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appeared on their face, pursuant to an act of the legislature of Kansas, to a manufacturing corporation, to aid it in establishing shops in the city for the manufacture of iron bridges, were held by this court to be void, even in the hands of a purchaser in good faith and for value. A like decision was made in Parkersburg v. Brown, 106 U. S. 487; S. C. 1 SUP. CT. REP. 442. The decisions in the courts of the states are to the same effect. Allen v. Jay, 60 Me. 124; Lowell v. Boston, 111 Mass. 454; Weismer v. Douglas, 64 N. Y. 91; In re Eureka Co. 96 N. Y. 42; Bissell v. Kankakee, 64 Ill. 249; English v. People, 96 111.*566; Central Branch U. Pac. R. Co. v. Smith, 23 Kan. 745.* We have been referred to no opposing decision. The cases of Hackett v. Oto tawa, 99 U.S. 86, and Ottawa v. National Bank, 105 U.S. 342, were decided, as the chief justice pointed out in Ottawa v. Carey, 108 U.S. 110, 118, S. C. 2 SUP. CT. REP. 361, upon the ground that the bonds in suit appeared on their face to have been issued for municipal purposes, and were therefore valid in the hands of bona fide holders. In Livingston v. Darlinyton, 101 U. S. 407, the town subscription was towards the establishment of a state reform school, which was undoubtedly a public purpose, and the question in controversy was whether it was a corporate purpose within the meaning of the constitution of Illinois. In Burlington v. Beasley, 94 U. S. 310, the grist-mill, held to be a work of internal improvement, to aid in constructing which a town might issue bonds under the statutes of Kansas, was a public mill which ground for toll for all customers. See Osborne v. Adams Co. 106 U. S. 181; S. C. 1 SUP. Cr. REP. 168; and 109 U. S. 1; S. C. 3 SUP. Cr. REP. 150; Blair v. Cuming Co. 111 U. S. 363; S. C. 4 SUP. Cr. REP. 449. Subscriptions and bonds of towns and cities, under legislative authority, to aid in establishing railroads, have been sustained on the same ground on which the delegation to railroad corporations of the sovereign right of eminent domain has been justified,—the accommodation of public travel. Rogers v. Burlington, 3 Wall. 654; Queensbury v. Culver, 19 Wall. 83; Loan Association v. Topeka, 20 Wall. 661, 662; Taylor v. Ypsilanti, 105 V. S. 60. Statutes authorizing towns and cities to pay bounties to soldiers have been upheld, because the raising of soldiers is a public duty. Middleton v. Township of Mullica, 112 U.S. 433; S. C., ante, 198; Taylor v. Thompson, 42 III. 9; Hilbish v. Catherman, 64 Pa. St. 154; State v. Richland T'p. 20 Ohio St. 362; Agawam v. Hampden, 130 Mass. 528, 534.

The express provisions of the constitution of Missouri tend to the same conclusion. It begins with a declaration of rights, the sixteenth article of which declares that “no private property ought to be taken or applied to public use without just compensation.” This clearly presupposes that private property cannot be taken for private use.

St. Louis Co. Ct. v.«Griswold, 589 Mo. 175, 193; 2 Kent, Comm. 339 note, 340. Otherwise, as it makes no provision for compensation except when the use is public, it would permit private property to be taken or appropriated for private use without any compensation whatever. It is true that this article regards the right of eminent domain, and not the power to tax; for the taking of property by taxation requires no other compensation than the tax-payer receives in being protected by the government to the support of which he contributes. But, so far as respects the use, the taking of private property by taxation is subject to the same limit as the taking by the right of eminent domain. Each is a taking by the state for the public use, and not to promote private ends.

The only other provisions of the constitution of Missouri, having any relation to the subject, are the following sections of the eleventh article: “Sec. 13. The credit of the state shall not be given or loaned in aid of any person, association, or corporation; nor shall the state hereafter become a stockholder in any corporation or association, except for the purpose of 86curing loans heretofore extended to certain railroad corporations by the state. Sec. 14. The general assembly shall not authorize any county, city, or town to become a stockholder in, or loan its credit to, any company, association, or

corporation, unless two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent thereto.” Both these sections are restrictive, and not enabling. The thirteenth section peremptorily denies to the state the power of giving or lending its credit to, or becoming a stockholder in, any corporation whatever. The aim of the fourteenth section is to forbid the legislature to authorize counties, cities, or towns, without the assent of the tax-payers, to become stockholders in, or to lend their credit to, any corporation, however public its object, (State v. Curators State Univ. 57 Mo. 178;) not to permit them to be authorized, under any circumstances, to raise or spend money for private purposes.

It is a verred in the answer, and admitted by the demurrer, that the La Grange Iron & Steel Company, to which the bonds were issued, was “a private manufacturing company, formed for the purpose of carrying on and operating a rolling-mill,” and “was a strictly private enterprise, formed and prosecuted for the purpose of private gain, and which had nothing whatever of a public character." The ordinance referred to shows that the mill was to manufacture railroad iron; but that is no more a public use than the manufacture of iron bridges, as in the Topeka Case, or the making of blocks of stone or wood for paving streets. There can be no doubt, therefore, that the act of the legislature of Missouri is unconstitutional, and that the bonds, expressed to be issued in pursuance of that act, are void upon their face. As for this reason the action cannot be maintained, it is needless to dwell upon the point that the answer demurred to, besides the special defense of the unconstitutionality of the act, contains a general denial of the allegations in the petition. That point was mentioned and passed over in the opinion of the circuit court, and was not alluded to in argument here, the parties in effect assuming the general denial in the answer to have been withdrawn or waived, and the case submitted for decision upon the validity of the special defense.

Judgment affirmed.

(113 U. 8. 203) TUCKER and another o. MASSER, Widow, and others, Heirs at Law, etc.

(January 26, 1885.) PLACER MINING LOCATIONS-SEVERAL CLAIMS UNITED IN ONE PATENT.

The case of Smelting Co. v. Kemp, 104 U. 8. 636, sustains the validity of a single patent, issued after the year 1870, to cover several distinct placer mining locations united in one claim.

In Error to the Circuit Court of the United States for the District of Colorado.

C.J. Rowell and L. C. Rockwell, for plaintiffs in error. No brief filed for defendant in error, or argument made.

FIELD, J. This is an action of ejectment for the possession of three lots in what is known as Stevens' and Leiter's subdivision of the city of Leadville, in Lake county, Colorado. The complaint is in the usual form under the practice established in that state, where the action is brought to obtain possession of land alleged to be part of the public domain, but of which the plaintiff claims to have a better right of possession than his adversary. It alleges that on the tenth of March, 1879, the plaintiff was and still “is the owner, by prior actual possession on the public domain, and by superiority of possessory title, and entitled to the immediate possession" of the described premises, and that they are of the value of $5,000; that on the twentieth of that month the defendants wrongfully and unlawfully entered upon the premises, and wrongfully and unlawfully withheld them from the plaintiff, to his damage of $1,000; that the rents and profits of the premises, from the date of the ouster, have been $200 a month, and aggregate $3,000. The plaintiff, therefore, asks judgment for the possession of the premises, and for

*204

the dam ages, rents, and profits. The answer of the defendants denies the general allegations of the complaint, and avers that they are the owners of the premises, and entitled to their possession.

On the trial the plaintiff offered proof tending to show prior occupation of the premises, the erection of some buildings thereon, his forcible dispossession by the defendants, and the damages he had sustained. The defendants introduced in evidence a patent of the United States to William H. Stevens and Levi Z. Leiter, bearing date November 5, 1878, which covered the premises in controversy, and traced title from the patentees through sundry mesne conveyances. The patent was for a placer mining claim, and the plaintiff was allowed, against the objections of the defendant, to introduce, for the pure pose of impeaching the patent, the proceedings before the land department of the government upon which it was issued. And the court decided that as it appeared upon such proceedings that the patent was issued upon four mining locations made after 1870 united in one claim, embracing 290 acres, or thereabouts, the patent was invalid and passed no title to the patentees; holding, in effect, that several distinct mining locations could not after that year be thus united in one claim for which a single patent could be issued. The plaintiff accordingly recovered.

The validity of a patent for a placer mining claim, composed of distinct mining locations, some of which were made after 1870, and together embracing over 160 acres, was sustained in the case of Smelting Co. v. Kemp, before us at October term, 1881, (104 U. S. 636.) All the questions presented in the case at bar were there fully considered after two arguments of counsel, and we have seen no reason to question the soundness of the conclusions we then reached. The judgment below must, therefore, upon the authority of that case, be reversed, and the cause be remanded for a new trial; and it is so ordered.

178

(112 U. S. 177)
Ex parte COMMISSIONERS OF THE SINKING FUND OF THE STATE OF

VIRGINIA.

(November 10, 1884.) MANDAMUS-ADEQUATE REMEDY_REVIEW OF JUDGMENT OF CIRCUIT COURT.

A mandamus to compel a circuit judge to allow a writ of error to the supreine court will not be granted where the petitioner does not show that an application has been made to have the security approved, or the citation signed, as required by law. Mandamus. F. 8. Blair, Atty. Gen. of Virginia, for petitioners. *WAITE, C. J. À writ of mandamus is not ordinarily granted when the: party aggrieved has another adequate remedy. No formal allowance by the circuit court of a writ of error from this court to review a judgment of that court is required. Davidson v. Lanier, 4 Wall. 453. The writ issues in a proper case as a matter of right, but when sued out security must be given, and a citation to the adverse party signed. This security may be taken, and the citation signed by a judge of the circuit court, or any justice of this court. No action of the circuit court as a court is required. It does not appear from the petition that any application has been made to either of the judges of the circuit court to approve security or to sign a citation. If they should refuse on application hereafter, resort may be had to either of the justices of this court. It will be time enough to apply for a mandamus when all these remedies have failed. Motion denied.

(113 U. S. 199)

NORTHERN LIBERTY MARKET Co. o. KELLY.

(January 19, 1885.)

• 200

PROMISSORY Note-MARKET-HOUSE COMPANY-COMPROMISE_NEW NOTE-CONSIDERATION.

A market-house company, incorporated for 20 years, with power to purchase, hold, and convey any real or personal estate necessary to enable it to carry on its business, built a market-house on land owned by it in fee-simple, and sold by public auction leases for 99 years, renewable forever, of stalls therein at a specified rent. The highest bidder for one of the stalls gave the corporation several promissory notes in part payment for the option of that stall, received such a lease, and took and kept possession of the stall, and afterwards gave it a note for a less sum in compromise of-the original notes, and upon express agreement that if this note should not be paid at maturity the corporation might surrender it to the maker, and thereupon the cause of action on those notes should revive. Held, that the new note was upon a sufficient legal consideration, and that the corporation, holding and suing upon all the notes, could recover upon this note only. In Error to the Supreme Court of the District of Columbia.

R.T. Merrick and J.J. Darlington, for plaintiff in error. James G. Payne, for defendant in error.

GRAY, J. This was a writ of error to reverse a judgment for the defendant in an action brought on April 4, 1884, by a corporation formed for the purpose of erecting a market-house in the city of Washington, and carrying on a marketing business there, upon 20 promissory notes made by him to the plaintiff, dated January 1, 1875, for $171.05 each; two payable in 52 months, two in 58 months, two in 64 months, and two at the end of each succeeding 6 months, the last two being payable in 106 months after date, and all bearing interest at the yearly rate of 8 per cent. Also upon a promissory note made by the defendant, dated August 5, 1881, for $1,881.60, payable in 90 days after date; and upon a promissory note, dated March 11, 1881, for $394.08, made by one William S. Cross, and guarantied by the defendant, and payable in 60 days after date; each of the last two notes bearing interest at the yearly rate of 6 per cent.

The judginent was rendered upon a case stated by the parties, in substance as follows: The plaintiff is, and since May 18, 1874, has been, a corporation, duly incorporated under the general incorporation act in force in the District of Columbia, (Rev. St. D. C. $S 553-593,) by which it became a corporation for 20 years, and capable of suing and being sued, and of taking, holding, and conveying any real and personal estate necessary to enable it to carry on its business. On January 1, 1875, being the owner in fee of a parcel of land in the city of Washington, and having built a market-house thereon, it offered for sale by public auction leases for 99 years, renewable forever, of the stalls in the market-house, at a specified rent, the highest bidder being entitled to his option of the stalls. At the sale the defendant was the highest bidder for a stall, and made and delivered to the plaintiff, in part payment*jf the purchase money for the option of that stall, the 20 notes for $171.05 each, and afterwards received from the plaintiff such a lease of that stall, and took and has since retained possession of the stall under the lease. On August 5, 1881, the defendant, with full knowledge of the foregoing facts, including the fact that by the terms of incorporation the plaintiff's corporate existence was limited to 20 years, made and delivered to the plaintiff the note for $1,881.60, in compromise of the 20 original notes, and upon express agreement that if this note should not be promptly paid at maturity, the plaintiff might surrender it to the defendant, and thereupon the plaintiff's cause of action upon the original notes should revive. The note for $394.08 was made by Cross, and guarantied by the defendant, under like circumstances, and in consideration of the surrender of two other notes similar in amount and consideration to the 20 notes before mentioned. All the notes in suit remain unpaid, other.

• 201

202

wise than by the giving of the note for $1,881.60, and all are still held by the plaintiff.

The plaintiff insists that the original notes were valid, because a corporation, empowered to hold and convey real estate for the objects of its incorporation, may convey an estate in fee or any less estate in lands which it has purchased, and may therefore make a valid lease of them for any term of years, though extending beyond the limit of its corporate existence. But it is unnecessary to express a definitive opinion upon that point, because it is agreed in the case stated that the defendant gave, in compromise of the original 20 notes for $171.05 each, the new note for $1,881.60. If the plaintiff had exceeded its corporate powers in making the original contract, yet it had authority to compromise and settle all claims by or against it under that contract. Morville v. American Tract Soc. 123 Mass. 129. The compromise of the disputed claim on the original notes was a legal and sufficient consideration for the new note. Cook v. Wright, 1 Best & S. 559; Tuttle v. Tuttle, 12 Metc. 551; Riggs v. Hawley, 116 Mass. 596. By the terms of the agreement of compromise, the plaintiff's cause of action on the original notes was not to revive, in case of the new note not being paid at maturity, except upon the surrender of this note to the defendant. The plaintiff, not having surrendered it, but holding and suing upon it as well as upon the original notes, has not performed the condition on which the revival of the right of action on the original notes depended. It follows that the plaintiff cannot recover in this action on the original notes for $171.05 each, but is entitled to recover on the new note for $1,881.60, and also, for like reasons, on the note for $391.08, made by Cross and guarantied by the defendant. Judgment reversed, and case remanded, with directions to enter judgment for the plaintiff on the twenty-first and twenty-second counts.

(113 U. S. 205)
CARDWELL 0. AMERICAN RIVER BRIDGE Co.1

(January 19, 1885.) 1. CONSTITUTIONAL LAW-REGULATION OF COMMERCE — NAVIGABLE RIVERS -- POWER OT

States.

The commercial power of congress is exclusive of state authority only when the subjects upon which it is exerted are national in their character, and admit and require uniformity of regulations affecting alike all the states; and when the subjects within that power are local in their nature or operation, or constitute mere aids to commerce, the states may provide for their regulation and management until con

gress intervenes and supersedes their action. 2. SAME-NAVIGABLE RIVERS IN CALIFORNIA-Act op 1859.

The state of California was not shorn, by the clause in relation to navigable waters within her limits, in the act of September 9, 1850, admitting her into the Union as a state, of any of the powers which the original states possessed over such

waters within their limits. 3. Same-CoxSTRUCTION OF CLAUSE IN ACT OF 1859.

The object of that clause was to insure a high way equally open to all, without preference to any, and unobstructed by duties or tolls, and thus prevent the use of navigable streams by private parties to the exclusion of the public and the exaction of any toll for their navigation; and it contemplated no other restriction upon the power of the state in authorizing the construction of bridges over them, when

ever such construction would promote the convenience of the public. 4. SAME-AMERICAN RIVER.

The American river in California is a navigable water of the United States, and, as such, under the control of the general government in the exercise of its power to regulate foreign and interstate commerce, so far as may be necessary to insure its free navigation. Appeal from the Circuit Court of the United States for the District of Cal. ifornia.

"S. C. 19 Fed. Rep. 562.

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