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executed in accordance with an award of arbitrators filed at said term; that some time thereafter a deed was prepared and executed containing a clause restricting the power of alienation which was not in accordance with the said award and decree, was repugnant to the nature of the estate conveyed, and in disregard of article 1, § 31, of the state constitution, in relation to perpetuities; that the decree of October term, 1894, was made upon a supplemental bill in equity, filed by the district attorney under the direction of the secretary of the interior and the attorney general, for the express purpose of having a new deed in fee simple executed by the standing master in chancery, omitting the repugnant clause restricting the power of alienation; that, by such proceeding in this court, the United States fully recognized the right and power of the Eastern Band of Cherokees to make free alienation of their lands, and surrendered or waived control of them as to the timber contract involved in this suit. I am of opinion that the only purpose of the departments in the legal proceedings referred to was to have a deed executed which was in conformity with the award of the arbitrators, the decree of the court, and the laws of the state regulating the conveyance of lands within its limits. These matters relate to the merits involved in this case, and not to the in limine question of jurisdiction now before the court. Judge SIMONTON has expressed some views upon these questions in which I fully concur. I will say, further, that I am strongly inclined to the opinion that the action of the secretary of the interior, the attorney general, and district attorney in procuring, by procedure in this court, execution of the new deed under which the Eastern Band of Cherokees now hold their lands in fee simple as a corporation, neither expressly nor by implication relieved the United States from any obligation of duty imposed, or waived any power conferred by the constitution, treaties, or acts of congress. Eells v. Ross, supra. I am satisfied that the court has jurisdiction of this case. If I had any doubt as to jurisdiction, I would, in a court of equity, be disposed to regard with favor the maxim "boni judicis est ampliare jurisdictionem," to accomplish the ends of substantial justice and fair dealing. Courts of chancery in this country and England have, by a wise and salutary development of the principles of natural justice, built up an extensive, enlightened, and beneficent jurisdiction in equity for the purpose of redressing wrongs, securing rights, and affording remedies adequate to the requirements of justice.
I concur in the order of the circuit judge disallowing the motion, and continuing the injunction heretofore granted until the further order of this court.
FLORIDA CENT. & P. R. CO. v. CUTTING et al.
(Circuit Court of Appeals, Fifth Circuit. June 17, 1895.)
1. APPEAL-ASSIGNMENTS OF ERROR.
Assignments which merely allege error in making certain decrees, without more particularly pointing out in what the error consisted, are not in accordance with the requirements of rule 11 of the circuit court of appeals for the Fifth circuit, and will be stricken from the record on motion. 2. SAME-OBJECTIONS WAIVED-MASTER'S COMPENSATION.
An allowance to a special master being contested on appeal, the court stated that the allowance appeared on the face of the record to be excessive, and that, as the cause inust be remanded, opportunity should be allowed to regularly contest the same. The cause having been referred to a different master, the special master proved by his own evidence that he had earned the amount asked. No evidence was offered by the contestants to show the character or amount of his services. The allowance was, however, reduced in a considerable amount. Held, that on a second appeal the reduced allowance should not be disturbed.
Appeal from the Circuit Court of the United States for the Southern District of Florida.
This was a foreclosure suit brought by William Bayard Cutting against the Tavares, Orlando & Atlantic Railroad Company, in which the Florida Central & Peninsular Railroad Company intervened. On a former appeal certain decrees of the circuit court were reversed, and the cause was ordered to be referred to a master for certain purposes stated. 9 C. C. A. 401, 61 Fed. 150. Further proceedings were accordingly had in the circuit court, and the intervener has again appealed from decrees there entered.
John C. Cooper and John A. Henderson, for appellant.
H. Bisbee, C. D. Rinehart, and R. H. Liggett, for appellees. Before PARDEE and McCORMICK, Circuit Judges, and BRUCE, District Judge.
PARDEE, Circuit Judge, This case was before this court on appeal at the last term, when, on consideration, it was remanded to the court below "with instructions to refer the same to a master to report (1) the amount due and unpaid by the Florida Central & Peninsular Railroad Company on account of the purchase of the Tavares, Orlando & Atlantic Railroad properties, in accordance with the decree of April 14, 1891, and consistent with the views herein expressed, and as equity may require; (2) a schedule of distribution of the proceeds of sale, in accordance with the provisions of the decree of foreclosure and sale rendered December 24, 1890, consistent with the views herein expressed, and as equity may require; (3) to take evidence and report on the claim of Philip Walter, Esq., for compensation for services rendered in the progress of the cause as special master and master commissioner." After proceedings in the circuit court, it is again brought up on appeal with the following assignments of error:
"(1) That the court erred in making its order and decree herein dated the 9th day of February, A. D. 1895, on exceptions to master's report in abovestated cause. (2) The court erred in making its order and final decree dated the 2d day of March, A. D. 1895, confirming master's report, and ordering payment in above-stated cause."
The appellees have made the following motion:
"Come now the appellees, by Bisbee & Rinehart, their solicitors, and move to strike from the transcript of record in this cause the assignment of errors found on page 167 of the transcript, on the ground that the assignments of error are not made in accordance with rule 11, 11 C. C. A. cii., 47 Fed. vi. Neither of the two assignments state any particular error, nor indicate to the court or counsel in what respect the court erred. In fact, these assignments are nothing more than that the court erred in deciding the case at all."
This motion is undoubtedly well founded. Appellant has followed with a motion as follows:
"For leave to file further and additional assignments of error in said cause, in the event that the court sustain the motion of W. C. Lewis and others to strike the present assignments from the record; such further and additional assignments of error to cover the same matters as those heretofore assigned as error to the several rulings of the court below, and setting forth the grounds on which the said errors are assigned."
Without reference to the indefinite character of this motion, we deny the same, because the disregard of our rule 11 has become so general that without a decidedly equitable showing in favor thereof, we are no longer disposed to relieve counsel from the effects of their own neglect. As this case has been argued at length, orally and by brief, we will so far examine the record (as rule 11 provides) as is necessary to determine whether there are any plain errors upon the face of the record.
The first one suggested is that the report of the special master is erroneous in disallowing the sum of $613.92 of claims said to have been paid by the purchaser for and on account of obligations incurred by the receiver while operating the property before the sale. The special master found that the proof was not sufficient to show that the claims in question were really obligations of the receiver. On examination of the evidence submitted, we think there is no error in this finding.
The next complaint is that there was error in the report of the master, and carried into the decree appealed from, because a different basis for the allowance of interest was adopted as between the purchasing bondholder and the few outside bondholders. The purchasing bondholder was only allowed interest to May 14, 1891, the date fixed by the decree of confirmation for the purchaser to pay into court the balance of the purchase money, while the few outside bondholders, who have been, during all the delays caused by this litigation, kept out of their proportion of the proceeds, were allowed interest up to the date of the final distribution ordered by the decree herein appealed from. The practical effect of this is to compel the purchasing bondholder to pay interest upon such part of the purchase money as belonged to the outside bondholders from the time fixed by the court for the payment to the date of the decree, during which time, as the record shows, the purchaser has been retaining such portion of the purchase money. While the decree appealed
from in this respect is subject to some criticism, on the whole, we are of opinion that it does substantial justice between the parties. The next complaint is that the allowance of compensation to Philip Walter, Esq., first special master in the case, is excessive. On the hearing ordered for the purpose of permitting the parties to contest the amount of this allowance, no evidence whatever was offered by the contestants to show what was the character or amount of service rendered by Special Master Walter. Mr. Walter proved by his own evidence that he had earned the compensation asked. The court below reduced his demand from $5,915 to $5,280, allowing the latter sum. The appellant seems to rely wholly upon the remarks by this court on the former appeal, wherein Special Master Walter's allowance for services was contested. We then said:
"As, on the face of the record, the allowances complained of appear to be excessive, particularly in view of the character of the work as exhibited by the transcript, and as the case must necessarily be remanded and another reference ordered, and largely because there is no sufficient master's report in the record, we are of the opinion that the parties who are to be required to pay the apparently excessive allowances should be allowed the right to regularly contest the same."
Whether or not we continue of the same opinion with regard to the services and compensation in question, we are clear that on an appeal of this kind we ought not to substitute our opinion in place of the evidence, master's report, and decree of the court below.
The learned counsel for appellees have made a strenuous appeal to this court to impose damages upon the appellant for a frivolous appeal, and there are many phases of this case which seem to warrant the imposition of such damages. A majority of the judges, however, are indisposed to say that the appeal is wholly frivolous. The decree appealed from is affirmed, with costs.
WESTERN UNION TEL. CO. v. HENDERSON, Auditor.
(Circuit Court, D. Indiana. June 13, 1895.)
1. CONSTITUTIONAL LAW-SUIT AGAINST STATE.
A suit against the auditor of a state, to restrain him from certifying and transmitting to the county auditors valuations of the property of complainant, for the purpose of taxation, pursuant to a statute (Act Ind. March 6, 1893)1 claimed to be unconstitutional, on the ground that the acts sought to be enjoined would create a cloud upon complainant's title, and cause irreparable damage, is not a suit against the state.
2. SAME-ENACTMENT OF STATUTE-INDIANA ACT OF MARCH 6, 1893.
Held, following the decision of the supreme court of Indiana, that the act of that state of March 6, 1893, relating to taxation, was duly enacted, and violates no provision of the constitution of the state.
8. SAME-INTERSTATE COMMERCE-STATE TARIFF.
Held, further, that said act is not in violation of the constitution of the United States, as a regulation of commerce or as imposing a duty on im
1 For statute, see note at end of case.
ports or exports. W. U. Tel. Co. v. Taggart (Ind. Sup.) 40 N. E. 1051, approved.
This was a suit by the Western Union Telegraph Company against John Henderson, auditor of the state of Indiana, to restrain him from certifying valuations of the property of the complainant. The court granted a temporary restraining order. The defendant moves to dissolve such order, and also demurs to the bill.
Butler, Snow & Butler, for complainant.
W. A. Ketcham, Ind. Atty. Gen., Alonzo G. Smith, Merrill Moores, and Kern & Bailey, for defendant.
BAKER, District Judge. This is a suit in equity by the Western Union Telegraph Company, a corporation created and organized under the laws of the state of New York, and a citizen thereof, against John O. Henderson, auditor of state of the state of Indiana, and a citizen thereof, to restrain the defendant from certifying and transmitting to the several county auditors of the state the valuations of the property of the complainant in said counties for the purposes of taxation as fixed by the state board of tax commissioners under the provisions of an act of the general assembly of the state of Indiana approved March 6, 1893 (Acts 1893, p. 374; 3 Burns' Rev. St. Ind. § 8473 et seq.). The bill alleges that the defendant is threatening and about to certify and transmit said valuations for entry upon the tax duplicates of the several counties of the state, by means whereof an apparent charge against and cloud upon the title of the complainant's property would be wrongfully created, and that by this means great and irreparable damage and injury would be sustained by the complainant. It is alleged that the act of March 6, 1893, was not enacted in accordance with the provisions of the constitution of the state of Indiana; and, if it was so enacted, that it is invalid because in violation of various provisions of the constitution of the state of Indiana and of the constitution of the United States, which provisions are set forth with great particularity in the bill of complaint. It is further insisted that, if the above-mentioned act is not invalid for any of the foregoing reasons, the court ought to grant the injunctive relief prayed for because the state board of tax commissioners has adopted a rule of valuation the necessary result of which is to fix valuations on complainant's property higher than those fixed upon other property in the state. The court granted a temporary restraining order, and now the attorney general of the state moves the court to dissolve the same, and to dismiss the bill for want of equity. The sufficiency of the bill is also presented by a demurrer which asserts that the court is without jurisdiction to entertain the suit, because it is practically a suit against the state, and also on the ground that the bill does not state facts sufficient to constitute a cause of action entitling the complainant to any equitable relief.
The claim that the court is without jurisdiction has been earnestly and elaborately argued by the attorney general of the state both orally and upon a printed brief; and, while the court has at no