invested in the stock of a bank in Indiana, "It was argued on behalf of the plaintiff the policy of this wholesome provision of the that, even if the contract sued on was void, statute would be frustrated. The property because ultra vires and against public polof the local stockholders, so far as thus in- icy, yet that, having been fully performed on [369]vested, would not be managed by directors the part of the plaintiff, and the benefits of of their own selection, but by distant and it received by the defendant, for the period unknown persons. Another evil that might covered by the declaration, the defendant result, if large and wealthy banks were per- was estopped to set up the invalidity of the mitted to buy and hold the capital stock of contract as a defense to this action to recover other banks, would be that, in that way, the the compensation agreed on for that period. banking capital of a community might be But this argument, though sustained by deconcentrated in one concern, and business cisions in some of the states, finds no supmen be deprived of the advantages that at-port in the judgment of this court. tend competition between banks. Such ac- The view which this court has taken of the cumulation of capital would be in disregard question presented by this branch of the of the policy of the national banking law, as case, and the only view which appears to us seen in its numerous provisions regulating consistent with legal principles, is as folthe amount of the capital stock and the lows: methods to be pursued in increasing or reducing it. The smaller banks, in such a case, would be in fact, though not in form, branches of the larger one.

Section 5201 may also be referred to as indicating the policy of this legislation. It is in the following terms:

"No association shall make any loan or discount on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares, unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith; and stock so purchased or acquired shall, within six months from the time of its purchase, be sold or disposed of at public or private sale; or, in default thereof, a receiver may be appointed to close up the business of the association."

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In Central Transportation Company v. Pullman's Palace Car Co. 139 U. S. 24 [35: 55], after an examination of the authorities, the conclusion was thus stated by Mr. Justice Gray:

"A contract of a corporation which is ultra vires in the proper sense, that is to say, outside the object of its creation as defined in the law of its organization, and therefore beyond the powers conferred upon it by the legislature, is not voidable only, but wholly void and of no legal effect. The objection to the contract is, not merely that the corporation ought not to have made it, but that it could not make it. The contract cannot be ratified by either party, because it could not be authorized by either. No performance on either side can give the unlawful contract any validity, or be the foundation of any right of action upon it.

"When a corporation is acting within the general scope of the powers conferred upon it by the legislature, the corporation, as well as persons contracting with it, may be estopped to deny that it has complied with the[371] legal formalities which are prerequisites to its existence or to its action, because such requisites might in fact have been complied with. But when the contract is beyond the powers conferred upon it by existing laws, neither the corporation nor the other party to the contract can be estopped by assenting to it, or by acting upon it, to show that it was prohibited by those laws."

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contract made by a corporation beyond the | It is doubtless within the scope of the Comp-
scope of its corporate powers is unlawful troller's duty, when informed by the reports
and void, and will not support an action, of the bank that such an investment has been
rests, as this court has often recognized and made, to direct that it be at once disposed
affirmed, upon three distinct grounds: The of, but the Comptroller's act in ordering an
obligation of anyone contracting with a cor- assessment, while conclusive as to the neces-
poration to take notice of the legal limits sity for making it, involves no judgment by
of its powers; the interest of the stockhold him as to the judicial rights of parties to be
ers not to be subject to risks which they have affected. While he, of course, assumes that
never undertaken, and, above all, the inter- there are stockholders to respond to his or-
est of the public that the corporation shall der, it is not his function to inquire or de-
not transcend the powers conferred upon it termine what, if any, stockholders are ex-
by law."

The conclusion reached was thus expressed:

"The claim that the bank, in consequence [872]of the receipt by it of dividends on the stock of the savings bank, is estopped from questioning its ownership and consequent liability, is but a reiteration of the contention that the acquiring of stock by the bank, under the circumstances disclosed, was not void but merely voidable. It would be a contradiction in terms to assert that there was a total want of power by any act to assume the liability, and yet to say that by a particular act the liability resulted. The transaction being absolutely void could not be confirmed or ratified."

Undoubtedly, the obligation is declared by the statute to attach to the ownership of the stock, and in that sense may be said to be statutory. But as the ownership of the stock, in most cases, arises from the voluntary act of the stockholder, he must be regarded as having agreed or contracted to be subject to the obligation.

However, whether, in the case of persons sui juris, this liability is to be regarded as a contractual incident to the ownership of the stock, or as a statutory obligation, does not seem to present a practical question in the present case.

The judgment of the Circuit Court of Appeals is reversed, the judgment of the Circuit Court is also reversed, and the cause is remanded to that court with directions to enter a judgment in conformity with this opinion.

WILLIAM M. PRICE, Administrator of
Henry C. Miller, Deceased, Appt.,

In the present case it is sought to escape the force of these decisions by the contention that the liability of the stockholder in a national bank to respond to an assessment in case of insolvency is not contractual, but statutory.


Under the act of March 3, 1891, a claimant may recover the value of his property taken from him by the Indians, but cannot recover consequential damages to other property resulting from the taking.


The jurisdiction of the court of claims cannot be enlarged by implication.


It is argued, on behalf of the receiver, that the object of the statute was to afford a speedy and effective remedy to the creditors of a failed bank, and that this object would be defeated in a great many cases if the Comptroller were obliged to inquire into the [373]validity of all the contracts by which the registered shareholders acquired their respective shares.

The force of this objection is not apparent.


UNITED STATES and the Osage Indians.

(See S. C. Reporter's ed. 373–379.)

Act of March 3, 1891-jurisdiction of court of claims-property destroyed by Indians -construction of the act.

Consequential damages to property not taken or destroyed are not within the scope of the act authorizing recovery for damages to property taken or destroyed.


The terms "damaged or destroyed" in the act of March 3, 1885, respecting allowances by the Interior Department of claims for Indian depredations, do not apply to property not damaged or destroyed, but which the owner was prevented from sending to market because his means of transportation were destroyed.

If the previous reasoning be sound, whereby the conclusion was reached that, by reason of the limitations and provisions of the national banking statutes, it is not competent for an association organized thereunder

[No. 247.]


to take upon itself, for investment, owner- Argued April 19, 1899. Decided May 15,
ship of such stock, no intention can be rea-
sonably imputed to Congress to subject the
stockholders and creditors thereof, for whose
protection those limitations and provisions
were designed, to the same liability by rea-
son of a void act on the part of the officers
of the bank, as would have resulted from a
lawful act.

PPEAL from a judgment of the Court of

Claims in favor of William M. Price, administrator, etc., against the United States et al. for the taking of certain property of the claimant by the Osage Indians. Affirmed.

See same case below, 33 Ct. Cl. 106.

Statement by Mr. Justice Brewer: This case comes to us on appeal from the Court of Claims. The matter of dispute is disclosed by the second and fourth findings of the court, which are as follows:

Second. "On the 26th day of June, 1847, near the Arkansas river, on the route from western Missouri to Santa Fé, at a place in

what is now the state of Kansas, Indians be- | R. Co. v. Minnesota, 134 U. S. 456, 33 L. ed. longing to the Osage tribe took and drove 980, 3 Inters. Com. Rep. 209. away 32 head of oxen, the property of said decedent, which at the time and place of tak[374]ing *were reasonably worth the sum of four hundred dollars ($400).

The purpose of the statute of 1891 was remedial, and the construction which the court of claims placed upon it in the case at bar defeats the primary purpose of the enactment.

United States v. Northwestern Express Stage & Transp. Co. 164 U. S. 686, 41 L. ed 599; United States v. Gorham, 165 U. S. 316, 41 L. ed. 729; Corralitos Stock Co. v. United States, 33 Ct. Cl. 342; Salois v. United States, 32 Ct. Cl. 68.

"At the time said oxen were taken they were being used by said decedent in the transportation of goods along the route aforesaid, and in consequence of such taking decedent was compelled to abandon the trip and to sell his portion of said goods and four (4) wagons belonging to him for the sum of one thousand two hundred dollars ($1,200).

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Messrs. Frank B. Crosthwaite and John G. Thompson, Assistant Attorney General, for appellees.

*Mr. Justice Brewer delivered the opin-[374] ion of the court:

The fourth finding simply shows that a claim was presented to the Interior Department and evidence filed in support thereof. the presentation of the claim and of the filThe petition alleges, not merely the fact of ing of evidence to sustain it, but also an award by the Secretary of the amount of $6,800, a sum covering both the value of the property taken by the Indians and the conse quential damages resulting therefrom. A demurrer by the defendants having been overruled, a traverse was filed, denying all the allegations of the petition. Taking the[375] pleadings with the findings we might justly assume that there had never been any award by the Secretary of the Interior, but only a presentation of a claim and evidence in support thereof; but we notice that the court of claims speaks of the award as though it was a fact found. We feel, therefore, constrained to consider the case on that basis.

The conclusions of the Secretary, both as to liability and amount, were placed before the court for consideration by the election of the defendants to reopen the case. This election opened the whole case. Leighton v. United States, 161 U. S. 291 [40: 703].

The liability of the defendants is not disputed. The single question presented is as to the amount which may be recovered. The value of the property taken was awarded, and the only question is whether the plaintiff was entitled, not merely to the value of that property, but also to the damages to other property which resulted as a consequence of the taking. The property which was not taken or destroyed, which remained in the possession of the plaintiff's intestate, which he could do with as he pleased, the title and possession of which were not disturbed, was, as the findings show, reasonably worth $7,600. Because out in the unoccupied terri tory in which the taking of the oxen took place there was no market, and because he

1 no means of transporting the property ken to a convenient market, he was to the whim or caprice of a passing and sold it to him for $1,200. The by entailed upon him he claims to der the provisions of the statute of 01. 20 US Stat. at. L. chap.

IT to recover is a

purely statutory right. The jurisdiction of the court of claims cannot be enlarged by implication. It matters not what may seem to this court equitable, or what obligation we may deem ought to be assumed by the government, or the Indian tribe whose members were guilty of this depredation, we cannot go beyond the language of the statute and impose a liability which the government has not declared its willingness to assume. It is useless to cite all the authorities, for they are many, upon the proposition. It is an axiom of our jurisprudence. The govern[376]ment *is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it. See, among other cases, Schillinger v. United States (155 U. S. 163, 166 [39: 108, 110]), in which this court said: "The United States cannot be sued in their courts without their consent, and in granting such consent Congress has an absolute discretion to specify the cases and contingencies in which the liability of the government is submitted to the courts for judicial determination. Beyond the let ter of such consent the courts may not go, no matter how beneficial they may deem or in fact might be their possession of a larger jurisdiction over the liabilities of the


the court to an inquiry into these matters doubtless many questions of difficulty might arise, but as it has only declared its willing ness to subject the government to liability for property taken or destroyed we may not go beyond that and adjudge a liability not based upon the taking or destruction of property, but resulting from the destruction or taking of certain property to other property not taken or destroyed. Questions, such as arose in Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166 [20: 557], as to the scope of constitutional limitations upon the right to take property without full compensation, are not pertinent to the present inquiry; for, while if the court had free hand and could adjudge a liability upon the gov ernment commensurate to the wrong done, one conclusion might follow therefrom, yet we are limited by the other fact that the liability of the government to suit is a matter resting in its discretion, and cannot be enlarged beyond the terms of the act permitting it. Consequential damages to property not taken or destroyed are not within the scope of the act authorizing recovery for damages to property taken or destroyed.

We have thus far considered the case as though it were one de novo and in no way gov-affected by prior proceedings in the Interior Department. As heretofore indicated, notNow the jurisdiction given by the act of withstanding the limited scope of the find1891 to the court of claims is over "all ings, we think we ought, in view of the opinclaims for property of citizens of the United ion of the Court of Claims, to consider the States taken or destroyed by Indians," etc. case in the attitude of one for which an So far as any property was taken or de- award had been made by the Secretary of stroyed by the Indians the judgment of the the Interior; that award including, not court of claims awards full compensation merely damages for the property taken and therefor, and no question is made as to the destroyed, but also what, as we have shown, judgment in that respect. The single con- were merely consequential damages. Here tention of the plaintiff is that because of the we are met by the contention of the plaintiff taking of certain property the value of other that larger jurisdiction is given to the court property not taken or destroyed was, under of claims in respect to matters thus deterthe conditions surrounding the petitioner mined by the Secretary of the Interior. Beand such property, diminished. This dim-yond the general jurisdiction given to the inution in value did not arise because of any extent heretofore indicated by the quotachange in its quality or condition, but sim- tion from the statute is this, expressed in ply because the petitioner left in possession the subsequent part of the same section: of that property was, in consequence of the taking away of the means of transportation, unable to carry it to a place where its full value could be realized. In other words, the damages which he thus claims do not consist in the value of property taken or destroyed, but are those which flow in consequence of the taking to property which is neither taken nor destroyed. In brief, he asks consequential damages. Now, as we have said, we are not at liberty to consider whether there may not be some equitable claim against the government or the Indians for such consequential damages. We are limited to the statutory description of the obligations which the government is willing to assume and which it has submitted to the court of claims for determination. We may not enter into the wide question of how far an individual taking or de[377]stroying property *belonging to another may be liable for all the damages which are consequential upon such injury or destruction. If Congress had seen fit to open the doors of

"Second. Such jurisdiction shall also extend to all cases which have been examined[378] and allowed by the Interior Department and also to such cases as were authorized to be examined under the act of Congress making appropriations for the current and contingent expenses of the Indian Department, and for fulfilling treaty stipulations with various Indian tribes for the year ending June thirtieth, eighteen hundred and eightysix, and for other purposes, approved March third, eighteen hundred and eighty-five, and under subsequent acts, subject, however, to the limitations hereinafter provided."

It is contended that in cases coming under this clause the court of claims may award all damages which the Secretary of the Interior has or might have given to the petitioner. Conceding, for the purpose of the argument, that this contention is justified, we cannot see that therefrom any new measure of liability is established, or, at least, none that will avail this petitioner. The act of March 3, 1885 (23 U. S. Stat. at

L. chap. 341, page 376), which provided for the investigation by the Interior Department of claims on account of Indian depredations, and under which it is alleged that the Secretary acted in making his award, authorized the Secretary "to determine the kind and value of all property damaged or destroyed by reason of the depredations aforesaid." The contention is that the terms "damaged or destroyed" enlarge the scope of the liability assumed by the government. We are unable to perceive that this is of any significance in this case. The property left in the possession of the petitioner was neither damaged nor destroyed by the action of the Indians in taking away the other property. Its inherent intrinsic value was in no manner disturbed. The damages were not to the property, considered as property, but simply consequential from the wrong done, and consisted solely in the fact that the petitioner, wronged by the taking away of certain property, was unable to realize the real value of property not taken, damaged, or destroyed. Nothing was done by the Indians to disturb the intrinsic value of the property left in possession of the petitioner. It remained his with full right of control and disposition, in no [379]manner *marred or changed in value, and the sum of the injury results only from the fact that he could not remove it to a suitable market. The property, in itself considered, was neither taken, damaged, nor destroyed. The only result was that his ability to make use of that value was taken away because his means of transportation were destroyed. The damages were, therefore, consequential, and not to the property itself. We do not perceive how, under the statute, the liability of the government was enlarged by this


The judgment of the Court of Claims is therefore affirmed.

Upon the trial, counsel for the railway company asked the court to instruct the jury to return a verdict for the defendant, upon the ground that the undisputed testimony showed that the deceased, as he approached the railway crossing, did not look up or down the track, and did not see the train which was approaching in full view, and therefore was guilty of such contributory negligence as to preclude the plaintiffs from recovering damages. This the court refused, but left the case to the jury under the following instruction, to which exception was taken: "Where a party cannot see the approach of COM-a train on account of intervening objects, he may rely upon his ears, and whether he should have stopped and listened under the circumstances is for you; and if you believe from the evidence that deceased, Thomas A. Freeman, acted as a man of ordinary care and prudence would have done as he approached the crossing, then your verdict should be for the plaintiffs, in case you find that the defendants were negligent and that the collision was due to their negligence."

Counsel further excepted to the following instruction: "There has been some testimony tending to show that the deceased might have seen the approaching train some feet before he reached the track. If you believe that the deceased could have seen the approaching train when he was within a few De-feet of the track, then it is for you to say, under all the circumstances, whether he used reasonable precaution and care to avoid the collision."

Mr. Justice White, Mr. Justice Peckham, and Mr. Justice McKenna dissented.

PANY, et al., Plffs. in Err.,


(See S. C. Reporter's ed. 379–384.)

Contributory negligence.

Where a person approached a railway crossing well known to him, when a coming train was

In full view, and he could have seen it while

40 feet distant from the track if he had used
his senses, but did not look, or took the
chance of crossing the track before the train
reached him, and was killed, he was guilty of
contributory negligence.

[No. 241.]

review a judgment of that court affirming the judgment of the Circuit Court of the United States for the District of Washington in favor of Serette Freeman et al., widow and minor children of Thomas A. Freeman, against the Northern Pacific Railway Company for damages for the death of said Thomas A. Freeman caused by the negligence of said railway company. Reversed and cause remanded, with directions to grant a new trial.

See same case below, 48 U. S. App. 757, 83 Fed. Rep. 82, 27 C. C. A. 457.

Argued and Submitted April 13, 1899. cided May 15, 1899.


'N ERROR to the United States Circuit
Court of Appeals for the Ninth Circuit to

Statement by Mr. Justice Brown:

*This was an action by the widow and mi-[380] nor children of Thomas A. Freeman, originally brought in the circuit court for the District of Washington against the receiver of the Northern Pacific Railroad Company, and subsequently, after the discharge of the receiver, continued against the Northern Pacific Railway Company, purchaser at the foreclosure sale, which, by virtue of the provisions of the decree of sale, had assumed the liabilities of the receiver. The object of the action was to recover damages on account of the death of Thomas A. Freeman, which was alleged to have occurred by reason of the negligence of the company.

The accident occurred at a highway crossing near the eastern corporate limits of the town of Elma, in the county of Chehalis, in the state of Washington, at a point where the highway crosses the railway track nearly at right angles.

Exception was also taken to an instruc

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