MOREY v. LOCKHART.1 (October 24, 1887.) 1. REMOVAL OF CAUSES-REMAND TO STATE COURT-APPEAL. No appeal or writ of error will lie from an order of a United States circuit court remanding a suit which was begun and had been improperly removed from a state court after the act of congress of March 3, 1887, c. 373, (24 St. 552,) went into effect, as section 6 of that act expressly repeals section 5 of the act of 1875, by which such appeals or writs of error were allowed, and the last paragraph of section 2 declares that no appeal or writ of error from such an order shall be allowed. 2. SAME. The section prohibiting an appeal or writ of error in such cases applies, not only to removals on account of prejudice or local influence, but to cases removed on other grounds. 3. SAME. Such an order cannot be reviewed by the supreme court on a certificate of division of opinion between the judges, under Rev. St. U. S. 2 693, as it is not a final judgment or decree in the suit. Appeal from the Circuit Court of the United States for the Eastern District of Louisiana. On motion to dismiss. Wm. A. Maury, for the motion. J. D. Rouse and Wm. Grant, in opposition. WAITE, C. J. This is an appeal from an order of the circuit court remanding a suit which was begun and had been removed from a state court after the act of March 3, 1887, c. 373, (24 St. 552,) went into effect. At the hearing of the motion, the judges holding the circuit court differed in opinion, and the order to remand was made under section 650, Rev. St., in accordance with the opinion of the presiding judge. The question as to which the difference of opinion arose was duly certified and recorded, and this appeal was taken from the order which was entered. A motion is now made to dismiss, because an appeal does not lie in such a case. Before the act of March 3, 1875, there could be no appeal from an order of the circuit court remanding a suit which had been removed, because such an order was not a final judgment or decree in the sense which authorizes an appeal or writ of error. Railroad Co. v. Wiswall, 23 Wall. 507. That act, however, provided in express terms that "the order of said circuit court dismissing or remanding said cause to the state court shall be reviewable by the supreme court on writ of error or appeal, as the case may be," (18 St. 470, c. 137, last paragraph of section 5;) and under this authority numerous cases have been brought to this court by appeal or writ of error for the review of such orders. But, by section 6 of the act of 1887, c. 373, the last paragraph of section 5 of that of 1875, c. 137, was expressly repealed; and in the last paragraph of section 2 of the act of 1887 it was enacted that "whenever any cause shall be removed from any state court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the state court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such case shall be allowed." It is difficult to see what more could be done to make the action of the circuit court final, for all the purposes of the removal, and not the subject of review in this court. First, it is declared that there shall be no appeal or writ of error in such a case; and then, to make the matter doubly sure, the only statute which ever gave the right of such an appeal or writ of error is repealed. 1 See 31 Fed. Rep. 497. v.8s.c.-5 It is contended, however, that the prohibitions against appeals and writs of error in the act of 1887 apply only to removals on account of prejudice or local influence; but that cannot be so. The section of the statute in which the provision occurs has relation to removals generally,-those for prejudice or local influence, as well as those for other causes,-and the prohibition has no words of limitation. It is, in effect, that no appeal or writ of error shall be allowed from an order to remand in "any cause" removed "from any state court into any circuit court of the United States." The fact that it is found at the end of the section, and immediately after the provision for removals on account of prejudice or local influence, has, to our minds, no special significance. Its language is broad enough to cover all cases, and such was evidently the purpose of congress. It is also contended that the appeal lies under section 693, Rev. St., on account of the certificate, in the record of the judges holding the court, that their opinions were opposed upon the question of remanding. That section is as follows: "Any final judgment or decree in any civil suit or proceeding before a circuit court, * * * wherein the said judges certify, as provided by law, that their opinions were opposed, * * * may be reviewed, and affirmed, reversed, or modified, by the supreme court, on writ of error or appeal, according to the nature of the case, and subject to the provisions of law applicable to other writs of error or appeals in regard to bail and supersedeas." But here there has been no judgment in the suit, and therefore this section does not apply. That was the ground on which an appeal was denied in Railroad Co. v. Wiswall, supra, where it was said: "The order of the circuit court remanding the cause to the state court is not a final judgment'in the action, but a refusal to hear and decide." No case can be brought up under section 693 until there has been a final judgment or decree in the suit. It follows that we have no jurisdiction of this appeal, and the motion to dismiss is consequently granted. GILSON v. TOWN OF DAYTON. RAILROAD COMPANIES-MUNICIPAL AID-VALIDITY OF BONDS. In a suit for the payment of railroad bonds issued by the town of Dayton, under act of 1857, of Illinois, authorizing a town-meeting to issue such bonds, upon the application of a certain number of legal voters, which act was held invalid, plaintiff claimed the support of act of March 6, 1867, of Illinois, which authorizes such meeting upon application of "voters and tax-payers." Held, that as it appeared from the bonds and the record that they were issued under act of 1857, and not 1867, a demurrer was properly sustained. In Error to the Circuit Court of the United States for the Northern District of Illinois. Plaintiff sued the town of Dayton for payment of some railroad bonds issued by the town, under act of 1857, and worded as follows, claiming that they were payable under act of March 6, 1867, Priv. Laws Ill., the act of 1857 having been held invalid: "The town of Dayton, in the county of La Salle, state of Illinois, acknowledges itself indebted in the sum of one thousand dollars, lawful money of the United States of America, which sum the said town of Dayton promises to pay to the Ottawa, Oswego & Fox River Valley Railroad Company, or to the bearer hereof, at the Fourth National Bank in the city of New York, four years from the first day of July, A. D. 1869, with interest from the first day of July, A. D. 1869, at the rate of ten per cent. per annum, payable annually at said bank upon the presentation and delivery of the several coupons hereto annexed as they respectively become due, and to the payment of said principal and interest in the manner aforesaid, the faith and revenue of said town, is hereby irrevocably pledged. This bond is one of a series of 12 bonds, bearing even date herewith, each for the sum of one thousand dollars, numbered from one to twelve, inclusive, and is issued in pursuance of an election or special town meeting held in said town on the seventeenth day of April, A. D. 1869, under and by virtue of a certain act of the legislature of the state of Illinois, approved February 18, 1857, entitled 'An act authorizing certain cities, counties, incorporated towns, and townships to subscribe to the stock of certain railroads,' the said act having special reference to the said Ottawa, Oswego, & Fox River Valley Railroad Company, at which election or special town meeting a majority of the legal voters participating at the same voted 'for subscription to the capital stock of the Ottawa, Oswego & Fox River Valley Railroad Company in the sum of $12,000, and to issue the bonds of said town therefor, and the said election or special town meeting was by the proper authorities then and there declared duly carried for subscription,' previous application in writing of fifty legal voters of said town for such an election or special town meeting, specifying the amount to be subscribed, and the conditions of such subscription, having been made to the clerk of said town, and the said town clerk having called said election or special town meeting in accordance therewith, and having given due notice of the time and place of holding the same, as required by law and the act aforesaid. "In witness whereof the supervisor and town clerk of said town have hereunto set their hands and seals this first day of May, A. D. 1869. [Stamp.] "WM. D. BROWN, Town Clerk. [Seal.] "HENRY CURYEN, Supervisor." [Seal.] The defendant entered a demurrer, which was sustained. Plaintiff brings error. Geo. A. Sanders, for plaintiff in error. G. S. Eldredge, for defendant in error. WAITE, C. J. The judgment in this case is affirmed on the authority of Crow v. Oxford, 119 U. S. 215, 7 Sup. Ct. Rep. 180. See, also, Post v. Supervisors, 105 U. S. 667, 671. It appears on the face of the bonds sued for that the subscription was made under and by virtue of the act of February 18, 1857, and that the vote of the town was taken at a special town meeting called upon the "application in writing of fifty legal voters of said town, which is in accordance with the provisions of that act. The act of March 6, 1867, which the plaintiff now claims is sufficient to support the bonds, requires that the application for the town meeting shall be made by "twenty voters and tax-payers." The record does not show that any of those who signed the application for the meeting at which the vote was taken were taxpayers. It thus appears from the bonds themselves not only that they were issued under the act of 1857, but that they were not issued under that of 1867. Affirmed. SUN MUT. INS. Co. OF NEW ORLEANS and another v. KoUNTZ LINE and another. (October 24, 1887.) Appeal from the Circuit Court of the United States for the Eastern District of Louisiana. On petition for rehearing. See 7 Sup. Ct. Rep. 1278. A. H. Garland, C. B. Singleton, and R. H. Browne, for petition. No brief in opposition. HARLAN, J. The rehearing asked is denied, and the mandate is modified so as to read as follows: "The decree, in so far as it dismisses the original libel of the appellants, the Sun Mutual Insurance Company of New Orleans, and the Hibernia Insurance Company of New Orleans, and adjudges that the M. Moore Transportation Company, and the K. P. Kountz Transportation Company, respectively, recover from said appellants the costs and expenses of the seizure, detention, and sale of the steam-boats J. B. M. Kellor and Katie P. Kountz, respectively, is reversed, and the cause is remanded, with directions to the court below to set aside all orders inconsistent with the rights of said appellants, as declared in the opinion of this court, and to enter such orders and decrees as may be in conformity therewith." ORIENT MUT. INS. Co. v. ADAMS and another. 1. INSURANCE-STEAM-BOATS-PERILS OF NAVIGATION-NEGLIGENCE OF CAPTAIN. 2. SAME STEAM-BOATS-PERILS OF NAVIGATION-DEFECTIVE MACHINERY. The policy provided that the company should be free of all claim for loss or damage occasioned by "the derangement or breaking of the engine or machinery, or any consequence resulting therefrom." Held, that the "consequence" referred to was an immediate or proximate, and not a remote consequence, and that, even if the mud-valve could be considered part of the machinery, the derangement of it, which appeared to have been repaired before the order to let go was given, was not a proximate cause of the loss. 3. SAME STEAM-BOAT-RECOVERY AS FOR TOTAL LOSS SUBSEQUENT FLOATING OF STEAMВоат. * The policy provided that there should be "no abandonment as for a total loss, ** unless the injury sustained be equivalent to 50 per cent. of the agreed value." That value was $27,000. The vessel was carried over the falls at Louisville, Kentucky, and sunk, April 28, 1880. She was abandoned as a total loss May 18, 1880. The company raised her in the spring of 1881, and put her in the condition she was in before the accident, at an expense of less than $6,000. Held, that the right to abandon was to be determined by the facts as they existed May 18, 1880, and that if it was then impracticable to recover and repair the boat, the place where she lay, the uncertainty as to when (if at all) a rise would come to float her off, and all the other attendant circumstances, being taken into consideration, the subsequent floating off of the vessel would not change the result. 4. SAME. The fact that a vessel abandoned as a total loss was recovered and repaired a year later, is not "the best evidence" that it was practicable to recover and repair it at the time of the loss. In Error to the Circuit Court of the United States for the Western District of Pennsylvania. This writ of error brings up for review a judgment against the Orient Mutual Insurance Company of New York, upon a policy whereby that company insured the defendants in error in the sum of $5,000 on the steamer Alice, of the agreed valuation of $27,000, against perils "of the seas, lakes, rivers, canals, fires, and jettisons that should come to the damage of said vessel or any part thereof." The policy provided, among other things, that the company should be free from all claim for loss or damage "arising from or caused by * ** barratry, * * * or occasioned by the bursting of boilers, the collapsing of flues, explosion of gunpowder, the derangement or breaking the engine or machinery, or any consequence resulting therefrom, unless the same be caused by unavoidable external violence;" that there should be "no abandonment as for a total loss on account of said vessel grounding or being otherwise detained, or in consequence of any loss or damage, unless the injury sustained be equivalent to fifty per centum of the agreed value in this policy; that the aforesaid vessel is, and shall be at all times during the continuance of this policy, tight and sound, sufficiently found in tackle and appurtenance thereto, competently provided with masters, officers, and crew, and in all things and means for the safe employment thereof;" and that "in no case whatever shall the assured have the right to abandon until it shall be ascertained that the recovery and repairs of said vessel are impracticable, nor sell the wreck, or any portion thereof, without the consent of the company." The insured sued as for a total loss arising from one of the perils specified in the policy. The company pleaded non assumpsit and payinent, with leave to give in evidence the matters set forth in its affidavit of defense, which was adopted as a special plea. Those matters will sufficiently appear from the facts which will now be stated. According to the bill of exceptions, there was evidence in behalf of the plaintiffs tending to show that, without willfulness or design on the part of her captain, the vessel was carried, April 28, 1880,-before the expiration of the policy, over the falls of the Ohio river, at Louisville, Kentucky, and sunk, receiving damage in a sum equal to 50 per cent. of her agreed value; and that on the eighteenth of May, 1880, it being apparently impracticable to float her off and repair her, the vessel was abandoned to the insurers as a total loss, and the sum due under the policy demanded. The evidence introduced by the company tended to establish these facts: The master of the Alice was C. F. Adams, one of the assured, and a son of the other plaintiff. Before the sailing of the vessel he had the reputation of being a "drinking" man, and of that fact his father was informed. On her arrival at Louisville, on the morning of April 28, 1880, the master gave the usual signal (which was transmitted to the engineer) that he had no present need of the engines. The joint of the mud-valve was out of order, threatening damage to the freight, and making repairs necessary. The steam was thereupon blown off in order to make repairs. The captain, coming on board, saw that repairs were going on, and knew that the mud-valve connected with the boiler needed repairs. The work of repairing made it necessary to blow off steam. The captain subsequently went on deck, and, without making inquiry of the engineer as to the condition of the steam or receiving any notice from him that the steam was ready, tapped his bell at 8:30 A. M. as a signal to let go the boat. At that time there was not sufficient steam to propel the vessel. It is the custom of the river, for the master, before giving the order to let go, to inquire of the engineer as to the condition of the steam, and await his reply that steam is ready before giving the order to let go. At the time of the accident the vessel was in a position to be carried over the falls, if she was let go without steam on. Upon being let go she was carried by the current down the river and over the falls, and, striking a pier, was badly damaged; in consequence of which she sunk soon thereafter below the bridge in about eighteen feet of water. There was also evidence in behalf of the company, tending to show that the vessel was but slightly injured, and, in the spring of 1881, was floated and removed from the place at which she sunk, and put in the condition in which she was before sinking, for a sum little less than $6,000; that when she was raised the plaintiffs refused to pay the expense thereof; that after May 18, 1880, the plaintiffs sold her furniture and apparel without the company's consent, and that on or about the twentyeighth of April, 1880, they put her into the possession of the Cincinnati Underwriters' Wrecking Company, which thereafter had the right of possession until the vessel was seized by the United States marshal under process, in December, 1880, upon maritime liens. To further maintain the issues on its |