480
FEDERAL REPORTER.
O. B. Sansum. and George H. Shields, for plaintiff. Given Campbell and Thomas J. Portis, for defendant. TREAT, J. As to the structure of the bill and the principles involved, the views of this court were heretofore expressed;1 following Case v. Beauregard, 99 U. S. 119, and S. C. 101 U. S. 688. As to the shipment on the Sallie Pearce, the contract was that of a com· man carrier. As to the Colossal there has been some testimony offered in order to determine whether the contract was simply that of towage or that of a common carrier. The court holds that it was simply a towage contract, which is apparent, not only from the face of the written contracts themselves, but also from the facts as developed that said barge and cargo belonged to the shipper. Whether this be so or not is of 110 moment, in the view the court takes of the case. There were two accidents; one as to the Sallie Pearce, and the other as to the Colossal. As usual in such cases' there is a great conflict of testimony. Hence, the court has sougbt to reach a correct conclusion by examining the physical facts and circumstances connected with each disaster. The conclusion reached is that each disaster was caased by an inevitable accident, falling within the ex· cepted perils of the river. The bill will be dismissed, with costs.
RUTTEN V. UNION PAC. Ry.
Co. and another. July 25, 1883.)
(Oircuit (fourt, S. D. New York.
R.UT,ROAD Bmms-COXSOLIDATIO::> OF RAILROAD CmIPAXIES-BILT, TO E::>FORCE
The holdcrof thc bonds of a railroad and telegraph companypayahle to bearer, with interest semi-annually, secured on the income from the sale of its land, and operation of its road and line, which have passed by consolidation to another railroad company, is a creditor having a specific lien upon the income of the propcrty which has gone from his debtor into the hands of the other company, and he may file a bill in equity to en 'orce such lien after default in payment of the principal of such bonds, and interest according to the terms thereof.
LIEx.
In Equity. Simon Sterne, for orator. Artemas H. Holmes, for defendant. WHEELER, J. This case is not like Walser v. Seligman, 13 FED. REP. 415, and Jones v. Green, 1 Wall. 330, and that class of cases, which are mere creditors' bills, seeking a decree against the holder of the debtor's property solely because it is the debtor's property and the defendant has it; nor like WhipF'" v. Union Pac. By. Co. Sup. Ct. Ran., where a personal judgment was sought for personal injuries ISee 10 FED. REP.
596, and 13
FED. REP.
516.
nUTTEN r. UXION PAC. ny. CO.
481
on the road of one of the constituent companies of the defendant before consolidation; nor like Hayward v. Andrews, 106 U. S. 672, [So C. 1 Sup. Ct. Rep. 544,J and Yew York Guaranty do Indemnity CO. V. Memphis Water Co. 2 Sup. Ct. Rep. 279, (Sup. Ct. U. S., Oct. Term, 1882,) where the equitable assignee of a purely legal right of action was seeking relief in equity,-the principles of all of which have been invoked in support of this demurrer by the defendant the Union Pacific Railway Company. According to the allegations of the bill the ora tor is the bearer of the bonds of the defendant the Denver Pacific Railway & Telegraph C("upany, payable to bearer, with interest semiannually, secured on the income from the sale of its lands, and the operation of its road and line, which have passed by the consolidation to the other defendant. He is not an assignee merely of the bonds, but is, as bearer, an original payee, to whom the promise runs directly. White V. VeTmont J; 11[. B. Co. 21 How. 57'5. The orator is not seeking to enforce any personal liability of the Union Pacific Railway Company, as founded upon its own undertaking or wrongful act; and does not claim that that defendant is liable for the undertakings or acts of the other. The grounds of relief upon which he stands rest entirely upon his relatlOn to the property of the latter in the hands of the former. This relation is not that of a creditor at large merely, as mentioned by Judge WALLACE in v. Seligman, supra; it is that a creditor having a specific lien upon the income of property which has gone from his debtor into the hands of the other defendant. Perhaps the debtor corporation is, by the consolidation agreement, so far left in existence that he could maintain an action at law against it, and have execution, and by it reach any specific property that was the property of the debtor at the time of consolida tion, if there is any such; and as to the general property of the debtor, upon which he has no lien, he would be obliged to exhaust that remedy, as shown in the cases mentioned on that subject, before proceeding against others on account of such property; but he has a lien upon this income, which he has a right to pursue, independently of any proceeding at law, to reach other property, or any foreclosure of specifically mortgaged property. He hus the clear right to avail himself of anyone of all his 6cnrities by pursuing anyone of the appropriate remedies for that purpose. This income, in the hands of the Union Pacific Company, never was the property of the Denver Pacific, and could not be reached by judgment against that company, and the orator can have no judgment. against the Union Pacific Company. This lien can be enforced only in equity, and this bill seems to be appropriate to enforce it. The i;Jterest cuupons for several years are due, and this income is alleged to be sufficient to meet them. By the terms of the bonds, default of interest for 60 days after demand made the principal "subject to become due and payahle;" which is understood to mean, subject to bev.17,no.6-31
482
FEDERAL REPOUTEP,.
come so at the option of the holder; and this bill shows no election of the orator to have these bonds become due. As the case stands, the orator has this debt, equal to the amount of the coupons, secured upon this income large enough to meet it in the hands of the Union Pacific, which he can reach only in equity, and which this bill is appropriate to reach. Unless this is changed by the answer he seems entitled to the relief asked. The demurrer is overruled; the defendants to answer over by the September rule-day.
MILNE
v. Do ITGLASS. 1 July 3, 1883.)
(Circuit COUl't E. D. Missoul"l.
1.
PLEADr.;G-DEFECT IN ALLEGATION SUPPLTED TIV EVIDENCE-PARTNERSTIIP,
"Where, after the dissolution of a firm, one of the partners brought suit in his own name for damages suffered by tlte firm frum a breach of a contract made with it, and the allegations of his petition as to his right to sue in his own name were vague, but it was proved at the trial of the case that the firm had been dissolved by an agreement helween the partuers, and that the plaintin, as contiuuing partner, succeeded by the terms of the agreement to all the rights of the firm, held, that the evidence supplied the defect in the petition, CmnwN CAURIER-UNNECESSARY DELAy-DAMAGES,
2.
\Vhere there is unnecessary delay on the part of a common carrier in the delivery of goods which he has undertaken to transport, and the market price of such goods at the place of delivery is lower at the time of delivery than at the time when the delivery should have taken place, the carrier is Hahle in . damages for the ditIcrence between the valne of the goods at the former and their value at the latter date, at market prices.
This is a suit by John Milne against John U. Donglas, receiver of the Ohio & },Iississippi Railway Company, the New York, Pennsylvania & Ohio Railway Company, the New York, Lake Erie & Western Railway Company, and the Red Cross Line of steam-ships. The plaintitt states in his petition "that he is the successor in business to the copartnership formerly existing and doing business as produce commission merchants at Dundee, Scotland, where he resides, under the firm name of Milne & Berry; that he receives payment of accounts due to, and discharges the obligations of, the said firm; that he carries on the business for his own account at old premises," etc. It appeared from the evidence that the firm of :Millle & Berry had been dissolved by an agreement of the partners prior to the institution of this suit, and that by the terms of the agreement Mr. Milne succeeded to all the firm's rights and assumed ull their obligations. George .11. Stewart and Paul Bakewell, for plaintiff. Garland eX Pollard, for defendant. 1
Reported by ll. F. Rex, Esq., of the St. Louis
UNITED STATES V.CITY OF NEW ORLEA.NS.
483
TREAT,J. The views of the court heretofore expressed 1 control as to the law. The action is for damages sustained in consequence of unnecessary delay by a common carrier in the delivery of goods. The court has been largely aided by counsel, through tabulation of many dates pertaining to the inj my, but has still been left to ascertain values at Dundee, Scotland, at two dates, as best it could, through a mass of papers which are vague and uncertain. The first point presented is as to the right of the plaintiff to recover in his own name. The allegation is indistinct; but the defect, if any, may be considel'ed as supplied by the proofs, viz., the right of the surviving partner to sue. An analysis as to the various shipments, and as to the times when the property shipped should respectively have reached Dundee under the circumstances, and also as to the prices at the time when the flour should have arrived and when it did actuallyarrive, shows that there were only six car-loads which arrived at Dundee on February 18th, instead of February 4th. From February 4th to February 18th there was no change in prices. There were two car-loads which should have arrived on February 4th, but did not arrive until March 26th or March 30th. There was a fall in the prices between those dates of one shilling per sftck, making a loss of £20, which, at United States rates, amount to :;;97.3:.3, for which ]l1ogment will be entered.
UXITED STATES
ex rd.
MYRA CLA.RK GAINES V. CITY OF NEW OULEANS. 2
(Circuit Court, E. D. Louisiana. 1.
June, 1883.)
·Where. it upon the return to a writ of execution against a municipal corporatIOn, that, III reply to a dcmand made upon him, the mayor stated that the deten.danthad no property to satisfy the writ; that numerous similar writs had \Vlthlll a few montlls and within a few da,s been issued a"ainst defendant and returned unsatisiied, and in the return to the rule for mandamus the defendant sets up that there are judgments against the defendant prior to that of relator wholly ullsatisiied,-nothing could more fully cstahli,h thc right of thc relator to have a nwndaJnUs to cause the levy of a tax to pay her judgment. . . Where. a munciprrl corporation, by the authority of a statute, contracted a lJalllhty, lU the absence of any other provision of the law for payment, she necessarily had power to bind herself, and did hind herself, to pay, by the exercise of 1 hose" power; incident to munIcipal corporations" with which she was endo\\"vd by the statute, i. e., by levying a tax. "Evcryact whatever of man that causes damage to another, obliges him through whose fault it hrrppened 10 repair it." La. Civil Code, :!31.5. The meaning of this i..9 that under Louisiana law the wrung done one human FEn REP. 37. IRepLl teu by Joseph P. Hornor, Esq., ortbe !\ew Orleans
3. S.uIE-DA)UGES Fan A TORT-LA. CIVIL CODE,2315.
481.
4.
5.
6.
7. 8.
heing to another, or to his estate, creates an obligation; i. e., brings at once into existence the relation of debtor and creditor between the wrong-doer and the injured party. This provision includes municipal corporations-as among those who arc subject to this obligation. PnOPEHTY PLEDGED TO CUEDITORS-LA. OIVIL CODE, 3183. "The property of the debtor is the common pledge of his creditors." La. Civil Code,3183. The meaning of this is that the property of the debtor is pledged so that it might be sUbjected to that process of the creditor which may he SUitable to the the property of an individual debtor may be reached by seizure under a writ of fieri facias" the property of a debtor which is a municipal corporation may be reached by taxatIOn. LAWS-LA. CIVIL OODE, 8. "A law can prescribe only for the future; it can have no retrospective operation." La. Oivil Oode, 8. This article has the paramount force of a consl itutional ,Provision; it is a regulation of the power of all subsequent laws, whether they be found in future constitutions or future statutes; it is a statutory declaration and covenant on the part of the state incapacitating subsequent laws from disturbing 'tny obligations. 'When these three provisions are put together, it results that the state plnced the wrong-doerunderan obligation; for the fulfillment of that ohllgation subjected all Ins present and future property to a plelge; and contracted that the law-making' power should pass no law which should affect that obligation or that pledge: It follows, then, that at whatever time the oblig:ation of the defendant to t,he relator was incurred, at that time there was, by ope"ation of the statute, an inviolable pledge creatcd, whit-h should operate as well upon the future as upon the present, and should give her payment by taxation. OONDITIONAL OBLIGATIONS. The jnrisprudence of Louisiana is settled that in conditional ohl'gations the law which exists at the time the obligation was con meted, and not that which exists when the condition takes place, governs the rights of the parlies. LA. OONSTITUTION, ART. 209; ACT 93 OF LA. OF 1856, p. 68. The article of the present constitnlion of Louisiana, and the act No, 93 of 1856, p. 68, had no reference to already existing obligations of any sort. LA. OONSTITUTION, ART. 11. "All courts shall be open, and every person, for injury done him in his rights, lands, goods, person, or reputation, shall have adequate remedy 1.Jy due process of law, and justice administered without denial or unreasonable delay." La. Oonst. llort. 11. This provision is applica1.Jle to the redress for all wrongs done to person or property, and to that extent gives, for the redress for wrongs, a remedy completely adequate; i. e., a satisfaction limited only 1.Jy the property of the delJtor.
Application for £o[andamlls. TV. R. £orills, A. Goldthwaite, and J. JVard Gurley, Jr., for the relator. Charles F. Blick, City Atty., for the respondent. lBILLIXGS, J. This cause is submitted upon an application for a mandamus to compel the levy of a tax to pay a judgment rendered in this court. There are two preliminary objections: (1) That there bas been issued no alternative writ of mandamus. The answer to this objection is that the proceedings in this cause-namely, the petition, which, together with an order to show cause, has been sen'ed upon the persons against whom the writ is sought-are such as have been invariably followed in this court in the hundreds of causes where similar writs have been allowed, and constitute precisely the mode of procedure pointed out by the Code of Practice. That an alternati\'e writ is not a prerequisite for this process, see Com'rs v. Aspillu'all,
UNITED STATES V. CITY OF NEW ORLEANS.
485
24 How. 385. (2) That no return of nulla bona upon the writ of fieri facias has been made. The rnandamus is asked for the amount of the judgment, les8 $40,000, the amount covered by a seizure under the writ of execution. The return of no property would be only very strong evidence that the mandamus was necessary for the recovery or collection of the judgment. The proof is that the mayor, when demand was made to point out property, stated to the marshal that the defendant had none wherewith to satisfy the writ, either wholly or in part; that numerous similar writs have, within the past few months and within a few days, been issued against the defendant and returned unsatisfied; and in the defendant's return the ground is set up that there are judgments against the defendant prior to the relator's, and wholly unsatisfied, amounting to $700,000, or thereabouts. No return in this case could more fully establish than does this evidence that the relator must have the levy of a tax to pay her judgment, Or that it will remain unpaid. The evidence shows, and, indeed, the return of the defendant admits this, and pleads a statute which would dispense with a fieri facias. Under such proofs, and with such a return, the return of the execution is immaterial. High, Rem. §
377. The real question, then, comes to be cOllllidered, has the relatM shown herself to be entitled to a tax? This means, has the law-making power authorized and bound the city of New Orleans to a'ssess and levy and collect a tax to pay relator's judgment? The relator's demand, which is represented by this judgment, is for taking possession of her land and preventing her recovery of it from the year 1837 to the year 1877. The various charters of the city of New Orleans show that prior to and since the year 1836 the city has had "all such rights, powers, and capacities as are incident to municipal corporations," and also the capacity of "acquiring, enjoying, and alienating all kinds of property, real, personal, and mixed." Acts 1805, p. 46, § 1, and p. 56, § 6; Acts 1836, p. 31, § 4; Acts 1852, p. 48, § 22; Acts 1856, p. 136, § 1; and Acts 1870, Ex. Sess. p. 30, § 2. The record shows that the debt or obligation merged in the judgment sprang out of the acquisition, enjoyment, and alienation of real property, and was, therefote, incurred in the exercise of the powers specially granted. This is conclusively settled by the judgment itself in this case, as well as by that in the case of Gaines v.N IrdJ Orleans, 6 Wall. 716, and 15 Wall. 624. In Rabassa v. Orleans Navigation Co. 5 La. 463, 464, the court state the question submitted to be wheth.er a corporation is responsible for an injurious act in relation to a matter within the scope of its corporate objects. They answer the question in the affirmative, and say: "If they [the corporation] rented a house and committed waste during the lease, or made thcmsel ves respollsiule by tlle nOll-performance of any obliga-
466
tion whieh the Jaw imposes on the lessee, it can hanlly be questioned that they would be bound to make good the loss. If it Le objeeted that, in the case last put, the responsibility grew out of a contract, we can hardly see how their liability would be varied, if, without a contract, they entered upon the property of another and used it for corporate purposes."
Since the corporation, by the authority of the statute, contracted the liability, in the absence of any other provision of the law for payment, she necessarily had power to bind herself, and did bind berself, to pay by the exercise of those "powers incident to municipal corporations" with which she was also endowed by the statute, i. e., by levying a tax. This reasoning is adopted and this conclusion is maintained by the supreme court of the United States with reference to a debt evidenced by a bond; but the conclusion is just as unavoidable with respect to all debts which originate in the exercise of granted powers. The facts which beyond doubt authorize the conclusion that the pOlver to tax exists are these: rrhat the obligation is contracted or springs up inside of the granted po,,-ers; that there is no other mode of performance; that the power to tax is one of the usual pOIl-ers incident to cities, and is therefore granted; and the conclusion is established with equal certainty whether the obligation be written or verbal, express or implied, resulting from a contract or tort, provided the act creating the obligrrtion is within the delegated corporate faculties. In the langurrge of the snpreme court in Babassn v. New OTleal!s Na1:. Co., supra, "We cannot see how the liability would be varied if, without a contract, they [the corporation] entered upon the l;)roperty of another and used it for corporate purposes." The supreme court of the United States, in U. S. v. New OTlealls, 98 U. S. 393, says: "When such a corporation is created, the power of taxation is vested in it as an essential attribute, for all the purposes of its existence, unless its exercise be, in express terms, prohibited." Again, at page 3U7, the court say: "As already said, the po,,-er of taxation is a power incident to such a corporation, and may be exercised for all the purposes authorized by its charter or subsequent legislation." f thInk it is established beyond successful controversy thrrt the city of Xew Orleans has the power, and may be compelled, to levy this tax, unless, as is urged by the defendant, tlie power of taxation, with reference to this indebtedness, is qualified and controlle(l by the statute of I85G, and by article 209 of the constitution of 1878. The act of 1856, No. 93, p. 68, provides that "the power to tax is limited to It per cent. of the assessed value of real estate and slaves, provided that such an amount shall be raised thereby as shall Le suffi· cient to pay the interest of the present city debts, together with the gradual reduction of the capital of the consolidated debt, as required by the laws now in force." The article 209 of our present constitution is as follows: "And no
rED STATES V. CITY OF NEW ORLEANS.
487
1"1i:sb or municipal tax for all purposes whatsoever shall exceed 10 mills on the dollar of valuation;" provided that by a vote of the inhabitants fmtllet taxation for certain improvements is allowable. It is to La ooservad that if this statute and constitutional provision affect this obligation, it cannot be denied that they would practically take away all remedy for the relator. I shall, in this connection, and for the purpose of testinf{ the argument urged by the defendant, assume, what I think is not the fact, that the act of 1856 and article 209, above set forth, were intended to affect pre-existing obligations. If they were such limitations they would be utterly void, as impairing a contract entered into on the part of the state of Louisiana itself. Thete are three provisions of the statute, found in three articles of our Civil Code, each having been adopted many years prior to 1836, which require to be considered collectively in order to see just what the state has done, and has obligated itself not to do. (1) Civil Code, art. 2315, (old 22D4:) "Every act whatever of man that causes damage to another, obliges him through whose fault it happened to repair it." The meaning of this is that, under our law, the wrong done by one human being to another, or to his estate, creates an obligation; i. e., brings at once into existence the relation of debtor and creditor between the wrong-doer and the injured party. This provision includes municipal corporations as among those who 'tre subjected to this obligation. McGary v. City of Lafayette, 12 Rob. 668; S. C. 4 La. Ann. 440; Rabassa v. Navigation Co. 5 La. 463, 464:; TVilde v. City of New Orleans, 12 La. Ann. 15; and Gaines v. New Orlernls, 6 Wall. 716. (2) Civil Code, art. 3183, (old 3150:) "The property of the debtor is the common pledge of his creditors." The preceding article subjects to the common pledge all the debtor's present and future property. The meaning of is that the property of the debtor is pledged, so that it might be subjected to that process of the creditor which may be suitable to the case; the property of an individual debtor may be reached by seizure under a writ of fieri jaeias; the property of a debtor which is a municipal corporation may be reached by taxation. (3) Civil Code, art. 8: "A law can prescribe only for the future; it can have no retrospective operation." This article has the paramount force of a constitutional provision. It is a regulation of the power of all su bseqnont laws, whether they be found in future constitutions or future statutes. It is a statutory declaration and convenant on the part of the state incapacitating subsequent laws from disturbing any obligations. Haying been in operation from 1808 to the present time, It aUached to all obligations in this case as they sprang into existence, and contr01s and nrotects them. When the three proyisions are iJUt together, it results that the state placed the under an obligation, for its fulfillment sulJ-
488
FEDERAL REPORTER,
jected aU his present and future property to a pledge, and contracted that the law-making power should pass no law which should affect that obligation or that pledge. It is of no avail, then, to urge that the indebtedness of the defendant springs out of a wrong; for, under the statutory enactments above recited, the obligation to repair an inj ury inflicted by a tort is made to differ from that existing under the laws of any other state. It is immediately clothed with the properties of an indebtedness, and made the basis of a pledge, indestructible, upon present and future acquired property. Nor does it avail to urge that the relator, for all these years, had but a chose in action, a litigious right, and that the limitation affected the remedy alone. Hers was a right of action inhering in an obligation created by the statute, which, through the form of a remedy, was secured by the pledge of the debtor's entire property through taxation, under a covenant on the part of the state that it should not be lessened nor impaired by future legislation. The subsequent legislation, if applicable and valid, would utterly destroy this created and guarantied right, for it would take away all possible remedy. "A right," say onr supreme court, in Savatier v. Creditor8, 6 Martin, N. S. 590, "without a legal remedy, ceases to be a legal right." And again,at page 59], the court say: "On the implied obligation of the property being liable for the engagements of the debtor, the legislature cannot deprive the creditor of recourse on it." In Com'r8 v. Bean, 3 Rob. 415, the court say: "The legislature cannot constitutionally, by any act subseqnent to the creation of a debt, interfere to change or disturb the relation between debtor and creditor." It is the express contract on the part of the state which has been violated, if these limitations are set up between the creditor and his remedy, that contract being to the effect that there should be a pledge of the present and future property of the defendant, and that no future law should disturb that pledge. In a case certainly no stronger the supreme court of the United States say: "The state and the corporation are, in such cases, equally bound." Von Hoffman Y. Quincy, 4 Wall. 535. This, in substance, is the question which was determined in Green v. Biddle, S Wheat. 1. There a compact entered into by the state of Kentucky, and incorporated into its constitution, had declared that all private rights and interests in land within a district should be determined by the laws existing in Virginia at the date of tha cession of that district. A subseqnent act of the legislatnre of Kentucky sough t to relieve the occupants of land within the ceded district from damages for its wrongful detention before action bronght. This act, thongh affecting only the remedy, and that in case of torts, since the continuance of that remedy had been promised by the state, was held to be .oid. That case is conclusive upon the relator!!. In that case there had been an undertaking on the part of the state that the laws existing
UNITED STATES V. CITY OF NEW ORLEANS. l,
489
t a certain time should regulate the recovery for mesne profits; in the rc:lator's case there had been an undertaking on the part of the state (,lutt the laws in force when the right to recover originated should not be changed. In that case the undertaking was sought to be disregarded by a, withdrawal of the right to recover; in the relator's case, by a withholding perpetually by limitation the guarantied remedy, and, practically, all remedy, for the right. Both tllese cases are protected. Wolff v. New Orleang, 1n3 U. S. 367. It follows, then, that at whatever time the obligation of the defendant to the relator was incurred, at that time there was by operation of the statute an inviolable pledge created, which shculd operate as well upon the future as upon the present, and should gi1"8 her payment by taxation according to the power of taxation with which the defendant was then invested. When was this obligation incurred? The defendant had in bad faith gone into possession of relator's land, had sold the same and conveyed it with warranty, and by ous devices kept the relator from recovering possession for a period of 41 years, and until the year 1877. The obligation of the defendant, since the city was vendor and warrantor and constructive possessor, all in bad faith, was to restore to her vendee the price, and acquit the vendee; that is, restore, for the vendee, the fmits to the owner, the relator. The obligation to restore the fruits originated at the same time with the obligation to restore the thing out of which the fruits issued-the land; i. e., at the time of the sale and warranty in 1836. The condition upon which the obligation could be enforced, i. e., the recovery of possession, did not take place till 1877. Civil Code, arts. 498-502. Our jurisprudence is settled that, in couclitional obligations, the law which exists at the time the obligation was contracted, and not that which exists wben the condition takes place, governs the rights of the parties. TUlell v. S.'/ndics of JIOI'galt, 2 La. 112. The measure, therefore, of relator's right to a tax must he determined by the law in force in 1836, and at that time there was no limit, neither in the constitution nor the statute. At that time, whatever debts the corporation incurred in the exercise of her corporate pO\\"01"S, which bad been conferred by the legislature, by contract or by tort, slle could be compelled to levy a tax to pay. I lHlye thus far considered the question upon the hypothesis that the act of 1856 and the article 2U9 of the present constitution ,,'ere intended to apply to antecedent indebtedness. But, in my opinion, it is manifest that this statute and this article had no reference to already existing obligations of any sort. The .ery terms of tbe act of 1856 show that the limitation \\"as to be operati\'e only pro\'i,led the tax thus afforcled should be snfficiellt to pay tIle interest and tbe maturing principal. The care taken to make provision for all outstanding obligations is man ifest. The portion of the act of 1876 which withdra\\"s the power of taxation has been declared void so far as concerns antecedent contract
obligations. This would for the same reason be true with rega.rd to antecedent obligations not contract in their origin, but protected by a statutory contract which attached to them at their inception and adhered to them ever afterwad. 'l'he article 209 of our constitution was designed and ordained as a limit upon the expenditures of the parishes and cities-as a rule of rigid economy in t:Je administration of their affairs. To that extent it may be invoked. It has no force nor application to obligations nJ. i'eady completely inClined. Those who contend that it ,,-as intended to work a rejection, or, what is the same, an indefinite of pre-existing obligations, must treat the provision as really stating that in order to secure moderate taxation all outstanding oLligations are to be set aside and disregarded. The statement of such a construction should be its refutation. The supreme court of this state has refused to observe tllis as a limit, so far as concerns indebtedness antecedently incurred springing from contracts. 'l'his case cannot in principle be distinguished from that. Under our law an obligation, the vinculum juris, which, in case of torts, in the oUler states, creates a definite hold upon the property of the debtor only after judgment and process issued, is made to attach to the property of the deLtor by as indissoluble a tie from the moment of tbe commission of the act which is its source in case of an act of wrong as of an act of contract. In this state, when one takes or detains another's property, the state has promised the same compensation, and has connected that promise by a direct and present tie with the estate of the author of the act, as irrevocably as when one makes and delivers a promissory note. lf, therefore, as all concede, the obligation springing from a preexisting contract does not fall within or is not controlled by this constitutional limitation, for the reason that it cannot be impaired, It must follow that, under our law, so far as concerns the resort to the property of the obligor, the antecedent obligation springing from a wrongful act is equally excluded, for the reason that that resort is by a statute which entered into the aLligation secured, and future withdrawal or modification is by another statute, also forming a part of the obligation guarantied against. The limitations urged by the defendant, if intended to reacl1 this obligation, would liaye been ineffectual, because YoiG. But they were not so intended. They applied only to the future. The provisions of our present constitution specifically deal with the redress for wrongs, and to the honor and credit of the state be it said, in case of damages arising from wrongs, it has torn aside and destroyed all exemptions and limitations "'hich could be held to operate upon the right to resort to the property of the wrong-doer. Article 11 provides that "all courts shall be open, and eyery person, for injury done him in his rights, lands, goods, person, or reputation, shall lluye adequate remedy by due process of law, and justice adminis-
UNITED STATES
v.
CITY OF NEW OllLEANS.
491
denial or unreasoriabledelay." ' I undersLand'this provision to be applicable to the redress for all wrongs done to person or property, and to that extent to give the redress for wrongs a 30-equal if not paramount security to that guarantied for the enforcement of contracts. r understand this provision to ordain, in behalf of those who, like the rolator, are seeking reparation for injmy done to themselves or their estate, not only that the conrts shall be always open, not only that the courts shall h[1\"e jurisdiction, not oaly that tho suitors shall have a speedy antl just trial, not only that there shall be awardecl due process, but in addition to all there is solomnly ordained and guarantied a remedy entirely adequate. This remedy is distinct from due process, for it is to be by due process. The words "adequate remedy" mean complete satisfaction of the judgment without restriction. The process will vary with the nature of the recovery and the character of the debtor. Ii the judgment decree the recovery of money, and the debtor be a natural person, it would be a writ of /icri .{<1cias. If the debtor be a municipal corporation, the process would be a writ of mandam!ls compelling the levy of a tax; for it is seWell that the process for compelling satisfaction of a money judgment against a municipal corporation is a fieri facias or a mandamus for a tax. Both are declared to be process in execution. Riggs v. Johnson Co. 6 Wall. 1\)8, and JIemphis v. Brown, 97 U. S. 300. ' The conclusion is that the relator has a right to the tax prayed for; that she acquired this right before there was any limitation upon the power of the city to tax, except that sprilJging from its statutory capacities as a corporation; that if the 8tatute of 1856 and article 209 of the constitution were intended to include this case, they would be void as impairing the obligation of a contract, the state having contracted that relator's right should be unaffected by subsequent laws; that these limitations were not intended to apply to pre-existing obligations where the right of the creditor, through a tort 01' a contract upon the property of the debtor, was fixed by un irrepealable law; that these limitations were established ",-ith as complete an absence of purpose as there was of power to cast off or repudiate antecedent indebtedness, but were ordained as wholesome checks upon future expenditures and the creation of subsequent debts; that with reference to that class of indebtedness to which helongs the onl,) {lpOn which the relator recovered her judgment, the present constitution of the state not only imposes no restriction upon the right to satisfaction by the levy of a tax, b'_1t, on the contrary, has placed that right beyond' the reach of legislative action, and by its own force has l1iyen due process and complete remedy; that in this case that process is a mandamus, and' that remedy is the assessment and levy and collection of a tax. The case of Wolff v. Nen' OrleallS, 103 U. S. 358, was in principle like this case. as here, the judgment had Leen registered, a"1d
"v
492
no prOVISIOn made for its payment in the annual budget, and the supreme court, after dealing with all the questions involved in the acts of 1870 and 1876, in their mandate prescribe the form and terms of the writ and the time of the levy of the tax. That mandate will be followed in this case. So far as this proceeding is concerned, the defendant must be credo ited with the amount seized under the firri facias, namely, the sum of $40,000. For the balance of the judgment, with interest, the relator is entitled to a writ of mandamus as prayed for.
PRYZBYLOWICZ V. MISSOURI RIVER R. CO.
(Circuit Court, D. Kansas. 1.
November, 1881.)
CONSTITUTIONAL LAW- CmIPENsATION FOR PmYATE PROPERTY TAKE,i1" FOR PUBLIC USE.
'rhe payment of compensation to the owner of private property taken for a public use is a condition preeeLient to any right divesting the owner of his pOSses .ion, and a jndgment in his favor for the value of the land, unpaid and unspeured, is not cumpensation made, and does not justify the dispossessing the owner of his property. 2. SA)IE-EsTOPPEL-AcQUlESCENCII: OF OWNER.
The owner of land may, by his own act, estop himself from demanding actual payment of compensatiun as a conditiun precedent t" the taking for public uses, and if he expressly consents, or, with full knowledge of the taking, makes no objection, Imt permits a public corpuration to enter upon his land and expend money, and carry into operation the purposes for which it is taken, he may not then he permil ted to eject the parties from possessiun for want of payment of the compensation. SA)!E-RuLTIOAD TAKING L,\ND.
3.
Where the owner of land has knowledge that a railroad company has taken possession of his land and makes no ohjection, but permits the company to bnild its road and operate its trains over the land, and exercises all the rights appertaining to a right of way for puhlic uses for a perioe] of 10 or 12 Ylars, he or llis grantee cannut be permitted to ejeet the company from the land.
Motion for New Trial. FOSTER, J. The constitution of t-be United States provides that private property shall not be taken for public use without just compensation, etc. The constitution of this state contains the wise and salutary provision that right of way shall not be taken by any corporation without full compensation therefor be first made, etc. And the supreme court of this state, and the courts of other states having a like provision, hold that the payment of this compensation is a conriition precedent to any right diYesting the owner of his possef,-· sion; that a judgment in his fayor for the yalue of the land, unpaid a?d unsecured, is not compensation made, and does not justify the dlspossessing the owner of his property. 'Vith this rule of law we are in full accord, and reglnd it as based upon the highest and most sacred principles of j llstice.