Hayes ex rel. Friend v. Mich. Cent. R.R. Co., 111 U.S. 228
Case details
Citation
111 U.S. 228
Full caption
HAYES, by his next Friend, v. MICHIGAN CENTRAL RAILROAD COMPANY.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
HAYES, by his next Friend, v. MICHIGAN CENTRAL
RAILROAD COMPANY.
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.
Argued March 19th, 1884.—Decided April 7th, 1884.
Railroad—Municipal Corporations.
A statute authorizing a municipal corporation to require railroad companies to provide protection against injury to persons and property confers plenary power in those respects over the railroads within the corporate limits. When the line of a railroad runs parallel with and adjacent to a public park which is used as a place of recreation and amusement by the inhabitants of a municipal corporation, and the corporation requests the company to erect a fence between the railroad and the park, it is within the design of a statute eon ferring power upon the municipal corporation to require railroa companies to protect against injuries to persons.
A grant of a right of way over a tract of land to a railroad company by a mu nicipal corporation by an ordinance which provides that the company sha erect suitable fences on the line of the road and maintain gates at stree crossings is not a mere contract, but is an exercise of the right of municipa legislation, and has the force of law within the corporate limits.
If a railroad company, which has been duly required by a municipal corpora tion to erect a fence upon the line of its road within the corporate mi s, for the purpose of protecting against injury to persons, fails to o so, an • an individual is injured by the engine or cars of the company m con quence, he may maintain an action against the company and recover, i establishes that the accident was reasonably connected with the wan precaution as a cause, and that he was not guilty of contributory negligen .
This action was brought by the plaintiff in error to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in error. After the evidence in the cause had been closed, the court directed the jury to return a verdict for the defendant. A bill of exceptions to that ruling embodied all the circumstances material to the case, and presented the question, upon this writ of error, whether there was sufficient evidence to entitle the plaintiff below to have the issues submitted to the determination of the jury.
The defendant in running its trains into Chicago, used the tracks of the Illinois Central Railroad Company, under an arrangement between them; and no question-was made but that the defendant is to be treated, for the purposes of this case, as the owner as well as occupier of the tracks.
The tracks in question were situated for a considerable distance in Chicago, including the place where the injury complained of was received, on the lake shore. They were built in fact, at first, in the water on piles; a breakwater, constructed in the lake, protecting them from winds and waves, and on the west or land ¡side, the space being filled in with earth, a width of about 280 feet, to Michigan avenue, running parallel with the railroad. This space between Michigan avenue and the railroad tracks was public ground, called Lake Park, on the south end of which was Park Row, a street perpendicular to Michigan avenue and. leading to and across the railroad tracks to the water’s edge. Numerous streets, from Twelfth street north to Randolph street, intersected Michigan avenue at right angles, about 400 feet apart, and opened upon the park, but did not cross it. Nothing divided Michigan avenue from the park, and the two together formed one open space to the railroad.
The right of way for these tracks was granted to the company by the city of Chicago over public grounds by an ordinance of the common council, dated June 14th, 1852, the 6th section of which was as follows :
Sec . 6. The said company shall erect and maintain on the western or inner line of the ground pointed out for its main track on the a e 8hore, as the same is hereinbefore defined, such suitable walls, p. 230fences, or other sufficient works as will prevent animals from straying upon or obstructing its tracks and secure persons and property from danger, said structure to be of suitable materials and sightly appearance, and of such height as the common council may direct, and no change therein shall be made except by mutual consent; provided, however, that the company shall construct such suitable gates at proper places, at the ends of the streets which are now or may hereafter be laid out, as may be required by the common council, to afford safe access to the lake; and provided, also, that in case of the construction of an outside harbor, streets may be laid out to approach the same, in the manner provided by law, in which case the common council may regulate the speed ’of locomotives and trains across them.”
It was also provided in the ordinance, that it should be accepted by the railroad company within ninety days from its passage, and that thereupon a contract under seal should be formally executed on both parts, embodying the provisions of the ordinance and stipulating that the permission, rights, and privileges thereby conferred upon the company should depend upon their performance of its requirements. This contract was duly executed and delivered March 28th, 1853.
The work of filling in the open space between the railroad tracks and the natural shore line was done gradually, more rapidly after the great fire of October 9th, 1871, when the space was used for the deposit of the debris and ruins of buildings, and the work was completed substantially in the winter of 1877-8.
In the mean time several railroad trackshad been constructed by the railroad company on its right of way, used by itself and four other companies for five years prior to the time of the injury complained of, and trains and locomotives were passing very frequently, almost constantly.
The railroad company had also partially filled with stones and earth the space! east of its tracks, to the breakwater, sufficiently so in some places to enable people to get out to it. This they were accustomed to do, for the purpose of fishing and other amusements, crossing the tracks for that purpose. At one point there was a roadway across the park and the p. 231tracks, used by wagons for hauling materials for filling up the space, and a flagman was stationed there. At this point great numbers of people crossed to the breakwater; from two streets, the public were also accustomed to cross over the tracks from the park to ferry-boats.
From Park Row, at the south end of the park, running north a short distance, the railroad company, in 1872, had erected on the west line of its right of way a five-board fence, the north end of which at the time of the injury to the plaintiff was broken down. The rest of it was in good order.
The park was public ground, free to all, and frequented by children and others as a place of resort for recreation, especially on Sundays. Not far from the south end, and about opposite the end of the fence, was a band-house for free open-air concerts.
The plaintiff was a boy between eight and nine years of age, bright and well grown, but deaf and dumb. His parents were laboring people, living, at the time of the accident, about four blocks west of Lake Park. Across the street from where they lived was a vacant lot where children in the neighborhood frequently played. On Sunday afternoon, March 17th, 1878, St. Patrick’s day, the plaintiff, in charge of a brother about two years older, went to this vacant lot, with the permission of his father, to play; while playing there a procession celebrating the day passed by, and the plaintiff, with other boys, but without the observation of his brother, followed the procession to Michigan avenue at Twelfth street, just south of Lake Park; he and his companions then returned north to the park, in which they stopped to play; a witness, going north along and on the west side of the tracks, when at a point a considerable distance north of the end of the broken fence, saw a freight train of the defendant coming north ; turning round toward it e saw the plaintiff on the track south of him, but north of the
end of the fence; he also saw a colored boy on the ladder on e side of one of the cars of the train motioning as if he
wanted the plaintiff to come along; the plaintiff started to run north beside the train, and as he did so, turned and fell, one or more wheels of the car passing over his arm. There were four p. 232tracks at this point, and the train was on the third track from the park. The plaintiff had his hands reached out towards the car, as he ran, as if he was reaching after it, and seemed to the witness to be drawn around by the draft of the train, and fall on his back. Amputation of the left arm at the shoulder was rendered necessary, and constituted the injury for which damages were claimed in this suit.
After the evidence in the case had been closed, the court instructed the jury to find a verdict for the defendant, to which ruling the plaintiff excepted. Judgment was entered on the verdict and the plaintiff sued out this writ of error.
J/r. A. D. Rich, Air. George C. Fry, and Mr. J. TF. Merriam for plaintiff in error submitted on their brief.
Mr. Ashley Pond for defendant in error.—There is no statute of the State of Illinois under which it was the duty of the Illinois Central or Michigan Central to fence the right of way at the place of the accident. It is not so claimed by the plaintiff. It is alleged that the duty exists (1) at common law, (2) by force of the ordinance of the city of Chicago granting the right of way to the Illinois Central, and not otherwise.—I. The defendant is not liable at common law for failure to fence the right of way. Vandergrift v. Delaware Railroad Company, 2 Houston (Del.) 287; Alton, Ac., Railroad Company v. Baugh, 14 Ill. 211; Boston A Albany Railroad Company n . Briggs, 132 Mass. 24; Richmond v. Sacramento, Ac., Railroad Company, 18 Cal. 351; Macon, Ac., Railroad Company v. Baker, 42 Geo. 300 ; Illinois Central Railroad Company v. Reedy, 17 Ill. 580; Williams n . New Albany, Ac;, Railroad Company, 5 Ind. Ill; Henry n . Dubuque Railroad Company, 2 Iowa, 288; Louisville, Ac., Railroad Company n . Milton, 14 B. Mon. 75; Louisville Railroad Company n . Ballard, 2 Met. (Ky.) 165; Knight v. Opelousas, Ac., Railroad Company, 15 La. Ann. 10a; Perkins v. Eastern, Ac., Railroad Company, 29 Maine, 307; Stearns v. Old Colony Railroad Company, 1 Allen, 493; Williams v. Michigan Central Railroad Company, 2 Mich. 259; Locke v. First Div., Ac., Railroad Company, 15 Minn. p. 233350; JVw Orleans, dec., Company v. Field, 46 Miss. 573; Memphis, dec., Company v. Orr, 43 Miss. 279; Gorman v. Pacific Railroad, 26 Mo. 441; Vandergrift n . Rediker, 2 Zabriskie (N. J. L.) 185; Woolson n . Northern Railroad Company, 19 N. H. 267; Chapin v. Sullivan Railroad Company, 39 N. H. 53; Tonawanda Railroad Company v. Munger, 5 Den. 255; S. C. aff. 4 N. Y. 345; Corwin v. New York, &c., Company, 13 N. Y. 42; Kerwhacker v. C. C., dec., Company, 3 Ohio, 185; Railroad Company v. Riblet, 66 Penn. St. 164; Railroad Company v. Skinner, 19 Penn. St. 287; Tower v. Providence, dec., Company 2 R. I. 404; Hurd v. Rutland, dec., Railroad Company, 25 Vt. 116; Stucke n . Milwaukee, &c., Company, 9 Wis. 202. In re Rensselaer, dec., Railroad Company, 4 Paige, 553, contra, has been disregarded and practically overruled by the subsequent decisions in New York cited above. Quimby v. Vermont Central Railroad Company, 23 Vt. 387, also contra, is followed as to the corporation involved in Trow n . Railroad Company, 24 Vt., but the doctrine above set forth is fully recognized in the Hurd case, 25 Vt. 487, cited above, where the company’s liability is put wholly upon the ground of the statutory provision.—II. The defendant is not liable under the ordinance referred to in the declaration. (1.) The ordinance and agreement between the city and the railroad company created no liability other than in covenant. The railroad company may be liable for a breach, but the ordinance and agreement cannot be made the basis of liability to a citizen. Atkinson v. Newcastle Water Works Company, 2 Exch. Div. 441. (2.) No default is shown in the performance of the conditions of t e ordinance and agreement. Some direction from the council as to the character of the structure was a condition precedent o the obligation of the company to erect it. Lent v. Padel-
2 Am. »L. C. 57, citing Watson x. Walker, 23 N. H. 171; Bashford v. Shaw, 4 Ohio St. 263; Walker n . Forbes, 25 Ala. 139; Vyse v. Wakefield, 6 M. & N. 442; & C. 1 M. & N. 11 MSee alS° We8t V‘ ^ewton^1 Duer’m 5 Coombe v. Greene, Y 47 ’ BroMyn N’ Brooklyn City Railroad, 47 N.
’ ($•) A failure to perform the terms of the ordinance an agreement between the city and the railroad company, p. 234would give no rights except inter partes. Lowery v. Brooklyn City Railroad^ 76 N. Y. 28. (4.) The ordinance imposed no duties towards intruders on the track. (5.) The requirements of the ordinance had no reference to the place of the accident. (6.) The ordinance, dissociated from the agreement between the city and the company, cannot create a civil liability enforceable at common law. The power of the legislature is plenary to compel action on the part of the citizen; but a municipality cannot by ordinance create a civil duty. Van Dyke v. Cincinnati) 1 Disney (O.) 532; Philadelphia & Reading Railroad, v. Erwin) 89 Penn. St. 71; Heeney v. Sprague, 11 R. I. 456; Flynn v. Canton Company, 40 Maryland, 312.—III. There is no evidence that the alleged failure to fence was the proximate cause of the injury.
Mr . Jus tice Matt hew s delivered the opinion of the court. He stated the facts in the foregoing language and continued:
The question of contributory negligence does not appear to us to arise upon this record. It is not contended by the counsel for the defendant in error, that, if there was evidence tending to prove negligence on its part, the case could properly have been withdrawn from the jury on the ground that it appeared as matter of law that, the plaintiff was not entitled to recover by reason of his own contributory negligence. The single question, therefore, for present decision is whether there was evidence of negligence on the part of the defendant which should have been submitted to the jury.
The particular negligence charged in the declaration and relied on in argument, is the omission of the railroad company to build a fence on the west line of its right of way, dividing it from Lake Park; a duty, it is alleged, imposed upon it by the ordinance of June 14th, 1852, a breach of which resulting in his injury, confers on the plaintiff a right of action for damages.
It is not claimed on the part of the plaintiff in error that the railroad company was under an obligation, at common law, to fence its tracks generally, but that, at common law, the ques* tion is always whether, under the circumstances of the particular case, the railroad has been constructed or operated with p. 235such reasonable precautions for the safety of others, not in fault, as is required by the maxim sic utere tuo ut non alienum, Iwdas; that, consequently, in circumstances where the public safety requires such a precaution as a fence, to prevent danger from the ordinary operations of the railroad, to strangers not themselves in fault, the omission of it is negligence; and that it is a question of fact for a jury, whether the circumstances exist which create such a duty.
This principle has been recognized and applied in cases of collisions at crossings of railroads and public highways, when injuries have occurred to persons necessarily passing upon and across railroad tracks in the use of an ordinary highway. “These cases,” said the Supreme Court of Massachusetts in Eaton n . FitcEburg Railroad Company, 129 Mass. 364, “all rest on the common-law rule that when there are different public easements to be enjoyed by two parties at the same time and in the same place, each must use his privilege with due care, so as not to injure the other. The rule applies to grade crossings, because the traveller and the railroad each has common rights in the highway at those points. The fact that the legislature has seen fit, for the additional safety of travellers, imperatively to require the corporation to give certain warnings at such crossings, does not relieve it from the duty of doing whatever else may be reasonably necessary.” It was accordingly held in that case, that the jury might properly consider, whether, under all the circumstances, the defendant was guilty of negligence in not having a gate or a flagman .at the crossing, although not expressly required to do so by any statute or public authority invested with discretionary powers to establish such regulations.
And the same principle has been applied in other cases than ose of the actual coincidence, at crossings, of public highways.
In Barnes vEWard, 9 C. B. 392, it was decided, after much consi eration, that the proprietor and occupier of land making an excavation on his own land, but adjoining a public highway, on enng the way unsafe to those who used it with ordinary are, was guilty of a public nuisance, even though the danger consisted in the risk of accidentally deviating from the road, p. 236and liable to an action for damages to one injured by reason thereof; for the danger thus created may reasonably deter prudent persons from using the way, and thus the full enjoyment of it by the public is, in effect, as much impeded as in the case of an ordinary nuisance to a highway. This doctrine has always since been recognized in England. Hardcastle v. South Yorkshire Ry. Co. 4 Hurl. & Nor. 67; Hounsell v. Smyth,
C. B. N. S. 731; Binks v. South Yorkshire Ry. Co., 3 B. & S. 244.
It has also been generally adopted in this country. Norwich v. Breed, 30 Conn. 535; Beck n . Ca/rter, 68 N. Y. 283; Homan v. Stanley, 66 Penn. St. 464; B. A O. R. R. Co. v. Boteler, 38 Md. 568; Stratton v. Staples, 59 Me. 94; Young n . Harvey, 16 Ind. 314; Coggswell v. Inhabitants of Lexington, 4 Cush. 307; although Howland v. Vincent, 10 Mete. 371, is an exception.
The enforcement of this rule in regard to excavations made by proprietors of lots adjacent to streets and public grounds in cities and towns, in the prosecution of building enterprises, and in the construction of permanent areas for cellar ways, is universally recognized as an obvious and salutary exercise of the common police powers of municipal government; and the omission to provide barriers and signals, prescribed by ordinance in such cases for the safety of individuals in the use of thoroughfares, is a failure of duty, charged with all the consequences of negligence, including that of liability for personal injuries of which it is the responsible cause. The true test is, as said by Hoar, J., in Alger v. City of Lowell, 3 Allen, 402, “ not whether the dangerous place is outside of the way, or whether some small slip of ground not included in the way must be traversed in reaching the danger, but whether there is such a risk of a traveller, using ordinary care, in passing along the street, being thrown or falling into the dangerous place, that a railing is requisite to make the way itself safe and convenient.”
As the ground of liability in these cases is that of a public nuisance, causing special injury, the rule, of course, does not apply where the structure complained of on the defendant s property, and the mode of its use, are authorized by law; and,
HAYES v. MICHIGAN CENTRAL R.R. CO. 23T
consequently, what has been said is not supposed to bear directly and strictly on the question in the present case, but rather as inducement, showing the ground of legislative authority implied in the ordinance, the breach of which is imputed to the defendant as negligence towards the plaintiff, and as serving to interpret the meaning and application of its provisions.
The ordinance cannot, we think, be treated as a mere contract between the city, as proprietor of the land over which the right of way is granted, and the railroad company, to which no one else is privy, and under which no third person can derive immediately any private right, prescribing conditions of the grant, to be enforced only by the city itself. Although it takes the form of a contract, provides for its acceptance and contemplates a written agreement in execution of it, it is also and primarily a municipal regulation, and as such, being duly authorized by the legislative power of the State, has the force of law within the limits of the city. J^Lason v. Shawneetown. W Ill. 533.
Neither can the ordinance be limited by construction to the mere purpose of preventing animals from straying upon or obstructing the railroad tracks ; because, in addition to that, it expressly declares that the walls, fences, or other works required shall be suitable and sufficient to secure persons and property from danger. This cannot refer to persons and property in course of transportation and already in care of the railroad company as common carrier, for the duty to carry and deliver them safely was already and otherwise provided for by law ; nor, can it be supposed, from the nature of the case, that the stipulation was intended as security for any corporate interest of the city. The proviso in the 6th section, that the company shall construct such suitable gates at crossings as thereafter might be required by the common council to afford safe access to the lake, clearly designates the inhabitants of the city as at least within the scope of this foresight and care, the sa ety of whose persons and property was in contemplation.
he prevention of animals from straying* upon the tracks, u me security of persons and property from danger, are two p. 238distinct objects, for both which the requirement is made of suitable walls, fences, or other protections ; and the ordinance, in these two particulars, is to be referred to distinct legislative grants of power to the municipal body. The general act to provide for the incorporation of cities and villages, which constitutes the charter of the city of Chicago, confers upon its city council power : “ Twenty-sixth. To require railroad companies to fence their respective railroads, or any portion of the same, and to construct cattle guards, crossings of streets, and public roads, and keep the same in repair within the limits of the corporation. In case any railroad company shall fail to comply with any such ordinance, it shall be liable for all damages the owner of any cattle or horses or other domestic animal may sustain, by reason of injuries thereto while on the track of such railroad, in like manner and extent as under the general laws of this State, relative to the fencing of railroads.” Cothran’s Rev. Stat. Ill. 1884, 227. By the general law of the State, requiring railroads to be fenced, except -within the limits of municipal corporations, the company omitting performance of the duty is liable to the owner for all damages to animals, irrespective of the question of negligence. Cothran’s Rev. Stat. Ill. 1884, 1151.
Whether this provision is limited to the protection of animals, and covers only the case of damage done to them, or whether a failure to comply with the ordinance authorized thereby might be considered as evidence of negligence, in case of injury tc person or property, in any other case, it is not necessary for us now to decide ; for in the same section of the statute there is this additional power conferred upon the city council :
“ Twenty-seventh. To require railroad companies to keep flagmen at railroad crossings of streets, and provide protection against injury to persons and property in the use of such railroads,” &c.
The latter clause of this provision is general and unrestricted. It confers plenary power over railroads within the corporate limits, in order that by such requirements as in its discretion it may prescribe, and as are within the just limits of police regulation, the municipal authority may provide protection against p. 239injury to persons and property likely to arise from the use of railroads. And as we have shown by reference to analogous cases, the erection of a barrier between the railroad tracks and the public highways and grounds, particularly such a resort as the Lake Park is shown to be, in the present case, is a reasonable provision, clearly within the limits of such authority. To leave the space between the park and the breakwater, traversed by the numerous tracks of the railroad company, open and free, under the circumstances in proof, was a constant invitation to crowds of men, women and children frequenting the park to push across the tracks at all points to the breakwater, for recreation and amusement, at the risk of being run down by constantly passing trains. A fence upon the line between them might have served, at least, as notice and signal of danger, if not as an obstacle and prevention. For young children, for whose health and recreation the park is presumably in part intended, and as irresponsible in many cases as the dumb cattle, for whom a fence is admitted to be some protection, such an impediment to straying might prove of value and importance. The object to be attained—the security of the persons of the people of the city—was, we think, clearly within the design of the statute and the ordinance; and the means required by the latter to be adopted by the railroad company was appropriate and legitimate. Mayor, &c., of New York v. Williams, 15 N. Y. 502.
It is said, however, that it does not follow that whenever a statutory duty is created, any person who can show that he has sustained injuries from the non-performance of that duty can maintain an action for damages against the person on whom the duty is imposed; and we are referred to the case of Atkinson
Newcastle Water Works Co., L. R. 2 Exch. Div. 441, as auority for that proposition, qualifying as it does the broad
doctrine stated by Lord Campbell in Couch v. Steel, 3 E. & B. 02. But accepting the more limited doctrine admitted in the
anguage of Lord Cairns in the case cited, that whether such an action can be maintained must depend on the “ purview of the egislature in the particular statute, and the language which ey have there employed,” we think the right to sue, under
the circumstances of the present case, clearly within its limits. In the analogous case of fences required by the statute as a protection for animals, an action is given to the owners for the loss caused by the breach of the duty. And although in the case of injury to persons by reason of the same default, the failure to fence is not, as in the case of animals, conclusive of the liability, irrespective of negligence, yet an action will lie for the personal injury, and this breach of duty will be evidence of negligence. The duty is due, not to the city as a municipal body, but to the public, considered as composed of individual persons; and each person specially injured by the breach of the obligation is entitled to his individual compensation, and to an action for its recovery. “The nature of the duty,” said Judge Cooley in Taylor v. L. S. <& M. S. R. Company, 45 Mich. 74, “ and the benefits to be accomplished through its performance, must generally determine whether it is a duty to the public in part or exclusively, or wKether individuals may claim that it is a duty imposed wholly or in part for their especial benefit.” See, also, Railroad Company v. Terhune, 50 Ill. 151; Schmidt N. The Milwaukee <& St. Paul Railway Company, 23 Wise. 186 ; Siemers v. Eisen, 54 Cal. 418; Galena & Chicago Union Railroad Company v. Loomis, 13 Ill. 548 ; 0. & M. Railroad Company v. McClelland, 25 Ill. 140 ; St. L. V. de T. IL Railroad Company v. Dunn, 78 Ill. 197 ; Massoth n . Delaware (& Hudson Canal Company, 64 N. Y. 521; B. & 0. Railroad Company n . State, 29 Md. 252; Pollock v. Eastern Railroad Company, 124 Mass. 158 ; Cooley on Torts, 657.
It is said, however, that, in the present case, the failure or omission to construct a fence or wall cannot be alleged as negligence against the company, because, as the structure was to be, as described in the ordinance, of suitable materials and sightly appearance, and of such height as the common counci might direct, no duty could arise until after the council ha directed the character of the work to be constructed, of whic no proof was offered. But the obligation of the company was not conditioned on any previous directions to be given by the city council. It was absolute, to build a suitable wall, fence, or other sufficient work as would prevent animals from straying p. 241upon the tracks and secure persons and property from danger. The right of the council was to give specific directions if it saw proper, and to supervise the work when done, if necessary ; but it was matter of discretion, and they were not required to act in the first instance, nor at all, if they were satisfied with the work as executed by the railroad company. Tallman v. Syracuse, Binghamton d?. N. Y. Bailroad Company, 4 Keyes, 128; Brooklyn n . Brooklyn City Railroad Company, 47 N. Y. 475.
It is further argued that the direction of the court below was right, because the want of a fence could not reasonably be alleged as the cause of the injury. In the sense of an efficient cause, causa causans, this is no doubt strictly true; but that is not the sense in which the law uses the term in this connection. The question is, was it causa sine qua non, a cause which if it had not existed, the injury would not have taken place, an occasional cause ? and that is a question of fact, unless the causal connection is evidently not proximate. Milwaukee & St. Paul Bailroad Company n . Kellogg, 94 U. S. 469. The rule laid down by Willes J., in Daniel v. Metropolitan Railway Company, L. R. 3 0. P. 216, 222, and approved by the Exchequer Chamber, L. R. 3 C. P. 591, and by the House of Lords, L. R. 5 II. L. 45, was this: “ It is necessary for the plaintiff to establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from the want of some precaution which the defendants might and ought to have resorted to; ” and in the case of dliams v. Great Western Railway Compamy, L. R. 9 Exc eq. 157, where that rule was applied to a case similar to the present, it was said (p. 162): “ There are many supposable circumstances under which the accident may have happened, an which would connect the accident with the neglect. If the ci v as merely wandering about and he had met with a stile, f Prc)bably have been turned back; and one at least
$ e objects for which a gate or stile is required, is to warn op e of what is before them and to make them pause before mg a dangerous place like a railroad.” evidence of the circumstances showing negligence on the p. 242part of the defendant, which may have been the legal cause of the injury to the plaintiff, according to the rule established in Railroad Company v. Stout, 17 Wall. 657, and Randall v. B. (& 0. Railroad Company, 109 U. S. 478, should have been submitted to the jury; and for the error of the Circuit Court in directing a verdict for the defendant,
The judgment is reversed and a new trial awarded.
TEAL v. WALKER.
IN ERROR TO THE CIECUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF OREGON.
Argued March 25th, 26th, 1884.—Decided April 7th, 1884.
Mortgage—Pleading.
When a demurrer to a complaint for failure to state a cause of action is overruled, the defendant, by answering, does not lose his right to have the judgment on the verdict reviewed for error in overruling the demurrer.
A conveyance to a trustee, absolute on its face, but with an instrument of defeasance showing that it is to secure payment of a debt due to a third party, is a mortgage, and is subject to the rule that a mortgagee is not entitled to the rents and profits until he acquires actual possession.
The rule that the mortgagee is not entitled to the rents and profits before actual possession, applies even when the mortgagor covenants in the mortgage to surrender the mortgaged property on default in payment of the debt, and nevertheless refuses to deliver it after default, and drives the trustee to his action to enforce the trust.
The statute of Oregon which provides that “ a mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale according to law,” establishes absolutely the rule that a mortgagee is not entitled to the rents and profits before foreclosure.
This was an action at law brought by Walker, the defendant in error, against Teal, the plaintiff in error. The record disclosed the following facts : On August 19th, 1874, Bernard Goldsmith borrowed of James D. Walker the sum of $100,000, and gave to the latter his note, dated Portland, Oregon, p. 243August 19th, 1874, for the payment to Walker or his order, two years after date, of the sum borrowed, with interest payable monthly at the rate of one per cent, per month from date until paid. Goldsmith, at the time the note was executed, was the owner in fee of certain lands in the State of Oregon and in the Territory of Washington, and he and Joseph Teal were the joint owners and tenants in common of certain other lands in Oregon. On August 19th, 1874, Goldsmith conveyed to one Henry Hewett, by four several deeds, absolute on their face, the lands in Oregon and in Washington Territory of which he was the sole owner, and on the same day he and Teal executed and delivered, to the same grantee, three several deeds, absolute on their face, for the lands which they jointly owned as tenants in common, one being for lands in Linn County, another for contiguous lands in Polk and Benton Counties, and the third for lands in Clackamas County, all in the State of Oregon. These deeds were intended as a security for the above-mentioned note, as appeared by a defeasance in writing, executed on the same day as the note by Goldsmith, Teal, Hewett and Walker. This instrument, after reciting the execution of the note above mentioned, declared that Hewett held the legal title to the lands conveyed to him as aforesaid, in trust and for the uses therein described. It then declared as follows: “ Subject to the legal title of Hewett, Teal, and Goldsmith, or Goldsmith alone shall (1) retain possession of the lands, and take and have, without account, the issues and profits thereof—they paying all taxes and public charges imposed thereon—until said note should become due and remain unpaid thirty days; (2) that if such default is made in the payment of said note, Goldsmith and Teal ‘ will and s all, on demand, peacefully surrender to Hewett ’ the possession 0 property, who ‘ may and shall proceed and take possession ’ of the same, ‘ and on thirty days’ notice in writing to cal and Goldsmith . . . requiring them to pay said debt,
’ • aud on their failure so to pay, shall sell the same at pn ic auction on not more than thirty days’ notice,’ or sufcient thereof to pay the debt and charges.”
e instrument further declared “ that if the above recited p. 244promissory note, and the interest thereon, and all the taxes, charges, and assessments on said land be duly paid by said Goldsmith, or for him, then the deeds aforesaid shall be void, and said Hewett, or his representatives or successors in trust, shall reconvey all said lands and every part thereof to said Teal and Goldsmith, or said Goldsmith, or their. representatives entitled thereto.”
On October 18th, 1876, there was due and unpaid upon the note made by and delivered by Goldsmith to Walker the sum of $96,750. To secure an extension of time of one year from that date for the payment of the note, Goldsmith and Teal agreed to give further security for its payment.
Thereupon Goldsmith conveyed by a deed, absolute on its face, to Hewett certain lots in the city of Portland, of which he was the owner, and Goldsmith and Teal by a like deed conveyed to Hewett certain other lots in Portland and certain lands in Linn County, Oregon, of which they were joint owners and tenants in common. On the same day* October 18th, 1876, Walker, Hewett, Goldsmith, and Teal executed another defeasance, in which, after reciting the conveyances by Goldsmith, and Goldsmith and Teal, above mentioned, declared that Hewett held the legal title to lands so conveyed in trust, and to the same uses and purposes for which he held the lands mentioned in the defeasance of August 19th, 1874. By. this instrument Goldsmith and Teal undertook and agreed that Goldsmith should pay promptly one-twelfth of ten per cent, per annum of the interest of the note every month, and should pay the principal and the residue of the interest at the end of the year. It was further stipulated between the parties that if default was made in the payment of the monthly instalments of interest, the principal should immediately become due, and all the property, both that conveyed August 19th, 1874, and that conveyed October 18th, 1876, should be sold for the payment thereof, as by law and the agreement of August 19th, 1874, was provided. The instrument of October 18th, 1876, further provided as follows: “ The agreement of August 19t , 1874, is not annulled, vacated, or set aside by the execution o this agreement, excepting in so far as the same may conin p. 245with this agreement; in all other respects the two instruments are to be taken and construed together.”
Interest was paid on the note made by Goldsmith to the plaintiff up to January 21st, 1877, but none after that date. In April, 1877, Goldsmith conveyed to Teal all his estate in the lands which he had conveyed in trust to Hewett by the deeds of August 19th, 1874, and October 18th, 1878, and put Teal in possession thereof.
On July 6th, 1877, the interest on the note being in arrear since January 21st preceding, Hewett demanded of Teal the possession of all the property conveyed by said deeds. He refused to yield possession, and held the lots in the city of Portland until November 30th, 1878, and the farm lands until some time in the same month and year.
Walker, by reason of Hewett’s refusal to surrender possession of the property conveyed in trust to Hewett, was compelled to and did bring suit to enforce the sale of the property. All the property was sold, either in accordance with the terms of the defeasances above mentioned or by order of court, and the proceeds of the sale fell far short of paying the note, leaving a balance due thereon of more than $50,000, which Goldsmith had no means to pay.
This action was brought by Walker, the payee of the note, against Teal, to recover the damages which he claimed he had sustained by the refusal of Teal to surrender possession of the property of which Goldsmith had been the owner, or which he had owned jointly with Teal, and which had been conveyed to Hewett in trust as aforesaid. The complaint recited the facts above stated, and averred that by reason of the refusal of Teal to surrender possession of the property to Hewett, Walker had been damaged in the sum of $16,000, for which sum the complainants demanded judgment.
Teal filed a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, with leave to Teal to answer. He answered, and among other things, denied that Walker had een damaged, by the refusal of Teal to deliver possession of
t e property, in the sum of $16,000 or any other sum.
Opinion o£ the Court.
The case, having been put at issue by the filing of a replication, was tried by a jury, which returned a verdict for the plaintiff for $5,345.88, on which the court rendered judgment. To reverse that judgment Teal prosecuted this writ of error.
Mr. John H. ^tchell for plaintiff in error.
Ur. A. II. Garland for defendant in error.
Mr . Jus tice Wood s delivered the opinion of the Court. He stated the facts in the foregoing language, and continued:
The writ of error is not taken to reverse the judgment of the court upon the demurrer to the complaint, for that was not a final judgment, but to reverse the judgment rendered upon the verdict of the jury. The error, if it be an error, of overruling the demurrer could have been reviewed on motion in arrest of judgment, and is open to review upon this writ of error. When the declaration fails to state a cause of action, and clearly shows that upon the case as stated the plaintiff cannot recover, and the demurrer of the defendant thereto is overruled, he may answer upon leave and go to trial, without losing the right to have the judgment upon the verdict reviewed for the error in overruling the demurrer. The error is not waived by answer, nor is it cured by verdict. The question, therefore, whether the complaint in this case states facts sufficient to constitute a case of action, is open for consideration.
The plaintiff in error insists that Goldsmith, having conveyed to him all his estate, in the lands described in the deed to Hewett, the latter cannot recover of him damages, that is to say, the rents and profits, because he refused to deliver to nun the premises. We are of opinion that this contention is well founded, and that neither Goldsmith nor the plaintiff in error was liable to account to Hewett or Walker for the rents and profits of the premises.
A deed absolute upon its face, but intended as a security for the payment of money, is a mortgage, even at law, if accom-
panied by a separate contemporaneous agreement in writing to reconvey upon the .payment of the debt. Nugent v. Riley, Met. 117; Wilson n . Skoenberger, 31 Penn. St. 295; Rowv- p. 247Chamberlain, 5 McLean, 281; Bayley v. Bailey, 5 Gray, 505; Lane v. Shears, 1 Wend. 433; Friedley v. Hamilton, 17 S. &
B. 70; Shaw v. Ershine, 43 Me. 371.
It is clear, upon these authorities, that the three deeds executed by Goldsmith and Teal jointly, and the several deeds executed by Goldsmith alone, to Hewett on August 19th, 1874, and the defeasance executed on that day by Hewett and Walker, are to be construed together, and so construed they constitute a mortgage given to secure a debt. The lands owned by Goldsmith were conveyed by several deeds, evidently for convenience in registration, as the lands lay in several counties of Oregon and some of them in the Territory of Washington. The lands owned by Goldsmith and Teal jointly, also lay in several counties, and were conveyed by separate deeds for the same reason. The execution of all the deeds, and the execution of the defeasance which applied to all the deeds, occurred on the same day, and was clearly' one transaction, the object of which was to secure the note for $100,000 made and delivered by Goldsmith to Walker. The same remarks apply to the second set of deeds executed by Goldsmith, and Goldsmith and Teal, on October 18th, 1876, and the defeasance executed by Hewett and Walker on the same day. In fact, all the deeds and the two defeasances might, without violence, be regarded in equity as two mortgages executed at different times with one and the same defeasance; for the defeasance last executed provides that it shall not have the effect to annul, vacate, or set aside the first except in so far as the two conflict; in all other respects the two were to be taken and construed together. We are, therefore, to apply the same rules to the questions arising in this case as if we had to deal with mortgages executed in the ordinary form.
The decision of the question raised by the demurrer to the complaint is not affected by the stipulation contained in the de-
feasance of August 19th, 1874, that Goldsmith and Teal should, on default made in the payment of the principal of Goldsmith’s note, and on the demand of Hewett, surrender the mortgaged premises to him. If this was a valid and binding undertaking, 1 id not change the rights of the parties. Without any p. 248such stipulation, Hewett, unless it was otherwise provided by statute, was entitled, at least on default in the payment of the note of Goldsmith, to the possession of the .mortgaged premises. Keech n . Hall, 1 Doug. 21; Rockwell n . Bradley, 2 Conn. 1; Smith v. Johns, 3 Gray, 517; Jackson v. Dubois, 4 Johns. 216; Furbush n . Goodwin, 29 N. H. 321; Howard n . Houghton, 64 Me. 445 ; Den ex dem. Hart n . Stockton, 7 Halst. 322 ; Ely v. McGuire, 2 Ohio, 223. Vol. 1 and 2, 2d Ed. 372. The rights of the parties are, therefore, the same as if the defeasance contained no contract for the delivery of the possession.
We believe that the rule is without exception that the mortgagee is not entitled to demand of the owner of the equity of redemption the rents and profits of the mortgaged premises until he takes actual possession. In the case of Moss n . Gallimore, 1 Doug. 279, Lord Mansfield held that a mortgagee, after giving notice of his mortgage to a tenant in possession holding under a lease older than the mortgage, is entitled to the rent in arrear at the time of the notice, as well as to that which accrues afterwards. This ruling has been justified on the ground that the mortgagor, having conveyed his estate to the mortgagee, the tenants of the former became the tenants of the latter, which enabled him, by giving notice to them of his mortgage, to place himself to every intent in the same situation towards them as the mortgagor previously occupied. Rawson v. Eicke, 7 Ad. & El. 451; Burrowes v. Gradin, 1 Dowl. & Lowndes, 213.
Where, however, the lease is subsequent to the mortgage, the rule is well settled in this country, that, as no reversion vests in the mortgagee, and no privity of estate or contract is created between him and the lessee, he cannot proceed, either by distress or action, for the recovery of the rent. Mayo v. Shattuck, 14 Pick. 533; Watts v. Coffin, 11 Johns. 495 ; McKircher v. Hawley, 16 Id. 289; Sa/nderson v. Price, 1 Zabr. 637; Brice n . Smith, 1 Green’s Ch. (N. J.) 516.
The case of Moss v. Gallimore has never been held to apply to a mortgagor or the vendee of his equity of redemption. Lord Mansfield himself, in the case of Chinnery v. Blackman, p. 2493 Doug. 391, held that until the mortgagee takes possession the mortgagor is owner to all the world, and is entitled to all the profits made. . •
The rule on this subject is thus stated in Bacon’s Abridgement, Title Mortgage C: “ Although the mortgagee may assume possession by ejectment at his pleasure, and, according to the case of Moss v. Gallimore, Doug. 279, may give notice to the tenants to pay him the rent due at the time of the notice, yet, if he suffers the mortgagor to remain in possession or in receipt of the rents, it is a privilege belonging to his estate that he cannot be called upon to account for the rents and profits to the mortgagee, even although the security be insufficient.”
So, in Higgins n . York Buildings Company, 2 Atk. 107, it was said by Lord Hardwicke : “ In case of a mortgagee, where a mortgagor is left in possession, upon a bill brought by the mortgagee for an account in this court, he never can have a decree for an account of rents and profits from the mortgagor for any of the years back during the possession ot the mortgagor,” and the same judge said in the case of Mead v. Lord Orrery, 3 Atk. 244: “ As to the mortgagor, I do not know of any instance where he keeps in ppssession that he is liable to account for the rents and profits to the mortgagee, for the mortgagee ought to take the legal remedies to get into possession.”
In Wilson, ex parte, 2 Yes. & B. 252, Lord Eldon said: “Admitting the decision in Moss v. Gallimore to be sound law, I have been often surprised by the statement that a mortgagor was receiving the rents for the mortgagee. . . In the instance of a bill filed to put a term out of the way, which may be represented as in the nature of an equitable ejectment, the court will, in some cases, give an account of the past rents. There is not an instance that a mortgagee has per directum called upon the mortgagor to account for the rents. The consequence is, that the mortgagor does not receive the rents for the mortgagee.” See, also, Coleman n . Duke of St. Albans, 3 Ves. Jr. 25; Gresley v. Adderly, 1 Swanst. 573.
The American cases sustain the rule that so long as the p. 250mortgagor is allowed to remain in possession, he is entitled to receive and apply to liis own use the income and profits of the mortgaged estate ; and, although the mortgagee may have the right to take possession upon condition broken, if he does not exercise the right, he cannot claim the rents; if he wishes to receive the rents, he must take means to obtain the possession. Wilder v. Houghton, 1 Pick. 87; Boston Bank v. Heed, 8
In Hughes v. Edwards, 9 Wheat. 500, it was held that a mortgagor was not accountable to the mortgagee for the rents and profits received by him during his possession, even after default, and even though the land, when sold, should be insufficient to pay the debt, and that the purchaser of the equity redemption was not accountable for any part of the debt beyond the amount for which the land was sold.
In the case of Gilman v. Illinois <& Mississippi Telegraph Company, 91 IT. S. 603, it was declared by this court that where a railroad company executed a mortgage to trustees on its property and franchises, “ together with the tolls, rents, and profits to be had, gained, or levied thereupon,” to secure the payment of bonds issued by it, the trustees, in behalf of the creditors, were not entitled to the tolls and profits of the road, even after condition broken, and the filing of a bill to foreclose the mortgage, they not having taken possession or had a receiver appointed. The court said, in delivering judgment in this case: “ A mortgagor of real estate is not liable for rent while in possession. He contracts to pay interest not rent.” So in Kountze v. Omaha Hotel Company, 107 U. S. 378, it was said by the .court, speaking of the rights of a mortgagee: “But in the case of a mortgage, the land is in the nature of a pledge : it is only the land itself, the specific thing, which is pledged. The rents and profits are not pledged; they belong to the tenant in possession, whether the mortgagor or third person claims under him. . . The plaintiff in this case was not entitled to the possession, nor the rents and profits. See also Hutchins n . King, 1 Wall. 53, 57-58.
Chancellor Kent states the modern doctrine in the following language: “ The mortgagor has a right to lease, sell and in p. 251every respect to deal with the mortgaged premises as owner so long as he is permitted to remain in possession, and so long as it is understood and held that every person taking under him, takes subject to all the rights of the mortgagee, unimpaired and unaffected. Nor is he liable for rents, and the mortffaa’ee must recover the possession by regular entry by suit before he can treat the mortgagor, or the person holding under him, as a trespasser.” 4 Kent Com. 157. See also American Bridge Company v. Ileidelbach, 94 IT. S. 798; Clarice v. Curtis, 1 Grattan, 289; Banlc of Ogdensl)urg v. Arnold, 5 Paige Ch. 38; Hunter v. Hays, Biss. 362; Souter v. La Crosse Railway, Woolworth C. C. 80, 85; Foster v. Rhodes, 10 Bank. Reg. 523. The authorities cited show that, as the defendant in error took no effectual steps to gain possession of the mortgaged premises, he is not entitled to the rents and profits while they were occupied by the owner of the equity of redemption.
The case against the right of the defendant in error to recover in this case the rents and profits received by the owner of the equity of redemption is strengthened by section 323, chapter 4, title 1, General Laws of Oregon, 1843-1872, which declares that “ a mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale according to law.”
This provision of the statute cuts up by the roots the doctrine of Moss v. Gallimore, ubi supra, and gives effect to the view of the American courts of equity that a mortgage is a mere security for a debt, and establishes absolutely the rule that the mortgagee is not entitled to the rents and profits until he gets possession under a decree of foreclosure. Por if a mortgage is not a conveyance, and the mortgagee is not entitled to possession, his claim to the rents is without support. This is recognized by the Supreme Court of Oregon as the effect of a mortgage in that State. In Besser v. Hawthorn, 3 Oregon, 129 at 133, it was declared : “ Our system has so changed this class of contracts that the mortgagor retains the right of possession and the legal title.” See, also, Anderson v. Baxter, 4 Oregon, 105; Roberts v. Sutherlin, Id. 219.
The case of the defendant in error cannot be aided by the stipulation in the defeasance of August 19th, 1874, exacted by the mortgagee, that Goldsmith and Teal would, upon default in the payment of the note secured by the mortgage, deliver to Hewett, the trustee, the possession of the mortgaged premises. That contract was contrary to the public policy of the State of Oregon, as expressed in the statute just cited, and was not binding on the mortgagor or his vendee, and, although not expressly prohibited by law, yet, like all contracts opposed to the public policy of the State, it cannot be enforced. Railroad Company n . Lockwood, 17 Wall. 357 ; Bank of Kentucky v. Adams Express Company, 93 U. S. 174; Marshall v. Baltimore Bo Ohio Railroad Company, 16 How. 314; Meguire v. Corwine, 101 U. S. 108.
In any view of the case, we are of opinion that the defendant in error was not entitled to receive the rents sued for in this action. As this conclusion takes away the foundation of the suit, it is unnecessary to notice other assignments of error.
The judgment of the Circuit Court is reversed, and the cause remanded to that court for further proceedings in conformity with this opinion.
BORS v. PRESTON.
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK. Argued January 4th, 1884.—Decided April 7th, 1884.
Consul— Constitutional Law—Evidence. In cases coming from the Circuit Courts, this court will determine from its
own inspection of the record, whether they are of the class exclu e y statute from the cognizance of those courts; this, although the ques ion o jurisdiction is not raised by the parties. The constitutional grant of original jurisdiction to this court of all cases a ee
ing consuls, doesnot prevent Congress from conferring original juris ic ion, in such cases, also, upon the subordinate courts of the Union. The jurisdiction of the Circuit Courts of the United States of suits by ci izen
against aliens, is not defeated by the fact that the defendant is the consul of a foreign government. The alienage of a defendant is not to be presumed from the mere fact that he
is the consul, in this country, of a foreign government.
This action was brought in the Circuit Court of the United States for the Southern District of New York. The plaintiff below, Preston, was a citizen of that State, while the defendant was the consul at the port of New York, for the Kingdoms of Norway and Sweden.
The object of the action was to recover damages for the alleged unlawful conversion, by defendant, to his own use, of certain articles of merchandise. The answer denied the material allegations of the complaint, and, in addition, by way of counterclaim asked judgment against the plaintiff for cer tain sums. To the counterclaim a replication was filed, and a trial had before a jury, which resulted in a verdict in favor of plaintiff for $7,313.10. For that amount judgment was entered against the defendant. The defendant sued out this writ of error. The errors assigned with which the opinion of the court deals were the followingo1:
1st Assignment of error. That the plaintiff in error being before, at the time of the commencement of this suit, and ever since Consul of the Kingdoms of Norway and Sweden, he ought not, according to the Constitution and laws of the United States, to have been impleaded in the Circuit Court, but in the District ourt of the United States, for the Southern District of New ork, or in some of the District Courts, and that the Circuit ourt had not jurisdiction of this cause, and should have directed
a verdict for said defendant.
2d Assignment of error. That judgment was given for the e endant in error against the plaintiff in error, when by the laws 0 e United States, the judgment ought to have been given for
0 plaintiff in error against the defendant in error, it being admitted that the plaintiff in error was, at the time of the transacion on the 8th of April, and continued to the trial, the Consul or ^weden and Norway, at the port of New York, whereby the mcmt Court had no jurisdiction of the cause.”
JZr. George H. Forster for plaintiff in error.
J/)’. B. F. Tracey for defendant in error.—I. The Circuit Court has jurisdiction in cases of foreign consuls. Bixby n . Jansen, 6 Blatchford, 315; Graham, v. Slacken, 4 Blatchford, 50; St. Luke’s Hospital v. Barclay, 3 Blatchford, 259.—II. The Circuit Court acquired jurisdiction against plaintiff in error as an alien, by virtue of the undisputed allegation in the complaint, which sets forth that the defendant in error is a citizen of the State of New York, and that the plaintiff in error is consul for the Kingdom of Norway and Sweden residing in New York. A consul for a foreign country, discharging his duties in an American seaport is, in the absence of any contrary evidence, to be presumed in law to be an alien and a citizen or subject of the country which he represents. Vattell, lib. 2, c. 2, § 34; Kent, 7th ed. 49.—III. Where it is alleged by the plaintiff in his complaint as the only matter giving jurisdiction to the Circuit Court that the defendant is a foreign consul, and the defendant answers and goes to trial and raises no objection or question as to the jurisdiction of the court until after he is defeated, and the cause has been brought into this court, it will be presumed in the absence of any testimony in the record to the contrary, that the defendant was an alien; because the natural presumption of his alienage is established by his failure to assert the contrary when such an assertion would have deprived the court of jurisdiction and relieved him from the trouble and expense of litigation. Express Compa/ny v. Kountze Bro. 8 Wall. 342, at 351; Marshall v. Baltimore & Ohio Bailroad Company, 16 How. 314, 329; Gassiest. Ballon, 6 Pet. 761; Robertson n . Cease, 97 U. S. 646; Brown n . Keene, 8 Pet. 115; Grace n . American Insurance Company, 109 U. S. 278. IV. The assignments of error in the record do not contain any mention of a want of jurisdiction in the Circuit Court, and it may not therefore be now considered.—N. If it should be held by this court that the Circuit Court had not jurisdiction, then as this court possesses, itself, original jurisdiction in the case by virtue of an express provision in the Constitution of the United States and in the Judiciary Act, this court will, in p. 255furtherance of justice, issue a venire de novo and try the cause now and here. Or, as in Robertson v. Cease, supra, leave to amend will be accorded the defendant in error, that he may distinctly set out the alienage of the plaintiff in error at the time of the commencement of the action, nunc pro tunc, and irrespective of any statute of limitations. Other points taken by the counsel related to the merits of the case.
Me . Just ice Harlan delivered the opinion of the court. After reciting the facts in the above language, he continued:
The assignments of error question the jurisdiction of the Circuit Court, under the Constitution and the laws of the United States, to hear and determine any suit whatever brought against the consul of a foreign government.
Some reference was made in argument to the fact that the defendant did not in the court below plead exemption, by virtue of his official character, from suit in a Circuit Court of the United States. To this it is sufficient to reply that this court must, from its own inspection of the record, determine whether a suit against a person holding the position of consul of a foreign government is excluded from the jurisdiction of the Circuit Courts. In cases of which the Circuit Courts may take cognizance only by reason of the citizenship of the parties, this court, as its decisions indicate, has, except under special circumstances, declined to express any opinion upon the merits on appeal or writ of error, where the record does not affirmatively show jurisdiction in the court below; this, because the courts of the Union, being courts of limited jurisdiction, the presumption, in every stage of the cause, is, that it is without their jurisdiction unless the contrary appears from the record. Grace v. American Insurance Company, 109 U. S. 278, 283; Robertson v. Cease, 97 U. S. 646.
Much more, therefore, will we refuse to determine on the merits, and will reverse on the point of jurisdiction, cases where the record shows affirmatively that they are of a class ich the statute excludes altogether from the cognizance of ircuit Courts. If this were not so it would be in the power of e parties by negligence or design , to invest those courts with
a jurisdiction expressly denied to them. To these considerations it may be added, that the exemption of the consul of a foreign government from suit in particular courts, is the privilege, not of the person who happens to fill that office, but of the State or government he represents. It was so decided in Davis n . Packard, 7 Pet. 276, 284. While practically it may be of no consequence whether original jurisdiction of suits against consuls of foreign governments is conferred upon one court of the United States rather than another, it is sufficient that the legislative branch of the government has invested particular courts with jurisdiction in the premises.
We proceed then to inquire whether, under the Constitution and laws of the United States, a Circuit Court may, under any circumstances, hear and determine a suit against the consul of a foreign government; in other words, whether other courts have been invested with exclusive jurisdiction of such suits.
The Constitution declares that “the judicial power of the United States shall extend ... to all cases affecting ambassadors or other public ministers and consuls; ” “ to controversies between citizens of a State and foreign citizens or subjects; ’ that “ in all cases affecting ambassadors, other public ministers and consuls, . . . the Supreme Court shall have original jurisdiction; ” and that in all other cases previously mentioned in the same clause “ the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.”
The Judiciary Act of 1789 invested the District Courts of the United States with “jurisdiction, exclusively of the courts of the several States, of all suits against consuls or vice-consuls, except for offences of a certain character; this court with “ original, but not exclusive, jurisdiction of all suits . . • in which a consul or vice-consul shall be a party; ” and the Circuit Courts with jurisdiction of civil suits in which an alien is a party. 1 Stat. 76-80. In this act we have an affirmance, by the first Congress—many of whose members participated in the convention which adopted the Constitution, and were, therefore, conversant with the purposes of its framers—of the principle that the original jurisdiction of this court of cases in p. 257which a consul or vice-consul is a party, is not necessarily exclusive, and that the subordinate courts of the Union may be invested with jurisdiction of cases affecting such representatives of foreign governments. On a question of constitutional construction, this fact is entitled to great weight.
Very early after the passage of that act, the case of United States n . Uavara, 2 Dall. 297, was tried in the Circuit Court of the United States for the District of Pennsylvania, before Justices Wilson and Iredell of this court, and the district judge. It was an indictment against a consul for a misde-. meanor, of which, it was claimed, the Circuit Court had jurisdiction under the eleventh section of the Judiciary Act, giving Circuit Courts “ exclusive cognizance of all crimes and offences cognizable under the authority of the United States,” except where that act “ otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the District Courts of the crimes and offences cognizable therein.” In behalf of the accused it was contended that -this court, in virtue of the constitutional grant to it of original jurisdiction in all cases affecting consuls, had exclusive jurisdiction of the prosecution against him. Mr. Justice Wilson and the district judge concurred in overruling this objection. They were of opinion that although the Constitution invested this court with original jurisdiction in cases affecting consuls, it was competent for Congress to confer concurrent jurisdiction, in those cases, upon such inferior courts as might, by law, be established. Mr. Justice Iredell dissented, upon the ground that the word original, in the clause of the Constitution under examination, meant exclusive. The indictment was sustained, and the defendant upon the final trial, at which Chief Justice Jay presided, was found guilty. He was subsequently, pardoned on condition that he would surrender his commission and exequatur.
In United States v. Ortega, 11 Wheat. 467—which was a criminal prosecution, in a Circuit Court of the United States, for e offence of offering personal violence to a public minister, contrary to the law of nations and the act of Congress—one 0 the questions certified for decision was whether the jurisdic-
VOL. CXI—17
tion conferred by the Constitution upon this court, in cases affecting ambassadors or other public ministers and consuls, was not only original but exclusive of the Circuit Courts. But its decision was waived and the case determined upon another ground. Of that case it was remarked by Chief Justice Taney, in Sittings n . Crawford, Taney’s Dec. 1, 5, that an expression of opinion upon that question would not have been waived had the court regarded it as settled by previous decisions.
In Davis v. Packard, ubi supra, upon error to the Court for the Correction of Errors of the State of New York, the precise question presented was whether, under the Constitution and laws of the United States, a State court could take jurisdiction of civil suits against foreign consuls. It was determined in the negative, upon the ground that by the ninth section of the act of 1789, jurisdiction was given to the District Courts of the United States, exclusively of the courts of the several States, of all suits against consuls and vice-consuls, except for certain offences mentioned in the act. The jurisdiction of the State courts was denied because—and no other reason was assigned —jurisdiction had been given to the District Courts of the United States exclusively of the former courts; a reasdirwhich. probably would not have been given had the court, as then organized, supposed that the constitutional grant of original jurisdiction to this court, in all cases affecting consuls, deprived Congress of power to confer concurrent original jurisdiction, in such cases, upon the subordinate courts of the Union. It is not to be supposed that the clause of the Constitution giving original jurisdiction to this court, in cases affecting consuls, was overlooked, and, therefore, the decision, in that case, may be regarded as an affirmance of the constitutionality of the act of 1789, giving original jurisdiction in such cases, also, to District Courts of the United States. And it is a significant fact, that in the decision in Davis v. Packard, Chief Justice Mar shall concurred, although he had delivered the judgments in Marbury v. Madison, 1 Cranch, 137; Cokens N. Virgin^," Wheat. 264, and Osborn v. Bank of the United States, 9 Whea . 738, 821, some of the general expressions in which are not m frequently cited in support of the broad proposition that e p. 259jurisdiction of this court is made by the Constitution exclusive of every other court, in all cases of which by that instrument it is given original jurisdiction. It may also be observed that of the seven justices who concurred in the judgment in Davis v. Packard, five participated in the decision of Osborn v. Bank of the United States.
In St. Luke's Hospital v. Barclay) 3 Blatchford, 259, which was a suit in equity in the Circuit Court of the United States for the Southern District of New York, the question was distinctly raised whether the consular character of the alien defendant exempted him from the jurisdiction of the Circuit Courts. The jurisdiction of the Circuit Court was maintained, the opinion of the court being that the jurisdiction of the District Courts was made by statute exclusive only of the State courts, and.that under the 11th section of the act of 1789, the defendant being an alien—no exception being made therein as to those wlio were consuls—was amenable to a suit in the Circuit Court brought by a citizen. Subsequently the question was reargued before Mr. Justice Nelson and the district judge, and the proposition was pressed that the defendants could not be sued except in this court or in some District Court. But the former ruling was sustained.
In Graham n . Stucken, 4 Blatchford, 50, the same question was carefully considered by Mr. Justice Nelson, who again held that the constitutional grant of original jurisdiction to this court in cases affecting consuls; the legislative‘grant in the act of 1789 to this court of original but not exclusive jurisdiction of suits in which a consul or vice-consul is a party; and e legislative grant of jurisdiction to the District Courts, exclusive of the State courts, of suits against consuls or vice-consuls, i not prevent the Circuit Courts, which had jurisdiction of sui s to which an alien was a party, from taking cognizance of a suit brought by a citizen against an alien, albeit the latter yas, at the time, the consul of a foreign government.
a Sittings v. Crawford, Taney’s Dec. 1, which was a suit
pon a promissory note brought in the District Court of the a ni e ^ates for Maryland, by a citizen of that State against c°ns of Great Britain, the point was made in the Circuit p. 260Court on writ of error that by the Constitution of the United States this court had exclusive jurisdiction of such cases.
The former adjudications of this and other courts of the Union were there examined, and the conclusion reached—and in that conclusion we concur—that, as Congress was not expressly prohibited from giving original jurisdiction in cases affecting consuls to the inferior judicial tribunals of the United States, neither public policy nor convenience would justify the court in implying such prohibition, and, upon such implication, . pronounce the act of 1789 to be unconstitutional and void. Said Chief Justice Taney: “ If the arrangement and classification of the subjects of jurisdiction into appellate and original, as respects the Supreme Court, do not exclude that tribunal from appellate power in the cases where original jurisdiction is granted, can it be right, from the same clause, to imply words of exclusion as respects other courts whose jurisdiction is not there limited or prescribed, but left for the future regulation of Congress ? The true rule in this case is, I think, the rule which is constantly applied to ordinary acts of legislation, in which the grant of jurisdiction over a certain subject-matter to one ‘ court, does not, of itself, imply that that jurisdiction is to be exclusive. In the clause in question, there is nothing but mere affirmative words of grant, and nonethat import a design to exclude the subordinate jurisdiction of other courts of the United States on the same subject-matter.” Taney’s Dec. 9. After alluding to the fact that the position of consul of a foreign, government is sometimes filled by one of our own citizens, e observes: “ It could hardly have been the intention of the statesmen who framed our Constitution to require that one o our citizens who had a petty claim of even less than five do lais against another citizen, who had been clothed by some foreign government with the consular office, should be compelled to go into the Supreme Court to have a jury summoned in order to en able him to recover it; nor could it have been intended, thatt e time of that court, with all its high duties to perform, s^u be taken up with the trial of every petty offence that mig be committed by a consul in any part of the United „ ta es, that consul, too, being often one of our own citizens.
Such was the state of the law when the Revised Statutes of the United States went into operation. By section 563 it is provided that “ the District Courts shall have jurisdiction . . . of all suits against consuls or vice-consuls,” except for certain offences; by section 629, that “ the Circuit Courts shall have original jurisdiction ” of certain classes of cases, among which are civil suits in which an alien is a party; by section 687, that this court shall have “ original but not exclusive jurisdiction of all suits .... in which a consul or vice-consul is a party; ” and by section 711, that the jurisdiction vested in the courts of the United States in the cases and proceedings there mentioned—• among which (par. 8) are “ suits against ambassadors or other public ministers or their domestics, or domestic servants, or against consuls or vice-consuls ”—shall be exclusive of the courts of the several States. But by the act of February 18th, 1875, that part of section 711 last quoted was repealed, 18 Stat. 318; so that, by the existing law, there is no statutory provision which, in terms, makes the jurisdiction of the courts of the United States exclusive of the State courts in suits against consuls or vice-consuls.
It is thus seen that neither the Constitution nor any act of Congress defining the powers of the courts of the United States has made the jurisdiction of this court, or of the District Courts, exclusive of the Circuit Courts in suits brought against persons who hold the position of consul, or in suits or proceedings in which a consul is a party. The jurisdiction of the latter courts, conferred without qualification, of a controversy between a citizen and an alien, is not defeated by the fact that the alien happens to be the consul of a foreign government. Consequently, the jurisdiction of the court below cannot be questioned upon the ground simply that the defendant is the consul of the Kingdom of Norway and Sweden.
But as this court and the District Courts are the only courts 0 the Union which, under the Constitution or the existing statutes, are invested with jurisdiction, without reference to the citizenship of the parties, of suits against consuls, or in which consuls are parties, and since the Circuit Court was without jurisdiction, unless the defendant is an alien or a citizen of some p. 262State other than New York, it remains to consider whether the record shows him to be either such citizen or an alien. There is neither averment nor evidence as to his citizenship, unless the conceded fact that he is the consul of a foreign government is to be taken as adequate proof that he is a citizen or subject of that government. His counsel insist that the consul of a foreign country, discharging his duties in this country, is, in the absence of any contrary evidence, to be presumed in law to be a citizen or subject of the country he represents. This presumption, it is claimed, arises from the nature of his office and the character of the duties he is called upon to discharge. But, in our opinion, the practice of the different nations does not justify such presumption. “ Though the functions of consul,” says Kent, “ would seem to require that he should not be a subject of the State in which he resides, yet the practice of the maritime powers is quite lax on this point, and it is usual, and thought most convenient, to appoint subjects of the foreign country to be consuls at its ports.” 1 Kent, 44. In Sittings v. Crawford, ubi supra, it was said by Chief Justice Taney that, “ in this country, as well as others, it often happens that the consular office is conferred by a foreign government on one of our own citizens.” It is because of this practice that the question has frequently arisen as to the extent to which citizens of a country, exercising the functions of foreign consuls, are exempt from the political and municipal duties which are imposed upon their fellow citizens. 1 Halleck’s International Law, London Ed., vol. 1, ch. 11, § 10, et sep In an elaborate opinion by Attorney-General Cushing, addressed to Secretary Marcy, the question was considered whether citizens of the United States, discharging consular functions here by appointment of foreign governments, were subject to service in the militia or as jurors. 8 Opin. Attys-Genl. 169. It was, perhaps, because of the difficulties arising in determining questions of this character that many of the treaties between the United States and other countries define with precision the privileges and exemptions given to consuls of the respective nations-- exemptions from public service being accorded, as a genera rule, only to a consul who is a citizen or subject of the coun ry
Concurring Opinion: Miller, Gray, JJ.
he represents. Rev. Stat, of Dist. Col., Public Treaties, Index, title “ Consuls.”
But it seems unnecessary to pursue the subject further. When the jurisdiction of the Circuit Court depends upon* the alienage of one of the parties, the fact of alienage must appear affirmatively either in the pleadings or elsewhere in the record. Brown v. Keene, 8 Pet. 115 ; Bingham n . Cabot, 3 Dall. 382 ; Capron v. Van Noorden, 2 Cranch, 126; Robertson v. Cease, supra. It cannot be inferred, argumentatively, from the single circumstance that such person holds and exercises the office of consul of a foreign government. Neither the adjudged cases nor the practice of this government prevent an American citizen—not holding an office of profit or trust under the United States—from exercising in this country the office of consul of a foreign government.
Our conclusion is that, as it does not appear from the record that the defendant is an alien, and since it is consistent with the record that the defendant was and is a citizen of the same State with the plaintiff, the record, as it now is, does not present a case which the Circuit Court had authority to determine. Without, therefore, considering the merits of this cause,
The judgment must be reversed, and the cause remanded for such further proceedings as may be consistent with this opinion. It is so ordered.
Mr . Jus tice Gra y .—Mr . Just ice Mill er and myself concur in the judgment of reversal, on the ground that the Circuit Court had no jurisdiction of the case, because the record does
not show that the defendant was an alien, or a citizen of a different State from that of which the plaintiff was a citizen. We express no opinion upon the question whether, if the record had shown that state of facts, as well as that the defendant was a consul, the Circuit Court would have had jurisdiction.