« ForrigeFortsett »
consenting creditors may garnishee the assignee for any excess of such estate remaining in his hands after the payment to the consenting creditors of their debts, and the costs and expenses of executing the assignment. If non-consenting creditors should not pursue that course, in case of an excess, the sixteenth section of the act, when the trust has been executed, and the assignee desires to be discharged therefrom, provides that the excess shall be paid into the district court, subject to be paid out upon the decree of that court, which would, no doubt, be so made as to protect non-consenting creditors who might show themselves entitled thereto, and take the necessary steps to fix a legal claim on the fund, in so far as the fund would go. If, however, no claim to such a fund was made by any creditor, the court, after the lapse of a reasonable time, would certainly direct the excess to be delivered to the assignor. Thus the statute regulates the whole matter, and must control, if there be any conflict between its provisions and the deed. If the property passes to the assignee for the benefit of creditors generally, or for the benefit of consenting creditors alone, no provision which the assignee can make in the deed can interfere with the distribution of the estate as the statute requires."
It is suggested by the defendants' counsel that this decision was made in view of an amendatory statute passed in April, 1883, which declares "that no fraudulent act, intent, or purpose of the assignor or assignee shall have the effect to defeat the assignment, or to deprive the creditors consenting thereto from the benefits thereof; but any such fraudulent act, intent, or purpose on the part of the assignee shall be a sufficient cause for his removal, as being an unsuitable person to perform the trust, and any consenting creditor may be or become a party to prosecute or defend in any suit or proceeding necessary or proper for the enforcement of his rights under such assignments, or for the protection of his interests in the assigned property." It is contended that this provision renders null and void stipulations like the one in question, so that the deed of assignment may have the effect and operation intended by the statute of 1879, notwithstanding such stipulation; and that the decision in Keating v. Vaughn was based on the amendment. But this cannot be true, inasmuch as the assignment in that case was made on the 9th of May, 1883, and the amendment did not go into effect until the 12th of July of that year. It carries out, however, the policy which we have supposed to pervade the act of 1879, of securing to the creditors of an insolvent debtor making an assignment a speedy and just appropriation of all his property to the payment of his debts.
In the case of Schoolher v. Hutchins, 66 Tex. 324, 1 S. W. Rep. 266, (the most recent reported case on the subject,) the deed of assignment (which was also executed before the amendment of 1883 took effect) authorized the assignee to sell the property at public or private sale, to employ the assignors to aid in the disposition of the property, with such compensation as he might deem proper, and to do various other things which the defendants contended were not lawful. But the court said: "If the deed of assignment attempted to confer powers which, under the law, an assignee could not legally exercise in the execution of the trust, this would not be a sufficient reason for holding an assignment invalid. When an assignment is made under the statute, the rights of creditors vest, and they can compel the assignee to exercise the powers which the law expressly, or by implication, confers upon him, as can they restrain him if he attempts to exercise powers which the law does not confer upon him." This view of the proceeding, as being wholly governed and controlled by law, and regarding as null and inoperative stipulations and powers in the deed contrary to, or not in conformity with, the provisions of the statute, and not as affecting the validity of the deed itself, so long as the main purpose is accomplished,-of appropriating the whole of the debtor's property to the payment of his debts,-seems to us so in harmony with the spirit and purpose of the act, that we do not hesitate to adopt it. We have given care
ful attention to the opinion of the circuit court in the present case, but have failed to be convinced by it, and feel constrained to express our concurrence in the line of decisions of the supreme court of Texas.
One or two other points are made in the briefs of counsel against the validity of the deed, which require but a brief notice. They are substantially met by the considerations already adverted to. First. It is objected that the deed does not convey all the debtor's estate, not exempt from forced sale, for the benefit of his creditors. It is a sufficient answer to say that it does, in terms, convey "all his lands, tenements, hereditaments, goods, chattels, property, and choses in action of every name, nature, and description, wheresoever the same may be, except such property as may be by the constitution and laws of the state exempt from forced sale." According to the decisions of the supreme court of Texas, this general description is sufficient, under the statute of 1879, to convey all the debtor's property. Blum v. Welborne, 58 Tex. 157, 161. The first section of the act declares that the assignment, however expressed, shall be construed to pass all the debtor's real and personal estate, whether specified therein or not. Secondly. It is objected that the deed of assignment does not, on its face, show that the assignor was insolvent, or in contemplation of insolvency. The obvious answer is that if this is a necessary requirement, the deed does state that the assignor "is indebted to divers persons in considerable sums of money, which he is at present unable to pay in full." When a person is unable to pay his debts, he is understood to be insolvent. It is difficult to give a more accurate definition of insolvency. The objection is without foundation. We do not observe any other objection which it is necessary specially to notice.
The judgment of the circuit court is reversed, and the cause remanded, with instructions to proceed therein according to law.
WILLAMETTE IRON BRIDGE Co. v. HATCH et al.1
1. NAVIGABLE WATERS-OBSTRUCTION BY BRIDGE-COURTS-FEDERAL JURISDICTION. The act of congress of February 14, 1859, (11 St. 383,) admitting the state of Oregon into the Union, provides "that all the navigable waters of said state shall be common highways, and forever free, as well to the inhabitants of said state as to all other citizens of the United States, without any tax, duty, impost, or toll therefor." Held, that the act did not prohibit obstructions to the navigation of such waters, and that, congress not having by subsequent legislation assumed police power over the Willamette river in that state, a bill by one citizen of Oregon against another to enjoin the erection of a bridge over that river at the city of Portland, authorized by an act of the state legislature, on the ground that the bridge impeded navigation, and that the act was passed without the consent of congress, did not present a case arising under the constitution or laws of the United States, and that the circuit court had no jurisdiction, both parties being residents of the same state. 2. SAME-FEDERAL CONTROL-IMPROVEMENTS BY CONGRESS.
The expenditure of money by congress in improving the Willamette river in Oregon, and the making of Portland on that river a port of entry, do not constitute an assumption by congress of police power over that stream, in the sense that the state is thereby deprived of the power of authorizing without the consent of congress the erection of a bridge over that river.
Appeal from the Circuit Court of the United States for the District of Oregon.
Rufus Mallory and John Mullan, for appellants. J. N. Dolph, for appellees.
BRADLEY, J. This is a bill of review filed by the appellants, a corporation of Oregon, to obtain the reversal of a decree made by the court below against them in favor of Hatch and Lownsdale, the appellees. The case is, shortly,
1Reversing 19 Fed. Rep. 347.
this: On the 18th of October, 1878, the legislature of Oregon passed an act entitled "An act to authorize the construction of a bridge on the Willamette river, between the city of Portland and the city of East Portland, in Multnomah county, state of Oregon;" by which it was enacted as follows, to-wit: "Be it enacted," etc., "that it shall be lawful for the Portland Bridge Company, a corporation duly incorporated under and in conformity with the laws of the state of Oregon, or its assigns, and that said corporation or its assigns be and are hereby authorized and empowered to construct, build, maintain, use, or cause to be constructed, built, and maintained or used, a bridge across the Willamette river, between Portland and East Portland, in Multnomah county, state of Oregon, for any and all purposes of travel or commerce; said bridge to be erected at any time within six years after the passage and approval of this act, at such point or location on the banks of said river, on and along any of the streets of either of said cities of Portland and East Portland as may be selected or determined on by said corporation or its assigns, on or above Morrison street of said city of Portland and M street of said city of East Portland; the same to be deemed a lawful structure: provided, that there shall be placed and maintained in said bridge a good and sufficient draw of not less than one hundred feet in the clear in width of a passage-way, and so constructed and maintained as not to injuriously impede and obstruct the free navigation of said river, but so as to allow the easy and reasonable passage of vessels through said bridge: and provided, that the approaches on the Portland side to said bridge shall conform to the present grade of Front street in said city of Portland." In the month of July, 1880, the appellants, the Willamette Iron Bridge Company, claiming to be assignees of the Portland Bridge Company, and to act under and by authority of said law, began the construction of a bridge across the Willamette river, from the foot of Morrison street, in the city of Portland, and proceeded in the work so far as to erect piers on the bed of the river, with a draw-pier in the channel, on which a pivot-draw was to be placed, with a clear passage-way on each side, when open, of 100 feet in width,—or, as the appellants allege, 105 feet in width. On the 3d of January, 1881, while the appellants were thus engaged in erecting the bridge, Hatch and Lownsdale filed a bill in the circuit court of the United States for an injunction to restrain the appellants from further proceeding with the work, and to compel them to abate and remove the structures already placed in the river. This bill described the complainants therein as citizens of the United States, residing at Portland, in the state of Oregon, and the defendants as a corporation organized under the laws of that state, having its office and principal place of business at Portland, and alleged that the Willamette river is a known public river of the United States, situate within the state of Oregon, navigated by licensed and enrolled and registered sea-going vessels engaged with commerce with foreign nations and with other states, upon the ocean, and by way of the Columbia river,-also a known public and navigable river of the United States,-from its confluence with the Columbia river to the docks and wharves of the port of Portland, and that, up to and beyond the wharves and warehouses of the complainants, Hatch and Lownsdale, it is within the ebb and flow of the ocean tides. That, by the act of congress of February 14, 1859, admitting the state of Oregon into the Union, it is declared "that all the navigable waters of said state shall be common highways, and forever free, as well to the inhabitants of said state as to all other citizens of the United States, without any tax, duty, impost, or toll therefor." 11 St. 383. That congress has established a port of entry at the city of Portland, on the Willamette river, and has required vessels which navigate it to be enrolled and licensed, etc., and has frequently directed the improvement of the navigation of the said river, and appropriated money for that purpose; and by an act approved February 2, 1870, giving consent to the erection of another bridge across said river from Portland to East Portland, asserted the powers
of the United States to regulate commerce upon said river, and to prevent obstruction to the navigation of the same, and in said act declared: "But until the secretary of war approves the plan and location of said bridge, and notifies the said corporation, association, or company of the same, the bridge shall not be built or commenced." The complainants further stated that Lownsdale was the owner and Hatch the lessee of a certain wharf and warehouses in Portland, situated about 750 feet above the proposed bridge, heretofore accessible to and used by sea-going vessels and others; and that Hatch is the owner of a steam tow-boat, used for towing vessels up and down the river to and from the said wharves and warehouses and others in the city; that vessels of 2,000 tons have been in the habit of navigating the river for a mile above the site of the proposed bridge; and that the said river ought to remain free and unobstructed. But they charge that the bridge and piers will be a serious obstruction to this commerce; that the passage-ways will not be sufficient for sea-going vessels, with their tugs; that the bridge is being constructed diagonally, and not at right angles, to the current of the river; that it will arrest and pile up the floating ice and timber in high stages of water in such a way as to obstruct the passage of vessels; and in various other particulars stated in the bill it is charged that the bridge will be a serious obstruction to the navigation of the river. The complainants contended that the act of the legislature authorizing the bridge contravenes the laws of the United States declaring the river free, and was not passed with the consent of congress, and was a wrongful assumption of power on the part of the state; and alleged that the pretended assignment by the Portland Bridge Company to the defendants, the Willamette Iron Bridge Company, was not in good faith and was not authorized by the directors of the former; and stated various other matters of alleged irregularity and illegality on the part of the Portland Company and the defendants. They also stated that the bridge was not being constructed in conformity with the requirements of the state law; that, by reason of its diagonal position across the river, the thread of the current formed an acute angle with the line of the bridge, and that the draws do not afford more than 87 feet of a passage-way for the passage of vessels; and that vessels will be unable to pass through said bridge for at least four months of the busiest shipping season of the year. The defendants in that case, the Willamette Iron Bridge Company, filed an answer in which they admitted that they were building the bridge, and claimed to do so as assignees in good faith of the Portland Bridge Company, under and by virtue of the act of the legislature before mentioned, but denied the allegations of the bill with regard to the injurious effects of the bridge upon the navigation of the river, and averred that they were complying in every respect with the state law. The cause being put at issue, and proofs being taken, on the 22d of October, 1881, a decree was made in favor of the complainants for a perpetual injunction against the building of the bridge, and for an abatement of the portion already built. The decision of the case was placed principally on the ground that the bridge would be, and that the piers were, an obstruction to the navigation of the river, contrary to the act of congress passed in 1859, admitting Oregon into the Union, and declaring "that all the navigable waters of the said state shall be common highways, and forever free, as well to the inhabitants of said state as to all other citizens of the United States, without any tax, duty, impost, or toll therefor;" and that, without the consent of congress, a state law was not sufficient authority for the erection of such a structure; and, even if it was, the bridge did not conform to the requirements of the state law. See Hatch v. Bridge Co., 7 Sawy. 127, 141, 6 Fed. Rep. 326, 780.1 The defendants took an appeal, which was not prosecuted; but after the decision of this court in the case of Escanaba Co. v. Chicago, 107 U. S. 678, 2 Sup. Ct. Rep. 185, they filed the
1See, also, 27 Fed. Rep. 673.
present bill of review for the reversal of the decree. The reasons assigned for a reversal are, among others, that the court erred in holding and decreeing as follows, to-wit: (1) That the bridge, where and as being constructed, was a serious obstruction to the navigation of the Willamette river, contrary to the act of congress of February 14, 1859, admitting the state of Oregon into the Union, which declares that all the navigable waters of the state shall be common highways, and forever free to all citizens of the United States; (2) that the said court, under section 1 of the act of March 3, 1875, giving it jurisdiction of a suit arising under an act of congress, has authority to restrain parties from violating said act by obstructing the navigation of any of said waters, at the suit of any one injured thereby; (3) that the proposed bridge is and will be a nuisance and serious impediment to the navigation of said river; (4) that the legislature of the state of Oregon has not the power to say absolutely that a bridge may be built with only a draw of 100 feet; (5) that the Willamette Iron Bridge Company, as the assignee of the Portland Bridge Company, was not authorized by the act of the legislative assembly of Oregon to construct the said bridge, because it would be a violation of the said act of congress of February 14, 1859, admitting the state of Oregon into the Union, and was and is, therefore, void; (6) that the defendant should be perpetually enjoined from constructing or proceeding with the construction of the said bridge; and (7) that the defendant should be required to abate and remove out of said river all piers, foundations, etc., which it has placed or constructed therein. This bill was demurred to, and the court affirmed the decree in the original suit and dismissed the bill of review. Bridge Co. v. Hatch, 9 Sawy. 643, 19 Fed. Rep. 347. The present appeal is taken from this decree.
On a pure bill of review, like the one in this case, nothing will avail for a reversal of the decree but errors of law apparent on the record. Whiting v. Bank, 13 Pet. 6; Putnam v. Day, 22 Wall. 60; Buffington v. Harvey, 95 U. S. 99; Thompson v. Maxwell, Id. 397; Beard v. Burts, Id. 434; Shelton v. Van Kleeck, 106 U. S. 532, 1 Sup. Ct. Rep. 491; Nickle v. Stuart, 111 U. S. 776, 4 Sup. Ct. Rep. 700. Does any such error appear in the present case? The court below has decided in the negative. We are called upon to determine whether that decision was correct. It must be assumed that the questions of fact at issue between the parties were decided correctly by the court upon its view of the law applicable to the case. But the important question is, was its view of the law correct? The parties in the cause, both plaintiffs and defendants, were citizens of the state of Oregon. The court, therefore, must necessarily have held, -as we know from its opinion that it did hold,that the case was one arising under the constitution or laws of the United States. The gravamen of the bill was the obstruction of the navigation of the Willamette river by the defendants, by the erection of the bridge which they were engaged in building. The defendants pleaded the authority of the state legislature for the erection of the bridge. The court held that the work was not done in conformity with the requirements of the state law; but whether it were or not, it lacked the assent of congress, which assent the court held was necessary in view of that provision in the act of congress admitting Oregon as a state, which has been referred to. The court held that this provision of the act was tantamount to a declaration that the navigation of the Willamette river should not be obstructed or interfered with, and that any such obstruction or interference, without the consent of congress, whether by state sanction or not, was a violation of the act of congress; and that the obstruction complained of was in violation of said act; and this is the principal and important question in this case, namely, whether the erection of a bridge over the Willamette river at Portland was a violation of said act of congress. If it was not, if it could not be, if the act did not apply to obstructions of this kind, then the case did not arise under the constitution or laws of the United States, unless under some other law referred to in the bill.