« ForrigeFortsett »
cation provided by section 712, which, under | Palmer was sufficient, and the judgment of the decisios of this court, would be ineffect the Supreme Court of Arizona is therefore ual to sustain a personal judgment. Pen- affirmed.
noyer v. Neff, 95 U. S. 714 [24: 565].
It is incredible that the legislature should
have intended to limit its own citizens to HENRIETTA MINING & MILLING COMPANY, such an insufficient remedy, when the corporation is actually doing business in the territory and is represented there by a manager or local agent.
(See S. C. Reporter's ed. 225-226.)
The cases cited by the plaintiff in error do not sustain its contention. In the Southern Building and Loan Association v. Hallum [59 Ark. 583], 28 S. W. Rep. 420, it was Submitted January 15, 1899. Decided Febheld by the supreme court of Arkansas, under a statute similar to section 348, that a service made on an agent in a county other
ruary 27, 1899.
than that in which the action was begun, and ON APPEAL from a judgment of the Supreme Court of the Territory of Arizona which failed to show that he had been desig- affirming as modified a judgment of the Disnated as prescribed, was insufficient to au-trict Court in and for Yavapai County, Arizthorize a judgment by default. Obviously, ona, in favor of the plaintiff, Samuel Hill, by section 348, it is intended that service against the Henrietta Mining & Milling may be begun in any county and served upon Company. Affirmed. the appointed agent, and all for which this case is authority is that, if it be served upon any other agent, the action must be brought in the county where such agent is served. The opinion of the court was put upon this ground. In the case under consideration, Palmer, the superintendent, was served in the county of Yavapai, where the suit was begun.
Messrs. William H. Barnes and Frank
BY THE COURT: The *facts in this case, so far as they bear upon the question in controversy, are precisely similar to the one just decided, and the judgment of the Supreme Court of Arizona is therefore affirmed.
A. Hervey, Deceased.
The case of the State v. The United States Mutual Accident Association, 67 Wis. 624, is against the proposition for which it is cited. In that case service of a summons upon an unlicensed foreign insurance company, by delivering a copy to an agent of the company, was held to be sufficient, the defendant DAVID JOY, Admr. of the Estate of John never having made an appointment of an agent under the statute. Said the court: "If the argument of counsel to the effect that section 1977 only relates to agents of such foreign insurance companies as are duly licensed to do business within this state is sound, then there would be no possible way of commencing an action against an unlicensed foreign insurance company doing business in this state in violation of law. In other words, such construction would reward such foreign insurance companies as refused to pay the requisite license, by enabling them to retain the license money, and then shielding them from the enforcement of all liability, whether on their contracts or otherwise, in the courts of Wisconsin. Such construction would defeat the whole purpose and scope of the statute."
BALTIMORE & OHIO RAILROAD COM-
(See S. C. Reporter's ed. 226-231.)
Action for injuries in the United States circuit court sitting in Ohio, when does not abate on death of plaintiff-removal of case to Federal court-U. S. Rev. Stat. § 955-revivor of actions governed by the laws of the forum.
An action pending in the circuit court of the United States sitting in Ohio, brought by the Injured person as plaintiff to recover damages for injuries sustained by the negligence of the defendant in Indiana, does not finally abate upon the death of the plaintiff, notwithstanding the fact that, had no suit been brought at all, the cause of action would have abated both in Indiana and Ohlo, and that, even if a suit had been brought in Indiana, the action would have abated in that state.
The cases from Michigan are too imperfectly reported to be of any practical value. In Desper v. The Continental Water Meter Company, 137 Mass. 252, the service of a bill in equity by subpœna upon the treasurer of a foreign corporation was held to be unauthorized by any statute, and also that there was no method of bringing it in except 3. U. S. Rev. Stat. § 955, does not apply to an by means of an attachment of its property. Neither this nor that of Lewis v. Northern R. R. 139 Mass. 294, is in point.
action brought in one of the courts of a state whose statutes permit a revivor in the event of the death of a party before final judgment.
We are of opinion that the service upon 173 U. S.
A right given by the statute of a state to revive a pending action for personal injuries, in the name of a personal representative of a deceased plaintiff, is not lost upon the removal of the case into a Federal court.
The question of the revivor of actions brought in the courts of a state for personal 677
1, p. 1491. That section was construed in Ohio & Penn. Coal Co. v. Smith, Admr. 53 Ohio St. 313, which was an action for personal injuries caused by the negligence of a corporation and its agents. The supreme Feb-court of Ohio said: "The action was a pending one at the time of the death of the plaintiff. It is not within any of the enumerated and was
N A CERTIFICATE the United
O`States Circuit Court of Appeals for the fore properly revived and prosecuted to judg
Injuries is governed by the laws of that state,
Submitted January 12, 1899. Decided ruary 20, 1899.
Sixth Circuit of a question of law for the decision of this court in an action brought by John A. Hervey against the Baltimore & Ohio Railroad Company, in the Common Pleas Court of Hancock County, Ohio, to recover damages for personal injuries caused by the negligence of the railroad company, which action was removed into the Circuit Court of the United States for the Northern
District of Ohio. After such removal plaintiff died, and the action was revived in the name of his administrator appointed in Ohio. Question answered in the negative.
Messrs. Hugh L. Bond, Jr., and J. H. Collins for plaintiff in error.
No counsel for defendant in error.
 *Mr. Justice Harlan delivered the opinion of the court:
This case is before us upon a question of law certified by the judges of the United States circuit court of appeals for the sixth circuit under the sixth section of the act of March 3d 1891, chap. 517 (26 Stat. at L. 826).
 *It appears from the statement accompany ing the certificate, that on the 18th day of October, 1891, John A. Hervey, a citizen of Ohio residing in Hancock county in that state, was a passenger on a train of the Baltimore & Ohio Railroad Company between Chicago, Illinois, and Fostoria, Ohio. While upon the train as passenger he was injured at Albion, Indiana, in a collision caused by the negligence of the railroad company. He brought suit in the common pleas court of Hancock county, Ohio, to recover damages for the personal injuries he had thus received.
Upon the petition of the railroad company the suit was removed into the circuit court of the United States for the northern district of Ohio upon the ground of diverse citizenship. After such removal Hervey died, and, against the objection of the railroad company, the action was revived in the name of the administrator of the deceased plaintiff, appointed by the proper court in Ohio.
At the time of Hervey's death the common-law rule as to the abatement of causes of action for personal injuries prevailed in Ohio. But by section 5144 of the Revised Statutes of that state, then in force, it was provided that, "except as otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of either party." Rev. Stat. Ohio 1890, ve!.
ment in the name of the administrator of
The Revised Statutes of Indiana, in which
By section 955 of the Revised Statutes of the United States, brought forward from the judiciary_act of September 24th, 1789 (1 Stat. at L. 90, chap. 20, § 31), it is provided that "when either of the parties, whether plaintiff or petitioner or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment."
The question upon which the court below desires the instruction of this court is this:
"Does an action pending in the circuit court of the United States sitting in Ohio, brought by the injured person as plaintiff to recover damages for injuries sustained by the negligence of the defendant in Indiana, finally abate upon the death of the plaintiff in view of the fact that, had no suit been brought at all, the cause of action would have abated both in Indiana and Ohio, and that, even if suit had been brought in Indiana, the action would have abated in that state?"
If the case had not been removed to the circuit court of the United States, it is clear that under the statutes of Ohio as interpreted by the highest court of that state the action might have been revived in the state court in the name of the personal representative of Hervey, and proceeded to final judgment. We think that the right to revive attached under the local law when Hervey brought his action in the state court. It was a right of substantial value, and became inseparably connected with the cause of action so far as the laws of Ohio were concerned. Was it lost or destroyed when, upon the petition of the railway company, the case was removed for trial into the circuit court of the United States? Was it not, rather, a right that inhered in the action, and accompanied it when in the lifetime of Hervey the Federal court acquired jurisdic tion of the parties and the subject-matter? This last question must receive an affirma
tive answer, unless section 955 of the Revised | brought forward from the judiciary act of Statutes of the United States is to be con- 1789 (1 Stat. at L. 92, chap, 20, § 34), and strued as absolutely prohibiting the revival provides that "the laws of the several states, in the Federal court of an action for per- except where the Constitution, treaties, or sonal injuries instituted in due time and statutes of the United States otherwise rewhich was removed from one of the courts quire or provide, shall be regarded as rules of a state whose laws modified the common of decision in trials at common law, in the law so far as to authorize the revival, upon courts of the United States, in cases where the death of either party, of a pending ac- they apply;" and also with section 914, protion of that character. viding that "the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding." They are in accord also with what was said in Martin v. Baltimore & Ohio Railroad Co. 151 U. S. 673, 692 [38: 311, 318], in which, after referring to Schreiber v. Sharpless, 110 U. S. 76, 80 [28: 65, 67], this court said: "In that case, the right in question being of an action for a penalty under a statute of the United States the question whether it survived was gov erned by the laws of the United States. But in the case at bar, the question whether the administrator has a right of action depends upon the law of West Virginia, where the action was brought and the administrator appointed. Rev. Stat. § 721; Henshaw v. Miller, 17 How. 212 [15: 222]."
It is scarcely necessary to say that the determination of the question of the right to revive this action in the name of Hervey's personal representative is not affected in any degree by the fact that the deceased received his injuries in the state of Indiana. The action for such injuries was transitory in its nature, and the jurisdiction of the Ohio court to take cognizance of it upon personal service or on the appearance of the defendant to the action cannot be doubted. Still less can it be doubted that the question of the revivor of actions brought in the courts of Ohio for personal injuries is governed by the laws of that state, rather than by the law of the state in which the injuries occurred.
We are of opinion that the above section is not to be so construed. In our judgment, a right given by the statute of a state to revive a pending action for personal injuries in the name of the personal representative of a deceased plaintiff is not lost upon the removal of the case into a Federal court. Section 955 of the Revised Statutes may reasonably be construed as not applying to an action brought in one of the courts of a state whose statutes permit a revivor in the event of the death of a party before final judgment. Whether a pending action may be revived upon the death of either party and proceed to judgment depends primarily upon the laws of the jurisdiction in which the action was commenced. If an action be brought in a Federal court, and is based up on some act of Congress, or arises under some rule of general law recognized in the courts of the Union, the question of revivor will depend upon the statutes of the United States relating to that subject. But if at the time an action is brought in a state court the statutes of that state allow a revivor of it on the death of the plaintiff before final judgment, even where the right to sue is lost when death occurs before any suit is brought then we have a case not distinctly or necessarily covered by section 955. Suppose Hervey had died while the action was pending in the state court, and it had been revived in that court, nevertheless after such revival, if diverse citizenship existed, it could have been removed for trial into the Federal court and there proceeded to final judgment, notwithstanding section 955 of the Revised Statutes of the United States. If this be so, that section ought not to be construed as embracing the present case. Nor ought it to be supposed that Congress intended that, in case of the removal of an action from a state court on the petition of the defendant prior to the death of the plaintiff, the Federal court should ignore the law of the state in reference to the revival of pending actions, and make the question of revivor depend upon the inquiry whether the cause of action would have survived if no suit had been brought. If Congress could legislate to that extent it has not done It has not established any rule that will prevent a recognition of the state law under which the present action was originally instituted, and which at the time the suit was brought conferred the right, when the plaintiff in an action for personal injuries died before final judgment, to revive in the name of his personal representative. Cases like this may reasonably be excepted out of the general rule prescribed by section 955.
These views are in harmony with section 721 of the Revised Statutes which was
The question propounded to_this__court must be answered in the negative. It will be so certified to the Circuit Court of Appeals.
CITY OF COVINGTON, Plff. in Err., COMMONWEALTH OF KENTUCKY. (See S. C. Reporter's ed. 231-243.) When statute exempting waterworks property of a city from taxes is not a contract -charter of municipal corporation, or law as to the use of its property, is not a contract, within the meaning of the national Constitution.
The statute of Kentucky providing that the waterworks property of the city of Covington
til the question of issuing them and the question of the location of the reservoir or reservoirs, whether above or below the city, should first be submitted to the qualified voters of the corporation at an election held for that purpose and approved by a majority of the
"shall be and remain forever" exempt from taxes does not constitute a contract, but was passed subject to a general statute of the state that all statutes shall be subject to amend
therein plainly expressed.
ment or repeal unless a contrary intent be 2. Neither the charter of a municipal corporation, nor any legislative act regulating the use of property held by it for governmental or public purposes, is a contract within the meaning of the national Constitution.
Submitted January 18, 1899. Decided Feb- chap. 897, p. 317. ruary 20, 1899.
to N ERROR to the Court of Appeals of the
I of that court affirming a judgment of the Campbell Circuit Court of that State in favor of the Commonwealth of Kentucky for the possession of certain lands on which the waterworks of defendant, the City of Coving ton, are situate, and sustaining the validity of the taxation of the waterworks property. Affirmed.
"The facts are stated in the opinion. Messrs. William Goebel and W. S. Pryor for plaintiff in error.
Messrs. W. S. Taylor, Attorney General of Kentucky, and Ramsey Washington for defendant in error.
. *Mr Justice Harlan delivered the opin
ion of the court:
The plaintiff in error, a municipal corporation of Kentucky, insists that by the final judgment of the court of appeals of that commonwealth sustaining the validity of certain taxation of its waterworks property it has been deprived of rights secured by that clause of the Constitution of the United States which prohibits any state from passing a law impairing the obligation of contracts. That is the only question which this court has jurisdiction to determine upon this writ of error. U. S. Rev. Stat. § 709. By an act of the general assembly of Kentucky approved May 1st, 1886, the city of Covington was authorized to build a water reservoir or reservoirs within or outside its corporate limits, either in the county of Kenton or in any county adjacent thereto, and acquire by purchase or condemnation in fee *simple the lands necessary for such reservoirs, and connect the same with the waterpipe system then existing in the city; to build a pumping house near or adjacent to the Ohio river, and to provide the same with all necessary machinery and appliances, together with such lands as might be needel for the pumping house, and for connecting it with said reservoir or reservoirs. § 21.
The declared object of that legislation was that the city and its citizens might be provided with an ample supply of pure water for all purposes. To that end the city was authorized and empowered, by its board of trustees, to issue and sell bonds to an amount not exceeding $600,000, payable in not more than forty years after date, with interest at a rate not exceeding five per cent per annum, -such bonds not, however, to be issued un
By section 31 of that act it was provided that "said reservoir or reservoirs, machinery, pipes, mains, and appurtenances, with the land upon which they are situated, shall be and remain, forever exempt from state, county, and city tax." Ky. Acts 1885-6,
A subsequent act, approved February 15th, 1888, authorized the city, in execution of the provisions of the act of 1886, to issue and
000. Ky. Acts 1887-8, chap. 137, p. 221.
The scheme outlined in these acts received the approval of the majority of the votes cast at an election held in the city, and thereafter bonds to the amount of $600,000 and $400,000 were issued in the name of the city and disposed of.
The proceeds of the bonds were duly applied by the city in building water reservoirs, in constructing the requisite approaches, pipes, and mains, in acquiring the lands necessary for the reservoirs and for its approaches and connections, in erecting a pumping house and providing it with necessary machinery and appliances, and in buying land for a pumping house and the con- nection thereof by pipes and mains with the reservoirs.
The entire works upon their completion passed under the control of the city, which managed the same until March 19th, 1894, by the commissioners of waterworks, under the act of March 31st, 1879, chap. 121 (Ky. Acts 1879, p. 93); and since March 19th, 1894, they have been controlled under the act of that date, chap. 100, by a board, subject to such regulations as the city by ordinance might provide. Ky. Acts 1894, p. 278. By the latter act it was also provided that the net revenue derived from its waterworks by any city of the second class-to which class the city of Covington belongs-should be applied exclusively to the improvement or reconstruction of its streets and other public ways.
When the above act of May 1st, 1886, was passed there was in force a general statute of Kentucky, passed February 14th, 1856, which provided, as to all charters and acts of incorporation granted after that date, that “all charters and grants of or to corporations, or amendments thereof, and all other statutes, shall be subject to amendment or repeal at the will of the legislature, unless a contrary intent be therein plainly expressed: Provided, That whilst privileges and franchises so granted may be changed or repealed, no amendment or repeal shall impair other rights previously vested;" and that "when any corporation shall expire or be dissolved, or its corporate rights and privileges shall cease by reason of a repeal of its charter or otherwise, and no different provision is made by law, all its works and property, and all debts payable to it, shall
be subject to the payment of debts owing by
This statute was not modified by the general revenue statute of May 17th, 1886, which took effect September 14th, 1886, and became part of chapter 68 of the General Statutes of 1888. It constitutes § 1987 of the Revision known as the Kentucky Statutes of 1894. Nor has it been changed by any subsequent legislation in Kentucky.  *The present Constitution of Kentucky, adopted in 1891, contains the following provisions:
"§ 170. There shall be exempt from taxation public property used for public pur
By the Kentucky Statutes of 1894 it is provided:
"§ 171. The general assembly shall provide by law an annual tax, which, with other resources, shall be sufficient to defray the estimated expenses of the commonwealth for each fiscal year. Taxes shall be levied and collected for public purposes only. They shall be uniform upon all property subject to taxation within the territorial limits of the authority levying the tax; and all taxes shall be levied and collected by general laws. "§ 172. All property not exempted from Referring to section 170 of the present Contaxation by this Constitution shall be as- stitution of Kentucky, declaring that "there sessed for taxation at its fair cash value, es- shall be exempt from taxation public proptimated at the price it would bring at a fair erty used for public purposes," the court of voluntary sale; and any officer or other per- appeals of Kentucky in this case said: "It son authorized to assess values for taxation was followed by necessary statutory enactwho shall commit any wilful error in the per-ments, which, however, could neither curtail formance of his duty, shall be deemed guilty nor enlarge exemption from taxation as preof misfeasance, and upon conviction thereof scribed by the Constitution; and according shall forfeit his office, and be otherwise pun- ly, in section 4020, Kentucky Statutes, ished as may be provided by law." adopted for the purpose of carrying out the provisions of section 170, is the identical language we have quoted. As it was manifestly intended by both the Constitution and statute to make subject to taxation all prop- erty not thereby in express terms exempted, it results that, unless the waterworks property of the city of Covington be, in the language or meaning of section 170, 'public property used for public purposes,' it must be held, like similar property in cther cities, subject to taxation, and the special act of May 1st, 1886, stands repealed. Assuming, as a reasonable and beneficial rule of construction requires us to do, that the phrase 'for public purposes' was intended to be construed and understood according to previous judicial interpretation and usage, there can be no doubt of the proper meaning and application of it, for in the cases cited and others where the question of subjecting particular property of cities to taxation arose, the words 'for public purposes' had been held by this court to mean in that connection the same as the words for governmental purposes,' and so property used by a city for public or governmental purposes was held to be exempt, while that adapted and used for profit or convenience of the citizens, individually or collectively, was held to be subject to taxation; and, recognizing and applying that distinction, waterworks property
"§ 4020. All real and personal estate within this state, and all personal estate of persons residing in this state, and of all corporations organized under the laws of this state, whether the property be in or out of this state, including intangible property, which shall be considered and estimated in fixing the value of corporate franchises as hereinafter provided, shall be subject to taxation, unless the same be exempt from taxation by the Constitution, and shall be assessed at its fair cash value, estimated at the price it would bring at a fair voluntary sale."
In the year 1895 certain lands acquired under the above act of May 1st, 1886, and constituting a part of the Covington Waterworks, were assessed for state and county taxation, pursuant to the statutes enacted after the passage of that act, and conformably as well to the Constitution of Kentucky if that instrument did not exempt them from taxation. The taxes so assessed not having been paid, those lands after due notice were sold at public outcry by the sheriff (who by law was the collector of state and county revenue), and, no other bidder appearing, the Commonwealth of Kentucky purchased them for $2,187.24, the amount of the taxes, penalty, commission, and cost of advertising.
The present action was brought by the commonwealth to recover possession of the property so purchased.
The principal defense is that the provision in the act of May 1st, 1886, that the reservoir or reservoirs, pumping house, machinery, pipes, mains, and appurtenances, with the land upon which they are situated, "shall be and remain forever exempt from state, county, and city taxes," constituted, in respect of the lands in question, a contract between the city of Covington and the commonwealth of Kentucky, the obligation of which was impaired by the subsequent legislation to which reference has been made.
"§ 4022. For the purposes of taxation, real estate shall include all lands within this state and improvements thereon; and personal estate shall include every other species and character of property, that which is tangible as well as that which is intangible." "4026. The following property is exempt from taxation: Public property used for public purposes.  *This act repealed all acts and parts of acts in conflict with its provisions except the act of June 4th, 1892, providing additional funds for the ordinary expenses of the state government, and the act amendatory thereof approved July 6th, 1892.