Meyer v. City of Muscatine, 68 U.S. (1 Wall.) 384

Meyer v. The City of Muscatine.

3. Where a statute fixes the rate of interest per annum, a contract may lawfully he made for the payment’ of that rate, before the principal comes due, at periods shorter than a year.

4. The statute of Iowa, of January 25, 1855 (chap. 128), authorizes cities in that State to give their bonds in payment of subscriptions to railroad stock, and authorizes them to be sold at a price even greatly below their par value. Miller, J., dissenting from the doctrine as applied.

5 Where the votes of three hundred and twenty-six citizens were given in favor of a municipal loan, and of five only against it, and the city issued the bonds, no one interposing to prevent the issue, all parties acting in good faith, the city cannot afterwards object to the regularity of the preliminary proceedings, and set up that the vote was not taken in the form in which, under the charter, it ought to have been taken. If the legal authority under which the agents of the city, in issuing the bonds, acted, was sufficiently comprehensive, a holder of them bond fide and for value has a right to presume that all precedent necessary requirements had been complied with.

6. Gelpcke v. The City of Dubuque (ante, p. 175), affirmed; the whole case asserting the validity of municipal bonds, made payable to bearer and issued for the construction of railroads, when such bonds are in the hands of innocent holders for value.

Error to the District Court of the United States, for the District of Iowa, the case being thus:

The city of Muscatine was incorporated, A.D. 1851, by the legislature of Iowa, and by its charter made “ a body corporate, and invested with all powers and attributes of a municipal corporation.” “ The legislative authority of the city,” says this charter by its 19th section, “ is vested in a city council;” which council, the charter goes on to declare, “ is invested with the following powers,” the powers being set forth essentially as follows:

“1. To secure the inhabitants against fire, and violations of the law and the public peace; to suppress riots, drunkenness, gambling, and disorderly conduct; and generally to provide for the safety, good order, and prosperity of the city, and the health, morals, and conveniences of the inhabitants.

‘ 2. To impose penalties for the violation of its ordinances. 3- To establish and organize fire companies, and to provide them with fire apparatus.

4. To regulate the keeping and sale of gunpowder within e city, and to provide that no building of wood shall be erected within designated parts.

v °l. i. . ’ 25

“ 5. To have the control of the landing on the Mississippi River, and build wharves, and regulate the landing, wharfage, dockage, &c.

“ 6. To provide for the license, regulation, or prohibition of exhibitions, &c.; billiard tables, ball and ten-pin alleys, and places where any games of skill or chance are played.

“7. To make ordinances in relation to the cleanliness and health of the city.

“ 8. To regulate cartage and drayage within the city, and make prohibition of animals running at large within the city.

“ 9. To provide for the establishment and support of schools in the city, and for the government of the same.

“ 10. To audit all claims against the city 5 to provide for the keeping of the public money of the city, and the manner of drawing the same from the treasurer.

1111. To establish the grade of the streets, alleys, and wharves.

“12. To prescribe the manner of calling the meetings of the citizens, except for the election of officers.

“ 13. To appoint street commissioners and officers.

“ 14.' To cause the streets and alleys of the city to be paved.

“ 15. To borrow money for any object in its discretion, if at a regularly notified meeting, under a notice stating distinctly the nature and object of the loan, and the amount thereof, as nearly as practicable, the citizens determine in favor of the loan by a majority of two-thirds of the votes given at the election.

“16. To fill vacancies occurring in any of the city offices by appointment of record, to hold, in the case of election officers, until the next regular election and the qualification of the successor.”

With this charter and these enactments in force, it was proposed by certain persons that the city of Muscatine, Iowa, should borrow money and subscribe to the stock of the Mississippi and Missouri Railroad; an ordinance was accordingly passed, July 23d, 1855, to take the vote of the citizens, in order to see whether two-thirds of them, as required by the article 15, ante, p. 386, were in favor of borrowing the money. The ordinance enacted essentially as follows:

The election shall be upon the following propositions :

1st. To rescind a vote given, &c., authorizing the council to borrow $45,000, to be subscribed on stock of the Iowa Western Railroad, and also to rescind a vote given authorizing the council to borrow $50,000, to be subscribed on stock of the Muscatine, Iowa City, &c., Railroad.

2d. To borrow for a term of years, not exceeding twenty, on the bonds of the city, at a rate of interest not higher than ten per cent, per annum, $130,000, to be subscribed on stock in the name of the city to the capital stock of the Mississippi and Missouri Railroad Company.

3d. The vote shall be given by ballot, written or printed, with the words “For the rescission and loan,” and “ Against the rescission and loan,” and if the requisite number of votes are for the rescission and loan, the council shall cause the bonds to be issued.

Three hundred and twenty-six votes were given for the rescission and loan, and five against it.

The city accordingly issued its bonds, the form of them, somewhat special, being thus:

Bond of the City of Muscatine,

®1000- No. 51.

Upon the surrender of this bond to A. C. Flagg, treasurer in trust, at any time previous to said 1st January, 1876, the holder hereof will be entitled to ten shares of the capital stock of the Mississippi and Missouri Failroad Company, in satisfaction thereof.

Whereof J. H. Wallace, Mayor of the city of Muscatine, does hereby certify that by a vote of the legal electors of the said city of Muscatine, at an election held 13th August, 1855, in accordance with an ordinance of the Common Council sanctioning the same, that the said city was authorized to borrow the sum of one hundred and thirty thousand dollars, and to issue its bonds therefor, bearing interest at ten per cent, per annum, and that the above is one of the bonds given for said loan.

In testimony whereof, I have hereunto set my hand and affixed ro _._ t the seal of said city this thirty-first day of December, L’J A.D. 1858.

J. H.' Wallace,

Mayor.

Attested by

D. S. Johnson,

Recorder.

The coupons were in this form:

The city of Muscatine will pay the bearer, on the 1st day of January, 1860, twenty-five dollars, at the office of E. W. Clark, Dodge & Co., in the city of New York, interest due on their bond No. 51.

J. H. Wallace,

Mayor.

A number of the bonds thus issued having got into the hands of the plaintiffs, and the interest being unpaid, they brought suit to recover it. The city set up various defences, as follows:

1. That there was no authority in the charter of the city of Muscatine under which money may be borrowed to aid in the construction of railroads. ’

2. Because the interest was made payable in New York city, instead of at the treasury of the city of Muscatine.

3. Because, in the stipulation to pay the interest semi-annually at the rate of ten per cent., the authority conferred by the vote which limited the rate of interest to “ not higher than ten per cent, per annum,” was transcended and a usurious rate agreed to be paid.

4. Because the stock of the Mississippi and Missouri Railroad Company, for which said bonds and coupons were issued, was, without authority from the city, placed in the hands of a trustee and entirely beyond its control.

5. Because, under the authority to borrow a sum of money, no money was ever borrowed by the city, but instead, these bonds were delivered to the officers of the Mississippi and Missouri Railroad Company, and by their agents and brokers sold to the plaintiffs at a price greatly below their par value.

[An amended answer to the claim averred, “ that the said bonds were by the officers of said railroad company, and their agents and brokers, sold to the plaintiffs at a price greatly below their par value; that at the time said bonds and coupons were received by said plaintiffs, they had full knowledge of the fact that said bonds had been issued for the purpose of aiding in the construction of said Mississippi and Missouri Railroad.”]

6. Because the ordinance on which the vote for a loan was taken was void, because it submitted three distinct propositions in one, and in such a manner as to cut off an effective opposition from all voters who were against the whole of the propositions.

7. Because, finally, the legislature had no constitutional power to authorize the issue of such bonds, and that hence they are void.

To these defences there was a demurrer, which demurrer t e court overruled, giving judgment in favor of the city.

The case was submitted on briefs of Mr. Cook for the bondholders, and of Mr. Richman and Butler for the city of Muscatine; the arguments on both sides being much the same as those in one or the other of the three cases of GelpckeN. The City of Dubuque, ante, p. 175, or in Mercer County v. Hacket, ante, p. 83. As every reader of this volume, and every inquirer into the obligation of railroad bonds will have read those cases, and will be possessed of the arguments applicable to this case, these arguments need not be repeated here. Some of the arguments in this case having, in fact, been transferred to that.

Mr. Justice SWAYNE delivered the opinion of the court:

The demurrer brings under examination the objections taken by the defendant to the validity of the coupons upon which this suit is founded.

These objections will be considered as we proceed.

I. “ That there is no authority in the charter of the city of Muscatine under which money may be borrowed to aid in the construction of railroads. ”

The charter gives the city authority li to borrow money for any object in its discretion, if at a regularly notified meeting under a notice stating distinctly the nature and object of the loan, and the amount thereof, as nearly as practicable, the citizens determine in favor of the loan, by a majority ol two-thirds of the votes given at the election.”

When the bonds and coupons were issued, the acts of the legislature of Iowa of the 25th of January, 1855,* were in force. These acts in connection with the provision of the charter furnish, in our judgment, a conclusive answer to this objection.

The effect of the acts was considered in the case of Gelpcke et al. v. The City of Dubuque,^ decided at this term, to which we refer.

II. “ Because the interest was made payable in New York city, instead of at the treasury of the city of Muscatine.” -

It was according to the general usage to make such bonds and coupons payable in the city of New York. It added to the value of the bonds and was beneficial to all parties. No legal principle forbids it. The power of a municipal corporation to make any contract, does not depend upon the place of performance, but upon its scope and object. A city authorized to establish gas-works and water works, and to gravel its streets, may buy water, coal, and gravel, beyond its limits, and agree to pay where they are found or elsewhere. The principal power, when expressed, draws to it by necessary implication, the means of its execution. This is a settled rule in the construction of all grants of authority, whether to governments or individuals. If the subject admitted of doubt, we should hold that the city, having acted upon its own construction, and drawn in others to take the securities and advance their money upon it, is now concluded from denying that construction to be the true one.*

III. “ Because in the stipulation to pay the interest semi-annually at the rate of ten per cent., the authority conferred by the vote which limited the rate of interest to ‘ not higher than ten per cent, per annum,’ was transcended, and a usurious rate agreed to be paid.”

This objection has no foundation. When a statute fixes the rate of interest per annum, it has always been held that parties may lawfully contract for the payment of that rate, before the principal debt becomes due, at periods shorter than a year, f

IV. “ Because the stock of the Mississippi and Missouri Bailroad Company, for which said bonds and coupons were issued, was, without authority from the city, placed in the hands of a trustee, wnd entirely beyond its control.”

V. “ Because, under the authority to borrow a sum of money, no money was ever borrowed by the city; but instead, these bonds were delivered to the officers of the Mississippi and Missouri Bailroad Company, and by their agents and brokers sold to the plaintiffs at a price greatly below their par value.”

The amended answer avers, “ That the said bonds were by the officers of said railroad company, and their agents and brokers, sold to the plaintiffs at a price greatly below their par value; that at the time said bonds and coupons were received by said plaintiffs, they had full knowledge of the fact that said bonds had been issued for the purpose of aiding in the construction of said Mississippi and Missouri Railroad.”

The city was authorized to issue the bonds in order to borrow money to pay for the stock. If the company chose to receive the bonds in payment for the stock, retaining a hen on the stock until the bonds were paid, there was no legal obstacle in the way of their doing so. The object of issuing the bonds was thus accomplished, and no injury was done to those who were to pay them. It is neither averred in the answer, nor claimed in the argument, that the railroad company took them at less than their face. It does not appear that any one objected then, and no one can object now. After the bonds passed into the hands of the railroad company, the company was at liberty to sell them on such terms as it might deem proper.

VI. “ The ordinance on which the vote for a loan was taken was void, because it submitted three distinct propositions in one, and in such a manner as to cut off an effective opposition from all voters who were against the whole of the propositions

The record shows that all the votes cast, except five, were in favor of the loan. The city and citizens adopted and acted upon the ordinance as valid and sufficient. The citizens voted, and the city authorities issued the bonds. No one interposed to prevent their issue. It is not questioned that all the parties acted in good faith, and the city can not now be heard to object to the regularity of its own proceedings. A party taking the bonds was bound to look to the legal authority under which the public agents acted. If that were sufficiently comprehensive, he had a right to presume that those empowered to act and acting under it had complied with its requirements.!

VII. “ It is insisted that the legislature had no constitutional power to authorize the issue of such bonds, and that hence they are void.”

This is sufficiently answered by the opinion of this court in Gelpcke v. City of Dubuque, decided at this term.J

The judgment below must be reversed, and the cause remanded for further proceedings, in conformity to this opinion.

Judgment accordingly.

Mr. Justice MILLER, dissenting:

I dissent from the judgment and opinion of the court just delivered.

In the case now before us, however, it is not claimed that there was any act of the legislature authorizing the city of Muscatine to take stock in railroad companies. The principle on which the validity of the bonds is sustained is, that the charter of the city confers on it an unlimited right to borrow money, and that having issued its bonds, which have been sold in the market, they must be held to be valid, although the purchaser knew they were issued for railroad stock.

The plea of the defendant is, that the city of Muscatine “ had no authority to assist in building a railroad, or to take stock in the same, nor to issue the bonds of the city to pay for stock in the same,” and that at the time said bonds were sold to plaintiffs by the officers of the railroad company, they had full knowledge that said bonds had been issued for the purpose of aiding in the construction of the Mississippi and Missouri Railroad. The plaintiffs demurred to this plea, and the District Court overruled the demurrer. This court holds the plea to be bad, and the demurrer well taken.

The authority to borrow money by the city of Muscatine is found in the 19th section of its charter. That section undertakes to enumerate, in sixteen subdivisions, all the powers intended to be conferred on the City Council. They are those which are usually conferred on such bodies, and none others.

It seems to me that the discretion here confided to the council as to the objects for which money may be borrowed,

must be construed in one or the other of two modes.

1. That the discretion is in its largest sense unlimited, except by the voice of two-thirds of the voters. This construction would authorize the city to borrow money to enter into the banking business, to speculate in gold, or flour, or grain, or to establish mercantile houses, or to build steamboats, and enter into the trade which flows past the city, on the waters of the Mississippi River, or to organize mining companies in Colorado. In short, to take the money or property of the citizen against his will, and employ it in any of the diversified pursuits by which the individual man makes, or fails to make, money.

A proposition which leads directly to such consequences cannot be supposed to have entered, for a moment, into the minds of the legislature. It makes every man’s entire property, within the limits of the city, the common property of the community, and converts the citizen, against his will, mto a member of one of those Shaker or French communities in which the individual merges his rights into those of the association. No such construction can be tolerated, unless it is impossible that the legislature could have meant nothing else.

2. That the objects on which this discretion may be exercised must be limited to the execution of some of the powers granted in the charter.

I do not propose to cite the numerous authorities which settle that, as matter of law, this is the rule of construction applicable to the case. It is so well known that it would be a waste of time to refer to adjudged cases.

None of these include railroads; nor does any of them include anything from which railroad enterprises can possibly be implied. In order to get the power to borrow money to build railroads, some other authority than that given by this section must be shown. I do Hot think any such exists, nor has any been pointed to by counsel, unless it be that such a power is inherent in municipal corporations without regard to their charters. I do not think, at this day, any court can be found to hold such a doctrine.

It is obvious that the whole purpose of the statute was to relieve such bonds as might have been, or might hereafter be issued, from liability to the charge of usury. This is not the language in which the legislature or any one else would undertake to make valid bonds, issued without any authority whatever in the municipal body. The bonds in this case were issued before the act passed. It says never a word about ratifying them or confirming them, or making good the want of power to issue them. It is said, however, that the act itself implies that there was authority to issue such bonds in the cities and counties. This is a clear non sequitur. An examination of the acts of the legislature will show that the cities of Dubuque, of Keokuk, of Davenport, and perhaps many others, had been authorized by the legislature to take stock in railroads, and to issue bonds in payment of it, and the Supreme Court of the State had then twice decided that, by a general law, all the counties in the State could do so.

These cities, then, and all the counties having the authority to issue bonds for stock, and some of them having done so, and others intending to do so, the legislature meant no more than to say, that in the cases where they had been, or might hereafter be issued lawfully, in other respects, they should not be held usurious because of the rate of discount at which they might be sold.

To infer from this act that the legislature intended to make valid the bonds of the city of Muscatine, issued without any authority, is a stretch of fancy, only to be indulged in railroad bond cases, and which it is hoped may be confined to them as a precedent. The act applies to bonds issued after its passage as well as before, and in precisely the same terms, ts effect is the same on both. Now will it be urged that this was intended to confer on all the cities whose charters ad theretofore denied them such power, the right to take

stock in railroad enterprises ? Is this the language in which an act of such importance, and affecting so many persons and so much property, would be framed? Yet it is by such latitudinary construction of statutes as this that it is attempted to fasten upon owners of property, who never assented to the contract, a debt of twenty millions of dollars, involving a ruin only equalled in this country by that visited upon the guilty participants in the current rebellion.

Woods v. Freeman.

A judgment in Illinois for taxes is fatally defective if it does not in terms or by some mark indicating money, such as $ or cts., show the amount, in money, of the tax for which it was rendered. Numerals merely, that is to say, numerals without some mark indicating that they stand for money, are insufficient.

Freeman sued Woods in ejectment, in the Circuit Court for the Northern District of Illinois, to recover possession of the southwest quarter of section three (3) of township eight (8) north of range three (3) west of the fourth principal meridian, situated in Warren County, in that State. At the trial, Freeman showed title in himself by a regular chain of conveyances from the United States. Woods, to defeat this title, insisted that the tract of land had been regularly sold for the non-payment of taxes for the year 1852, and the validity of the sale was the main question in the case.

By the statute law of Illinois, the collector of taxes reports to the proper court a list of lands on which the taxes remain due and unpaid, and if no good reason is interposed a judgment is entered on his assessment and return, in the name of the State of Illinois, against the several tracts of land for the sum annexed to each, being the amount of taxes, interest, and costs due thereon, and a precept to sell is ordered.

8 K. 3 W.

Section. Acres. Valuation.State State CountyCo. Total. t । i

Erastus Brown, . W. 8. N. E. 3 89’4 180 1 09 72 1 08 2 89 Elisha Sibree, . . S. W. 3 160 320 1 93 1 28 1 92 5 13

The tract of land in controversy had been sold for taxes, and a deed made to one Harding, through whom Woods claimed. To sustain the deed, Woods offered in evidence the record of the judgment of the county court of Warren County against the tract of land for the unpaid taxes of 1852, the same being in form as above. On the objection of Freeman, the court excluded the evidence, and Woods excepted. Verdict and judgment having been given for Freeman, the correctness of the refusal to admit the evidence was the chief point on error here.

M* . Merriman, for the defendant in error:

Mr. Justice DAVIS delivered the opinion of the court, and after stating facts, proceeded thus:

There was no “ mark, word, or character” on the record of judgment to indicate the amount of taxes for which it was lendered against the land, which was undoubtedly the reason why the court rejected the evidence.

In the construction of local statutes affecting the titles to ieal estate, this court recognizes the binding force of the interpretation given by the highest judicial tribunal of a State.

This question has been expressly decided by the Supreme Court of Illinois. That court has held,** “ that a judgment for taxes is fatally defective which fails to show the amount of tax for which it was rendered, and that the use of numerals, without some mark indicating for what they stand, is insufficient.” The judgment was therefore void, and the court was right in excluding the evidence from the jury.

Judgment is

Affirmed wit h costs.

Uni te d Sta te s v. Moreno.

1. Where there are no subscribing witnesses to a Mexican grant- in colonization, the signature of the governor who executed the grant, and of the secretary who attested it, may be proved by any one acquainted with their handwriting. Such evidence is in no sense secondary. United States v. Auguisola (ante, p. 352), approved. 2. The cession of California to the United States did not impair the rights of private property. These rights were consecrated by the law of nations, and protected by the treaty of Guadalupe Hidalgo. The act of March 3d, 1851, to ascertain and settle private land claims in the State of California, was passed to assure to the inhabitants of the ceded territory the benefit of the rights thus secured to them. It recognizes both legal and equitable rights, and should be administered in a liberal spirit.

On an appeal from the decree of the District Court of the United States for the Southern District of California, the record disclosed the following facts: On the 5th of April, 1845, Moreno submitted to Pio Pico, then Governor of the Department of California, a petition, wherein he set forth that he had “ denounced, in due form, a square league of lan situate between Temecula and the Lagoon called Santa Rosa, to which, after previous judicial investigation,” he prayed o be awarded the respective title, on the ground that it is absolutely vacant and without any availableness.” The governor ordered the petition to be sent for the report of” the pro-

On the 31st of January, 1846, Moreno presented the governor a new petition with the required plat. In this petition he says: “In accordance with the decree your excellency thought fit to give in the month of April, in the year 1845, requiring me to present the plat of the land I occupy provisionally, called Santa Rosa, I hereby, with the deepest submission, accompany my petition and the plat, that your excellency may have the goodness to make out the title-deed of ownership to me of the land bordering on Temecula, the Lagoon, and Santa Margarita, not naming the number of leagues, as I might be mistaken, but I ask that the land which has no owner, and which I demand in due form, be set apart for my individual benefit and that of my family.”

The governor ordered “ the title-deed to be issued and given to the interested party with obligation to amend the plat.” On the day last mentioned, a deed was issued, subject to the approval of the Departmental Assembly. It purported to be subscribed by the governor and secretary, but there were no subscribing witnesses to it. It contained with others the following clauses:

“ The land donated to him is the same as exhibited in the plat attached to this expediente, and borders on land of Temecula, on the Lagoon, and on Santa Margarita.

“ The judge who shall possess him of it will cause it to be measured conformable to ordinance, and give notice to the government of the number of leagues (sitios de ganado mayor) it may contain.

“ Consequently, I order that this title-deed, being held firm and valid, it be entered in the respective book and delivered to 1 e interested party for his security and other purposes.”

The subject was submitted to the Departmental Assembly, and on the 3d June, 1846, that body approved’and confirmed the grant.

It appeared by the testimony of one Foster, in early life a justice of the peace, but who had been for many years a “ ranchero” in California, that “ Santa Rosa” was the name given to a well-known tract; that it adjoined another well-known tract, called“ Temecula,” on the east, a second, known as “ Santa Margarita,” on the west, and that a third, called “ La Laguna,” stood off in a direction northeasterly. This was confirmed by two other witnesses.

Moreno resided upon and cultivated the land from the time he was authorized to occupy it until the acquisition of the country by the United States.

After the acquisition he presented a petition to the Board of Commissioners, established by the act of Congress of 3d March, 1851, to ascertain and settle private land claims in California, to have his title confirmed, pursuant to the provisions of that statute. The commissioners having confirmed it, an appeal was taken by the United States to the District Court; and that court having affirmed the report of the commissioners, the United States brought the case here by appeal.

It was objected on behalf of the United States to the decree of the District Court:

1. That the f* grant is proved, by secondary evidence of handwriting, without the legal basis for its introduction having first been laid;” this objection being made in the case, however, in this court only.

2. That the location and quantity of the land are entirely uncertain both in the grant and in the diseno.

J/r. Willes, for the United States.

Mr. Justice SWAYNE delivered the opinion of the court:

The first objection refers to the proof of the signatures of the governor and secretary to the deed to Moreno, which was made by persons acquainted with their handwriting, without those officers beinffo called or their absence accounted for.

There are no subscribing witnesses to the deed. It was therefore allowable, according to the common law, to prove the signatures by any one acquainted with their handwriting. Such evidence was as competent and valid as the testimony of the writers themselves. It is in no sense secondary evidence.* Were the rule otherwise, it is a sufficient answer to the objection, that it does not appear that the evidence was objected to when it was offered and received in the court below. If no objection be made, the existence and contents of a record may be proved by parol evidence, and a court of errors will not for that reason reverse the judgment.! The testimony is found in the record, without any exception, and must have its legitimate effect. In this class of cases, where the documentary proof of title is plenary, and no suspicion is raised as to its genuineness, it is the settled rule of this court to regard such evidence as both competent and sufficient.:}; We have no doubt of the genuineness of all the papers composing this espediente. No question was made upon the subject in the court below.

It is further objected to the decree that“ the location and quantity of the land are entirely uncertain, both in the grant and the disefio.”

The tract is described in the titulo as known by the name . of Santa Rosa, and as bounding upon Temecula, the Lagoon, and Santa Margarita. The petitioner asked for a title to all the vacant land in that locality, and it was conceded to him accordingly.

It is proved by the testimony of three witnesses that Santa Rosa was a well-known rancho; that Temecula, the Lagoon, and San Margarita were well-known contiguous ranchos, and that there was not the least difficulty either in identifylnS Santa Rosa, or in ascertaining its boundaries. There is no contradictory evidence upon the subject. The District Court held the evidence to be sufficient, and we concur in that opinion.

* 2 Phillips on Evidence, 4th American edition, 604. t Newberry v. Lee, 3 Hill, 523. t United States v. Auguisola, ante, p. 352.

The record presents every link in the chain of a perfect espediente. There is a petition with a disefio, an order of reference, an informe by the proper officer, a decree of concession, a titulo, and the approval of the Departmental Assembly.*

The Surveyor-General of California certifies that the espediente is copied from the archives in his possession. It is not necessary to the validity of the title that the land should have been surveyed and the quantity ascertained.f California belonged to Spain by the rights of discovery

and conquest. The government of that country established regulations for transfers of the public domain to individuals. When the sovereignty of Spain was displaced by the revolutionary action of Mexico, the new government established regulations upon the same subject. These two sovereignties are the spring heads of all the land titles in California, existing at the time of the cession of that country to the United States by the treaty of Guadalupe Hidalgo. That cession did not impair the rights of private property. They were consecrated by the law of nations, and protected by the treaty. The treaty stipulation was but a formal recognition of the pre-existing sanction in the law of nations. The act of March 3d, 1851, was passed to assure to the inhabitants of the ceded territory the benefit of the rights of property thus secured to them. It recognizes alike legal and equitable rights, and should be administered in a large and liberal spirit. A right of any validity before the cession was equally valid afterwards, and while it is the duty of the court in the cases which may come before it to guard carefully against claims originating in fraud, it is equally7 their duty to see that no rightful claim is rejected. No nation can have any higher interest than the right administration of justice The decree of the District Court is

Also, ’

The Milwaukee and Minnesota Railroad Co., Appellants, v. Soutter, who survived Bronson & Soutter, Trustees, &c. [Cross Appeal.]

An act of Congress (July 15, 1862) repealed all Circuit Court powers given to certain District Courts of the United States. A subsequent statute (March 3, 1863) enacted, “That in all cases wherein the District Court had rendered final judgments or decrees prior to the passage of the act, said District Court shall have power to issue writs of execution, or other final process, or to use such other powers and proceedings as may be in accordance with law, to enforce the judgments and decrees aforesaid,” anything in said act of July 15th, 1862, to the contrary notwithstanding: 1. Held,—

I. That the District Court acquired only such powers as might be necessary to insure the execution of any final process that it might issue; that is to say, such powers as might be necessary to regulate and control its officers in the execution of their ministerial duties.

ii. That the words “judgments and decrees,” within the meaning of this act, were such judgments and decrees as disposed of the whole case, so that nothing remained to be done but to issue “final process.”

in. That even if the statute in question conferred larger powers, and gave the court more general jurisdiction over its former cases, such court could not, pending an appeal by a party in whose favor it had decreed, exercise them on the application and in favor of such party; the Supreme Court, however, in order to guard against misconstruction, saying, that where a decree had been rendered affecting property in litigation, the court below, being in custody of such property, had full power to adopt proper measures to protect it from waste or loss; and where a railroad was the property, reasonably to apply its revenues for its conservation, but not to appropriate them beyond this, and among litigating parties.

• In a case where this court, after an examination of very voluminous records, did not doubt that the court below was acting upon a sincere conviction that it possessed full power and authority to make certain orders, which this court now decided that it had made under a misapprehension of its powers, and without authority of law, and that it was influenced by a high sense of duty, and by what it believed to be for the est interests of all parties concerned, in what this court characterized ns ‘a most complicated, difficult, and severely contested cause,” and 1 at it needed but to be advised by the opinion of this court, on a motion

which had been made for a writ of prohibition against it, the said court below, this court, for the present, withheld the appropriate remedy, giving its opinion that the court below had no jurisdiction, and was acting against law, with liberty to counsel to apply hereafter to this court if necessary. Catron, J., dissenting.

Bronson along with, one Soutter had filed their bill in the District Court of the United States for the District of Wisconsin (the Circuit Court system not being at the time introduced into that region, but the District Courts having Circuit Court powers'), to foreclose a mortgage which had been given by the La Crosse and Milwaukee Railroad Company on a portion of their road, called the Eastern portion; the Milwaukee and Minnesota Railroad Company being also made defendants in the suit. The mortgage had been given to secure the holders of bonds which the former company had issued in large amounts. The evidence in the case was very voluminous, the issues complicated, and the cause severely contested. The court below had given to it patient investigation. On the 13th January, 1862, a final decree of foreclosure was entered in the said District Court, in favor of the complainants in the suit, and an appeal was taken by those complainants to this court on the 17th of the same month. The Milwaukee and Minnesota Railroad Company also, one of the defendants in the suit, took a cross-appeal on the 14th of September following.

On the 5th day of October, 1863, another order was entered in the same cause, purporting to be on behalf of the appellants, directing that after disbursements of moneys arising from revenues of the Eastern division of the road to previous incumbrances and necessary expenses, the receiver pay to the holders of the bonds secured by the mortgage their proportionate share of the surplus, if any; all such payments to be credited on the decree of the court in the cause, or on such decree as might be eventually made, if the present decree should be reversed or modified; and on the 26th October another order was made directing the receiver to report, on the first Monday of January, the amount of moneys in his hands after paying previous incumbrances, &c.

A motion was now made in this cause by the appellees in the first appeal, and appellants in the. cross-appeal, to this court, for a writ of prohibition to the District Court, enjoining it against any further proceedings on the order of the 12th of June, and of the 5th and 26th of October. The motion was placed mainly upon the ground that the District Court possessed no jurisdiction to entertain the motion or to make the orders; and that its proceedings are coram nonjudice and void.

The question involved the construction of two acts of Congress: the first passed July 15, 1862,* the second passed March 3, 1863.f

The first act provided for extending the Circuit Court system of the United States to the State of Wisconsin, and which included it in the Eighth Circuit. One section of this act the second—provides that so much of any act of Congress as vests in the District Courts of the United States (of which the district in question is one) the powers and jurisdiction of the Circuit Courts, be and the same is hereby repealed. Another section—the third—provides that all actions, suits, prosecutions, causes, pleas, process, and other

[This court had already held, at the last term, in a case in which the question arose, that the second section repealed in terms all the Circuit Court powers and jurisdiction of the District Courts.]

The second of the two acts referred to was entitled u An act to enable the District Courts of the United States to issue executions and other final process in certain cases,” and provides, “ that in all cases wherein the District Courts had rendered final judgments or decrees prior to the passage of the act of 15th July, 1862, and which cases might have been brought in the Circuit Courts, the District Courts shall have power to issue writs of execution or other final process, or to use such other powers and proceedings as may be in accordance with law, to enforce the judgments and decrees.”

Against the motion it was argued that the act of July, 1862—the first act—gave the District Court, in terms, the right not only to issue writs of execution and other final process, but the right to use such “ other pow’ers and proceedings” as would enforce decrees which they had rendered prior to July 15, 1862; that the decree of foreclosure in this case was rendered prior to that date,—was made on the 13th of January preceding,—more, therefore, than six months prior; that it came accordingly within the very terms of the act.

Mr. Justice NELSON, after stating the case, delivered the opinion of the court:

The question involves the construction of two acts of Congress.

It is supposed that the orders are warranted by the last clause of the act, namely, “ or to use such other powers and proceedings as may be in accordance with law, to enforce the judgments and decrees.” We do not agree to this construction. The obvious meaning and intention of this clause is, to provide for the use and exercise of such powers as might be necessary, after the issuing of execution or other final process, in order to insure the execution of the process; such as are necessary to regulate and control the ministerial duties of officers in the execution of final process. The exercise of such powers are frequently necessary, and are familiar to the profession and the courts, and when authority was given to the District Courts under this act to issue execution on final judgments or decrees that had already been rendered in their courts, it was fit and proper to confer this additional power, otherwise the final process might be unavailable. But if other powers, beyond the enforcement of the ministerial duties of the officers, in the execution of final process, become necessary, recourse must be had to the jurisdiction of the Circuit Court. We are also of opinion that, according to the true construction of the act, the judgments or decrees there referred to are those disposing of the whole case, so that nothing is left to be done but to issue the final process; that if any proceedings remain to be taken for the purpose of completing the final disposition of it, the case or suit pending is not one within the provisions of the act. It belongs to the cognizance of the Circuit Court.

To guard against misconstruction in respect to the powers of a court having jurisdiction over the subject-matter, and where a decree has been rendered affecting the property in litigation—the road in this case—and an appeal is taken to this court, as the property in controversy is not brought into the appellate tribunal, but remains in the custody and care of the court below, it is agreed that full power exists in that court, pending the appeal, to adopt all proper and judicious measures to protect and preserve it from waste or loss. For this reason there can be no well-founded objection in the present case to the running of the road, and the reasonable application and expenditure of its revenues for that purpose. Beyond this, any appropriation of the revenues is not warranted. They should be reserved for such disposition as may be directed by the final decree in the cause.

For the reasons above given, we are entirely satisfied, on the facts set forth in support of this motion, and upon which it is founded, that the District Court has not only misconstrued its powers under the acts of Congress in question, but has overlooked the effect of the appeal from the decree in their favor by the complainants belowT in the first entitled cause, and is acting under that decree upon a misapprehension of its powers, and without authority of law.

The only remaining question in the case is as to the pr^pei

Opinion of Catron, J.

remedy to be applied. We do not doubt but that the learned court below is acting upon a sincere conviction that it possesses full power and authority to make the several orders complained of, and that it is influenced by a high sense of duty, and what is believed to be for the best interest of all parties concerned in this most complicated, difficult, and severely contested cause, and that it needs but to be advised by the opinion of this court on the motion, to conform to the views of the court as there expressed. For the present, therefore, we shall withhold the appropriate remedy, with liberty to the counsel to apply hereafter to the court if necessary in the matter.

Mr. Justice CATROX:

1. I agree that no writ of prohibition ought to issue on this cause, and that the motion for such writ must be refused.

2. As to the advice proffered in the court below, I do no.t agree. There are no facts before us on which we can, judicially, make any order binding the parties or the District Court, nor is any motion before us calling for action on the part of this court, except the motion for a writ of prohibition. I am, therefore, unwilling to give any opinion (or rather advice), offered by the majority of the court.

Note.

Besides the branches of the case presented as in the preceding pages, another part of the case, involving chiefly questions of fact, and among these largely questions of accounts and of fraud—the fact part, as we may style it, of the controversy—was heard and decided in an equity suit at this term. It is this part of the case which, in connection with the discussion upon it, invited, probably, the characterization above given of the suit as a most complicated, difficult, and severely contested cause.” The record of the case filled more than one thousand large 8vo. pages, of small pica type, set “solid;” a record, therefore, itself greatly larger than the whole of the present volume. The discussion of the case, too, by counsel, consumed no small fraction of a five months’ term. The Reporter presumes that he need make but slight apology for not reporting this part of the case in existing ircumstances. The hearing and discussion took place some months before e had the honor to enter upon the office which, by the gracious invitation of the court, he now holds. Without having heard the discussion it would be impossible for him to understand a case such as he has described; and without at least the belief that he understood it, absolutely so, he hopes, for hn to attempt the presentation of it.