54 F. 660 | U.S. Circuit Court for the District of Western Missouri | 1893
This is an application for discharge from imprisonment by the writ of habeas corpus. The petitioners are justices of the county court of St. Clair county. They are so imprisoned in the jail of this county on a contempt proceeding for refusal to obey the mandate of this court requiring them to make a levy, under the state law, to satisfy a judgment of this court against said county of long standing. While it greatly interrupts my attention to other pressing matters impatiently awaiting action by the court to stop to consider this case, in view of recent public agitation respecting the imprisonment of these petitioners, the cause- of truth and justice well justify the day’s attention 1 have given to it. The right of the citizen to have Ms cause heard without denial or delay, where his personal liberty is concerned, is paramount under our republican form of government. If their restraint be without “due process of law,” they should be discharged. This application involves the authority of this court to imprison judges of the state county courts for refusal to obey the writ of mandamus. It is sufficient to say that this has now been the settled practice, established by decisions of the supreme court of the United States for over 80 years. It is a question which has called forth the best efforts of the ablest lawyers of the republic in its discussion, and on which has been expended a vast wealth of legal and judicial learning. It received its quietus in the cause celebre of Riggs v. Johnson, Co., 6 Wall. 166. . There was nothing political or revolutionary in the history of the establishment of this rule of practice in the federal courts. It was affirmed in a unanimous opinion by the supreme court, presided over by Chief Justice Taney, in 1860, in Knox Co. v. Aspinwall, 24 How. 376; and the final settlement of the question was an able opinion written by Mr. Justice Clifford, and concurred in by Mr. Justice Field, and others; Justice Miller dissenting with characteristic energy and ability. The doctrine sprang from the necessities of the case. As no law authorized the issue of an execution in the instance of a judgment in the United States court against a municipality, directly against the property of a constituent member of the corporation, the writ of mandamus was, ex necessitate, resorted to as the equivalent of an execution, to require the local agency of the state to make the levy as provided by the state statute for raising
It is insisted here, as elsewhere, that tbe federal courts of this jurisdiction, in attempting to enforce tbe collection of these county bonds, are disregarding and overriding tbe decisions of tbe state supreme court in construing the constitutions and statutes of tbe state. Sometimes a cure for a prevailing publie distemper is found in a forgotten or neglected chapter in history, written or unwritten. I will take this occasion to recall one, connected with tbe county bond litigation in this state, which establishes tbe fact, however little it may suit tbe purpose of some people, that tbe responsibility for tbe judgments in this court against St. Clair county rests rather upon tbe rulings of tbe state supreme court than tbe federal courts. No state court bad decided tbe subscription of St. Clair county invalid prior to tbe adjudication in tbe federal courts. Senator Vest and myself were tbe attorneys for tbe counties of Cass, Henry, and St. Clair throughout that litigation. Tbe cases against Henry and St. Clair counties involved precisely tbe same questions, so that tbe litigation was conducted, by agreement, in tbe name of Henry Co. v. Nicolay, 95 U. S. 619.
Our first line of defense was that tbe bonds bad been issued in 1870, after tbe adoption of tbe state constitution of 1865, and were in contravention of section 14, art. 11, thereof, which prohibited tbe county from issuing such bonds in aid of any railroad without tbe consent of two thirds of tbe qualified voters of tbe county, expressed at an election held therefor. We were at once confronted witb decisions of our own supreme court, bolding that this provision of tbe constitution was prospective, and had no retroactive operation, so as to subject to its interdiction a subscription made under a charter
Our next contention was that this subscription in fact was not made under the provisions of the old charter of ■ the Tebo & Neosho Railroad, as claimed, granted in 1859, but under the act of the legislature of March 21, 1868, (Laws Mo. 1868, p. 90,) which provided for building branch railroads; that, this statute having been enacted after the constitutional provision went into effect, no such subscription could be made without the consent of the required two thirds of the qualified voters of the county.
Again we were confronted with decisions of our state supreme court, affirming the validity of the act of 1868, and holding that a like subscription, made under like charter, supplemented by said ach was valid, notwithstanding no election was held. State v. Sullivan Co., 51 Mo. 522, and State v. Green Co., 54 Mo. 540. The first opinion was by Wagner, J., and concurred in by Adams, Ewing, and Sherwood, 3J„ Napton, J., not then being on the court; the Green county decision, also by Wagner, J., being concurred in by Adams and Nap-ton, -id., Vou.y. J., dissenting, Sherwood, J., not sitting.
The next fortification we fell back behind was the act of 3861, (Laws Mo. 1861, p. 60,) which declared (hat “it shall not be lawful for the county court of any county to subscribe to the capital stock of any railroad company, unless the same has been voted for by a majority of the resident voters,” etc. As; this statute was enacted prior to the exercise of any right under the antecedent charter, and contained almost a penal prohibition, we believed it was an express legisla live limitation ingrafted upon the exercise of the grant. When it was called to the attention of Judge Dillon on argument, it so staggered him that he announced that he would take the matter under advisement until the next term of court, in November, 1873. But in the interim the case of Smith v. Clark Co., 54 Mo. 58, was brought before the state supreme court, and when Judge Dillon went upon- the bench at Jefferson City in November, 1873, the decision of the state court was handed to him, not only reaffirming the validity of the act of 1868, the exemption of anterior charters from the operation from said, section of the state constitution of 1865, but entirely sweeping away from us the act of 3861, the hist rock on which we planted ourselves with any reasonable hope of success. That opinion was written by so distinguished a jurist as Judge Nap-ton, and was concurred in by Adams, Vories, and Wagner, JJ., Sherwood, J.3 absent.
Judge Dillon followed the rulings on these statutes and the state constitution by the state court, and we lost. When we reached the United States supreme court on appeal, the case of County of Scotland v. Thomas, 94 U. S. 682, from tins circuit, had heen passed on by the court, following the same rulings of the state supreme court; and when Hon. James O. Broadhead and myself entered upon the argument ⅛ the Nicolay Case we were informed at the outset that the questions involved had been decided against the county by our own supreme court. The Scotland County Case was reaffirmed, and we were left dead “in the last ditch.” And it is worthy of observa
It is time, after the state' court had been accorded a locus poeni-tentiae, after the counties had lost in the federal supreme court by following the state court, and after the bonds in question had entered into circulation as commercial paper on the faith of its prior rulings, the light of a new revelation fell upon it, and it discovered the unconstitutionality of the said act of 1808 and the validity and virtue of the act of 1861. But the mischief done was then incurable. The supreme court of the United States refused to follow these later decisions of-the state court on the well-established rule that the contract, as respects commercial paper, should be enforced according to the construction put upon the local statutes by the local court at the time the contract was made or the bonds went upon the market. The history of the federal adjudications utterly contradicts the contention of counsel that the federal courts had hitherto followed as a settled rule of practice the latest rulings of the state courts in the application of state statutes to commercial securities until the later bond litigation arose. The doctrine was established, and then on precedent, by so pronounced a state-rights jurist as Chief Justice Taney in Insurance Co. v. De Bolt, 16 How. 416-432, decided in 1853. It was not a municipal bond case, but arose on a state law of Ohio to tax banks, etc., and the question was whether the court should follow that ruling of the state court, made at the time the contract in question was made, or later decisions, overruling the former construction? Inter alia, he said contracts had been made with the state authorities undef the first rulings of the- state courts; “and upon a question as to the validity of such a contract, the court, upon the soundest principles of justice, is bound to adopt the construction it received from the state-authorities at the time the contract was made. * ⅜ * Indeed,” he further says, “the duty imposed upon this court to enforce contracts honestly and legally made would be vain and nugatory if we were bound to follow those changes in judicial decisions which the lapse of time and the changes in judicial officers will often produce; * * * and the sound and true rule is that, if the contract, when made, was valid by the laws of the state as then expounded by all the departments of its government and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent act of the legislature of the state or decision of its court, altering the construction of the law.” So the court in Gelpcke v. City of Dubuque, 1 Wall. 206, says: “It is the law of this court. It rests upon the plainest principles of justice. To hold otherwise would be as unjust as to hold that rights acquired under a statute may be lost by its repeal. We shall never immolate truth, justice, and the law be
It is urged upon me that the attempt by this court to compel by mandamus these justices to make a levy is to bring them into direct conflict with the laws of the state, and would, if obeyed, subject them to punishment as for a misdemeanor. The statute thus interposed is what is commonly known as the “Cotty Bill,” enacted in 1879, and incorporated in the statutes of 1889, (sections 7654, 7655,) of which enabtment it is not too much to say that, had it conformed to the spirit of the state constitution, requiring the title to indicate the purpose of the act, it should have been entitled “An act to prevent, the collection of judgments rendered in United States courts against any county or municipality in the state,” for this, as is well known to every well-informed person familiar with, the history of the county bond litigation, was its inspiration and object. This act undertook to change entirely the law in existence at the time the bonds were issued for raising the revenue necessary to meet the accruing interest thereon. The federal courts have never questioned the right of the state to prescribe its. own method for raising a revenue, or the money for meeting such bond debts. They also recognize the right of the state to change the remedy therefor, provided only that in such change it make some suitable or adequate remedy, equally efficacious, so as not to destroy or impair the right. But this legislation sought to so obstruct the right as to render it impracticable of enforcement, by leaving it to the pleasure of the state courts. In effect, it subjects such judgments on contracts made anterior thereto to the supervision of the justices of the county court, as they are only required to act when satisfied that a necessity for such levy exists. Then they are to enter such finding of record, and certify to the county attorney to present the matter, at Ms own sweet will, and in Ms own time, to the circuit court, where the judgment of the
The judgment of the United States court must- receive, first, the approval of the county justices that a levy is necessary to satisfy the same. Then the circuit court is to pass upon the question as to whether such judgment conforms to its conception of constitutionality and lawfulness. If the opinion of the state courts be adverse, it is an end of the judgment of the United States court. This statute was sought to be applied to a judgment of the United States court at St. Louis, rendered on bonds issued for Cape Girardeau township, prior to the passage of the “Cotty Bill.” The case went to the supreme court of the United States. Seibert v. Lewis, 122 U. S. 284, 7 Sup. Ct. Rep. 1190. In a unanimous opinion that court held this act to be in contravention of section 10, art. 1, of the federal constitution, which prohibits any state from passing any law “impairing «the obligation of contracts.” The opinion quotes the language of Chief Justice Taney in Bronson v. Kinzie, 1 How. 317:
“It is manifest that the obligation of the contract, and the rights of a party under it, may, in effect, be destroyed by denying a remedy altogether, or may be seriously impaired by burdening the proceeding with new conditions and restrictions, so as to make the remedy hardly worth pursuing.”
In Louisiana v. New Orleans, 102 U. S. 206, Mr. Justice Meld says:
“The obligation of the contract, in the constitutional sense, is the means provided by law by which it can be enforced. Whatever legislation lessens the efficacy of these means impairs the obligation. If it tends to postpone or retard the enforcement of the contract, the obligation of the latter is to that extent weakened.”
The court held, not that the levy in such case should be made despite any statute law of the state, but simply that it should be made under the law in force at the time the contract was made. The court say:
“When he seeks and obtains the writ of mandamus from the circuit court of the United States for the purpose of levying a tax for the payment of the judgment which it has rendered in his favor, he asks and obtains only the enforcement of the laws of Missouri under which his right became vested, and which are preserved for his benefit by the constitution of the United States. The question, therefore, is not whether a tax shall be levied in Missouri without the authority of its laws, but which, of several of its laws are in force and govern the case.”
Ho lawyer or statesman will question tbe right of the supreme court to construe the federal constitution, and determine when a state law impairs the obligation of a contract, or that its decision is conclusive, and becomes the supreme law of the land. So, when the county justices shall make a levy pursuant to the statute of the state in force at the time these bonds were issued, they will act in obedience to the supreme law of the land. And it is but due
The court will furthermore say that where the amount of the judgment is so great as to make its payment unduly burdensome in any one year, its practice, where the county court is willing to comply, is to require only a moderate per cent, of the judgment to be imposed in any one year.
It is finally suggested by counsel for petitioners that the continued imprisonment of these judges might seriously interfere with the collection of the revenues of the county, and thereby endanger the continuance of the state government With equal logic might it be contended that if the county judges, for contempt committed against a state court, or for a violation of the criminal law of the state, be fined or lodged in a county jail awaiting trial, they should be unconditionally discharged by the state court, lest a session of the county court might not be held for the transaction of some important business. Any failure oí administration of the county affairs % these judges is not ihe fault of this court, but of the county officers who will not obey the mandate of a court of competent jurisdiction, or of the people of the county who will not allow their county judges to pei&rm their duly to this court, and of those who encourage them in their resistance to law.
A word as to the popular view of tills controversy may serve to dispel some prejudice connected with this case. It is true no election was held in this county on the question as to whether the subscription should be made; but the truth is that the subscription was not ma.de by the county court under cover, or in the dark. At that time a large and most respectable element of the
The county, instead of following the advice of their counsel, when their cause was last in court, to settle on the best terms attainable, has followed an evil genius, until the accumulated interest on the debt has swollen to fearful proportions. Every man of sense must recognize the fact that this debt cannot now be paid in full. It would be a disgrace to the state to repudiate it, and I believe it would be an insult to the intelligence and honor of the people of the county to suggest such attempt. The proper solution of the problem is an adjustment; and he who, with unselfish patriotism, controlled by a sense of justice, shall, on terms of equal equity to creditor and debtor, bring about such compromise, will enjoy, as he will most deserve, the lasting gratitude of the good people of St. Clair county.
As, in committing these petitioning judges to jail as for a contempt, I have followed the law and the practice of the courts, both federal and state, as I understand it, the petitioners are remanded.
I trust petitioners will prosecute an appeal to the higher court, and obtain on the questions involved a more authoritative ruling. No one would be more pleased to see them declared free, under the law, than myself.