Without further comments, we think it our duty to order that he pay to the United States a fine of two hundred and fifty dollars and the costs of this proceeding, and that he stand committed to the custody of the marshal of this court until said fine and costs are paid. Dissenting, Mr. Justice Field and Mr. Jus


of it, is a violation of the injunction of the he was fully heard and his rights conclusively court in this case, and that the defendant, decided. Chiles, is guilty of a contempt in that regard. Section 725 of the Revised Statutes declares that the courts of the United States shall have power to punish by fine and imprisonment for contempts of their authority. And among the cases specially enumerated are "Disobedience or resistance by any officer of the court, or by any party, juror, witness or other person, to any lawful writ, process, order, rule, decree or tice Hunt. command of the said courts." Such has always been the power of the courts both of common law and equity. The exercise of this power has a twofold aspect, namely: first, the proper punishment of the guilty party for his disrespect to the court or its order, and the second, to compel his performance of some act or duty required of him by the court, which he refuses to perform. Stimpson v. Putnam, 41 Vt., 238. In the former case, the court must judge for itself the nature and extent of the punishment, with reference to the gravity of the offense. In the latter case, the party refusing to obey should be fined and imprisoned until he performs the act required of him or shows that it is not in his power to do it.

We are asked by counsel for complainant to act upon this latter principle in the present case. But it is not pointed out to us very clearly what act it is in the power of defendant to perform commanded by the decree and which he refuses to do. The bonds are not in his possession or under his control. He cannot, therefore, deliver them up as the decree orders. There is no decree that he shall pay their value. The only order which he is shown to have violated is the one we have considered, enjoining him from setting up a claim to them. 169*] *The petition for the present rule on Chiles asks that he may be ordered by a proper instrument in writing to convey and transfer to the State of Texas all rights, titles and interest which he appears or pretends to have in said bonds, and counsel in oral argument says he should be imprisoned for contempt until he complies with this order.

But the obvious answer to this is that no such order or decree has been made, and de



(See S. C., 22 Wall., 322-329.)

Stipulation as to transfer of cause—jurisdiction.
1. Where the parties have, by stipulation and
agreement, placed on file and made part of the rec-
Circuit Court by transfer from a State Court, in ac.
ord, admitted that the cause was brought to the
cordance with the statutes in such case provided,
and that all the original files in the cause had been
ties accepted the transfer, it will be presumed that
destroyed by fire, and both the court and the par-
the files did then contain conclusive evidence of
the existence of the jurisdictional facts.
the United States jurisdiction, but the parties may
2. Consent of parties cannot give the Courts of
admit the existence of facts which show jurisdic-
tion, and the courts may act judicially upon such
an admission.
[No. 199.]

Submitted Feb. 24, 1875. Decided Mar. 22, 1875.

IN ERROR to the Circuit Court of the United


States for the Northern District of Illi

The case is stated by the court. Messrs. E. Walker and R. Biddle Roberts, for plaintiff in error:

This court has said repeatedly, that when the jurisdiction depends upon the character of the parties, it must be positively averred upon the record. An omission to do so is a fatal defect, in error although no question of jurisdiction was made in the court below. There nowhere appears on this record any averment lusion made even to her residence. of the citizenship of plaintiff, nor is any al

fendant can be guilty of no contempt in notv.
doing this until he has been ordered to do it, 2
and he is aware of it. To make an order now;
and then punish for contempt or disregard of
it before it was made, is ex post facto legisla-
tion and judicial enforcement at the same


It is true that the original decree contains a provision for further directions in the enforcement of it, and it may be that such an order as is asked for now would be made on proper application and proper notice to the parties concerned, but such a proceeding can constitute no part of process for contempt in disregarding an existing order of the court. The granting or refusal of such an order is governed by very different considerations, and is to be brought to the attention of the court by very different proceedings than such as belong to the one now before us.

We are left, then, to the consideration of what punishment we shall impose upon Mr. Chiles for the violation of this court's injunction in a suit to which he was a party, where

Dupuis, 1 Cranch, 343; Wood v. Wagnon, Bingham v. Cabot, 3 Dall., 382; Abercrombie Cranch, 9; Brown v. Keene, 8 Pet., 112; Jackson v. Ashton, 8 Pet., 148; Piquignot v. The Pennsylvania R. Co., 16 How., 105; The Lucy, 8 Wall., 307, 19 L. ed. 393; The Nonesuch, 9 Wall., 504, 19 L. ed. 663; Pennsylvania v. Quicksilver Company, 10 Wall., 553, 19 L. ed. 998.

for defendant in error:
Messrs. John Van Arman and J. W. Ross,

Mr. Chief Justice Waite delivered the opinion of the court:

This record shows that the action was originally commenced in the Superior Court of the City of Chicago. That it was afterwards transferred, according to the statute in such case provided, to the Circuit Court of the United States for the Northern District of Illinois; that while it was pending in that court undetermined, the files and pleadings were all de

by consent-see note to Governor of Georgia v. NOTE. Jurisdiction of Federal Courts not given Sundry African Slaves, 7 L. ed. U. S. 73.

We are reviewing the action of another court and are to determine whether or not there is error in what it has done. The restoration of the lost files was not absolutely necessary to support the jurisdiction of that court. Having been once there, the court is presumed to know their contents and is permitted to act upon that knowledge. Parol proof, too, is admissible to aid the memory of the court.

stroyed by fire; that after the fire the plain- arises, therefore, whether under such circumtiff asked leave to file a declaration as a substances we are confined to what is in terms exstitute for the one destroyed; that the defend-pressed upon the record sent to us, or whether ant assented to this request, and on the same we may resort to presumptions to give effect day the court made an order as follows: "By to what is expressed. agreement of the parties, by their attorneys as per stipulation filed, leave is given them to file a copy of the declaration and plea heretofore filed herein and destroyed by fire on the 9th of October last, and it is ordered that they be substituted for and stand in place of the original declaration and plea so destroyed;" that thereupon copies of such pleadings were filed, but there was nothing in the declaration or plea to show the jurisdiction of the circuit court; that on the 11th of June, 1872, the parties went to trial upon the issues joined, and a verdict was rendered for the plaintiff on the 14th of the same month; that on the same day the defendant filed a motion for a new trial, and on the 29th, a further motion in arrest of judgment, for the reason that there was nothing upon the record to show that the court had jurisdiction; and that, on the 29th of December following, the court overruled both motions and gave judgment upon the verdict. It nowhere appears that either of the parties attempted to supply any of the lost files except the pleadings, or that any objection was made to the jurisdiction until after the trial was had and a verdict rendered.

The action of the court in overruling the motion in arrest of judgment, is alone assigned for error.

It is true that in cases where the jurisdiction of the courts of the United States depends upon the character of the parties, as it no doubt does in this, the facts upon which it rests must somewhere appear in the record. They need not necessarily, however, be averred in the pleadings. It is sufficient if they are in some form affirmatively shown by the rec


Here the parties have, by stipulation and agreement placed on file and made part of the record, admitted that the cause was brought to the circuit court by transfer from a state court in accordance with the statutes in such case provided. By the same stipulation it is made to appear that all the original files in the cause had been destroyed by fire. True, the stipulation refers specially to pleadings alone, but in this court, after what has occurred below, it may with great propriety be assumed that it was intended to include all papers and entries in the cause.

327*] *The parties, after this destruction, asked to supply the pleadings. Neither party seems to have considered that anything else was necessary. Each, apparently admitting jurisdiction, seemed anxious to get ready for trial. They were permitted to file copies of the lost declaration and plea and thus make up their issues. The record now before us contains none of the lost files, but is made up of the stipulation above stated, the substituted pleadings, and the proceedings thereafter.

We have, then, a case before us upon error in which the record presented shows upon its face that part of the files in the cause were destroyed before the record was made, and that neither one of the parties has considered it necessary to have them supplied. The question

Consent of parties cannot give the courts of the United States jurisdiction, but the parties may admit the existence of facts which show jurisdiction, and the courts may act judicially upon such an admission.

Here the parties have put into the record their joint admission that the cause was transferred to the circuit court from a state court, and that the evidence of the transfer which was once among the files has been destroyed. They have asked the court to act upon this admission and proceed with the cause. The court did proceed. The fair presumption from all this is that it was then within the knowledge of the parties and the court that there had been on the files in the cause everything which the statute required to be *there to complete [*328 the transfer, and that the appearance and admission of the parties was expected and intended to have all the force and effect which a restoration of the papers could have. If, therefore, with these papers in the record the jurisdiction would appear, the judgment ought not to have been arrested, and there is, consequently, no error.

We are, then, permitted to inquire what the lost papers would have shown if they had been incorporated into the record, and for that purpose may presume they contained all that the law required they should.

To obtain the transfer of a suit, the party desiring it must file in the State Court a petition therefor and tender the required security. Such a petition must state facts sufficient to entitle him to have the transfer made. This cannot be done without showing that the Circuit Court would have jurisdiction of the suit when transferred. The one necessarily includes the other. If upon the hearing of the petition it is sustained by the proof the State Court can proceed no further. It has no discretion and is compelled to permit the transfer to be made. The petitioning party is then required to file in the Circuit Court copies of the process, and of all pleadings, depositions, testimony and other proceedings in the State Court. This includes the proceedings by which the transfer was effected, and these, as has been seen, must show the facts necessary to give the Circuit Court jurisdiction.

Such are the papers which we are to presume were filed in this cause, and from what has occurred the conclusion is irresistible that they must have contained all that was necessary to justify the court in accepting the transfer. This it need not have done unless the jurisdiction was apparent. Either party upon the filing of the papers could have moved to remand; or

the court itself, without a motion, could have, had called it into being, and had usurped a sent the case back if the jurisdiction did not appear. As both the court and the parties accepted the transfer, it cannot for a moment be doubted that the files did then contain conclusive evidence of the existence of the jurisutional facts.

329*] *This ends the case. With the lost files in the record, we should see that the court had the right to permit the parties to litigate before it as they did.

There is here no question of a restoration of lost records. This record has never been lost. It was not made until after the fire. The litigation was pending when that calamity occurred. What has been lost is part of the files which, when the time arrived to make up a record, would have been incorporated into it. What we have to consider is, whether in the record as made their loss has been supplied. We think it has by the recorded acts of the parties and their stipulation. The judgment is affirmed.



FRANKLIN COUNTY et al. (See 8. C., 22 Wall., 67-77.) County bonds, power to issue-curative Act. 1. Where a state law gave authority to the County Courts to borrow money and issue bonds for road purposes, where the amount of proposed expenditure had been submitted to a vote of the people, the power conferred upon the County Courts cannot be exercised unless the proposed expenditure is approved by the voters.

2. Where the Legislature subsequently passed a curative Act authorizing County Courts to issue bonds for the purpose of paying for the building of bridges and macadamized roads, which had been contracted for and built, such Act is valid, it not being forbidden by the State Constitution.

3. The Act, being general in its language, is valid, although special legislation is forbidden in the State Constitution.

[No. 208.]

Argued Mar. 2, 1875. Decided Mar. 29, 1875.


PPEAL from the Circuit Court of the United States for the Eastern District of Missouri. The history and facts of the case are fully stated in the opinion of the court.

Messrs. T. W. B. Crews, Wm. H. Letcher and Jos. S. Laurie, for appellant:

The Act of Mar., 1868, cannot be construed to be "curative" or confirmatory.

It is conceded that, up to the time of the approval of the Act, the proceedings of the County Court and the bonds then issued were absolutely void. Says the opinion of the Supreme Court of Missouri, at the conclusion of the argument on the question of the power vested in the County Court: "As no election was ever ordered, and no vote taken in this case, the court had no jurisdiction whatever, and acted wholly without authority, and hence the bonds were void." The suit was then pending, and had judgment then been given, it must have been adverse to the bond holders. The proceedings were not merely informal or irregular. They were wholly without authority and void ab initio. The County Court had broken down the barriers which the law had raised, had disregarded the authority which

power which belonged only to the people; and now, can we conclude that the Legislature, in this general way, proposed to cure or confirm its proceedings? Will the language of the act reasonably bear such a construction? Aside from the constitutional prohibition, which is clear beyond a doubt, and aside from the consequences which would result from upholding the power of the Legislature to exercise such authority, can we conclude from the Act itself, or from any attending fact or circumstance, that it was the intention of the Legislature to legalize the illegal act of the county officers, and to authorize the issue of bonds to pay for work done or to be done without the sanction of the people?

The Act does not purport to be curative. To quote again from the brief of Judge Ewing: "The aim of a curative Act is always special and particular; although it may be general in its application to a class of things or objects, it is pointed and distinctive as to the cause or the supposed necessity of it. Where several persons are supposed to influence legislative action, or are invoked in the interpretation of a law, and some of these only are mentioned or referred to in the language of the Act, those not alluded to or indicated cannot be brought within the intention or spirit of the law. A fortiori, where the supposed motives to the enactment are twofold, and the primary one is not disclosed by any terms in the Act that would make it apparent, while the minor consideration is clearly manifested in plain language, the former cannot be brought within the scope and meaning of the Act, without violating all the rules of interpretation. The application of this rule to the case at bar is evident. This Act can have effect as respects the interest that such bonds might bear, the former law allowing only six, while this allowed ten per cent. This, together with the removal of restriction in the sale of bonds, is the whole scope of the Act."

The Act in question, as construed by the Supreme Court of Missouri, is clearly unconstitutional.

Section 17, Article 4, of the State Constitution, prohibits, among other things, the passage of special laws, or laws affecting the construction of roads, or the legalizing, except as against the State, of the unauthorized or invalid acts of any officer. After enumerating, in terms, those subjects which are expressly exempt from legislative interference, the concluding paragraph of the section prohibits the passage of special laws for any case for which provision can be made by a general law.

The Act of March, 1868, affected the construction of roads, and was designed to legalize the invalid and unauthorized acts of county officers. Although expressed in general terms, it must have been framed with a view to meet this case. Its generality was an attempt on the part of the Legislature to evade the provisions of the Constitution, and to accomplish by indirect means that which it was forbidden to do directly.

The Act is unconstitutional, because it is especially prohibited by the clause in the Declaration of Rights, declaring that no law retrospective in its operation can be passed.

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The Constitutions of New Hampshire, Tennessee, Texas and Missouri, and it may be of other States, contain this prohibition. The language in each is synonymous if not identical, and is so plain and unambiguous that its meaning cannot be misunderstood or qualified. We refer especially to the case of Rich v. Flanders, 39 N. H., 304, where all the leading authorities are collated and commented on, and the decisions of the Supreme Court of Missouri in State v. Auditor, 33 Mo., 287, and Hope Mutual In. Co. v. Flynn, 38 Mo., 483, and cases cited.

Mr. James O. Broadhead, for appellees.

Mr. Justice Davis delivered the opinion of the court:

The object of this suit is to enjoin the collection of a special tax levied to pay the interest in certain bonds issued by the County of Franklin in the State of Missouri, which it is alleged are illegal. It appears by the pleadings in the case, that the County of Franklin made a contract to macadamize and bridge a public road leading from the county seat to the west line of St. Louis County, and in payment for the work of the contractors, gave to them its bonds with coupons attached, which were transferred by them for value to bona fide holders. There was authority conferred on the County to build this road if the people were first consulted; but the sense of the voters was not taken, and the County Court in the transaction proceeded without it. After the road was built and the bonds issued, the Legislature of the State on the 21st of March, 1868, passed an Act authorizing County Courts to borrow money on the credit of the County, and issue coupon bonds for the purpose of paying for macadamized roads which had been built, or were in process of construction under their authority, and levy a special tax, if necessary, to pay for the accruing interest on the bonds. After the passage of this Act, the County Court of Franklin County entered an order on its records to issue bonds to the contractors to pay for the work done on the road in question, and thereupon the former bonds were surrendered and canceled, and a like number issued and purchased by the defendants in due course of business. Other similar roads were being built by the same contractors at the same time for the same County and the defendants had no means of knowing whether the bonds they held were issued to pay for the particular road in controversy. They bought them in good faith for value, without notice or suspicion even of any infirmity or title. After all the bonds had been issued and negotiated for the macadamized roads in Franklin County, one Steins, and two other citizens of Franklin County, instituted a suit in behalf of themselves and five hundred other citizens and tax payers in the proper State and circuit court to test the validity of these proceedings. Said suit put in issue the legality and validity of said bonds, and the power and authority of the County Court to issue them and to levy and collect a tax to pay the interest thereon, and also the validity and constitutionality of said Act of March 21, 1868. These issues in the court of original jurisdiction were found for the defendant, and on appeal to the Supreme

Court of the State, the court of last resort, affirmed in all respects the judgment of the lower court. The plaintiffs, not satisfied with the result of the litigation in the State Courts of Missouri, took the cause to the Supreme Court of the United States, which refused to entertain it for want of jurisdiction. Then the resident taxpayers rested; but Craig Ritchie, a citizen of Washington County, Pennsylvania, seeks to renew the litigation in the Circuit Court of the United States for the Eastern District of Missouri, on the ground that he is a tax payer in Franklin County, and had nothing to do with the original suit.

The case comes here on exceptions to the answer, which really present but two questions for consideration:

1. Whether there was authority to issue the bonds in controversy.

2. Whether the judgment of the Supreme Court of Missouri, in the case described, is a bar to this action.

As our view of the first point disposes of the case, it is unnecessary to consider the second.

The Acts of the General Assembly of Missouri of 1865 and 1866 gave authority to the County Courts to borrow money and issue bonds for road purposes where "the amount of proposed expenditure had been submitted to a vote of the people." The County Court of Franklin County construed the provision on the subject of this submission as discretionary and not mandatory. Although this construction was wrong, the language used by the Legislature gave color to it.

To declare that a court "may, for the purpose of information," submit its proposed action to the people, is not the best nor the usual way of instructing the court not to do the thing proposed unless the tax payers approved it. Such language is well calculated to mislead anyone unaccustomed to the construction of statutes, and it cannot be a matter of surprise that this County Court treated the provision requiring a vote for information as discretionary. In doing this it doubtless acted as other County Courts in the State had done under like circumstances. That this election clause should cause litigation was natural enough, and we, therefore, find it presented for adjudication in the case of R. R. Co. v. Co. Ct. of Platte Co., 42 Mo., 171.

In that case it was held that the power conferred upon the County Courts could not be exercised without the proposed expenditure was approved by the voters. This decision of necessity alarmed contractors, who had in good *faith constructed roads, and equal- [*75 ly so the holders of bonds issued for the purpose of paying the contractors for their work.

To relieve these persons from the predicament in which they were placed the Legislature passed a curative Act. This Act, on account of special legislation being forbidden by the Constitution of the State, had to be general in its language, and without reference to any particular county. It was eminently just that it should be passed. The value of good roads for the common use of every one can hardly be overestimated. As a general thing, in this country, they are within the control and supervision of the township, county, or other local

treated as an original power or as curative and confirmatory legislation, it is equally valid, and this is the view taken of the subject by that court. Steines v. Franklin Co., 48 Mo., 175.

If the Act was. valid, the court had the power to take up the bonds and issue others in lieu thereof.

These bonds purport on their face to have been issued under the order of the [*77 County Court of Franklin County, made in pursuance of the authority conferred on the court by the Act of Assembly in question, and as the defendants claim to be innocent holders, and this is true for the purpose of the exception, the complainant has no standing in a court of equity. The decree of the Circuit Court is affirmed.



JEFFERSON PRATT and Harrison G. Brigham.

(See S. C., 22 Wall., 123-136.) Railroad company-agreement to carry beyond its own line-duty of-harmless error-connecting roads.

authorities. Ordinarily they are improved and kept in repair by means of local taxation, but this mode will not suffice when the wants of the community require that they should be macadamized. Especially is this true of a new State like Missouri. It seems that the County Court of Franklin engaged in a general scheme for macadamizing the roads of the county and bridging the streams in it. It is fair to presume that this enterprise was undertaken in obedience to a public sentiment on the subject, although the sense of the voters was not actually taken in conformity with the directions of the statute. This is the more probable on account of the well known mania of the people to run in debt for public improvements. The tax payers saw the large expenditures that were being made, and yet they took no steps to arrest them. Not until the works were completed and the securities had passed into the hands of bona fide purchasers did they move in the matter. If they had been incited to ac- THE OGDENSBURG & LAKE CHAMPLAIN tion as soon as the contract was made, they would have been saved a heavy debt, and innocent persons would not have suffered. In this state of the case the Legislature interposed and passed an Act to authorize County Courts to issue bonds for the purpose of paying for the building of bridges and macadamized roads which had been contracted for and built. This Act refers to past transactions, and two days after its passage a new road law was passed couched in such language that no one could mistake the character of the powers conferred. 76*] *Thus it will be seen the Legislature intended to cure past errors, but left no room for future ones. In this way it was enabled to relieve the hardship caused by the construction placed on the imperfect language of a former Legislature, and at the same time to put an end to expenditures like those made by Franklin County, unless a majority of the voters should approve of them. In many cases retroactive laws, although intended to effect a good purpose, have features of injustice about them. This is not that case. The bonds here were issued under a supposed authority, and no one interposed an objection. The tax pay ers rested until the mischief was done and then tried to get relief. It is certainly not unjust to them that the Legislature should say, "you must pay for an expenditure which you saw Argued Mar. 2, 3, 1875. Decided Mar. 29, 1875. incurred and could have prevented, but did not." If the County Court had acted wholly outside of its duties the aspect of the case might have been different. But the most that can be said is that the court mistook the nature of the power conferred upon it, and that this mistake would never have occurred if the Legislature had used language appropriate to the purpose.

There is no provision in the Constitution of Missouri restraining the General Assembly from conferring on counties the authority to borrow money to improve their roads without asking the consent of the voters. If so, why cannot the Legislature confer on counties the power to borrow money to pay for debts already contracted for this purpose?

We agree with the Supreme Court of Missouri, that the Act in question, being an authority to do a particular thing, may be construed as an original power. But whether it be

1. A railroad company may subject itself to the obligations of a carrier beyond its own line. 2. Where there was competent evidence before the jury that the railroad company undertook to carry property beyond its own line, and the jury have found such to be the fact, the other companies are to be deemed its agents, for whose faults it is responsible.

3. It is the duty of the carrier to furnish sultable vehicles for transportation; and if he furnishes unfit or unsafe vehicles he is not exempted from responsibility from the fact that the shipper knew them to be defective and used them. dence to show the carrier's contract.

4. The way-bill of the goods is admissible in evi

5. This court will not reverse a judgment on account of an error which clearly appears to have produced no injury, as where a question put to a witness was erroneous in form, but the error was harmless.

6. The rules of one of the connecting roads other affect the contract, although part of the goods were than the contracting railroad cannot influence or put on board on such connecting road. [No. 217.]

N ERROR to the Circuit Court of the United States for the Southern District of Massachusetts.

The history and facts of the case are fully stated by the court.

Messrs. C. H. Hill and Geo. O. Shattuck, for plaintiff in error:

The rule that holds the carrier liable only to the extent of his own route, and for the safe storage and delivery to the next carrier, is in itself so just and reasonable that we do not hesitate to give it our sanction.

Railroad Co. v. Mfg. Co., 16 Wall., 324, 21 L. ed. 301; 2 Kent, Com., 12th ed., 604, and n.

The law of Massachusetts, where this case was tried, is explicit to this effect.

NOTE.-Liability of common carrier for goods to be transported beyond its terminus-see note to R. Co. v. Mfg. Co., 21 L. ed. U. S. 297.

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