham as insurance inspector and agent.

Walford was in 1857 elected an associate, and on a later date a fellow, of the Institute of Actuaries. About 1857 he joined the Statistical Society, and was for some time on its council. He published in parts, and anonymously, in 1857 his ‘Insurance Guide and Handbook,’ which was pirated and had a large sale in America (2nd edit. 1867, with his name on the title-page). In 1858 he was


text:
Morgan v. Parham

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

The Constitution ordains that

'Congress shall have power to regulate commerce between the States.'

An act of Congress passed December 31st, 1792, enacts that

'Every ship or vessel shall be registered by the collector of the district in which such ship or vessel shall belong at the time of her registry, and her port shall be that nearest to which her owner, husband, or acting and managing owner usually resides, and the name of the vessel and the port to which she shall so belong shall be painted on her stern, on a black ground in white letters, not less than three inches in length.'

The omission to designate the name 'and port to which she belongs' is made penal.

An act of February 18th, 1793, for enrolling and licensing vessels employed in the coasting trade, enacts thus:

'SECTION 3. That it shall and may be lawful for the collectors of the several districts to enrol and license any ship or vessel that may be registered, upon such registry being given up; or to register any ship or vessel that may be enrolled upon such enrolment and license being given up. And when any ship shall be in any other district than the one to which she belongs the collector of such district, on the application of the master or commander thereof, and upon his taking an oath or affirmation that according to his best knowledge and belief the property remains as expressed in the register or enrolment proposed to be given up, &c., shall make the exchanges aforesaid; but in every such case the collector, to whom the register or enrolment and license may be given up, shall transmit the same to the Register of the Treasury; and the register, or enrolment and license granted in lieu thereof, shall within ten days after the arrival of such ship or vessel within the district to which she belongs, be delivered to the collector of the said district, and be by him cancelled.'

This provision of the Constitution, and these acts being in force, the steamer 'Frances' was assessed in the years 1866 and 1867 as personal property in the city of Mobile, belonging to one Morgan. A tax was laid upon the vessel, and remaining unpaid, the same was seized by the collector of the city of Mobile. The owner, Morgan, brought an action of trespass in the court below against the collector for such seizure, and the collector justified by virtue of his tax warrant.

The facts upon which the question of the liability to taxation of the vessel depended, were these:

The Frances was brought to Mobile in 1865, and from that time until the trial in 1870, had been employed as a coasting steamer between Mobile and New Orleans. Before being brought to Mobile, the vessel was duly registered at the port of New York, under the ownership of the plaintiff, and the name of the vessel and her port of New York were then painted on her stern, according to the acts of Congress, and the same had ever since so remained. The plaintiff then was and since had remained a citizen of New York. The vessel then was the property of the plaintiff, and had continued to be his property from that time to the day of the trial.

In January, 1867, the vessel was regularly enrolled at the custom-house in Mobile by her master, as a coaster, and her license as a coasting vessel was renewed in the several years 1868 and 1869, and with other similar vessels constituted one of a daily line of steamers plying between Mobile and New Orleans. During this term the captain of the vessel had been a resident of Mobile, and the agent conducting the business of the vessels at Mobile was resident there, occupied an office there for such business, and employed and paid the persons who assisted him therein, but such agent was under the control of a superior agent residing in New Orleans, who employed and paid the captain and other officers of the vessel. A wharf and office in Mobile were occupied for the use of these vessels. The vessels were built at Wilmington for the domestic trade. They transported the mails, freight, and passengers between Mobile and New Orleans, and this business was extensive and profitable. Upon these facts the question arose, was this vessel subject to taxation as personal property under the laws of the State of Alabama?

The court held that the vessel was taxable under those laws, and gave judgment for the defendant. To review that judgment the present suit was brought.

Mr. P. Phillips, for the plaintiff in error, contended that the vessel was owned in New York, had not been blended with the commerce and business of Alabama, was engaged in the interstate coasting trade, and that her taxation by the authority of Alabama would be in violation of that provision of the Constitution of the United States which gives to Congress the regulation of commerce between the States.

Mr. C. W. Rapier (with whom was Mr. C. F. Moulton), contra, insisted that the vessel was personal property within the State of Alabama, and subject to the general rule of taxability.

Mr. Justice HUNT delivered the opinion of the court.

title: Morgan v. Parham


text: Talk:Morgan v. Parham

title: Talk:Morgan v. Parham


text:
Morgan v. Parham/Opinion of the Court

The fact that the vessel was physically within the limits of the city of Mobile, at the time the tax was levied, does not decide the question. Thus, if a traveller on that day had been passing through that city in his private carriage, or an emigrant with his worldly goods on a wagon, it is not contended that the property of either of these persons would be subject to taxation as property within the city. It is conceded by the respective counsel that it would not have been.

On the other hand this vessel, although a vehicle of commerce, was not exempt from taxation on that score. A steamboat or a post-coach engaged in a local business within a State may be subject to local taxation, although it carry the mail of the United States. The commerce between the States may not be interfered with by taxation or other interruption, but its instruments and vehicles may be. It is not, therefore, upon this principle that we are to decide the case. Nor does it fall within that range of cases of which The Steamship Company v. The Portwardens, and Gibbons v. Ogden, furnish illustrations. In each of those cases the taxation was upon a subject directly connected with the navigation of the public waters and with the commerce of the country. In the first case a statute had been passed requiring every vessel entering the harbor of New Orleans to pay five dollars to the port wardens, in addition to other fees, whether any service were performed or not. In the second case vessels navigating the waters of the Hudson River were required to take a license for that purpose from the State of New York. The imposition in this class of cases was a tax upon the use of the public waters of the country, and tended immediately to interfere with and to obstruct the commerce between the States. In the instance before us the tax was upon a vessel at the wharf. It was in this respect as if a tax had been laid upon lumber or cotton lying on the dock at Mobile.

This vessel was owned by and employed in the service of a resident of the State of New York. It was primarily and presumptively taxable under the authority of that State, and of that State only. It is urged that her status, or condition, was affected by what was done, or neglected, in regard to her register and enrolment. In Blanchard v. Martha Washington, the law on this subject is thus explained: 'Ships or vessels are required to be registered by the collector of the district in which shall be comprehended the port to which the same shall belong at the time of the registry, which port shall be deemed to be that at, or nearest to which, the owner, if there be but one, or, if more than one, the husband and acting manager usually resides.' Permanent registry, therefore, as appears by this provision, is required to be made at the home port of the vessel, and what is meant by the home port is clearly and plainly defined. Registry must be made at her home port, and the same section provides that the name of the vessel, and the port to which she shall so belong, shall be painted on her stern, on a black ground, in white letters, of not less than three inches in length. All persons, therefore, have the means of ascertaining the name of the vessel and her home port, and her shipping papers, which include a copy of her register or enrolment, are by law required to furnish the same information. The act of February 18th, 1793, prescribes the terms and shows the effect of enrolment in another port. In substance, the perman nt register is given up to the collector of that port, and a certificate is issued showing the name of the vessel, the port to which she belongs, and that to which she is destined. This certificate is temporary in its character, and is based upon the proposition that the vessel belongs, or has her home port, at a different place from that at which she receives this certificate.

There was nothing, therefore, in her enrolment in the port of Mobile that affected her registry in New York, or her ownership in that place, or that tended to subject her to the taxation of the State of Alabama, under the circumstances stated.

It is the opinion of the court that the State of Alabama had no jurisdiction over this vessel for the purpose of taxation, for the reason that it had not become incorporated into the personal property of that State, but was there temporarily only, and that it was engaged in lawful commerce between the States with its situs at the home port of New York, where it belonged and where its owner was liable to be taxed for its value. The case of Hays v. The Pacific Mail Steamship Company, is decisive of the case before us. In that case all the stockholders in the vessel sought to be taxed resided in New York, but had agencies in Panama and San Francisco, and a naval dock and yard at Benicia, in that State, for the purpose of repairing and furnishing supplies. On arriving at San Francisco the vessel usually remained a day only to unload her freight and passengers, and proceeded to Benicia for repairs and refitting for the next voyage, and usually remained there ten or twelve days. The vessels were part of a line plying in connection between New York and San Francisco, carrying freight and passengers, were all ocean ships and all registered in New York, and taxes were assessed upon them in that State. This route and this mode of proceeding was the permanent, regular, and continued business of the ships in question. Taxes for the years 1851 and 1852 were assessed upon the vessels under authority of the State of California, paid under protest, and suit brought to recover back the taxes so paid. A recovery was had below, and this court sustained the judgment in an able opinion delivered by my learned predecessor, Mr. Justice Nelson. The ships, it was held, were engaged in the business and commerce of the country upon the great highway of nations, touching at such ports and places as their interests demanded. He says, 'So far as respects the ports and harbors within the United States, they are entered and cargoes discharged or laden on board, independently of any control over them except as it respects such municipal and sanitary regulations of the local authorities as are not inconsistent with the Constitution and laws of the General Government, to which belongs the regulation of commerce with foreign nations and between the States. . . . But whether (he proceeds) the vessel leaving her home port for trade and commerce visits, in the course of her voyage or business, several ports or confines her operations in the carrying trade to one, are questions that will depend on the profitable returns of the business, and will furnish no more evidence that she has become a part of the personal property within the State and liable to taxation at one port more than the other. She is within the jurisdiction of all or any one of them temporarily and for a purpose wholly excluding the idea of permanently abiding in the State or changing her home port. Our merchant vessels are not unfrequently absent for years in the foreign carrying trade, seeking cargo, carrying it and unlading it from port to port during all the time absent; but they neither lose their national character nor their home port, as inscribed upon their stern.'

This vessel, the Frances, remained the property of the plaintiff, with her home port t New York, and had never become blended with the commerce and property of the State of Alabama, within the principle of People v. Commissioners. The vessel touches tri-weekly or daily at Mobile, and the same at New Orleans. If her regular route were from New Orleans to Mobile, thence to St. Augustine, thence to Savannah, thence to Charleston, and returning by the same course, the case would be no different. She would be engaged in interstate commerce, with her home port still remaining unchanged, and the property continuing unmixed with the permanent property of either State. Her right to trade at each of those ports, without molestation by either of these States, is secured by the Constitution of the United States. The Federal authority has been exerted by the passage of the navigation laws and the issuing of a coasting license to this vessel. All State interference is thereby excluded.

Whether the steamer Frances was actually taxed in New York during the years 1866 and 1867 is not shown by the case. It is not important. She was liable to taxation there. That State alone had dominion over her for that purpose. Alabama had no more power to tax her or her owner than had Louisiana, or than Florida, Georgia, and South Carolina would have had in the case I have supposed.

The jurisdiction of this court over the present case, as in the case of Hays v. The Pacific Mail Steamship Company, arises from the facts, first that the property had not become blended with the business and commerce of Alabama, but remained legally of and as in New York; and secondly, that the vessel was lawfully engaged in the interstate trade, over the public waters. It is in law as if the vessel had never before or after that day been within the port of Mobile, but touching there on a single occasion when engaged in the interstate trade, had been subjected to a tax as personal property of that city. Within the authorities it is an interference with the commerce of the country not permitted to the States.

JUDGMENT REVERSED.

title: Morgan v. Parham/Opinion of the Court


text: Talk:Morgan v. Parham/Opinion of the Court


text:
Osborne v. Mobile

ERROR to the Supreme Court of the State of Alabama.

Osborne was the agent, at Mobile, Alabama, of the Southern Express Company, incorporated by the State of Georgia, and as such transacted a general forwarding and express business within and extending beyond the limits of Alabama.

An ordinance of the city of Mobile was then in force, requiring that every express company or railroad company doing business in that city, and having a business extending beyond the limits of the State, should pay an annual license of $500, which should be deemed a first-grade license; that every express or railroad company doing business within the limits of the State should take out a license called a second-grade license, and pay therefor $100; and that every such company doing business within the city should take out a third-grade license, paying therefor $50. It subjected any person or incorporated company who should violate any of its provisions to a fine not exceeding $50 for each day of such violation.

On the 10th of February, 1869, Osborne was fined by the mayor of Mobile for violating that ordinance in conducting the business of his agency without having paid the $500 and obtained the license required. He appealed to the Circuit Court of the State, which affirmed the judgment of the mayor. He then appealed to the Supreme Court of Alabama, and that court affirmed the judgment of the Circuit Court. A writ of error brought the case here.

The question was whether the ordinance, in requiring payment for a license to transact in Mobile a business extending beyond the limits of the State of Alabama, was repugnant to the provision of the Constitution, vesting in the Congress of the United States the power 'to regulate commerce among the several States.'

Messrs. B. R. Curtis and Clarence Seward, for the plainti f in error; Mr. P. Phillips, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Osborne v. Mobile


text: Talk:Osborne v. Mobile

title: Talk:Osborne v. Mobile


text:
Osborne v. Mobile/Opinion of the Court

In several cases decided at this term we have had occasion to consider questions of State taxation as affected by this clause of the Constitution. In one, we held that the State could not constitutionally impose and collect a tax upon the tonnage of freight taken up within its limits and carried beyond them, or taken up beyond its limits and brought within them; that is to say, in other words, upon interstate transportation. In another, we held that a tax upon the gross receipts for transportation by railroad and canal companies, chartered by the State, is not obnoxious to the objection of repugnancy to the constitutional provision.

The tax on tonnage was held to be unconstitutional be cause it was in effect a restriction upon interstate commerce, which by the Constitution was designed to be entirely free. The tax on gross receipts was held not to be repugnant to the Constitution, because imposed on the railroad companies in the nature of a general income tax, and incapable of being transferred as a burden upon the property carried from one State to another.

The difficulty of drawing the line between constitutional and unconstitutional taxation by the State was acknowledged, and has always been acknowledged, by this court; but that there is such a line is clear, and the court can best discharge its duty by determining in each case on which side the tax complained of is. It is as important to leave the rightful powers of the State in respect to taxation unimpaired as to maintain the powers of the Federal government in their integrity.

In the second of the cases recently decided, the whole court agreed that a tax on business carried on within the State and without discrimination between its citizens and the citizens of other States, might be constitutionally imposed and collected.

The case now before us seems to come within this principle.

The Southern Express Company was a Georgia corporation carrying on business in Mobile. There was no discrimination in the taxation of Alabama between it and the corporations and citizens of that State. The tax for license was the same by whomsoever the business was transacted. There is nothing in the case, therefore, which brings it within the case of Ward v. Maryland. It seems rather to be governed by the principles settled in Woodruff v. Parham.

Indeed, no objection to the license tax was taken at the bar upon the ground of discrimination. Its validity was assailed for the reason that it imposed a burden upon interstate commerce, and was, therefore, repugnant to the clause of the Constitution which confers upon Congress the power to regulate commerce among the several States.

It is to be observed that Congress has never undertaken to exercise this power in any manner inconsistent with the municipal ordinance under consideration, and there are several cases in which the court has asserted the right of the State to legislate, in the absence of legislation by Congress, upon subjects over which the Constitution has clothed that body with legislative authority.

But it is not necessary to resort to the principles maintained in these cases for the decision of the case now before us. It comes directly within the rules laid down in the case relating to the tax upon the gross receipts of railroads. In that case we said: 'It is not everything that affects commerce that amounts to a regulation of it within the meaning of the Constitution.' We admitted that 'the ultimate effect' of the tax on the gross receipts might 'be to increase the cost of transportation,' but we held that the right to tax gross receipts, though erived in part from interstate transportation, was within the general 'authority of the States to tax persons, property, business, or occupations within their limits.'

The license tax in the present case was upon a business carried on within the city of Mobile. The business licensed included transportation beyond the limits of the State, or rather the making of contracts, within the State, for such transportation beyond it. It was with reference to this feature of the business that the tax was, in part, imposed; but it was no more a tax upon interstate commerce than a general tax on drayage would be because the licensed drayman might sometimes be employed in hauling goods to vessels to be transported beyond the limits of the State.

We think it would be going too far so to narrow the limits of State taxation.

The judgment of the Supreme Court of Alabama is, therefore

AFFIRMED.

title: Osborne v. Mobile/Opinion of the Court


text: Talk:Osborne v. Mobile/Opinion of the Court


text:
Planters' Bank v. Union Bank

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

On the outbreak of the rebellion of 1861, both the States of Tennessee and Louisiana joined in that movement; and while those two States were both under the control of the rebel powers, the Planters' Bank of Tennessee (at Natchez) remitted to the Union Bank of Louisiana (at New Orleans) large sums of 'Confederate treasury notes,' and also forwarded to it drafts and other claims for collection (and a few Confederate bonds for sale), it having been understood between the two banks that the drafts and claims thus forwarded for collection and the price of the bonds sent for sale were payable only in such Confederate currency, and all the collections made on account of the Planters' Bank having been made in that currency, with its knowledge and authority. In this way entirely a large balance was made up in favor of the Planters' Bank. There was no controversy as to these facts.

About the 1st of May, 1862, New Orleans was recaptured by the government forces and passed into their control. A large balance, in the course of dealings already mentioned, was at this time due the Planters' Bank.

On entering New Orleans, General Butler, the general who took possession of it for the United States, issued a proclamation, in which he declared:'All the rights of property, of whatever kind, will be held inviolate, subject only to the laws of the United States.'

On the 6th of August, 1861, Congress passed 'An act to confiscate property used for insurrectionary purposes,' &c., and on the 17th of July, 1862, 'An act to suppress insurrection, to punish treason and rebellion, and for other purposes.' These acts designated certain agents for seizing the property of rebels and prescribed certain judicial proceedings for the condemnation of it in the courts of the United States, when belonging to natural persons who were rebels, to persons who aided, abetted, and gave comfort to the rebellion, or who held office under the so-called Confederate States, or any State assisting to form them. But neither of the acts gave authority to military commanders to seize such property, nor did either make the property of any incorporated banks liable to such seizure.

In this state of things, an order was issued on the 17th of August, 1863, by command of Major-General Banks, then in command of the department, requiring the several banks and banking associations of New Orleans to pay over without delay to the Chief Quartermaster of the army, or to such officer of his department as he might designate, all money in their possession belonging to, or standing upon their books to the credit of, any corporation, association, or pretended government in hostility to the United States, and all moneys belonging to, or standing on their books to the credit of, any person registered as an enemy of the United States, or engaged in any manner in the military, naval, or civil service of the so-called Confederate St tes, or who should have been or who might thereafter be convicted of rendering any aid or comfort to the enemies of the United States. The order declared that such funds would be held and accounted for by the quartermaster's department, subject to the future adjudication of the government of the United States. Under this order the Union Bank, as the evidence tended to show, on the 10th day of September, 1863, paid to the acting quartermaster the balance standing to the credit of the Planters' Bank on their books, being the whole balance due. The payment was made in Confederate notes ($211,774) and the quartermaster accepted them in discharge of the balance.

On the 15th of the same September, 1863, the Planters' Bank drew on the Union Bank for $86,646, the sum in Federal money which it conceived to be due to it. The Union Bank refused to pay, alleging the seizure by General Banks and payment over accordingly. Thereupon-on the 11th of September, 1866-the Planters' Bank sued the Union Bank in the court below, to recover its alleged balance, with interest from the date of the demand. The defendant set up the facts of the case as above given, and that the Confederate moneys sent to the defendant by the Planters' Bank were issued and put in circulation by the said Confederate States during the rebellion for the purpose of maintaining and prosecuting the war, &c.; that the dealings of the plaintiff in the said currency were designed on its part to give, and did contribute to give circulation and credit to such unlawful issues, and that it, the defendant, was therefore not liable, on account of the receipt of such currency, to the plaintiff in manner and form as by it alleged.

The case came to trial in February, 1868, and the jury returned a verdict for the plaintiff for the amount claimed in full, with interest, $113,296.01, and a judgment was entered accordingly.

A motion for a new trial was then made, and while the same was undetermined and held under advisement, the following order was entered:

'On motion of the attorneys for plaintiff it is ordered that a remittitur of interest allowed in the judgment in this case be entered, except what is claimed as follows, &c.'

On the same day the attorneys of the plaintiff, on the suggestion that the attorneys of defendant had, during the trial, admitted in presence of the jury that there was due to plaintiff $26,752.63, with interest from 25th November, 1863, asked that an execution be issued for this sum; and the motion was granted 'without prejudice to the plaintiff's right to recover the balance under the judgment in the case.'

The motion for a new trial was ordered to be reargued, and after the reargument a new trial was granted, 'excepting as regards the sum of $26,752.63, admitted by the defendant to be due to the plaintiff.'

On the 24th of January, 1871, two years and ten months after this, the case was again submitted to the jury, and they being sworn to try the issues, the court, against the defendant's objection, permitted the plaintiff to withdraw his remittitur.

On this trial THE DEFENDANT requested the court to charge the jury—

'That the generals commanding the army of the United States, engaged in military operations against the rebels in the late civil war, had the legal power to seize and take possession of the property or effects of rebels, whenever in their judgment necessary or conducive to the successful prosecution of the war; that the commanding generals were the sole judges [subject alone to the control of their military superiors] of the necessity or expediency of such seizures, and that if the jury find from the evidence that the military authorities exacted payment of the balance on the books of the defendant to the credit of the Planters' Bank and its branches, then that the military authorities thus exacting payment were invested, as regards said payments, with all the rights of a creditor.

'That if the demand of the plaintiff arose from the receipt of the so-called Confederate notes, wi h the authority of the plaintiff, and the military authorities of the United States exacted payment of said demand [and accepted payment in Confederate treasury notes], and if the said payment was made accordingly to the said authorities under compulsion, and a receipt in full given for the amount so paid to them, then that the said payment and receipt are a valid acquittance and discharge of the defendant from any liability to the extent of such part of the demand of the plaintiff as arose from the receipt of the so-called Confederate treasury notes for account of the plaintiff with its authority.'The court did so charge, with the exception that it left out the important words in [ ]. It said:

'The jury will determine what the payment ought to have been. I consider that the military authorities had no right to transact with the defendant in this case; Confederate money was then almost worthless in the discharge of the debt due by the defendant to the Planters' Bank.'

The defendant also asked the court to charge further:

'That if the balance of account sued for is composed, wholly or in part, of direct remittances from the plaintiff to the defendant of Confederate treasury notes to be placed to credit of the plaintiff, and of collections for their account of drafts, actually and in effect and intent, payable in Confederate treasury notes, remitted for collections by plaintiff to defendant, and by the latter collected for account of plaintiff in Confederate treasury notes, and that the banks were necessary instruments of the Confederate government in putting its issues of Confederate treasury notes in circulation and forcing them upon the country, and that the plaintiff, as one of the banks, willingly lent itself as the instrument of the Confederate government to put those issues in circulation, then, that the plaintiff cannot recover such amount of the balance thus composed of treasury notes and 'collections.'

'That no lawful or valid obligation can arise from the sale of bonds or securities of the Confederate government, and no action lies for the proceeds of such bonds.'

But both these last two charges the court refused to give.

THE PLAINTIFF asked the court to charge—

'That if the jury find that the defendant received 'Confederate currency' on behalf of the plaintiff and entered the same to the credit of the plaintiff on the books of his bank, and used the same in its general business, the defendant thereby became the debtor of the plaintiff, and the measure of the indebtedness is the value of 'Confederate currency' in the lawful money of the United States, at the time the credit was entered as aforesaid and the collections were made.'

But the court refused thus to charge, and charged:

'That the measure of indebtedness for receipts or collections made by the defendant in 'Confederate currency,' and used by it in its general business, was the value of such currency at the date of demand of payment made by the plaintiff, and not at the date when such currency was received and used by defendant in its business.'

The jury found in favor of the plaintiff for $24,713, with interest from the 15th of September, 1863, and judgment was entered accordingly.

Both parties excepted,--

The defendant to the refusal of the court to charge as requested, to the allowance of a withdrawal of the remittitur, and to the order of the court ordering execution for the $26,752.63, before the motion for a new trial was determined;

The plaintiff to the refusal to charge as requested and to the charge as given.

[It should be added (in order to explain a part of the argument, and of the dissenting opinion in this case), that by acts of March 3d, 1863, and the 11th of May, 1866, Congress enacted that it should be 'a defence in all courts, to any action pending or to be commenced,' against any one for 'a sei ure' of property when it was shown that such seizure had been made under any 'order. . . of any military officer of the United States holding the command of the department, district, or place in which such seizure was made.']

Messrs. P. Phillips and Conway Robinson for the Union Bank, and in support of its assignment of errors:

1. Had General Banks authority to issue the order under which the payment was made? If he had, it would clearly follow that he had the right to place his own construction on it, and to determine when and in what manner the debt should be paid, and his receipt for the amount would operate as complete a discharge of the debtor, as if it had been executed by the creditor himself.

He had the power to issue the order. He was in command of the department, and the only representative of the constitutional commander-in-chief. The order was issued while the war was flagrant. In the absence of any prohibitory act of Congress, or order from his superior, he was vested with the full power of doing all that the laws of war permitted. Whatever the chief executive could do in those portions of the country which had fallen by conquest under his dominion, he could do.

In a case before Lord Tenterden, in 1830, on appeal from the judgment of the Supreme Court of Bombay, it was shown that the property was seized in a recently conquered province, long after it had been conquered, at a distance from actual hostilities, and when courts of justice were exercising their authority.

title: Planters' Bank v. Union Bank


text: Talk:Planters' Bank v. Union Bank

title: Talk:Planters' Bank v. Union Bank