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

On the 3d of May, 1873, Murray, the claimant, was appointed to a clerkship of class 1 in the Treasury Department, for a probationary term of three months. At the end of that period, the board of examiners having reported favorably on his fitness for a clerkship of that class, he was, on the 5th of November, reappointed, and assigned to duty in the office of the Commissioner of Internal Revenue from the 3d of that month.

Owing to the abolition by law of the offices of assessor and assistant assessor of internal revenue, in May, 1873, a large additional amount of labor was thrown on the office of the commissioner, to meet which more clerical force became necessary, and was employed during the summer, fall, and winter following. This unusual demand upon the appropriation for clerical service in that office for the year ending June 30, 1874, caused an only partial exhaustion of that appropriation, and created a necessity to dispense with the services of a number of the clerks employed in that office from different dates in January and February, 1874, till the close of the fiscal year. In consequence of that necessity, leave of absence without pay was given some of the clerks until the end of the year. Murray was included among the rest, and his leave dated on the 1st of February. Leave of absence was granted instead of an absolute dismissal from office, as a favor to the clerks, and to give them an opportunity of getting a transfer to some other bureau, if opportunity offered. The order of leave was accompanied by a notice that, if a transfer should not be effected, dismissal would occur at the end of the year.

On the 23d of June, 1874, Congress passed the following joint resolution:--

'That the Secretary of the Treasury be, and he is hereby, authorized to pay, when discharged, two months' pay to such clerks and employees of the executive departments in Washington, D. C., as shall be discharged at the close of the present fiscal year without fault on their part, but by reason of the reductions made necessary by the legislation of the present session of Congress: Provided, that the amount paid under this resolution shall be deducted from the salary of any person receiving the same who shall be reappointed within six months from the date of such discharge.'

Murray performed no service after the date of his furlough, and at the end of the fiscal year was dismissed, with a note from the Secretary of the Treasury as follows:--

'SIR,-The necessity for your services in the office of the Commissioner of Internal Revenue no longer existing, they terminated Jan. 31, 1874, on which date you ceased to serve.'

This suit was brought to recover pay for the time included in the furlough, and also for the two months allowed by the joint resolution of Congress. The Court of Claims being divided in opinion, gave a pro forma judgment for the full amount of the claim, and from that judgment the United States appealed.

To our minds it is clear the judgment below was wrong. While under the regulations of the department an employ e is not entitled to a leave of absence with pay for more than thirty days in any one year, there is nothing to prevent the Secretary from putting him on furlough without pay at any time, if the exigencies of the service require it. He may be dismissed absolutely, and it is difficult to see why, if this can be done, he may not be furloughed without pay, which is in effect a partial dismissal. If he desires to be free from all obligations to serve in the future, he may resign; but if he permits his name to continue on the rolls, it must be on such terms as are imposed by the department. In this case, an extraordinary demand for clerical service caused an early partial exhaustion of the appropriation for the year, and it became necessary to dispense with a part of the force, so as to reduce the expenses of the office. Absolute dismissals were not made, but, as a favor to the clerks, their names were kept on the rolls without pay. Murray remonstrated against what was done, but seems to have preferred the furlough to an absolute discharge. Under these circumstances, having rendered no service, he cannot claim compensation.

Neither do we think the case comes within the provision of the joint resolution of Congress. That resolution contemplated the extra pay only when discharges occurred in consequence of a reduction of clerical force made necessary by the legislation of that session of Congress. It nowhere appears that Murray was discharged on any such account. On the contrary, the fair inference from the findings below is that he was appointed originally on account of the necessary temporary increase of force brought about by the abolition of the offices of assessor and assistant assessor, under a law of the previous session, and that he was discharged because the additional labor was no longer required. He was kept on furlough in order that he might, if possible, effect a transfer to some other branch of the service. This clearly implies that the special work to which he had been assigned was finished. At any rate, it does not appear affirmatively or by any fair implication that his discharge was made necessary on account of any legislation which was had at the session of Congress at which the resolution was adopted.

The judgment of the Court of Claims is reversed, and the cause remanded with instructions to dismiss the petition.

So ordered.


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

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


text:
People v. Weaver

ERROR to the Court of Appeals of the State of New York.

The facts are stated in the opinion of the court.

Mr. George F. Edmunds and Mr. Matthew Hale for the plaintiff in error.

Mr. R. W. Peckham, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: People v. Weaver


text: Talk:People v. Weaver

title: Talk:People v. Weaver


text:
People v. Weaver/Opinion of the Court

The law of the State of New York for taxation in the county of Albany, enacted in the year 1850, contained the following section:--

'SECT. 9. If any person shall, at any time before the assessors shall have completed their assessments, make affidavit that the value of his real estate does not exceed a certain sum, to be specified in such affidavit, or that the value of the personal estate owned by him, after deducting his just debts, and his property invested in the stock of any corporation or association liable to be taxed therefor, does not exceed a certain sum, to be specified in the affidavit, it shall be the duty of the board of assessors to value such real or personal estate, or both, as the case may be, at the sum specified in such affidavit, and no more.'In the year 1866, the legislature of that State enacted on this subject another law, the first section of which reads as follows:--

'SECT. 1. No tax shall hereafter be assessed upon the capital of any bank or banking association organized under the authority of this State or of the United States; but the stockholders in such banks and banking associations shall be assessed and taxed on the value of their shares of stock therein: said shares shall be included in the valuation of the personal property of such stockholder in the asessment of taxes at the place, town, or ward where such bank or banking association is located, and not elsewhere, whether the said stockholder reside in said place, town, or ward or not, but not at a greater rate than is assessed upon other moneyed capital in the hands of individuals in this State. And, in making such assessment, there shall also be deducted from the value of such shares such sum as is in the same proportion to such value as is the assessed value of the real estate of the bank or banking association, and in which any portion of their capital is invested, in which said shares are held, to the whole amount of the capital stock of said bank or banking association. And provided further, that nothing herein contained shall be held or construed to exempt from taxation the real estate held or owned by any such bank or banking association; but the same shall be subject to State, county, municipal, and other taxation to the same extent and rate and in the same manner as other real estate is taxed.'

William J. Weaver, Edward Brennan, and Robert H. Weir, the defendants in error, constituting the board of assessors of the city of Albany for the year 1875, assessed against Chauncey P. Williams, the relator, the sum of $38,250, for taxation on account of shares owned by him in the National Albany Exchange Bank, organized under the general banking act of Congress. He appeared before this board in due time, and demanded the reduction of this sum to the amount of one dollar, and accompanied the demand with this affidavit:--

'CITY AND COUNTY OF ALBANY, ss.:

'I, Chauncey P. Williams, being duly sworn, do depose and say that the value of personal estate owned by me, including my bank stock, after deducting my just debts and my property invested in the stock of corporations or associations liable to be taxed therefor, and my investments in the obligations of the United States, does not exceed the sum of one dollar.

'C. P. WILLIAMS.

'Subscribed and sworn before me, this twenty-eighth day of September, 1875.

'JAMES MAHER, Notary Public.'

The defendants refused to make this deduction; and, under the procedure in the courts of New York, which allows of an amicable suit on an agreed statement of facts, the case finally came to the Court of Appeals of that State. The judgment there being in favor of defendants, the People of the State of New York, on the relation of Williams, bring the record to this court by writ of error. Three questions were raised and decided in the Supreme Court, and its judgment was affirmed in the Court of Appeals. They are thus stated in the record:--

'The case coming on for argument on the submission thereof, after hearing Mr. Hale, of counsel for relator, and Mr. Peckham, of counsel for defendants, the court decides:--

'1st, That it was not the duty of the defendants, as assessors of the city of Albany, to comply with the demand made by said relator, and reduce his assessments to the sum of one dollar, and answer the first question submitted in the negative.

'2d, That, under the law of the State of New York, referred to in the second question, and passed April 23, 1866, the defendants, as such assessors, were justified in refusing to reduce the relator's assessment on his shares of bank stock mentioned in said submission to the sum of one dollar, and answers the second question in the affirmative.

'3d, That the said law of the State of New York, passed April 23, 1866, is not in violation of any law of the United States relating to the amount of taxes on shares of national banking associations, and answers the third question submitted in the negative.

'Judgment is therefore ordered for the defendants against the relator, with costs.'

Of the second of these propositions this court has no jurisdiction, but must accept the decision of the highest court of the State, that the act of 1866 took the money invested in bank shares out of the general provision of the law of 1850, which allowed a deduction of the debts owing by the shareholder from the value of the personal property as a basis for laying the tax. In that respect, we are bound by the decision of the Court of Appeals as the true construction of the State statute. The first proposition is but the necessary result of the case, if the other two are decided in favor of defendants by that court. We have thus left for our consideration the third proposition, which, being decided against a right asserted by plaintiff under the act of Congress establishing the national banking system, presents a question reviewable by this court. We proceed to consider it.

The Court of Appeals delivered no formal opinion in the present case; but, in the entry of their judgment, which is part of the record, they say, 'This judgment is upon the authority of the former decision of this court, rendered in the case of The People v. Dolan and Others, 36 N. Y. 59.'

The opinion in that case is before us. It decides directly the question now presented, and, if sound, justifies the judgment of the court in this case. We have given it the careful consideration which the high character of the court demands at out hands. The question arises on the provision of the national bank law concerning taxation of the shares of the banks, which is thus expressed in sect. 5219 of the Revised Statutes, in force at the time of this assessment:--

'Nothing herein shall prevent all the shares in any association from being included in the valuation of personal property of the owner or holder of such shares, in assessing taxes imposed by authority of the State within which the association is located,. . . subject only to the two restrictions, that the taxation shall not be at a greater rate than is assessed upon other money capital in the hands of individual citizens of such State, and that the shares of any national banking association owned by non-residents of any State shall be taxed in the city or town where the bank is located, and not elsewhere.'

It cannot be disputed,-it is not disputed here,-nor is it denied in the opinion of the State court, that the effect of the State law is to permit a citizen of New York, who has money capital invested otherwise than in banks, to deduct from that capital the sum of all his debts, leaving the remainder alone subject to taxation, while he whose money is invested in shares of bank stocks can make no such deduction. Nor, inasmuch as nearly all the banks in that State and in all others are national banks, can it be denied that the owner of such shares who owes debts is subjected to a heavier tax on account of those shares than the owner of moneyed capital otherwise invested, who also is in debt, because the latter can diminish the amount of his tax by the amount of his indebtedness, while the former cannot. That this works a discrimination against the national bank shares as subjects of taxation, unfavorable to the owners of such shares, is also free from doubt. The question we are called to decide is, whether Congress, in passing the act which subjected these shares to taxation by the State, intended, by the very clause which was designed to prevent discrimination between national bank shares and other moneyed capital, to authorize such a result.

That the provision which we have cited was necessary to authorize the States to impose any tax whatever on these bank shares, is abundantly established by the cases of McCulloch v. The State of Maryland, 4 Wheat. 316; Osborn v. Bank of the United States, 9 id. 738; Weston v. The City Council of Charleston, 2 Pet. 449.

As Congress was conferring a power on the States which they would not otherwise have had, to tax these shares, it undertook to impose a restriction on the exercise of that power, manifestly designed to prevent taxation which should discriminate against this class of property as compared with other moneyed capital. In permitting the States to tax these shares, it was foreseen-the cases we have cited from our former decisions showed too clearly that the State authorities might be disposed to tax the capital invested in these banks oppressively.

This might have been prevented by fixing a precise limit in amount. But Congress, with due regard to the dignity of the States, and with a desire to interfere only so far as was necessary to protect the banks from any thing beyond their equal share of the public burdens, said, you may tax the real estate of the banks as other real estate is taxed, and you may tax the shares of the bank as the personal property of the owner to the same extent you tax other moneyed capital invested in your State. It was conceived that by this qualification of the power of taxation equality would be secured and injustice prevented.

That such was the intent of Congress can admit of no doubt. Have they given expression to that intent so that courts can see and enforce it, or have they expressed themselves so unfortunately that the States may, by a narrow interpretation of the act of Congress and by skilfully framed statutes of their own, exercise the power thus granted so as not only to reap its full benefit, but at the same time cause the burden of supporting the State government to fall with unequal weight on the subject of taxation thus surrendered to it by the national government?

The argument by which this view is supported is founded on the assumption that while Congress limited the State authorities in reference to the ratio or percentage levied on the value of these shares, which could not be greater than on other moneyed capital invested in the State, it left the matter of the relative valuation of the shares and of other moneyed capital wholly to the control of State regulation. The State can, therefore, adopt any arbitrary or conventional system of valuation as a basis of taxation, however unequally or unjustly it may operate and however it may discriminate against bank shares, provided the percentage of the tax levied in this valuation is the same in all cases. If, for instance, the tax is two per cent on all personal property, the argument is, that the act of Congress is not violated if the valuation on the money of the citizen invested in State bonds is, by statute, one-half its real value, and that on bank shares is its full value, or, as in the statute of the State now under consideration, the taxpayer is allowed an exemption from taxation in whole or in part, as regards his State bonds, while none is allowed in reference to bank shares.

'Taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individuals.' Seizing upon the word 'rate' in this sentence as if disconnected from the word 'assessment,' and construing it to mean percentage on any valuation that might be made, the Court of Appeals arrive at the conclusion that, since that percentage is the same in all cases, that act of Congress is not infringed. If this philological criticism were perfectly just, we still think the manifest purpose of Congress in passing this law should prevail. We have already shown what that was. But the criticism is not sound. The section to be construed begins by declaring that these shares may be 'included in the valuation of the personal property of the owner, in assessing taxes imposed by authority of the State within which the association is located.' This valuation, then, is part of the assessment of taxes. It is a necessary part of every assessment of taxes which is governed by a ratio or percentage. There can be no rate or percentage without a valuation. This taxation, says the act, shall not be at a greater rate than is assessed on other moneyed capital. What is it that shall not be greater? The answer is, taxation. In what respect shall it be not greater than the rate assessed upon other capital? We see that Congress had in its mind an assessment, a rate of assessment, and a valuation; and, taking all these together, the taxation on these shares was not to be greater than on other moneyed capital.

'When taxes have been properly decided upon, an assessment may become an indispensable proceeding in the establishment of any individual charge, against either person or property. This is always requisite when the taxes are to be levied in proportion to an estimate either of values, of benefits, or the results of business.' 'An assessment, strictly speaking, is an official estimate of the sums which are to constitute the basis of an apportionment of a tax between the individual subjects of taxation within the district. As the word is more commonly employed, an assessment consists in the two processes listing the persons, property, &c., to be taxed, and of estimating the sums which are to be the guide in an apportionment of the tax between them. . . . Taxation by valuation cannot be apportioned without it.' Cooley, Taxation, 258, 259; Burroughs, Taxation, p. 198, sect. 94. So, also, Judge Bouvier defines assessment to be determining the value of a man's property or occupation for the purpose of levying a tax. Determining the share of a tax to be paid by each individual. Levying a tax. 1 Bouvier, 154. These definitions show that in the best use of the language employed by Congress we are justified in looking to the rule of valuation adopted by the State in assessing taxes on these shares, as well as to the uniformity of percentage to ascertain whether the congressional restriction has been violated.

It is said, however, that the judgment of the State court is supported by the decision of this court in People v. The Commissioners, 4 Wall. 244. The specific question now before us was not involved in that case. The only matter before the court was whether the holder of the bank shares was entitled to deduct from their value a due proportion of the sum which the bank had invested in government bonds. This was decided in the negative, and it is all that was decided, or could be decided. The sentence in Mr. Justice Nelson's opinion, on which the argument is founded, reads thus: 'The answer is, that, upon a true construction of this clause of the act, the meaning and intent of the law makers were that the rate of taxation of the shares should be the same, or not greater, than upon the moneyed capital of the individual citizen which is subject or liable to taxation. That is, no greater proportion or percentage of tax in the valuation of the shares should be levied than upon other moneyed taxable capital in the hands of the citizens.'

If we give to the phrase 'rate of taxation' in this sentence no more than its proper force, and if we observe that the learned judge speaks of the proportion or percentage in the valuation, not on it, as it is misquoted, we have the idea which we have already supposed to be the true one in the minds of the law makers. However this may be, we feel quite sure that the question of limiting the effect of the act of Congress to a discrimination in the percentage levied as a tax, without regard to equality in the valuation on which that tax was levied, was not before the court, and was not intended to be decided. And in our view such a proposition is untenable.

We are, therefore, of opinion that the statute of New York, as construed by the Court of Appeals, in refusing to plaintiff the same deduction for debts due by him, from the valuation of his shares of national bank stock, that it allows to those who have moneyed capital otherwise invested, is in conflict with the act of Congress, and the judgment of that court will be reversed and the case remanded for further proceedings in conformity to this opinion.

So ordered.

title: People v. Weaver/Opinion of the Court


text: Talk:People v. Weaver/Opinion of the Court


text:
Williams v. Weaver

ERROR to the Court of Appeals of the State of New York.

The facts are stated in the opinion of the court.

Mr. George F. Edmunds and Mr. Matthew Hale for the plaintiff in error.

Mr. R. W .Peckham, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Williams v. Weaver


text: Talk:Williams v. Weaver

title: Talk:Williams v. Weaver


text:
Williams v. Weaver/Opinion of the Court

This suit, though between Williams, the relator in the preceding case, and the same defendants as there, and coming before us, by writ of error to the same court, is of a very different character. The plaintiff seeks to hold the defendants individually liable for the sum which he was compelled to pay as taxes on shares of national bank stock, by reason of the wrongful assessment for the year 1874, made by them in their official character as the board of assessors for the city of Albany.

The errors in assessments complained of are numerous and of a varied character, most of them having relation to an improper discrimination to the prejudice of the rights of the plaintiff and his assignors, as holders of such shares.

The Court of Appeals, in its opinion, conceding the assessment to be in many respects erroneous and to the prejudice of plaintiff, holds that, in the absence of fraud or intentional wrong, the defendants were not personally liable in damages for any error in the assessment. Whether that court decided that question correctly or not, it is not a Federal question, but one of general municipal law, to be governed either by the common law or the statute law of the State. In either case it presents no question on which this court is authorized to review the judgment of a State court.

That decision is also conclusive of the whole case. If the defendants, in assessing property for taxation, incur no personal liability for any error they may commit, the fact that the error consisted in a misconstruction of an act of Congress can make no difference. An officer whose duty personally, as the Court of Appeals of New York holds, is mainly judicial, is no more liable for a mistaken construction of an act of Congress than he would be for mistaking the common law or a State statute.

We may observe, also, that the Federal right mainly relied on here as having been violated, namely, the right to have plaintiff's indebtedness deducted from the valuation of his bank shares, was not raised, because he did not, as in the previous case, make the necessary affidavit and demand.

On the whole, there is no error which this court can review.

Judgment affirmed.

title: Williams v. Weaver/Opinion of the Court


text: Talk:Williams v. Weaver/Opinion of the Court


text: Newton v. Commissioners

title: Newton v. Commissioners


text:
United States Code/Title 42/Chapter 85/Section 7427

§ 7427. Public notification CAA § 127

(a) Warning signs; television, radio, or press notices or information
Each State plan shall contain measures which will be effective to notify the public during any calendar on a regular basis of instances or areas in which any national primary ambient air quality standard is exceeded or was exceeded during any portion of the preceding calendar year to advise the public of the health hazards associated with such pollution, and to enhance public awareness of the measures which can be taken to prevent such standards from being exceeded and the ways in which the public can participate in regulatory and other efforts to improve air quality. Such measures may include the posting of warning signs on interstate highway access points to metropolitan areas or television, radio, or press notices or information.

(b) Grants
The Administrator is authorized to make grants to States to assist in carrying out the requirements of subsection (a) of this section.


text: Talk:Newton v. Commissioners

title: Talk:Newton v. Commissioners


text:
Newton v. Commissioners/Opinion of the Court

ERROR to the Supreme Court of the State of Ohio.

The controversy relates to the removal of a county seat in Ohio from one town to another.

The case, briefly stated, is this: On Feb. 16, 1846, the General Assembly of that State passed 'An Act to create the county of Mahoning.' The first section creates the county and defines its boundaries, including among other towns Canfield and Youngstown, and declares that it 'shall be known by the name of Mahoning, with the county seat at Canfield.'

The fifth and eighth sections are as follows:--

'SECT. 5. That the Court of Common Pleas and Supreme Court of said county shall be holden at some convenient house in the town of Canfield until suitable county buildings shall be erected.'

'SECT. 8. That before the seat of justice shall be considered permanently established at Canfield, the proprietors or citizens thereof shall given bond with good and sufficient security, payable to the commissioners of said county, hereafter to be elected, for the sum of $5,000, to be applied in erecting public buildings for said county, and that the citizens of Canfield shall also donate a suitable lot of ground on which to erect public buildings.'

To secure the permanent establishment of the county seat at Canfield, numerous citizens of that town,-some of whom are plaintiffs in this suit,-in compliance with the provisions of said sect. 8, duly executed their bond for $5,000, which was accepted by the county commissioners. A suitable lot of ground on which to erect the county buildings was also, by their procurement, conveyed to the county.

Thereupon said citizens erected on the lot a commodious court-house suitable for the transaction of the public business of the county, at a cost of more than $10,000, which, on June 29, 1848, the commissioners accepted in behalf of the county, in full satisfaction of the bond, and as a full compliance with said sect. 8; and thenceforward the court-house was used as a seat of justice, and Canfield continued to be the county seat of the county.

April 9, 1874, the General Assembly of the State of Ohio passed the following act:--

'An Act to provide for the removal of the seat of justice of Mahoning County from the town of Canfield to the city of Youngstown in said county.

'SECT. 1. Be it enacted by the General Assembly of the State of Ohio, that from and after taking effect of this section of this act as hereafter provided, the seat of justice in the county of Mahoning shall be removed from the town of Canfield, and shall be fixed, until otherwise provided by law, at the city of Youngstown, in said county.

'SECT. 2. That the foregoing section of this act shall take effect and be in force when and so soon as the same shall be adopted by a majority of all the electors of said Mahoning County, voting at the next general election after the passage thereof, and when suitable buildings shall have been erected, as hereinafter provided.

'SECT. 3. That the electors of said Mahoning County, at the next general election after the passage of this act, shall indorse or otherwise place on their tickets either the words 'for removal' or 'against removal;' and if a majority of all the electors of said Mahoning County, voting at said election, shall vote for removal, the first section of this act shall thereafter be considered and holden to be adopted by such majority: Provided, that all tickets upon which the words 'for removal' shall not be indorsed or otherwise placed shall be taken and considered as votes 'against removal' as fully as though the words 'against removal' were indorsed or otherwise placed thereon.

'SECT. 4. That judges and clerks of election in the several townships, wards, and voting precincts in said county at the said general election shall cause all votes that may be so given for or against removal to be correctly counted, in doing which, all tickets upon which the words 'for removal' are not indorsed or otherwise placed shall be counted as votes 'against removal,' and shall enter and certify in their respective poll-books of said general election the number of votes so counted for as well as against such removal, which poll-books shall be returned and opened as required by the act regulating said general election and the opening of the returns thereof; and the officers opening the same shall, at the same time they make, certify, and sign the abstracts required by law, also make, certify, and sign a separate abstract of all votes so returned for or against removal, showing the number so given in each township, and the footings or aggregate number given in all the townships, which abstract shall be forthwith deposited in the clerk's office of said county, and be by him forthwith recorded in the journal of the Court of Common Pleas of said county, which record, or a duly certified copy thereof, shall be taken and received as evidence for all purposes as the result of said election.

'SECT. 5. That in case a majority of the electors of said county of Mahoning shall vote 'for removal,' as heretofore provided, the seat of justice and county seat shall be deemed and taken to be removed from Canfield in said county to the city of Youngstown in said county, and to be located at said city of Youngstown: Provided, however, that nothing in the act shall be so construed as to authorize the removal of said seat of justice to the city of Youngstown, until the citizens of the city and township of Youngstown, and of sufficient size and suitably located to accommodate the court-house, jail, and necessary offices for said county, and shall have erected thereon, or shall have caused to have erected thereon, and completed thereon, suitable buildings for court-house, jail, and all offices and rooms necessary for the transaction of all the public business of said county, at a cost for said buildings of not less than $100,000, and to the satisfaction and acceptance of the commissioners of said county, and all such buildings shall be fully completed within two years from the date of the election at which this act shall be ratified, and said commissioner shall not, nor shall any other authority of said county, levy any tax on the taxable property of said county for said land or building: Provided, that the citizens of Youngstown may, within said two years, build said public buildings, and tender the same to said county commissioners.

'SECT. 6. It shall be the duty of the sheriff or coroner, as the case may be, to cause proclamation to be made to the qualified electors of said county of the time of holding said election, in the same manner as by law he is required to do in other elections, notifying said electors to vote as aforesaid on the question by which this act is submitted to them.

'SECT. 7. The sections of this act subsequent to the first section shall take effect and be in force from and after their passage.'At the next general election a majority of votes cast in the county was in favor of the removal.

Thereupon Newton, and a number of other citizens of the town of Canfield, filed their petition in the Court of Common Pleas for Mahoning County praying for an injunction restraining the board of county commissioners from removing the county seat to Youngstown. The court denied the injunction and dismissed the petition. That decision having been affirmed by the Supreme Court of the State, the petitioners brought the case here.

Mr. James A. Garfield for the plaintiffs in error.

The question for the determination of the court in this case is whether the act of the General Assembly of Ohio of Feb. 16, 1846, worked a contract for the permanent location of the county seat at Canfield. Ohio Life Insurance and Trust Co. v. Debolt, 16 How. 416. The rule that legislative grants and contracts are to be construed most favorably to the State does not tolerate the defeating of the grant or contract by any hypercritical construction. The Binghampton Bridge, 3 Wall. 51. Laws which amount to a proposition on the part of the State become, when accepted by individuals, binding contracts. Cooley, Const. Lim. 284; Woodruff v. Trapnall, 10 How. 190; State Bank of Ohio v. Knoop, 16 id. 369; Furman v. Nichol, 8 Wall. 44; New Jersey v. Yard, 95 U.S. 104.

The strength of the case of the plaintiffs in error lies in the fact that it is an exception to the general policy of the State in relation to the location of county seats,-a privilege, franchise, or property secured to them by a positive stipulation for a specified consideration paid to and appropriated by the State for the public benefit. Such, then, being the nature of the contract,-there being in 1846 no limitation on the power of the legislature to make it except what is claimed to be implied as necessary to the preservation of the government,-it cannot be excluded from the protection afforded by the Constitution of the United States to other contracts made by a State with its citizens. Dartmouth College v. Woodward, 4 Wheat. 518; Farrington v. Tennessee, 95 U.S. 679; New Jersey v. Yard, supra.

That the eighth section of the act, when complied with by the citizens of Canfield, constituted a contract between them and the State for the permanent location or establishment of the county seat at that place, is beyond controversy. The contract arises out of the very words of the enactment, and the inducement held out to the citizens was to make the location permanent, upon the performance by them of the specified conditions. New Jersey v. Yard, supra.

Permanency both in the consideration and in the location of the county seat was contemplated and stipulated for by the parties. Commissioners of Lucas County v. Hunt 5 Ohio St. 496.

The power of the legislature to make the contract on behalf of the State cannot be denied. Ohio Life Insurance and Trust Co. v. Debolt, supra; Slaughter-House Cases, 16 Wall. 36; Matheny v. Golden, 5 Ohio St. 361; State Bank of Ohio v. Knoop, supra.

The case of East Hartford v. Hartford Bridge Company (10 How. 511), relied on by the defendants in error, has no application here. There the question turned on the public character of the parties to the grant.

Mr. Thomas W. Sanderson for the defendants in error.

I. If the act of February, 1846, under which the plaintiffs assert their right, did in terms amount to or express a contract or a grant, as they claim, then to that extent it was unconstitutional and void under the Constitution of the State of Ohio in force at the time of its enactment. Constitution of Ohio of 1802, art. 7, sect. 3.

1. The Supreme Court of Ohio recognize the right to remove county seats as one conferred by the Constitution of the State. State v. Choate, 11 Ohio, 512; Commissioners of Putnam County v. Auditor, &c., 1 Ohio St. 324; ''Ohio, ex rel. Evans, v. Dudley'', id. 445.

2. The legislature of Ohio claimed the same constitutional right and power, and continuously exercised it from the organization of the State during the existence of the Constitution of 1802. 9 Ohio Local Laws, 10; 3 Chase, Stats. 2101; 22 Ohio Local Laws, 44; 16 id. 93; 31 id. 199.

3. The construction of the Supreme Court and of the General Assembly of the State, as to the existence and scope of the power of removing seats of justice, will not be reviewed here. Pennsylvania College Cases, 13 Wall. 190; Railroad Company v. Georgia, 98 U.S. 359.

4. The General Assembly, in enacting a mere local law, could not, by any contract or grant created thereby or arising therefrom, abrogate or repeal the constitutional power to remove seats of justice.

5. That power, existing at the time of the passage of the act of 1846, entered into and became a part of any contract or grant intended to arise from the act; and all parties were bound thereby. Beer Company v. Massachusetts, 97 U.S. 25; Peck v. Weddell, 17 Ohio St. 275.

6. The cases decided in the Supreme Court of Ohio, and in this court, known as the 'Tax Cases,' do not conflict with the foregoing. Matheny v. Golden, 5 Ohio St. 361; State Bank of Ohio v. Knoop, 16 How. 369; Gorden v. The Appeal Tax Court, 3 id. 133; Ohio Life Insurance and Trust Co. v. Debolt, 16 id. 416; New Jersey v. Yard, 95 U.S. 104; Farrington v. Tennessee, id. 679. In all these cases, that exemptions or partial exemptions from taxation were, by statutes, uniformly held to be valid and authorized by the State Constitutions; whereas, in the case at bar, it is claimed that whatever characteristic of immovability was attempted to be impressed upon the county seat at Canfield was unconstitutional.

7. The constitutional power of removal was wholly inconsistent with that of rendering a county seat immovable. The two repugnant powers could not exist in the same constitution.

II. The creation, maintenance, and regulation of courts, including the times and places of holding them, their removal from one place to another, to answer the public convenience or necessities, are matters connected with the police power of the State; and she cannot divest herself of the right, at any time, to exercise such power.

1. What is the extent and scope of the police power of the State? Beer Company v. Massachusetts, supra, and cases there cited; Fertilizing Company v. Hyde Park, 97 U.S. 659.

2. Courts, and the power to establish and locate them, are necessary adjuncts to an unrestricted exercise of the police power of the State, and the power to create and maintain implies the power to remove them. The same may be said of jails and other prisons.

3. If in the exercise of this power valuable rights or franchises which have been conferred by valid enactment are destroyed or divested, no compensation can be claimed. Sedgwick, Stat. and Const. Law, 533, 534; 2 Dillon, Mun. Corp., sects. 93, 455; Boyd v. Alabama, 94 U.S. 645.

III. The word 'permanently,' as used in the eighth section of the act of Feb. 16, 1846, had, at the time of the passage of the act, a well-defined legislative signification.

1. It had been used to denote the manner of the location of more than thirty-five county seats in the State before that time. 3 Chase, Stats. 2100-2146.

2. Many of the seats of justice thus permanently located, by special acts of the General Assembly, were subsequently removed by similar special enactments. 63 Ohio Laws, 58; 58 id. 10; 5 Ohio St. 490.

IV. Was any contract or grant made or intended by the legislature of 1846, by the terms of the enactment in question?

1. The rule of construction to be adopted in order to construe the act is stated in Charles River Bridge v. Warren Bridge, 11 Pet. 420; Jefferson Branch Bank v. Skelly, 1 Black, 446; Ohio Life Insurance and Trust Co. v. Debolt, 16 How. 416; The Binghampton Bridge, 3 Wall. 51; Fertilizing Company v. Hyde Park, 97 U.S. 659.

2. The intent of the General Assembly was to do, by the act of Feb. 16, 1846, the same thing as would have been done under the General Statutes, by commissioners. 1 Chase, Stats. 353; 2 id. 1080; 2 Swan & Critch. Stats. of Ohio.

V. The defendant further claims that no contract or grant was created by the act of 1846, for the reason that there were no persons, party, or parties, that could legally accept a grant, or become a party or parties to a contract of the kind asserted. ''Jackson, ex dem. Cooper, v. Cory'', 8 Johns. 385.

VI. What is a county? C. W. & Z. R. R. Co. v. Commissioners, &c., 1 Ohio St. 77; Commissioners of Hamilton County v. Mighels, 7 id. 109; Hunter et al. v. Commissioners, &c., 10 id. 515; Boalt et al. v. Commissioners, &c., 18 Ohio, 16; Granger v. Pulaski, &c., 26 Ark. 37; McKim v. Odom, 3 Blandf. 407; St. Louis v. Allen, 13 Mo. 400; Maryland v. B. & O. R. R. Co., 3 How. 534; Laramie County v. Albany County et al., 92 U.S. 307.

VII. The contract or grant claimed by plaintiffs is not within the protection of sect. 10 of art. 1 of the Constitution of the United States. Dartmouth College Case, 4 Wheat. 518; East Hartford v. Hartford Bridge Co., 10 How. 511; Charles River Bridge v. Warren Bridge, 11 Pet. 547, 548; Butler v. Pennsylvania, 10 How. 416; Trustees, &c. v. Rider, 13 Conn. 87; The People v. Roper, 35 N. Y. 629; Billings v. Hall, 7 Cal. 1; Dingman v. People, 51 Ill. 277; Armstrong v. Commissioners, &c., 4 Blackf. (Ind.) 208; Alley v. Denson, 8 Tex. 297; Adams v. Logan, 11 Ill. 336; Harris v. Shaw, 13 id. 456; Hambrick v. House, 17 Ga. 56; Muses v. Kearney, 31 Ark. 261; Philadelphia v. Fox, 64 Penn. 180; Story, Com. Const., sects. 1392, 1393; Cooley, Const. Lim. 101, 203; Twiford v. Alamakee County, 4 Greene (Iowa), 60; Terrett v. Taylor, 9 Cranch, 51; Attorney-General v. Supervisors, & c., 33 Mich. 289.

MR. JUSTICE SWAYNE delivered the opinion of the court.

It is claimed in behalf of the plaintiffs in error that the act of the 16th of February, 1846, and what was done under it, constituted an executed contract which is binding on the State; and that the act of April 9, 1874, and the steps taken pursuant to its provisions, impair the obligation of that contract, and bring the case within the contract clause of the Constitution of the United States. Art. 1, sect. 10.

These allegations are the ground of our jurisdiction. They present the only question argued before us, and our remarks will be confined to that subject.

The case may be properly considered under two aspects:--

Was it competent for the State to enter into such a contract as is claimed to have been made?

And if such a contract were made, what is its meaning and effect?

Undoubtedly, there are cases in which a State may, as it were, lay aside its sovereignty and contract like an individual, and be bound accordingly. Curran v. State of Arkansas, 15 How. 304; Davis v. Gray, 16 Wall. 203.

The cases in which such contracts have been sustained and enforced are very numerous. Many of them are cases in which the question was presented whether a private act of incorporation, or one or more of its clauses, is a contract within the meaning of the Constitution of the United States. There is no such restraint upon the British Parliament. Hence the adjudications of that country throw but little light upon the subject.

The Dartmouth College Case was the pioneer in this field of our jurisprudence.

The principle there laid down, and since maintained in the cases which have followed and been controlled by it, has no application where the statute in question is a public law relating to a public subject within the domain of the general legislative power of the State, and involving the public rights and public welfare of the entire community affected by it. The two classes of cases are separated by a broad line of demarcation. The distinction was forced upon the attention of the court by the argument in the Dartmouth College Case. Mr. Chief Justice Marshall said:--

'That anterior to the formation of the Constitution, a course of legislation had prevailed in many, if not in all, of the States, which weakened the confidence of man in man, and embarrassed all transactions between individuals, by dispensing with a faithful performance of engagements. To correct this mischief by restraining the power which produced it, the State legislatures were forbidden 'to pass any law impairing the obligation of contracts;' that is, of contracts respecting property, under which some individual could claim a right to something beneficial to himself; and that since the clause in the Constitution must, in construction, receive some limitation, it may be confined, and ought to be confined, to cases of this description,-to cases within the mischief it was intended to remedy.

'The general correctness of these observations cannot be controverted. That the framers of the Constitution did not intend to restrain the States in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us is not to be so construed, may be admitted. The provision of the Constitution never has been understood to embrace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice. It never has been understood to restrict the general right of the legislature to legislate on the subject of divorces. . . . If the act of incorporation be a grant of political power, if it create a civil institution to be employed in the administration of the government, or if the funds of the college be public property, or if the State of New Hampshire, as a government, be alone interested in its transactions, the subject is one in which the legislature of the State may act according to its own judgment, unrestrained by any limitation of its power imposed by the Constitution of the United States.'

The judgment of the court in that case proceeded upon the ground that the college was 'a private eleemosynary institution, endowed with a capacity to take property for purposes unconnected with the government, whose funds are bestowed by individuals on the faith of the charter.'

In the later case of East Hartford v. The Hartford Bridge Company (10 How. 511), this court further said: 'But it is not found necessary for us to decide finally on this first and most doubtful question, as our opinion is clearly in favor of the defendant in error on the other question; namely, that the parties to this grant did not by their charter stand in the attitude towards each other of making a contract by it, such as is contemplated in the Constitution, and so could not be modified by subsequent legislation. The legislature was acting here on the one part, and public municipal corporations on the other. They were acting, too, in relation to a public object, being virtually a highway across the river, over another highway up and down the river. From this standing and relation of these parties, and from the subject-matter of their action, we think that the doings of the legislature as to this ferry must be considered rather as public laws than as ''contracts. They related to public interests''. They changed as those interests demanded. The grantees likewise, the towns being mere organizations for public purposes, were liable to have their public powers, rights, and duties modified or abolished at any moment by the legislature. . ..

'It is hardly possible to conceive the grounds on which a different result could be vindicated, without destroying all legislative sovereignty, and checking most legislative improvements and amendments, as well as supervision over its subordinate public bodies.'

The legislative power of a State, except so far as restrained by its own constitution, is at all times absolute with respect to all offices within its reach. It may at pleasure create or abolish them, or modify their duties. It may also shorten or lengthen the term of service. And it may increase or diminish the salary or change the mode of compensation. Butler et al. v. Pennsylvania, 10 How. 402.

The police power of the States, and that with respect to municipal corporations, and to many other things that might be named, are of the same absolute character. Cooley, Const. Lim., pp. 232, 342; The Regents v. Williams, 4 Gill & J. (Md.) 321.

In all these cases, there can be no contract and no irrepealable law, because they are 'governmental subjects,' and hence within the category before stated.

They involve public interests, and legislative acts concerning them are necessarily public laws. Every succeeding legislature possesses the same jurisdiction and power with respect to them as its predecessors. The latter have the same power of repeal and modification which the former had of enactment, neither more nor less. All occupy, in this respect, a footing of perfect equality. This must necessarily be so in the nature of things. It is vital to the public welfare that each one should be able at all times to do whatever the varying circumstances and present exigencies touching the subject involved may require. A different result would be fraught with evil.

All these considerations apply with full force to the times and places of holding courts. They are both purely public things, and the laws concerning them must necessarily be of the same character.

If one may be bargained about, so may the other. In this respect there is no difference in principle between them.

The same reasoning, pushed a step farther in the same direction, would involve the same result with respect to the seat of government of a State.

If a State capital were sought to be removed under the circumstances of this case with respect to the county seat, whatever the public exigencies, or the force of the public sentiment which demanded it, those interested, as are the plaintiffs in error, might, according to their argument, effectually forbid and prevent it; and this result could be brought about by means of a bill in equity and a perpetual injunction.

It is true a State cannot be sued without its consent, but this would be a small obstacle in the way of the assertion of so potent a right. Though the State cannot be sued, its officers, whose acts were illegal and void, may be. Osborn v. Bank of the United States, 9 Wheat. 738; Davis v. Gray, 16 Wall. 203.

A proposition leading to such consequences must be unsound. The parent and the offspring are alike. Armstrong v. The Commissioners (4 Blackf. (Ind.) 208) was, in some of its features, not unlike the case before us. The act declared that 'so soon as the public buildings are completed in the manner aforesaid, at the place designated, the same shall be for ever thereafter the permanent seat of justice of said county of Dearborn.' Certain private individuals there, as here, had stipulated to build a court-house, and their compliance was a condition precedent. The condition had been performed. It was held that 'the act did not create a contract.' The subject was fully considered. It was held further, that a subsequent legislature might competently pass an act for the removal of the county seat so established. In that case, both had been done and both were sustained. The reasoning of the court was substantially the same with ours touching the eighth section of the act of 1846 here in question. Elwell and Others v. Tucker (1 id. 285) was also a case arising out of the removal of a county seat. The court said, 'the establishment of the time and place of holding courts is a matter of general legislation, respecting which the act of one session of the General Assembly cannot be binding on another.' See also Adams v. The County of Logan, 11 Ill. 336, and Bass v. Fanthroy, 11 Tex. 698. They are to the same effect.

Secondly, But conceding, for the purposes of this opinion, that there is here a contract, as claimed by the plaintiffs in error, then the question arises, What is the contract; or, in other words, to what does it bind the State?

The rules of interpretation touching such contracts are well settled in this court. In Tucker v. Ferguson (22 Wall. 527) we said: 'But the contract must be shown to exist. There is no presumption in its favor. Every reasonable doubt should be resolved against it. Where it exists, it is to be rigidly scrutinized, and never permitted to extend either in scope or duration beyond what the terms of the concession clearly require.' There must have been a deliberate intention clearly manifested on the part of the State to grant what is claimed. Such a purpose cannot be inferred from equivocal language. Providence Bank v. Billings, 4 Pet. 514; Gilman v. City of Sheboygan, 2 Black, 510.

It must not be a mere gratuity. There must be a sufficient consideration, or, no matter how long the alleged right has been enjoyed, it may be resumed by the State at its pleasure. Christ Church v. Philadelphia, 24 How. 300. No grant can be raised by mere inference or presumption, and the right granted must be clearly defined. Charles River Bridge v. Warren Bridge, 11 Pet. 420.

'The rule of construction in this class of cases is that it shall be most strongly against the corporation. Every reasonable doubt is to be resolved adversely. Nothing is to be taken as conceded but what is given in unmistakable terms or by an implication equally clear. The affirmative must be shown. Silence is negation, and doubt is fatal to the claim. This doctrine is vital to the public welfare. It is axiomatic in the jurisprudence of this court.' Fertilizing Company v. Hyde Park, 97 U.S. 659.

The eighth section of the act of 1846 declares, 'That before the seat of justice shall be considered permanently established at the town of Canfield, the proprietors or citizens thereof shall' do certain things,-all of which, it is admitted, were done in due time. This is the whole case of the plaintiffs in error. It will be observed that there is nothing said about the county seat remaining, or being kept, at Canfield for ever, or for any specified time, or 'permanently.' At most, the stipulation is that it shall be considered as permanently established there when the conditions specified are fulfilled. If the legislature had intended to assume an obligation that it should be kept there in perpetuity, it is to be presumed it would have said so. We cannot certainly not in this case-interpolate into the statute a thing so important, which it does not contain. The most that can be claimed to have been intended by the State is, that when the conditions prescribed were complied with, the county seat should be then and thereupon 'permanently established' at the designated place. We are, therefore, to consider what is the meaning of the phrase 'permanently established.' Domicile is acquired by residence and the animus manendi, the intent to remain. A permanent residence is acquired in the same way. In neither case is the idea involved that a change of domicile or of residence may not thereafter be made. But this in no wise affects the pre-existing legal status of the individual in either case while it continues. So the county seat was permanently established at Canfield when it was placed there with the intention that it should remain there. This fact, thus complete, was in no wise affected by the further fact that thirty years later the State changed its mind and determined to remove, and did remove, the same county seat to another locality. It fulfilled at the outset the entire obligation it had assumed. It did not stipulate to keep the county seat at Canfield perpetually, and the plaintiffs in error have no right to complain that it was not done. Keeping it there is another and a distinct thing, in regard to which the eighth section of the act is wholly silent. In Mead v. Ballard (7 Wall. 290), land was conveyed on the 9th of August, 1848, 'upon the express understanding and condition 'that a certain institution of learning then incorporated 'shall be permanently located on said land,' between the date of the deed and the same day in the succeeding year. The trustees passed a resolution, within the year, locating the institution on the premises, and at once contracted for the erection of the necessary buildings. The buildings were completed, and the institution was in full operation by November, 1849.

In the year 1857 the buildings were destroyed by fire and were not rebuilt. A part of the land was sold by the grantee. The heir of the grantor sued in ejectment to recover the premises. This court, speaking by Mr. Justice Miller, said: 'It is clear to us. . . that when the trustees passed their resolution locating the buildings on the land, with the intention that it should be the permanent place of conducting the business of the corporation, they had permanently located the institution, within the true construction of the contract. Counsel for the plaintiff attach to the word 'permanent' a meaning inconsistent with the obvious intent of the parties,-that the condition was one which might be fully performed within a year. Such a construction is something more than a condition to locate. It is a covenant to build and rebuild; a covenant against removal at any time; a covenant to keep up an institution of learning on that land for ever, or for a very indefinite time. This could not have been the intention of the parties.'

In Harris v. Shaw (13 Ill. 463), land was conveyed on condition that the county seat should be 'permanently located' upon it. The location was made accordingly with that intent, but some years later the county seat was removed. The grantor sued to recover the land. The court said it was no part of the contract that the county seat should remain for ever on the premises; that the grantor must be presumed to have known that the legislature had the power to remove it at pleasure, and that he must be held to have had in view at least the probability of such a change when he made the deed.

There is no point arising under either the former or the present Constitution of Ohio which in our judgment requires any remark.

The results of the elaborate research of one of the counsel for the defendants in error show that the phrase 'permanently established' is a formula in long and frequent use in Ohio, with respect to county seats established otherwise than temporarily. Yet it is believed this is the first instance in the juridical history of the State in which such a claim as is here made has been set up.

This practical interpretation of the meaning of the phrase, though by no means conclusive, is entitled to grave and respectful consideration.

Judgment affirmed.


text: Talk:Newton v. Commissioners/Opinion of the Court


text:
Meeks v. Olpherts

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

The facts are stated in the opinion of the court.

Mr. Montgomery Blair for the plaintiff in error.

Mr. S. M. Wilson, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Meeks v. Olpherts


text: Talk:Meeks v. Olpherts

title: Talk:Meeks v. Olpherts


text:
Meeks v. Olpherts/Opinion of the Court

This action was brought, Sept. 30, 1872, by Meeks against Olpherts and others to recover possession of a hundred-vara lot in the city of San Francisco.

On a stipulation waiving a jury, the case was submitted to the court, which, on its findings of fact incorporated in this record, further found as a conclusion of law that the plaintiff's action was barred by sect. 190 of the Probate Act of California. Judgment was rendered for the defendants. Meeks sued out this writ of error.

The material facts in the case are few and easily understood.

George Harlan died intestate July 8, 1850, seised of the title to the lot in question, except as that title may have been nominally in the United States. By the act of Congress of 1864 his title was confirmed, and it inured to the benefit of any one rightfully holding under him.

On the 19th of August, 1850, Henry C. Smith was duly appointed administrator of Harlan's estate, and having afterwards resigned, Benjamin Aspinall was appointed in his place, June 15, 1855.

On the seventh day of January, 1856, Aspinall, by an order of the Probate Court, sold the lot in question, with many others. Under this sale the defendants, or those under whom they claim, entered into possession, which they have held uninterruptedly to the present time. Aspinall remained administrator until May 12, 1864, when he settled up his accounts and was discharged. Joel Harlan and Lucien B. Huff, appointed in his place, are now administrators.

On the 6th of November, 1869, an order of distribution of the estate was made in the Probate Court, by which the lot in question was distributed to plaintiff. To this proceeding no objection is made as to its regularity.

It will thus be seen that the defendants had purchased the lot in controversy at a sale ordered by the Probate Court, and had paid their money for it, and been in the peaceable adverse possession of it since 1856, a period of sixteen years; and the court held that, whether the probate sale was valid so as to confer title or not, the Statute of Limitations applicable to such cases was a bar to plaintiff's right of recovery.

As the only question in the case is the one thus stated by the Circuit Court, and as the Supreme Court of California had decided that the probate sale was invalid and conferred no title, we proceed to examine the defence of the statute.

The special statute of limitations of three years, contained in the Probate Act of California, is as follows:--

'SECT. 190. No action for the recovery of any estate sold by an executor or administrator, under the provisions of this chapter, shall be maintained by any heir or other person claiming under the deceased testator or intestate, unless it be commenced within three years next after the sale.

'SECT. 191. The preceding section shall not apply to minors or others, under any legal disability to sue at the time when the right of action shall first accrue; but all such persons may commence such action at any time within three years after the removal of the disability.'

As the plaintiff in this case claims title as heir and by purchase from other heirs of the decedent, and brings his suit sixteen years after an administrator's sale sanctioned by a probate court, it would seem at first blush that the case came within the provision of the first section.

Counsel for plaintiff, however, has argued with much earnestness and force—

1. That no suit could be brought by the heirs, or any one claiming through them, until the order of distribution was made, because until that time, or until administration was closed, the right of possession was in the administrator.

2. That until then the heirs were under a disability, which by sect. 191 protected their right of action from the operation of sect. 190.

The first proposition, and, indeed, the argument of the learned counsel, concedes, that by virtue of the statutes of California the real estate of a person dying intestate comes to the possession and control of his administrator as personal property does, and that while the administrator can only sell real estate upon an order of the Probate Court, the possession and control, the perception of the rents and profits, and the right to sue to recover possession of it when held adversely, belongs solely to the administrator. Indeed, a section or two of the Probate Act, which we copy, makes this very plain.

'SECT. 114. The executor or administrator shall have the right to the possession of all the real as well as the personal estate of the deceased, and may receive the rents and profits of the real estate, until the estate shall be settled, or until delivered over by the order of the Probate Court to the heirs or devisees, and shall keep in good tenantable repairs all houses, buildings, and fixtures thereon which are under his control.'

'SECT. 195. Actions for the recovery of any property, real or personal, or for the possession thereof, and all actions founded upon contracts, may be maintained by and against executors and administrators, in all cases in which the same might have been maintained by or against their respective testators or intestates.'

And by section 194 of the Probate Act of California the administrator is again required to 'take into his possession all the estate of the deceased, real and personal.'

While it must be conceded that no right of action existed in the heirs of Harlan until the order of distribution, the reason of this is that the right of action to recover possession of the lots wrongfully held under the invalid probate sale was in the administrator. He was the representative of the rights of the heirs and of the creditors of the estate, and as such had the same power to sue for and recover the lot as if he had been the intestate himself. Not only was it his right, but it was his exclusive right and his duty. For any failure to perform this duty he laid himself liable to the heirs, or any one else injured by that failure.

Nor can it be said that either this right or this duty to sue for and recover possession of the lot was lost or abridged by his sale as administrator to the defendants. Instances are numerous of persons making sales that are invalid, avoiding them by the very act of bringing an action of ejectment. Such are the cases of infants and married women who have made conveyances and received the consideration, whose acts are void or voidable by reason of infancy or of defective acknowl edgments of the deeds.

There was, then, up to the date of the order of distribution, or until it was barred by the statute, a right in the administrator of the estate of Harlan to sue for and recover the possession sought in the present action.

This being so, it is not easy to perceive why that right of action was not barred in three years from Jan. 7, 1856, the day on which defendants purchased and took possession. This would make the bar complete Jan. 7, 1859. During all that time Aspinall was administrator and for five years afterwards, and nothing obstructed his legal right to sue for and recover the possession. Nor is the case otherwise if the right of action began with the relinquishment of title by the act of Congress of 1864.

It is argued, however, that sect. 190 does not apply to suits brought by the administrator, and, therefore, the statute does not run against the right of action while it remains in him.

The arguments is that the language used, namely, 'no such action shall be maintained by any heir, or other person claiming under the deceased testator or intestate,' means by an heir or one holding under the heir, and that the words 'other person' do not include the administrator.

But no sufficient reason is to be found why it should not. If the administrator can by such an action avoid his own irregular or void sale, the reason for limiting the time within which it should be done by him is as strong, or perhaps stronger, than it is against another.

It is as important to the purchaser for whose benefit the statute was enacted, that he should be protected against the administrator as against the heirs. The words 'other person' mean some one other than the heirs, and instead of meaning some one like the heirs or claiming under the heirs, the words expressly refer to some one 'claiming under the deceased testator or intestate.' These last words are unnecessary in reference to heirs, for they can claim in no other way but under the intestate. The words 'other person,' therefore, almost of necessity refer to the administrator, for they can refer to no one but the heirs or some one claiming under them, or to the administrator.

He is, therefore, within the spirit and the literal meaning of that section, and the bar is good against him. This was decided in the case of Harlan & Huff v. Peck, in the Supreme Court of California, 33 Cal. 515. Harlan and Peck, as we have already seen, were the successors of Smith and of Aspinall as administrators of George Harlan's estate. They brought suit to recover one of the lots sold by Aspinall at the same time with the sale in question in this case. The defendants relied on the sale and the limitation of sect. 190 of the Probate Act. The court below gave judgment for plaintiffs; but the Supreme Court, while it held the sale void, reversed the judgment, on the ground that this statute of limitations barred the administrator. This is a construction of the statute by the highest court of the State.

The legal disability mentioned in sect. 191 manifestly has reference to a well-known class of persons in whom a right to redress exists, but who for special reasons are incapable of acting for themselves; such as infancy, coverture, and the like. Whatever is a disability under the general statute of limitations is a disability under this statute. Sect. 352 of the Code of Civil Procedure of California describes this class, among which are minors, femes covert, insane persons, and persons imprisoned, and it describes them as persons entitled to bring an action. The disability cannot have reference to a person in whom no right of action exists. Such use of the term 'disability' is without support in reason or precedent.

The right of action on the title which the plaintiff now asserts was in the administrator, and the statute, therefore, ran against him and against all whose rights he represented. 'In all suits for the benefit of the estate he represents both the creditors and the heirs,' said the Supreme Court in Beckett v. Selover, 7 Cal. 215.

Whatever doubt may have existed at one time on the subject, there remains none at the present day, that whenever the right of action in the trustees is barred by the Statute of Limitations, the right of cestui que trust thus represented is also barred. This doctrine is clearly stated in Hill on Trustees, 267, 403, 504, and the authorities there cited fully sustain the text, both English and American.

Among those specially applicable to this case are Smilie v. Biffle, 2 Pa. St. 52; Couch's Heirs v. Couch's Administrator, 9 B. Mon. (Ky.) 160; Rosson v. Anderson, id. 423; Darnall v. Adams, 13 id. 273.

In the first of these cases, land was devised to executors, with a power of sale, which was imperfectly executed, by one of the executors alone. The legatee brought suit against the purchaser, and was held to be barred by the Statute of Limitations. After referring to the old opinion, and expressing surprise that it should ever have been entertained, and showing how it was overruled by Lord Hardwicke in Lewellen v. Mackworth (2 Eq. Cas. Abr. 579), the court says: 'Therefore, where cestui que trust and trustees are both out of possession, for the time limited, the party in possession has a good title against both. By the terms of the will, the trustee had the right to enter on the land, to take the rents, issues, and profits, and apply the same to the separate use of Jane Craig, the testator's daughter, during her natural life, with power to sell the fee-simple and appropriate the interest of the purchase-money to her use, and after her death to be paid to certain legatees, of whom the present plaintiff was one. The property was sold in the lifetime of Jane Craig; but the sale was the act of but one of the trustees, and it is contended that the execution of the joint trust must be the act of all. In this respect, the title of Nicholson, the purchaser, is manifestly defective. But Nicholson took possession of the premises in pursuance of the contract, and held the same for upwards of twenty-one years. He, therefore, held adversely to both cestui que trust and trustee, and consequently obtained by the Statute of Limitations an indefeasible title, which cannot now be disturbed or gainsaid.'

In the case of Rosson v. Anderson (supra), the question related to the title of slaves conveyed by a father to a trustee for his daughters. The trustee did not accept the trust, nor were the slaves ever delivered by the donor.

One of the granddaughters, after her father's death, which occurred while she was a minor, brought suit for the slaves, and was met by a plea of the Statute of Limitations, to which she replied her infancy. The court held that the right of action, on the death of her father, vested in his executors, and, as more than five years had elapsed after they had qualified as such, the statute was a bar against them, and as they would have been barred by the statute, so was the heir, though a minor when the cause of action accrued.

In Darnall v. Adams (supra), which concerned a devise of slaves, the same court held that the disability of coverture in the devisee could not prevent the running of the Statute of Limitations in favor of an adverse possession against the executor, and that it was well settled that the claim of the devisee is, under such circumstances, barred by the lapse of time which bars the executor. Coleman v. Walker, &c., 3 Metc. (Ky.) 65, and Edwards v. Woolfolk's Administrator, 17 B. Mon. (Ky.) 376, are cases which assert the same doctrine, and in the latter the principle is fully and ably discussed and its soundness well maintained.

A very strong case of the same character is that of Croxall v. Sherrard (5 Wall. 268), where a remainder-man was held barred by the Statute of Limitations of New Jersey, on account of the number of years of possession of defendant under purchase from the holder of the estate for life, all of which had elapsed during that life. This was held to be a bar, though the remainder-man brought suit immediately on the death of his ancestor. This was, however, based on the peculiar wording of that statute.

In Cuningham v. Ashley (45 Cal. 485), it was held that an administrator, who is a party to a suit which involves the title of his intestate to real estate, represents the title which the deceased had at the time of his death, and the judgment in such action concludes the adverse party and the heirs of the intestate. And such judgment is an estoppel as to the title set up in the action.

On the whole, we are of opinion, both upon sound principles of construction, as well as upon the decisions of the Supreme Court of California construing the statute of the State, that the Circuit Court was justified in holding that the plaintiffs were barred by the adverse possession of defendants.

Judgment affirmed.

title: Meeks v. Olpherts/Opinion of the Court


text: Talk:Meeks v. Olpherts/Opinion of the Court


text:
Montgomery v. Sawyer

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

The facts are stated in the opinion of the court.

Mr. Benjamin F. Jonas, Mr. Henry B. Kelly, and Mr. Henry L. Lazarus for the appellants.

Mr. Joseph B. Hornor, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Montgomery v. Sawyer


text: Talk:Montgomery v. Sawyer

title: Talk:Montgomery v. Sawyer


text:
Montgomery v. Sawyer/Opinion of the Court

The controversy in this case relates to a certain plantation in the parish of Plaquemines, called the 'New Hope or Cedar Grove Plantation.' The appellee, Sawyer, claims it as purchaser at sheriff's sale under a judgment rendered in February, 1872, by the Fifth District Court of Orleans, at the suit of one James E. Zunts against William and Haywood Stackhouse. The appellant claims under a mortgage executed in 1873, by Sarah F. Brooks, widow of Haywood Stackhouse, and tutrix of his minor heirs. It is conceded that the plantation belonged to William and Haywood Stackhouse at the time of the latter's death in December, 1869; and that after that it belonged to the said William and the succession of Haywood up to and after the time of Zunts's judgment. It is contended by the appellants that this judgment was void as against the undivided half of Haywood Stackhouse, because he was dead when the judgment was rendered, and the suit, as they contend, had never been revived against the succession of his estate.

The circumstances of the case are briefly as follows:--

William and Haywood Stackhouse were partners owning several plantations, and in January, 1865, to secure to Zunts the payment of certain notes amounting to $50,000, executed to him a mortgage on a plantation called the 'Bellechasse Plantation.' The notes not being paid, Zunts, in January, 1867, attempted to collect the same by executory process against the Bellechasse plantation. The Stackhouses set up a defence, filed a counter petition, and obtained an injunction. The decision being against them, they appealed to the Supreme Court of Louisiana, and pending this appeal, in December, 1869, as before stated, Haywood Stackhouse died. His widow, Sarah F. Brooks, in her own right and as tutrix of their minor children, was made a party in the cause, and the suit proceeded to judgment, the papers being entitled, as before, in the name of William and Haywood Stackhouse v. James E. Zunts. In May, 1871, the Supreme Court annulled the judgment of the District Court, and remanded the cause for a new trial. On the 20th of February, 1872, the District Court rendered the judgment in question, which was entered and signed in these words:--

'FIFTH DISTRICT COURT FOR THE PARISH OF ORLEANS.

'W. & H. STACKHOUSE }

v. }

JAMES E. ZUNTS. }

No. 18,850.

'In this case, for the reasons assigned in the written opinion of the court, this day delivered and on file, it is ordered, adjudged, and decreed that there be judgment in favor of defendant; that the injunction herein be dissolved with costs, and that the said defendant, James E. Zunts, do have and recover of plaintiffs, William and Haywood Stackhouse, and their surety in the injunction bond, in solido, twenty per cent damages on the amount of the judgment herein enjoined, together with eight per cent interest as allowed in the order of seizure and sale.

'It is further ordered that the claim for attorney's fees herein be dismissed.

'Judgment rendered Feb. 20, 1872.

'Judgment signed March 3, 1872.

(Signed) 'CHAS. LEAUMONT,

'Judge Fifth District Court, Parish of Orleans.'

A certified copy of this judgment, in the above words, was recorded in the recorder's office of Plaquemines on the 17th of April, 1872.

Meanwhile, the plaintiffs moved for a new trial, and that being refused, on the 13th of March, 1872, they moved for and obtained a suspensive appeal. The order allowing the appeal was as follows, the appeal bond being signed by all the appellants:--

'W. & H. STACKHOUSE }

v. }

JAMES E. ZUNTS et al.   }

No. 18,850.

'On motion of Roselius & Philips and Horner & Benedict, of counsel for Wm. Stackhouse, Sarah F. Brooks, widow in community of Haywood Stackhouse, deceased and natural tutrix of her minor children, Herbert, Maude, Blanche, and Mabel Stackhouse, and Lilla Stackhouse, wife of J. W. Bryant, duly authorized and assisted by her husband, and the legal heirs of James P. Waters, dec'd, to wit, Henrietta A. Waters, wife of William Stackhouse, and by her husband duly assisted and authorized Mrs. Widow Mary Upton, widow of Wheelock S. Upton, dec'd, and William H. Waters, and on suggesting to the court that said appearers and movers have been informed and believe that there is error to their prejudice in the final judgment rendered in the above-entitled case by this hon. court, on the 20th February, 1872, and that they are desirous of appealing suspensively from the same to the Supreme Court of the State of Louisiana, and on showing that the clerk requires time till the third Monday of April next to make the transcript of appeal, it is ordered that a suspensive appeal be accorded to said appearers and movers from said final judgment to the Supreme Court of Louisiana, the same to be therein returnable on the third Monday of April, 1872, upon said appearers giving bond and security conditioned according to law in the sum of $30,000.'

The cause then proceeded in the Supreme Court, entitled as before. On the 31st of May, 1873, the court affirmed the judgment below. A petition for a rehearing was presented in the names of all the appellants; and, amongst other things, stated, that pending the first appeal Haywood Stackhouse died, and that the petitioners were made parties to the appeal by means of an order which they recite; but that, when the cause went back to the court below for retrial, Zunts omitted to make the petitioners parties to the proceedings in that court, and that they never made themselves parties by voluntary appearance by counsel or personally; that, on the contrary, the case was proceeded with by Zunts and his counsel, and by the former counsel of William and Haywood Stackhouse, as if the latter were alive; and the petition, in a labored argument, contended that the making of the petitioners parties to the first appeal did not make them parties to the subsequent proceedings. All the points taken in this suit on the subject of want of parties were taken in the said petition for a rehearing.

On the 15th of December, 1873, the petition for rehearing was refused, and the judgment of the District Court stood affirmed. No notice was taken by the court of the point referred to. Whether it was regarded as untenable, or whether the judgment was left to stand at Zunt's own risk,-good, at all events as against William Stackhouse,-does not appear.

After the recording of the judgment of the District Court, to wit, on the 7th of May, 1872, a partition was made between William Stackhouse and the succession of Haywood Stackhouse, of the various pieces of property belonging to the firm of W. & H. Stackhouse, by which the Bellechasse plantation was set off to William, subject to the Zunts's claim; and the New Hope plantation was set off to the succession of Haywood.

On the 6th of February, 1873, Sarah F. Brooks, as widow and tutrix as aforesaid, mortgaged the New Hope plantation to Ernst & Co., to secure the payment of certain notes specified in the mortgage.

On the 20th of January, 1875, Zunts filed a petition in the District Court of Plaquemines for executory process against the New Hope plantation and other property, to obtain satisfaction of the amount of damages recovered by the judgment of Feb. 20, 1872, being $10,833.66, claiming that the same was a judicial mortgage against all the property in the parish belonging to William Stackhouse and the succession of Haywood Stackhouse. A writ was issued accordingly, and the said New Hope plantation, together with certain shares of bank stock, secured by mortgage thereon, were sold by the sheriff to the appellee, Silas W. Sawyer, and an act of sale, dated 28th April, 1875, was duly passed and recorded.

The appellants, Montgomery and Leng and Ogden, having become the owners of the notes secured by the mortgage given by Sarah F. Brooks to Ernst & Co., on the 15th of December, 1876, filed a bill in the Circuit Court of the United States against her as widow and tutrix, and against one of the heirs who had become of age and married, praying for the issue of executory process for the sale of the undivided half of the New Hope plantation belonging to the succession of Haywood Stackhouse, conceding that Zunts's judgment was a valid judicial mortgage as against the other undivided half belonging to William Stackhouse; and a writ of seizure and sale was issued pursuant to the prayer of the bill.

It was to enjoin proceedings under the last-named writ, and to establish his own title, that the appellee, Sawyer, filed the bill in this case.

All the material facts appear from the documents submitted by the parties, and the question is one of law alone.

From this statement it would seem to be very clear that the widow and heirs of Haywood Stackhouse were parties to the proceedings in which the judgment was rendered, which, therefore, might have been, though it was not, rendered against the succession of Haywood Stackhouse jointly with William Stackhouse. But even if valid to bind said succession in any way, the question remains as to its effect against third persons. It is in form a judgment against William Stackhouse and another person not in being, but who had died more than two years before it was rendered. And in this form it was recorded. By the law of Louisiana a judgment, at least as to third persons. has no effect as a judicial mortgage until it is recorded. When recorded it has that effect against all the immovables of the debtor situated in the parish. Civil Code, arts. 3922, 3346. Here one of the nominal debtors against whom the judgment was rendered was dead, and of course had no immovables to be affected thereby. Without the existence of some very artificial rule of procedure, it is difficult to see how such a judgment, quoad the deceased person, or his estate in succession, can have any binding effect without being amended.

By the common law, if a defendant died after the commencement of a term, a judgment entered against him during the term had relation back to the first day of the term, and was deemed valid. This fiction was allowed to subserve the ends of justice. But no such rule can be invoked in the present case. Here the judgment could have no effect against the general immovable property of the debtor until it was recorded. The record is all that third persons have to look to for their protection; and in this case it only showed a judgment against a person not in existence, and did not show a judgment against his succession; and did not show that his representatives had been made parties to the cause.

In Norton v. Jamison (23 La. Ann. 102), a case somewhat similar, differing in the fact that the heir accepted the succession purely and simply, and did not appear in the proceedings until after the judgment in question was entered, the Supreme Court of Louisiana said: 'If defendant die after issue joined, his heir should be cited; until this is done, judgment cannot be given against the succession. 5 N. S. 431. A judgment against one, who, though cited, dies before issue joined, is null. 8 An. 80. When H. R. W. Hill died, it was necessary to make the legal representative a party, otherwise the judgment was inoperative as to either, and the recording of it created no judicial mortgage on the property left by H. R. W. Hill. The fiction of law or its express enactment, by which he was a party to the proceedings, did not make his heirs or legal representatives parties in his person, and the insertion of the word 'heirs' in the decree gave no force to the judgment against his heir and legatee, any more than a judgment against any person, eo nomine, who is not cited. The subsequent appearance of J. D. Hill as a party to the proceedings, in order to appeal from the Circuit Court to the Supreme Court, may have made him personally liable under the judgment rendered on appeal, but it could not retroact so as to give force to the inscription of the judgment of the District Court. Inscriptions of mortgages are stricti juris, and must, of themselves, be complete and give all the information which the law intends is necessary for third parties. 5 N. S. 112; 7 An. 533. The judgment recorded was against H. R. W. Hill; but plaintiff alleges that H. R. W. Hill died before the judgment was rendered. . . . The inscription does not contain the name of J. D. Hill [heir of H. R. W. Hill]. At the time of the rendering and recording of the judgment against H. R. W. Hill, the property did not belong to him, and no judgment against J. D. Hill was recorded at the date of his sale to defendant. Consequently, no judicial mortgage attached to the property sold by J. D. Hill to the defendant by recording the judgment in question against H. R. W. Hill, rendered after his death.'

It seems to us that the views here expressed are conclusive so far as relates to the validity of the judgment as a judicial mortgage operating against the appellants. Whether the judgment may not in some manner, or to some extent, be binding against the succession of Haywood Stackhouse, it is not necessary to inquire. The difficulty consists in the fact that no judgment has been rendered or recorded against said succession. The mere entitling of the suit against William and Haywood Stackhouse might not have prejudiced the effect of the judgment, had it been rendered against the proper parties. The title of the suit is employed only for the purpose of identification of the cause. But here the judgment itself is defective. It is conceded to be good as against the interest of William Stackhouse; but as to third persons, at least, it is void as a judicial mortgage against the property of Haywood Stackhouse or his estate in succession.

It follows from this that the appellee, Sawyer, by his purchase at sheriff's sale, acquired only the undivided half interest of William Stackhouse, and that his bill should have been dismissed.

The decree of the Circuit Court will be reversed, and the cause remanded with directions to dismiss the bill of complaint; and it is

So ordered.


text: Talk:Montgomery v. Sawyer/Opinion of the Court


text:
Dickerson v. Colgrove

The facts are stated in the opinion of the court.

Mr. George W. Lawton for the plaintiff in error.

Mr. M. J. Smiley, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Dickerson v. Colgrove


text: Talk:Dickerson v. Colgrove

title: Talk:Dickerson v. Colgrove