gauger to duty at the said distillery and relieving from duty the plaintiff, who had been theretofore assigned to duty at the same distillery by the commissioner and by the same act of Congress.

The defendants admitted that the plaintiff was willing to continue in office, but the defendant White charged that he was a careless officer, and that if any attempt was or should be made to remove or dismiss him from the service, it would not be for the reason that he was of opposite politics to those of the collector.

The answer concludes:

misconduct *of his; that during the late war 3 of the Rebellion he served in the military service of the United States, and was honorably discharged therefrom; that availing himself of rule 9 of the Civil Service regulations, he made application to the Secretary of the Treasury to be reinstated to the position from which he had been removed; that defendants are informed that said petition, together with the requisition of the proper officer of the Treasury Department, were referred to the Civil Service Commission, and his eligibility having been properly certified by said commission, he was reinstated and reappointed by "Replying to allegation No. 13 in plaintiff's the Secretary of the Treasury. Said petition bill, the defendants again say that the de- was originally filed with E. M. Gilkeson, late fendant White claims no right or authority collector of internal revenue, and, together to remove the said plaintiff from office or to with the recommendation of said collector, appoint anyone in his place, and that he forwarded to the Commissioner of Internal [373] ever has claimed any such authority. The Revenue. The defendants insist that in makdefendants say that the defendants Hoult, ing said appointment or reinstatement the Sutton, Staubley, and Thayer, having been Secretary of the Treasury acted in strict conduly appointed to the positions respectively formity with the acts of Congress and the held by each of them by the Secretary of the rules and regulations of the Civil Service Treasury, that the right to hold said posi- Commission. The defendants Sutton, Staubtions cannot be questioned in this or any ley, and Thayer were similarly reinstated other collateral proceeding; that the question and reappointed as storekeepers and gauger. of whether there were or were not vacancies The defendant A. B. White says that the at the time these appointments were made recommendation made by him to the Comcannot be determined in this suit. Neither missioner of Internal Revenue relative to the of said defendants Hoult, Sutton, Staubley, or plaintiff was made prior to or on the 29th Thayer was appointed in place of the plain- day of September, 1897, and the said recomtiff. The appointment of neither could affect mendation was made in part because the said the plaintiff, and whether the Secretary of the plaintiff had been on duty for some time, and Treasury has more of these officers in com- in part for the reasons herein before stated. mission than he is entitled to have under the Said defendants further say that they believe law is not a question which can be raised by and charge that the reinstatement and ap the plaintiff in this suit. It cannot be ascer-pointment of said defendants Hoult, Sutton, tained in this proceeding whether or not 15 Staubley, and Thayer were not made by the per cent or any other number of officers are Secretary of the Treasury for political reanow in commission more than are sufficient sons, nor was the plaintiff relieved from duty to perform the duties of storekeepers or gaug- as aforesaid at the Hannis distillery by the ers in this collection district. This court, it is Commissioner of Internal Revenue for politarespectfully suggested, will not undertake to cal reasons, nor the said Thayer assigned to ascertain the number of distilleries in opera- duty at the said distillery for political reation and to be placed in operation in said col- sons." lection district and the number of storekeepers and gaugers to be placed on duty at such distilleries. It is submitted that these are questions to be determined by the Treasury Department, and must be supposed to have been determined before such appointments were made, and the appointments made in conformity to the interests and requirements of the public service. Defendants therefore deny that by the appointment of the defendants Hoult, Sutton, Staubley, and Thayer more storekeepers and gaugers were placed in commission than were suflicient to perform the duties of such officers in said district.

The cause having been heard upon the bi!!, the demurrer to the bill, the answer and a general replication thereto, the affidavits file! by the parties, and upon the plaintiff's motion to perpetuate the injunction theretofore granted, a final order was made "restraining and inhibiting the defendant White, *the col 375 lector of the district, the appointing power, the defendant Thayer, and all others, from in anywise interfering with the plaintiff H. C. Berry in the possession of his office and in the discharge of his duty as gauger at the Hanns distillery, located in the town of Martinsburg, West Virginia, until he shall be removed therefrom by proper proceedings had under the civil service act and the rules and

"The defendants deny that the appointment and qualification of said Hoult, Sutton, Staubley, and Thayer will make necessary regulations made thereunder or by judicia the removal of the plaintiff. The defendants, further answering, say that the defendant Hoult was on the day of —, 1889, appointed a United States gauger; that on the day of —, 1893, after having served about four years, and there having been a change of administration, he was removed from said position through no delinquency or

proceedings at law; and the said collector having applied heretofore to the court for leave to the commissioner to appoint temporarily a gauger pending this litigation, he, the said collector, is required and directed to recommend and the Commissioner of Internal Revenue to transfer the temporary gauger here tofore assigned, and to permit the said gauger

under a certain resolution of the council of September 15, 1885, prohibiting him from giving any lines for such work in the street with out submitting the question to the council; that said resolution was illegal and a breach of complainant's contract, and that interference by the mayor of the city with complainant's building said spur track was apprehended.

Upon these allegations a writ of injunction was prayed for, restraining the city from interfering with complainants in the work of building said spur track to connect the wharf above the transfer incline between Thalia and Terpsichore streets with the tracks of the railway between Thalia and Water streets, along the river front, and in the work of strengthening and filling up said wharf and driving piling to reach the same with said spar, and for a decree as prayed for in their original bill.

Upon this supplemental bill a restraining order was granted which, by agreement, was to stand as an injunction pending suit.

and to locate its terminus as aforesaid, and its election, on the contrary, to continue its road down the river to Gouldsboro and there cross the river, it never acquired the right to enjoy the privileges above mentioned, and hence that the repealing ordinances are valid. Second, that even if the rights in favor of the company above mentioned were not granted to it on a suspensive condition, they were clearly subject to a resolutory or dissolving condition arising from the obligation to cross at Westwego and to locate the terminus in the rear of the city at the point designated in the original *ordinance, the con-[332 tention being that the failure to do so within the period named in the ordinance authorized the city to treat the contract as dissolved and pass the repealing ordinances in question. The railroad company meets these propositions by denying that crossing at Westwego and the location of the terminus in the rear of the city, at the point named in the original ordinance, was made a condition suspending the operation of the grant of the rights above de-stated, and argues that even if it be conceded that the location of the terminus at the point originally pointed out created a condition, it was not a suspensive but a resolutory one. Although it is admitted that the happening of a resolutory condition dissolves the contract, yet such consequences, it is asserted, do dition, and cannot be availed of by one of not arise from the mere happening of the conthe contracting parties of his own will, since before the resolutory condition can be invoked it must be established by a suit brought that such condition has arisen and The assignments of error relate to three that the effect of its existence has been to subjects: First, the batture or space in front dissolve the contract. That is, the claim is of the City Park, embraced in the lease made that under the law of Louisiana a dissolving by the city to the railroad company in exe- or resolutory condition does not operate upon cution of the terms of the city ordinance; the contract proprio vigore, but requires the second, the construction of a track on Clai-judgment or decree of a court to give it effect, borne and Canal and the building on Clai-and that before finding a contract dissolved borne near Canal of a passenger depot; and, lastly, the wharfage rights claimed by the railroad company by ordinances 6695, 6732, in virtue of § 4 of ordinance No. 6938.

On the 23d day of June, 1891, a final eree in favor of complainants, granting in full the prayer of their bill, was rendered.

From this decree the city of New Orleans appealed.

Mr. Samuel L. Gilmore for appellant. Messrs. W. W. Howe and J. F. Dillon for appellees.

[331] Mr. Chief Justice Fuller delivered the opinion of the court:

The argument as to the first and second assignments is, that the right granted to the railroad company by ordinances 6695, 6732, and 6938, to extend its track from the point designated as its terminu?, in the rear of the city along Claiborne to Canal, and there to build a passenger depot, as also the lease, which, to carry out the ordinance, empowered the railroad company to use the batture in front of the park, and to construct its railroad along the edge thereof through certain designated streets to the rear of the city, were all granted to the railroad company as accessory rights, depending for their existence upon the crossing at Westwego and the location by the railroad company of its terminus in the rear of the city. In other words, that these rights were given to the railroad company, subject to conditions precedent, or, to use the language of the law of Louisiana, subject to suspensive conditions. It is further contended: First, that in consequence of the failure of the railroad company to cross at Westwego

in consequence of a resolutory condition, the court has the power to obviate the effect of the condition by giving further time to perform the act from which the condition is claimed to have arisen, if, in its judgment, the equities of the case so require.

The question which first arises is, Was the right of the railroad company to the property in front of the park and to the track on Claiborne street, including the construction of a passenger depot on Claiborne near Canal, subject to suspensive conditions? The Louisiana Civil Code provides as follows:

"Art. 2021. Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the event happen, it is a suspensive condition; if the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then a resolutory condition.

Art. 2022. Conditions, whether suspensive[333 or resolutory, are either casual, potestative, or mixed."

"Art. 2024. The potestative condition is that which makes the execution of the agreement depend on an event which it is in the

power of the one or the other of the contract-iana Code is the equivalent of the condition
ing parties to bring about or to hinder."
precedent at common law.

In defining the suspensive condition the Louisiana Code says:

"Art. 2043. The obligation contracted on a suspensive condition is that which depends either on a future and uncertain event, or on an event which has actually taken place, without its being yet known to the parties." These provisions of the Louisiana Code are like those of the Code Napoleon on the same subject. Arts. 1168, 1170, 1181.

In Cornell v.Hope Insurance Company, 3 Mart. N. S. 223, 226, the supreme court of Louisiana said, in respect of conditions precedent:

"They are recognized and provided for by our system of jurisprudence, and by every other that has in view the ordinary transac.tions of men. The obligation is conditional when it depends on a future or uncertain event, says our Code. The event then must be shown to make the obligation binding on the party against whom it is presented. For until it takes place, he is not bound to perform what he has promised. Civ. Code, 272, art. 68. There is an exception to this rule in regard to the dissolving condition. But in relation to all others it is true, and it is a matter of no moment whether we say the obligation is suspended until the condition is performed-or that the performance of the condition must precede the execution of the obligation. Civ. Code, 274, art. 81 and 3; Toullier, Droit Civil Francaise, liv. 3, tit. 3, chap. 4, No. 472; Pothier, Traité des Ob. No. 202."

"The effect of a suspensive condition, as its name necessarily implies, is to suspend the obligation until the condition is accomplished or considered as accomplished; till then nothing is due; there is only an expectation that what is undertaken will be due; pendente conditione nondum debetur, sed spes est debitum iri." Pothier, Traité des Ob. 218. [334] *The suspensive condition under the Louis186

The general principles in respect of conditions precedent are set forth sufficiently for the purposes of this case by Chief Justice Shaw in Proprietors of Mill Dam Foundery v. Hovey, 21 Pick. 440, cited by appellant. Where the undertaking on one side is in terms a condition to the stipulation on the other, that is, where the contract provides for the performance of some act, or the happening of some event, and the obligations of the contract are made to depend on such performance or happening, the conditions are conditions precedent. The reason and sense of the contemplated transaction, as it must have been understood by the parties and is to be collected from the whole contract, determine whether this is so or not; or it may be determined from the nature of the acts to be done and the order in which they must necessarily precede and follow each other in the progress of performance. But when the act of one is not necessary to the act of the other, though it would be convenient, useful, or beneficial, yet as the want of it does not pre vent performance, and the loss and inconvenience can be compensated in damages, performance of the one is not a condition precedent to performance by the other. The nonperformance on one side must go to the entire substance of the contract and to the whole consideration, so that it may safely be inferred as the intent and just construction of the contract that if the act to be performed on the one side is not done, there is no consideration for the stipulations on the other side. See Cutter v. Powell, 2 Smith, Lead. Cas. [7th Am. ed.] 17, and notes.

In examining the contract embodied in the ordinances it is essential to have in mind the particular territory to which the ordinances relate, and we therefore insert an outline sketch extracted from a map of the city of New Orleans contained in the record.

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the said act was passed after the arrest, in- | charged, he prosecuted an appeal to the sudictment, and first trial of defendant and is preme court of Missouri, and by that court in violation of art. 1, § 10, Constitution the judgment was reversed and a new trial United States. was ordered. State v. Thompson, Appellant, 132 Mo. 301. At the second trial the accused was again convicted; and a new trial having been denied, he prosecuted another appeal to the supreme court of the state. That court affirmed the last judgment, and the present appeal brings that judgment before us for[381] re-examination. State v. Thompson, Appellant (Mo.) 42 S. W. 949.

Calder v. Bull, 3 Dall. 396 (1:648); Kring v. Missouri, 107 U. S. 221 (27: 506); State v. Bond, 49 N. C. (4 Jones L.) 9; State v. Johnson, 12 Minn. 486, 92 Am. Dec. 241; Story, Const. § 1345; Cooley, Const. Lim. pp. 319, 325; 1. Bl. Com. §§ 45. 46; Kent, Com. p. 458; Miller, Const. p. 587; llare, Am. Const. L. p. 565; Black, Constitutional Prohibitions, §§ 234 et seq.

It was error to admit in evidence for the purpose of comparison certain extraneous handwritings, under § 8944a, Sessions Laws of Missouri 1895, because in violation of art. 2, § 15, Constitution of Missouri, and in violation of §§ 6594, 6597, 6598, Revised Statutes of Missouri 1889.

State v. Thompson, 141 Mo. 408; Pacific R. Co. v. Cass County, 53 Mo. 17; St. Louis v. Life Asso. of America, 53 Mo. 466; State v. Grant, 79 Mo. 113, 49 Am. Rep. 218.

Mr. Edward C. Crow, Attorney General | of Missouri, for defendant in error:

The law of 1895 (see Acts of Mo. 1895, p. 284), making the notes written by defendant while in jail and proved to be genuine and competent for the purpose of comparison with the disputed writing, to wit: the forged order to the druggist for strychnine, is not an ex post facto law in its relation to this case.

State v.Thompson, 141 Mo.408; Hopt v. Utah, 110 U. S. 574 (28:262); O'Bryar v. Allen, 108 Mo. 227; State v. Jackson, 80 Mo. 175, 50 Am. Rep. 499; Cooley, Const. Lim. 3d ed. 367; Hope Mut. Ins. Co. v. Flynn, 38 Mo. 483, 90 Am. Dec. 438; State v. Thompson, 132 Mo. 301.

This law of 1895 relates solely to the procedure, and the rule is that remedies and procedure must always be under the control of the legislature.

Cooley, Const. Lim. 5th ed. p. 329.

Laws which change the rules of evidence relate to the remedy only, and may be applied to existing causes of action without infringing the constitutional guarantees against "ex post facto" legislation.

O'Bryan v. Allen, 108 Mo. 227; Laughlin v. Com. 13 Bush, 261; Messim v. McCray, 113 Mo. 382; Mrous v. State, 31 Tex. Crim. Rep. 597.

Mr. Justice Harlan delivered the opinion

of the court:

The record suggests many questions of law, but the only one that may be considered by this court is whether the proceedings against the plaintiff in error were consistent with the provision in the Constitution of the United States forbidding the states from passing ex post facto laws.

Thompson was indicted in the St. Louis criminal court at its November term, 1894, for the murder, in the first degree, of one Joseph M. Cunningham, a sexton at one of the churches in the city of St. Louis. Having been tried and convicted of the offense

The evidence against the accused was entirely circumstantial in its nature. One of the issues of fact was as to the authorship of a certain prescription for strychnine, and of a certain letter addressed to the organist of the church containing threatening language about the sexton. The theory of the prosecution was that the accused had obtained the strychnine specified in the prescription and put it into food that he delivered or caused to be delivered to the deceased, with intent to destroy his life. The accused denied that he wrote either the prescription or the letter to the organist or that he had any connection with either of those writings. At the first trial certain letters written by him to his wife were admitted in evidence for the purpose of comparing them with the writing in the prescription and with the letter to the organist. The supreme court of the state, upon the first appeal, held that it was error to admit in evidence for purposes of comparison the letters written by Thompson to his wife, and for that error the first judgment was reversed and a new trial ordered. 132 Mo. 301, 324.

Subsequently, the general assembly of Missouri passed an act which became operative in July, 1895, providing that "comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute." Laws Mo. 1895, p. 284.

This statute is in the very words of § 27 of the English common-law procedure act of 1854 (17 & 18 Vict. chap. 125). And by the 28 Vict. chap. 18, §§ 1, 8, the provisions of that act were extended to criminal cases.

At the second trial, which occurred in 1896, the letters written by the accused to his wife were again admitted in evidence, over his objection, for the purpose of comparing them with the order for strychnine and the letter to the organist. *This action of the[382] trial court was based upon the above statute of 1895.

The contention of the accused is that as the letters to his wife were not, at the time of the commission of the alleged offense, admissible in evidence for the purpose of comparing them with other writings charged to be in his hand writing, the subsequent statute of Missouri changing this rule of evidence was es post facto when applied to his case.

It is not to be denied that the position of

section, which, in express words, provides that the privileges of extension granted were dependent upon the establishment of the terminus at the point indicated, and would cease to exist if, after the establishment of the terminus, the railroad company should abandon it. The language of the 4th section is as follows:

The original ordinance 6695 contemplated | face of this ordinance it is apparent that the that the proposed railroad would be built rights thus given the railroad to extend upon the west bank of the Mississippi river, along Claiborne to Canal for passenger purNew Orleans being upon the east bank, and poses, and along a street to be designated to hat the road would cross that river to the the river for freight purposes, were mere ac[335]ast bank some hundred *or more miles above cessories to the obligation imposed by the ordiNew Orleans, coming to that city on the east nance upon the railroad to build its depots, bank, and entering in the rear of the city, structures, warehouses, etc., at the point inthat is, in that portion of the city lying a con- dicated, and that the incidental rights of exsiderable distance back from the river. The tension from the terminus to the other points purpose of the ordinance was clearly indicated could have no existence if no terminus was by its title, which declared that it was in- established from which the extensions could tended to grant "to the New Orleans Pacific be made. Reading the provisions of the Railway Company or its assigns the right to ordinance with the preamble and the establish its terminus within the city limits title, it cannot reasonably be controand to construct, maintain, and operate a verted that the rights of extension 1836 railroad to and from such a terminus, with were granted upon the suspensive conone extension for passenger purposes and an-dition that the railroad should terminate at other for freight purposes, into and through the point indicated, and there build the shops certain streets and places in the city of New and depots from which the right to extend its Orleans." The preamble to the ordinance re-tracks was conceded. And this is, if possible, cited the desire of the railroad to enter the made more certain by considering the 4th city at about a certain point, and to construct its terminus between the new Canal and Melpomene street, providing the city would grant the right to extend its tracks "from such terminus into and through Claiborne street to Canal street for passenger purposes; and shall also grant the right to extend its tracks from such terminus north of Claiborne Canal by "That the right of way, franchises, and the most convenient and practicable route privileges herein granted to the New Orleans through the public streets to the river front Pacific Railway Company are granted only for freight purposes." The 1st section of the on condition and in consideration that the ordinance grants the railroad the right to en- said grantees shall permanently establish the ter the city to the point stated in the pream-terminus of said road within the city limits, ble, and to construct and maintain at the ter- and maintain said terminus during the exminus necessary depots, shops, yards, ware-istence of the charter of said company, for houses, and other structures, convenient and which period said right of way and privileges useful for the transaction of its business. The shall last; and should the said company at peint at which the right to construct this ter- any time hereafter abandon its said road on minus was given by the ordinance is embraced the east side of the Mississippi river and its within the triangular space in the rear of the terminus within the city limits, then this city as marked on the sketch above given. grant shall cease and terminate, and be withThe 2d section of the ordinance empowered cut force or effect from the date of such abanthe company to "locate, construct and main-donment; and it is still made a contain an extension of its railroad with all neces-dition of this grant that said railway comsary tracks, switches, turnouts, sidings and pany shall complete its road from the structures of every kind, convenient and use- crossing of the Mississippi river, at or near ful and appurtenant to said railroad, Baton Rouge, to its terminus in this city[338] into and through Claiborne street to Canal within two years from the promulgation of street, with the right to construct a passenger this ordinance." depot at or near the intersection of Claiborne The words "the terminus of said road" street with Canal street." A glance at the and said "terminus" used in the 4th section sketch will make clear the fact that Claiborne clearly refer to the terminus fixed by the ordistreet thus designated was in the rear of the nance, and where the railroad agreed to estabcity, quite near the point where the railroad lish its shops, roundhouses, etc. It folhad contracted to establish its terminus, de- lows, then, that the ordinance granted pots and structures, and that the route thus a right to the railroad company to mapped out in the very nature of things and enter the city to reach a designated in the language of the ordinance was a mere point, and imposed upon the company right granted to the railroad to extend its the obligation to erect its depots, shops, waretracks from the terminus, which the railroad houses, etc., at that point; that in considerwas under the obligation to build, to and ation of this obligation assumed by the comalong the designated route to the point indi-pany, to be performed within two years, a cated on Claiborne and Canal. The 3d sec- right was given to it to extend from the depot tion of the ordinance obligated the city to des- so designated a passenger track to a given ignate a street from the point where the ter-point, and a freight track to another point; [337 minus *was selected, and where the company that the two rights of extension were the was to establish itself, through which it could mere resultants of the principal obligation build an extension for the purposes of its imposed upon the company, in consideration freight business to the river front. On the of which the rights to the extensions were

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