Without further comments, we think it our duty to order that he pay to the United States a fine of two hundred and fifty dollars and the costs of this proceeding, and that he stand committed to the custody of the marshal of this court until said fine and costs are paid. Dissenting, Mr. Justice Field and Mr. Justice Hunt.

of it, is a violation of the injunction of the he was fully heard and his rights conclusively
court in this case, and that the defendant, decided.
Chiles, is guilty of a contempt in that regard.
Section 725 of the Revised Statutes declares
that the courts of the United States shall have
power to punish by fine and imprisonment for
contempts of their authority. And among the
cases specially enumerated are "Disobedience
or resistance by any officer of the court, or by
any party, juror, witness or other person, to
any lawful writ, process, order, rule, decree or
command of the said courts." Such has always
been the power of the courts both of common
law and equity. The exercise of this power
has a twofold aspect, namely: first, the proper
punishment of the guilty party for his disre-
spect to the court or its order, and the second,
to compel his performance of some act or duty
required of him by the court, which he refuses
to perform. Stimpson v. Putnam, 41 Vt., 238.
In the former case, the court must judge for
itself the nature and extent of the punishment,
with reference to the gravity of the offense.
In the latter case, the party refusing to obey
should be fined and imprisoned until he per-
forms the act required of him or shows that
it is not in his power to do it.



We are asked by counsel for complainant to act upon this latter principle in the present case. But it is not pointed out to us very clearly what act it is in the power of defendant to perform commanded by the decree and which he refuses to do. The bonds are not in his possession or under his control. He cannot, therefore, deliver them up as the decree orders. There is no decree that he shall pay their value. The only order which he is shown to have violated is the one we have considered,

enjoining him from setting up a claim to them. 169*] *The petition for the present rule on Chiles asks that he may be ordered by a proper instrument in writing to convey and transfer to the State of Texas all rights, titles and interest which he appears or pretends to have in said bonds, and counsel in oral argument says he should be imprisoned for contempt until he complies with this order.

But the obvious answer to this is that no such order or decree has been made, and defendant can be guilty of no contempt in not doing this until he has been ordered to do it, and he is aware of it. To make an order now; and then punish for contempt or disregard of it before it was made, is ex post facto legislation and judicial enforcement at the same


It is true that the original decree contains a provision for further directions in the enforcement of it, and it may be that such an order as is asked for now would be made on proper application and proper notice to the parties concerned, but such a proceeding can constitute no part of process for contempt in disregarding an existing order of the court. The granting or refusal of such an order is governed by very different considerations, and is to be brought to the attention of the court by very different proceedings than such as belong to the one now before us.

We are left, then, to the consideration of what punishment we shall impose upon Mr. Chiles for the violation of this court's injunetion in a suit to which he was a party, where


(See S. C., 22 Wall., 322-329.)

Stipulation as to transfer of cause-jurisdiction.
1. Where the parties have, by stipulation and
agreement, placed on file and made part of the rec-
Circuit Court by transfer from a State Court, in ac.
ord, admitted that the cause was brought to the
cordance with the statutes in such case provided,
and that all the original files in the cause had been
ties accepted the transfer, it will be presumed that
destroyed by fire, and both the court and the par-
the files did then contain conclusive evidence of
the existence of the jurisdictional facts.
the United States jurisdiction, but the parties may
2. Consent of parties cannot give the Courts of
admit the existence of facts which show jurisdic-
tion, and the courts may act judicially upon such
[No. 199.]

an admission.

Submitted Feb. 24, 1875. Decided Mar. 22, 1875.
IN ERROR to the Circuit Court of the United
States for the Northern District of Illi-

The case is stated by the court.
Messrs. E. Walker and R. Biddle Rob-

erts, for plaintiff in error:

This court has said repeatedly, that when the jurisdiction depends upon the character of the parties, it must be positively averred upon the record. An omission to do so is a fatal defect, in error although no question of jurisdiction was made in the court below. There nowhere appears on this record any averment lusion made even to her residence. of the citizenship of plaintiff, nor is any al

Bingham v. Cabot, 3 Dall., 382; Abercrombie v. Dupuis, 1 Cranch,. 343; Wood v. Wagnon, 2 Cranch, 9; Brown v. Keene, 8 Pet., 112; Jackson v. Ashton, 8 Pet., 148; Piquignot v. The Pennsylvania R. Co., 16 How., 105; The Lucy, 8 Wall., 307, 19 L. ed. 393; The Nonesuch, 9 Wall., 504, 19 L. ed. 663; Pennsylvania Quicksilver Company, 10 Wall., 553, 19 L.

ed. 998.

for defendant in error:
Messrs. John Van Arman and J. W. Ross,

Mr. Chief Justice Waite delivered the opinion of the court:

This record shows that the action was originally commenced in the Superior Court of the City of Chicago. That it was afterwards transferred, according to the statute in such case provided, to the Circuit Court of the United States for the Northern District of Illinois; that while it was pending in that court undetermined, the files and pleadings were all de

by consent-see note to Governor of Georgia v. NOTE. Jurisdiction of Federal Courts not given Sundry African Slaves, 7 L. ed. U. S. 73.

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stroyed by fire; that after the fire the plain- | arises, therefore, whether under such circumtiff asked leave to file a declaration as a sub- stances we are confined to what is in terms exstitute for the one destroyed; that the defend- pressed upon the record sent to us, or whether ant assented to this request, and on the same we may resort to presumption3 to give effect day the court made an order as follows: "By to what is expressed. agreement of the parties, by their attorneys us We are reviewing the action of another per stipulation filed, leave is given them to file court and are to determine whether or not a copy of the declaration and plea heretofore there is error in what it has done. The restorafiled herein and destroyed by fire on the 9th tion of the lost files was not absolutely necof October last, and it is ordered that they beessary to support the jurisdiction of that substituted for and stand in place of the origi- court. Having been once there, the court is nal declaration and plea so destroyed;" that presumed to know their contents and is perthereupon copies of such pleadings were filed, mitted to act upon that knowledge. Parol but there was nothing in the declaration or proof, too, is admissible to aid the memory of plea to show the jurisdiction of the circuit the court. court; that on the 11th of June, 1872, the Consent of parties cannot give the courts of parties went to trial upon the issues joined, the United States jurisdiction, but the parties and a verdict was rendered for the plaintiff on may admit the existence of facts which show the 14th of the same month; that on the same jurisdiction, and the courts may act judicially day the defendant filed a motion for a new upon such an admission. trial, and on the 29th, a further motion in Here the parties have put into the record arrest of judgment, for the reason that there their joint admission that the cause was transwas nothing upon the record to show that the ferred to the circuit court from a state court, court had jurisdiction; and that, on the 29th and that the evidence of the transfer which was of December following, the court overruled once among the files has been destroyed. They both motions and gave judgment upon the have asked the court to act upon this admission verdict. It nowhere appears that either of the and proceed with the cause. The court did parties attempted to supply any of the lost proceed. The fair presumption from all this files except the pleadings, or that any objection is that it was then within the knowledge of was made to the jurisdiction until after the the parties and the court that there had been trial was had and a verdict rendered.

on the files in the cause everything which the The action of the court in overruling the statute required to be *there to complete [*328 motion in arrest of judgment, is alone assigned the transfer, and that the appearance and adfor error.

mission of the parties was expected and inIt is true that in cases where the jurisdic-i tended to have all the force and effect which tion of the courts of the United States depends a restoration of the papers could have. If, upon the character of the parties, as it no therefore, with these papers in the record the doubt does in this, the facts upon which it jurisdiction would appear, the judgment ought rests must somewhere appear in the record. not to have been arrested, and there is, conThey need not necessarily, however, be averred sequently, no error. in the pleadings. It is sufficient if they are We are, then, permitted to inquire what the in some form affirmatively shown by the rec- lost papers would have shown if they had been ord.

incorporated into the record, and for that purHere the parties have, by stipulation and pose may presume they contained all that the agreement placed on file and made part of the law required they should. record, admitted that the cause was brought To obtain the transfer of a suit, the party to the circuit court by transfer from a state desiring it must file in the State Court a peticourt in accordance with the statutes in such tion therefor and tender the required security. case provided. By the same stipulation it is Such a petition must state facts sufficient to made to appear that all the original files in entitle him to have the transfer made. This the cause had been destroyed by fire. True, cannot be done without showing that the Cir. the stipulation refers specially to pleadings cuit Court would have jurisdiction of the suit alone, but in this court, after what has occurred when transferred. The one necessarily includes below, it may with great propriety be assumed the other. If upon the hearing of the petition that it was intended to include all papers and it is sustained by the proof the State Court entries in the case.

can proceed no further. It has no discretion 327*] *The parties, after this destruction, and is compelled to permit the transfer to be asked to supply the pleadings. Neither party made. The petitioning party is then required seems to have considered that anything else to file in the Circuit Court copies of the procwas necessary. Each, apparently admitting ess, and of all pleadings, depositions, testimony jurisdiction, seemed anxious to get ready for and other proceedings in the State Court. This trial. They were permitted to file copies of includes the proceedings by which the transfer the lost declaration and plea and thus make up was effected, and these, as has been seen, must their issues. The record now before us con- show the facts necessary to give the Circuit tains none of the lost files, but is made up of Court jurisdiction. the stipulation above stated, the substituted Such are the papers which we are to presume pleadings, and the proceedings thereafter. were filed in this cause, and from what has oc

We have, then, a case before us upon error curred the conclusion is irresistible that they in which the record presented shows upon its must have contained all that was necessary to face that part of the files in the cause were de justify the court in accepting the transfer. stroyed before the record was made, and that This it need not have done unless the jurisdieneither one of the parties has considered it nec. tion was apparent. Either party upon the filing essary to have them supplied. The question of the papers could have moved to remand; or




the court itself, without a motion, could have had called it into being, and had usurped a sent the case back if the jurisdiction did not power which belonged only to the people; and

1 appear.

As both the court and the parties now, can we conclude that the Legislature, in accepted the transfer, it cannot for a moment this general way, proposed to cure or confirm be doubted that the files did then contain con- its proceedings? Will the language of the act clusive evidence of the existence of the juris- reasonably bear such a construction? Aside wonal facts.

from the constitutional prohibition, which is 329*] *This ends the case. With the lost clear beyond a doubt, and aside from the confiles in the record, we should see that the court sequences which would result from upholding had the right to permit the parties to litigate the power of the Legislature to exercise such before it as they did.

authority, can conclude from the Act There is here no question of a restoration of itself, or from any attending fact or circumlost records. This record has never been lost. stance, that it was the intention of the LegisIt was not made until after the fire. The liti- lature to legalize the illegal act of the county gation was pending when that calamity OC- officers, and to authorize the issue of bonds curred. What has been lost is part of the to pay for work done or to be done without files which, when the time arrived to make up the sanction of the people? a record, would have been incorporated into The Act does not purport to be curative. it. What we have to consider is, whether in To quote again from the brief of Judge Ewthe record as made their loss has been supplied. ing: "The aim of a curative Act is always We think it has by the recorded acts of the special and particular; although it may be parties and their stipulation.

general in its application to a class of things The judgment is affirmed.

or objects, it is pointed and distinctive as to the cause or the supposed necessity of it. Where several persons are supposed to influence legis.

lative action, or are invoked in the interpretaCRAIG RITCHIE, Appt.,

tion of a law, and some of these only are men0. FRANKLIN COUNTY et al.

tioned or referred to in the language of the UNTY

Act, those not alluded to or indicated cannot (See S. C., 22 Wall., 67–77.)

be brought within the intention or spirit of the County bonds, power to issue-curative Act. law. A fortiori, where the supposed motives 1. Where a state law gave authority to

to the enactment are twofold, and the primary ('ounty Courts to borrow money and bonds for one is not disclosed by any terms in the Act road purposes, where the amount of proposed ex. that would make it apparent, while the minor penditure had been submitted to a vote of the consideration is clearly manifested in plain people, the power conferred upon the County Courts cannot be exercised unless the proposed expenditure language, the former cannot be brought within is approved by the voters.

the scope and meaning of the Act, without 2. Where the Legislature subsequently passed a curative Act authorizing County Court's to isgue violating all the rules of interpretation. The bonds for the purpose of paying for the building application of this rule to the case at bar is of bridges and macadamized roads, which had been evident. This Act can have effect as respects contracted for and built, such Act is valid, it not the interest that such bonds might bear, the being forbidden by the State Constitution.

The Act, being, general in its language, is former law allowing only six, while this allowed Falid, although special legislation is forbidden in ten per cent. This, together with the removal the State Constitution.

of restriction in the sale of bonds, is the whole [No. 208.]

scope of the Act." Argued Mar. 2, 1875. Decided Mar. 29, 1875. The Act in question, as construed by the Su

preme Court of Missouri, is clearly unconstitu

tionalt States for the Eastern District of Missouri. Section 17, Article 4, of the State ConstituThe history and 'facts of the case are fully tion, prohibits, among other things, the passage stated in the opinion of the court.

of special laws, or laws affecting the construcMessrs. T. W. B. Crews, Wm. A. Letcher tion of roads, or the legalizing, except as and Jos. S. Laurie, for appellant:

against the State, of the unauthorized or invalid The Act of Mar., 1868, cannot be construed acts of any officer. After enumerating, in to be "curative" or confirmatory.

terms, those subjects which are expressly exIt is conceded that, up to the time of the empt from legislative interference, the concludapproval of the Act, the proceedings of thc ing paragraph of the section prohibits the pass. County Court and the bonds then issued were age of special laws for any case for which absolutely void. Says the opinion of the Su-provision can be made by a general law. preme Court of Missouri, at the conclusion of The Act of March, 1868, affected the conthe argument on the question of the power struction of roads, and was designed to legalvested in the County Court: “As no electionize the invalid and unauthorized acts of county was ever ordered, and no vote taken in this officers. Although expressed in general terms, case, the court had no jurisdiction whatever, it must have been framed with a view to meet and acted wholly without authority, and hence this case. Its generality was an attempt on the the bonds were void.” The suit was then pend- part of the Legislature to evade the provisions ing, and had judgment then been given, it of the Constitution, and to accomplish by indimust have been adverse to the bond holders. rect means that which it was forbidden to do The proceedings were not merely informal or directly. irregular. They were wholly without authority The Act is unconstitutional, because it is esand void ab initio. The County Court had pecially prohibited by the clause in the Declarabroken down the barriers which the law had tion of Rights, declaring that no law retroraised, had disregarded the authority which 'spective in its operation can be passed.

The Constitutions of New Hampshire, Ten- , Court of the State, the court of last resort, nessee, Texas and Missouri, and it may be of affirmed in all respects the judgment of the other States, contain this prohibition. The lower court. The plaintiffs, not satisfied with language in each is synonymous if not iden- the result of the litigation in the State Courts tical, and is so plain and unambiguous that its of Missouri, took the cause to the Supreme meaning cannot be misunderstood or qualified. Court of the United States, which refused to We refer especially to the case of Rich v. Flan- entertain it for want of jurisdiction. Then ders, 39 N. H., 304, where all the leading au- the resident taxpayers rested; but Craig thorities are collated and commented on, and Ritchie, a citizen of Washington County, Pennthe decisions of the Supreme Court of Missouri sylvania, seeks to renew the litigation in the in State v. Auditor, 33 Mo., 287, and Hope Mu- Circuit Court of the United States for the tual In. Co. v. Flynn, 38 Mo., 483, and cases Eastern District of Missouri, on the ground cited.

that he is a tax payer in Franklin County, and Mr. James O. Broadhead, for appellees. had nothing to do with the original suit.

The case comes here on exceptions to the Mr. Justice Davis delivered the opinion of answer, which really present but two questions the court:

for consideration : The object of this suit is to enjoin the col- 1. Whether there was authority to issue the lection of a special tax levied to pay the inter- bonds in controversy. est in certain bonds issued by the County of 2. Whether the judgment of the Supreme Franklin in the State of Missouri, which it is Court of Missouri, in the case described, is a alleged are illegal. It appears by the plead-bar to this action. ings in the case, that the County of Franklin As our view of the first point disposes of made a contract to macadamize and bridge a the case, it is unnecessary to consider the secpublic road leading from the county seat to ond. the west line of St. Louis County, and in pay. The Acts of the General Assembly of Misment for the work of the contractors, gave to souri of 1865 and 1866 gave authority to the them its bonds with coupons attached, which County Courts to borrow money and issue were transferred by them for value to bona bonds for road purposes where “the amount of fide holders. There was authority conferred proposed expenditure had been submitted to on the County to build this road if the people a vote of the people.” The County Court of were first consulted; but the sense of the voters Franklin County, construed the provision on was not taken, and the County Court in the the subject of this submission as discretionary transaction proceeded without it. After the and not mandatory. Although this construc. road was built and the bonds issued, the Legis- tion was wrong, the language used by the Leglature of the State on the 21st of March, 1868, islature gave color to it. passed an Act authorizing County Courts to To declare that a court "may, for the pur. borrow money on the credit of the County, and pose of information,” submit its proposed acissue coupon bonds for the purpose of paying tion to the people, is not the best nor the usual for macadamized roads which had been built, way of instructing the court not to do the or were in process of construction under their thing proposed unless the tax payers approved authority, and levy a special tax, if necessary, it. Such language is well calculated to misto pay for the accruing interest on the bonds. | lead anyone unaccustomed to the construction After the passage of this Act, the County of statutes, and it cannot be a matter of surCourt of Franklin County entered an order on prise that this County Court treated the proits records to issue bonds to the contractors to vision requiring a vote for information as pay for the work done on the road in question, discretionary. In doing this it doubtless acted and thereupon the former bonds were gurren- as other County Courts in the State had done dered and canceled, and a like number issued under like circumstances. That this election and purchased by the defendants in due course clause should cause litigation natural of business. Other similar roads were being enough, and we, therefore, find it presented for built by the same contractors at the same time adjudication in the case of R. R. Čo. v. Co. Ct. for the game County and the defendants had of Platte Co., 42 Mo., 171. no means of knowing whether the bonds they In that case it was held that the power conheld were issued to pay for the particular road ferred upon the County Courts could not be in controversy. They bought them in good exercised without the proposed expenditure faith for value, without notice or suspicion was approved by the voters. This decision of even of any infirmity or title. After all the necessity alarmed contractors, who had in bonds had been issued and negotiated for the good *faith constructed roads, and equal. [*75 macadamized roads in Franklin County, one ly so the holders of bonds issued for the pur. Steins, and two other citizens of Franklin pose of paying the contractors for their work. County, instituted a suit in behalf of them- To relieve these persons from the predica. selves and five hundred other citizens and tax ment in which they were placed the Legislature payers in the proper State and circuit court to passed a curative Act. This Act, on account test the validity of these proceedings. Said of special legislation being forbidden by the suit put in issue the legality and validity of Constitution of the State, had to be general said bonds, and the power and authority of in its language, and without reference to any the County Court to issue them and to levy particular county. It was eminently just that and collect a tax to pay the interest thereon, it should be passed. The value of good roads and also the validity and constitutionality of for the common use of every one can hardly said Act of March 21, 1868. These issues in be overestimated. As a general thing, in this the court of original jurisdiction were found country, they are within the control and superfor the defendant, and on appeal to the Supreme vision of the township, county, or other local


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authorities. Ordinarily they are improved and treated as an original power or as curative
kept in repair by means of local taxation, but and confirmatory legislation, it is equally valid,
this mode will not suffice when the wants of and this is the view taken of the subject by
the community_require that they should be that court. Steines v. Franklin Co., 48 Mo.,
macadamized. Especially is this true of a new 175.
State like Missouri. It seems that the County If the Act was. valid, the court had the
Court of Franklin engaged in a general scheme power to take up the bonds and issue others
for macadamizing the roads of the county and in lieu thereof.
bridging the streams in it. It is fair to pre- These bonds purport on their face to have
sume that this enterprise was undertaken in been issued *under the order of the [*77
obedience to a public sentiment on the subject, County Court of Franklin County, made in
although the sense of the voters was not ac- pursuance of the authority conferred on the
tually taken in conformity with the directions court by the Act of Assembly in question, and
of the statute. This is the more probable on as the defendants claim to be innocent holders,
account of the well known mania of the people and this is true for the purpose of the excep-
to run in debt for public improvements. The tion, the complainant has no standing in a
tax payers saw the large expenditures that court of equity.
were being made, and yet they took no steps The decree of the Circuit Court is affirmed.
to arrest them. Not until the works were com-
pleted and the securities had passed into the
hands of bona fide purchasers did they move
in the matter. If they had been incited to ac- THE OGDENSBURG & LAKE CHAMPLAIN
tion as soon as the contract was made, they RAILROAD COMPANY, Piff. in Err.,
would have been saved a heavy debt, and in-
nocent persons would not have suffered. In JEFFERSON PRATT and Harrison G. Brig-
this state of the case the Legislature interposed
and passed an Act to authorize County Courts

(See 8. C., 22 Wall., 123–136.)
to issue bonds for the purpose of paying for the Railroad company-agreement to carry beyond
building of bridges and macadamized roads

its own line-duty of-harmless error-conwhich had been contracted for and built. This

necting roads. Act refers to past transactions, and two days after its passage a new road law was passed 1. A railroad company may subject itself to the couched in such language that no one could obligations of a carrier beyond its own line.

2. Where there was competent evidence before mistake the character of the powers conferred. the jury that the railroad company undertook to 76*) *Thus it will be seen the Legislature carry property beyond its own line, and the jury intended to cure past errors, but left no room

have found such to be the fact, the other companies for future ones. In this way it was enabled | responsible.

are to be deemed its agents, for whose faults it is to relieve the hardship, caused by the con- 3. It is the duty of the carrier to furnish sultstruction placed on the imperfect language of nishes unfit or unsafe vehicles he is not exempted

able vehicles for transportation, and if he fura former Legislature, and at the same time from responsibility from the fact that the shipper to put an end to expenditures like those made knew them to be defective and used them. by Franklin County, unless a majority of the dence to show the carrier's contract.

4. The way-bill of the goods is admissible in evl. voters should approve of them. In many cases 5. This court will not reverse a judgment on acretroactive laws, although intended to effect a count of an error which clearly appears to have good purpose, have features of injustice about produced no injury, as where a question put to a

witness was erroneous in form, but the error was them. This is not that case. The bonds here harmless. were issued under a supposed authority, and 6. The rules of one of the connecting roads other no one interposed an objection. The tax pay affect the contract, although part of the goods were

than the contracting railroad cannot influence or ers rested until the mischief was done and then put on board on such connecting road. tried to get relief. It is certainly not unjust to them that the Legislature should say, "you

[No. 217.) must pay for an expenditure which you saw Argued Mar. 2, 3, 1875. Decided Mar. 29, 1875. incurred and could have prevented, but did

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motordelt this County Court shadt acted hw holle 1N FRRo Ro to the circuit Court off the United

outside of duties the aspect case States for Southern District of Massamight have been different. But the most that chusetts. can be said is that the court mistook the na- The history and facts of the case are fully ture of the power conferred upon it, and that stated by the court. this mistake would never have occurred if the Messrs. C. H. Hill and Geo. O. Shattuck, for Legislature had used language appropriate to plaintiff in error: the purpose.

The rule that holds the carrier liable only to There is no provision in the Constitution of the extent of his own route, and for the safe Missouri restraining the General Assembly storage and delivery to the next carrier, is in from conferring on counties the authority to itself so just and reasonable that we do not borrow money to improve their roads without hesitate to give it our sanction. asking the consent of the voters. If so, why Railroad Co. v. Mfg. Co., 16 Wall., 324, cannot the Legislature confer on counties the 21 L. ed. 301; 2 Kent, Com., 12th ed., 604, power to borrow money to pay for debts al. and n. ready contracted for this purpose ?

The law of Massachusetts, where this case We agree with the Supreme Court of Mis- was tried, is explicit to this effect. souri, that the Act in question, being an author

NOTE.---Liability of common carrier for goods to ity to do a particular thing, may be construed

be transported beyond its terminussee note to R. an original power. But whether it be

Co. v. Mfg. Co., 21 L. ed. U. S. 297.



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