text:
Brownsville v. Cavazos/Opinion of the Court

This is an action for the possession of certain real property in Brownsville, a city of Texas, situated on the left bank of the Rio Grande, opposite the town of Matamoras. Previous to the revolution which separated Texas from the Republic of Mexico, Brownsville constituted a portion of Matamoras, which was recognized as a town in 1826 by a decree of the congress of Tamaulipas, one of the States of Mexico. By the laws of Mexico in force at the time, pueblos or towns, when recognized as such by public authority, became entitled for their use and benefit, and the use and benefit of their inhabitants, to certain lands embracing the site of such pueblos or towns and adjoining territory, to the extent of four square leagues. This right was held by the cities and towns of Spain for a long period before her conquests in America, and was recognized in her laws and ordinances for the government of her colonies here. Laws of the Indies, in White's Recop., vol. ii. 44; Townsend v. Greeley, 5 Wall. 326; Grisar v. McDowell, 6 id. 363; The Pueblo Case, 4 Sawyer, 563. By them provision was made for the measurement of the lands, and their assignment to the pueblos or towns, when once they were officially recognized. If any portion of the lands which fell within the four square leagues, laid off in the usual way in a square or oblong form, had previously become vested in private proprietorship, authority was sometimes given to take the necessary proceedings to divest the property of its private character-to expropriate it, as it was termed-and subject it to the uses of the town. Such was the case here. The four square leagues measured off and assigned to Matamoras crossed the Rio Grande and embraced the site of the present city of Brownsville, which was then the private property of one Dona Maria Francisca Cavazos. The premises were a part of a tract called the Espiritu Santo tract, granted by the Spanish government, in 1781, to one De la Garza. The grant was recognized as valid by the legislature of Texas in 1852, when it relinquished to the heirs and assignees of the grantee all the right and interest of the State therein. For the expropriation of the premises thus embraced within the limits of the land assigned to the municipality proceedings were taken soon after the town was established, in 1826. For some years immediately preceding their institution, Madam Cavazos was seised of the Espiritu Santo tract by regular deraignment of title from the grantee; and so continued until her death in 1835, unless she was divested of that portion assigned to the town by the proceedings for its expropriation. She devised the tract to three parties, one of whom is the defendant, Dona Josefa Cavazos, who, on partition with the others, became seised of that part which includes the premises in controversy, portions of which she conveyed to persons from whom the other defendants derive their title to the parcels which they severally claim.

The principal inquiry, therefore, presented for our consideration relates to the validity of the proceedings taken for the expropriation of the premises assigned to Matamoras as common lands-or ejidos, as they are termed in the Spanish language-on the left bank of the Rio Grande. And on this point we can add nothing to the clear and satisfactory exposition of the law contained in the opinion of the presiding justice at the circuit. We can do little more than repeat his argument and adopt his conclusions. The City of Brownsville v. Cavazos, 2 Woods, 293.

After the separation of Mexico from the mother-country, the several States composing the republic formed new constitutions of government, retaining the old Spanish laws so far as they were applicable to their new condition. The State of Tamaulipas, which embraced territory on both sides of the Rio Grande, in 1825 adopted a constitution containing an article which declared that 'neither the Congress nor any other authority shall be able to take the property, even that of the least importance, of any private individual. When it shall become necessary for an object of a common recognized utility to take the property of any person, he shall first be compensated upon the examination of arbiters appointed by the government of the State and the interested party.'

Under this article, in order to divest the title of Madam Cavazos to the property taken, it became necessary to make to her compensation; and its amount could only be determined by arbiters, of whom one was to be chosen by her. But she declined to appoint an arbiter, or to participate in the proceedings. She desired to retain the farm occupied by her, from which she drew her support, and specially wished that it should be reserved from the ejidos or common lands. Various efforts were made for more than a year to induce her to act in the matter, but she persistently refused. Finally, in October, 1827, the Congress of the State interfered, and by its decree declared that the government, in the exercise of its powers, would see that the civil authorities of Matamoras compelled her to obey the Constitution and laws; that if, on being notified a second and third time, she should refuse to appoint an arbiter for the appraisement of her lands, which were to be taken for the town, the common council should proceed to their occupation and survey without further citation to her; and that should she or her heirs afterwards ask for indemnification, and be willing to name an arbiter, a new measurement should be made if desired, and the land she asked should be given to her.

It is upon this decree that the plaintiff, The City of Brownsville, relies to sustain its case, contending that the decree was an adjudication in rem for the expropriation of the property without compensation to Madam Cavazos, if she persisted in her refusal to name an arbiter, reserving, however, to her the right to claim compensation at a subsequent period upon complying with the law. On the other hand, the defendants insist that the decree merely authorized the use of the lands without expropriation until indemnification to her should be provided, as proposed by the government.

The presiding justice at the circuit was of opinion that the court was not at liberty to question the validity of this decree, but must regard it as an act of the supreme authority of the State, in its dealings with its citizens, and that the inquiry of the court was, therefore, limited to its meaning and effect. This doctrine may, perhaps, be subject to some qualification, as the Congress of Tamaulipas was restrained by a written constitution. But assuming that even a partial expropriation-a temporary possession of private property without compensation, in the case of an obstinate owner refusing to appoint an appraiser of its value-was permissible, we are of opinion that the position of the defendants is the only tenable one, and for several reasons.

In the first place, absolute expropriation was forbidden by the Constitution of Tamaulipas, without previous compensation. Until that was made, private ownership of the property was not divested. The State could have resorted to coercive measures to compel the owner to appoint an arbiter to act with its own appointee in estimating the amount to be paid. The decree states that the government would use its powers for that purpose, but it does not appear that any such measures were adopted. Its efforts did not go beyond a solicitation to her to act in the matter, and a summons in 1834 to all owners of lands within the ejidos to attend at the capital, 'so that hearing the attorney-general of finance the indemnification to all might be agreed upon.' Madam Cavazos declined to attend upon this summons, giving her old age as an excuse, but stating that she would receive her indemnification in money, and submit to whatever the government might order. It does not appear what action was then taken by the government. There is no evidence that any money was ever paid to her for the property, or that any mode was ever devised for appraising its value, other than that prescribed by the Constitution.

In the second place, the action of the Congress of Tamaulipas in 1848 upon this subject is persuasive, if not conclusive, evidence of the intent and meaning of the decree.

By the treaty of Guadalupe Hidalgo, ratified on the 30th of May, 1848, the Rio Grande was acknowledged to be the boundary between Mexico and the United States, when, of course, the jurisdiction of Tamaulipas over the premises in controversy ceased. But rights of private property previously existing in the territory east of the Rio Grande were in no respect affected. If they had arisen before the independence of Texas, their validity was to be determined by the laws of Mexico or Tamaulipas then in force. The authorities of Matamoras, claiming the ejidos under the decree in question, and believing that after the treaty it would be difficult to enforce contracts with respect to the lands east of the Rio Grande, proposed to sell those now in controversy to various parties from the United States. Thereupon one John Treanor, representing the Cavazos family, and particularly Dona Josefa, one of the defendants in this suit, applied to the congress of Tamaulipas for protection,-in effect asking that the municipality be restrained from making the contemplated sale, on the ground that it possessed no just claim to the property, and that such action would be of serious injury to the owners. To this application the common council of Matamoras replied by setting up the claim of the city. The matter was then presented to the congress, and referred to a committee, who gave to the subject extended consideration, and finally made an elaborate report to the effect that compensation had never been made to the owners of the property; that such compensation was an indispensable requisite to its expropriation; and as such expropriation could not now be made in consequence of the change of government over the country, they were entitled to receive back their lands, and were not confined to compensation; and that the alienation of the lands by the city under these circumstances would not be subjecting them to a public use, but disposing of them for purposes of speculation; adding, that the right of expropriation had another and more noble origin, its object being not to increase the public revenues, but to provide for the well-being of the community. The committee further suggested that the alienation might produce complications with the government of the United States, as the latter would probably contend that, if the lands belonged to the municipality, they must be considered as public property. The congress therefore passed a resolution to the effect that as article thirteen of the ancient Constitution of the State and article seventy-one of the then existing Constitution prescribed that in no case could an expropriation be established without previous compensation, and as this had not been made for the ejidos situated on the left bank of the Rio Grande, the corporation of Matamoras had not acquired any property in them, and that in consequence they were preserved to their ancient owners. This resolution bears date the 20th of October, 1848. As between the city of Matamoras and the applicants it is conclusive; the congress had jurisdiction of these parties; neither questioned its power, and both accepted its judgments as a finality.

Although this resolution may not bind the State of Texas, or previous purchasers or alienees of Matamoras, it is entitled to the highest consideration and respect as a decision touching the law of Tamaulipas, and as an interpretation given to its Constitution upon the expropriation of private property, and to its own previous legislation. It accords with the obvious and natural meaning of the decree of 1827, which only proposed to allow the city to occupy the lands in advance of compensation, and it is supported by all the attendant and subsequent circumstances of the transaction. We therefore adopt it as at once a just and reasonable disposition of the matter.

This conclusion renders it unnecessary to inquire as to the possible interpretation which the language of the charter of Brownsville might receive, or what rights that city might have had, if Matamoras had held property on the east bank of the Rio Grande which, upon the independence of Texas, passed either to her successor or to the State.

It remains only to consider the pleas of res judicata and prescription interposed by the plaintiff in bar of the title set up by the defendants.

It appears that certain parties by the name of Basse and Ford, under whom some of the defendants trace their title, brought suit for the property now claimed against the city of Brownsville, which resulted in a judgment of dismissal in June, 1872; and a new suit under the law of Texas was not brought by them within one year afterwards. By that law a judgment against a plaintiff in an action for the possession of real property-or an action of trespass to try the title, as it is termed in the law-is conclusive unless he commence a second action for the property within a year. But the answer to the objection that the judgment here is conclusive against the defendants is, that before the year elapsed, and indeed within ten days after the dismissal, the city commenced the present suit for the same property, in which all their rights were again brought into litigation. The law which gives to the dissatisfied party a right within one year to re-litigate a second time a controversy respecting land in Texas, does not bar him or his grantees from setting up his or their claim, if within the required period a similar suit respecting the same land is commenced against him or them by the former defendant. The object of allowing a second litigation of the same title, and of requiring such litigation to be speedily instituted, is equally accomplished.

As to the plea of prescription, we agree with the court below that, under the circumstances, the mixed possession of the parties, their continued contest and litigation from 1854 to the present time, and the absence of actual possession by either of a large portion of the property, no prescription can be claimed, and that the case must be determined on the documentary evidence of title.

We are satisfied with the conclusions reached by the Circuit Court, and its judgment is in all respects

Affirmed.


text: Talk:Brownsville v. Cavazos/Opinion of the Court

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


text:
Moore v. Simonds

APPEAL from the Circuit Court of the United States for the District of Louisiana.

Motion to dismiss the appeal and to affirm the decree below.

The facts are stated in the opinion of the court.

Mr. Richard De Gray in support of the motion.

Mr. Charles B. Singleton, contra.

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

title: Moore v. Simonds


text: Author:Dugald Clerk

title: Author:Dugald Clerk


text: Talk:Moore v. Simonds

title: Talk:Moore v. Simonds


text:
Moore v. Simonds/Opinion of the Court

Technically, this appeal should have been taken in the names of the individual members of the commercial firm of John T. Moore & Co., instead of in the name of the firm, and because of such an irregularity an appeal was dismissed in the case of The Protector, 11 Wall. 82. That case was decided before the act of June 1, 1872 (17 Stat. 197, sect. 3, now sect. 1005, Rev. Stat.), allowing amendments of writs of error in certain cases, and it does not appear that the defect could have been remedied by reference to any thing in the appeal papers. Here, however, sect. 1005 was in force when the appeal was taken, and the bond shows that the firm in whose favor the appeal was allowed was composed of John T. Moore and John T. Moore, Jr. We are clear, therefore, that the defect is one that may be amended under the law as it now stands, and for that reason we will not dismiss the appeal. But on looking into the record we find that the only question involved is whether the lien of the appellants' mortgage on the steamboat 'John T. Moore' is superior to that of another mortgage in favor of Swift's Iron and Steel Works and Dennis Long. From the findings of fact it appears that the last-named mortgage was executed Jan. 27, 1871; that it was signed and acknowledged by the owner of the boat in the presence of two witnesses, one of whom was a notary public; that the witnesses attested the execution of the mortgage, but the notary did not sign officially; that there was no other or further acknowledgment of the mortgage before a notary; and that this mortgage was not recorded in the office of the collector of customs where the boat was permanently enrolled. The mortgage to Moore & Co., the appellants, was executed Jan. 3, 1872, and was duly recorded in accordance with the act of Congress; but when it was taken, Moore & Co. had actual notice of the existence of that to the appellees. Upon this state of facts the court below held that the mortgage of the appellants was inferior in lien to that of the appellees; and this was so clearly right, that we are not inclined to hear an argument upon the question.

The act of Congress relied on by the appellants is now found in sects. 4192 and 4193 of the Revised Statutes. These, so far as they are material to the present inquiry, are as follows:--'SECT. 4192. No bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation, or conveyance is recorded in the office of the collector of customs where such vessel is registered or enrolled. . ..

'SECT. 4193. . . . But no bill of sale, mortgage, hypothecation, or conveyance or discharge of mortgage, or other incumbrance of any vessel, shall be recorded, unless the same is duly acknowledged before a notary public or other officer authorized to take acknowledgment of deeds.'

To our minds, there is no doubt that Congress only intended to require that a mortgage on a vessel should be acknowledged for the purpose of authenticating it for record, and that as between the parties, and as against persons having actual notice thereof, it was valid without acknowledgment or record. As this was the decision of the court below, we deny the motion to dismiss, and grant that made under Rule 6, to affirm.

Decree affirmed.

title: Moore v. Simonds/Opinion of the Court


text: Talk:Moore v. Simonds/Opinion of the Court


text:
National Asphalt Pavement Association v. Train/Opinion of the Court

[p778] McGOWAN, Circuit Judge:

Section 111 of the Clean Air Act, 42 U.S.C. § 1857c-6 (1970 and Supp. IV, 1974), directs the Administrator of the Environmental Protection Agency (EPA) to maintain a list of stationary sources which "may contribute significantly to air pollution which causes or contributes to the endangerment of public health or welfare." Id. § 1857c-6(b) (1) (A) (1970). Within 120 days after the Administrator designates a particular source category as a "significant contributor," he must publish proposed standards of performance for sources within that category. The statute defines a standard of performance as:

"A standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated."

Id. § 1857c-6(a) (1). The Administrator must afford interested parties an opportunity to comment on the proposed standards, and, after considering such comments and making appropriate modifications, he must promulgate final standards within 90 days after publication of the proposed standards. Id. § 1857c-6(b) (1) (B) (Supp. IV, 1974).

On June 11, 1973 the Administrator published a notice in the Federal Register indicating that he had amended his list of "significant contributors" to include asphalt concrete plants. 38 Fed. Reg. 15380. On that same day he also published proposed standards of performance for new or modified asphalt concrete plants. Id. at 15406. After considering written comments on the proposed standards, the Administrator published final standards of performance on March 8, 1974. 39 Fed. Reg. 9307.

The National Asphalt Pavement Association (NAPA) and various asphalt concrete plants then invoked our exclusive review jurisdiction, [p779] 42 U.S.C. § 1857h-5(b) (1) (Supp. IV, 1974), filing a petition in this court challenging the action of the Administrator on the following grounds: (1) the Administrator failed to provide interested parties with a meaningful opportunity to comment on the designation of the asphalt concrete industry as a "significant contributor"; (2) the Administrator erred in determining that asphalt concrete plants are "significant contributors" within the meaning of the Act; and (3) there is insufficient evidence in the record (a) to support the Administrator's conclusion that the standards of performance are achievable through the best systems of emission reduction and (b) to show that the Administrator took attendant costs into account. For the reasons set forth below, we affirm the action of the Administrator.

I
Petitioners first argue that they were never given a meaningful opportunity to comment on the Administrator's designation of the asphalt concrete industry as a "significant contributor" within the meaning of the Clean Air Act. The Government argues that the designation of an industry as a "significant contributor" need not be preceded by a hearing or opportunity for written comments. Brief at 12-14. To the extent that the Government's brief suggests that an opportunity to comment on the "significant contributor" designation is not required at all before promulgation of final standards of performance, we disagree. Section 111 of the Clean Air Act specifically requires the Administrator to "afford interested persons an opportunity for written comment on such proposed regulations." 42 U.S.C. § 1857c-6(b) (1) (B) (Supp. IV, 1974). And since the Administrator can propose regulations only for a source category on his list of "significant contributors," we think the Clean Air Act requires an opportunity for comment on the designation issue. Moreover, we agree with petitioner Warren Brothers that the "significant contributor" designation is "an integral and pivotal part of the rulemaking process under Section 111," Brief at 25, and that as a result section 4 of the APA requires that interested persons have a meaningful opportunity to comment on that part of the rule. See 5 U.S.C. § 551(4) (1970) (definition of rule); id. § 553.

We agree with the Government that the Administrator is not required to publish his "significant contributor" designation in proposed form and then hold a separate informal rulemaking proceeding on that specific issue. Neither the Clean Air Act nor the APA requires that an agency hold two separate rulemaking proceedings as to different parts of one rule. Thus, the EPA can continue to have one informal rulemaking proceeding as long as that proceeding considers both the "significant contributor" designation and the proposed standards. Indeed, in rulemaking proceedings such as this one, where the data underlying the "significant contributor" designation is likely to overlap substantially with that underlying the proposed standards, the most sensible course for an agency is to have one proceeding directed at both issues.

The Government also contends that to the extent that notice and an opportunity for comment are required, petitioners have no ground for complaint in that they were "fully aware that the Administrator was considering establishing standards for asphalt concrete plants well before the list was published" and "discussed matters relating to the Administrator's designation" with EPA personnel. Brief at 13. We decline to hold that these pre-designation opportunities for comment satisfied the requirements of either section 111 of the Clean Air Act or section 4 of the APA; in order to have a "meaningful" opportunity to comment, one must be aware of the information the agency finally decides to rely on in taking agency action. Portland Cement Association v. Ruckelshaus, 158 U.S. App. D.C. 308, 486 F.2d 375, 393 n. 67 (1973), cert. denied, 417 U.S. 921, 41 L. Ed. 2d 226, 94 S.C.t. 2628 (1974). That data was not known until the designation and background information were made available. The thrust of petitioners' complaint appears to be that in simultaneously publishing the "significant contributor" designation and proposed standards of performance, the Administrator indicated that he had already reached a final determination on the "significant contributor" [p780]  designation and did not consider it open for discussion during the informal rulemaking procedure. See Brief for Warren Brothers at 21 (Simultaneous publication of the designation and the proposed standards "virtually ensured that that determination would be immune from meaningful public comment."). We think an examination of the published notices, the agency's response to written comments, and record correspondence between petitioners and the EPA indicates that the "significant contributor" designation was subject to comment as a threshold question in the rulemaking process, and that petitioners were specifically informed of that fact.

We begin with the notices published in the Federal Register on June 11, 1973. The first notice, published in the "Notices" section of the Federal Register, announced that the Administrator, after considering available information, had determined that the asphalt concrete industry was a "significant contributor" pursuant to section 111 of the Act. The notice also announced that proposed standards of performance were being published that same day. 38 Fed. Reg. 15380.

The second notice, appearing in the "Proposed Rules" section of the Federal Register, announced that "the Administrator proposes herein standards of performance" for new and modified asphalt concrete plants, and that, "as prescribed by section 111, this proposal of standards was preceded by the Administrator's determination that [asphalt concrete plants] contribute significantly to air pollution which causes or contributes to the endangerment of the public health or welfare . . . ." Id. at 15406. After stating that interested persons could participate in the informal rulemaking by means of written comments, the Administrator invited comments on "all aspects of the proposed regulations. " Id. at 15407.

Petitioners point to the language inviting comment on all aspects of the proposed regulations, contending that the Administrator indicated that "the substance of the proposed regulations was open for discussion but whether [the Administrator] was justified in setting such standards in the first place was not." Brief for Warren Brothers at 17. This strikes us as a niggardly interpretation, for one very important aspect of the proposed regulations is whether they comport with section 111's requirement that the source category be a "significant contributor."

Petitioners also point to language in the preamble to the final performance standards, which reads as follows:

"'The preamble to the proposed standard . . . urged all interested parties to submit factual data during the comment period to ensure that the standard for asphalt concrete plants would, upon promulgation, be consistent with the requirements of section 111 of the Act.'"

39 Fed. Reg. 9309 (1974) (emphasis added by petitioner Warren Brothers). According to petitioners, this preamble indicates that performance standards of some sort would be promulgated for new and modified asphalt concrete plants, and that the only issue considered by the agency was the nature of the specific limitations. Brief for Warren Brothers at 17-18. But the preamble clearly notes that final standards must be consistent with the provisions of section 111 of the Act, and one of the requirements of that section, as noted above, is that the source category be a "significant contributor."

There is other evidence in the record indicating that petitioners understood the designation issue as open for comment. Petitioner Warren Brothers informs us that it fully supported NAPA's efforts to have the EPA hold a hearing on the "significant contributor" designation, and refers the court to record correspondence between NAPA and EPA concerning that hearing request. The letter to the EPA from counsel for NAPA, dated June 21, 1973 (within the period available for the submission of written comments), states:

It is proffered that the asphalt plants do not contribute significantly to air pollution, thereby causing or contributing to the endangerment of public health or welfare. The data upon which the Environmental [p781]  Protection Agency has relied in making this determination of the significant contribution is based upon old data no longer applicable and the equipment which is presently available results in no significant endangerment of public health or welfare. Consequently, in view of the fact that there is no significant contribution to air pollution, we believe that the Environmental Protection Agency has no authority under the regulations to proceed with the issuance of this standard.

For this reason, it is also suggested that an oral hearing be presented so that every opportunity may be provided for the industry to establish the facts in an oral proceeding subject to cross-examination. Also, we desire the opportunity to cross-examine the appropriate persons within the Agency who have made the determination that there is a significant contribution. It is especially necessary that this be done because, despite the repeated rendition of the facts to the Environmental Protection Agency, such facts have been completely ignored by its staff.

App. at 570. That letter clearly suggests that counsel for NAPA considered the "significant contributor" designation open for comment, and that NAPA desired procedures in addition to those required by section 4 of the APA to probe that issue.

Nothing in the EPA's response to NAPA's letter suggests that the EPA was of the view that the final "significant contributor" designation was final and not open for discussion. To the contrary, the EPA's response, though it admittedly denied NAPA's request for an oral hearing on the designation issue, nevertheless "specifically invite[d] the National Asphalt Pavement Association to present to the agency any information or data which it has not already made available" concerning the major area of disagreement over the designation, namely, "the contribution to particulate matter air pollution from asphalt concrete plants." App. at 578-79. On July 25, 1973, NAPA submitted its written comments, one of which covered NAPA's contention that "the industry does not contribute significantly to air pollution which causes or contributes to the endangerment of the public health or welfare." App. at 384. See also id. (NAPA comments that "the industry attempted to submit data to rebut the proposed finding that it is a significant contributor to air pollution.")

The final piece of record evidence supporting the Government's contention that the "significant contributor" designation was an open issue in the rulemaking is found in the agency's written response to the various written comments. The first listed comment, discussed by twenty-seven commentators, was to the effect that "the asphalt industry is not a 'significant contributor' to air pollution in the United States that endangers or may tend to endanger public health or welfare." App. at 134. The agency responded to the substance of this comment by indicating that it considered all sources of particulate matter to contribute to the endangerment of the public health and welfare, and that it had studied a number of factors - for example, the number of plants and uncontrolled emission rates - and concluded that the asphalt concrete industry was a "significant contributor" of particulate matter air pollution. Although petitioners may dispute the merits of that decision, EPA's response to the comment belies any suggestion that the designation issue was not open to examination during the informal rulemaking.

On the basis of that evidence, we think it is quite clear that (1) the agency considered the "significant contributor" designation to be an issue in the informal rulemaking proceeding, (2) the interested parties were advised of this fact when the agency invited written comments on all aspects of the proposed standards, (3) petitioners indicated [p782]  that they considered the issue open for discussion in requesting a public hearing on the matter, and (4) petitioners were specifically invited by the agency to submit written comments on the issue. As a result, we find no basis for remanding the case to the EPA for further proceedings directed to that issue.

Petitioners also attempt to align this case with the decisions in this circuit holding that in some circumstances agencies are required to utilize procedures in addition to those expressly mandated by the Administrative Procedure Act. Petitioner NAPA contends that "more than minimum procedures are necessary when the [agency] is making environmental decisions." Brief at 18, citing Portland Cement Association v. Ruckelshaus, 158 U.S. App. D.C. 308, 486 F.2d 375 (1973), cert. denied, 417 U.S. 921, 41 L. Ed. 2d 226, 94 S.C.t. 2628 (1974), and Kennecott Copper Corp. v. EPA, 149 U.S. App. D.C. 231, 462 F.2d 846 (1972). In particular, NAPA suggests that "a public hearing with cross-examination was required" in that the agency was aware "that its test data was disputed" by NAPA and that "[NAPA] contended that [EPA] was not properly considering all factors relating to emission control and that [EPA's] tests were not representative of the nation." Brief at 18. The asphalt concrete companies suggest that we remand the case for a legislative-type hearing on the "significant contributor" designation because "the crucial nature of the fact-finding underlying this basic determination very strongly supports the argument that the Administrator, as a function of due process, should hold a hearing prior to making his final determination." Brief for Petitioner Warren Brothers at 26 n.28.

The cases relied on by petitioners do not hold that "hybrid" procedures are required in all informal rulemaking proceedings dealing with environmental issues. To the contrary, those cases suggest instead that "elucidation of certain types of issues, by their very nature, might require particular procedures, including cross-examination." NRDC v. USNRC, 547 F.2d 633, 644 (1976). And we have indicated that "the presence of technical issues in and of itself [does not] create a need for cross-examination." O'Donnell v. Shaffer, 160 U.S. App. D.C. 266, 491 F.2d 59, 62 (D.C.Cir. 1974). Rather, this court has required that a party challenging agency action make a "proffer of the specific issues and witnesses which they [claim cannot] be explored without [hybrid rulemaking procedures]," NRDC v. USNRC, supra at 17 n.25, citing [p783] International Harvester Co. v. Ruckelshaus, 155 U.S. App. D.C. 411, 478 F.2d 615, 630-31 (1973), and petitioners in this case have simply failed to make that kind of proffer.

We therefore find no error in the failure of the Administrator to hold a public hearing on the "significant contributor" designation and the proposed standards.

II
The Clean Air Act was designed to reduce existing levels of air pollution, and to that end Congress authorized the Administrator to promulgate national primary and secondary air quality standards for pollutants which have an adverse effect on public health. Clean Air Act §§ 108-09, 42 U.S.C. §§ 1857c-3, 1857c-4 (1970). Pursuant to federally approved state implementation plans, a number of emission control measures have been established to reduce the quantity of pollutants in the air to the level prescribed under the air quality standards.

But the Clean Air Act, and section 111 in particular, was also designed to prevent new pollution problems, especially the deterioration of air quality in areas where existing air quality levels exceed the promulgated air quality standards. The House reported that the provision for control over new stationary sources was enacted to "prevent the occurrence anywhere in the United States of significant new air pollution problems . . . ." H.R. Rep.No. 91-1146, 91st Cong., 2d Sess. 3 (1970), (1970) U.S.Code Cong. & Ad. News 5356, 5358. That view was shared by the Senate Committee, which concluded that" maintenance of existing high quality air is assured through provision for maximum control of new major pollution sources." S.Rep.No. 91-1196, 91st Cong., 2d Sess. 2 (1970). See 116 Cong. Rec. 32902 (1970) (remarks of Senator Muskie) ("While we clean up existing pollution, we must also guard against new problems. Those areas which have air quality which are better than the national standards should not find their air quality degraded by the construction of new sources."); id. at 42392 (remarks of Senator Randolph) ("Performance standards for new stationary sources [are designed] to make sure that no industrial development will degrade the quality of the air so as to endanger public health and welfare"). Although the House and Senate versions mandated different methods of federal control over new stationary sources, the Conference Committee eventually recommended what is now section 111(b)(1), which authorizes the Administrator to promulgate standards of performance for new stationary sources which "may contribute significantly to air pollution which causes or contributes to the endangerment of public health or welfare." 42 U.S.C. § 1857c-6 (b)(1) (1970 & Supp. IV, 1974).

That provision obviously contemplates an evaluation by the Administrator of the risk that certain types of air pollution will "endanger" public health and welfare, and the risk that allowing construction of new stationary sources, even subject to existing state and local regulation, will contribute "significantly" to that air pollution. In our view, the Administrator's evaluation of those risks involves questions which are "particularly prone to uncertainty," and as a result "the statute accords the [Administrator] flexibility to assess [those] risks and make essentially legislative policy judgments . . . ." Ethyl Corp. v. EPA, 176 U.S. App. D.C. 373, 541 F.2d 1, 24, 26 (1976), cert. denied, 426 U.S. 941, 96 S.C.t. 2662, 49 L. Ed. 2d 394, 44 U.S.L.W. 3715 (1976). These policy choices "are not susceptible to the same type of verification or refutation by reference to the record as are some factual questions," Industrial Union Department, AFL-CIO v. Hodgson, 162 U.S. App. D.C. 331, 499 F.2d 467, 475 (1974), and consequently are not subject to review with the "substantive rigor proper for questions of fact," Ethyl Corp. v. EPA, supra, 541 F.2d 1 at 24. Instead, our "paramount objective is to see whether the agency, given an essentially [p784]  legislative task to perform, has carried it out in a manner calculated to negate the dangers of arbitrariness and irrationality in the formulation of rules for general application in the future." Automotive Parts & Accessories Ass'n, Inc. v. Boyd, 132 U.S. App. D.C. 200, 407 F.2d 330, 338 (D.C.Cir. 1968).

The Administrator has concluded that "in the case of particulate matter - a pollutant for which national ambient air quality standards have been promulgated - . . . all sources . . . contribute to the endangerment of public health or welfare." App. at 134. Petitioners and various commentators on the "significant contributor" designation do not really challenge the Administrator's conclusion in this regard, and we would be hard pressed to find a reason for overturning this aspect of the Administrator's determination. Particulate matter poses enough of a threat to public health to warrant the promulgation of air quality standards - which are aimed at reducing existing levels of particulate matter - and we have no basis on this record to dispute the Administrator's decision that there is a need to prevent further deterioration of "clean air" by establishing additional national standards of performance for particulate matter.

Petitioners' primary attack on the Administrator's designation concerns his conclusion that the asphalt concrete industry contributes "significantly" to particulate matter pollution. The Administrator concluded that it is "meaningless" to develop a firm definition of "significant" contribution to be applied nationwide; as a result of variations in topography, distribution of sources, height from which the pollutant is emitted, and meteorological conditions, a new source may be "significant" in one area and insignificant in another. To achieve the overall objectives of the Act - reduction in existing levels of pollution and prevention of deterioration - the Administrator concluded that construction of new asphalt concrete plants will contribute enough additional particulate matter pollution to warrant regulation as a significant contributor. That determination is based on the Administrator's examination of the rate of emissions of particulate matter from uncontrolled plants, the stringency of existing state and local regulations limiting emissions from these plants, the number of existing plants, and the expected rate of growth in the number of plants. See, e.g., App. at 38-39, 134.

Petitioners argue that, in determining whether the asphalt cement industry is a "significant contributor", the Administrator relied on a study conducted in 1967 which estimated that in 1967 total particulate emissions from the asphalt concrete industry amounted to 243,000 tons, and that the amount would increase to 403,000 tons in 1977 if the 1967 control level of ninety-five percent were maintained. By the time the Administrator made the designation and promulgated proposed standards, however, a large number of asphalt concrete plants had installed various control devices, especially in response to state and local regulations; according to NAPA, by 1973 virtually every asphalt concrete plant in the United States was equipped with a two stage collection system. NAPA estimates suggest that in 1972 total industry particulate emissions amounted to 40,000 tons, a figure nowhere near as high as the Administrator's estimate based on the 1967 study. Petitioners suggest that the Administrator failed to explain his reliance on the 1967 data, and that his "significant contributor" designation is therefore "arbitrary and capricious."

We see no merit in petitioners' argument. First, the Administrator never relied on the disputed study to estimate the level of controlled emissions; to the contrary, the Administrator specifically noted that one of the factors he considered was the rate of uncontrolled emissions. Moreover, the Administrator also stated that he was aware of and took into account the stringency of existing local and state limitations on emissions from asphalt concrete plants. The Administrator has thus determined that given the number of existing plants, the expected rate of growth in the number of plants, the rate of uncontrolled emissions, [p785]  and the level of emissions currently tolerated, potential emissions from new asphalt concrete plants would contribute "significantly" enough to warrant additional regulation to prevent deterioration of clean air. Petitioners have pointed to nothing in the record that indicates that the Administrator was arbitrary and capricious in reaching that determination.

We also find a fundamental flaw in the contention that once an industry complies with regulations designed to reduce air pollution to the level established by national primary and secondary air quality standards, it is no longer a "significant contributor" subject to new source regulation. Compliance with existing regulations may well enable the states to achieve the national standards, but it does not mean that the Administrator is precluded from exercising regulatory authority to prevent deterioration of clean areas. Given the Administrator's statement that he examined current state and local emission limitations, we take his decision to be that construction of new plants subject only to current emission limitations would "significantly contribute" to future air pollution problems. For that reason he promulgated standards of performance that are more stringent than typical state and local regulations, and we can find no basis to upset that determination.

III
We turn next to petitioners' contention that the Administrator acted in an arbitrary and capricious manner in promulgating the following standards of performance for new or modified asphalt concrete plants:

Standard for particulate matter

Where the presence of uncombined water is the only reason for failure to meet the requirements of this paragraph, such failure shall not be a violation of this section.

40 C.F.R. § 60.92.

Those standards were promulgated pursuant to section 111(a)(1) of the Act, which defines a standard of performance as "a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated." 42 U.S.C. § 1857c-6(a)(1) (1970). The components of that definition have been clarified in prior cases in this circuit reviewing standards of performance for other new source categories. We have indicated that "it is the system which must be adequately demonstrated and the standard which must be achievable." Essex Chemical Corporation v. Ruckelshaus, 158 U.S. App. D.C. 360, 486 F.2d 427, 433 (1973), cert. denied, 416 U.S. 969, 94 S.C.t. 1991, 40 L. Ed. 2d 558 (1974). "Adequately demonstrated" does not mean that existing asphalt concrete plants must be capable of meeting the standard; to the contrary, "section 111 looks toward what may fairly be projected for the regulated future, rather than the state of the art at present. . . ." Portland  [p786] Cement Association v. Ruckelshaus, supra, at 391. And an "achievable standard" is one "within the realm of the adequately demonstrated system's efficiency and which, while not at a level that is purely theoretical or experimental, need not necessarily be routinely achieved within the industry prior to its adoption." Essex Chemical Corporation v. Ruckelshaus, supra, at 433-34. Moreover, the system must be one "which can reasonably be expected to serve the interests of pollution control without becoming exorbitantly costly in an economic or environmental way." Id. at 433.

The standard of review of actions of the Administrator in setting standards of performance is an appropriately deferential one, see Ethyl Corporation v. EPA, supra, 541 F.2d 1, at 34, and we are to affirm the action of the Administrator unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A) (1970). Since this is one of those "highly technical areas, where our understanding of the import of the evidence is attenuated, our readiness to review evidentiary support for decisions must be correspondingly restrained." Ethyl Corporation v. EPA, supra,, 541 F.2d at 67 (Bazelon, C.J., concurring), slip opinion at 4. "Our 'expertise' is not in setting standards for emission control, but in determining if the standards as set are the result of reasoned decision-making." Essex Chemical Corporation v. Ruckelshaus, supra, at 434.

The Administrator concluded, and petitioners concede, that the best system of emission reduction that has been adequately demonstrated for the asphalt concrete industry is represented by a venturi-scrubber with a twenty-inch pressure drop or a baghouse with an air-to-cloth ratio of six-to-one. Indeed, petitioner Warren Brothers informs us that those control technologies can be installed and operated at reasonable cost, and that various asphalt concrete companies are prepared to install those devices on plants that become subject to the final standards of performance.

Petitioners do not accept, however, the finding of the Secretary that a well-maintained venturi-scrubber with a twenty-inch pressure drop or a well-maintained baghouse with an air-to-cloth ratio of six-to-one will keep emissions at or below 90 mg/dscm (.04 gr/dscf). According to petitioners, the EPA performed tests on only a handful of asphalt concrete plants; that in performing those tests the EPA departed substantially from its prescribed testing procedures; that the Administrator relied on various tests conducted by states and localities which also failed to conform to proper testing procedures; that the Administrator refused to consider the results of tests conducted by NAPA which indicated that the standard could not be achieved on a regular basis; that in interpreting the various tests results the Administrator completely overlooked or ignored a number of variables which should have been taken into account (including variations in the size, shape, and smoothness of particles in the feed aggregate, type of fuel, atmospheric conditions, and startup/shut down plant operations); and that the Administrator failed to show that guarantees issued by manufacturers of the relevant control devices supported the established mass emissions limitation.

We have considered these and other objections to the.04 gr/dscf standard promulgated by the Administrator, and, recognizing "the tempered review we exercise in these matters of non-judicial expertise," Portland Cement Association v. Train, 168 U.S. App. D.C. 248, 513 F.2d 506, 508 (1975) (after remand), cert. denied, 423 U.S. 1025, 46 L. Ed. 2d 399, 96 S.C.t. 469 (Sup. Ct. Dec. 10, 1975), we cannot say that the Administrator's actions are either arbitrary or capricious. On the basis of our evaluation of the record evidence on these issues and the Administrator's responses thereto, we are unable to say that he did not engage in reasoned decision-making when he set the final performance standard at.04 gr/dscf rather than the originally proposed level of.031 gr/dscf.

We recognize that, for a variety of reasons, the Administrator conducted tests on [p787]  only four plants. But we think that the record evidence with respect to those tests, and tests conducted by others, including NAPA, preclude us from overturning the action of the Administrator. The four tests conducted by the Administrator had average emission levels of.007,.008,.018, and.031 gr/dscf, all below the final standard of.04 gr/dscf. Two of the tests conducted by NAPA also fell below the final standard; and EPA considered the results of the other two NAPA tests - which showed average emission levels of.043 and.108 - but concluded that the plants were not well-controlled and should therefore not be used as a basis for determining standards for well-maintained new plants. In addition, the Administrator considered test results submitted by various local and state authorities, which ranged from.010 to.025 gr/dscf, as well as fifty-six other sets of test results submitted after publication of the proposed standards.

Some of these tests admittedly failed to comply strictly with prescribed testing procedures, but we do not think that the departures were substantial enough to warrant reversal. Moreover, we think the record undercuts petitioners' claim that the Administrator "ignored" or "completely overlooked" relevant factors such as particle size and shape; we think the Administrator's statements indicate an awareness of and a willingness to adjust for such factors. Given the record before us, we are simply unable to say that the Administrator acted in an arbitrary and capricious manner in promulgating the less stringent performance standard of.04 gr/dscf (rather than the proposed.031 gr/dscf) after the completion of the rulemaking proceeding. We therefore uphold the.04 gr/dscf mass emissions limitation.

Petitioners also challenge the second part of the final performance standards which makes it a violation to emit gases into the air exhibiting greater than twenty percent opacity. In this regard, we note that this court has recently upheld the use of a similar opacity performance standard for new portland cement plants. Portland Cement Association v. Train, supra, 513 F.2d 506. The court there noted that it was not warranted "on the basis of [the Administrator's] analysis to find that plume opacity is too unreliable to be used either as a measure of pollution or as an aid to controlling emissions," id. at 508, and nothing in the record in the case sub judice leads us to conclude otherwise. We have also considered petitioners' other attacks on the opacity standard, especially the issue of "achievability" in the context of asphalt concrete plants, and we conclude that we have no basis for rejecting the Administrator's conclusion that the twenty percent standard is valid.

Petitioners also challenge the final standards on the ground that the Administrator gave inadequate consideration to economic costs. We noted in Essex Chemical Corporation v. Ruckelshaus, supra, that "it is not unlikely that industry and the EPA will disagree on the economic costs of these various control techniques" and that "we have no desire or special ability to settle such a dispute." 486 F.2d at 437. In the case before us we have no difficulty in concluding that the Administrator gave adequate attention to the costs involved, especially in light of petitioner Warren Brothers' statement that the control technologies at issue "can be installed and operated at reasonable cost," Brief at 38, and that "petitioners are prepared to install the pollution control equipment the Administrator has determined to be the best demonstrated - and indeed have already largely done so." Brief at 65. The record evidence indicates that the Administrator gave consideration to the relevant cost factors, and we have no cause to disturb his judgment.

For all these reasons, the decision of the Administrator is affirmed.

It is so ordered.


text:
Paving Company v. Mulford

MOTION to dismiss an appeal from the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Mr. A. S. Worthington in support of the motion.

Mr. William A. Cook, contra.

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

title: Paving Company v. Mulford


text: Talk:Paving Company v. Mulford

title: Talk:Paving Company v. Mulford


text:
Paving Company v. Mulford/Opinion of the Court

This was a suit in equity brought by the Ballard Paving Company against Michael Mandle and sundry persons who claimed to have purchased from him certain certificates of the Auditor of the Board of Public Works of the District of Columbia, which it was alleged were the property of the company. Mulford and Campbell, the appellees, were two of the defendants, but they were proceeded against as holders of separate and distinct certificates. Their liability as set forth in the bill was several only. There was no pretence of a joint obligation, and it is conceded that in no event could there be a recovery against either of them separately for more than $2,500. On the hearing, the bill was dismissed as to these defendants, and the paving company has appealed.

We think it clear that we have no jurisdiction in this case. Although many defendants have been brought into the suit, the proceeding is, in fact, against each of the several purchasers to enforce his separate and distinct liability. It is a joinder of distinct causes of action against distinct parties. The same decree is to be entered against each as in case of separate suits. The recovery, if any, must be against each defendant separately for the amount he may personally be found accountable. Such being the case, the value of the matter in dispute with each defendant must be the sum for which he is separately liable. It is well settled that neither co-defendants nor co-complainants can unite their separate and distinct interests for the purpose of making up the amount necessary to give us jurisdiction on an appeal. Seaver v. Bigelows, 5 Wall. 208; Rich v. Lambert, 12 How. 347; Oliver v. Alexander, 6 Pet. 143; Stratton v. Jarvis, 8 id. 41. In such cases, the appeal of each separate defendant or complainant must stand or fall according as his own interest in the controversy exceeds or falls short of our jurisdictional amount. The same principle applies here. For the purposes of an appeal, each separate controversy must be treated as a separate suit. Under this appeal, two separate controversies have been brought here, and in neither is the amount involved sufficient to give us jurisdiction.

Appeal dismissed.


text: Talk:Paving Company v. Mulford/Opinion of the Court


text:
Clark v. Trust Company

APPEAL from the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

The cause was argued by Mr. Samuel Shellabarger and Mr. J. D. Bigelow for the appellant, and by Mr. Enoch Totten for the appellee.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Clark v. Trust Company


text: Talk:Clark v. Trust Company

title: Talk:Clark v. Trust Company


text:
Clark v. Trust Company/Opinion of the Court

The preliminary question in this case involves the validity and effect of the sale made at public auction by Eaton, or rather by the auctioneer under his directions and as his agent.

McGhan and wife, by indenture dated Aug. 15, 1864, and duly acknowledged on 18th November, 1864, conveyed the premises in controversy to Edward Clark, in trust for the sole use and benefit of Mrs. McGhan, for and during her natural life, permitting her to use and occupy the same, and to receive and apply the rents and profits thereof, and in trust also to sell and convey absolutely in fee-simple or by way of mortgage, to such person or persons and for such use and purposes as Mrs. McGhan should in writing request and direct, her then or any future coverture notwithstanding. The indenture also contained a provision that, upon the death of Mrs. McGhan, the premises, or so much thereof as remained undisposed of, should be conveyed to the husband, his heirs or assigns.

By an indenture executed and duly acknowledged on 20th June, 1870, McGhan and his wife, together with Clark, the trustee, conveyed the property to Daniel Eaton, of the city of Washington, in trust to secure the payment of a debt due from McGhan and wife to the Freedman's Savings and Trust Company, for the sum of $10,000, evidenced by their joint and several promissory note to that company, of like date with the indenture, and payable twelve months thereafter to the order of the company, with interest at the rate of ten per cent per annum, interest payable half-yearly. That conveyance was in part upon these trusts: 1. To permit Mrs. McGhan and husband to occupy the premises, and the rents and profits to have and apply to their sole use and benefit, until default be made in the payment of the note or interest thereon, or any proper charge or expense in and about the property; and, upon payment of the note, interest, and costs, to release and reconvey the premises to Clark, the trustee, for Mrs. McGhan; 2. Upon default in any of the said respects (quoting from the deed itself), 'to sell the said piece or parcel of ground and premises at public auction upon such terms and conditions, and at such time and place, and after such previous public advertisement, as the said party of the second part or his heirs in the execution of this trust shall deem advantageous and proper, and to convey the same in fee-simple to the purchaser or purchasers thereof at his, her, or their cost or expense; and of the proceeds of said sale or sales first to pay all proper costs, charges, and expenses, and to retain as compensation a commission of five per cent out of the amount of said sale or sales; secondly, to pay whatever may then remain unpaid of said note and the interest thereon, whether the same shall be due or not; and, lastly, to pay the remainder, if any, to the said Louisa McGhan, her heirs or assigns.'

On or about April 5, 1872, the note held by the company being unpaid, and interest to the amount of $1,400 having accrued thereon, Eaton, the trustee, made public advertisement that he would sell the mortgaged property at public auction to the highest bidder, at a designated hour, on April 24, 1872, giving the terms of such proposed sale. The sale was postponed from time to time until July 1, 1872, when it took place, the Freedman's Savings and Trust Company, by one of its officers, becoming the purchaser at the price of $13,000.

We find in the record a writing signed by Eaton, purporting to be an indenture executed July 1, 1872, whereby, in consideration of the sum of $13,000 in hand paid, he conveyed to the purchaser the property so sold at public auction.

It purports to have been 'signed, sealed, and delivered in presence of-Brainerd H. Warner,' and to have been acknowledged before said Warner as a notary public for the District of Columbia. As printed in the transcript, that writing shows no seal attached to the signature of Eaton, and the certificate of acknowledgment before the notary is without date. That writing was placed upon record on the 4th of February, 1873; but, for the want of a seal to Eaton's signature, complainants claim that it was ineffective for any purpose. Subsequently to that sale, the Freedman's Savings and Trust Company commenced proceedings in ejectment against McGhan and wife and Clark, to recover possession of the property. The defendants in that action failing to appear, judgment by default was entered against them on Nov. 7, 1872, and, under a writ of possession, McGhan and wife were ejected and the company put in possession of the property.

In 1873, Bradley purchased the same property from the company, and subsequently sold and conveyed it to Shepherd. Eaton died on the 16th of February, 1873, and McGhan died on Oct. 27, 1874.

In this action, commenced April 5, 1875, by Mrs. McGhan, and by Clark, as trustee in the deed already referred to, it is sought to redeem the property sold by Eaton under the deed of June 20, 1872. To that end the complainants, among other things, prayed that the deed from Eaton to the Freedman's Savings and Trust Company, and the subsequent conveyance under which Bradley and Shepherd (who are alleged not to have been bona fide purchasers) claim, be declared null and void, and the notes given by Bradley to that company be cancelled; that an accounting be had of the rents, issues, and profits of the premises, and that the amount thereof be applied on account of the said note of $10,000; and that the lease of the premises may be decreed to inure to the benefit of the complainants.

The court below having dismissed the bill, this appeal has been prosecuted, and the assignments of error present several propositions of law for our consideration. But, in the view we take of the case, it is only necessary to determine the preliminary question already stated, in reference to the validity and effect of the sale at public auction by Eaton, the trustee, on the 1st of July, 1872.

That sale is attempted to be impeached upon several grounds, viz.:--

1. That a proper opportunity was not afforded to persons desirous to purchase the property to bid at the sale; that, had there been, the property would have brought at least $2,000 more.

Upon a careful examination of all the evidence, we find nothing of a positive, substantial character sustaining this position. While there is some little conflict in the evidence as to what occurred upon the occasion of the sale, the overwhelming preponderance of testimony shows that the sale was duly advertised, and was fairly and properly conducted.

2. It is next contended that relief should be given because the price which the property brought was grossly inadequate. That fact alone does not constitute a sufficient reason to impeach the genuineness or validity of the sale. Besides, the inadequacy was not such as to shock the conscience, or raise a presumption of fraud or unfairness. Hill, Trustees, 152, note; Lessee of Cooper v. Galbraith, 3 Wash. C. C. 546; Hubbard v. Jarrell, 23 Md. 66.

3. The sale is assailed upon the further ground that Eaton, at the date of the deed to him, as well as when the sale was made, was the actuary of the Freedman's Savings and Trust Company, and that consequently no sale made by him, under the authority conferred by the deed of June 20, 1870, would cut off the equity of redemption.

Touching this objection, it is sufficient to say that the deed was not made to Eaton in his capacity as an officer of the company, nor did he act in that capacity when exerting the authority conferred upon him. The fact that he held official relations to that company did not incapacitate him from accepting the trust set out in the deed of June 22, 1870, or discharging the duties thereby imposed. It is true that his relations to the company would make it the duty of the court to scrutinize very closely all that he did in the execution of the trust; but we find nothing in the evidence to justify the belief that he acted otherwise than honestly and faithfully in the discharge of his duty. The evidence does not justify the charge that he bid off the property for the company.

What we have said leads to the conclusion that the sale of July 1, 1872, was a valid sale, which the purchaser was entitled to have consummated by a conveyance executed and acknowledged in proper form. It is, therefore, of no consequence in this suit to inquire whether the writing executed by Eaton to the company, in pursuance of the sale made at public auction, was or was not sufficient to pass the title from him.

If he was bound, as we hold that he was, to have executed a sufficient conveyance, the court should not, by granting the relief asked, defeat the sale altogether. An ineffectual attempt, upon the part of Eaton, to consummate the sale does not authorize a decree setting aside the sale, which, as we have said, was in conformity to the deed, and was free from fraud or imposition, or such inadequacy of price as, upon recognized principles of equity, constitutes ground for relief.

Decree affirmed.


text: Talk:Clark v. Trust Company/Opinion of the Court


text:
Hinckley v. Railroad Company

APPEAL from the Circuit Court of the United States for the Southern District of Illinois.

The facts are stated in the opinion of the court.

Mr. G. W. Kretzinger for the appellant.

Mr. R. Biddle Roberts for the appellee.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Hinckley v. Railroad Company


text: Talk:Hinckley v. Railroad Company

title: Talk:Hinckley v. Railroad Company


text:
Hinckley v. Railroad Company/Opinion of the Court

The main features of this case, as presented here on appeal, are embodied in the following statement signed by counsel:--

'To obviate the necessity of examining a large part of the very voluminous record filed in this cause, the following statement is agreed upon between the counsel of the parties to this branch of the case.

'Levi P. Mortion et al., the holders of sundry bonds issued by the Gilman, Clinton, and Springfield Railroad Company, secured by a deed of trust made to Thomas A. Scott and Hugh J. Jewett, as trustees, filed a bill in the Circuit Court of McLean County, State of Illinois, seeking a foreclosure of the trust-deed and a sale of the property for their benefit.

'Shortly prior to the filing of this bill, Joseph J. Kelly had filed a bill as a stockholder of said railroad in the same court, and Francis E. Hinckley, a citizen of Chicago, had been appointed receiver, and continued to discharge the duties of such officer pending the proceedings in both cases against the road.

On June 23, 1875, Thomas A. Scott and Hugh J. Jewett, the trustees named in the deed of trust, came into said Circuit Court of McLean County, and became parties to the said suit of Morton et al. against the railroad; and from that time the litigation was carried on in their names, the receiver still acting in both cases, and reporting to the Circuit Court of McLean County.

'On the thirteenth day of December, 1875, the said cause was removed to the Circuit Court of the United States for the Southern District of Illinois, under the provisions of the act of Congress of March 3, 1875.

'Prior to this, on Aug. 12, 1875, the property was ordered to be turned over to the trustees under the provisions of the mortgage, by order of the Circuit Court of McLean County, and the receiver directed to settle his accounts up to that date; and his accountability as such receiver ceased from the twenty-eighth day of August, 1875, the property having at that time been handed over by him to the agent of the trustees as aforesaid.

'The subsequent proceedings in the Circuit Court of the United States for the Southern District of Illinois aforesaid were carried to completion, the sole parties then in court being the trustees and their cestuis que trust, and the said Gilman, Clinton, and Springfield Railroad Company and its receiver, all other parties having been dismissed from the record. The final decree having been had, and the road having been sold by virtue thereof and a deed for the same duly executed and approved by the said court, and no appeal ever having been prayed.'

The remainder of the record before us consists solely of the proceedings in the Circuit Court of the United States against Hinckley as receiver, to bring him to account, resulting in a decree against him for $18,776.25, from which this appeal is taken.

The first appearance of appellant in the Circuit Court of the United States, as far as this record discloses, is by a report made to that court entitled as of the case of Joseph J. Kelly et al. v. The Gilman, Clinton, and Springfield Railroad Company. In this paper, after showing a balance of $12,799.78, in his hands as receiver, he proceeds to state sundry liabilities of that fund, for which he asks of the court an order that he may pay them. This report was filed March 23, 1876, and on that day an order was made that he pay the sum so admitted to be in his hands into court. It seems, however, that after this the whole matter of the receiver's account was referred to a master, on whose report, after exceptions by the receiver, the decree was rendered which is now under review.

The chief reliance of counsel in this court for a reversal of the decree is upon the proposition that Hinckley was never receiver of any other court but the McLean Circuit Court of Illinois, in the suit in which Kelly and others were plaintiffs, and that he could be called to account only by the court to which he was responsible in that suit.

But the agreed case shows that, shortly after his appointment as receiver in the Kelly suit, the foreclosure suit of Levi P. Morton and others, bondholders, was commenced in the same court, and afterwards adopted by Scott and Jewett, trustees for said bondholders, and that thereafter 'the litigation was carried on in their names, the receiver still acting in both cases, and reporting to the Circuit Court of McLean County.'This is also stated in a previous paragraph.

We can reach no other conclusion from this agreement, in the absence of the record of the McLean Circuit Court on the subject, than that Mr. Hinckley was receiver in the principal case, which was removed into the Federal court. There is other evidence that it was so understood by Hinckley. The order of removal was made Dec. 13, 1875, and on the 23d of March, 1876, we find him reporting, without objection, to that court, and asking for orders in the nature of instructions as to the disposition of the money in his hands. For aught that appears, this report was his own voluntary act, as well as his duty.

Nor does any such objection appear in the exceptions to the master's report, nor was any exception taken to the order of reference.

It does not appear from this record that the Kelly suit was prosecuted any further after the removal of the foreclosure suit into the Federal court, nor do we know enough of its character to decide whether any thing of it was left after the order of removal, or whether its subject-matter was not necessarily removed with the other suit.

No attempt to bring Hinckley to account in the State court is shown.

Being voluntarily in the United States court, in a suit where the funds in his hands might properly be distributed, at least under supposable circumstances, and having money in his hands as receiver in the suit removed into that court, we can see no want of authority to make him account for these funds.

It is also urged that since the agreed facts show that the road had been finally sold and conveyed under the mortgage, the trustees had no right to the money in the receiver's hands. The sufficient answer to this is, that the decree from which this appeal is taken, merely orders the appellant to pay the money into court, and makes no order for its distribution. In that Mr. Hinckley has no interest, and when made it will be for other parties to contest it if they desire.

Two objections are taken by appellant to the statement of the account by the master. The first is that for nearly two years' service the master allowed him only $10,000, whereas he ought to have allowed him $1,000 per month.

The principal witnesses of appellant to sustain this exception are two gentlemen who were themselves receivers of other roads, and thought they rightfully received $900 in one case and $1,000 in the other, per month. Perhaps they were the best judges of the value of their own services; but such is not always the case, and as there is conflicting testimony, and as this is the first time we have been called on to review the allowance made to railroad receivers by the circuit courts, we do not see that the economical administration of insolvent companies will be promoted, or that justice requires a higher standard of compensation than these courts generally give, to whose discretion the subject must be largely remitted.

Appellant also complains that he is wrongfully charged with $4,300 for the use of the money held by him as receiver. It does not very clearly appear how much of this money he so used, or how long he held it. But it does appear that the money as received as deposited in a bank at Springfield to his account as receiver, and that most of it was drawn from there on his check, and deposited to his private account with a bank in Chicago; and when on his examination as a witness he was asked to give explanations of this matter, and to state what sums he had so deposited, he declined to answer. Appellant was dealing with a trust fund. It was his duty to keep this money separate from his own. And if he used a bank for the custody of it, he should have had the account so kept as to show the fund to which it belonged. It was also his unquestionable duty, when called on in a proper case for accounting, as this was, to give all the information he had on the subject. His refusal to answer proper questions is wholly unjustifiable, and leaves his conduct open to criticism as to his motive.

As he had it in his power to furnish the facts on which a just and true account could be stated, and refused to do so, we do not in this appeal feel authorized to reverse the finding of the master and the decree of the Circuit Court.

Decree affirmed.


text: Talk:Hinckley v. Railroad Company/Opinion of the Court


text:
Dow v. Johnson

ERROR to the Circuit Court of the United States for the District of Maine.

The facts are stated in the opinion of the court.

The case was argued by The Attorney-General and Mr. E. B. Smith, Assistant Attorney-General, for the plaintiff in error, and by Mr. Thomas J. Durant for the defendant in error.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Dow v. Johnson


text: Talk:Dow v. Johnson

title: Talk:Dow v. Johnson