316
FEDERAL' REPORTER,
vol: 60.
for tha1idreason. We observe, 'however,that'the decree dismissing theblll is ,'generaI, and does not yreserve to the appellant her right to sue at lawjif she so elects. ,The case is therefore remanded to the cireuitcourt with directions to add to the existing decree a clause that the dismissal ordered is without prejudice to the complainant's, :right to sue at law; and, as thus modified, the decree below is aftirmed, ,at the cost. of the appellant. ' , /' .
of Appeals, Eighth
.
Oll'eutt. -. r
February 12, '1894.)
No. 293. L
A of COJ;ldelllnatlon o,f land rendered by a court, haVing jurisdietion, o,,!er'the parties and power to condemn land in proper cases is not subject to COllilteral'attack on thE! ground that it was' rendered in favor;'Qf who had not the legal",capacity to condemn land, since that ,t:s to be determined by theqourt rendering the judgment. on the 'grotiria that the dMendarit has acquired title by, condemnation , proceedings; rand to quiet the defeIi.dant's title, that such title constitutes a plll'feot to the action at law, since! the remedy at law is not as ;ef\lcient in sucpsuit. WAIVER. '
AT!'I'..,cx-EMINEN'1' DOMAIN-JURISDIOTION.
2. lNJU;NC'j:'J;ON.,.,.DlI/,ENSES-REMEDY AT LAW. " , It is to a suit brought to enjoin an action of ejectment
8.
The 'remedy at
to aninjnnction suit, thatthe plaintiff has an adequate too late when raised for the first time on appeal.
'
. ,',
:Appeal fr()JI1 the Circuli Court of the United States for the West' ern District of Arkansali'l., Suit for injunction brought by the St. Louis & San Francisco RailwayOpmPflDyagainst MaryA. Foltz) and revived, after her death, her husband.,alldJoseph R. Foltz, Genevieve FraQces A. Foltz, James A.Foltz, and Jacob K. Foltz, hel' children. obtaine.d a decree. Defendants appeal. This 1s au! appeal from a decree enjoining the appellant, Mary A. Foltz, who is a mamoo.woman. 'trom pr06ecuting an action of ejectment agaiilst the St. Louls & San Francisco Railway Company, the appellee, to recover possession of certain lands in Ft. Smith, Ark., occupied by it for railroad purp06es. The above-named appellant, Mary A, Foltz, died during the pendency of theappea.l in this court. and by consent an order was entered in this court reviving. the cause. as to her heirs at law, in the name of the above Section 11, art. 12, of tbe constitution of Arkansas, declares that no foi'eign corporation shall have power to condemn or appropriate private property. Section 5530 of Mansfield's Digest of the Laws of Arlulnsas provides that a foreign railroad corporation may, under certain circumstances, purchase or lease, the property and franchise of any railroad company under the laws of that state. and that such lease or purchase "shall carry with it the right of eminent domain, held and acquired by said companY·at the time of such lease or sale." The appellee is a corof Arkansas, but,{n 1882, in accordance with the poration foreign to prOVisions of section 5530, supra, ,it had purchased all the property and franchises of a railroad corporation organized under the laws of Arkansas, including its right of eminent' domain. In May, 1883, the appellee presented its petition to the circuit court of Sebastian county, Ark., for the condemnation of the lands in question, after having served due notice of Its intended
FOLTZ V. ST. LOUIS & S. F. BY. CO.
317
application on the appellant, and she appeared In the proceeding. This proceeding was removed at the May term, 1883, on the petltlon of the appellee, to the circuit court of the United States, on the ground that the appellee wns a corporation of the state of Missouri, and the appellant a citizen of Arkansas. At the November term, 1883, a contested trial by jury was had in that court to determine the amount of damages sustained by the appellant through the appropriation of the land. by the appellee for railroad purposes, and a verdict was rendered. fixing the amount at $4,180.84. March 28, 1884, a judgment was rendered that the appellant should recover this amount of the appellee, and that, upon' the payment thereof, the right of way-the use and possession of the land in question-should vest in the appellee forever. On the same day the appellee paid, and the defendant received, the amount of this judgment. 'l.'he land condemned by this judgment comprised 31 7-100 acres. On August 20. 1890, the appellant brought an action in ejectment against the appellee In the circu1t court of Sebastian county, Ark., for 24 7-100 acres of this land. November 15, 1890, that action was removed to the court below. December 31, 1891, the appellee brought Its bill in equity in that court to enjoin the prosecution of the action at law, and to quiet its title to the land in dispute. The appellant answered. The case was heard on blll and answer, and a decree rendered in favor of the appellee for the relief prayed in .its bill. The appeal is from this decree.
Britton H. Tabor, for appellants. Edward D. Kenna (B. R. Davidson and H. S. Abbott, on the brief), ' for appellee. Before OALU\VELL and SANBORN, Oircuit Judges, and THAYER, District Judge. SANBORN, Oircuit Judge (after stating the facts). The power of eminent domain-the right to take the property of the citizen for public use-is an attribute of sovereignty. It lies dormant in the state until the right to exercise it is granted by the state to some public or quasi public corporation, or until it is exercised by the state itself. It follows that no corporation has the right to exercise this power unless the state has granted to it that right; and it is 'conceded that, under the constitution of the state of Arkansas, a foreign corporation, as such, cannot have this right. Holbert v. Railroad Co., 45 Iowa, 23,26; State v. Scott (Neb.) 36 N. W. 121, 127; Trester v. Railway, Co., Id. 502, 505. The questions presented by this case, and pressed upon our attention in the brief and argument of counsel, are: First. Is the judgment of condemnation of March 28, 1884, void,-a nullity,-so that it may be disregarded on a collateral attack? Second. Did the appellee, though unauthorized, as a foreign corporation, to exercise the power of eminent domain, obtain the right, under the constitution and laws of Arkansas, to exercise that power, by its purchase of the property and frallCJhise of the domestic railroad corporation of that state which had that right? Third. Is the appellant, who has been a married woman during all these proceedings, estopped to recover this land by her acceptance of the money awarded her for it by the judgment of condemnation? Regarding the first question, the contention of counsel for appellant is that, since the appellee was a foreign corporation, and was not one of the parties to whom the right to exercise the power of eminent domain was granted by the state, the circuit court was without jurisdiction to render a judgment of condemnation in jts
31S' .':" ," 'i' H:
. "', ,
60. ,'" ','
favor, and that judgment isa Conceding,but n()t deciding, that the appellee had ll-O'Mght to condemn land for public. use, let us examine. this ... ' ,The was j!erved with IiJtatutory ,in.'tbe she appeared and partieipated·in thejuryrtrial to determine·the amount of compensation she should :receive. ']1n that proeeeding a controversy a a citizen of Arkansas, and the amount ineontroveJ;sy .was such give the circuit co:urt jurisdic'W>n.,, That court, therefore, had jurisdiction of the parties. It goes witliotitsaying that the circuit court had the right and the power to jUdgmentofcondemnati0lluin a proper case in favor of a ra.Uroij,<lcQrporatioIj.·wllich had the"right to exercise the power of emil).entdomain. Kohl v. U. S., 91 U.S. 367, 375; U. S. v. Oregon Ry. & NaY. 00.,9 Sawy.61, 16 Fed. 524. The state of Arkansas had grantedtpp'lany corporations the right to exercise this power, and, if the circuit court had rendered a judgment of condemnation in a proper case in favor of anyone of these corporations, its judgment The contention is that it is would unquestionably have been an absol'ilte:"nullity' in this case; because thecollrt entered such a judgment in favor of a corporation which had not that right. Stripped ,argUment all-d' verbiage, the position is that this judgment is void because the appellee had notlegal capacity to sue for it, although there were many parties that had such capacity, in whose favor court had amplepo",er to a judgment. But the ,question of the legal capacity of theplain.tiff to prosecute proceedingB, like thllt of the necessity for the conthat of the public or private of it, is a question that the trial court zn1tst necessarlly hear and determine in every Is every judgment in which the court .c9Wmitted an error in the decision of one ot these questions, without'the jurlsl1iction ()f.the court; ,a nullity, and only those in which it no mi.stake valid? Jurisdiction of the subjectmatter is '(lhe power to deal with the general abstract question, to hear thepartioular facts in any case relating to this question, and to determine whether not they are sufficient to invoke the exercise of thatpower. It is llOt confined to cases in which the particu, lar facts a good cause of Mtion, but it includes every issue within the scope of the general power vested in the court, by the law oHts organiZation, to deal with the abstract question. Nor is this jurisdiction limited to making correct decisions.' It empowers the Court to determine every issue 'within the scope of its authority according to i1;8 own view of the law and the evidence, whether its decision is right Or wrong; and every judgment or decision so rendered is :tl:nal and conclusiV"e upon the parties to it, unlesl; reversed by writ of error or appeal, 01" bnpeached for fraUd. Insley v. U. S., 14 Sup. Ct. 158; COJ,'Xlett v. Willial:hs, 20 WalL 226; Des Moines Nav. & R. Co. V". Iowa HoIijesteadCo., 123 U. S. 552, 8 Sup. Ct. 217; In re Sawyer, 124 U.!:S.200, 221,8 Sup. Ct 482; Skillerns v.May's :E:x'rs, 6 Cranch, 267; v. Sullivant, 10 Wheat 192; v. Hunt, 72:N.,)'".217; Colton v. 38 Barb. 30, 52; Otis v. The Rio Grande, 1 Woods, 279, Fed. Cas. No. 10,613; Hamilton v.
or
FOLT$ !). liT., LOUIS
lI.f. RV. CO.
819
Railroad 00., 1 Md. 04.107; El;ans v. Haefner, 29 Mo. 141, 147; State v. Weatherby, 45 Mo. 17; Rosenheim v., Hartsock, 90 Mo. 357, 365, 2 S. W. 473; State.v; SouthernRy. CQ.,lOO Mo. 59, 13 S. W. 398; Hope v. Blair, 105 lfo.85, 93, 16 S. W. 595; Musick v. Railway Co., 114 Mo. 309, 315, 21S. W. 491. Wherever the dght and the duty of the court to exercise its jurisdiction depends upon the decision of a question it is invested with power to hear and determine, there its judgment, right or wrong, is impregnable to collateral attack, unless impeached for fraud. In Colton v. Beardsley, 38 Barb. 30, 51, 52, the New York court said: the jurisdiction of an Inferior tribunal depends upon a fact which such tribunal. Is required to ascertain and determine, such decision is final until reversed in a direct proceeding for that purpose. The test of jurisdiction In such cases Is whether the tribunal has power to enter upon the inquiry, and not whether Its conclusion in the course of It is' right or wrong,"
In Des Moines Nav. & R. Co. v. Iowa Homestead Co., supra, a judgment of the United State,s circuit court was collaterally attacked because it appeared on its face that the plaintiff and some of the defendants were citizens of Iowa, and hence that that court appeared to have no jurisdiction of the action. But Chief Justice Waite, delivering the opinion of the supreme court, said: "Whether, In such a case, the suit could be removed, was a question for the circuit court to decIde when It was called on to take jurisdiction. If it kept the case when it ought to have been remanded, or if it proceeded to adjudicate upon matters In dispute between two citIzens of Iowa when it ought to have confined Itself to those between citizens of' Iowa and cItizens of New York, its final decree in the Emit could have been reversed, on appeal, as erroneous, but the decree would not have been a nullity. To determine whether the suit was removable in whole or in part, or not, was certaluly within the power of the circuIt court. The decision of that question was the exercIse and the rightful exercise of jurisdiction, no matter whether in favor of or a,gainst taking the cause,"
In Evans v. Haefner and Hamilton v. Railroad Co., supra, judgments of condemnation were collaterally attacked on the ground that the uses for which the lands were condemned were private and not public uses. It goes without saying that private property cannot be condemned for private use; but the courts of Maryland and Missouri held that the judgments were conclusive of this question on a collateral attack. There are three questions that the trial court must determine in every condemnation proceeding, viz.: First. Has the plaintiff corporation legal capacity to exercise the power of eminent domain? Second. Is it necessary for the plaintiff to take the land it seeks to condemn? Third. Does it seek it· for a public use? Every judgment of condemnation is necessarily an affirmative decision of each of these questions. If either of them is erroneously decided, the judgment may be reversed by a writ of error for that purpose; but to hold that either of these questions can be tried de novo in an action of trespass or of ejectment, or in any other collateral proceeding, would be counter to our views of justice, of the reason of the case, and of the uniform decisions of the courts. It is just and reasonable that one who contests the right of a railroad compauy to take his land should carry his contest to an end before he takes his award,
820
,property for railroad purposes. <It wotildwork great Injustice and l
of
tlle
pr"6Qucemuoh confusion. of rights to these judgments! of the disregarded,and decide t(j'oo retried mcolla:teral actions, in which and juries might have very dif· ferentViews from those. which in the origimU judgments. The deciSions of the courts, to SODle of· which we have referred, leave no doubt that it was the right and the duty of the circuit court to hear and determine the very question' whether or not, the appellee had the right to exercise the power of eminent domain before it entered its judgment in the condemnation proceeding, and that judgment .is, .C?nclusive evidence that it did determine that question in favor of 'the appellee. The judgment was strictly within the powers that c01n-t,by the law of its organization. It had authority to condemn 1aJ:l4s for public use in a proper case presented to it. If.that judgmet1ct was erroneous,.it might have b,eenreversed by a writ of error; buttbe decision of 'the question that is now admitted to be presented' anew was. the exercise of jurisdiction, and the rightfql exercise pf that jurisdiction, and, whether right or wrong, it cannot be attacked in a collateral proceeding. We have not failed to examine carefully the authorities cited by the counsel for the appella1lt. They are not in conflict with the views we line of demarcation which separates the case before us from those cited by appellant's counsel is that which marks:the limits of the powers of the courts to hear and determine. Judgments within of the power to hearll,nd determine vested ina court by the law of its orga;nization are. not void in the face ofacoUateral attack, whether right or wrong, and such is the judgment before us; but judgments rendered in 'cases which are not within the scope of this power are Ilullities. The following cases, citedbyappelll1nt's CO$el, are illustrations of this rule: In ra Sawyer, 124 U. S. 200, 8. Sup.Ot. 482, in which the police judge of the city of Linooln, Neb., brought suit against the mayor and councilmen of that city, in the federal court, to enjoin them from enforcing a judgment: against him for .misfeasance in office. . It was not within the power, of Ithe federal court, sitting in. equity in any case, or under any circumstances, to determine such a controversy and to grant .the injunction. there .sought, and its decree to that effect was therefore held to be a nullity. Whiteheadv. Railroad 00., 28 Ark. 460, in which a judgment of condemnation of land was rendered under an unconstitutional law. As the law which vested the court with .theonly power it had to render the judgment was void, the judgment itself was so. The stream could not rise higher than its source. Lessee of Hickey v. Stewart, 3 How. 751, in which a decree by a state court of chancery establishing the validity of a Spanish grant, over which no power had ever been conferred upon that court, was held void, Jlnd its exercise of jurisdiction declared to bea mere usurpation of judicial power. Again, ajudgment or decree af'a court in excess of the power to hear and determine granted to it by the law of its organization_ may be void for such excess, although the court may have·ju,tiSdiction of the parties and of the subject-matter. Illustra-
FOLTZ fl. ST. LOUIS & S. ll'. BY.: CO.
821
tions of this role are Bigelow v. Forrest, 9 Wall. 339, 351, in which a judgment of condemnation and sale of the fee to land, when the court was expressly prohibited by act of congress from condemning any rights outlasting the life of Forrest, was held void for the excess above the life estate; Ex parte Lange, 18 Wall. :1.63, 176,. in which the statute authorized the punishment of a criminal by fine or imprisonment, and after the court had imposed a sentence of fine and imprisonment, and the criminal had paid the fine, the trial court vacated its judgment and sentenced him to imprisonment, and the supreme court declared the latter judgment void, because it was not within the power of the court, in any case, to punish the criminal twice for the same offense; Day v. Micon, 18 Wall. 156; and U. S. v. Walker, 109 U. S. 258, 266, 3 Sup. Ct. 277. In all these cases, which are cited by appellant's counsel, the judgments· or decrees were beyond the powers conferred on the courts by the laws of their organization. In the other cases cited, viz. Holbert v. Railroad Co., 45 Iowa, 23, 26, State v. Scott (Neb.) 36 :N. W. 121, 127, 128, and Trester v. Railway Co., Id. 505, the question of the validity of a judgment when attacked collaterally was not considered. :No case has been called to our attention in which it is held that a judgment of condemnation of land, in favor of a party who had' not the legal capacity to exercise the power of eminent domain, was a nullity. In the opinion of the supreme court of :Nebraska in Trester v. Railway Co., supra, which was an appeal from an order of removal of a con· demnation proceeding to the federal court, on the ground that the railroad company was a foreign corporation, is found the only laration to that effect that we have seen. That court, in speakl.ng nf the order of removal made by the court below, did say: "Its order of removal was therefore a nullity, and· no jurisdiction could 00 thereby confer"ed on the federal court. Any action that might lJe taken bJ' that court would be- equally void; and although the parties might appear before it, and invoke its powers to the fullest extent, yet they could give it no jurisdiction. to take any action whatever....
This declaration was not necessary to the decision of the case before it, but that court reversed the order of removal, .and remanded the case with directions to dismiss it on the ground that the court below had no jurisdiction because the railroad company had no power to condemn lands. Upon a rehearing, however, this decision was overruled and the case remanded for trial. No opinion was filed on the rehearing, but in Trester v. Railway Co. (Neb.) 49 N. W. 1110, that court says of the decision on the rehearing: "The legal effect of the decision, however, was to overrule the former opinion, in so far as it held that the condemnation was void, and that neither the county judge nor the district court had jurisdiction to take any action In the matter."
In other words, the supreme court of Nebraska finally came to the same conclusion at which we have arrived,-that the trial court had jurisdiction to hear and determine the question whether or not the railroad company had the legal capacity to sue for the conq.emnation of private property for public use. The result is that the judgment of condemnation of March 28, 1884, was' final and conclusive v.60F.no.3-21
'an:
DQt be Jll renders it to ;tbeothertWQ in the, l\nd statediIl't!w,eal'ly paft of· this QpmiOD. , ' ; , !', "", ' " " ,; ,, t>bjectionw,the dttQree belpw llfl: the ,at law? and ,this;bi,P. in equity sllonld have, been , III Prete<$v; 00,., 4 App.327, 330, 1 C. C;iA./607, 50 Fed. 67:4; of this court" said: , f , . ·
Jbet'Ween :tlleparties.W it,
: "ltrimy be' true that the·plalntl1fhad aretnedy at Is lj, re.l!lJeAv JJ;1ust 1>11 plaln and adequate, or, ill othe,r praetlcal and as efficlent.tl> the of justice and ltsprompt adminIstration' as the l'emll'dY In Borce's Ex'rsv; Grundy, '3 Pet.' 210, 215; OMI'ichsV'.Spaln;'15"Wan:'211, 228."" ; , .
'. Th,J
in .a.nd is The deGree, l>cl.ow enJOl11S ,the ti;tl¢,ill the appellee.. It ,is true jJhe ,acti()n ,of. Imt If! and to the of JustIce as , .,W4af th¢ appellant froIll actlop. eJectIllent, and lmngmg trespass Or another efficient a to hold the s)lield actions at law,as is a final decree,that forey;er ends aUcoJitroversy? MQreover"this objection was not made in thecourtbel()w. TAeappellant inte:rposed no de· She to the plerits,and went to a hearing on bill and answer without Qbjection tliat this suit could not be maintained, because the remedy of the appellee at law WfUl complete. The objecdO,n she 'now makes is' one of 'f#atmay be waived if not made at the thre!!lhold. It is too late to! m.ake it for the first time in the appellate court. Preteca v. Land Grant Co., suprajReynes v. Dumont, 130 U. S. 354, 9 Sup. Ct. 4"86; Tylerv. Savage,l43 U. S. 79, 97, 12 Sup. Ct. 340; Hollins v. Iron Co., 1;1. Sup. Ct. 127, 128; Insley v. U. S., 14 Sup. Ct. 158, 159. For t1).e8e ,reasons, the decree below must be JUnrmed, with, costs, and it is so t
is mg <ilf that ,like !-hat,th.'1
the
to
Jt1 ,
MEEK v. SKEEN. (Circuit Court of' Appeals, FlftbCiNuit. February 20, 1894.) No.
lin.
I.' EXlIlCUTION.,....BoNA Fl]):&PURCBASERS-UNBECORD:&D DEED. On a bill to quiet title, complainants were purchasers at executl(ln sale made under a judgment owned by them, while respondent claimed under a prior deed frtim "the' judgment, debtor,· which' was not recorded. The ,:o/1lyevldence as this !;1eeq :was thl;lt complaill" ants, before tile sale, thatl;1e had sold a,l1. his property,. and endeavored to Bettle the jUdgment'for A small .amount; .But he did not tell them to bad sold, nor'dldeomplalnail'tsever hear rel:lpondent'lJ name mentioned in connection witb the land In controversy. Held" that they were of respondent's dE!e4-