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Mass. 503, 38 Am. St. Rep. 451, 34 N. E. summated, it does not give the original 1069. Or when the agent's authority is re- broker a right to commissions because the voked in bad faith before the completion of purchaser is one whom he introduced, and the sale. Sibbald v. Bethlehem Iron Co. 83 the final sale is in some degree aided or N. Y. 378, 38 Am. Rep. 441. In this case the helped forward by his previous unsuccessful subject was much considered, and Finch, J., efforts." in delivering the opinion of the court, said, In the present case what Crowe had obamong other things:

tained was not an absolute contract of pur"It follows, as a necessary deduction from chase, but an option on the purchase. the established rule, that a broker is never The deaths of Chapin and Neville termientitled to commissions for unsuccessful ef- nated the authority of Crowe to sell on comforts. ... The broker may devote his mission, which was not a power coupled time and labor, and expend his money with with an interest, that is, an interest in the ever so much of devotion to the interests of property on which the power was to operate. his employer, and yet if he fails,-if, with Hunt v. Rousmanier, 8 Wheat. 174, 5 L. ed. out effecting an agreement or accomplishing 589; Missouri ex rel. Walker v. Walker, 125 a bargain, he abandons the effort, or his au- U. S. 339, 31 L. ed. 769, 8 Sup. Ct. Rep. 929. thority is fairly and in good faith termi- Nevertheless, up to the first of April, nated,—he gains no right to commissions 1900, if Wilfley had availed himself of the

And, in such event, it matters not terms of the escrow agreement, the sale that, after his failure and the termination might have been completed and Crowe have of his agency, what he has done proves of been entitled to his commission; but Wil. use and benefit to the principal. ·.He filey did not do so, and the deed held in esmay have introduced to each other parties crow was returned in accordance with the who otherwise would have never met; he terms of that agreement. may have created impressions which, under

There is no legal basis for the imputalater and more favorable circumstances, nat- tion of bad faith, and it is not pretended urally lead to, and materially assist in, the that Crowe was employed by Trickey or renconsummation of a sale.

This, however, must be taken with one important the sale. The bare fact that what he had

dered any service to him in the matter of and necessary limitation. If the efforts of the broker are rendered a failure by the done in the former negotiations may bave fault of the employer; if capriciously he contributed to the accomplishment of the changes his mind after the purchaser, ready sale by Trickey is not enough to sustain his and willing and consenting to the prescribed claim for the commission sued for. terms, is produced; or if the latter declines

Judgment affirmed. to complete the contract because of some defect of title in the ownership of the seller, -some unremoved encumbrance; some de

GEORGE W. CROWE, Appt., fect which is the fault of the latter,—then the broker does not lose his commissions.

HENRY HARMON, Administrator of the • One other principle applicable to

Estate of Jerry Neville, Deceased. such a contract as existed in the present case needs to be kept in view. Where no

This case is governed by the decision in time for the continuance of the contract is Crowe v. Trickey, ante, 275. fixed, by its terms, either party is at liberty to terminate it at will, subject only to the

[No. 70. ] ordinary requirements of good faith. Usually the broker is entitled to a fair and reason- Submitted October 31, 1906. Decided Janu. able opportunity to perform his obligation,

ary 21, 1907. subject, of course, to the right of the seller

PPEAL from the Supreme Court of the to sell independently. But, that having been A granted him, the right of the principal to

Territory of Arizona to review a judg. terminate his authority is absolute and un- ment which reversed a judgment of the Dis. restricted, except only that he may not do trict Court of Santa Cruz County, in that it in bad faith, and as a mere device to es- territory, in favor of plaintiff in an action cape the payment of the broker's commis- to recover a broker's commission, and resions.

manded the case to the latter court with “If, after the broker has been allowed a directions to render judgment for defendant. reasonable time within which to produce a Affirmed. buyer and effect a sale, he has failed to do See same case below (Ariz.) 71 Pac. 1125. so, and the seller in good faith and fairly Messrs. W. C. Keegin, Seth E. Hazzard, has terminated the agency and sought other and F. H. Hereford for appellant. assistance by the aid of which a sale is con- Mr. Eugene S. Ives for appellee.

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V.

Mr. Chief Justice Fuller:

able the Supreme Court of the United States This case is identical in all essential re to consider that question, even though anspects with that just decided, and must other Federal question has been properly take the same course.

raised and brought up by the same writ of Judgment affirmed.

error. t.

[No. 252.] STATE OF MONTANA EX REL. CHARLES Argued January 7, 8, 1907. Decided Janu

ary 28, 1907. S. HAIRE, Plff. in Err.,

I “

N ERROR to the Supreme Court of the JAMES H. RICE, as State Treasurer. State of Montana to review a judgment

in favor of respondent in a proceeding to Error to state court-Federal question.

1. The claim of a right under an “au. compel the state treasurer by mandamus

1. The claim of a right under an “au; to pay a claim of an architect for services thority exercised under the United States," within the meaning of U. S. Rev. Stat.'s performed in the erection of an addition to 709, U. S. Comp. Stat. 1901, p. 575, defining the state normal school. Affirmed. the appellate jurisdiction of the Supreme

See same case below (Mont.) 83 Pac. 874. Court of the United States over state courts, is presented by a contention that a Statement by Mr. Justice Moody: Montana statute was authorized by the en By an act approved February 22, 1889 (25 abling act of Feb. 22, 1889 (25 Stat. at L. Stat. at L. 676, chap. 180), hereafter referred 670, chap. 180), and was therefore valid, to as the enabling act, the state of Montana even if repugnant to the Constitution of was, with other states, admitted to the that state. * Error to state court-Federal question-how made by the United States to the several

Union. By it grants of public lands were raised.

2. A right claimed under an authority states admitted, of which only those made exercised under the United States will be by § 17 need be stated here. By that secregarded as “specially set up or claimed,” tion grants were made to the state of Monwithin the meaning of U. S. Rev. Stat. 'stana in the following terms: 709, defining the appellate jurisdiction of the “To the state of Montana: For the esSupreme Court of the United States over tablishment and maintenance of a school of state courts, where it clearly and unmis mines, one hundred thousand acres; for state takably appears from the opinion of the normal scnools, one hundred thousand acres; state court that the Federal question was for agricultural colleges, in addition to the assumed to be in issue, that the decision was against the Federal claim, and that the grant hereinbefore made for that purpose, decision of the question was essential to fifty thousand acres; for the establishment the judgment rendered.†

of a state reform school, fifty thousand Constitutional law-legislative disposal of acres; for the establishment of a deaf and

public lands under congressional authority dumb asylum, fifty thousand acres; for pub-effect of restraints in state Constitu- lic buildings at the capital of the state, in tion,

addition to the grant hereinbefore made for 3. The Montana legislature must act in that purpose, one hundred and fifty thousubordination to the state Constitution in

sand acres. executing the authority intrusted to it by Congress in the enabling act of Feb. 22, 1889, section shall be held, appropriated, and dis

And the lands granted by this the state for a normal school, to be held, posed of exclusively for the purposes herein appropriated, and disposed of exclusively mentioned, in such manner as the legislature for that purpose, in such manner as the of the respective states may severally prolegislature should provide.

vide." Error to state court-questions reviewable Provision was made in the act for the se

validity of state statute under state Con- lection of the granted lands from the surstitution. 4. The decision of the highest court of lands of the United States, and selections

veyed, unreserved, and unappropriated public a state, that a state statute is repugnant were made by the state of Montana. The to the Constitution of that state, is conclusive upon the Supreme Court of the United constitutional convention of Montana adoptStates in reviewing the judgment of the ed an ordinance designated as Oruinance No. state court. I

1, entitled “Federal Relations,” which orError to state court-scope of review—ques- several grants of land from the United

dained that “the state hereby accepts the tions not raised in time.

5. Raising the Federal question for the States to the state of Montana, first time in the petition for a writ of error upon the terms and conditions therein proto a state court and in the accompanying vided.” An act of the legislative assembly assignment of errors is not sufficient to en- of the state of Montana, approved February

*Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, $$ 1049-1054.
Ed. Note.--For cases in point, see vol. 13, Cent. Dig. Courts, § 1080.
Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, $ 956.

reasons:

2, 1905, authorized and directed the state, his claim out of the fund created by the board of land commissioners to sign and is- sale of bonds aforesaid, or to show cause for sue interest-bearing bonds to the amount the refusal. The alternative writ issued, of $75,000, for the principal and interest of and to it the respondent interposed a demurwhich the state of Montana should not be rer and a motion to quash. The only reason liable (s 1), and directed the state treas. alleged by the respondent in support of his urer to sell the bonds ($ 6). Section 7 di- pleadings, material here, was that the act rected that

of the legislature was in violation of the “The moneys derived from the sale of said Constitution of Montana. The case was bonds shall be used to erect, furnish, and heard by all the judges of the supreme court equip an addition to the present state nor of the state, as an original case, and it was mal school building at Dillon, Montana, and adjudged that the alternative writ of manshall be paid out for such purpose by the damus be quashed and the proceedings disstate treasurer upon vouchers approved by missed, for the reasons that the act authorthe executive board of the state normalizing the issue of the bonds, secured by school, and allowed and ordered paid by the pledge of the proceeds of the lands, was a state board of examiners.”

violation of § 12, article ll, of the state The law further provided that all sums Constitution, and that this section of the realized from the sale of, or the leasing of, Constitution was not in conflict with § 17 of or from licenses to cut trees on, the lands the enabling act. Haire then petitioned the granted for the state normal school by § 17 court for a rehearing, alleging the following of the enabling act, should be pledged as security for the payment of the principal 1st. Because the opinion is inconsistent and interest of the bonds issued under the and contradictory; act, and should be set apart as a separate 2d. Because the court does not give any fund for that purpose.

It was made the force or effect to the requirements of § 17 of duty of the state treasurer to keep such the enabling act, that the lands granted for money in a fund to be designated as the a state normal school shall be appropriated state normal school fund, and to pay there for the purpose for which the grant is made, from the principal and interest of the bonds and in other respects misconstrue § 17; authorized by the act.

3d. Because the court misconstrued § 12, Section 12, article 11, of the Constitution article 11, of the Constitution of Montana. of the state of Montana, is as follows:

In the further development and specifi"The funds of the state university and all cation, in the petition for rehearing, of the other state institutions of learning, from second reason, it appears, in substance, that whatever source accruing, shall forever re- among the grounds relied upon to support it main inviolate and sacred to the purpose for were the claims that § 17 of the enabling which they were dedicated. The various act had directed that the legislature, and not funds shall be respectively invested under the state, should dispose of the granted such regulations as may be prescribed by lands; that the lands or their proceeds were law, and shall be guaranteed by the state appropriated by Congress to the establishagainst loss or diversion. The interest of ment as well as the maintenance of the norsaid invested funds, together with the rents mal school; and that, in acting in pursuance from leased lands or properties, shall be de- of the authority conferred by Congress, the voted to the maintenance and perpetuation legislature was not restricted by the Conof these respective institutions."

stitution of the state, which in that respect The bonds authorized by the foregoing was subordinate to the authority of a law law of the state of Montana were duly of- of the United States. The supreme court of fered for sale, and purchased by the state the state took the petition for rehearing board of land commissioners themselves as under advisement, modified slightly, but not an investment of the common school fund essentially, its former opinion, which had of the state.

passed adversely on the claims of the peCharles S. Haire performed valuable serv-titioner set forth in the petition for rehearices as an architect in the erection of an ing, denied the rehearing, and entered final addition to the state normal school, ob- judgment for the respondent. Whereupon tained vouchers approved and allowed in the this writ of error was brought, assigning as manner prescribed in § 7 of the state law, errors: and presented the vouchers to the state “1. The said court erred in holding and detreasurer, who declined to pay them, whereciding that the act of Congress, approved upon the state of Montana, on his relation, February 22, 1889, providing, among other brought a petition in the supreme court of things, for the admission of Montana into the state of Montana against the state the Union, and known as the 'enabling act,' treasurer, praying an alternative writ of does not authorize the legislative assembly mandamus, directing the respondent to pay of the state of Montana to appropriate or

apply the proceeds derived from the sale or authority upon writ of error to re-examine leasing of the lands granted to said state the final judgment or decree of the highest by § 17 of said act for state normal schools, court of a state, “where any title, right, or from the sale of the timber thereon, to privilege, or immunity is claimed under the the establishment of such schools.

Constitution, or any treaty or statute of, “The court erred in holding that § 12 of or commission held or authority exercised article 11 of the Constitution of the state, under, the United States, and the decision is as construed by said court, is not repugnant against the title, right, privilege, or immuto § 17 of said act of Congress, and is valid. nity specially set up or claimed, by either

"3. The court erred in holding and decid- party, under such Constitution, treaty, stating that $ 12 of article 11 of the Constitution ute, commission or authority.” Our jurisdicof the state of Montana, as construed by tion in this case does not exist, unless a said court, does not impair the obligation of right claimed under a law of the United the contract resulting from the acceptance States, or an authority exercised under the of the grant of lands made to the state of United States, was specially set up in and Montana by $ 17 of said act of Congress. denied by the supreme court of Montana.

“4. The court erred in holding and decid. A brief discussion of the facts will determine ing that the proceeds derived from the sale whether these conditions of jurisdiction are of said lands and the timber thereon consti- present. The United States granted to the tute a permanent fund, no part of which state of Montana 100,000 acres of the public can be used to establish a state normal lands for a normal school, to be held, apschool, or for any other purpose, except that propriated, and disposed of for such purpose, of investment.

in such manner as the legislature should pro"5. The court erred in holding and decid- vide. The legislature, by a law enacted in ing that the interest received from the in- due form, did provide that bonds should be vestment of the proceeds of the sale of said issued, secured by the proceeds of the sale lands and the timber thereon, together or leasing of the lands; that the proceeds with the rents derived from leasing said of the bonds should be used for the erection lands, can be used only for the purpose of of an addition to a normal school building maintaining and perpetuating a state nor- and paid out for that purpose on approved mal school.

vouchers. In effect, though by a circuitous “6. The court erred in holding and decid- method, this was a devotion of the proceeds ing that the act of the legislative assembly of the sale of the land to the erection of an of the state of Montana, entitled 'An Act to addition to the building. Haire presented to Enable the Normal School Land Grant to be the state treasurer, the custodian and disFurther Utilized in Providing Additional bursing officer of the fund, approved vouchBuildings and Equipment for the State Nor- ers for his claim for services in the erection, mal School College,' approved February 2, and payment of them was refused. The 1905, is invalid, as being in conflict with 8 state, on relation of Haire, by proceedings 12 of article 11 of the Constitution of the which were deemed appropriate in form, state of Montana.

sought to enforce against the state treas. 7. The court erred in denying the appli- urer the payment of the vouchers, claiming, cation of plaintiff in error for a writ of man- as appears from the opinion of the state date.”

court:

First. That the legislature had authority, Mr. Milton S. Gunn for plaintiff in error. under a statute of the United States, name

Messrs. Albert J. Galen, W. H. Poorman, ly, § 17 of the enabling act, to deal with and E. M. Hall for defendant in error. the lands as it did by the bond act;

Second. That the bond act was not in vioMr. Justice Moody, after making the fore-lation of the state Constitution; and, going statement, delivered the opinion of the Third. That if it were in violation of that court:

Constitution, the law enacted in pursuance The objection is made that no Federal of an authority granted by the United question is presented by the record. It must, States was valid and effective notwithstandtherefore, be determined whether the contro- ing. All three of these claims were denied versy turned in the state court upon any by the state court. The first and third are Federal question, and, if so, whether it was clearly claims of a "right under an authority raised and decided in that court in a manner exercised under the United States," and, required to give this court jurisdiction to therefore, raised a Federal question. Maguire re-examine the decision upon it. The juris- v. Tyler, 1 Black, 195, 17 L. ed. 137. But it is diction to do this depends upon whether the not enough that a claim of a Federal right case falls within that part of $ 709 of the arose upon the facts. It must also appear Revised Statutes (U. S. Comp. Stat. 1901, affirmatively that the right was “specially p. 575), by which this court is given the set up.” No reference was made to any

Federal right in the petition for the writ of state was, by the last clause of § 17, apmandamus, the demurrer, or the motion to pointed as agent of the United States, with quash, and the petition for a rehearing, full power to dispose of the lands in any where the Federal question was first brought manner which it deemed fitting, provided forward by the plaintiff in error, so far as only that the lands or their proceeds should the record discloses, was denied by the court. be devoted to normal school purposes; and It is not enough that the Federal question that, therefore, in the execution of this was first presented by a petition for rehear-agency, the legislature was not and could ing, unless that question was thereupon con not be restrained by the provisions of the sidered, and passed on adversely by the state Constitution. It is vitally necessary court. Corkran Oil & Development Co. v. to the conclusion reached by these arguArnaudet, 199 U. S. 182, 50 L. ed. 143, 26 ments that the enabling act should be interSup. Ct. Rep. 41.

preted as constituting the legislature, as a But an examination of the opinion of the body of individuals, and not as a parliamensupreme court of the state shows clearly tary body, the agent of the United States. that that court decided two questions: First, But it is not susceptible of such an interthat the bond act was in violation of $ 12 of pretation. It granted the lands to the state article 11 of the state Constitution, which of Montana, and the title to them, when sein substance provided that all funds of the lected, vested in the grantee. In the same state institutions of learning should be in-act the people of the territory, about to bevested and only the interest upon them used come a state, were authorized to choose delefor the support of those institutions; and, gates to a convention charged with the duty second, a question stated in the opinion as of forming a Constitution and state governfollows: "But, on behalf of the relator, it ment. It was contemplated by Congress is contended that by the terms of g 17 of that the convention would create the legisthe enabling act the lands granted to the lature, determine its place in the state govstate for normal school purposes are to be ernment, its relations to the other governheld, appropriated, and disposed of [exclu- mental agencies, its methods of procedure, sively] for normal school purposes, in such and, in accordance with the universal pracmanner as the legislature of Montana may tice of the states, limit its powers. It is provide, and that this act is sufficiently not to be supposed that Congress intended broad to warrant the legislature in borrow that the authority conferred by § 17 of the ing money and pledging such lands for the enabling act upon the legislature should be payment of the principal and interest. And exercised by the mere ascertainment of its it is further contended that, if § 12 of article will, perhaps when not in stated session, or 11 of the Constitution contravenes the pro- by a majority of the votes of the two visions of g 17 of the enabling act, § 12 is houses, sitting together, or without the asinvalid and of no force or effect” [83 Pac. sent of the executive, or independently of 876]; which was decided adversely to the the methods and limitations upon its powers contentions stated. The decision of both prescribed by its creator. On the contrary, questions, as the court determined them, the natural inference is that Congress, in was essential to the judgment rendered, designating the legislature as the agency to and the decision of the second was a dis- deal with the lands, intended such a legistinct denial of the Federal right claimed by lature as would be established by the Conthe plaintiff in error. Where it clearly and stitution of the state. It was to a legislaunmistakably appears from the opinion of ture whose powers were certain to be limit. the state court under review that a Federal ed by the organic law, to a legislature as a question was assumed by the highest court parliamentary body, acting within its lawof the state to be in issue, was actually de- ful powers, and by parliamentary methods, cided against the Federal claim, and the de- and not to the collection of individuals who, cision of the question was essential to the for the time being, might happen to be memjudgment rendered, it is sufficient to give bers of that body, that the authority over this court authority to re-examine that these lands was given by the enabling act. question on writ of error. San José Land & It follows, therefore, that in executing the Water Co. v. San José Ranch Co. 189 U. S. authority intrusted to it by Congress the 177, 47 L. ed. 765, 23 Sup. Ct. Rep. 487. Ap- legislature must act in subordination to the plying this rule to the case, there is juris- state Constitution, and we think that in so diction to re-examine the claim of the plain holding the supreme court of the state comtiff in error on its merits.

mitted no error. In support of it the plaintiff in error ar- It is further claimed by the plaintiff in er: gues that the grant of all the land by the ror that the supreme court of the state erred enabling act was by an ordinance accepted in holding that the law under which the by the state “upon the terms and conditions bonds were issued and the proceeds of public therein provided;" that the legislature of the' lands devoted to their payment was repug.

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