« ΠροηγούμενηΣυνέχεια »
suit, and, so far as they impeach the correctness of that adjudication, are not open to re-examination in any collateral proceeding between the same parties or their privies, provided the court which rendered the decree had jurisdiction of the subject matter and of the parties. Its jurisdiction to pass any final decree affecting the rights of non-resident minors is assailed only upon grounds to be now stated:
1. It is contended that there was no authority, under the laws of Missouri, to proceed against the non-resident minors by publication. Counsel for the plaintiffs refers to the act of March 17, 1835, regulating the practice at law in the courts of Missouri, and calls attention to the fact that, while it provides for actual service of process upon infants, no provision is made for service upon non-resident defendants by publication. And referring to the act of March 7, 1835, regulating the practice in chancery, he insists that, while a mode is therein prescribed for the service of process upon resident and non-resident defendants, no provision is made for service on non-resident minors. It is uot questioned that, under the laws of Missouri, adult nonresident defendants in equity suits concerning real estate may be proceeded against by publication in such cases as that instituted by Deane in 1836; but it is contended that non-resident infants could not be brought before the court in that mode. In this view we do not concur. It appears from the Missouri statutes that the court which determined Deane's suit was a court of record, having exclusive original jurisdiction, in the county in which it was held, as a court of equity, "in all cases where adequate relief cannot be had by the or. dinary course of proceedings at law," with authority “to proceed therein according to the rules, usage, and practice of courts of equity, and to enforce their decrees by execution, or in any manner proper for a court of chancery;" also, that “suits in equity concerning real estate, or whereby the same may be affected, shall be brought in the county within which such real estate, or a greater part thereof, is situate," and, in any county, “if all the defendants are non-residents;" and further, that “in all cases where the court may decree the conveyance of real estate, or the delivery of personal property, they may by decree, pass the title of such property without any act to be done on the part of the defendants, when in their judgment it shall be proper; and may issue a writ of possession, if necessary, to put the party entitled into possession of such real or personal property, or may proceed by attachment or sequestration." Rev. St. Mo. 1835, (20 Ed. 1840,) tit. “Courts,” 155; Id. tit. “Practice in Chancery,” art. 1, 88'1, 2; art. 6, § 7.
By the same statute, provision is made for proceeding against defendants who are non-residents of the state, by publication, where the complainant, or any one for him, files with his bill an affidavit, stating their non-residence. Upon such affidavit being filed, the court, or the clerk in vacation, was authorized to make an order, directed to such non-residents, notifying them of the commencement of the suit, stating the substance of the allegations and prayer of the bill, and requiring them to appear on a day to be therein named (allowing sufficient time for publication) and answer the same, or the bill will be taken as confessed. Rev. St. Mo. 1835, tit. “Practice in Chancery,” art. 1, § 7. Similar proceedings were prescribed as to persons interested in the subject-matter of the bill, whose names appeared from the verified al. legations of the bill to be unknown to the complainant. Id. :$ 10, 11. While our attention has not been called to any statute of Missouri in force when Deane's suit was instituted, which, in terms, authorized publication against non-resident minors, there was no exception in their favor from the provision which permits that mode of bringing non-resident defendants before the court. They could be proceeded against by publication whenever the statute permitted such process against adults. 1 Daniell, Ch. Pr. 164, 659, c. 15, 8 2. The provision authorizing courts of equity to proceed according to the rules, usage, and practice of courts of chancery, had reference to
the rules and practice which obtained in the English courts of chancery. Ruby v. Strother, 11 Mo. 417; Hendricks v. McLean, 18 Mo. 32; Creath v. Smith, 20 Mo. 113. In conformity with that practice, the court, in the case of Deane v. Bryan, appointed a guardian ad litem to defend the suit for the non-resident infant defendants. 1 Daniell, Ch. Pr. 160-163. And the record shows that he made defense.
2. But it is claimed that the decree was based upon the admissions by the guardian ad litem of the truth of the allegations of the bill, and was, for that reason, void. Without stopping to comment upon the authorities which coun. sel cite in support of this position, some of which hold that decrees pro confesso against infants are erroneous,—not that they are subject on that ground to collateral attack as void,-it is sufficient to say that the decree under examination was not of the character stated. The contention to the contrary rests entirely upon the recital in the decree that "by agreement of the parties
it is consented that the bill be taken in lieu of allegations. The meaning of those words is shown by reference to the before-mentioned act regulating the practice in chancery, by which it is provided that, “within such time as the court shall require, before the hearing of a cause at issue, each party*shall set down distinctly the allegations made by him and denied by the other party, or which, by the course of proceedings in chancery, he is required to support by his testimony, and issues shall be made thereon accordingly, (Rev. St. Mo. 1835, tit. “Practice in Chancery,” art. 3, § 1;) that the testimony shall be confined to the issue thus made, (Id. & 2;) and that “the trial of all issues and matters of fact shall be by jury, or, if neither party require a jury, by the court, and the allegations shall be disposed of by a general or special verdict before a final decree shall be made, except such as shall be expressly decided by the court to be immaterial or irrelevant to the merits of the cause. Id. § 5. The consent given was, not that the court might take the allegations of the bill to be true, but only that the “bill be taken in lieu of allegations,” thereby dispensing with the requirement of the statute that the complainant should formally “set down" the material allegations of his bill. The effect of the consent was to place the complainant under the necessity, imposed by statute as well as by the established rules in equity practice, of proving every allegation of fact necessary to authorize a decreo against the non-resident infants. Nothing was confessed by the guardian ad litem, but, a jury being waived, the court found the matters alleged in the bill to be true, and decreed accordingly. That the evidence upon which the court acted does not appear in the record, is, perhaps, because the suit was heard upon oral testimony, in connection with the official documents and records referred to in the bill. Id. 8 7.
We have, then, a final decree of a court of superior general jurisdiction, rendered in a suit that involved the title to a tract of land embracing the premises in controversy, and situate in the county in which the court was held; in which suit the present plaintiffs, as non-resident minors, were parties defendant, having been brought, in the mode prescribed by the local law, before the court, by publication, and having made defense by guardian ad litem duly appointed, and by which decree it was adjudged that the right, title, and interest of the present plaintiffs and others in the said tract be vested in the complainant Deane, under whom the present defendants hold *possession. The decree, as we have seen, passed the title without any conveyance from the non-resident defendants; for, by its terms, whatever title they held was vested in the complainant Deane. According to the settled principles of law, the plaintiffs are thereby estopped from asserting, in this collateral proceeding, any interest in the premises in controversy adverse to that of the defendants. It is not subject to collateral attack, because there is nothing on the face of the record which shows any want of jurisdiction in the court that rendered it. It was and is conclusive as to all the parties to that suit.
and their privies, until reversed or modified on appeal, or unless, in proper time, it had been impeached, in some direct proceeding, and set aside or annulled.
One other question remains to be considered. Upon the supposition that Austin took nothing by the grant of 1802, and at most had but an equitable interest in the land capable of being enlarged into a complete title in the mode prescribed by the acts of congress, the plaintiffs claim that the rights of the United States were unaffected by any proceedings between private persons, involving Austin's title; and, consequently, that the legal title passed to them under that clause of the act of February 14, 1874, which releases whatever title the United States may have “to the heirs, legal representatives, or assigns of said Moses Austin." In other words, that the decree in 1836 does not preclude them from accepting from the government the legal title to the premises in controversy. We have seen that the property interest of Austin, whatever it was, passed, before the act of 1874, under valid judicial proceedings to other than the present plaintiffs. If congress intended to pass the title of the government to the heirs simply, there was no necessity to include bis “legal representatives or assigns.” But there could have been no such intention; for it was common knowledge, as it was the settled law, that such inchoate interest or title as Austin acquired from the Spanish government, prior to October 1, 1800, could, as between private persons, be transferred or reached by judicial process. We concur with the court below in holding that congress intended, by the act of 1874, to recognize the claim of Austin arising from the concession, survey, and grant recited in its preamble, and to release to the assignee of such claim the remaining title (if any such there was) of the United States. And those who purchased under the proceedings referred to, were assignees within the meaning of the act. There was no purpose to disturb their title or possession. On the contrary, the sole object of this legislation, so far as it may be ascertained from the debates in congress, was to assure those who thus acquired possession, whether by contract or by operation of law, that they would not be disturbed by any assertion of claim upon the part of the United States. It originated with the representatives in congress from Missouri, whose avowed purpose was to protect the interests of their immediate constituents. The necessity of this act arose froin a then recent opinion of the commissioner of the general land office, that the legal title to the land within the Austin claim was still in the United States. In order to quiet the fears of those "who have been in possession for half a century, claiming the land adversely against everybody, as well as the United States,” the act of 1874 was passed. It had no other object. Cong. Rec. vol. 2, pt. 1, (43d Cong. 1st Sess. 1874,) pp. 716, 910.
There is no error in the record, and the judgment must be affirmed. It is 80 ordered.
(113 U. S. 1)
COLE 0. CITY OF LA GRANGE:
(January 5, 1885.) 1. CONSTITUTIONAL LAW-EMINENT DOMAIN_PUBLIO USE.
The general grant of legislative power in the constitution of a state does not anthorize the legislature, in the exercise either of the right of eminent domain or of the right of taxation, to take private property, without the owner's consent, for
any but a public object. 2. SAME-MISSOURI STATUTE-MUNICIPAL BONDS TO AID PRIVATE CORPORATION.
The legislature of Missouri has no constitutional power to authorize a city to issue its bonds by way of donation to a private manufacturing corporation. In Error to the Circuit Court of the United States for tho Eastern District of Missouri.
'S. C. 19 Fed. Rep. 871.
Geo. A. Sanders, for plaintiff in error. David Wagner, for defendant in error.
GRAY, J. This was an action to recover the amount of coupons for interest from January 1, 1873, to January 1, 1880, attached to 25 bonds, all exactly alike, except in their serial numbers, and one of which was as follows: “UNITED STATES OF AMERICA, STATE OF MISSOURI, CITY OF LA GRANGE. “No. 23.
$1,000. “Know all men by these presents, that the city of La Grange doth, for a good, sufficient, and valuable consideration, promise to pay to the La Grange Iron and Steel Company, or*bearer, the sum of one thousand dollars, in current funds, thirty years after the date hereof, at the Third National Bank, city of New York, together with interest thereon at the rate of eight per cent. per annum, payable annually in current funds, on the first day of each January and July ensuing the date hereof, on presentation and surrender of the annexed interest coupons at said Third National Bank.
"This bond is issued under an ordinance of the city council of the said city of La Grange, passed and approved September 22, 1871, under and in pursuance of an act of the legislature of the state of Missouri, entitled .An act to amend an act entitled an act to incorporate the city of La Grange,' approved March 9, 1871, which became a law and went into force and effect from and after its said approval.
“This bond to be negotiable and transferable by delivery thereof.
"In testimony whereof, the city council of the city of La Grange hath hereunto caused to be affixed the corporate seal of said city, and these presents to be signed by the mayor, and countersigned by the clerk, of the city council of said city, this fourteenth day of December, 1871. (Seal.]
"J. A. HAY, Mayor.
“R. McCHESNEY, Clerk." The petition alleged that the city of La Grange, on December 14, 1871, executed the 25 bonds, and delivered them to the La Grange Iron & Steel Company, under and by virtue of the authority contained in section 1 of article 6 of the city charter, as amended by an act of the legislature of Missouri, approved March 9, 1871, (which section, as thus amended, was set forth in the petition, and is copied in the margin,') and under and by virtue of an ordinance of the city, dated September 22, 1871, by which an election was authorized to be held in the city on October 4, 1871, to test the sense of the people
Section 1. The city council shall have power to levy and collect taxes upon all real and personal property within the limits of the corporation, not to exceed one-half of one per centum per annum upon the assessed valuation thereof, in any manner to be provided by ordinance not repugnant to the constitution of the state of Missouri. And whenever twenty-five persons, who are tax-payers and residents of the city of La Grange, shall petition the city council, setting forth their desire to donate or subscribe to the capital stock of any railroad or manufacturing company, or for the improve ment of any road leading into the city, or for increasing the trade, travel, or commerce thereof, or for securing the location and maintenance of any manufacturing company, stating the terms and conditions on which they desire such donation or subscription to be made, it shall be the duty of the city council to order an election to be held, at which the qualified voters of said city shall be allowed to vote; and if it shall appear from the returns of said election that two-thirds of the resident tax-payers have voted in favor of such donation or subscription, it shall be declared carried by proclamation of the mayor, and a special tax of not exceeding two per centum per annum may be levied on the assessed value of real and personal property to pay such donation or subscrip; tion, and the city council shall, under the hand of the mayor, and attested by the sea) of said city, issue bonds of the city of La Grange to the amount of the capital stock so subscribed, or to the amount of the donation made to any such enterprise, or for any purpose hereinbefore specified; which said bonds shall be conditioned upon the proposition submitted and voted upon at the election held for that purpose, and said bonds shall not bear a greater rate of interest than ten per centum per annum.
of the city upon the question of issuing the bonds; that, in compliance with the ordinance and with the city charter, an election was held at which the proposition was adopted by a two-thirds vote of the qualified voters; and that on September 1, 1872, the plaintiff bought the 25 bonds, for value, relying upon the recitals on their face, without knowledge of any irregularity or defect in their issue,-of all which the defendant had notice,-by means whereof the defendant became liable and promised to pay to the plaintiff the sums specified in the coupons, according to their tenor and effect.
The answer denied all the allegations of the petition; and for further an. swer averred that the act of the legislature mentioned in the petition, approved March 9, 1871, attempted to give, and by terms did give, to the city authority to make gifts and donations to private manufacturing associations and corporations; that the city council, purporting to act under such authority, by an ordinance adopted September 22, 1871, (which was referred to in the answer and is copied in the margin,^) did submit to a vote of the citizens a proposition to give or donate to the La Grange Iron & Steel Company, a private manufacturing company, formed and established for the purpose of carrying on and operating a rolling-mill, the sum of $200,000; that, in accordance with that ordinance, the bonds of the city were issued, with interest coupons attached, a part of which were those sued on; and that the bonds and coupons were issued to said manufacturing company, which was a strictly private enterprise, formed and prosecuted for the purpose of private gain, and which had nothing whatever of a public character, and it was incompetent for the legislature to grant authority to cities or towns to make donations and issue bonds to mere private companies or associations having no public functions to perform, and the act of the legislature and the ordinance of the city were void; wherefore the bonds and coupons were issued without any legal authority, and were wholly void.
To this answer the plaintiff filed a general demurrer, which was overruled by the court, and, the plaintiff electing to stand by his demurrer, judgment was entered for the defendant. 19 Fed. Rep. 871. The plaintiff sued out this writ of error.
*The general grant of legislative power in the constitution of a state does not enable the legislature, in the exercise either of the right of eminent domain or of the right of taxation, to take private property, without the owner's consent, for any but a public object. Nor can the legislature authorize counties, cities, or towns to contract, for private objects, debts which must be paid by taxes. It cannot, therefore, authorize them to issue bonds to assist merchants or manufacturers, whether natural persons or corporations, in their private business. These limits of the legislative power are now too firmly established by judicial decisions to require extended argument upon the subject.
In Loan Association v. Topeka, 20 Wall. 655, bonds of a city, issued, as
Be it ordained by the city council of the city of La Grange as follows: That upon petition of John M. Glover, and twenty-five other tax-payers of said city, an election be, and is hereby, ordered to be held at the city hall in said city, on Wednesday, the fourth day of October next, to test the sense of the legal voters of said city on the propriety of the said city donating ten acres of land and two hundred thousand dollars in city bonds, to be due in thirty years from date, and to bear interest at the rate of eight per cent. per annum, the interest to be paid semi-annually, at New York or Boston, to Isaac R. Adams and associates, in consideration that the said Isaac R. Adams and associates will build and construct at the city of La Grange a rolling-iron mill of sufficient capacity to roll twenty-five thousand tons of railroad iron per annum, the said mill to be built within one year from the date of the election herein ordered, and the said company shall operate and maintain the same at the city of La Grange for the term of twenty years from its completion, in accordance with the memorandum and agreement here filed of this date; and on the ballot of each voter shall be written or printed “for the donation," or "against the donation.” Adopted September 22, 1871.
J. A. Hay, Mayor.