along the mid-channel of Red river, or along the south bank of said river?

The first is a question of res judicata, and, obviously, if it is answered in the affirmative, the second becomes immaterial.

285, 291, 12 Sup. Ct. Rep. 488. It was set at rest when followed by the making of a final decree. United States v. Texas, 162 U. S. 1, 90, 91, 40 L. ed. 867, 902, 903, 16 Sup. Ct. Rep. 725.

That the court had jurisdiction over the parties is obvious from the fact that the suit was brought in behalf of the United States, pursuant to an act of Congress (Act of May 2, 1890, chap. 182, § 25, 26 Stat. at L. 81, 92), that a bill of complaint and an amended bill were filed, to each of which the state of Texas demurred, and also answered; and that the United States filed a replication (162 U. S. 21-23), and both parties introduced evidence and participated in the hearing.

There is identity of parties between the former suit and the present one, so far as concerns the proprietary interest now set up by the United States. As to governmental jurisdiction, the state of Oklahoma has succeeded in part to the position formerly held by the United States, and therefore is in privity with

The general principle, applied in numerous decisions of this court, and definitely accepted in Southern Pacific R. Co. v. United States, 168 U. S. 1, 48, 49, 42 L. ed. 355, 376, 377, 18 Sup. Ct. Rep. 18, is, that a question of fact or of law, distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense in a suit or action between parties sui juris, is conclusively settled by the final judgment or decree therein, so that it cannot be further litigated in a subsequent suit between the same parties or their privies, whether the second suit be for the same or a different cause of action. As was declared by Mr. Justice Harlan, speaking for the court in the case cited (p. 49): "This general rule is demanded by the very object for which civil courts have been estab-it. lished, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essential to the maintenance of social order; for the aid of judicial tribunals would not be invoked for the vindication of rights of person and property if, as between parties and their privies, conclusiveness did not attend the judgments of such tribunals in respect of [86] all matters properly put in issue and actually determined by them."

[87] The former decision was based upon final hearing, on issue joined between the parties and upon evidence taken by both; and, as stated, it resulted in a final decree (162 U. S. 90, 91).

Therefore it remains only to consider whether the "right, question, or fact" now in controversy-the location of the boundary line with respect to the course of the Red river, and whether, by the true construction of the Treaty of 1819, its location is along the south bank or in mid-channel-was put in issue and diIn order to aid us in ascertaining rectly determined in the former case. whether the question of boundary loca- That the final decree purports to detertion now at issue was settled by the de-mine it is obvious from a reading of the cision and decree in the Greer county case, the parties have stipulated that "That the territory east of the 100th language employed (162 U. S. 90): the entire record in that case, includ- meridian of longitude, west and south ing pleadings, stipulations, testimony, of the river now known as the North briefs, and documents of every charac- Fork of Red river, and north of a line ter, now on file in this court, and the orders and decrees of the court therein, following westward, as prescribed by the are to be considered in evidence for all Treaty of 1819 between the United States and Spain, the course and along the south purposes. They have been examined and considered accordingly. bank, both of Red river and of the river now known as the Prarie Dog Town Fork, or South Fork of Red river, until such line meets the 100th meridian of longitude,-which territory is sometimes called Greer county,-constitutes no part of the territory properly included within or rightfully belonging to Texas at the time of the admission of that state into the Union, and is not within the limits nor under the jurisdiction of that state, but is subject to the exclusive ju

The jurisdiction of the court over the subject-matter of that suit-its original jurisdiction over a suit in equity brought by the United States against one of the states to determine the boundary between such state and a territory of the United States-was put at issue by a demurrer to the bill of complaint in that case, and decided in favor of the jurisdiction. United States v. Texas, 143 U. S. 621, 641 et seq., 36 L. ed.

risdiction of the United States of Amer- | 100th meridian. But the bill and the ica."

The literal meaning of this is not seriously disputed; but it is insisted that, so far as it describes the boundary line of the treaty as following the south bank of the river, it was outside the issues litigated, and hence is not conclusive upon the parties to this cause,-in effect, that, in construing the decree, the words "along the south bank" should be excluded from consideration. Clearly, the inclusion of those words amounted to a decision that the correctness of that particular definition of the boundary [88] was within the issues in the cause. But we concede that, in a subsequent suit upon a different cause of action, the question whether the matter decided on the former occasion was within the issues then proper to be decided, or was presented and actually determined in the course of deciding those issues, is open to inquiry, and that, unless it be answered in the affirmative, the matter is not res judicata.

What was involved and determined in the former suit is to be tested by an examination of the record and proceedings therein, including the pleadings, the evidence submitted, the respective contentions of the parties, and the findings and opinion of the court; there being no suggestion that this is a proper case for resorting to extrinsic evidence. Russell v. Place, 94 U. S. 606, 608, 24 L. ed. 214, 215; Last Chance Min. Co. v. Tyler Min. Co. 157 U. S. 683, 688, et seq., 39 L. ed. 859, 862, 15 Sup. Ct. Rep. 733, 18 Mor. Min. Rep. 205; Baker v. Cummings, 181 U. S. 117, 124-130, 45 L. ed. 776, 779782, 21 Sup. Ct. Rep. 578; National Foundry & Pipe Works v. Oconto Water Supply Co. 183 U. S. 216, 234, 46 L. ed. 157, 169, 22 Sup. Ct. Rep. 111.

The Act of May 2, 1890 (26 Stat. at L. 81, 92, chap. 182), briefly recited the existence of a controversy between the United States and the state of Texas as to the ownership of the land known as Greer county, and directed the Attorney General to bring suit in this court in order that the rightful title to that land might be finally determined. Referring to this, and to the history and nature of the controversy, it is contended that the pleadings should be so construed as to confine the issue to the identification of one of the forks of the Red river with the Red river of the treaty. It is true that the principal matter in dispute was the claim of the United States to ownership of the tract of land lying between the forks, and bounded on the west by the

amended bill, after reciting article 3 of the treaty, defining the boundary line between the United States and Spain, by which both parties to the cause were bound, and recounting [89] the history of the controversy, concluded with a prayer that the bill might be filed and Texas made a defendant thereto, "to the end and for the purpose of determining and settling the true boundary line between the United States and the state of Texas, and to determine and put at rest questions which now exist as to whether the Prairie Dog Town Fork or the North Fork of Red river, as aforesaid, constitutes the true boundary line of the Treaty of 1819;" and that, upon final hearing, a decree might be entered establishing complainant's rights as set up in the bill; and there was a prayer for general relief. The contention now made is based upon an unduly narrow interpretation of the act and of the pleading. Granting that the substantial controversy related to the ownership of and jurisdiction over the tract lying between the forks, it was essential to a complete and precise disposition of that controversy that the court should define with certainty the bounds of the tract. If it were to be awarded to the state of Texas, an accurate definition of its northerly boundary was essential; if to the United States, like accuracy in defining its southerly boundary was called for; in either case, the line to be defined was "the true boundary line between the United States and the state of Texas." And if, as suggested, the river is to be regarded as navigable (upon which we express no opinion), so that a boundary line separating national territory from that of the state, if described as following the river, without more, would, by implication, follow the middle of the main navigable channel, as in a case between adjoining states (Iowa v. Illinois, 147 U. S. 1, 13, 37 L. ed. 55, 59, 13 Sup. Ct. Rep. 239; Arkansas v. Tennessee, 246 U. S. 158, 171, 62 L. ed. 638, 646, L.R.A.1918D, 258, 38 Sup. Ct. Rep. 301), so much the more was specific mention of the bank essential to an accurate description of the tract in issue, if the bank was the true line, instead of mid-channel. And if, at the termination of the suit, the line were left undefined, a ground of further controversy would remain; and it is as foreign to correct [90] practice as to the principles of equity that a final decree should be pregnant with further litigation.

Even less substantial is the suggestion

that the language of § 25 of the Act of 1890 (26 Stat. at L. 92, chap. 182), authorizing suit to determine the title to the tract "lying between the North and South Forks of the Red river," etc., and the use of that phrase in the amended bill, had the effect of excluding from the issue land south of the middle of the south fork. Upon so narrow an interpretation, the controversy might as well be confined to the upland between the forks, leaving the United States without claim to any part of the bed of the stream, if the south fork proved to be the river of the treaty. Of course, the phrase merely pointed out the tract in dispute, without attempting to delimit it.

The contention that the evidence and the arguments in the Greer county case raised no controversy as to whether the boundary followed the mid-channel or the south bank of the river is not well founded. The Treaty of 1819, and a mass of historical and other data bearing upon its proper interpretation, were before the court. It appeared that the treaty was negotiated at Washington between the Spanish Minister, Don Luis de Onis, and the United States Secretary of State, John Quincy Adams; M. de Neuville, the French Minister, acting at times as an intermediary. The state of Texas itself introduced authenticated extracts from the instructions of the Spanish Minister, and excerpts from correspondence between him and Mr. Adams, from which latter it appeared that the question whether the boundary should follow the middle of the Sabine and Red rivers, or the westerly bank of the former and the southerly bank of the latter, was one of the points under discussion; the Spanish Minister proposing the middle lines, Mr. Adams the banks.

Furthermore, in the principal brief for the state of Texas, reference was made to entries in Mr. Adams's diary, found in his Memoirs, vol. 4, pp. 233 280, in connection [91] with which the brief declared: "An objection was long persisted in by Spain that instead of the banks of the rivers named being boundaries the middle of the river should be the dividing line (Adams, supra). This objection was at last abandoned," etc. The diary itself, in the pages thus referred to, abounds in statements to the effect that the representative of Spain, during the course of the negotiation, insisted that the middle of the rivers should be taken for the boundary, Mr. Adams firmly insisting upon "the west

ern and southern banks," and at last prevailing. J. Q. Adams's Memoirs, vol. 4, pp. 255, 256, 261, 264, 266, 267, 270. It is true these references were made by counsel for Texas principally with the object of showing the important part that the Melish map (mentioned in the treaty) played in the negotiations; but it is impossible to escape the conclusion that both counsel and the court understood that the question whether the boundary line, where it followed the Sabine and Red rivers, should be so located as to establish the United States as owner of the rivers, or so as to divide the ownership between the United States and Spain, figured to an important extent in the negotiations, was disposed of by the treaty, and hence was vital to the correct location of the boundary line as between the litigants. If the point was not controverted, it was only because counsel for Texas in effect conceded that the treaty line ran along the south bank of the Red river. It may have seemed, at that time, a matter of no great moment.

Finally, the precise matter was discussed in the opinion of the court, and was made the subject of a finding which was carried into the final decree. In the course of an outline of the diplomatic correspondence and negotiations that preceded the making of the treaty, the court said (162 U. S. p. 27): "The Spanish Minister required that the boundary between the two countries shall be the middle of the rivers, and that the navigation of the said rivers [92] shall be common to both countries.' Mr. Adams replied that the United States had always intended that 'the property of the river should belong to them,' and he insisted on that point 'as an essential condition, as the means of avoiding all collision, and as a principle. adopted henceforth by the United States in its treaties with its neighbors.' agreed, however, 'that the navigation of the said rivers to the sea shall be common to both people.'" Citing Annals of Congress, Appendix, 15th Cong., 2d Sess., 2120, 2121, 2123. The opinion then proceeded to set forth (pp. 27-29) the third and fourth articles of the treaty, in the former of which occurs the language that Mr. Adams had insisted upon as carrying out the purposes of the United States, that "the property of the river should belong to them;" and at a later point the opinion declared (p. 37): "The two governments certainly intended that the line should be run from the Gulf along the western bank of


the Sabine river, and after it reached Red river, that it should follow the course of that river, leaving both rivers within the United States."

And, having decided the case in favor of the United States, the court embodied in the final decree a description of the boundary line, in terms quoted above.

To sum it up, we find that the question of the true location of the boundary between the territory of the United States and Texas, where it followed the Red river bordering upon Greer county, and the question whether the boundary followed the middle or the south bank of the river, were within the issues made by the pleadings, and so recognized by both parties, as well as by the court; that, by the concession of both, the location was to be determined according to the true effect and meaning of the Treaty of 1819; that, in elucidation of the matter, the treaty, and much historical evidence of the negotiations that led up to it, were introduced, discussed by counsel in argument, and referred to in the opinion of the court; [93] and that the point was directly determined by the court and the determination made a part of its final decree. By every test that properly can be applied, the matter is res judicata.

And, of course, it not only concludes the parties with respect to that part of the boundary which borders upon what was called Greer county, but settles the construction of article 3 of the Treaty of 1819 as to the entire course of the Red river where it marks the boundary between the territory then owned by the United States and that of the state of Texas.

[merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small]

1. The Delaware statutes which afford a nonresident individual defendant in a

suit begun by foreign attachment an opportunity to appear and defend only in case he gives bail or security for the discharge of the property seized to the value of such property and costs do not deny due process of law, even though defendant may have no resources or credit aside from the property attached.

[For other cases, see Constitutional Law, IV. b, 8, b, in Digest Sup. Ct. 1908.] Constitutional law equal protection of the laws discrimination between individuals and corporation — foreign attachment.

the laws results from the provisions of the
2. No denial of the equal protection of
Delaware foreign attachment laws, under
which a nonresident individual defendant is
debarred from appearing and defending
without first giving special security, while
a foreign corporate defendant may appear
and answer without giving any security ex-
cept for the lien of the process upon the
property attached.
[For other cases, see Constitutional Law,

IV. a, 7, in Digest Sup. Ct. 1908.]

Constitutional law privileges and


foreign attachment. izens of the United States are not uncon3. Privileges and immunities of citstitutionally impaired by the Delaware foreign attachment statutes which debar a nonresident individual defendant from appearing and defending unless he first gives [For other special security.

cases, see Constitutional Law, IV. a, 7, in Digest Sup. Ct. 1908.] Constitutional Law privileges and Federal origin.


Having reached this conclusion upon the first of the two questions proposed for decision, it is unnecessary to consider the second, which is whether the treaty, by proper construction, fixes the 4. Privileges and immunities referred boundary along the mid-channel or the to in U. S. Const., 14th Amend., are only south bank. The matter being res judicata, as the result of the decree in the former suit, it is of no consequence whether it was correctly decided or not. We say this without intending to intimate the least doubt about the propriety

of that decision.

Note. As to what constitutes due process of law, generally-see notes to People v. O'Brien, 2 L.R.A. 255; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, 5 L.R.A. 359; Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson v. Yewdall, 24 L. ed. U. S. 436, and Wilson v. North Carolina, 42 L.

The parties may submit within thirty days a proper form of decree for carry-ed. U. S. 865. ing this decision into effect.

It is so ordered.

Mr. Justice Clarke took no part in the consideration or decision of this case.

As to constitutional equality of privileges, immunities, and protection, generally-see note to Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. 14 L.R.A. 579.

such as owe their existence to the Federal | stituted the essential features of the cusgovernment, its national character, its Con- tom of London. stitution, or its laws.

[For other cases, see Constitutional Law, IV.

a, 1, in Digest Sup. Ct. 1908.]

[No. 99.]

Parker, 6 Houst. (Del.) 544, 553; Duke Locke, Foreign Attachm. 3; Reybold v. of York's Laws, p. 10; Sergeant, Foreign Attachm. pp. 24, 25; Martin v. Drydon, 1 Ill. 211; Watson v. Noblett, 65 N. J.

Argued November 18, 1920. Decided April L. 506, 47 Atl. 438; Goldmark v. Mag

11, 1921.

N ERROR to the Supreme Court of the State of Delaware to review a judgment which affirmed a judgment of the Superior Court for Newcastle County, in that state, in favor of plaintiffs in an action of foreign attachment. Affirmed.

See same case below, 7 Boyce (Del.) 297, 105 Atl. 838, 849.

The facts are stated in the opinion. Mr. Louis Marshall argued the cause and filed a brief for plaintiff in error: The essential elements of due process, namely, the right to appear and to be heard in defense of the action in which Ownbey's property was attached, are lacking here.

People ex rel. Eckerson v. Haverstraw, 151 N. Y. 75, 45 N. E. 384; Rochester v. Holden, 224 N. Y. 396, 121 N. E. 102; Hovey v. Elliott, 167 U. S. 409, 42 L. ed. 215, 17 Sup. Ct. Rep. 841; McVeigh v. United States, 11 Wall. 259, 20 L. ed. 80; Windsor v. McVeigh, 93 U. S. 274, 23 L. ed. 914; Scott v. McNeal, 154 U. S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108; Roller v. Holly, 176 U. S. 398, 44 L. ed. 520, 20 Sup. Ct. Rep. 410; Central of Georgia R. Co. v. Wright, 207 U. S. 127, 52 L. ed. 134, 28 Sup. Ct. Rep. 47, 12 Ann. Cas. 463; Londoner v. Denver, 210 U. S. 385, 52 L. ed. 1112, 28 Sup. Ct. Rep. 708; Denver v. State Invest. Co. 49 Colo. 244, 33 L.R.A. (N.S.) 395, 112 Pac. 789; Wetmore v. Karrick, 205 U. S. 141, 51 L. ed. 745, 27 Sup. Ct. Rep. 434; Ochoa v. Hernandez y Morales, 230 U. S. 161, 57 L. ed. 1437, 33 Sup. Ct. Rep. 1033; Riverside & D. River Cotton Mills v. Menefee, 237 U. S. 189, 59 L. ed. 910, 35 Sup. Ct. Rep. 579; Pennington v. Fourth Nat. Bank, 243 U. S. 270, 272, 61 L. ed. 714, 715, L.R.A.1917F, 1159, 37 Sup. Ct. Rep. 282; Saunders v. Shaw, 244 U. S. 317, 61 L. ed. 1163, 37 Sup. Ct. Rep. 638; Coe v. Armour Fertilizer Works, 237 U. S. 413, 59 L. ed. 1027, 35 Sup. Ct. Rep. 625; Greig v. Ware, 25 Colo. 184, 55 Pac. 163; Riglander v. Star Co. 98 App. Div. 101, 90 N. Y. Supp. 772.

The Delaware statute, as interpreted, does not provide the safeguards that con

nolia Metal Co. 65 N. J. L. 341, 47 Atl. 720; Cord v. Newlin, 71 N. J. L. 428, 59 Atl. 22; 1 Shinn, Attachm. & Garnishment, §§ 95, 191, 221, 442, 449; 20 Laws of England (Halsbury) p. 286; London Corp. v. London Joint Stock Bank, L. R. 5 C. P. Div. 505, L. R. 6 App. Cas. 393, 15 L. J. Q. B. N. S. 594, 45 L. T. N. S. 81, 29 Week. Rep. 870; Pennsylvania Steel Co. v. New Jersey Southern R. Co. 4 Houst. (Del.) 578.

If the general course of legislation on a particular subject may of itself be regarded as justifying an argument in support of the constitutionality of such legislation (Capital Traction Co. v. Hof, 174 U. S. 43, 43 L. ed. 888, 19 Sup. Ct. Rep. 580; Lemieux v. Young, 211 U. S. 493, 53 L. ed. 299, 29 Sup. Ct. Rep. 174; Rast V. Van Deman & L. Co. 240 U. S. 363, 364, 60 L. ed. 689, 690, L.R.A.1917A, 421, 36 Sup. Ct. Rep. 370, Ann. Cas. 1917B, 455), then an equally potent argument in favor of the unconstitutionality of a statute may be deduced from the fact that it is opposed to the general trend of legislation on the subject-matter to which it relates.

In any event, there is such a repugnancy between the Delaware statute, as interpreted, and the 14th Amendment, that the latter must be regarded as having modified the statute so as to eliminate the unconstitutional features of the law.

Neal v. Delaware, 103 U. S. 370, 26 L. ed. 567; Ex parte Yarbrough, 110 U. S. 665, 28 L. ed. 278, 4 Sup. Ct. Rep. 152; Guinn v. United States, 238 U. S. 363, 59 L. ed. 1318, L.R.A.1916A, 1124, 35 Sup. Ct. Rep. 926; Kentucky R. Tax Cases, 115 U. S. 321-334, 29 L. ed. 403417, 6 Sup. Ct. Rep. 57; East St. Louis v. Amy, 120 U. S. 600, 30 L. ed. 798, 7 Sup. Ct. Rep. 739; Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173; Wilkins v. Jewett, 139 Mass. 29, 29 N. E. 214; Hamilton v. Kentucky Distilleries & Warehouse Co. 251 U. S. 162, 64 L. ed. 202, 40 Sup. Ct. Rep. 106; Municipal Gas Co. v. Public Service Commission, 225 N. Y. 97, P.U.R. 1919C, 364, 121 N. E. 772.

The Delaware statute deprived the plaintiff in error of the equal protection

« ForrigeFortsett »