Grant v. Cooke

7 D.C. 165 | D.C. | 1871

Lead Opinion

Mr. Chief Justice Cartter

delivered the opinion of the-Court:

While the controversy in this case embraces grave and interesting questions, ably and elaborately discussed, the importance of the issue is practically lessened in the fact that the political power of the District, pending the controversy, has wisely referred the subject to the people, thereby deferring their ultimate action to the popular determination. It is, nevertheless, here to be disposed of, and wTe will proceed to treat it as a living question.

It will be seen by reference to the bill, answers, and ■demurrers in this case that the central and controlling subject of consideration is to be found in the issue, whether the loan authorized and the indebtedness proposed to be contracted in the act of the territorial government, of July 10, 1871, is in excess of the authority of the territorial government as established by the organic law of the District. It is charged in the bill that it is, and by the answers and ■demurrers in different forms denied.

Whether in excess of authority or otherwise, is again made to depend upon the relation of the indebtedness of the antecedent governments within the District to the indebtedness of the District.

If the indebtedness of the corporations of the cities of Washington and Georgetown, and the Levy Court, are by the act of territorial organization brought forward and ■engrafted upon the government of the District of Columbia to swell its aggregate debt in such wise as to make the District of Columbia, as a whole, debtor to the creditors of these several corporations, it follows that the loan authorized and in process of consummation, is beyond the limitations of the organic act, and ultra vires.

If, on the other hand, the several .indebtedness of these ■several corporations remain the several indebtedness of thé people and property of the corporations, not having been legally transferred to the shoulders of the present government, the $4,000,000 loan, authorized by said act, and in process of negotiation, is within the limitations of the organic law'. These results are made to follow upon the estimated valuation of the property of the District, as conceded in the argument.

Has Congress, therefore, by the organic act of the District, ■or otherwise, imposed this indebtedness upon the District? The first answer to this question is to be found in an utter want of constitutional power to do it. The Constitution does provide that the property of the private citizen may be taken for public use upon fair compensation therefor, but in no principle or passage of the Constitution does the authority exist to transfer the property of one private citizen to another without his consent, or to transfer the legal burdens of one citizen to another without his consent. And what is true of natural persons is equally true of corporate persons. The search will be made in vain to find constitutional authority by which one corporate body, without its consent, can be made to bear the burden of another.

From this manifest want of authority to do it, it may be reasonably inferred that Congress did not undertake to do it. That they did not.undertake to do it is made manifest in the scheme asid by the terms of the organic act. The first section of the organic act provides that that portion of the territory of the United States within the District of Columbia, with the population thereof, shall be created, into a government. Not that the city of Washington, the city of Georgetown, and the county shall be transmigrated into a government; but that the territory and the people of the District of Columbia shall be created into a government, and, of necessity, without debtor or creditor, either of which is made to depend upon the act of the government posterior to its creation, inasmuch as all indebtedness and credits require parties to create them. The identity between this government and the old one is to be found nowhere. They are different in their geography, property, population, and power. The constituents of the present government is made up of old corporations, incompatible with each other, so far as their antecedent liabilities existed. The present government finds Washington City a large debtor, while Georgetown and the county are comparatively free from debt. To adjudge Georgetown and the county a joint debtor with Washington ■would be to compel them to respond to an indebtedness which they never created, and the benefits of which they never did and never can realize.

But Congress has not left this question to the force of logic. The law maker undertook and accomplished the-solution of this question in the- 40th section of the organic-act, wherein it is provided that each of these corporations shall, respectively, pay its own debts and collect its own credits, to its respective and exclusive use, and its respective and exclusive obligation. To this end Congress provided in the same section that the life of the several charters-should be extended, with all the rights and liabilities in contract up to the end and time when they should be “ fully closed;” bringing the expiring corporations into no other relations with the present governrp.ent than to make the territorial legislature and other functionaries of the existing government the trustees under the law, and in the locusquo of the defunct officers of the former corporations to see that the proper machinery was employed to collect and pay their debts.

Other considerations might be added in aid of this conelusion; considerations drawn from the body of the act,, and outside of it; but enough has been said, in my judgment, to satisfy the mind that the complainants might as well have resorted to the trust and’ mortgage records of the District with a view to ascertain the individual indebtedness of its citizens, and, after having done so, claimed the sum total of such indebtedness as a part of the aggregate debt of the District, for such indebtedness sustains the same-relation to the present government as the indebtedness upon which they rely.

This conclusion makes it unnecessary to consider the-questions which have been made, and ably elaborated in argument, touching the jurisdiction of the court.

If the merits of the controversy fails to support the injunction, it is needless to inquire iiito the question of jurisdiction.

And, again, this conclusion makes it unimportant to inquire into the other features of the act, relative to the disposition of this fund when acquired; questions that do not necessarily involve the power to create the indebtedness, but pertain to the legal mode of disposing of the treasure after it is acquired. It will be time to consider the question of the disposition of this fund after the Government comes into possession of it. There certainly is no legal propriety by injunction, or otherwise, for the court to interfere with it before it exists.

So of the question of taxation that has been raised. This is not a question involving the measure of taxation under the limitations of the act. No tax is levied in the premises, either within or beyond the limitations of the organic act; and it will be early enough to consider whether the law has been violated and the court has power to interfere with that violation by injunction when the violation is attempted.

Mr. Justice Mac Arthur said:

Objections are taken to the bill of complainants for the reason that it does not state a case of equity for an injunction. This grows out of the rules of pleading which require special allegations in a suit of this character, showing that the plaintiffs would suffer irreparable injury, or would be subjected to excessive litigation in order to invoke the equitable powers of this jurisdiction. An alleged defect of parties is also relied upon, and it is further contended that, even if the bill were not defective in form, every special allegation stated in the bill is denied in the answer, and that, therefore, the action ought to be dismissed. These objections are only of technical importance, and perhaps might be obviated by a reformation of the record. In this particular instance I -would not deem it just to the case to dispose of it without considering the real merits in controversy. I shall, therefore, examine into the substance and law of the record as if it were free from the impeachment of formal objection.

The injunction was issued to restrain the Governor, Secretary and Comptroller of the District of Columbia from signing or selling bonds in pursuance of an act of theLegislat-ive Assembly, approved July 10, 1871. The act, among other provisions, makes an appropriation of $4,000,000 for improvements, and authorizes the Governor to issue bonds to that amount, $1,500,000 to be sold during the year 1871, and the balance between the 1st day of January, 1872, and the end of the first fiscal quarter after the next session of the Legislative Assembly. One of the grounds upon which the complainants ask for relief is, that the act contains several provisions and omissions of provisions in direct violation of the Act of Congress creating the -District government. To sustain this point it is said that all the objects of the act are not expressed in its title ; that it does not show on its face that two-thirds of the members directed it to go into effect within thirty days; that before an appropriation could be made the Legislative Assembly was bound to fix the time of the commencement of its next session ; that the Board of Public Works are authorized to make contracts according to a plan, the details of which are not expressed in the act; that the Board of Public Works are to disburse the money on their own warrants, and draw it out of the Treasury — all of which, it is argued, are in violation of the organic act. It is unnecessary to consider the force of these objections; for, assuming them to be well founded, it would follow as a legal consequence, that a law so burdened with infractions would be so utterly void that no rights could be acquired under it. It would carry on its face notice of its invalidity, and, therefore, equitable relief prayed for could not be granted, on the ground that the bonds may get into the hands of bona fide holders, and thereby the taxpayers compelled to pay them. There can be no bona fide holders of bonds issued in pursuance of ah act void on its face, and the tax-payer could not be prevented from contesting their legality in an action at law; for the bonds would be illegal and void in the hands of any one wTho may purchase them,- no matter whether they be purchased in good faith or not. The doctrine that the mere illegality of a tax law will not justify the interposition of a court of equity, however much it may have been disputed, or whatever doubts may have existed on the point growing out of the decisions in Osborne vs United States Bank, 9 Wheat., 740, and Dodge vs. Woolsey, 18 How., 331, is now fully recognized by the Supreme Court of the United States in the recent ease of Dow vs. City of Chicago, 11 Wall., 108. So that a mere statement of these objections to the act in question ousts the jurisdiction which we are invoked to exercise.

The principal objection to the loan act, -which is not apparent upon its face, is, that the four millions of indebtedness which it authorizes would swell the aggregate debt beyond 5 per cent, of the assessments, without submitting the law to a vote of the people. A majority of the court are of opinion that the debts of the old corporations are not to be computed in the aggregate debt of the new' government, and as I concur in the view's expressed by the Chief Justice respecting this provision of the bill, I refrain from its further discussion.

There still remains the important question whether this court has jurisdiction of complainants’ bill. It is a question of singular importance ; for it requires us to determine the nature of the government established by the Act of Congress in the District of Columbia. It does not belong to our position or authority to determine what form of government shall exist here. That has been accomplished by the Congress, w'hich is the only competent power to designate the political constructions within the District; and what they have ordained is as conclusive upon the judicial department as on the private citizen. I have carefully examined the essential provisions of the organic law bearing on this subject; and as the question is one of the greatest interest, and as I differ from the learned justice who passed the decree below — for wdiose pronounced opinions I entertain the profoundest respect — it is proper I should explain the reasons which have led to my conclusions. It is asserted! on behalf of complainants that only a municipality was. created by that act in the restricted sense in which that term is understood when applied to city organizations ; and that, therefore, the court may, as it has often done, enjoin its officers and exercise its jurisdiction over them, as in case of persons. The theory contended for on behalf of defend■ants is, that the organic law enacted by Congress provided a form of government for the territory embraced within this District, and conferred upon it general legislative authority within the sphere of its delegated powers. There can be no doubt that the act was formed after the model of the existing territorial governments, and is analogous to them in its general provisions. The slightest inspection will show not only a similarity in the kind of powers conferred, but in the terms and phraseology employed by Congress to convey their intention. It is a rule in construing statutes to compare one law with other laws of the same legislature upon the same or similar subjects, in order to ascertain its. meaning ; and it is to be inferred that all statutes relating to the same or similar subjects are governed by the same policy, and have the same scope and design. Potter’s Dwarris, 189 and note 9. If we find in the statutes respecting the territorial governments the same terms and powers as in that organizing a government “for all that part of the territory of the United States included within the District of Columbia,” it follows as a legal and necessary result that similar powers of Government were* conferred in both cases. The counsel for the appellees contend that the first section of the organic act constitutes the new’ Government a municipal corporation for municipal purposes in express terms. There is no doubt in my own mind but that- the subsequent sections of the statute provide for a distinct and separate government according to the American idea of that term, subject, of course, like all other territorial governments to the unlimited control and discretion of Congress. Now, if there is anything inconsistent in the first section with all that follows, it is the duty of the court to consider all the parts of the act in order to render it harmonious, if that be possible. Says Mr. Dwarris, at page 189: “ It is the most genuine exposition of a statute to construe one part by another part of the same statute. If any part of a statute be obscure or doubtful, the proper way to discover the intent is to consider the other parts of the act, for the words and meaning of one part of a statute frequently lead to the sense of another, and in the construction of one part of a statute every other part ought to be taken into consideration.”

By the aid of this familiar rule of construction I think we can come to a clear apprehension of the terms used by Congress to express their meaning, and at the same time give, as we are bound to give, effect to every part of the act. There can be no doubt respecting the sense most frequently attached to the expression “municipal corporation,” which we have seen is used in the first section. It commonly means an incorporation of the inhabitants of a town or city, to enable it to conduct its local affairs, such as the election of local officers, to carry out sanitary and police regulations, and to construct roads and bridges, and keep them in repair. Such were the old charters of the cities of Washington and Georgetown. There appears to be no dispute but that all these duties were transferred to the new Government by the organic law It has accordingly been provided with a Board of Health, a Board of Public Works, &c., in order that these “ municipal purposes ” might be fully carried out. Upon the repeal of the old charters there was no other body in whom authority could exist to perform these services. Hence there was a necessity that the newr Government should possess all the powers of a municipal corporation, and that it should be able to contract, and to sue and be sued. All this is, how-over, quite consistent with the grant of powers contained in the body of the statute creating a political Government analogous to those in the Territories. The frame of the law as well as its details and even its vocabulary indicate that tcs establish a Government must have been the meaning of Congress. The title of the act is, “ To provide a government for the District of Columbia,” and upon the face of the first section itself, it is expressed “that all that part of the territory of the United States included within the limits of the District of Columbia be, and the same is hereby, created into a Government by the name,” &c. The other forty sections of the act are consistent with no meaning but the organization of a -fprm of government. They provide, like the constitutions-of the States, or the acts organizing the Territories, for the three co-ordinate branches — executive, legislative, and judicial departments — which, united, constitute with us the highest idea and most perfect form of Government. The second section declares that “The executive power and authority in and over the District of Columbia shall be vested in a Governor, who may grant pardons and respites for offenses against the lawrs of said District,” &e. Section 5 provides that “The legislative power-and authority in said District shall be vested in a Legislative Assembly, as thereinafter provided,” and the eighteenth section supplements this delegation of power bylsaying that it shall extend to all rightful subjects of legislation. The grant is in express terms, and as clear as is to be found in any State constitution. Nothing could be more explicit than the language-in which Congress-expresses its meaning. That a grant of legislative power was intended¡is not only evident from the very words in v7hich it is alwrays conveyed, but this conclusion derives confirmation from the limitations which are imposed upon its exercise. Several of these illustrations afford the highest evidence of this intent. Who but the executive of such a government could grant pardons and respites to those convicted of crimes against the law ? The eighteenth section declares-that the legislative power granted to the new government shall be subject to all the restrictions and limitations imposed upon States by the tenth section of the first article of the Constitution of the United States, which provides that no State shall enter into any treaty, alliance, or confederation, nor grant letters of marque and reprisal, nor pass bills of attainder. These are constitutional prohibitions that it would be preposterous to apply to a city organization. They are appropriate only to States, or governments similar to them. On looking into the twentieth section we find that the Legislative Assembly shall not have power to pass any ex -post facto law, or law impairing the. obligation of contracts, and the preceding seventeenth section declares that it shall not pass special laws in the cases therein mentioned, and all of which are similar to the corresponding safeguards interwoven in the text of the State and territorial constitutions; but they would be solecisms in the charters incorporating our towns and cities. The same conviction is produced by the special grants contained in other parts of the act. It must be admitted that public and private corporations, such as the' Legislative Assembly are authorized to create, and the right to modify the practice of, and to vest the superior courts with an increase of jurisdiction, extending to new subjects affecting persons and property, require the exercise of the highest legislative power. These are among the conferred powers of the new government, besides being provided with a governor, a secretary, and a delegate in Congress, as in the ease of tiie other Territories. It is impossible for me to draw any conclusion from such numerous intimations of the meaning of Congress than those in favor of the creation of a new government.

Congress thought it appropriate to adopt the Supreme Court of the District, which was previously in existence, as the judicial department of the new government so far only as was necessary for the due execution and enforcement of the laws of said District. The court of course retains its character as a federal tribunal, and its general jurisdiction in law and equity in all respects as it possessed them prior to the passage of the Act of February. Its connection with the District government is confined entirely to a right in the latter to modify its practice and to confer upon it a jurisdiction in which its legislative acts might be expounded and enforced.

We have here, then, not only a government in name but in form and substance. It is to be observed in this connection, as I have previously suggested, that it is a political maxim in the formation of all the State constitutions that these three departments — executive, legislative, and judicial — comprise the functions of an organized government, and we are equally well informed respecting the legal terms and language by which they are called into form. And when Congress enacts a law consisting of executive, legislative, and judicial departments we know what they intended to establish, because they have employed the form and expression which they have used in all other cases when organizing new governments. We are not to impute to the National Legislature that throughout forty sections of this act' they have used, with every variety of expression and detail, words and terms with a meaning different from that which long and settled usage had attached to them, and it is not to be supposed that they intended that these words should not be received in the same sense in which they are always understood in other acts of legislation or constitutional law. Shall forty sections, some of them of great length, and all of them, so far as this question is concerned, expressed in clear and unambiguous language, be deprived of their usual interpretation for the purpose of denying that the new government is the depository of the power which is conveyed by the ordinary use of the same terms? I apprehend this court possesses no such authority, and that the District is entitled to the full benefit, if it be a benefit, of its fundamental law.

The consideration which I have given to the body of the organic act is, I think, conclusive in determining the meaning of the language used in the first section. It would be ’unreasonable to impute to the Congress inconsistent intents in the same act. What it has said in so many forms of •expression throughout its extended provisions must be the best evidence of what it intended to say by one or two •expressions in the beginning. It has appeared obvious to me, as previously explained, that inasmuch as the trusts •conferred in the old corporations were as a consequence of their extinguishment transferred to the territorial government ; and inasmuch as the organic act had provided the the latter with subordinate officers for the purpose of performing these functions it was quite appropriate to give it in terms all the powers of a municipal corporation in addition to the governmental authority which I have shown it to possess. Indeed, it was necessary that these municipal d-uties should be imposed in direct and positive terms upon the new government, as the old corporations had been swept away. But besides this explanation it is easy to show that the term municipal purposes admits of a meaning as extensive as municipal law. Blackstone defines municipal law as a “ rule of civil conduct prescribed by the supreme power of the State, commanding what is right and prohibiting what is wrong,” and to nearly the same effect is Chancellor Kent.

Mr. Pomeroy, in a recent work of great erudition on this subject, says: “ I shall define municipal law in a State to be the body of rules by which the supreme power'in a State is guided in its governing action.” “The municipal law is that of a particular State.” The laws of England, or America, or of .France, is each a municipal law. The body of the laws which govern a commonwealth is called the municipal law of that dominion as distinguished from the law of nations. Hence the powers and duties of rulers, the jurisdiction,of courts, the punishment of crimes, the limita-, tions of written constitutions, as well as the trusts conferred by the charters of cities, are all included within the meaning of municipal purposes. This latter term, therefore, without any forced construction, is susceptible of an import which will enable the court to give it ful'1 effect without controlling and rendering almost unintelligible the principal provisions of the entire statute. Mr. Dwarris, in his chapter on qualified interpretation, uses the following language: “In construing acts of Parliament, judges are to look at the language of the whole act, and if they find in any particular clause an expression not so large and extensive in its import as those used in other portions of the act, and upon a view of the .whole act they can collect from the more large and extensive expression used in the other part the real intentions of the legislature, it is their duty to give effect to the larger expressions. For, as has before been stated, the court is to give effect to every clause, section and word if an effect can be given to it.” (Page 191). Accord-ding to this rule of interpretation the expression in the first section of the Act of February 21, 1871, about a municipal corporation must be considered with reference to the larger and more extensive delegations off power in other parts of the law. The main design of the bill was to provide a government for the District of Columbia; incidental to this it was to exercise all the powers of the defunct corporations. We are at liberty to adopt that meaning of a word capable of a two-fold construction which will best comport with the body of the statute so that we may give effect to the intention of its framers. It seems to me that to hold that the first section is to control the purview of the statute is to invert the rules of interpretation, a*nd to turn its detailed provisions into pretentious verbiage and a rhetorical exaggeration of legal terms never equalled. The understanding I place upon the law gives effect to every word and clause it contains, and is therefore sanctioned by the soundest canons of construction.

From the conclusions already arrived at it will be seen that, in my opinion, the government of this District stands upon the same footing as that of any of the States or Territories within the limit of the law from which it derives existence. It is a cardinal principle in our political systems that the great divisions of government — the executive, legislative, and judicial — are to exercise their respective powers free from the interference of each other. Mr. Potter,, in his recent work on Statute and Constitutional Law, at page 336, observed: “These departments are co-ordinate in degree to the extent of the powers delegated to each of them. Each in the exercise of its power is independent of the other, but all rightfully done by either is binding upon the others.” This is but the expression of a principle which all admit in the abstract, and we are familiar with it in the written constitutions of the States. The doctrine that the judiciary cannot interfere with the exercise of executive functions has been recognized by the Supreme Court more than once. In the case of Madison vs. Marbury, Chief Justice Marshall uses the following emphatic language: “It is. scarcely necessary for the court to disclaim all pretentions, to such a jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment. The province of the court is solely to decide on the rights o-f individuals, not to inquire how the executive or executive officers perform duties in which they have a discretion. Questions in their nature political, or which are by the Constitution and laws submitted to the Executive, can never be made in this court.” The court in that case issued a mandamus to a member of the Cabinet, commanding him to perform a mere ministerial act affecting the right of an individual; but they add in reference to even such an. officer: “Where the head of a department acts in a case in which Executive discretion is to be exercised, in which he-is the mere organ of executive will, it is again repeated that any application to a court to control, in any respect, his. conduct would be rejected without hesitation.” The-Supreme Court has never since deviated from these conclusions, and when within our own recollection, it was asked to restrain President Johnson from enforcing the reconstruction acts in Mississippi the bill for that purpose was not permitted to be filed upon the express ground that the court had no jurisdiction to suspend a public law by arresting the ■executive power vested by the. .Constitution in the President, even upon the pretext that the law was alleged, in the ..strongest terms, to be unconstitutional, illegal, and void.

It is readily admitted that the Governor of this District is far from being equal in rank and power with the President, nor is it claimed that he is clothed with all the powers of our State executives; but the independence of the •Governor of this District is hot based upon the extent but upon the nature of the powers vested in him. The principle is not based upon the idea that the American executive possesses sovereign power like the king in a monarchy. On the contrary, our rulers, whether presidents or governors, possess only such powers as the Constitution and the laws confer upon them. For example, the Act of February 21 provides that the Governor may grant pardons, .sign such bills as he approves, and veto such as he may return with his objections. It is scarcely necessary to argue that the judiciary could not control or stay him in the performance of dutie,s so expressly confided to his discretion. We would not enjoin him from the exercise of executive clemency towards a convict he was about to pardon, ■or compel him to grant a pardon where he had refused ■one. And the same is equally true respecting the whole line of duties limited by law. A distinction has been taken .between this class of executive duties and such acts as are ministerial aryd relate to the vested rights of individuals. 'This is a proper deduction from Madison vs. Marbury. It was held that the relator in that case had a vested right in the commission appointing him a justice of the peace for -this District, and that the Secretary of State, in whose ■office it had been deposited, should be compelled to deliver it. It was held that he had a vested right in the commission, and that therefore the court had jurisdiction to enforce it. The rule of jurisdiction is set forth by the court as follows — speaking of the head of a department: “Where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he-is not placed under the particular direction of the President, * * * as, for example, to record a commission or a patent for land which has received all the legal solemnities, orto give a copy of such record; in such cases it is-not perceived on what grounds the courts of the country are further excused from the duty of giving judgment, that right be done to an injured individual, than if the same-services were to be performed by a person not at the head of a department.”

‘ It is not perceived how this doctrine is applicable to a case like the present, for the examples put by the court in Madison vs. Marbury are clearly not executive acts. In a case where the law gives an absolute right to an individual,, as to have a patent for land, or a record of an instrument, there is nothing but an act to be performed purely ministerial, and in such a case the court may interfere to protect a vested right. But when was it heard that a governor could be enjoined from enforcing the execution of a general law which conferred no individual rights, but which only affected public rights. Such an intermeddling is unheard of, and in the language of Chief Justice Marshall,, should be rejected without hesitation. Thef complainants are certainly entitled to a lair and respectful hearing, but they do not pretend that the legislative act of which they complain has relation to them solely as individuals, or that it is a private act in the sense that it- affects only their individual interests. The District act is public law, and is of public interest. No special injury peculiar to these complainants is stated in the bill. The only grievance they can suffer consists in the probability, if not certainty, of increased taxation, which, however, will fall to the expescience of every taxpayer in the District. No private damage is pretended. Now, no doctrine is better settled than that a bill to restrain the enforcement of public law cannot be maintáined unless the plaintiff is threatened with an injury peculiar to himself, and the special grievance of which he complains must not only be possible and imminent, but be clearly set up. Miller vs. Grundy, 13 Mich., 550; Hale vs. Cushing, 6 Mich., 425; Roosevelt vs. Drake, 23 N. Y., 318; Doolittle vs. Sup., 18 N. Y., 162; Dow vs. Chicago, 11 Wall.

No- such case is presented here, and indeed no such case •can by possibility be stated as the facts now exist. There is only a claim that the law is invalid, but no debt has been created, no bond issued, no tax nor assessment made, end therefore no individual injury could have occurred. There is no allegation or pretence that these defendants are about to, or threaten to, embezzle the public funds, or that they intend to divert them from the purposes conteiiiplated by the law, or that there is a conspiracy among them to plunder the proceeds of the loan to their own own use. < If .such a case were presented upon the pleading and proof this court would certainly exhaust the whole power of its jurisdiction to prevent the perpetration of so great a crime. But we cannot assume the existence of a plot so infamous without either allegation or proof upon the record. The rules of law and evidence which govern judicial deliberation w’ould not sanction that mode of determination, nor indeed do the necessities of the case Or the expectations ■of the counsel require that we should overturn the settled rules of evidence in pronouncing judgment. I think it may be certainly assumed that this court will never overlook official corruption when brought to judicial notice, but will extend to it the strong and salutary discipline of the law.

But if this court should establish the rule that a party who should allege that the Legislative Assembly had exceeded its authority in the passage of a general law, might thereupon ask an injunctional order to'restrain the Governor from carrying it into effect, it would render all legislation subject to be suspended at the request of any member of the community wThose fears or fancies might induce him to cast an imputation upon its validity. Government would certainly become greatly impaired, and it would not be too much to anticipate that some other method would have to be devised to carry on its affairs.

In the construction which I have placed upon the organic act I have purposely refrained from discussing the question whether it was constitutional. If it is unconstitutional in view of the effect I give it, in my opinion that conclusion would invalidate the entire government of the District. This is too important ami transcendent a question to bo decided without having been made in the argument or on the submitted briefs of counsel. When that question shall be fully and fairly brought before the court it will then be adjudicated as its importance demands.

For the reasons which I have assigned I am opinion that the court has no jurisdiction of the bill in this case, and that the decree allowing the injunction should be reversed and the bill dismissed.

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Dissenting Opinion

Mr. Justice Wylie

delivered a dissenting opinion as follows :

I am constrained to dissent from the judgment of the court -which has just been pronounced in the present case, and propose to state very briefly a few of the reasons for my opinion:

Previously to 1st of June last the territory of this District embraced two municipal corporations, namely, the city of Washington and the city of Georgetown, and one quasi corporation, denominated the Levy Court of the District of Columbia.

On the 21st of February last the Congress of the United States passed an act entitled “ An act to provide a government for the District of Columbia,” which, however, was not to go into operation till the 1st clay of June thereafter.

The first section of this act declares, “ that all that part of the territory of the United States included within the limits of the District of Columbia be, and the same is hereby, created into a government by the name of the District of Columbia^ by which name' it is hereby constituted a body corporate for municipal purposes, and may contract and be contracted with, sue and be sued, plead and be impleaded, have a seal and exercise all other powers of a municipal corporation not inconsistent with the Constitution and laws of the United States and the provisions of this act.”

The counsel for the defendants have expended much argument in this case, to prove that the new organization, created by this act, is not a municipal corporation, but a government of some other kind, and invested with some sort of sovereignty which places both it and its functionaries above the jurisdiction of the court.

The act of Congress which created this corporation declares it shall be a body corporate, for municipal purposes, and may sue and be sued. The. officers appointed under this corporation can hardly be entitled to immunity from suit ,w'hen the corporation itself is liable'to suit. It is quite certain that the powers conferred upon it are more extensive and discretionary than are usually granted to municipal corporations, and in many respects are such as Congress has been in the habit of granting to the governments created for its several Territories.

Nevertheless, it falls strictly within the description given by Mr. Wilcox, of a municipal corporation, as follows: “ When the people of a particular place, such as a city or town, are declared by competent authority to be incorporated, and are empowered to appoint one or more officers among them, they are constituted a municipal corporation, and the place is become a municipality.” Wilcox on Gorp., 15.

It is of no importance, in my judgment, by what name we call our new government. It may be sued, and so may its officers; and neither it nor they can exercise any functions, or do any act, except such as it or they are authorized to perform by the law which gave them existence and defined their powers.

The people of a State, or of a corporation, however, may be brought under liability to pay bonds or other obligations issued in its name, bj7 its proper officers, even when such bonds or obligations have been issued contrary to law, provided they be payable to bearer, and are in the hands of a bona fide holder. This principle has been settled by the Supreme Court of the United States, not in one, two, or three decisions only, but in a numerous series, too recent and too well known to the country at large, as well as to the profession, to require citation.

If the bonds are once issued and signed by the proper officers, and on their face profess to be in pursuance of law the injury to the tax-payer is irreparable. For when the taxes are paid no man can tell how much'of his own taxes is to be applied to the payment of the illegal bonds, or the interest upon them, and how much to other objects; and if he could ascertain such amount it would not avail him, since, however illegal the issue of the bonds may have been, the people are still obliged to pay them. They must suffer for the acts of their own agents. It is true that as to the people of this District, they have been vouchsafed but a small participation in the present government, and no voice whatever in the selection of its officers. They are permitted to choose for themselves the members of one branch of the legislature only. But that is enough to bind them to responsibility, rather, to be sure, through a fiction of law than a practical truth.

The position, therefore, that the taxpayer can have his remedy at law7 against the tax collector is an egregious error. The illegal bonds once issued, and. in the hands of an innocent holder for value, become valid obligations, and a mandamus would be granted to compel the corporation to levy the taxes required to pay them.

The only plank left to the taxpayer, therefore, is the injunction to arrest.their issue — that right arm of the incomparable jurisdiction of a court of chancery. Is it possible — can it be believed — that in such a case any court of equity would turn a deaf ear to his complaint, and thus prove itself unfaithful alike to its own honor and to its trust ?

But it has been skid that the courts have no right to interfere with the legislative branch of the government. The courts do not thus interfere; but they will declare an unconstitutional act to be void, and to prevent irreparable wrong will arrest the execution by any officer of such a pretended law. This power they enforce between themselves. A judgment passed by a court not having jurisdiction over the subject is void, and the sheriff or marshal who attempts to enforce it is held to be a trespasser. In like manner a void law shall afford no protection to the executive officer who obeys it. He will be liable in damages for his act, if that form of redress be available; and if it be not available, the court of chancery must restrain his act by injunction, and crush the wrong before its birth.

The history of these municipal corporations in this country and in recent times is not such as to commend any one of them to our confidence in advance. Extravagance, mismanagement, peculation, corruption, upstart wealth and venality (the latter reaching even to the fountains of justice) on the part of those in possession of their control; and burthensome taxation on the part of the people have been too often the rule. Thank God, these fearful results have not as yet been realized amongst us. But our government has not yet reached the sixth month of its existence, and there are ominous symptoms in our condition. Nowhere more than here is the principle of obsta principiis of greater necessity, when we 'consider that under the very law itself which governs us every man’s property in the District has been placed at the mercy of the needy and mercenary, with an invitation to divide it amongst themselves through the simple process of a vote, and our rulers have been placed beyond the reach of those who may be wronged and oppressed by their acts. If the latter can find no protection in the court, helpless indeed is their condition.

I shall now proceed to examine whether, in the case before the court, the officers of the government of this District are authorized by the charter to issue the $4,000,000 of bonds in question.

As has been stated already, the act for creating the new government was passed on February 21, 1871, but did not go into effect until June 21 thereafter.

On the 10th of July the Legislature of the District passed an act entitled “An act making appropriations for improvements and repairs in the District of Columbia, and providing for the payment thereof.”

It appropriates $4;000,000 to be laid out in improvements “ until the expiration of the first fiscal quarter after the adjournment of the next session of the Legislative Assembly; ” and provides for the issue of a like amount in bonds of the corporation with 7 per cent, interest, payable to bearer.

The organic act declares that “no debt by which the aggregate debt of the District shall exceed 5 per cent, of the assessed property of the District, shall be contracted, unless the law authorizing the same shall, at a general election, have been submitted to the people, and have received a majority of the votes cast for members of the Legislative Assembly at such election.” The law in question was passed before any assessment had been made of the property in the District, and was not submitted to a vote of the people.

At the date of the passage of this law the aggregate debts of the old corporation of the District already amounted to nearly, if not quite, 5 per cent, on the assessed value of the property of the District. So that, if these debts are to be'taken into account, the issue of the $>4,000,000 of bonds, as proposed in the law, would swell the aggregate debt of the District greatly beyond the limit prescribed by the charter.

The complainants, as taxpayers in the city of Washington and District of Columbia, insist that these debts ought to be taken into the account; and the defendants, on the other hand, insist that they compose no part of the debt of the District. And this is the main, central question in the present controversy, and the only one remaining which I propose to discuss. Other questions of great interest and importance are presented upon the pleadings, and have been argued by counsel, but their consideration would protract this dissenting opinion to an inconvenient length.

The first section of the organic law, or charter, creates a new corporation embracing the whole territory of the District of Columbia; and the fortieth section declares that on and after the 1st day of June, 1871, the charters of the cities of Washington and Georgetown, and the powers of the Levy Court of the county of Washington, and all their several officers, should be abolished; and the forty-first section declares “ that upon the repeal of said charters the new corporation or government of the District of Columbia be, and is hereby, declared to be the successor of said corporations, and all the property of the said corporations, and of the county of Washington, shall become vested in the said District of Columbia.”

Thus the charters of the old corporations' and their officers were all abolished and their property and corporate franchises transferred to the new corporation, which Congress declared should be their successor, under a new charter.

Now, the meaning of this word, “ successor,” is well and clearly settled in the language of the law. As to debts and rights, the successor is identified with that which preceded it — it is the same.

In Colchester vs. Seaber, 3 Burr, 1866, a bond was taken in 1735, payable to the corporation of Colchester ten years .after date. Subsequently the name and organization of the corporation were twice changed by new charters; and besides in 1740 a judgment of ouster had been rendered against all the officers of the corporation, and their places remained vacant till 1763. In 1765 an action on the bond was brought by the new corporation in its own name as though the bond had been made to itself and not to the old corporation; and the defendant pleaded non est factum to the declaration.

Lord Mansfield said: “ Many corporations for want of legal magistrates have lost their activity and obtained new charters. And yet it has never been disputed but that the new charters revive and give activity to the old corporations, except, perhaps, in that case in Levinz, where the corporation had a new name, and even then the court made no doubt. Where the question has arisen upon an}7 remarkable metamorphosis, it has always been determined that they remain the same as to debts and rights.” * * * “ With respect to the power of entry for condition broken, the general rule of the common law was that none shall take advantage of conditions executory who are not parties or privies; and of the latter none but such as are privies in right; for neither privies in estate nor privies en fait, nor privies in law, shall take such advantage, but privies in right shall; and, therefore, if a corporation, whether sole or aggregate, ecclesiastical or temporal, make a lease upon conditions, the successors may enter for condition broken, for they are privy in right; or, in another point of view, are the same body or person w7ho made the lease and imposed the condition, and therefore they may, perhaps, be considered to have a right to enter for condition broken, rather as parties than as privies.” Grant on Corporation, 151, citing Co. Litt., 2146.

And the same author, page 8, says: “On the other hand two corporations may be made one by uniting one to 'the other, and in such case the corporation to which the.accretion is made may sue upon a cause of action* arising in respect of a thing in possession or a right vested in the other previously to the junction. In like manner where a right of action existed before the union against one of the corporations it still subsists,"and may be sued upon against the compound corporation.” Citing 6 Vin. Abr., 286; pl. 10 Yearb., 20, Edw., 4; fol. 6, pi. 7 London and Brighton Rwy. Co. vs. Goodwin, 3 Exch. R., 329.

In Chesapeake and Ohio Canal Company vs. Baltimore and Ohio Railroad Company, 4 Gill & J., 1, it was decided by the Court of Appeals of Maryland “ that where a corporation having vested rights is authorized by a new charter to surrender them to a new company, which the new one accepts, the latter stands in the place of the former.”

But the very point now under examination was settled by the Supreme Court of the United States, in the case of the Philadelphia, Wilmington and Baltimore Railroad Company vs. Howard, 13 How. R., 332.

On the 12th of July, 1836, a contract was entered into between Mr. Howard and the Wilmington and Susquehannah Railroad Company, which became the cause of action in the suit. Subsequently, by acts of the Legislature of Maryland, the Wilmington and Susquehanna Company, the Baltimore and Port Deposit Company, and the Philadelphia, Wilmington and Baltimore Railroad Company were consolidated under the name of the latter company.

The contract being in the name of the Wilmington and Susquehanna Company, and the action brought against the Philadelphia, Wilmington and Baltimore Company, the latter pleaded non est factum — that the deed was not of its-making.

Evidence was offered by the plaintiff to prove by admissions of its officers, made at a former trial against the old company, that the contract has been executed by that company. The evidence was objected to by the defendant, but admitted, and to this ruling defendant’s counsel excepted.

The opinion of the court was pronounced by Mr. Justice Curtis, and is as follows: “It is objected that the parties to that suit were not the same as in this one; but this is wholly immaterial. The evidence does not derive its validity from any privity of parties. It tends to prove an admission by the corporation that the instrument was sealed with its seal. It is further objected that the admission was not made by the defendants in this action, but by the Wilmington and Susquehanna corporation. It is true that the action in the trial of which the admission was made, being brought before the union of the corporations, was necessarily in the name of the original corporation; but, as by virtue of the act of union, the Wilmington and Susquehanna company, the Baltimore and Port Deposit company, and the Philadelphia, Wilmington and Baltimore company were merged in, and constitute one body corporate, under the name of the Philadelphia, Wilmington and Baltimore Railroad Company, it is very clear that at the time the trial took place in Cecil County Court, all acts and admissions in that ease, though necessarily in the name of the Wilmington and Susquehanna company, ■were done and made by the same corporation which now defends this action.”

The judgment in this case was affirmed, and a debt which had been contracted by the original company was held to be the debt of its successor — the Philadelphia, Wilmington and Baltimore Railroad Company.

It appears to me, therefore, to be perfectly clear — may I not say it appears absolutely demonstrated — that the several debts of the corporations which formerly éomposed the District of Columbia, are at this hour as much the debts of the new government as thougli they were the debts of its own contracting, unless some other provisions of the organic act can be found which plainly absolves it from the obligation. It has been argued, however, that the obligation to pay those debts and liabilities has not been so transferred to the new government or corporation, in consequence of the special provisions contained in the fortieth section of the act. That section reads as follows :

“Sec. 40. And be it further enacted, That the charters of the cities of Washington and Georgetown! shall be repealed on and after the first day of June, A. D. eighteen hundred and seventy-one, and all offices of said corporations abolished at that date; the Levy Court of the District of Columbia and all offices connected therewith shall be abolished on and after said first day of June, A. D. eighteen hundred and seventy-one; but all laws and ordinances of said cities, respectively, and of said Levy Court, not inconsistent with this act, shall remain in full force until modified or repealed by Congress or the Legislative Assembly of said District; that portion of said District included within the present limits of the City of Washington shall continue to be known as the City of Washington, and that portion of said District included within the limits of Georgetown! shall continue to be known as the City of Georgetowm; and the Legislative Assembly shall have power to levy a special tax upon property, except the property of the Government of the United States, within the City of Washington, for the payment of the debts of said city; and upon property, except the property of the Government of the United States, within said District, not included within the limits of said cities, to pay any debts owing by that portion of said District: Provided, That the charters of said cities severally and the powers of said Levy Court, shall be continued for the following purposes, to wit: For the collection of all sums of money due to said cities respectively, or to said Levy Court; for the enforcement of all contracts made by said cities, respectively, or by said Levy Court, and all taxes, heretofore assessed, remaining unpaid ; for the collection of all just claims against said cities, respectively, or against said Levy Court; for the enforcement of all legal contracts against said cities, respectively, or against said Levy Court, until the affairs of said cities, respectively, and of said Levy Court, shall have been fully closed; and no suit in favor of or against said corporations, or either of them, shall abate by reason of the passage of this act, but the same shall be prosecuted to final judgment as if this act had not been passed.”

The obligation to pay a debt is one thing and the mode of raising the money with which to pay it is another thing. This' section of the act relates to the latter alone. On the 1st of June, all the offices belonging to the old corporations were abolished, but their debts were preserved by the law, in justice to their creditors. But how is a corporation to pay its debts which has no officers, no organization, no property and no power to levy taxes ? How could such a thing be sued? How could tlxe corporation known as “The Mayor, Board of Aldermen, and Board of Common Council of the City of Washington,” exist after the law had ■declared that there shall be no Mayor, ixo Board of Aider-men, and no Board of Commoix. Council, and no officers of any description whatever ?

Blackstone says (Comm., Book. 1, Ch. 18): “ The debts of a corporation, either to or from it, are totally extinguished by its dissolution, so that the members thereof cannot recover or be charged with them in their natural capacities.”

To prevent such a catastrophe in the present instance the law provided that tlxe new government should be the successor of the old corporation, both as to their rights and obligatioxxs. It was not within the competency of Congress to deprive a corporation of its officers, its organization, its franchises and its property, and yet declare it should be liable for its obligations, except by providing a successor in respect to them all — both “ rights and debts,” as was said by Lord Mansfield in the case I have cited. It was within its competency, however, to direct the new corporation in what way it should proceed to raise the means of meeting the obligations of its predecessors which Congress had imposed upon it, and it has done so. As to the debts of the corporation, “ The Legislative Assembly shall have power to levy a special tax upon property within the City of Washington for the payment of the debts of said city.” And a like provision is made for paying the debts of the other corporations. Why .were these directions provided ? For the reason that each of the old corporations was presumed to have derived exclusive benefit from the proceeds of these debts. The tax is not to be levied upon property of the corporations, for they had none after the 1st of June, 1871, but'upon property situated within the respective limits which belonged to them during their existence — upon property of individuals.

A similar provision is to be found in this very law of the new government for creating the debt of $4,000,000, which provides in Section 4, “ That the aforesaid four millions of dollars shall be paid out of the general improvement fund herein provided for, and be charged against the cities of Washington and Georgetown, and the county of Washington, in the proportion of the improvements which shall be made therein; and that special taxes in accordance with Section 37 of 'the organic act shall be levied in sections, wards or districts of 'Washington, Georgetown, and the county of Washington, to pay the cost of the particular local improvements which may be made therein, according to the plan of the Board of Public Works aforesaid.”

It is likewise declared in the twenty-second section of the organic act “That the ptoperty within the corporate limits of Georgetown shall not be taxed for the payment of any debt heretofore or hereafter to be contracted by the corporation of Washington, nor shall the property within the corporate limits of Washington be taxed for the payment of any debt heretofore or hereafter to bp contracted by the corporation of Georgetown; and so long as said cities shall remain under distinct municipal governments the property within the corporate limits of said cities shall not be taxed,, for the local benefit of the other; nor shall said cities, or either of them, be taxed for the exclusive benefit of the county outside of the limits thereof; Provided, That the Legislative Assembly may make appropriations for the repair of roads or for the construction or repair of bridges outside the limits of said cities.”

if it be true in law that any debt contracted by the new corporation, or any debt which has been imposed upon it as the successor of the former corporations, is not to be considered its debt, for the reason that the means of its payment are required to be raised by special taxation upon some of the territorial departments into which the District of Columbia still continues to be divided, I can see no limit to the power of the new government to run into debt.

The act declares that “that portion of said District included within the present limits of the city of Washington shall continue to be known as the city of Washington, and that portion of said District included within the limits of the city of Georgetown shall continue to' be known as the-city of Georgetown,” etc.

By the help of this invention, therefore, the new government might go on increasing the debt by new loans to any amount, even without submitting its propositions to a vote of the people, and its debt would never be the larger, because the taxation for its payment must be apportioned upon the-several territorial departments of the District, in proportion to the benefits they may have derived from the expenditure of the money in the public improvements within their respective limits.

But it is urged again that the special taxation thus-authorized is for payment of the debts of the said cities- and county respectively; that the debts are not designated in the law as debts which had been or should become debts ■of the new government.

This is an argument, it seems to me, built upon a mere .jugglery in words. The debts referred to on their face and in form were the debts of the old corporations, and were properly so described in the act. It was only by operation •of law that they became the debts of the new government. ;So when a man dies his last debt is paid, and yet, even in the precise language of the law, the debts which survive him are spoken of as being his debts, and the heir of his estate is bound to pay what are still called the debts of his ancestor.

Another instance is that the act in question employs ■language appropriate to the state of things existing at the date of its passage, February 21, 1871. It did not go into •operation until the 1st of June afterwards. At the time of its passage, therefore, and up to the 1st of June, the debts referred to were, in fact, as well as form, the debts of. their '.respective corporations, and could be spoken of only as such in the law.

As to the other provisions • of this 40th section, which declares that the “charters” of said cities, and the powers of ■said Levy Court, shall be continued for the collection of all sums of money, enforcement of contracts, collection of taxes heretofore assessed and remaining unpaid; for the collection •of all claims against them respectively, &c.; and that no ■suit in favor of or against such corporations, or either of them, shall abate by reason of the passage of this act, but the same shall be prosecuted to final judgment, as if the Act had not been passed — it seems to have little to do with the question under consideration.

It is quite manifest that by this provision the legislature intended merely to continue in force, in favor of the new ¡government, the charters of the old corporations — not the corporations — for the purpose mentioned. The old corporate bodies were dissolved, while their charters, respectively,, were temporarily continued under their successor. For it is just as impracticable for a corporation to do any act without an organization or an officer, and with no right to either by the law, as it would be for a natural person who had lost his head and been deprived of all his members to perform the functions of a living man.

So, if the law should say that the “ Mayor, Board of Aldermen and Board of Common Council” of a city might bring suits, defend actions, collect taxes, &c., after the same law had abolished all these functionaries, it would speak an absurdity and an impossibility. It would not be absurd, however, for the legislature to provide that the charters of the old corporations, which are but acis of Congress, should continue in force ,for these purposes, after those corporations, with all their officers, had been abolished. As laws affecting the rights and obligations of those bodies, and providing the means for collecting arrears of taxes, they contain many important and useful provisons, which might wTell be continued in the hands of their successor. It is in this sense only that I understand this provision of the law.

There is still another view of this subject, and probably one which strikes the mind more readily than that upon which I have thus far been speaking — that which was presented with so much clearness on the argument by the complainants. It is this: That when Congress declared, in the organic act, that the aggregate debt of the District should at no time exceed the assessed value of the property of the District, this word “District,” which occurs twice in the same sentence, was used in both instances in the same sense. It could not be intended by Congress that the word should in this instance apply to the new corporation as a body politic. For, to say that the aggregate debt should in no' case exceed 5 per cent, of the assessed value of the property .belonging to the body politic, would restrict the limit ■of indebtedness to a very small amount indeed. The body politic owns such a small amount of property that it may be said in general terms to have no property at all; and ■then all the individual property lying within the territory would be exempt from taxation. The word, therefore, must be taken in its sense of territorial limits. Hence, it follows that the “ aggregate debts ” in the sense of the law, are those which are chargeable upon all the property belonging to individuals, and situate within the limits known as the District of Columbia, and these debts include the debts as well of the former corporations as those of the new one.