(245 U. S. 105) |levy and collect taxes to pay the same" (1 HENDRICKSON, County Judge, v. APPER- Acts 1877-78, p. 554); they had been used to SON. compromise and take up others issued under (Argued Oct. 11, 1917. Decided Nov. 5, 1917.) an act of 1869, entitled "An act to incorporate the Cumberland & Ohio Railroad Company" (1 Acts 1869, p. 463). No. 427. 1. COURTS 366(6) DECISIONS OF STATE The holding of the Court of Appeals of Ken-"writ of mandamus, commanding and requiring tucky that Ky. St. 1894, § 4131, as amended in the defendants to levy a tax upon each one hun1906 (Acts 1906, c. 22, art. 8, § 3), authorizes dred dollars of property assessed for valuation the appointment of special collectors, each in said county for the year 1916, sufficient to charged with the duty of collecting only a des- pay plaintiff's aforesaid judgment, interest and ignated part of the assessed county taxes, must costs, and that they be required to include in the be accepted by the federal Supreme Court. order making the levy for ordinary county pur2. CONSTITUTIONAL LAW 144 COUNTIES poses the aforesaid levy for the purpose of pay194-COLLECTION OF TAXES-IMPAIRING ing the aforesaid judgment, and to further diOBLIGATION OF CONTRACTS. rect the said W. T. Hendrickson, as county Ky. St. 1894, § 4131, as amended in 1906 judge of Taylor county, that when he next ap(Acts 1906, c. 22, art. 8, § 3), construed as au- points a collector whose duty it shall be to thorizing the county court to appoint special col- collect any or all items by a levy made by the lectors, each charged with the duty of collect- fiscal court of Taylor county for any purpose, ing only some designated part of the assessed he shall embrace in said order of appointment a county taxes, impairs the obligations of con- direction to the officer appointed to collect both tracts of a county which has made repeated suc- the levy made to pay this judgment and the cessful efforts to avoid payment of its adjudi- levy made and to be made for any item which cated indebtedness, indicating a deliberate de- may be levied by said fiscal court, and that said sign on the part of its officials to deprive its county judge shall continue to so embrace said creditors of an efficacious remedy provided by directions in the same order of appointment unlaw and incorporated into its contracts, contrary til a collector is appointed who shall qualify as to Const. U. S. art. 1, § 10, as a judgment cred- such collector, and said county judge shall exact itor's right to have any tax levied to discharge of him but one and a single bond to cover the colhis judgment collected along with the taxes for lection of the levy made to pay this judgment, general county purposes was a substantial and as aforesaid, and the item or items of any levy valuable right. made by the fiscal court of Taylor county for 3. MANDAMUS any other purpose." 3(8)—EXISTENCE OF OTHER REMEDY-LEVY OF TAXES-STATUTORY PRO Answering, defendants set up: "That under the statutes of Kentucky, as construed by the Court of Appeals of Kentucky, the county court of Taylor county has a discretion as to whether it will appoint one person to collect all moneys due the state and the county, and taxing districts therein, or as to whether it will appoint separate collectors and designate in the order of appointment of each collector what he shall collect, including the right and discretion to appoint one collector to collect taxes levied by the fiscal court of the county for ordinary county purposes, and another collector to collect taxes levied by the fiscal court for other purposes, such as the payment of judgments against the county, and to direct in each order of appointment what taxes the appointee thereunder shall collect, and for the collection of which he should be required to give bond. And they respectfully submit that this honorable court cannot, by its judgment, control the aforesaid discretion of the county court of Taylor county, given it by the statutes of Kentucky as construed by the Court of Appeals of Ken tucky." Having heard the cause on demurrer to the answer, the trial court directed that appropriate levies be made during 1916, 1917, and *Mr. Justice McREYNOLDS delivered the 1918, to raise funds to satisfy respondent's opinion of the Court. judgment at the same time and by the same order which should provide for other county taxes; and further: Seeking to enforce a long-standing judgment against Taylor county, respondent in"That said defendants and their successors in stituted this proceeding (May, 1916) in the office, as the fiscal court of Taylor county, be, United States District Court at Louisville and they are hereby, ordered to place the tax against County Judge Hendrickson and jus- bill for each of the aforesaid levies for collection tices of the peace constituting the fiscal court. in the hands of the sheriff of Taylor county, and his successor in office, if any, and upon default" The judgment was based on bonds authorized of said sheriff to execute bond and qualify for by a special act of the Kentucky Legislature said office, then W. T. Hendrickson, county approved in 1878 and entitled, "An act for judge, and his successor in office, if any, constituting the county court of said county, is directthe benefit of Taylor county, empowering ited when he next appoints a collector whose duty to compromise its debts, issue bonds, and it shall be to collect any or all items of any For other cases see same topic and KEY-NUMBER in all Key-Numbercd Digests and Indexes *108 111 levy made, or which may hereafter be made by the fiscal court of Taylor county for any purpose, to embrace in said order of appointment a direction to such officer appointed to collect both the levy made or which may hereafter be made to pay this judgment and the levy made or which may hereafter be made for any and all items which are levied or which may be levied by said fiscal court; and said county judge, acting as said county court, shall continue to so embrace such directions in the same order of appointment until a collector is appointed who shall qualify as such collector by executing proper bond; and said county judge shall exact of him but one and a single bond to collect the levy made, or which may hereafter be made to pay this judgment as aforesaid, and the item or items for any levy made, or which may here after be made by said fiscal court for any other purpose. The Circuit Court of Appeals affirmed the action of the District Court, but upon a different view, following Tucker et al. v. Hubbert, 196 Fed. 849, 117 C. C. A. 365, and Graham v. Quinlan, 207 Fed. 268, 124 C. C. A. 654. Petitioners maintain that section 4131, Kentucky Statutes, as amended in 1906 and construed by the Court of Appeals (Commonwealth, etc., v. Moody, 150 Ky. 571, 150 S. W. 680), empowers the Taylor county court to appoint one collector of all county taxes, or, if so advised, to designate more than one and direct each to collect certain taxes, under a bond covering only those specifled, and that such discretion cannot be interfered with by mandamus. Respondent maintains that, properly construed, section 4131 permits appointment of only one such collector, and that if the 1906 amendment (Acts 1906, c. 22, art. 8, § 3) means what petitioners assert, it impairs his contract with the county, contrary to the federal Constitution. Article 1, § 10. It is stated, without contradiction, that prior to 1906 section 4131 embodied the applicable statutory provision concerning a collector in effect when the refunding bonds were issued. See Kentucky General Statutes (1873) c. 92, art. 8, §2; Kentucky Statutes of 1894, § 4131. The original section follows: "Section 4131. On the failure of the sheriff or collector to execute bond and qualify as hereinbefore provided, he shall forfeit his office, and the county court may appoint a sheriff or collector to fill the vacancy until a sheriff or collector is elected, or it may appoint a collector for the county of all moneys due the state, county or taxing district authorized to be collected by the sheriff, or it may appoint a separate collector of all the moneys due the state, county or any taxing district thereof during the vacancy in the office of sheriff; and in the event the county court fails for thirty days to appoint a collector of money due the state, the auditor of public accounts may appoint a collector thereof. Such collectors shall, within ten days after their appointment, execute bond as required of the sheriff, to be approved by the county court, and if the bond be not executed within said time the appointment of another collector may, in like manner, be made and qualified." The amendment of 1906 added these words: "But such collector shall only be required to give bond for and collect such taxes or moneys as may be mentioned or provided for in the order of the county court appointing him." [1] In Commonwealth, etc., V. Wade's Adm'r, etc. (Oct. 1907) 126 Ky. 791, 104 S. W. 965, the Court of Appeals held, that, under the original section, where there was no sheriff only one person could be appointed to collect all county taxes. In Commonwealth, etc., v. Moody (Nov. 1912) 150 Ky. 571, 150 S. W. 680, the same court construed the amendment, and held, we are constrained to conclude, notwithstanding some grave doubts, that it authorized appointment of special collectors, each charged with the duty of collecting only some designated part of assessed county taxes. And, of course, this construction by the state's highest court must be accepted. [2] But, so construed, we are of opinion that the amendment would impair the contract under which the bonds were issued, and upon which respondent has a right to rely. It cannot, therefore, be permitted to defeat the remedy theretofore available to him. The doctrine of this court here to be applied has long been established. In Von Hoffman v. City of Quincy, 4 Wall. 535, 550, 552, 553 (18 L. Ed. 403), through Mr. Justice Swayne, we said: sist at the time and place of the making of a "It is also settled that the laws which subcontract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This principle embraces alike those which affect its validity, construction, discharge, and enforcement. Nothing can be more material to the obligation than the means of enforcement. Without the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfillment wholly upon the will of the individual. The ideas of validity and remedy are inseparable, and both are parts of the obligation, which is guaranteed by the Constitution against invasion. The obligation of a contract is the law which binds the parties to perform their agreement.' The prohibition has no reference to the degree of impairment. The largest and least are alike forbidden. * It is! competent for the states to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined Whenever the reupon its own circumstances. sult last mentioned is produced the act is within the prohibition of the Constitution, and to that extent void." "The obligation of a contract, in the constitutional sense, is the means provided by law by which it can be enforced-by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means impairs the obligation. If it tend to postpone or retard the enforcement of the contract, the obligation of the latter is to that extent weakened." Louisiana v. New Orleans, 102 U. S. 203, 206 (26 L. Ed. 132). And see Seibert v. Lewis, 122 U. S. 284, 294, 295, 7 Sup. Ct. 1190, 30 L. Ed. 1161. 115 thereof the duty of levying and collecting Considered in the light of Taylor county's tempt to impose on the circuit court or judge notable and repeated successful efforts to avoid payment of adjudicated indebtedness and also in connection with the present controversy, we think it clear that the right to have any tax levied to discharge respondent's claim collected along with taxes for general county purposes was a substantial and valuable one. The circumstances indicate a deliberate design upon the part of county offi (245 U. S. 115) HENDRICKSON, County Judge, v. CREAGER. Nos. 428-431. cials to deprive its creditors of an efficacious (Argued Oct. 11, 1917. Decided Nov. 5, 1917.) remedy provided by law and incorporated into its contracts. To give the amendment the effect claimed would render easier of ac- On Writs of Certiorari to the United States complishment well-defined plans obviously Circuit Court of Appeals for the Sixth Circuit. Mandamus proceedings by Elizabeth Creager, designed to defeat proper judicial process by Hugh S. Gardner, by Mildred E. Hocker, and and in notorious operation long before its by the Sterling Land & Investment Company passage. There is here something more than against W. T. Hendrickson, Judge of the County provision for the ordinary and orderly re- Court of Taylor County, Kentucky. The judgment in each case granting the writ was affirmadjustment of administrative matters evi-ed by the Circuit Court of Appeals for the Sixth dently intended to facilitate public business. Circuit (238 Fed. 473, 151 C. C. A. 409), and Actual conditions cannot be ignored, and the defendant brings certiorari in each case. Affirmed. certainly we ought not, through assumptions out of harmony with patent facts and overnice refinements, to facilitate the practical destruction of admitted legal obligations. The declarations of the Court of Appeals of Kentucky in Commonwealth, etc., V. Wade's Adm'r, etc., 126 Ky. 801, 802, 104 S. W. 965, 967, are illuminating. Referring to the appointment of a separate collector charged with the sole duty of collecting a special tax ostensibly levied to satisfy a Judgment against Taylor county, it said: "There can be little doubt that the fiscal court, by what they did in the matter, were undertaking to nullify the judgment of the circuit court. The appointment of the special collector, Trotter, of whom nothing was ever afterward heard, and who in no way attempted to qualify as collector, or discharge the duties of that office, point to the fact that this was an ar rangement by which the fiscal court could seemingly comply with the judgment, but without, in fact, accomplishing anything. This unlawful purpose could only be successful by the failure of the regular collector of the revenue to do his duty in the premises, and to collect the taxes provided for by the special levy. Such juggling with the decrees and judgments of the courts cannot be tolerated. Ours, as has often been said, is a government of laws, and, if the judgments of the courts enforcing the law may be thus nullified or disregarded either by overt act or culpable negligence, government is at an end. The county is as amenable to the law as an individual, and it is the high duty of its officials to enforce the law wherever and whenever they are its ministers. * * It seems to us high time that it should be taught as a practical lesson, as well as a theory, that there are none so high as to be above the restraints of the law, or so low as to be beneath its protection." [3] The argument for petitioner, that the Refunding Act of 1878 provided an exclusive remedy through application to the circuit court in case the county court should fail in its duty, is not well founded. The decisions of the Court of Appeals in Muhlenburg County v. Morehead, 46 S. W. 484, 20 Ky. Law Rep. 376, and Pennington v. Woolfolk, 79 Ky. 13, make it quite plain that an "at Mr. Helm Bruce, of Louisville, Ky., for petitioner. Mr. L. A. Faurest, of Elizabethtown, Ky., for respondents. *PER CURIAM. The essential questions involved in these cases are the same as those considered and decided in Hendrickson v. Apperson. (No. 427) 245 U. S. 105, 38 Sup. Ct. 44, 62 L Ed. The judgment of the Circuit Court of Appeals in each of them is accordingly Affirmed. 1. COURTS 387(1) A writ of error and not an appeal was the SUPREME On writ of error to the Supreme Court of the Philippine Islands to review a judgment in a proceeding to register title to lands, the federal Supreme Court will not reconsider the conclusions of the lower court upon issues of fact which find support in the record. 3. APPEAL AND ERROR 3-PROPER MODE OF REVIEW-ABOLITION OF DISTINCTION. Act Sept. 6, 1916, c. 448, § 4, 39 Stat. 726 (Comp. St. 1916, § 1649a), providing that no court having power to review a judgment or decree shall dismiss a writ of error solely because an appeal should have been taken, or an appeal because a writ of error should have been sued out, but that it shall disregard such mistake or error and take the action which would be appropriate if the proper appellate procedure had been followed, does not abolish the distinction between writs of error or appeals, but only requires that the party seeking review shall have it in the appropriate way, notwithstanding a mistake in choosing the mode of review. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *116 Appeal from and in Error to the Supreme Court of the Philippine Islands. Proceeding by Compania General De Tobacos de Filipinas against Romana Gauzon to register the title to land. A judgment of the Court of Land Registration was modified by the Supreme Court of the Philippine Islands, and defendant appeals and brings error. Appeal dismissed, and judgment affirmed on the writ of error. Messrs. F. W. Clements, Alexander Britton, and Evans Browne, all of Washington, D. C., for appellant and plaintiff in error. Mr. F. O. Fisher, of Manila, P. I., for appellee and defendant in error. Memorandum opinion by direction of the court, by Mr. Justice DAY. In this case, submitted upon motion to dismiss or affirm, the present appellee and defendant in error, herein called the Company, made application in the Philippine Court of Land Registration for registration of certain property under the Torrens System. As described and claimed by the Company the hacienda contained 611 hectares, 33 ares, and 82 centares. The case was twice in the Supreme Court of the Philippines. After its first judgment that court granted a rehearing, and ordered a new trial, and we are concerned now with the writ of error and appeal to this court from the second judgment of the Supreme Court of the Philippines. The Supreme Court states that so far as Romana Gauzon was concerned the hacienda was made up of two portions, one consisting of 465 hectares, 33 ares and 82 centares, by royal grant, while the remaining portion was made up of 146 hectares obtained from other sources. Romana Gauzon had mortgaged the hacienda, and the same was bought by the Company at sheriff's sale; some time thereafter it made the application for registration. tration so as to decree the registration of all the land described in the application. This judgment evidently proceeded upon the determination of questions of fact. [1, 2] The writ of error was the proper method by which to review the judgment of the Supreme Court of the Philippines. Carino v. Insular Government, 212 U. S. 449, 29 Sup. Ct. 334, 53 L. Ed. 594; Tiglao v. Insular Government of Philippine Islands, 215 U. S. 410, 30 Sup. Ct. 129, 54 L. Ed. 257; Jover y Costas v. Insular Government, 221 U. S. 623, 31 Sup. Ct. 664, 55 L. Ed. 884. The case being properly here upon writ of error the appeal must be dismissed. Upon such writ the case having been decided upon issues of fact, this court will not reconsider the conclusions of the lower court, which find support in the record, in reaching its judgment. [3] Whether section 4 of the act of September 6, 1916, 39 Stat. 726, applies to this action in view of the fact that the appeal and writ of error were taken December 5, 1916, it is unnecessary to decide, as the section does not change the result. Section 4 provides that the reviewing court shall not dismiss a writ of error because an appeal should have been taken, or dismiss an appeal because a writ of error should have been sued out, but shall disregard such mistakes and take the action appropriate if the proper appellate procedure had been followed. This section does not abolish the distinction between writs of error and appeals, but only requires that the party seeking review shall have it in the appropriate way notwithstanding a mistake in choosing the mode of review. [4] Upon petition for rehearing in the Supreme Court the plaintiff in error contended that she should have been allowed the right of redemption. Upon that question the court adhered to its first judgment denying the right, and affirmed the doctrine announced in Benedicto v. Yulo, 26 Phil. 160. We are not disposed to disturb this judgment of the Supreme Court construing lo cal laws and announcing a rule applicable in the Islands. The judgment of the Supreme Court of the Philippines is Affirmed. On the retrial, after the first judgment of the Supreme Court, Romana Gauzon claimed to be the owner of the 146 hectares, alleging that they were not included in the mortgage. The Court of Land Registration refused registration of the 146 hectares. That court held that while Romana Ganzon had not (Submitted Oct. 8, 1917. Decided Nov. 5, 1917.) shown herself to be the owner of the 146 hectares, the Company had not clearly demonstrated that it was the owner thereof. The Supreme Court, in the judgment now under review, held that the Company had, as between itself and Romana Gauzon, shown title to the 146 hectares, and modified the judgment of the Court of Land Regis (245 U. S. 102) EICHEL et al. v. UNITED STATES FIDELITY & GUARANTY CO. No. 571. 1. COURTS 382(5) FEDERAL SUPREME COURT REVIEW OF DECISIONS OF CIRCUIT COURT OF APPEALS. Where a bill in equity, though showing that the parties were citizens of different states, was framed as a dependent and ancillary bill, and the court was asked to entertain it as such in virtue of the jurisdiction already acquired in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *103 pending actions at law arising under a law of the United States, a decree of the Circuit Court of Appeals in such suit was reviewable by the Supreme Court, under Judicial Code (Act March 3, 1911, c. 231) § 128, 36 Stat. 1133 (Comp. St. 1916, § 1120), providing that, with certain exceptions, judgments and decrees of the Circuit Court of Appeals shall be final, where the jurisdiction is dependent entirely upon diversity of citizenship, and section 241 (Comp. St. 1916, § 1218), providing that, where the judgment or decree of the Circuit Court of Appeals is not made final, there shall be of right an appeal or writ of error to the Supreme Court where the matter in controversy exceeds $1,000. 2. APPEAL AND ERROR 1126-AFFIRMANCE ON MOTION-APPEAL FOR PURPOSE OF DELAY. Where the decree appealed from was part of a prolonged litigation, in which the courts of two circuits, proceeding independently, had reached identical conclusions on the questions of fact, and the questions of law were few and well settled, and the rulings so clearly right that the appeal seemed to be without reasonable justification, and taken for delay, the decree will be affirmed on motion. ly sustained the equitable defense, partly sustained some of the others, ascertained the amount of the liability of the guaranty company upon the claims set forth in the actions at law, and ordered that this amount, with interest, be paid in satisfaction of those claims. The Circuit Court of Appeals made a small reduction in the amount of the company's liability, made provision for subrogating the company to the rights of Mrs. Eichel against a bankrupt's estate in process of administration, and affirmed the decree as so modified. 241 Fed. 357. [1] Plainly the bill was dependent and an cillary and the jurisdiction to entertain it was referable to that invoked and existing in the actions at law out of which it arose. Jones v. Andrews, 10 Wall. 327, 333, 19 L. Ed. 935; Dewey v. West Fairmont Gas Coal Co., 123 U. S. 329, 333, 8 Sup. Ct. 148, 31 L. Ed. 179; Minnesota Co. v. St. Paul Co., 2 Wall. 609, 633, 17 L. Ed. 8S6; Krippendorf v. Hyde, 110 U. S. 276, 281, 4 Sup. Ct. 27, 28 L. Ed. 145; Johnson v. Christian, 125 U. S. 642, 645, 8 Sup. Ct. 989, 1135, 31 L. Ed. 820; Carey v. Houston & Texas Central Ry. Co., 161 U. S. 115, 16 Sup. Ct. 537, 40 L. Ed. 638; Cortes Co. v. Thannhauser (C. C.) 9 Fed. 226; Hill v. Kuhlman, 87 Fed. 498, 31 C. C. A. 87. This being so, the decree of the Circuit Court of Appeals is open to review here. See Jud. Code, §§ 128, 241. The motion to dismiss the appeal is therefore denied. [2] The decree, as the record shows, turn Mr. B. M. Ambler, of Parkersburg, W. Va., ed upon questions of fact and of general for appellee, in support of motion. law, unaffected by any ruling upon any fed Mr. William M. Hall, of Pittsburg, Pa., for eral question. The case is part of a prolongappellants, in opposition to motion. It has ed litigation which is now brought to our attention for the fourth time. Bray v. U. S. Memorandum opinion by Mr. Justice VAN Fidelity & Guaranty Co., 225 U. S. 205, 32 DEVANTER, by direction of the Court. Sup. Ct. 620, 56 L. Ed. 1055; Id., 239 U. S. A motion to dismiss or affirm is presented. 628, 36 Sup. Ct. 164, 60 L. Ed. 475; Eichel In its simplest form the case is this: Lau-V. U. S. Fidelity & Guaranty Co., 239 U. S. ra Eichel as use plaintiff began 18 separate 629, 36 Sup. Ct. 165, 60 L. Ed. 475. actions at law against the guaranty company in the District Court for the Western District of Pennsylvania, all being cognizable in that court because arising under a law of the United States. The guaranty company, conceiving that it had a partial equitable defense, not admissible at law, which was common to all the cases, and other partial defenses in particular cases, exhibited in that court a bill describing the actions at law, setting forth the defenses, showing that nothing was in controversy beyond the defenses, and praying that the entire matter be examined and adjudicated in a single proceeding in equity and further proceedings at law enjoined. Although showing that the parties were citizens of different states, the bill was framed as a dependent and ancillary bill and the court was asked to entertain it as such in virtue of the jurisdiction already acquired. The court did entertain it and ultimate engaged the attention of the courts of two For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |