Arnson v. Murphy, 109 U.S. 238
Case details
Citation
109 U.S. 238
Full caption
ARNSON and Another v. MURPHY, Collector.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
ARNSON and Another v. MURPHY, Collector.
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
Argued October 15th, 1883.—Decided November 19th, 1883. Collector—Customs Duties—Limitations—Statutes.
1
The common-law right of action against a collector to recover back duties illegally collected is taken away by statute, and a remedy given based on statutory liability, which is exclusive.
2
The time fixed by statute for commencing this action is within ninety days after the adverse decision of the secretary of the treasury on appeal, but if the secretary fail to render a decision within ninety days, the importer has the option either to begin suit, treating the delay as a denial, or to await the decision, and sue within ninety days thereafter.
3
The limitation laws of the State in which the suit is brought do not furnish the rule for determining whether the action is brought in time. The facts appear in the opinion of the court. Mr. Lewis Sanders for the plaintiff in error. Mr. Solicitor-General for the defendant. Mr . Jus ti ce Matt hew s delivered the opinion of the court. This action was brought May 8th, 1879, by the plaintiffs in error in the Supreme Court of New York, to recover money alleged to have been illegally exacted by the collector for customs duties, and was removed by the defendant by writ of certiorari to the Circuit Court of the United States for that district. On the trial it appeared that the several amounts alleged to have, been illegally exacted were paid under protest, duly made, on various dates from April 26th, 1871, to November 29th, VOL. CIX—16
1871; that within ninety days from date of each payment an appeal from the decision of the collector had been duly taken to the secretary of the treasury, and that no decision by that officer, in any of the cases, had been rendered prior to the commencement of this action; and that this suit was not brought until after ninety days had elapsed from the date of the latest appeal, and not until after the lapse of more than six years from the expiration of that period.
The defendant pleaded in bar, besides other defences, that the cause of action sued upon did not accrue with six years before the commencement thereof, that being the limitation prescribed by the statute of New York, then in force, for actions upon contracts, obligations, or liabilities, express or implied, other than those upon judgments or decrees of courts of the United States, or of courts of any State or Territory within the United States, and those upon sealed instruments.
The court thereupon directed a verdict in favor of the defendant, to which exception was duly taken, and for that alleged error the judgment thereon is now brought into review.
The cause of action arose under the act of June 30th, 1864, 13 Stat. 202, the 14th section of which is now section 2931 of the Revised Statutes. It distinctly provides, that, on the entry of any merchandise, the decision of the collector of customs at the port of importation and entry, as to the rate and amount of duties to be paid on such merchandise and the dutiable costs and charges thereon, shall be final and conclusive against all persons interested therein, unless the owner, importer, consignee, or agent of the merchandise shall, within ten days after the ascertainment and liquidation of the duties by the proper officers of the customs, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth therein, distinctly and specifically, the grounds of his objections thereto, and shall, within thirty days after the date of such ascertainment and liquidation, appeal therefroiii to the secretary of the treasury. The decision of the secretary on such appeal shall be final and conclusive, and such merchandise s all be liable to duty accordingly, unless suit shall be brought W1thin ninety days after the decision of the secretary of the p. 240treasury on such appeal, for any duties which shall have been paid before the date of such decision on such merchandise, or costs or charges, or within ninety days after the payment of duties paid after the decision of the secretary.
“ No suit shall be maintained in any court for the recovery of any duties alleged to have been erroneously or illegally exacted, until the decision of the secretary of the treasury shall have been first had on such appeal, unless the decision of the secretary shall be delayed more than ninety days from the date of such appeal, in case of an entry at any port east of the Rocky Mountains, or more than five months in case of an entry west of those mountains.”
The common-law right of action to recover back money illegally exacted by a collector of customs as duties upon imported merchandise, rested upon the implied promise of the collector to refund money which he had received as the agent of the government, but which the law had not authorized him to exact; which had been unwillingly paid, and which, before payment to his principal, he had been notified he would be required to repay; and involved a corresponding right on his part to withhold from the government, as an indemnity, the fund in dispute. The manifest public inconveniences resulting from this situation induced Congress, by the act of March 3d, 1839, ch. 82, 5 Stat. 348, sec. 2, to alter the relation between these officers and the United States by requiring them peremptorily to pay into the treasury all moneys received by them officially, without regard to claims for erroneous and illegal exactions. It was provided, however, therein, that the secretary of the treasury himself, on being satisfied that, in any case of duties paid .under protest, more money had been paid to the collector than the law required, should refund the excess out of the treasury. The legal effect of this en'actment, as was held in Cary y. Curtis, 3 How. 236, was to take from the claimant all right of action against the collector, by removing the ground on which the implied promise rested. Congress, being in session at the time that decision was announced, passed the explanatory act of February ¿ow*»
1845, which, by legislative construction of the act of 1839, restored to the claimant his right of action against the collector, but required the protest to be made in writing at the time of payment of the duties alleged to have been illegally exacted, and took from the secretary of the treasury the authority to refund conferred by the act of 1839, 5 Stat. 349, 727. This act of 1845 was in force, as was decided in Barney v. Watson, 92 U. 8. 449, until repealed by impheation by the act of June 30th, 1864,13 Stat. 214. The 14th section of the act last mentioned is, as already cited, in substance, the present sec. 2931 of the Revised Statutes, providing for the appeal to the secretary of the treasury, and the 16th section, being the present sec. 3012|, Rev. Stats., restores to the secretary of the treasury the authority to refund moneys paid under protest and appeal, which he shall be satisfied were illegally exacted, originally conferred upon him by the act of 1839. And the provision of the act of 1845, which construed the act of 1839 so as to restore to the claimant the right of action, judicially declared in Cary v. Curtis, supra, to have been taken away by the latter, now appears as sec. 3011 of the Revised Statutes. It was in force when the present action was brought, and is as follows:
“Any person who shall have made payment under protest and in order to obtain possession of merchandise imported for him, to any collector or person acting as collector of any money as duties, when such amount of duties was not, or was not wholly, authorized by law, may maintain an action in the nature of an action at law, which shall be triable by jury, to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid. But no recovery shall be allowed in such action unless a protest and appeal shall have been taken as prescribed in section twenty-nine hundred and thirty-one.”
By reference to the 14th section of the act of 1864, now sec. 1 Rev. Stats., it will appear that the written protest must © made within ten days, and the appeal to the secretary of e treasury within thirty days, from the ascertainment and
liquidation of the duties by the proper officer. The decision of the secretary on such appeal shall be final and conclusive, unless within ninety days after it was made suit is brought; and no suit shall, in the meantime, pending the appeal, be brought unless the decision by the secretary shall be delayed more than ninety days from the date of the appeal, if arising upon an entry at any port east of the Rocky Mountains.
It appears to us quite plain, from the reading of the statute, that no action arises to the claimant, in such cases, until after a decision against him by the secretary of the treasury; and that his suit against the collector is barred unless brought within ninety days after an adverse decision upon his appeal; but, with the proviso, that if such decision is delayed more than ninety days after the date of his appeal, it is at the claimant’s option either to sue, pending the appeal, treating the delay as a denial, or to wait until a decision is in fact made, and then sue within ninety days thereafter. It cannot be that he is obliged, in case for any reason a decision at the Treasury Department is delayed beyond the appointed time, to treat the delay as an adverse decision, and to bring his suit while the matter is still sub judice. There is no language in the act requiring such a conclusion, it is inconsistent with the terms actually employed, and is not founded on any sufficient reason. The right to sue at all, before the final decision of the appeal, is merely inferred from the form of the exception, and in its nature is permissive and not peremptory. The right to sue at any time 'within ninety days after the decision on the appeal is clearly given in the terms which declare that such decision shall not be conclusive if suit is brought thereafter within that period; and the prohibition against suing before such decision is rendered, is express, with the saving only on the part of the claimant to sue before final decision is rendered, if such decision is delayed for more than ninety days after the date of the appeal. But there is nothing which requires him to sue until after such decision has been rendered. The whole purpose of the saving in his favor evidently is, that he shall not be required to wait longer than ninety days after his appeal for an adjudication. There is nothing to forbid his waiting, p. 243without suit, as long as he has reason to expect a favorable decision upon his appeal.
From this review of the legislation and judicial history of the subject, it is apparent that the common-law action recognized as appropriate by the decision in Elliott n . Swartwaut, 10 Peters, 137, has been converted into an action based entirely on a different principle—that of a statutory liability, instead of an implied promise—which, if not originated by the act of Congress, yet is regulated, as to all its incidents, by express statutory provisions. And among them are the conditions which fix the time when the suit may begin, and prescribe the period at the end of which the right to sue shall cease. Congress having undertaken to regulate the whole subject, its legislation is necessarily exclusive. For any inconveniences that may result to outgoing collectors or the representatives of those who have deceased, by the unavoidable delays in deciding appeals in the Treasury Department, and the absence of a definite period of time beyond which no suit shall be brought, it is for Congress alone to apply the needful remedy.
It follows that in such cases, of which the present is one, the limitation laws of the State in which the cause of action arose, or in which the suit was brought, do not, under section 721, Rev. Stats., furnish the rule of decision, and that it was, therefore, an error in the circuit court to apply, as a bar to the action, the limitation prescribed by the statute of New York.
For that error the judgment is accordingly reversed, and the cause remanded with instructions to grant a new trial, and
It is so ordered.
LOUISVILLE & NASHVILLE RAILROAD COMPANY v. PALMES, Collector.
IN ERROR TO THE SUPREME COURT OF FLORIDA.
Argued November 8th and 9th, 1883.—Decided November 19th, 1883.
Construction of Statutes—Constitutional Law—Florida—Franchises—Immunities—Public Improvements—State Courts—Railroads—Taxation.
The legislature of Florida, acting under the Constitution of the State, passed an improvement act, exempting from taxation the capital stock of railroad companies accepting its provisions. The Alabama and Florida Railroad Company was organized, and constructed a railroad within the State limits, and became entitled to enjoy the exemption. In 1868 the State of Florida adopted a Constitution which provided for a uniform and equal rate of taxation, and that the property of corporations theretofore or thereafter to be incorporated should be subject to taxation. The road and property, rights, privileges, and franchises of the A. & F. Co. being sold under decree of foreclosure, became by mesne conveyances vested in the Pensacola and Louisville Railroad Co. In 1872 the legislature enacted that the P. & L. Co., as assignees of the A. & F. Co., should be exempted from taxation during the remainder of the period for which the A. & F. Co. would have been exempted. In 1877 the title of the P. & L. Co. to its road and other property, and its franchises, rights, privileges, easements, and immunities were conveyed to the Pensacola Railroad Company, and the legislature authorized the P. R. Co. to acquire and enjoy them. The P. & L. Co. possessed, among other things, the power to lease to a railroad company out of the State. It was claimed that this right passed to the P. R. Co., and the latter leased its railroad and property, rights, privileges, easements and immunities to the plaintiff in error. Held, 1 That the right of exemption from taxation did not pass from the A. & F
Co. to the P. & L. Co. by the sale under the mortgage.
2. That the language of the act of 1877 was broad enough to create that right anew, if the legislative grant was valid; but that 3. The legislature of Florida, after the adoption of the Constitution of 1868, could not make an original grant to a railroad, exempting its railroad property from taxation.
4. That any right of this kind that could have been created by the act of 1877, was personal, and not assignable.
5. That a demurrer to the bill does not admit the contrary of these facts in law which appear upon the face of the bill, and of which the court must take judicial notice.
6. That the federal question before the court is, whether the State court gave effect to a State law which impairs the obligation of a contract; in deciding which, and in determining whether there *was a contract, the
court is not necessarily governed by previous decisions of State courts, except where they have been so firmly established as to constitute a rule of property.
This was a writ of error bringing into review a decree of the Supreme Court of Florida, dismissing a bill in equity filed by
the plaintiff in error, which sought to enjoin the defendant, a collector of revenue under the laws of Florida for the county of Escambia, from collecting, by a sale of property levied on for that purpose, certain taxes claimed by him to be due from the complainant.
The ground of jurisdiction is, as stated and shown in the record, that in the cause wherein the decree complained of Was rendered there was drawn in question the validity of a statute of the State of Florida, to wit, “ An Act entitled an act for the assessment and collection of revenue,” approved March 5th, 1881, wherein and whereby certain taxes for State and county purposes were imposed upon the line of railroad extending from the city of Pensacola, in the State of Florida, to the northern boundary of the State of Florida, in the direction of Montgomery, Alabama, of which railroad the plaintiff in error is in possession and is owner; the validity of this statute being questioned on the ground that it was repugnant to the Constitution of the United States, in that it impaired the obligation of a contract, and the decision of the Supreme Court of Florida being in favor of its validity.
The contract, the obligation of which it was alleged has been thus impaired, and of which the plaintiff in error claims the benefit, was asserted to arise as follows:
The general assembly of the State of Florida passed an act, which took effect January 6th, 1855, entitled “ An Act to provide for and encourage a liberal system of internal improvements in this State,” the preamble to which recites that:
“ The Constitution of the State declares ‘ that a liberal system of internal improvements, being essential to the development of the resources of the country, shall be encouraged by the government of this State, and it shall be the duty of the general assemy> as soon as practicable, to ascertain by law proper objects of p. 246improvements in relation to roads, canals, and navigable streams, and to provide for a suitable application of such funds as maybe appropriated for such improvements. * ”
The act then, proceeded to create an internal improvement fund to aid in the construction of certain described railroads, and other works of internal improvement, by means of corporations organized or to be chartered for that purpose; and the 18th section provided as follows:
“ That the capital stock of any railroad company accepting the provisions of this act shall be forever exempt from taxation, and the roads, their fixtures and appurtenances, including workshops, warehouses, vehicles, and property of every description needed for the purpose of transportation of freight and passengers, or for the repair and maintenance of the roads, shall be exempt from taxation while the roads are under construction and for the period of thirty-five years from their completion, and that all the officers of the companies, and servants and persons in the actual employment of the companies, be and are hereby exempt from performing ordinary patrol or militia duty, working on public roads, and serving as jurors.”
By an act of the general assembly of Florida, approved December 14th, 1855, it was enacted:
“ That a line of railroad to be constructed from the city of Pensacola, or any other point or points on the waters of Pensacola Bay or the waters of St. Andrews Bay, to the north line of the State, leading in the direction of Montgomery, Alabama, shall be considered proper improvements to be aided from the internal improvement fund in the manner provided for, or which may hereafter be provided for, in ‘ An Act to provide for and encourage a liberal system of internal improvements in the State, approved January 6th, 1855.”
The Alabama and Florida Railroad Company, by an act approved January 8th, 1853, had been incorporated to build a railroad falling within that description, to extend from some point on the bay of Pensacola to some point on the boundary line between the States of Florida and Alabama, and to meet p. 247and connect with a railroad leading thence to the city of Montgomery. This company, it was alleged in the bill, built and for a time operated the line of railroad contemplated by its charter, and became entitled to the benefits and privileges of the Internal Improvement Act of 1855, by accepting its provisions and complying with its conditions. Its fine of railroad was completed about January 1st, I860.
By virtue of a decree of foreclosure and sale at the suit of trustees of a first mortgage, to satisfy the bonds secured thereby, the railroad of the Alabama and Florida Railroad Company, and all the rights, privileges, and franchises of the said company, were sold and conveyed on August 7th, 1872, to one A. E. Maxwell, his heirs and assigns, in trust, and by him were sold and conveyed on December 10th, 1872, to the Pensacola and Louisville Railroad Company, a corporation created by the laws of Florida.
The original act incorporating the last-named company was passed July 16th, 1868, but it appeared to have been reorganized by an amendatory act which took effect February 4th, 1872, the 18th section of which was as follows :
“ That the Pensacola and Louisville Railroad Company, having become the assignee of the Alabama and Florida Railroad of Florida, and the franchises of the said corporation, and being in possession of and operating the said line of road, which corporation was exempt from taxation for a limited period, the said Pensacola and Louisville Railroad company and its property, now owned or hereafter to be acquired, shall also be exempt from taxation during the remainder of said period.”
On May 6th, 1878, in pursuance of a decree of the Circuit Court of the State of Florida, sitting in Leon County, a sale and conveyance was made transferring the title of the Pensacola and Louisville Railroad Company in and to its road and other property, “together with all the franchises, rights, privileges, easements, and immunities ” of that company, to the Pensacola -Kailroad Company. This company was a corporation of the State of Florida, created by an act of the general assembly, which took effect February 27th, 1877. The second section of that act was as follows:
“ Sec . 2. Be it further enacted, That the said Pensacola Railroad Company be, and it is hereby, authorized and empowered to acquire by purchase and assignment all the property, rights, franchises, privileges, and immunities of the Pensacola and Louisville Railroad Company, a corporation created by an act of the general assembly of the State, approved July 16, a .d . 1868, whether the same were acquired under the laws of the States of Florida or Alabama or the laws of the United States, or as the assignee or successor of the Alabama and Florida Railroad Company ; and upon completion of the said purchase and assignment, the said Pensacola Railroad Company shall be deemed in law and equity to be fully invested with and entitled to all the said prop' erty, rights, franchises, privileges, and immunities of said Pen sacola and Louisville Railroad Company, as though the same were originally granted to or acquired by the said Pensacola Railroad Company.”
By the 13th section of the act of 1872, amending the charter of the Pensacola and Louisville Railroad Company, it was pro vided that:
“ It shall be lawful for said company to purchase, lease, acquire an interest io, to unite or consolidate with, lease or sell to any other railroad company in or out of the State, and to make the same one company, with a consolidated stock and property and with one board of directors,” &c.
The right under this section to sell and transfer its property and franchises to a corporation of another State, it was claimed, passed from the Pensacola and Louisville Railroad Company to the Pensacola Railroad Company; and accordingly, on October 20th, 1880, the Pensacola Railroad Company conveyed to the Louisville and Nashville Railroad Company, the plaintiff m error, its railroad from its junction with the Mobile and Montgomery Railway to its terminus in Pensacola Bay, its property, real and personal, with certain exceptions, all its franchises, except the franchise to be and exist as a corporation, rights, privileges, easements, and immunities, by virtue of which conveyance the plaintiff in error claimed in the bill that it became entitled to all the rights, property, privileges, franchises, and
Argument for Plaintiff in error.
immunities of the Alabama and Florida Railroad Company, the Pensacola and Louisville Railroad Company, and the Pensacola Railroad Company, under the various acts incorporating these companies, and acts amendatory to the same.
The plaintiff in error, the Louisville and Nashville Railroad Company, was a corporation of Kentucky, and by an amendment to its charter, which took effect March 6th, 1878, reciting that its stockholders had become largely interested in the commerce and railroad business between the States of Kentucky and Tennessee and the southeast, and the several railroad connections in that part of the country, by an extension of its system, was enabled “to operate, lease or purchase, upon such terms or in such manner as they deem best, any railroad in any other State or States deemed necessary for the protection of the interest of the stockholders.”
Hr. John L. Cadwalader for the plaintiff in error.
I. All the facts necessary to obtain relief are admitted. II. The State contracted with the Pensacola Railroad Company that if it would buy the old road and carry on the business, it should be exempt from taxation. The State is estopped from denying the exemption. Humphrey v. Pegues, 16 Wall. 244; Railroad Compa/nies v. Cannes, 97 U. S. 697,711-2; Rail/road Company v. County of Hamblen, 102 U. S. at 277. III. The State is also estopped by the decision of its own court in the case of Gonzales v. Sullivan, involving this right as between the State and the plaintiffs privy in estate. Bigelow, Estoppel, Ixiii; 45, 94-5, 284; Cooley on Constitutional Limitations (5 ed.), 59-60; Freeman on Judgments, § 165; Taylor on Evidence, § 1689. Blakemore! s Case, 2 Den. Cr. C. 410; Smith v. Kernochen, 7 How. 198; Prelie v. Boa/rd of Supervisors, 8 Bissel, 358; Finney n . Boyd, 26 Wis. 366; State v. C. de L. Railroad Co., 13 S. Car. 290. Indeed, such an estoppel by judgment may fairly be said to make part of the title to the property concerned. Brooke’s Abridgment, Estoppel, 15; Adams v. Barnes, 17 Mass. 364; Kelly v. Donlin, 70 Ill. 378;
v . C. & L. Railroad. Go., 13 S. Car. p. 313-4. IV. The p. 250plaintiff’s position is like that of a purchaser of bonds relying on the decision of the Supreme Court of a State adjudicating the validity of the bonds. Gelpcke v. Dubuque, 1 Wall. 175; Louisiana n . Pilsbury, 105 U. S. at 295. V. The constitutionality of the act of 1855 is not an open question in this court. New Jersey v. Wilson, 7 Cranch, 164; Jefferson Bank v. Skelley, 1 Black, 436; Home for the Friendless v. Rouse, 8 Wall, at 438; Wilmington Bailroad v. Reid, 13 Wall. 264; Railway Compa/ny v. Whitton, 13 Wall. 269; Humphrey v. Pegues, 16 Wall, at 249. That being so, the Supreme Court of Florida has decided its meaning in accordance with the contention of the plaintiff. Gonzales v. Sullivan, 16 Fla. 791; and that construction is binding upon this court. Burgess n . Seligman, 107 IT. S. 20. VI. The exemption in question was not attached to any particular corporation, but to the line of road. If this can be maintained, it follows that the exemption goes with the property. New Jersey v. Wilson, 'I Cranch, 164; Tennessee 1. Hicks, cited in State v. Whit/worth, 8 Lea (Tenn.), 594; Chicago, dec., Railroad Compa/ny v. Pfaender, 23 Minn. 217; St. Paul, Jee., Railroad Compa/ny n . Pa/rcher, 14 Minn, at 328; Wi/nona, &c., Railroad Compa/ny v. Cou/nt/y of Deuel, 7 Am. & Eng. R. R. Cas. 348.
Hr. E. A. Perry for the defendant.
Mr . Jus tice Matt hew s delivered the opinion of the court. After reciting the facts in the foregoing language, he said:
The exemption from taxation, created by the 18th section of the Internal Improvement Act of 1855, is, in every respect, similar to that which was declared in Horgan v. Louisiana, 93 U. S. 217, to be not assignable. No words of assignability are used by the legislature of the State in the language creating it, and, from its nature and context, it is to be inferred that the exemption of the property of the company was intended to be of the same character as that declared in reference to its capital stock and to its officers, servants and employees, and that all alike were privileges personal to the corporation or to p. 251individuals connected with it, entitled to them by the terms of the law. This exemption, therefore, did not pass from the Alabama and Florida Railroad Company to the Pensacola and Louisville Bailroad Company by the conveyances which passed the title to the railroad itself, and to the franchises connected with and necessary in its construction and operation.
This conclusion is confirmed by the 18th section of the act of February 4th, 1872, amending the charter of the Pensacola and Louisville Railroad Company. That section recites that the last-named company having become assignee of the Alabama and Florida Railroad Company, and of its franchises and property, “ which corporation was exempt from taxation for a limited period, the said Pensacola and Louisville Railroad Company and its property, now owned or hereafter to be acquired, shall also be exempted from taxation during the remainder of its said period.” Here the original exemption is declared to be the privilege of the Florida and Alabama Railroad Company, the particular corporation to which it was granted, and the necessity for conferring it by a new legislative grant upon the assignee of the property and franchises of the original corporation, rests upon the implication that the exemption did not pass to it by the assignment between the parties. And the further inference is equally necessary, that the exemption transferred or created in the new company by the terms of the legislative grant, is identical in its character as a personal and ‘unassignable privilege to the new grantee, with that it had when it belonged to the first company.
But the 2d section of the act of February 27th, 1877, incorporating the Pensacola Railroad Company, authorized and empowered it to acquire, by purchase and assignment, all the property, rights, franchises, privileges, and immunities of the Pensacola and Louisville Railroad Company, and upon completion of such purchase and assignment, declared that the former should be deemed, in law and in equity, to be fully invested with and entitled to all the said property, rights, franchises, privileges, and immunities as though the same were originally granted to or acquired by the said Pensacola Railroad Company.
It is claimed that this language is broad enough to cover the assignment and transfer of the immunity from taxation granted to the Pensacola and Louisville Railroad Company by the 18th section of its charter. And we are of this opinion. The language is comprehensive and unequivocal, and the word immunity is apt to describe the exemption claimed. It admits of no doubt, we think, if the Pensacola and Louisville Railroad Company were entitled to this exemption, and if the legislative grant of authority to make and accept this assignment of it was valid and effective, that the right to be exempt from taxation according to its terms passed to the Pensacola Railroad Company. But it must be borne in mind that it must be taken to have vested in the latter, if at all, precisely as it had in the former, that is, as a personal privilege. The assignment in the particular instance, based upon the express authority of a new enactment, did not impart to the immunity the quality of general assignability to other successors in the title to the property and franchises, claiming only under a conveyance between the parties.
The title of the plaintiff in error, therefore, to the exemption claimed, must be supported by some other authority. This is claimed to be found in the general power, given by the 13th section of its charter, to the Pensacola and Louisville Railroad Company to lease or sell to or consolidate with any other railroad company in or out of the State, which power passed with others to the Pensacola Railroad Company by the 2d section of its charter. But as we have already seen, and as was decided in Morgana. Louisiana, 93 U. S. 217, and Wilson v. Gaines, 103 IT. S. 417, the exemption from taxation does not pass by virtue of a conveyance of the railroad and its franchises, which was all the Pensacola Railroad Company could pass under that authority, but requires for its transfer some particular and express description, indicating unequivocally the intention of the legislature that it might pass by an assignment. That does not exist in this case, and the exemption claimed by the plaintiff in error fails because it was not and could not be transferred to it, under the law, by the Pensacola Railroad Company.
It is sought to avoid this conclusion by converting the p. 253question into one of pleading. It is said that the bill alleges, as a matter of fact, that the exemption passed to and vested in the complainant below, and that the truth of the allegation is admitted by the demurrer. But this is matter of law ; the documents of title are exhibited with the bill and constitute part of the record; and we take judicial notice of their legal effect. A fact impossible in law cannot be admitted by a demurrer. In Wilson n . Gaines, 103 U. S. 417, it was inferred in the face of a demurrer, claimed to be an admission of a contrary allegation, that the sale did not pass any rights of property not described as within the lien of the mortgage.
We have thus shown that the claim of the plaintiff in error to the exemption alleged fails, because the Pensacola Railroad Company, if it possessed it, had no power to convey it. It will appear, on further examination, that it fails for a distinct and deeper reason, namely, because the Pensacola Railroad Company was itself not entitled to any such exemption. That company was incorporated by the act of February 27th, 1877, which undoubtedly did purport to grant to it, as assignee of the Pensacola and Louisville Railroad Company, in terms sufficiently broad, the immunity from taxation, which, by the 18th sec. of the act of February 4th, 1872, was expressly declared to be granted to the latter.
Both the statutes, however, were passed by the general assembly of Florida, acting under the Constitution of that State, which went into effect in 1868.
Article XII., sec. 1, of that Constitution, is as follows:
“ The legislature shall provide for a uniform and equal rate of axation, and shall prescribe such regulations as shall secure a just valuation of all property, both real and personal, excepting such property as may be exempted by law for municipal, e ucational, scientific, religious, or charitable purposes.”
And article XIII., sec. 24, is as follows:
The property of all corporations, whether heretofore or herea ter incorporated, shall be subject to taxation, unless such corporation be for religious, educational, or charitable purposes.”
In 1875 this clause was amended so as to read as follows:
“ The property of all corporations, whether heretofore or hereafter incorporated, shall he subject to taxation, unless such property be held and used exclusively for religious, educational, or charitable purposes.”
It is under the authority and in pursuance of the mandates of these constitutional provisions that the legislature passed the act of March 5th, 1881, under which the road of the plaintiff in error is subjected to taxation, and the validity of which is here under review.
It cannot be and is not contended that under these constitutional limitations the legislature of Florida could make an original grant to a railroad corporation exempting its railroad property from taxation.
But the grant to the Pensacola and Louisville Railroad Company by the act of 1872, and that to the Pensacola Railroad Company by the act of 1877, though in form the renewal or transfers of previously existing grants, were in fact the creation of new ones. In Trask v. McGuire, 18 Wall. 391-409, it was said, speaking of similar provisions in the Constitution of Missouri : “ The inhibition of the Constitution applies in all its force against the renewal of an exemption equally as against its original creation ; ” and in Shields n . Ohio, 95 U. S. 319, it was decided that in cases of corporations created by consolidation, the powers of the new company did not pass to it by transmission from its constituents, but resulted from a new legislative grant, that could not transcend the constitutional authority existing at the time it took effect. It follows that the exemption from taxation in terms contained in the charters of 1872 and 1877 were void, as unauthorized and prohibited by the State Constitution of 1868.
It does not weaken this conclusion to say that the exemption contained in the Internal Improvement Act of 1855 was authorized by the Constitution of the State then in force, which may be admitted, and that it was assignable in its nature or by its terms in such manner that it became impressed upon the prop erty itself, into whosesoever hands it should afterwards come, p. 255following the title, like an easement or a convenant running with the land, which we have shown, however, not to be the case ; for, even on that supposition, the privilege is one that must be exercised by some person capable in law of accepting and exercising it. The conception of an immunity that is impressed upon the thing in respect to which it is granted is purely metaphorical. The grant is to a person in respect of a thing, and it is said to inhere in or be attached to the thing only when by its terms the grant is assignable by a conveyance of the thing, and passes as an incident with the title to each successor. There must always be a person capable not only of receiving the title, but also of accepting the conditions accompanying it, and which constitute the exemption ; otherwise the conditions become impossible and void.
After the adoption of the Constitution of Florida of 1868, there could be no corporation created capable in law of accepting and enjoying such an exemption, for that was prohibited by the constitutional provisions that have been cited. In the case of the Pensacola and Louisville Railroad Company, in 1872, the capacity at that time to receive this privilege depended altogether upon the legislative act amending its charter to that effect ; and if any doubt as to this might be reasonably entertained, certainly none can arise as to the Pensacola Railroad Company, which derived all its powers and its very existence from legislation dependent for its validity wholly upon the Constitution of 1868. The prohibition which forbids the legislature from exempting the property of railroad corporations from taxation, makes it impossible for the legislature to create such a corporation capable in law of acquiring and holding property free from liability to taxation.
It has, however, been earnestly urged upon us in argument, by counsel for the plaintiff in error, that the Supreme Court of Florida, in the case of Gonzalez v. Sullivan, 16 Fla. 791, explicity decided, in opposition to the views we have expressed, that the railroad and property, the subject of this litigation, then held by the Pensacola and Louisville Railroad Company, y ore exempt from taxation, according to the terms of the provision m the Internal Improvement Act of 1858 ; and it is pressed p. 256upon us as a conclusive determination of the law of Florida upon the point, particularly authoritative in the present case, for the reason that the plaintiff in error, having subsequently to that decision acquired its title, may be presumed to have acted upon the faith of it.
This presumption is not pressed, however, to the extent of establishing a contract between the plaintiff in error and the State of Florida, the obligation of which has been impaired by any law subsequently passed, nor of working an estoppel against the State as res adjudicata, with an equivalent effect. The decision cited, therefore, cannot be allowed any greater effect as an authority than ought to be given, in cases of this description, to the judgments of State tribunals.
The question we have to consider and decide is, whether, in the judgment under review, the Supreme Court of Florida gave effect to a law of the State which, in violation of the Constitution of the United States, impairs the obligation of a contract. In reaching a conclusion on that point, we decide for ourselves, independently of the decision of the State court, whether there is a contract, and whether its obligation is impaired ; and if the decision of the question as to the existence of the alleged contract requires a construction of State constitutions and laws, we are not necessarily governed by previous decisions of the State courts upon the same or similar points, except where they have been so firmly established as to constitute a rule of property. Such has been the uniform and well-settled doctrine of this court. State Bank of Ohio v. Knoop, 16 How. 369-391.
As was said by Chief Justice Taney in the case of The Ohw Life Ins. ch Trust Co. n . Debolt, 16 How. 416-432: “ But this rule of interpretation is confined to ordinary acts of legislation, and does not extend to the contracts of the State, although they should be made in the form of a law. For it would be impossible for this court to exercise any appellate power in a case of this kind, unless it was at liberty to interpret for itself the instrument relied on as the contract between the parties. It must necessarily decide whether the words used are words of contract, and what is their true meaning, before it can determine whether the obligation, the instrument created, has or has p. 257not been impaired by the law complained of. Now, in forming its judgment upon this subject, it can make no difference whether the instrument claimed to be a contract is in the form of a law, passed by the legislature, or of a covenant or agreement by one of its agents acting under the authority of the State.”
To the same effect are the cases of Jefferson Branch Bank v. Skelly, 1 Black, 436, and Bridge Proprietors v. IJoboken Company, 1 Wall. 116.
It is true that in all these cases the State courts, whose judgments were brought into review, had construed the statutes as not creating a contract; but the principle is equally applicable in the converse case. Burgess n . Sellgma/n, 107 U. S. 20.
It is undoubtedly true that the opinion of the Supreme Court of Florida in the case of G-onzdlez v. Sullivan, 16 Fla. 791, is not consistent with that which we have expressed upon some of the principal questions involved in this case. It did declare, speaking of the effect of the Internal Improvement Act of 1855,' “ that an exemption from taxation resting in contract is annexed, by the terms of the law which created it, to the road itself, and not to the companies,” and that by the act of 1872 the Pensacola and Louisville Railroad Company, as assignee of the Florida and Alabama Railroad, became entitled to the exemption, because “ the property passed, and with it, as an incident, went the exemption.”
But the main topics of discussion in the opinion were, whether the Florida and Alabama Railroad was within the scope of the Internal Improvement Act of January 6th, 1855, by virtue of the amendment of December 14th, 1855, the constitutional authority to pass which was denied in argument but afhrmed by the court; and the question as to the effect of the orovisions of the Constitution of 1868, which we have considered, upon the capacity of the Pensacola and Louisville Railroad Company and the Pensacola Railroad Company to accept the privilege and benefit of the exemption, by legislative authority exerted in 1872 and 1877, does not seem to have been raised or noticed, much less adjudged.
VOL. CIX—17
In our opinion there is no error in the judgment of the Supreme Court of Florida in the matter complained of, and
It is accordingly affirmed.
UNITED STATES to the use of WILSON, Administrator, v. WALKER.
IN EBROK TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA
Argued October 26th, 29th, 1883.—Decided November 19th, 1883.
District of Columbia—Administrator—Surety.
1. When an administrator duly appointed in the District of Columbia, is removed, and an administrator de bonis non appointed in his place, the administrator de bonis non is not entitled to demand of the administrator so removed the proceeds of a claim against the United States due the intestate and collected by the former administrator ; and cannot maintain suit against a surety of the former administrator to recover damages for failure by the former administrator to pay such sum to the administrator de bonis non.
2. A decree by the Supreme Court of the District of Columbia, directing an administrator who has been removed to pay over to an administrator de bonis non appointed in his place a sum collected by the former from the United States for a claim due to the intestate, is void for want of jurisdiction, and furnishes no ground for maintaining an action against a surety of the former administrator for failure of that administrator to comply with the decree.
This was an action at law on an administrator’s bond. The bond was made by Charlotte L. Ames and Cunningham Hazlett, as administrators of the estate of Horatio L. Ames, deceased, with Frederick P. Sawyer and the defendant in error, David Walker, sureties. It was in a penalty of $120,000, was payable to the United States, and was subject to the condition that the said Ames and Hazlett should well and truly perform the office of administrators of Horatio Ames, deceased, and discharge the duties of them required as such without any injury to any person interested in the faithful performance of said office. Hazlett died at a date not given, and after his death and until January 9th, 1875, Charlotte L. Ames continued to be p. 259sole administratrix, and on the day last named she was removed from said office by order of a justice of the Supreme Court of the District of Columbia, and on the same day Nathaniel Wilson was appointed administrator de bonis non. On January 22d, 1876, Charlotte L. Ames, in the settlement of her account as administratrix, was directed by the decree of a justice of said supreme court, holding a special term for the transaction of orphans’ court business, to pay over to said Nathaniel Wilson, administrator de bonis non of the estate of Horatio Ames, deceased, on or before February 8th, 1876, the sum of $34,876.75. She failing to pay this sum or any part of it, Wilson, administrator de bonis non, on April 12th, 1876, brought this suit in the name of the United States for his use on the bond above mentioned against Charlotte L. Ames, David Walker, and the administrators of the estate of Frederick P. Sawyer, who, on August 31st, 1875, had departed this life. The suit was afterwards discontinued as to Charlotte L. Ames and the administrators of Sawyer, and was prosecuted against David Walker alone.
The declaration contained two counts. The first count set out the obligation of the bond without stating the condition. The second count stated the obligation of the bond and averred the condition as above set forth, and assigned as breach the failure of Charlotte L. Ames to pay over to Wilson, the administrator de bonis non, the said sum of $34,876.75.
The defendant pleaded to the first count the condition of the bond and its performance.
To the second count he pleaded, first, “ that by the condition of the bond the defendant, as surety, became liable to the plaintiff, as administrator de bonis non, only for such of the assets of the estate as had not been converted into money by the said administrators or the survivor, and the defendant says t at the assets of said estate consisted wholly of a claim or c ose in action owing by the government of the United States,
and that the money claimed in this action is the proceeds of sajd claim or chose in action collected from the government and ereby converted into money,” etc. The second plea to the second count averred that the defendant, as surety as aforesaid,
was liable onlv for such assets of said estate as had not been administered by said administrators or the survivor, and that the monev claimed in this action is for assets which had been administered before the removal of said surviving administrator from office and the appointment of plaintiff. Both these pleas also aver that defendant was not a party to the proceeding in which the order to pay over was made and was not served with process therein, nor did he voluntarily appear.
In his replication to the first plea (the plea of condition performed) the plaintiff set out three breaches, each of them consisting in the failure of the administratrix to pay over the money to her successor, in compliance with an order of the court.
The plaintiff demurred to the remaining pleas. The defendant demurred to the replication to the first plea.
Issue was joined on both demurrers, and the court, in general term, overruled the plaintiff’s demurrer, sustained that filed by the defendant, and entered judgment for the defendant. The plaintiff thereupon sued out this writ of error.
J/r. A. 8. Worthington for the plaintiff.
Mr. W. D. Davidge for the defendant.
Mr . Jus tice Woo ds delivered the opinion of the court.
The first question presented by the record is, whether it was competent for the administrator de bonis non of the estate of Ames to sue on the bond of the principal administrator to recover money collected by him from the United States and not paid over or accounted for.
#It is well settled at common law that “ the title of an administrator de bonis non extends only to the goods and personal estate, such as leases for years, household goods, &c., which remain in specie and were not administered by the first executor or administrator, as also to all debts due and owing to the testator or intestate.” Bacon’s Abr., Title Executors and Administrators, B 2, 2, citing PacknM/Ps Case, 6 Coke, 293 (Part VI. 1, 8 J).
In illustration of this rule the same authority says:
“ It is holden that if an executor receives money in right of p. 261the testator, and lays it up by itself and dies intestate, that this money shall go to the administrator de bonis non, being as easily distinguished as part of the testator’s effects, as goods in specie.
(i But if A dies intestate, and his son takes out administration to him and receives part of a debt, being rent arrear to the intestate, and accepts a promissory note for the residue, and then dies intestate, this acceptance of the note is such an alteration of the property as vests it in the son ; and, therefore, on his death, it shall go on to his administrator, and not to the administrator de bonis non.”
An administrator de bonis non derives his title from the deceased, and not from the former executor or administrator. To him is committed only the administration of the goods, chattels, and credits of the deceased which have not been administered. He is entitled to all the goods and personal estate which remain in specie. Money received by the former executor or administrator, in his character as such, and kept by itself, will be so regarded, but if mixed with the administrator’s own money it is considered as connected, or as, technically speaking, “ administered.” Beall v. New Mexico, 16 Wall. 535; Coleman v. M. Murdo, 5 Randolph, 51; Bank of Penn. v. Haldeman, 1 Penrose & Watts, 161; Potts n . Smith, 3 Rawle, 361; Bell v. Speight, 11 Humph. 451; Swink v. Snodgrass, 17 Ala. 653; Slaughter n . Fronau, 5 T. B. Mon. 19 ; Gamble v. Hamilton, 7 Mo. 469.
In the case of Beall v. New Mexico, 16 Wall. 535, it was said by Mr. Justice Bradley, speaking for this court, that “by the English law, as administered by the ecclesiastical courts, the administrator who is displaced, or the representative of a deceased administrator or executor intestate, are required to account directly to the persons beneficially interested in the estate—distributees, next of kin, or creditors—and the accounting may be made or enforced in the probate court, which is the proper court to supervise the conduct of administrators and executors. To the administrator de bonis non is committed only the administration of the goods, chattels, and credits of the deceased which have not been administered.”
Such was the law of Maryland before the organization of the District of Columbia, and such it continues to be in the District, unless changed by statute. In the case of Hagtlwrp v. Hook's Adm'r, 1 Gill & Johnson, 270, it was held by the Court of Appeals of Maryland that the authority conferred by the letters of administration de bonis non issued under the act of 1798, No. 101, ch. 14, sec. 2, was “ to administer all things described in the act of assembly as assets not converted into money, and not distributed, delivered, or retained by the former executor or administrator under the direction of the orphans’ court. Such an administrator can only sue for those goods, chattels, and credits which his letters authorize him to administer.”
To the same effect are the cases of Sibley v. Williams, 3 Gill & Johnson, 52; Hagthorp v. Neale, 1 Gill & Johnson, 13; and Lemmon v. Hill, 20 Md. 171.
In the case of Ennis v. Smith, 14 How. 400, it was said by this court:
“We understand by the laws of Maryland, as they stood when Congress assumed jurisdiction over the District of Columbia, that the property of a deceased person was considered to be administered whenever it was sold or converted into money by the administrator and executor, or in any respect changed from the condition in which the deceased left it. It did not go to the administrator de bonis non unless, on the death of the executor or administrator, it remained in specie or was the same then that it had been when it came to his hands. When the assets have been changed, it is said in Maryland that they have been administered.”
But counsel for appellant contend that this rule applies only to the case where an executor or administrator has died, and not to the case where he had been removed; that while the words “ not administered,” in the commission of an administrator de bonis non, still frequently mean not changed in form, yet, as applied to an administrator de bonis non in place of a living administrator, they have come to mean almost invariably not fully and legally administered; and it is said that this p. 263distinction appears in the laws of Maryland in force before the organization of the District of Columbia, and continuing in force until the passage of the act of February 20th, 1846, “ to enlarge the powers of the several orphans’ courts held in and for the District of Columbia.” 9 Stat. 4.
In support of this view we are referred to chapter 101 of the Maryland act of 1798, 2 Kilty’s Laws, by which it is provided in sub-chapter 5, sec. 5, that where letters testamentary have been granted in a case of the discovery of a will, and consequent revocation of letters of administration, it shall be the duty of the administrators to file their accounts and to “ deliver to the executor, on demand, all the goods, chattels, and personal estate in their possession belonging to the deceased,” and on failure their administration bonds shall be liable to be put in suit; and to sub-chapter 6, sec. 13, of the same statute, where it is provided that if an executor or administrator shall not file his inventory within thirty days, his letters may be revoked and other letters granted, and thereupon the power of such executor or administrator shall cease, and he shall deliver up to the person obtaining such letters all the property of the deceased in his hands.
These statutes do not tend to support the distinction relied on by plaintiff in error; for, as is well established by the
authorities we have cited, the goods and chattels, personal estate and property of the deceased are such only as remain unchanged and in specie. When a debt due the deceased is collected or a chattel of his estate is sold, the money received becomes the property of the administrator, and he is accountable therefor to those beneficially interested in the estate, and, under the acts referred to, the removed executor or administrator was not bound to turn it over to his successor.
It may be conceded that the words unadministered assets, as used in statutes, have sometimes been construed to include e proceeds of assets sold or collected and not accounted for
or paid over; and that an administrator de bonis non might call a removed administrator to account for such proceeds. ut whatever may have been the rule elsewhere upon this question, we think that by the provisions of the act of Congress p. 264of February 20th, 1846, to enlarge the power of the several orphans’ courts held in and for the District of Columbia, 9 Stat. 4, reproduced in sections 975, 976, 977, 978 of the Revised Statutes relating to the District of Columbia, the common law is not changed, and that the statute applies the same rule to the case of a removed as has been applied to the case of a deceased executor or administrator.
Section 974 provides that if the security on the bond of an executor or administrator shall become, for any cause, insufficient, the court may order him to give further security. Section 975 provides that if he fails to comply with such order the court may remove him, and appoint a new administrator.
Section 976 is as follows:
“ The court shall further have power to order and require any assets or estate of the decedent which may remain unadministered to be delivered to the newly appointed administrator de bonis non, and to enforce a compliance with such order by fine and attachment or any other legal process.”
We think the meaning of this act is plain. When it was passed, the words “ assets or estate of the decedent which remain unadministered,” had a uniform and well settled meaning in the statute law of Maryland, in force in the District of Columbia, and that meaning, as we have seen, was assets or estate remaining in specie and unchanged in form. The act of 1846 must be construed as using the words in this well settled signification, unless the contrary appears. But there is not a word in the act of 1846 to indicate that Congress intended to give any new or different meaning to these words.
Independently of this consideration, the meaning of the law is not doubtful. It would be an unnatural construction to say that the law required the removed executor or administrator to deliver to his successor assets which had been converted or wasted, and which no longer existed, and when there remained only a right to sue for their value. When assets have been turned into money by an executor or administrator and the money mingled with his own, the assets have ceased to exist as assets or estate of the decedent.
It is the assets and estate of the decedent that are to be delivered. The authorities we have referred to all concur in the proposition that where personal property of an estate under administration has been sold or a debt collected, the proceeds are not property of the decedent, but are the individual property of the executor or administrator, and he is liable to an action for not accounting.
When assets have been turned into money by an executor or administrator, he is bound to account, not for the identical money received, but for an equal amount; and if he fails to account for and pay over this equal amount he is liable in damages, which are measured by the proceeds of the assets so turned into money. The statute surely cannot mean that the removed administrator must “deliver” damages to his successor.
Our conclusion is therefore that the act of February 20th, 1846, does not apply a different rule to the case of an administrator de bonis non succeeding a removed administrator, from that applied to one succeeding a deceased administrator, and that no action lies on the bond sued on in this case in favor of the administrator de bonis non to recover money collected by Mrs. Ames from the United States on a claim belonging to the estate of the decedent. On the contrary, the defendant, as surety on the bond of the removed administrator, is liable only at the suit of creditors, distributees, and legatees entitled to the funds.
The next point taken by the plaintiff in error is that the decree of the justice of the Supreme Court of the District, direct mg the administratrix to pay over the fund to her successor, was conclusive in this suit.
We are of opinion that in making the order referred to, the Supreme Court of the District exceeded its jurisdiction, and that its order is for that reason void. Its authority, and its sole authority for making the order, is to be found in section 9T6, above referred to, of the Revised Statutes relating to the District of Columbia:
The court shall have further power to order and require any
Opinion of the Court
assets or estate of the decedent which may remain unadministered to be delivered to the newly appointed administrator de bonis non.”
It appears from the pleadings in the case that the money ordered to be paid was the proceeds of a debt due the decedent which his administratrix had collected. It was not, therefore, as we have seen, assets or estate of the decedent. It was the property of the removed administrator. The court was therefore without power to direct the payment of the money to the administrator de bonis non. Although a court may have jurisdiction over the parties and the subject-matter, yet if it makes a decree which is not within the powers granted to it by the law of its organization, its decree is void. The limitation was well expressed by Mr. Justice Swayne, in Cornett n . Williams, 20 Wall. 226, when he said :
“ The jurisdiction having attached in this case, everything done, within the power of that jurisdiction, when collaterally questioned, is held conclusive of the rights of the parties, unless impeached for fraud.”
The case of Bigelow n . Forrest, 9 Wall. 339, is in point. It was an action of ejectment. Bigelow, who was defendant in the court below, relied for title on a sale made under a decree of the United States District Court rendered in a proceeding for the confiscation of the premises sued for under the act of July 17th, 1862. Referring to this decree, Mr. Justice Strong, speaking for this court said :
“ Doubtless a decree of a court having jurisdiction to make the decree cannot be collaterally impeached, but under the act o Congress the district court had no power to order a sale which should confer on the purchaser rights outlasting the life of French Forrest.”
And the judgment of the court was that so much of the decree of the district court as was in excess of its powers was void.
In Ex parte Lange, 18 Wall. 163, Mr. Justice Miller deliver p. 267ing the opinion of the court, after stating that the circuit court had exceeded its authority in pronouncing sentence upon Lange, and that its judgment was therefore void, said:
“ It is no answer to this to say that the court had jurisdiction of the person of the prisoner and of the offence under the statute. It by no means follows that these two facts make valid, however erroneous it may be, any judgment the court may render in such case.”
In the case of Windsor x. Me Veigh, 93 U. S. 274, Mr. Justice Field, after a review of the cases bearing upon this subject, announces their result as follows:
“ The doctrine invoked by counsel, that when a court has once acquired jurisdiction it has a right to decide every question which arises in the case, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposition, but is subject to many qualifications in its application. It is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to established modes governing the class to which the case belongs, and does not transcend in the extent or character of its judgment the law which is applicable to it.”
In this case the statute gave the court power, on the removal of an executor or administrator, to order the assets of the decedent, which might remain unadministered, to be delivered to the administrator de bonis non. The court made an order directing the delivery of the proceeds of administered assets. This was beyond the power conferred by the statute, and not within the jurisdiction of the court. The order was, therefore, void.
The result of these views is, that The judgment of the Supreme Gov/rt of the District of Colum bid must be affirmed.