each one. So here one township through which It does not belong to courts to interpolate the railroad was to pass, expecting to be largely constitutional restrictions. Our duty is to apbenefited by its construction, might give its ply the law, not to make it. All power may be bonds and impose the tax requisite to meet the abused where no safeguards are provided. The principal and interest, while another township remedy in such cases lies with the people, and similarly situated might refuse to do so. The not with the judiciary. rule would have no application to the latter. We pass by, without remark, the point wheth

The 2d and 14th clauses of article 18 pre- er in cases like this the public or private charscribe that when private property is taken for acter of the work is not a legislative rather than public use just compensation shall be made to a judicial question. the owner. These provisions relate to the exer- It is insisted that the invalidity of the statute cise of the right of eminent domain.

has been determined by two judgments of the The 13th clause of article 15 declares that Supreme Court of Michigan, and that we are 676*] “the * Legislature shall provide for the bound to follow those adjudications. People v. incorporation and organization of cities and vil-Salem, 20 Mich., 452; Bay City v. Treasurer, 23 lages, and shall restrict their powers of taxa Mich., 499. We have examined those cases with tion, borrowing money, contracting debts and care. With all respect for the eminent tribunal loaning their credit.” The power here in ques- by which the judgments were pronounced, we tion was exercised by a township. The language must be permitted to say that they are not satisof this clause clearly implies that the powers to factory to our minds. We think the dissenting be restricted may be exercised; and what is im- opinion in the one first decided is unanswered. plied is as effectual as what is expressed. U. 8. Similar laws have been passed in twenty-one

. Babbit, 1 Black, 61, 17 L. ed. 96. Congress States. In all of them but two, it is believed can pass no laws but such as the Federal Con-their validity has been sustained by the highest stitution expressly, or by necessary intendment, local courts. It is not easy to resist the force of permits.

such a current of reason and authority. The The legislative power of a State extends to question before us belongs to the domain of geneverything within the sphere of such power, ex

cral jurisprudence. In this class of cases this cept as it is restricted by the Federal Constitu- court is not bound by the judgment of the courts tion or that of the State. In the present case of the States where the cases arise. It must hear we have found nothing that in our judgment and determine for itself. Here, commercial sewarrants the conclusion that the Act in question curities are involved. When the bonds were isis wanting in validity by reason of its unconsti- sued, there had been no authoritative intimatutionality.

tion from any quarter that such statutes were But it has been argued that aside from any invalid. The Legislature affirmed their validconstitutional prohibition the Legislature had ity in *every Act, by an implication [*678 no power to authorize the imposition of a tax equivalent in effect to an express declaration. for any other than a public purpose, and that And during the period covered by their enactthis Act is not within that rule. Conceding, for ment, neither of the other departments of the the purposes of this opinion, the soundness of government of the State lifted its voice against the first proposition, the second can by no means them. The acquiescence was universal. Gelpcke be admitted.

v. Dubuque, 1 Wall., 175, 17 L. ed. 520. Though the corporation was private, its work The general understanding of the legal prowas public, as much so as if it were to be con- fession throughout the country is believed to structed by the State. Private property can be have been that they were valid. The National taken for a public purpose only, and not for Constitution forbids the States to pass laws imprivate gain or benefit. *Upon no other ground pairing the obligation of contracts. In cases than that the purpose is public can the exercise properly brought before us that end can be acof the power of eminent domain in behalf of complished unwarrantably no more by judicial such corporations be supported. This view of decisions than by legislation. Were we to yield the subject has been taken by the Supreme in cases like this to the authority of the deciCourt of Michigan. Swan v. Williams, 2 Mich., sions of the courts of the respective States, we 427. But upon other grounds, we think the should abdicate the performance of one of the public character of such works cannot be most important duties with which this tribunal doubted. Where they go they animate the is charged and disappoint the wise and salusources of prosperity, and minister to the growth tary policy of the framers of the Constitution of the cities and towns within the sphere of in providing for the creation of an independtheir influence. Unless prohibited from doing ent Federal judiciary. The exercise of our so, a municipal corporation has the same power appellate jurisdiction would be but a solemn to aid in their construction as to procure water mockery. Butz v. Muscatine, 8 Wall., 579, 19 677*] for its water-works, coal**for its gas- L. ed. 492. works, or gravel for its streets from beyond its The question here under consideration was territorial limits. Meyer v. Muscatine, 1 Wall., fully considered by this court in R. R. Co. v. 389, 17 L. ed. 566. Under the limited powerś Otoe Co., 16 Wall., 667, 21 L. ed. 375, and in conferred by the Federal Constitution, Congress Olcott v. Supervisors, 16 Wall., 678, 21 L. ed. has frequently given aid in such cases. The 382.

We have no disposition to qualify any. Pacific railroads and the Louisville Canal fur thing said in those cases. They are conclusive nish instances of such action by that body. The in the case before us. gift to the sufferers from the overflow of the In Sedgwick on Statutory and Constitutional Mississippi, and prior Acts of the kind, must Law, p. 90, it is said: “It must be further borne also be borne in mind. Cannot a State Legisla- in mind that the invalidity of contracts made in ture do the same things?

violation of statutes is subject to the equitable

exception, that although a corporation in mak- 1 (Super. Ct.) 162; Steam Nav. Co. v. Weed, 17
ing a contract acts in disagreement with its Barb. 378; Chester Glass Co. v. Dewey, 16
charter, where it is a simple question of capacity Mass. 94; Steamboat Co. v. McCutcheon, 13 Pa.
or authority to contract, arising either on a St. 13; Potter v. Bk., 5 Hill, 490; Suydam
question of regularity of organization or of v. Morris C. & B. Co., 5 Hill, 491; Sackett's
power conferred by the charter, a party who has Harbor Bk. v. Louis Co. Bk., 11 Barb., 213;
had the benefit of the agreement cannot be per- | Mott v. U. 8. Trust Co., 19 Barb., 568. But
mitted in an action founded on it to question it is not necessary to place our judgment upon
its validity. It would be in the highest degree this ground. We rest it upon the other views
inequitable and unjust to permit the defendant which have been expressed, and the authority
679*] to repudiate *a contract the fruits of of our own preceding adjudications.
which he retains. And the principle of this ex- The judgment of the Circuit Court is affirmed
ception has been extended to other cases. So a
person who has borrowed money of a savings
institution upon his promissory note, secured

Dissenting, Mr. Justice Miller and Mr. Jus

tice Davis. by a pledge of bank stock, is not entitled to an injunction to prevent the prosecution of the note upon the ground that the savings bank was Mr. Chief Justice Waite and Mr. Justice prohibited by its charter from making loans of Bradley did not sit in this case and took no that description.” The authorities referred to part in its decision. sustain the text. Palmer v. Lawrence, 3 Sandf. 234

85 U. $.




19 Wall. 1-12, 22 L. 90, BARINGS v. DEBNEY.

Banks and banking.-Insolvent bank, of which State is sole stockholder, cannot object to any disposition of its assets prescribed by legislature; creditors alone can question validity of act, p. 8.

Banks and banking.- Legislative act appropriating assets of insolvent State bank to satisfy certain debts of bank, makes bank a trustee, and invests assenting beneficiaries with contractual right that trust shall be performed, p. 9.

Applied in McKee v. Lamon, 159 U. 8. 322, 40 L. 167, 16 S. Ct. 13, to broad proposition that money received for delivery to another is charged with enforceable trust in his favor.

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Constitutional law. Act of legislature appropriating assets of insolvent State bank to pay State's debts is invalid as impairing obligation of contracts with bank's own creditors, pp. 11, 12.

Cited in Lamb v. Pannell, 28 W. Va. 667, assets of insolvent bank trust fund for its creditors; Pyles v. Furniture Co., 30 W. Va. 136, 2 S. E. 917, approves, but holds insolvent corporation may prefer creditors. See note, 57 Am. St. Rep. 79, on withdrawing corporation's assets.

19 Wall. 12-13, 22 L. 46, HODGES v. VAUGHAN.

Appeal and error.- Where sole defect in transcript is lack of clerk's certificate that it contains complete record, certiorari is not proper remedy, but leave will be granted to withdraw transcript and apply to clerk below for necessary certificate, p. 13.

Approved in Meyer v. Mansur, etc., Co., 85 Fed. 876, 52 U. S. App. 478, motion to dismiss granted when certificate shows papers are true copies, but not that record complete; Nashua, etc., R. R. v. Boston, etc., R. R., 61 Fed. 241, 21 U. S. App. 50, motion to dismiss denied, certificate shows certain parts of record omitted on request, but not shown to be material.

19 Wall. 13-17, 22 L. 144, STOWE v. UNITED STATES.

Estoppel. One who suffers action to be brought, co-operates in Its prosecution, and allows settlement to be made on basis of truth of statements in petition, cannot later deny their truth, because his interest in subject-matter is left unprotected by settlement, p. 16. ̧


U. S. Notes 19 Wallace, 22 L. ed. 234-66 p.

Approved in Brigham Young Trust Co. v. Wagener, 13 Utah, 241, 44 Pac. 1031, one who by silence, word or deed injuriously misleads another may not contradict original representations.

Principal and agent.- Agent having brought suit under de fective power of attorney, but the principal having recognized his authority, a settlement made with such agent held to preclude principal from subsequent amended proceedings, p. 17.

19 Wall. 17-20, 22 L. 46, SALOMON v. UNITED STATES.

United States.- Act of 1862, requiring contracts for military supplies to be in writing, is not infringed by officer in charge accepting delivery of supplies after day stipulated in written contract; nor is verbal agreement to extend time of performance invalid, pp. 19, 20.

United States. Though act of 1862 requires contracts for military supplies to be in writing, contract to pay value of produce received and receipted for by quartermaster in authority will be implied when government uses part and suffers remainder to spoil; in absence of testimony, value is presumed to be that fixed in quartermaster's voucher, p. 20.

Doctrine extended to hold municipalities liable for services rendered of which corporation has availed itself, in; Ellsworth v. Rossiter, 46 Kan. 242, 26 Pac. 675, Beers v. Dalles City, 16 Or. 342, 18 Pac. 840, and Cincinnati v. Cameron, 33 Ohio St. 371. Cited in Swigett v. United States, 78 Fed. 460, to point that United States can be sued on implied contract; and arguendo in Railroad Co. v. United States, 101 U. S. 549, 25 L. 1070, and Bond v. United States, 42 Fed. 781.

Distinguished in Coleman v. United States, 152 U. S. 99, 38 L. 369, 14 S. Ct. 474, promise to pay implied only when payment may reasonably be expected; Camp v. United States, 113 U. S. 654, 28 L. 1083, 5 S. Ct. 689, contract will not be implied to pay one who has not title to goods.

19 Wall. 20-32, 22 L. 49, MCCARTHY v. MANN.

Public lands - Deeds.- Defective entry of public land by A., having been cured by act of Congress, and A.'s title having previously passed by successive deeds through B. and C. to D., the last being merely quitclaim deed, the curative statute enacted that A.'s confirmed title should inure to his grantees; held, D. and not C. took the title, notwithstanding C.'s mere quitclaim deed, p. 32.

Approved in Dunn v. Barnum, 51 Fed. 358, 10 U. S. App. 86, where same act under consideration as in principal case; German Ins. Co. v. Hayden, 21 Colo. 137, 52 Am. St. Rep. 211, 40 Pac. 456, to point of authority of commissioners to set aside land entry; Dunn v. Barnum, 51 Fed. 361, 10 U. S. App. 86, to point that grantee under quitclaim deed is not a bona fide purchaser without notice.


19 Wall. 32-37, 22 L. 96, ZANTZINGERS v. GUNTON.

Banks and banking.-- Statutory prohibition against bank or trustees thereof bolding title to real estate, not infringed by indi. vidual member of board of bank trustees taking title in trust to sell and turn proceeds over to bank trustees, p. 37.

Not cited.

19 Wall. 37-41, 22 L. 62, BULKLEY v. UNITED STATES.

Contracts.— Notice of intention of government to present supplies for transportation on certain day, given under terms of general contract for government transport, does not, though assented to, constitute an agreement so to do; and on failure to require transportation, action for damages in amount of profits possible to have been earned, cannot be maintained, p. 40.

Approved in Cincinnati Gas Co. v. Western, etc., Co., 152 U. S. 206, 38 L. 413, 14 S. Ct. 525, and Howard v. Stillwell, etc., Co., 139 U. S. 206, 35 L. 150, 11 8. Ct. 503, to general rule that anticipated profits not recoverable as damages for breach of contract.

Damages.-- Government transport contractor erroneously not. fied by government to be ready for certain transport work on certain day, beld entitled to reimbursement for loss of time, trouble and expense in preparing for it, pp. 40-41.

Followed in Parish v. United States, 100 U. S. 507, 25 L. 760, analogous case, where order acted upon by contractor was withdrawn; United States v. Behan, 110 U. 8. 343, 28 L. 170, 4 S. Ct. 83. as rule of damages when, without contractor's fault, other party ends contract before completion.

19 Wall. 41-58, 22 L. 52, THE WENONA.

Collision.— Rules of navigation are obligatory upon vessels ap proaching, from time necessity for precaution begins, and wbile means and opportunity to avoid danger remain, p. 52.

Followed in The Breakwater, 155 U. S. 264, 39 L. 143, 15 S. Ct. 102, and The Chatham, 52 Fed. 399, 8 U. S. App. 104.

Collision.- Errors committed at moment of collision are to be less strictly regarded than those which may have superinduced them, committed when vessels further apart, p. 54.

Appeal and error.- In absence of reason upon record for imputing willful falsehood to witnesses, their direct testimony wili stand as against circumstantial inferences to the contrary, p. 58.

Approved in Wolf v. Schooner Bertie Calkins, 2 Fed. 804.

19 Wall. 58-62, 22 L. 70, KNOWLES v. GASLIGHT, ETC., CO.

Court of general jurisdiction will be presumed to bave had jurisdiction of cause until contrary appears, p. 61.

VOL. VIII -- 15

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