768
FEDERAL REPORTER.
to prosecilte his appeal to the next term of the circuit court, he will be deemed to have abandoned it, (The Betsey, 1 Gall. 416: U. S. v. Haynes, 2 McLean, 155;) and the court will, at the instance of the respondent, affirm the judgment, (Folger v. Shaw, 1 Woods & M. 531;) and the appellee must apply for relief to the circuit and not to the district court, (l'he Josephine, 1 Abb. Adm. 481.)-{ED.
UNITED STATES
e:x: f'eZ.
WATSON 'V. PORT OF MOBILE.·
(Circuit Court, S. D. Alabama.
June,1882.)
1.
MUNICIPAL CORPORATION-SUBSEQUENT LEGISLATION.
A judgment baving been rendered against a municipal corporation, subsequent legislation by the state, restricting the powers of tbe administrative officers of such corporation, must be disregarded so far as it impairs the remedy 01 the judgment creditors. 2. SAME-SAME.
Where, at the time of the contract, a creditor of m'unicipal corporation had , a right, after obtaining a judgment against the corporation, to compel by mandamu8 the officials of the corporation to levy a tax to pay this if the legislature of the state abolishes that corporation and creates another in its place before the creditor obtains judgment, he may proceed to judgment against the new corporation, and compel (by mandamu8) the taxing power thereof to levy a tax to pay the judgment. As long as his remedy is unaffected he cannot complain of the legislation. PARDEE, C. J. The relator having brought suit in this court against the respondent, the corporation known as the port of Mobile, as the successor of the corporation known as the mayor, aldermen, and common council of the city of Mobile, on certain bonds issued by the latter, under legislative authority, to aid in the construction of the Mobile & Great Northern Railroad Company, recovered an absolute judgment. Failing to collect his judgment by fl. fa., he hs sued out a mandamu8 to compel the board of police, the authorities of the port of Mobile, to assess, levy, and cause to be collected a sufficient tax on the taxable property within the corporation to pay his judgment and costs. To the alternative writ the respondents have demurred on the ground that the legislation referred to in the petition does not require the defendants named, as police commissioners of Mobile, to cause to be assessed, levied, and collected the taxes which the petition prays to have assessed, levied, and collected. Without waiving demurrer respondents then filed a return, admitting the judgment to have been rendered as claimed, the issuance of execution, and its return unsatisfied, and the contract under which the bonda
a
*Reported by Joseph P. Hornor, Esq., of the New Orleans bar.
uNITED STATES V. PORT OF MOBILE.
J69
were issued, but denying that the port of Mobile is the successor of the old corporation, bound for its debts and duties, that the respond. ents have any legal right to levy ansi cause to be collected the tax demanded, and averring that by the charter of the port of Mobile they are restricted in the amount and purposes of taxation, that the present territorial limits of the port of Mobile do not embrace onehalf of the territory contained in the old corporation when the bonds were issued, and that relator should proceed by equity, etc. To this return the relator has demurred on several grounds, mainly for its insufficiency. The case is submitted on both demurrers. The liability of the port of Mobile for the relator's judgment is settled by the judgment; all questions in the case back of that judgment are 'res adjudicata. See U. S. v. New Orleans, 98 U. S. 895; Wolff v. New Orleans, 103 U. S. 860. The judgment settles all questions as to changes of municipal terri. tory, as to the successorship of the port of Mobile to the old corporation, and as to the full and absolute liability of the port of Mobile to pay the debt due relator, as ascertained by judgment. The. judgment having been rendered in June, 1880, the legislaMon of the state of Alabama (passed in 1880, 1881) thereafter, restricting the powers of the polIce board of the port of Mobile in reference to the amount purposes of taxation, must be disregarded, so far as it impairs the ator's remedy under his judgment. The question, then, in'this cal;le, may be reduced to this: Has the legislation of 1879 of the state of Alabama the effect of taking away the relator's contract right to have the taxing authority of the city of Mobile levy and collect a sufficient tax to pay and satisfy his bonds and interest? As I understand this case, but for that legislation his right would be indisputable, (see 86 Ala. 410;) and it may be, as counsel for respondents argue, that the relator has the right to claim the whole legislation unconstitutional, null,and void, so far as it affects relator, under both the state and federal constitution; but I do not think that the conclusions of counsel necessarily follow, i. e., that the old corporation and its officers should be kept in existence for the purpose of enforcing relator's contract, and that relator, having submitted to the legislation so far as to recover his judgment against the new corporation as the successors of the old, is bound to the full extent of the legislation. An examination of the acts of 1879 in question, keeping in view the force and effect of the judgment aforesaid, shows that the substantial effect of the legislation, as far as relator is concerned, may be reduced to the v.12,no.9-49
770
FEDERAL BEJ?OB'.rim.
following: 'Tllecbrporate name has been changed; the corporate offi· cers .are changed as to persons, title,. and duties; the outstanding well as all assets and property of the cor· debts and obligationa, poration, are put into 'the hands of commissioners and chancery court for liquidation and settlement, and a limitation is placed on the amount of Now,. the relator may be bound to take notice of these matters, but none of them affect injuriously his contract, as the 'case is made up by the judgment and answer of respondents; for the Judgment fixes the'liability, and the answer does not show that, the, taxation as limited is insuffiCIent to furnish the alimony of the city pay relator's demands besides. I think no one will claim that if the af,oresaid changes had been'hrought about by amendments to the old charter, as they fuight have been, that relator would have lost his remedy thereby. How, then, can he have lost it now? The substance of relator's contract is'that the ta:King authority of the corporation shall levy and collect certain amount by taxation to meet his demands. It can be of no moment to him what particular officers shall exercise that taxing power,' or what may be the particular title of the officer, or the particular name of the corporation, provided it is the'same corporation or body he has contracted with. These matters are 'within the legislative control, and as long as relator's remedy is riot he cannot complain. The respondents in this case have now the taxing, power of the corporation bound to the relator. It would seem that they ehould be compelled to perform their duties under the contract. That the alternative writ reads "to assess, levy, and cause to be collected a special tax," etc., has been made the ground for consid. erable argument, it being claimed that respondents have nothing to do with the assessments of property, i. e., valuation. of property, for taxing purposes, and nothing to do with the collection of taxes. I do not understand the words "assess" and "levy," in the writ, to apply to the valuation of taxable property fot taxing purposes, but to mean to lay a tax on the taxable property as the same is already valued for ordinary taxing purposes,lio matter whether such taxation tableau is made up by the state or city authority. The charter of the city gives the respondents certain powers and control over the tax collector, such as his appointment and removal in certain cases, and the designation of his duties. "Cause to be collected," as used in the writ, evidently means that' s'6 far as respondents have control over the per. formance of duties by the tax collector they shall exercise that control in favor of the collection of the tax. The case of Ex parte
as
UNITED
V. PORT
MOBILE.
771
goes to the extent of holding them,excused when they, have performed their duties under the law in the premises. Following the linl3 of argument on which this case has been presented, it therefore seems clear that the mandamus asked should be made peremptory, but it is a very grave question whether so much argument is necessary. .. . .If we take the case of Woljfv. New Orleans, supra, it'seems that the judgment rendered in favor of relator against the port of Mobile is conclusive as to all the defences set up against the mandamus. When the bonds were issued upon which the judgment was received, the city was by its charter "invested with all the powers, rights, privileges, and immunities incident to a mp.nicipal corporation, and necessary for the proper government of the same," and it could have provided the means by taxation for their payment when they became due. The judgment in this case fixes the status and liability of'the "port of Mobile" as the same corporation that issued the bonds and contracted for their payment. Tlie municipal body that created the obligations upon which judgment of the relator was recovered existing, with her organization complete, having officers for the assessment and collection of taxes, there are parties upon whom the court can act. The court, therefore, treating as invalid and void the legislation abrogating or restricting the power of taxation delegated to the municipality upon the faith of which contracts were made with her, and upon the continuance of which alone they can be enforced, can proceed, and by mandamus compel, at the instance of the parties interested, the exercise of that power, as if no such legislation had ever been attempted. This reasoning ought to be conclusive against the port of Mobile, as it was against the city of New Orleans, whose charter had also been repealed and a new one with widely-different boundaries granted her" whose government and officers had been entirely changed in name and duties, and who also had been granted a limit on municipal taxation. The question raised under the authority of Heine v. LeveeCom'r, 19 Wall. 655, and Barkley v. Levee Com'r, 93 U. S. 258, are manifestly settled by the judgment of relator, which found the responsible debtor in existence, which the court can act on. Morgan v. Beloit, 7 Wall. 613, was an entirely different case from this, and conflicts in nowise with any proposition advanced here. Considering all of the foregoing reasons, judgment will be entered overruling demurrer to petition for mandamus, sustaining demurrer to respondent's answer, and making the mandamus herein peremptory, with costs.
772
NOTE. The charter of a public corporation, created for the purposes of government, cannot be considered a contract, (Bradf01'd v. Cary, 5 Me. 339; Marietta v. Fearing, 4 Ohio, 429; Governor v. Gridley\ 1 Miss, 328; People v. Morris, 13 Wend. 525; Dartmouth College v. Woodward, 4 Wheat. 694; Ea.yt Hartford v. Hartford Bridge, 10 How. 511,) and the grant of, the franchise may at any time be resumed, (People v. Pinckney, 32 N. Y. 377.) A power to alter and change p\lblic corporations, and to adapt them to the purposes intended, is implied. State v. Railroad, 3 How. 534; Amey v, A.lleg7umy City, 24 How. 364; Trustees v. Tatman, 13 Ill. 27; Bridgeport v. Hubbell, 5 donn. 237; Bush v. Shipman, 5 Ill. l,86;Mill.Y v. Williams, 11 Ired. 558; Gntzweller v. People, 14 Ill. 142; North Yarmouth v. Skillings, 45 Me. 133; Mayor v. State, 15 Md, 376. But see Trustees v. Aberdeen, 21 Miss. 645; B1'istol v. New Chester, 3 N. H.524; Paterson v. Society, 24 N. J. Law, 385; St. Louis v. Russell, 9 Mo. 507; People v. Morris, 13 Wend. 325. Transactions between the legislature and municipal corporations are in the nature of legislation rather than of compact. Ha1'tford v. Hartford B1'idge Co. 10 How. 511; Tr'ltstees v. Tatman, 13 lll. 27; Reynolds v. Baldwin, 1 La. Ann. 162; Police Jury v. Shreveport, 5 La. Ann. 661; Layton v. New Orleans, 12 La. Ann, 515. A statute may prescribe a remedy, if there be none; and if a remedy given be as good as that taken away, the obligation is not impaired. Mason v. Haile, 12 Wheat. 370; Milne v. Huber, 3 McLean, 212; Simmons v. Hanover, 23 Pick 188; Commercial Bank v. State, 12 Miss. 439; Wheat v. State, Minor, 199; Anon. 2 Stewt. 228; Bronson v. Kinzie, 1 How. 311; Davis v. Ballard, 1 J. J. Marsh. 563; McMillan v. SpragUB,4 How. (Miss.) 647; Lapsley v. Brashears, 5 Litt, 47; Townsend v. Townsend, Peck, (Tenn.) 1; Sav. Inst. v. lJfakin, 23 Mo. 360; Longfellow v. Patrick, 25 Me. 18; Van Rensselaer v. Snyder, WN. Y. 299; In 1'6 T1·ust. Pub. Sch. 31 N. Y. 574; Morse v. Goold, 11 N. Y.281; Pmtt v. Jones, 25 Vt. 303. States may pass remedial laws, but not such as impair vested rights, or create personaliliabilities, or impose new obligations or duties. Biaddow v. {}t'een,7 Humph. 130; Rich v. Flanders, 39 N. H. 304; De Cordova v. Galveston,4 Tex. 470; Hope v. Johnson, 2 Yerg. 125; Vanzandt v. Waddell, ld. 260; CoJlin v. Rich, 45 Me. 507; Kennebec Purch. v. Laboree, 2 Me. 275. So long as contracts are submitted to the ordinary and regular course of justice, and existing remedies are preserved in substance, the obligation of the contract is not impaired, (Holmes v. Lansing, 3 Johns. Cas. 73;) but if the change materially affects rights and interests it in so far a violation of the compact, (Green v. Biddle, 8 Wheat. 1; Von Hoffman v. Quincy, 4 Wall. 535; Billings v. Riggs, 56 m. 483.) A state legislature may regUlate the remedy and mode of proceeding of past as we]] as future contracts, but not 80 as to take away all remedy. Ex parte Pollard, 40 Ala. 77.-[ED
FARMERS' LOAN & TRUST CO. V. GREEN BAY & MINN. R. CO.
'i7B
FARMERS'LoAN & TRUST CO.
V.
GREEN BAY &
MINN.
R. Vo.
(C&cuit Court, E. D. Wisconsin. Julv 7, 1882.) NEGLIGENCE-DAMAGES FROM INJURY TO LANDS.
Corporations acquiring title to lands along the line of a railroad may recov.er damages for injuries to such lands arising from the negligence of the receiver of such road and his agents engaged in operating the line, notwithstanding they acquired such title for purposes foreign to the object of their creation. Such fact is no defence to an action for damages for injury to their lands.
Gate, Prentiss tX Noyes, for petitioner. Larned et Larned, for receiver of railroad. HARLAN, Justice, (orally.) In this case, pending in the circuit court of the United States for the eastern district of Wisconsin, the Scranton Manufacturing & Boom Company and the Dexterville Manufacturing & Boom Company, corporations created under the general laws of Wisconsin, heretofore filed petitions in this cause, asserting claims against the receiver of the railroad company for damages done from time to time by fire to certain lands by them respectivel)' owned. The petitions, in substance, allege that the lands were, in part, covered with pine forests, suitable for saw logs, and other kinds of useful and valuable timber, and other portions thereof were What is commonly known as cranberry marshes and grass lands, and as such . were valuable. The. claims were rested upon the ground that the railroad which passed through the lands described was, npon the pa'rt of the receiver and the employes, so carelessly and negligently maintained that coals and sparks of fire escaped from passing locomotives, causing numerous fires on the track and right of .way, upon which the receiver had carelessly and negligently allowed to be accumulated and remain, a large quantity of combustible and inflammable material, dangerous to the adjoining property of petitioners; also that these fires were negligently permitted to spread and extend from the line of the railroad to and upon the lands of petitioners. It was alleged, among other things, that the locomotives used by the receiver were not properly constructed and repaired, or provided with sparkarresters, and were so negligently operated as to cause the fires to which reference has been made. By an order entered on the twenty-sixth of July, 1881, these claims were referred to a special master for examination and report thereon. Upon the claims of each company the master made a report, allowing some and disallowing others. He finds, among other things, that