Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

(39 Sup.Ct.)

This permission was subject to the condition that suitable interlocking devices, of a type to be agreed upon between the two companies, should be installed at the crossings. The companies agreed upon all of the conditions involved in the crossing of their tracks, excepting as to the cost of installing and maintaining the required interlocking devices, and upon due submission of this question to the commission it was decided that the entire expense should be borne by the junior, the Willapa Company. The superior court affirmed this holding by the commission, but on appeal the Supreme Court of the state, in the decision which we are reviewing, reversed the two lower tribunals and ruled that the expense should be divided equally between the two companies.

[1] The decision of the Supreme Court of Washington is based upon the interpretation which it placed upon applicable state statutes enacted in 1913 (chapter 30, Laws of Washington 1913, p. 74), and the case is presented to this court on the single assignment of error:

"That the state Supreme Court erred in holding and deciding that chapter 30 of the Laws of Washington of 1913, as construed and applied to the facts of this case, is not repugnant to the Fourteenth Amendment to the Constitution of the United States."

Conceding that the construction placed upon the state statute by the state Supreme Court will be accepted by this court, the contention of the Pacific Company is that, when that company entered the state of Washington and constructed its line, an act of the Legislature, passed in 1888 (Laws 1887-88, p. 63) was in effect, which gave to railway companies formed under the act the right to cross any other railway theretofore constructed, but subject to conditions which the state Supreme Court held, in 1908, in State v. Northern Pacific Railway Co., 49 Wash. 78, 94 Pac. 907, required the junior company to pay the entire cost of the crossing, including the installing and maintaining of interlocking devices where necessary; that this constituted a vested right of property in the senior company, and that the later statute of 1913, which the Supreme Court held in this case required it to bear one-half of the cost of installing and maintaining the interlocker, deprived it of its property without due process of law. It is admitted in argument that the act assailed would be validly applicable to apportioning the cost of crossings of highways and railroads, regardless of the dates of their construction (New York & New Eng. land Railroad v. Bristol, 151 U. S. 556, 14 Sup. Ct. 437, 38 L. Ed. 269; Chicago, etc., Railroad Co. v. Chicago, 166 U. S. 226, 17 Sup.

Ct. 581, 41 L. Ed. 979), and that it would be valid as applied to crossings of railroad lines constructed prior to its enactment where no contract had been entered into with respect to the protection of the crossing (Detroit, etc., Railway v. Osborn, 189 U. S. 383, 23 Sup. Ct. 540, 47 L. Ed. 860). But it is contended that it is not a valid law as applied to the case at bar, where the road of the Pacific Company was constructed at a time when the state law imposed the entire cost of the construction and maintenance of the crossing upon the junior company.

Obviously this is a slender thread on which to hang a grave constitutional argument, and it is difficult to treat it seriously. At most, the earlier statute, and the interpretation which the state Supreme Court placed upon it, was a rule of law applicable to the assessment of damages in a proceeding to appropriate a crossing to which a junior company was entitled by the statute. It was no part of the charter of the Pacific Company, which was organized under the Wisconsin law, and that company had no vested right to insist that the rule should not be changed by statute or by court decision. Pennsylvania R. R. Co. v. Miller, 132 U. S. 75, 83, 10 Sup. Ct. 34, 33 L. Ed. 267; Chicago & Alton R. R. Co. v. Tranbarger, 238 U. S. 67, 76, 35 Sup. Ct. 678, 59 L. Ed. 1204; New York Central R. R. Co. v. White, 243 U. S. 188, 189, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629; Chicago & Alton R. R. Co. v. McWhirt, 243 U. S. 422-425, 37 Sup. Ct. 392, 61 L. Ed. 826.

[2] While this is sufficient to dispose of the case, it may be added that the act of 1913 was passed in an obviously legitimate and customary exercise of the police power of the state to protect travelers and employés, from injury and death at such crossings, and also to protect property in the custody of the carriers from damage. It has long been settled law that the imposing of uncompensated charges, involved in obeying a law, passed in a reasonable exercise of the police power, is not a taking of property without due process of law, within the meaning of the Fourteenth Amendment to the Constitution of the United States. Chicago, etc., R. R. Co. v. Nebraska, 170 U. S. 57, 73, 74, 18 Sup. Ct. 513, 42 L. Ed. 948; New Orleans Gaslight Co. v. Drainage Commission, 197 U. S. 453, 461, 462, 25 Sup. Ct. 471, 49 L. Ed. 831; Northern Pacific Ry. Co. v. Minnesota ex rel. Duluth, 208 U. S. 583, 594, 28 Sup. Ct. 341, 52 L. Ed. 630; Chicago & Alton R. R. Co. v. Tranbarger, 238 U. S. 67, 76, 35 Sup. Ct. 678, 59 L. Ed. 1204.

The judgment of the Supreme Court of
Washington is
Affirmed.

(250 U. S. 321)

BENEDICT v. CITY OF NEW YORK.

the assessment roll. The improvement was to be paid for by delivering to the contractors interest-bearing certificates of indebtedness

(Argued April 22, 1919. Decided June 2, 1919.) equal, at par, to the expense of the work and

1. COURTS

No. 315.

382(2)—APPEAL FROM CIRCUIT COURT OF APPEALS-RIGHTS ASSERTED UNDER CONSTITUTION.

materials furnished. These certificates dids not provide *for a personal obligation on the part of the city or the district. They were receivable in payment of assessments at par and interest and were payable in cash only out of moneys to be derived from the assess

Jurisdiction of the Circuit Court having been invoked not only on the ground of diversi-ments, which the city treasurer was directed ty of citizenship, but also because of rights asserted under the federal Constitution, plaintiff's further appeal to the Supreme Court, after dismissal of bill was affirmed by the Circuit Court of Appeals, is permissible.

[blocks in formation]

3. TRUSTS ENFORCEMENT LACHES REPUDIATION OF TRUST.

Defense of laches to suit based on alleged breach of trust by city as to fund for payment of improvement certificates is properly sustained, the state statute of limitations being at most 10 years, 17 years having been allowed to elapse after open repudiation of any trust duties before suit was begun, and more than 10 years before any attempt was made to secure settlement by negotiation, there having been no waiver of the statute, and lack of diligence being wholly unexcused.

to keep as an improvement fund separate
from all other funds. The statute further
provided that upon the completion of the
sales for nonpayment of assessments "all
the certificates issued by the said commis-
sioners shall be paid off, and if there be any
excess to the credit of said improvement.
fund
it shall be paid into the city
treasury." By an amendment passed June 11,
1879 (Laws N. Y. 1879, c. 501), it was pro-

*

vided that, under certain circumstances, it was the duty of the officer making sale of land for nonpayment of assessment to receive in payment of the purchase price, certificates at par and interest.

Certificates were issued to the amount of $1,847,500. A large portion of the assessments levied were left unpaid by the landowners; and it became necessary to sell the properties. Sales for nonpayment of assessments were made in 1888. The purchase price was paid in certificates at par and interest up to the amount of the assessments, the interest and the excess, if any, being paid in cash. In 1892 and 1893 sales of land were made at much less than the amounts Appeal from the United States Circuit of the assessment. Here also bidders were Court of Appeals for the Second Circuit. permitted to pay the purchase price in cerSuit by Elias C. Benedict against the City tificates at par and interest. Likewise the of New York. Decree (235 Fed. 258) dismiss-owners of lots sold were permitted to redeem ing bill was affirmed by the Circuit Court of Appeals (247 Fed. 758, 159 C. C. A. 616), and plaintiff appeals. Affirmed.

* Messrs. Leon Abbett, of Hoboken, N. J., and Charles K. Allen, of New York City, for appellant.

Mr. Terence Farley, of New York City, for appellee.

lots upon paying the amount of the bid and accrued charges by certificates at par and interest. After all the land had been disposed of and the improvement fund exhausted there remained and are now outstanding unpaid certificates aggregating about $300,000.

Prior to June 11, 1879, Benedict acquired certificates to the amount of $8,000 which he has held ever since, and on which the principal and interest are unpaid. In July, *1910,

Mr. Justice BRANDEIS delivered the opin- suing on behalf of himself and others simiion of the Court.

larly situated, he brought this suit in the CirIn 1874 commissioners theretofore appoint- cuit (now District) Court of the United ed by special act (Laws N. Y. 1871, c. 765) States for the Southern District of New York to improve the streets of Long Island City to enforce, as upon an express trust, an acwere directed to improve a particular district. counting of the improvement fund and liabil Laws N. Y. 1874, c. 326. The act provided ity for alleged breaches of trust. The con that the cost of the improvement should be tention is that Long Island City became trusassessed upon the land benefited and created tee of the lien on the several lots for the a lien upon the land for the assessment and benefit of the certificate holders; and the alinterest; but it declared that no sale for fail-leged breaches of trust relied upon are in ure to pay the assessment could be made be- substance that, through its treasurer and in fore the expiration of ten years after filing of spite of the protest, the city permitted and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

325

(39 Sup.Ct.)

authorized sales of land for less than the | because of rights asserted under the federal assessment in violation of the act of 1874; Constitution, his further appeal to this court that instead of canceling certificates received was permissible. Vicksburg v. Henson, 231 in payment of assessments and of the pur- U. S. 259, 267, 268, 34 Sup. Ct. 95, 58 L. Ed. chase price at sales, it reissued the same; 209. and that even where sales had been made [2, 3] The whole case is here for review; for less than the amount of the assessments but we find it unnecessary to decide most it allowed redemption from sales in certifi- | of the questions presented, because we are of cates at par and interest. The City of New opinion that the lower courts did not err York is made defendant on the ground that in holding that the suit was barred by laches. in 1898 Long Island City was merged into it None of the acts relied upon here as constiby the Greater New York Act and that the tuting breaches of trust occurred later than consolidated corporation assumed the obliga- the years 1892 and 1893. Before the printions and liabilities of the constituent mu- cipal action complained of was taken, the nicipalities. Laws N. Y. 1897, c. 378. city treasurer publicly announced his purpose to pursue the course complained of, which he asserted was in accordance with law. Plaintiff was represented at the sales by an agent who protested there orally and elsewhere in writing against the treasurer's declared purpose and against specific acts now complained of, asserting then "as now that the course pursued was illegal. We have here a definite repudiation of the alleged trust duties more than 17 years before the institution of this suit. And there are no circumstances which excuse the delay. What occurred in the interval, so far as appears, was this:

[1] Protest was made by plaintiff at time of sales against the course pursued by the treasurer, but he justified the action complained of, relying upon act of 1874 and chapter 501 of the Laws of 1879 and chapter 656 of the Laws of 1886. Writs of mandamus had previously been issued compelling him to receive certificates at par and interest even in payment for the redemption of land sold for nonpayment of assessments. People ex rel. Ryan v. Bleck wenn, 8 N. Y. Supp. 6381; People ex rel. Oakley v. Bleck wenn, 13 N. Y. Supp. 487 2; People ex rel. Oakley v. Bleck wenn, 126 N. Y. 310, 27 N. E. 376. But plaintiff contended that, in view of section 23 of title VI of chapter 461 of the Laws of 1871, if the acts of 1879 and 1886 were construed as authorizing the action of which he complains, they impair, in violation of the *federal Constitution, the obligation of contracts previously entered into with certificate holders. The case was fully heard in the District Court on evidence, and several distinct defenses were relied upon. The city insisted, among other things, that the statutory lien did not impose a statutory trust upon it; that the persons who acted were not its agents, but independent officers, agents of the state; that the specific provision of the statute relied upon by plaintiff did not constitute terms of the contract but related merely to the remedy; and that the later legislation introduced at most permissible changes of remedy. The court without passing upon these questions, entered a decree dismissing the bill on the ground that the statute of limitations and laches constituted a complete defense. 235 Fed. 258. This decree was affirmed by the Circuit Court of Appeals on the same grounds. 247 Fed. 758, 159 C. C. A. 616. Benedict is a citizen of Connecticut; but as he invoked the jurisdiction of the Circuit Court not only on the ground of diversity of citizenship, but also

1 Reported in full in the New York Supplement;

(a) In June, 1893, Benedict commenced in the Circuit Court of the United States for the Eastern District of New York a bill in equity to restrain the treasurer from receiving certificates from property owners when redeeming their properties from assessment sales, made to the complainant, and from marking upon the books as paid any assessment upon such property when it was sold for less than the amount of the assessment. It seems that hearing on the motion was adjourned to a later date, and that a restraining order issued which the plaintiff alleges was never observed. It is not shown that any other proceeding was ever taken in the suit.

(b) On May 9, 1904 (at whose instance does not clearly appear), the Legislature enacted a statute (Laws N. Y. 1904, c. 686) entitled "An act to authorize the comptroller and corporation counsel of the city of New York on behalf of said city to compromise and settle with property owners interested, certain claims for taxes, assessments and sales for the same, and for or on account of evidences of indebtedness issued on account of local improvements in the territory formerly included within the boundaries of Long Island City."

(c) On February 21, 1905, plaintiff filed with the comptroller of the city of New York an offer to sell to the city by way of compromise certificates held.

(d) On May 26, 1909, plaintiff's present

reported as a memorandum decision without opin- counsel, acting on behalf of the holders of

ion in 55 Hun, 611.

* Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 58 Hun, 609, 59 Hun, 618.

283 certificates, presented to the comptroller a memorial and statement of facts, in which he requested "that provision should be made

in some way for the payment of the amount idue" on the certificates.

(250 U. S. 308)

CAMP et al. v. GRESS.

*(e) Under date of March 19, 1910, plaintiff (Argued March 24 and 25, 1919. Decided June

presented to the comptroller a similar me
morial which he requested should be submit-
ted for determination to the board of esti-
mate and apportionment, in view of the fact
that chapter 601 of the Laws of New York of
1907 provided that the comptroller may do so
where he believes that, for any reason, a
claim against the city is not valid legally, but
in equity, justice, and fairness the same
should be paid, the city having been benefited
by the acts performed and the claim not be
ing barred by the statute of limitations.
(f) On April 26, 1910, a formal request was
made upon the deputy comptroller.

2, 1919.)

No. 279.

1. COURTS 273-FEDERAL COURTS-JURISDICTION-DIVERSITY OF CITIZENSHIP-DEFENDANTS RESIDING IN DIFFERENT STATES.

Under Judicial Code, § 51 (Comp. St. § 1033), providing that no civil suit shall be brought in any District Court against any person in any other district than that whereof he is an inhabitant, but, where jurisdiction is founded only on the action being between citizens of different states, suit shall be brought

only in the district of the residence of either the plaintiff or the defendant, held, in view of sections 50 and 52 (Comp. St. §§ 1032, 1034) and the history of the legislation, in action by resident of one state against residents of two other states in District Court for the state of which all but one of defendants were resident, that such court had no jurisdiction over such other defendant, though he was found in such district.

2. COURTS

276-FEDERAL COURTS-EXEMPTION FROM SUIT-WAIVER.

Exemption of a resident of one state from suit in a federal District Court for another state asserted by plea is not waived by his acthe summons of service knowledgment on

thereof.

3. COURTS

4. COURTS 310- FEDERAL COURTS - PARTIES NECESSARY FOR SUIT.

Under the law of New York the alleged cause of action would have been subject, if not to the six-year statute of limitations (New York Code of Civil Procedure, § 382), then to the ten-year statute of limitations (New York Code of Civil Procedure, § 388), governing bills for relief in case of the existence of a trust not cognizable by the courts of common law. Clarke v. Boorman's Executors, 18 Wall. 493, 21 L. Ed. 904. If the act of 1874 created an express trust, the statute of limitations would not begin to run until there had been a repudiation of the trust. New Orleans v. Warner, 175 U. S. 120, 130, 276-FEDERAL COURTS-EXEMPTION FROM SUIT-PERSONAL PRIVILEGE. 20 Sup. Ct. 44, 44 L. Ed. 96. Here there was Exemption under Judicial Code, § 51 (Comp. an open repudiation of the trust duties which And 17 St. § 1033), of a resident of one state from suit the plaintiff now seeks to enforce. in a federal District Court for another state is years were allowed to elapse after that repu-personal to him, and may not be availed of by diation before this suit was begun and more resident codefendants as defeating jurisdiction than ten years before any attempt was made of them. to secure some settlement by negotiation; and there clearly was no waiver of the statute. While it is true that federal courts sitting in Under Judicial Code, § 50 (Comp. St. § equity are not bound by state statutes of 1033), authorizing judgment to be rendered limitations (Kirby v. Lake Shore & Mich- against the other defendants where jurisdiction igan Southern Railroad, 120 U. S. 130, 7 Sup. cannot be obtained of one defendant, failure to Ct. 430, 30 L. Ed. 569), they are under ordi- obtain jurisdiction of him is fatal to maintenary circumstances, guided by them in de-nance of the suit only if he is an indispensable termining their action on stale claims (Godden v. Kimmell, 99 U. S. 201, 210, 25 L. Ed. 431; Philippi v. Philippe, 115 U. S. 151, 5 Sup. Ct. 1181, 29 L. Ed. 336; Pearsall v. Smith, 149 *U. S. 231, 13 Sup. Ct. 833, 37 L. Ed. 713; Alsop v. Riker, 155 U. S. 448, 15 Sup. Ct. 162, 39 L. Ed. 218). Compare Sullivan v. Portland & Kennebec Railroad Co., 94 U. S. 806, 811, 24 L. Ed. 324. Between 1892 and 1905 plaintiff did nothing to enforce his alleged rights except to commence in 1893 a suit which he did not prosecute. His lack of diligence is wholly unexcused; and both the nature of the claim and the situation of the parties was such as to call for diligence. The lower courts did not err in sustaining the defense of laches.

Decree affirmed.

party.

5. PARTIES 30-INDISPENSABLE PARTYJOINT CONTRACT.

One of several joint contractors is not an indispensable party defendant to action on the joint contract.

6. APPEAL AND ERROR

877(6)—HARMLESS ERROR-ERROR as to One Defendant.

Overruling one defendant's claim of exemption from being sued in that district, and proceeding to judgment against him, not having prejudiced the other defendants, is not ground for reversing judgment against them.

-CON

7. COURTS 356 – FEDERAL COURTS
FORMITY ACT-APPELLATE PRACTICE.
The conformity Act (Comp. St. § 1537), by
its express terms referring only to proceeding in
the District Courts, has no application to ap-

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*310*309

(39 Sup.Ct.)

pellate proceedings either in the Supreme Court or the Circuit Court of Appeals, which are governed entirely by the acts of Congress, the common law, and the ancient English statutes.

8. APPEAL AND ERROR 1170(1)-SUPREME COURT JUDGMENT ON REVIEW-TECHNICAL ERROR.

Messrs. T. D. Savage and Thomas H. Willcox, both of Norfolk, Va., for petitioners. *Messrs. D. Lawrence Groner, of Norfolk, Va., W. M. Toomer, of Jacksonville, Fla., and Alexander Akerman, of Macon, Ga., for respondent.

Mr. Justice BRANDEIS delivered the opin

Section 51 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1101 [Comp. St. § 1033]) declares that (with exceptions not here material)—

In cases coming from federal courts the Su-ion of the Court. preme Court is given by statute (Judicial Code, § 240 [Comp. St. § 1217], Rev. St. § 701 [Comp. St. § 16691, and Circuit Court of Appeals Act, §§ 10, 11 [Comp. St. §§ 1670, 1124]) full power to enter such judgment or order as the nature of the appeal or writ of error or certiorari requires; and by Act Feb. 26, 1919, amending Judicial Code, § 269 (Comp. St. § 1246), disregard of technical matters not affecting substantial rights is especially enjoined.

"No civil suit shall be brought in any District Court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different states,

9. CERTIORARI 64(1)-TO CIRCUIT COURT suit shall be brought only in the district of the OF APPEALS-REVIEW.

The whole case being before the Supreme Court on writ of certiorari to the Circuit Court of Appeals, the contention of error in instructions on measure of damages must be examined; the objection having been properly saved.

10. CORPORATIONS 30(1)
FORM-ACTION FOR BREACH.
Plaintiff, owning all the stock of the M.
sawmill corporation, having entered into a con-
tract with defendants, owners of timber lands,
whereby they should join in forming a corpo-
ration, to which they would convey the lands,
and to which he would convey the mill proper-
ties, which the contract recited he owned, title
only being in the M. Company, stock in the
new company to be issued to him and them in
certain proportions in exchange for such prop-
erties, all the damages for defendants' breach
of the contract are recoverable by plaintiff, and
this without an accounting and settlement of
the M.'s Company's affairs.

residence of either the plaintiff or the defendant."

Resting jurisdiction wholly on diversity of citizenship, Gress, a citizen and resident of Florida, brought, in the District Court of the United States for the Eastern District CONTRACT TO of Virginia, this action against P. D. Camp, P. R. Camp, and John M. Camp, alleging them to be citizens of Virginia and residents of that district. One of them, John M., filed a "plea to jurisdiction," asking that the suit be dismissed, because he was not a citizen or resident of the district in which it was brought, but a citizen of North Carolina, resident in the Eastern district thereof. P. D. and P. R. Camp filed a separate "plea to jurisdiction" setting up the same facts, alleging that the cause of action sued on was joint and inseparable, and denying jurisdiction as to themselves also, because there was none as to John M. Camp. The pleas were overruled; the case proceeded to trial; a verdict was rendered against the three defendants; and judgment was entered thereon. Exceptions had been duly taken both by John M. and by P. D. and P. R. Camp to the decision overruling their pleas to the jurisdiction, and by the three defendants to certain rulings at the trial alleged to be erroneous; but the judgment was affirmed by the Circuit Court of Appeals (244 Fed. 121, 156 C. C. A. 549). A writ of certiorari was granted by this court (245 U. S. 655, 38 Sup. Ct. 14, 62 L. Ed. 533).

11. LOGS AND LOGGING 3(15)—BREACH OF CONTRACT TO FORM CORPORATION.

Plaintiff having entered into contract with

defendants whereby they should join in forming a corporation, to which he should convey a sawmill and timber lands, in exchange for which five-eighteenths of the corporation's stock should be issued to him and thirteen-eighteenths to them, his measure of damages for their failure to comply was all of the depreciation in value of the mill from being deprived of the timber supply and five-eighteenths of the in

crease in market value of timber lands.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Fourth Circuit.

Action by Morgan V. Gress against P. D. Camp and others. Judgment for plaintiff was affirmed by the Circuit Court of Appeals (244 Fed. 121, 156 C. C. A. 549), and defendants bring certiorari. Modified and affirmed.

[1] First. The several defendants below, although not citizens of the same state, were all citizens of states other than that of the plaintiff. Hence the diversity of citizenship requisite to federal jurisdiction existed. Sweeney v. Carter Oil Co., 199 U. S. 252, 26 Sup. Ct. 55, 50 L. Ed. 178. The objection of John M. Camp is not to the jurisdiction of a federal court, but to the jurisdiction over him of the court of the particular district; that is, the objection is to the venue. He asserts the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« ΠροηγούμενηΣυνέχεια »