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transaction rested would produce the same injury to McMaster, no matter what the agent's motives. But what is the proper construction of these contracts in respect of the asserted forfeiture? The company, although retaining the premiums paid, and not offering to return them, contends that, if McMaster was not bound by an agreement that the subsequent premiums should be paid on Decem$ber 12, then that the minds of the parties • had not met because it had not"contracted except on the basis of payments so to be made; but the question still remains whether the right of recovery in this case is dependent on such payment on the 12th day of Rober, 1894, or within thirty days thereter. We are dealing purely with the question of forfeiture, and the rule is that if policies of insurance contain inconsistent provisions, or are so framed as to be fairly open to construction, that view should be adopted, if ossible, which will sustain rather than for}. the contract. Thompson v. Phenia. Ins. Co. 136 U. S. 287, 34 L. ed. 408, 10 Sup. Ct. Rep. 1019; First Nat. Bank v. Hartford F. Ins. Co. 95 U. S. 673, 24 L. ed. 563. Each of these policies recited that it was made in consideration of the written application therefor, which was made part thereof, and of the payment in advance of an annual premium of $21, “and of the payment of a like sum on the 12th day of December in cvery year thereafter during the continuance of this policy.” Does this latter provision require payment of an annual premium during the year already secured from forfeiture by payment made in advance? May not the words “in every year thereafter” mean in j year after the year the premiums for which have been paid? Or in every year after the current year from the date of the policy? At all events, if the payment in advance was a payment which put in force a contract good for life, determinable by nonpayment of subsequent premiums, and this first payment was payment of the premiums for a year, could the requirement of payment of a second annual premium within that year be given greater effect than the right to cancel the policies from January 18, 1895, if such ayment were not tendered until after the }. of thirteen months from December 12, 1893 : To hold the insurance forfeitable for nonyment of another premium within the year }. which payment had already been fully made would be to contradict the legal effect under the applications and policies of the first annual payment. Clearly, such a construction is uncalled for, if the words “the : 12th day of December in every year there* after” could be assumed "to mean in every year after the year for which the premiums
had been paid. But if not, taking all the provisions together, and granting that the words included December 12, 1894, nevertheless it would not follow that forfeiture could be availed of to cut short the thirteen months' immunity from December 18, 1893, as the premiums had already been paid up to December 18, 1894. And the company could not be allowed, on this record, by making the second premiums payable within the period covered by the payment of the first premium, to defeat the right to the month of grace which had been proffered as the inducement to the applications, and had been relied on as secured by the payment. If death had occurred on December 18, 1894, or between the 12th and 18th, it is quite clear that recovery could have been had, and as the contracts were for life, and were not determinable (at least for twenty years) at a fixed date, but only by forfeiture, it appears to us that the applicable rules of construction forbid the denial of the month of grace in whole or in part. It is worthy of remark that it was specifically provided that after the policies had been in force one full year they should become incontestable on any other ground than nonpayment of premiums, and we suppose it will not be contended that if any other ground of contest had existed and death had occurred between December 12 and December 18, 1894, the company would have been cut off from making its defense, because the policies had been in force “one full year” from December 12. And if not in force until December 18, the date of actual issue, how can it be said that liability to forfeiture accrued before the twelve months had elapsed? The truth is the policies were not in force until December 18, and as the premiums were to be paid annually, and were so paid in advance on delivery, the second payments were not demandable on December 12, 1894, as a condition of the continuance of the policies from the 12th to the 18th. And as the policies could not be forfeited for nonpayment during that time the month of grace could not be shortened by deducting the six days which belonged to McMaster of right...s In our opinion the payment of the first; year's premiums made"the policies nonfor-" feitable for the period of thirteen months, and inasmuch as the death of McMaster took place within that period, the alleged forfeiture furnished no defense to the action. The judgment of the Circuit Court of Appeals is reversed; the judgment of the Circuit Court is also reversed, and the cause is remanded to the latter court, with a direction to enter judgment for plaintiff in accordance with the eighteenth finding, with interest and costs.
Mr. Justice Brewer did not hear the argument and took no part in the decision.
(183 U. S. 62) DISTRICT OF COLUMBIA, Appt., o, COLUMBUS J. ESLIN, Administrator of Daniel A. Connolly, Deceased, et al.
The repeal, by the act of Congress of March 3, 1897, chap. 387 (29 Stat. at L. 665, 669), of the act of February 13, 1895, chap. 87 (28 Stat. at L. 664), and the enactment that all proceedings pending under the act so repealed shall be vacated, and that no judgment heretofore rendered in pursuance of said act shall be paid, precludes the Supreme Court of the United States from taking jurisdiction of an appeal by the District of Columbia from a judgment allowing certain claims, although the application for the appeal had been made and notice given before the repeal of the statute.
Mr. Justice Harlan, delivered the opinion of the court: By an act of Congress approved June 16th, 1880, chap. 243, the jurisdiction of the court of claims was extended to all claims then existing against the District of Columbia, arising out of contracts by the late board of public works and extensions thereof made by the commissioners of the District, as well as to such claims as had arisen out of contracts by the district commissioners after the passage of the act of June 20th, 1874 (18 Stat. at L. 116, chap. 337), and all claims for work done by the order or direction of the commissioners and accepted by them for the use, purposes, or benefit of the District prior to March 14th, 1876. It was provided that all such claims against the District should in the first instance be prosecuted before the court of claims by the contractor, his personal representatives, or his assignee, in the same manner and subject to the same rules in the hearing and adjudication of the claims as the court then had in the adjudication of claims against the United States. 21 Stat. at L. 284, 285, §§ 1, 2. By the same act it was provided that if no appeal was taken from the judgment of the court of claims in the cases therein provided for, within the term limited by law for appealing from the judgments of that court, “and in all cases of final judgments the court of claims, or, on appeal, by e supreme court where the same are affirmed in favor of the claimant, the sum due thereby shall be paid, as hereinafter pro22 S. C.—2.
jo, by the Secretary of the Treasury.”
These consolidated suits were brought under the above act, and within the time limited by its provisions. In the progress of the cause a judgment was rendered in one of the cases in favor of the District for $658.05, and in the others the petitions were severally dismissed. New trials were granted in each case, and time was given for further proof. By an act of Congress approved February 13th, 1895, chap. 87, amendatory of the above act of June 16th, 1880, it was provided that in the adjudication of claims brought under the act of 1880 “the court of claims shall allow the rates established and paid by the board of public works; and whenever said rates have not been allowed, the claimant or his personal representative shall be entitled, on motion made within sixty days after the passage of this act, to a new trial of such cause.” 28 Stat. at L. 664. The cases were heard on the exceptions of the defendant to a referee's report, and the aggregate amount found due from the District was $13,458.33. And the record states that upon the facts set forth in the referee's report “the court, under the act of February 13, 1895 (28 Stat. at L. 664, chap. 87), and in accordance with the agreement of the parties, decides, as conclusions of law as to the said sum of $13,458.33, so found due from the District of Columbia, that the several claimants named below each recover judgment against the United States: in the amounts stated, viz.” “Here follows," in the record, a statement of the amount found due each claimant, the aggregate being the above sum. The order referring the cause for a statement of the several accounts was made after the passage of the act of February 13th, 1895, and the referee's report was made pursuant to the provisions of that act. In accordance with the findings of fact and of law the court, on the 22d of June, 1896, entered final judgment in favor of the respective claimants for the amounts found due them respectively, the judgment upon its face purporting to be “within the intent and meaning of the act of February 13th, 1805.” On the 3d of September, 1896, the District of Columbia, by the Attorney General of the United States, made application for and gave notice of an appeal to this court. Subsequently, February 25th, 1897, the District moved to set aside the judgment of June 22d, 1896, and to grant a new trial. While the motion for new trial was pending Congress passed the act of March 3d, 1897, chap. 387, making appropriations for the expenses of the government of the District for the fiscal year ending June 30th, 1808. That act, among other things, provided that the above act of February 13th, 1895, “be, and the same is hereby, repealed, and all proceedings pending shall be vacated, and no judgment heretofore rendered in
pursuance of said act shall be paid.” 29 Stat. at L. 665, 669. Our attention was called by counsel to the case of Re Hall, 167 U. S. 38, 41, 42 L. ed. 69, 70, 17 Sup. Ct. Rep. 723, 724, in which it is stated that the court of claims made the following general order: “The act of 13th February, 1895, 28 Stat. at L. 664, chap. 87, having been repealed by Coness, it is ordered in all suits brought uner or subsequent to said act that motions for new trial, applications for judgments, and all other papers in such suits be restored to and retained upon the files of the court without further proceedings being had.” This order is not }. in the present record. What was the effect of the act of 1897 upon the power of this court to re-examine the final judgment of the court of claims in these cases? In our opinion, there can be only one solution of this question. The present cases were brought under the • act of 1895, and *were determined with reference to its provisions. In view of the repeal of that act by Congress, the requirement that pending I..." be vacated, and the express prohibition of the payment of judgments theretofore rendered, any declaration by this court as to the correctness of the final judgment entered by the court of claims under the act of 1895 would be useless for every practical or legal purpose, and would not be in the exercise of judicial power within the meaning of the Constitution. It was an act of grace upon the part of the United States to provide for the payment by the Secretary of the Treasury of the amount of any final judgment rendered under that act. And when Congress by the act of 1897 directed the Secretary not to pay any judgment based on the act of 1895, that officer could not be compelled by the process of any court to make such payment in violation of the act of 1897. A proceeding against the Secretary having that object in view would, in legal effect, be a suit against the United States; and such a suit could not be entertained by any judicial tribunal without the consent of the government. It seems, therefore, clear that a declaration by this court in relation to the matters involved in the present appeal would be simply advisory in its nature, and not in any legal sense a judicial determination of the rights of the parties. What was said by Chief Justice Taney in Gordon v. United States, 117 U. S. 697, 702, may be here repeated. After stating that this court should not express an opinion where its judgment would not be, final and con; clusive upon the rights of the parties, and that it was an essential part of every judg: ment passed by a court exercising judicial ower that it should have authority to enorce it or to give effect to it, the Chief Justice said: “It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the ag§. party without a remedy. . It would merely an opinion, which would remain
a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this court ing the exercise of its appellate*jurisdiction; > yet it is the whole power that the court is allowed to exercise under this act of Congress.” See also Hayburn's Case, 2 Dall. 409, l L. ed. 436; United States v. Ferreira, 13 How. 40, 46, 14 L. ed. 42, 44; Re Sanborn, 148 U. S. 222, 37 L. ed. 429, 13 Sup. Ct. Rep. 577, and Interstate Commerce Commission v. Brimson, 154 U. S. 447, 483, 486, 38 L. ed. 1047, 1059, 1060, 4 Inters. Com. Rep. 545, 14 Sup. Ct. Rep. 1125. It results that, as no judgment now rendered by this court old have the sanction that attends the exercise of judicial power, in its legal or constitutional sense, the present appeal must be dismissed for want of jurisdiction and without any determination of the rights of the parties. It is so ordered.
The state is not the real party plaintiff, so as to preclude a removal of the cause to a Federal court for diverse citizenship, in a suit instituted by railroad commissioners under Mo. Rev. Stat. 1899, § 1150, to restrain a railroad company from violating the law and the order of the commissioners with respect to rates, although the state is contingently liable for the costs of the litigation, and might have some indirect and remote pecuniary interest by reason of the fact that forfeitures and penalties for disobedience of the orders of the court would go to a county school fund.
plaints against them, and making such orders as the circumstances require. Section 1143, Rev. Stat. Mo. (1899), identical with $ 2646, Rev. Stat. Mo. (1889), contains this provision: “Sec. 1143. Commissioners to See to Enforcement of Article—Investigate Complaints.--It shall be the duty of the railroad commissioners of this state to see that the rovisions of this article are enforced. hen complaint is made in writing by any person having an interest in the matter about which complaint is made, that any rate or rates established by any common carrier are unreasonable, unjust, or extortionate, or that any of the provisions of this article have been or are being violated, it shall be the o of said railroad commissioners to pro at once to investigate such complaint and determine the truth of the same.” The section also authorizes the commissioners to summon witnesses, to punish for failure or refusal to attend or testify, declares that any common carrier wilfully or knowingly obstructing or preventing the commissioners from making such investigations shall be deemed guilty of a misdemeanor and punished by a fine. Other sections rovide for penalties and forfeitures. In § 144, the same as $ 2647, Rev. Stat. 1889, is this clause: “Sec. 1144. Forfeitures, How Recovered and Disposed of—The forfeitures and penalties herein provided for shall go to the county school fund of the county where sued for, and may be recovered in a civil action in the name of the state of Missouri, at the relation of the board of railroad commissioners to the use of said fund.” Section 1150 (§ 2653, Rev. Stat. 1889) reads as follows: “Sec. 1150. Proceedings when Order of Commissioners is Disobeyed--Circuit. Court —Enforce or Renew Order—Proceedings.Where the complaint involves either a private or a public question as aforesaid, and the commissioners have made a lawful order or requirement in relation thereto, and where such common carrier, or the proper officer, agent, or employee thereof, shall violate, refuse, or neglect to obey any such order or requirement, it shall be lawful for the board of railroad commissioners, or any person or company interested in such order or requirement, to apply in a summary way, by tition, to any circuit court at any county in this state into or through which the line of railway of the said common carrier enters or runs, alleging such violation or disobedience, as the case may be; and the said court shall have power to hear and determine the matter on such short notice to the common carrier complained of as the court shall deem reasonable. And such notice may be served on such common carrier, its officers, agents, or servants, in such manner as the court may direct; and said court shall proceed to hear and determine the matter o: in such manner as to do justice in e premises; and to this end said court shall have power, if it thinks fit, to direct
and prosecute in such mode and by such persons as it may appoint, all such inquiries as may seem needful to enable it to form a just judgment in the matter of such petition. On such hearing the report of said commissioners shall be prima facie evidence of the matter therein stated; and if it be made to appear to the court on such hearing, or on report of such persons appointed as aforesaid, that the lawful orders or requirements of such commissioners drawn in question have been violated or disobeyed, it shall be lawful for such court to issue a writ of injunction or other proper process, mandatory or otherwise, to restrain such common carrier from further continuing such violation of such order or requirement of said commissioners, and enjoin obedience to the same. If such court shall hold and decide that any order of said board of railroad commissioners involved in such proceeding was not a lawful order, said court shall, without any reference to the regularity or legality of the proceedings of said board or of the order thereof, proceed to make such order as the said board should have made, and to enforce said order by the process of said court, and 52 to enforce and collect" the forfeitures and 5 penalties herein provided in all respects according to the provisions of this act. And in case of any disobedience of any such injunction or other proper process, mandatory or otherwise, it shall be lawful for such court to issue writs of attachment, or other proper process of said court incident or applicable to writs of injunction or other proper process, mandatory or otherwise, against such common carrier; and if a corporation, against one or more of the directors, officers, or agents of the same, or against any owner, lessee, trustee, receiver, or other person failing to obey such writ of injunction or other process, mandatory or otherwise; and said court may make an order directing such common carrier or other person so dis. obeying such writ of injunction or other proper process, mandatory or otherwise, to pay such sum of money, not exceeding for each carrier or person in default the sum of $100 per day, for every day after a day to be named in the order that such carrier or other person shall fail to obey such injunction or other proper process, mandatory or otherwise; and such money shall be payable to the school fund of the county in which such proceeding, is pending; and payment thereof may, without prejudice to any other mode of recovering the same, be enforced by attachment or order in the nature of a writ of execution, in like manner as if the same had been recovered by final decree in personam in such court. When the subject in dispute shall be of the value of $100 or more, either party to such proceeding before such court may appeal to the proper appellate court in the state, in the same manner that appeals are taken from such courts in this state in other proceedings involving like sums of money; but such appeal shall not operate to stay or supersede the order of the court or the execution of any writ or process thereon, unless stay of proceedings be or
dered by the court from which the or. is taken, or by the appellate court to which the appeal is taken, upon the application of the appealing party. henever any such petition shall be filed by the commissioners as aforesaid it shall be the duty of the attorney general, when requested by said commissioners, to prosecute the same. All proceedings commenced upon such petition shall, upon application of the “petitioner, be advanced upon the docket and take precedence of any other case upon the docket except criminal cases. The costs of such proceedings may be, with the approval of the attorney general and governor of the state, when such suit is brought by any private person, and when brought by said commissioners shall be ordered i. the commissioners to be,
id, in the first instance, out of any money in the treasury not otherwise appropriated; and if upon final hearing the decision is against the said common carrier or other person against whom the proceeding is being prosecuted, such common carrier or person shall be liable for the costs, for which judgment may be rendered as in any other case.”
Under the authority of these statutes, upon a hearing after complaint and notice, the railroad commissioners found that the railway company was charging excessive and illegal rates for travel over what is known as the Boonville bridge across the Missouri river, and made and entered of record an order directing it to discontinue such charges. This order was dated July 22, 1895. The railway company not complying with the order, a suit was instituted on August 17, 1895, in the circuit court of Cooper county, Missouri, by such commissioners, setting forth the facts and praying process, mandatory or otherwise, to restrain the defendant from further continuing to violate the law and the order of the commissioners. The company in due time filed a petition for removal to the circuit court of the United States, alleging that it was a corporation created and existing under the laws of the state of Kansas and a citizen of that state, and that the plaintiffs were citizens of the state of Missouri. No question was made as to the sufficiency of the petition and bond in respect to any formal matter. The state court refused to order the removal, notwithstanding which the railway company took a transcript of the record and filed it in the Federal court, where a motion to remand was made and overruled. 97 Fed. 113. The state court, after refusing to order the removal, proceeded with the hearing of the case, the railway company declining to take any part therein. On such hearing a decree was entered in accordance with the petition
3 of the railroad commissioners. This decree * was" appealed to the supreme court of the
state, and by that court on June 30, 1809, affirmed. 151 Mo. 644, 52 S. W. 351.
Mr. George P. B. Jackson for plaintiff in error.
Messrs. Edward C. Crow and Samuel B. Jeffries submitted the case for defendant in error.
Mr. Justice Brewer delivered the opinion of the court: The single question presented for our sonsideration is whether the railway company was entitled to remove this suit from the state to the Federal court. The state court refused the removal, and the Federal court, on the other hand, denied a motion to remand. Under these circumstances this court has jurisdiction to determine whether there was error on the part of the state court in retaining the case. Removal Cases, 100 U. S. 457, sub nom. Meyer v. Delaware R. Constr. Co. 25 L. ed. 593; Stone v. South Carolina, 117 U. S. 430, 29 L. ed. 962, 6 Sup. Ct. Rep. 799; Missouri P. R. Co. v. Fitzgerald, 160 U. S. 556, 582, 40 L. ed. 536, 542, 16 Sup. Ct. Rep. 389. On the face of the record the railway company was entitled to a removal. The plaintiffs were citizens of Missouri, the state in which the suit was brought. The railway company was a citizen of the state of Kansas. There was, therefore, diverse citizenship, the defendant a citizen of another state than that in which the suit was brought pe. titioning for removal, and the removal appears perfect in form. But it was held by the supreme court of the state of Missouri that it was proper to go behind the face of the record and inquire who was the real party plaintiff, and, making such examination, that court decided that the real y plaintiff was the state of Missouri. If that conclusion be correct then no removal in this case was justifiable, because a state is not a citizen within the meaning of the removal acts. Stone v. South Carolina, 117 U. S. 430, 29 L. ed. 962, 6 Sup. Ct. Rep. 799; Germania Ins. Co. v. Wisconsin, 1.19 U. S. 473, 30 L. ed. 461, 7 Sup. Ct. Rep. 200; Postal Teleg. Cable Co. v. United States, 155 U. S. 482, sub nom. Postal Teleg. Cable Co. v. Alabama, 39 L. ed. 231, 15 Sup. Ct. Rep. 192. Was the state the real party plaintiff 13 It was at an early”day held by this court,” construing the 11th Amendment, that in all cases where jurisdiction depends on the party it is the party named in the record. Osborn v. Bank of United States, 9 Wheat. 738, 6 L. ed. 204. But that technical construction has yielded to one more in consonance with the spirit of the amendment, and in Re Ayers, 123 U.S. 443, 31 L. ed. 216, 8 Sup. Ct. Rep. 164, it was ruled upon full consideration that the amendment covers, not only suits against a state by name, but those also against, its officers, agents, and representatives where the state, though not named as such, is nevertheless the only real party against which in fact the relief is asked, and against which the judgment or decree effectively operates. And that construction of the amendment has since been followed. That amendment refers only to suits brought against a state. But applying the same principles of construction to the removal acts and to cases in which it is claimed that the state, though not the nominal, is in fact the real, party plaintiff, it may fairly be held that the state is such real party when