Графични страници
PDF файл
ePub

Central Law Journal.

ST. LOUIS, MO., AUGUST 23, 1901.

On Wednesday morning, August 21st, in the city of Denver, Colorado, Hon. Edmund Wetmore, of New York, will open the twenty-fourth annual meeting of the Ameri can Bar Association. This is the first time this association has crossed the Mississippi, and in this respect is a noteworthy recognition of the western lawyer. There was a time when lawyers and laymen of the east deceived themselves with the idea, that in the vast empire lying between the Father of Waters and the Pacific Ocean, law and order were pilgrims and strangers in the land, and that in all disputes, whether civil or otherwise, the gun or the bowie knife was the arbitrament of last resort. In a few instances, the eastern imagination in some wild range of flight would insist that in such cities as St. Louis, Denver and Kansas City, indians with their squaws and papooses impeded traffic in the streets and laid in wait upon the highway. Gradually, in the natural course of events, this has all been changed. The vigorous young blood of the west, overcoming its environment, asserted its superiority, not only in the sterner arts of husbandry and manufacture, but also in the refinements of civilization. In jurisprudence her advance has been remarkable. Throwing off the obsolete and unreasonable exactions of the common law with such rash abandon as to amaze the eastern jurist, who could conceive of no larger horizon, she applied herself to the solution of new and difficult problems, with some of which the common law had never grappled, and many of which it was not competent to solve. With a mind absolutely free from prejudice, she took from both the civil and common law those principles which experience had proven to be suitable to her condition, but where neither source of jurisprudence had anything satisfactory to offer, with remarkable independence she cut a more direct and satisfactory path, and thus gradually developed those great code and statutory systems of the west, of which the States of Colorado and California are the most worthy

examples. Is it to be wondered, therefore, that the lawyers of the west who were the leaders of her successful advancement and who assisted her in cutting the Gordian Knot of many a legal difficulty which her statesmen had failed to solve by code or statute, should have caught her independent spirit and finally forged their way into the very forefront of the profession-men like Stephen J. Field, David J. Brewer and John F. Dillon, the first editor of the CENTRAL LAW JOURNAL, who for clearness of perception and originality of thought have had no superiors, and whom the country has delighted to honor, and in whose sagacity and knowledge of the law it never hesitated to confide.

We repeat, therefore, that the holding of the American Bar Association in the city of Denver is a memorable recognition of western advancement in jurisprudence, and one which the members of the profession from that great section of our country should not fail to acknowledge by their large and enthusiastic attendance.

NOTES OF IMPORTANT DECISIONS.

SURETIES-CONTRACT OF INDEMNITY.-Suppose A replevies goods in the hands of B. A obtains two sureties to go on his bond, who, however, are led to sign the bond on the written promise of C, a third person having no interest in the suit, that he will indemnify them against all loss, on account of their contract of suretyship. B, the defendant, recovers judgment for $3,000. A and his two sureties, however, are insolvent. Can B be subrogated to the position of the sureties and enforce the contract of indemnity against C? That was the question for decision in the case of Henderson-Achert Lithographing Co. v. John Shillito Co. (Ohio), 60 N. E. Rep. 295, where it was held that since the sureties on an undertaking in replevin have no remedy at law or in equity upon a contract to indemnify them against loss on account of their suretyship, until such loss has occurred, the defendant himself in the replevin suit, after recovery of judgment, has no such remedy, even though the sureties and judgment debtor be absolutely insolvent and the judgment be not otherwise collectible. The defendant in this action was the indemnitor C and the plaintiff was B, the judgment debtor in the replevin suit. The obligation expressed in the defendant's obligation of indemnity to the sureties on the re-. plevin bond, was "to guaranty the sureties against any loss by being a party to the bond." The court said:

"The defendant is a stranger to the debt, and its agreement is one strictly of indemnity to the

sureties; so that its individual liability on the agreement to enforce which this action was brought is in no sense a property right of the plaintiff's debtor, and satisfaction of the judgment obtained therefrom would not be payment out of the debtor's estate, but out of the estate of a stranger. Confessedly, therefore, the liability of the defendant on its covenant to indemnify the sureties against loss can be reached by the creditor, if at all, only through some right or remedy that belongs to the sureties. And it should be borne in mind that the defendant's obligation does not arise out of any principle of equity, but is created by special agreement of the parties. Except for his express agreement, the defendant would have nothing to do with the liability of the sureties. That agreement, therefore, which alone created must determine the extent of the defendant's liability, both at law and equity; for there is no principle upon which a court of equity or law can enlarge the legal effect of the agreement. It seems self-evident that the rights of the creditor, through subrogation to the remedies of the sureties, can, in no case, exceed those of the latter, and that, until the indemnitor's covenant has been broken, or there has been some failure to perform it, no action can be maintained thereon by either. This was declared in Trust Co. v. Reeder, 18 Ohio, 35, 47, and there is no diversity of authority on that subject. There is an essential difference, in legal effect, between covenants of indemnity, strictly, that is, of indemnity against loss,-and covenants to pay or assume or stand for the debt, or a surety's liability thereon. A right of action accrues on those of the latter class as soon as the debt matures and is unpaid, because the liability then becomes absolute, and the failure to pay is a breach of the express terms of the covenant; while those of the former class are not broken, and no right of action accrues until the indemnitee has suffered a loss against which the covenant runs. This distinction grows out of the express terms of the contract, and is well established by authority. It is expressed by Mr. Justice Swayne in Wicker v. Hoppock, 6 Wall. 94–99, 18 L. Ed. 752, 753, as follows: In that class of cases (contracts of indemnity) the obligee cannot recover until he is actually damnified, and he can recover only to the extent of the injury he has sustained up to the time of the institution of the suit. But there is a well-settled distinction between an agreement to indemnify and an agreement to pay. In the latter case a recovery may be had as soon as there is a breach of the contract, and the measure of damages is the full amount agreed to be paid.' That the distinction obtains at law counsel concedes. But it is insisted that a different rule prevails in equity, which, it is claimed, will entertain a suit for the specific performance of indemnifying covenants before a loss has been sustained, by compelling the payment or discharge of the surety's obligation, for his better and more complete exoner

ation. There is both reason and authority to sustain the proposition that a covenant, though by a stranger, founded upon a sufficient consideration, to pay or to assume or to stand for a debt on which a surety is bound, may be specifically enforced in chancery, after the maturity of the debt, if it be not then paid by the covenantor. The reason is, as has already been stated, that by his failure to pay he has failed to perform his covenant, and the remedy is within its express terms. The courts have many times so held. But on no sound principle can a court of chancery, any more than a court of law, compel an indemnitor to perform his covenant in advance of the happening of the contingency or event upon which, by its terms, it is to be performed. Such a remedy would necessarily involve, not the enforcement of the contract made by the party, but its modification by the court, and its enforcement in that modified form.”

JURISDICTION OVER THE MAIN BODY OF THE OHIO RIVER.

Although one hundred years have elapsed since the compact between Kentucky and Virginia was approved, the latter portion of one section, has never been construed by the Supreme Court of the United States, and as that tribunal may at no distant day be called upon to construe it, I presume that it will not be inappropriate for me to offer some suggestions as to the construction of the section in question. As there has been a great deal of contention over the construction of the later portion of section 11 of the compact, I made an investigation of the matter merely for historical information, and after a careful examination, I have written a few suggestions, as to how the later portion of the section should be construed. Section 11 of the compact between Kentucky and Virginia says: "Seventh, that the use and navigation of the river Ohio, so far as the territory of the proposed state, or the territory which shall remain within the limits of this commonwealth lies thereon, shall be free and. common to the citizens of the United States, and the respective jurisdiction of this commonwealth and of the proposed state, on the river as aforesaid, shall be concurrent only with the states which may possess the opposite shores of the said river." The question to be discussed is: By the clause "and the respective jurisdictions of this commonwealth, and of the proposed state on the river as aforesaid, shall be concurrent only

with the states which may possess the opposite shores of the said river" did Virginia mean to give concurrent jurisdiction with herself and Kentucky, over the main body of the Ohio river, both civil and criminal, to the states, which are now Ohio, Indiana and Illinois? As this exact question is now pending before the Court of Appeals of Kentucky, and being a public question, in which the people of the six states of West Virginia, Virginia and Kentucky; and Ohio, Indiana❘ and Illinois are interested, for the readers of this journal, I have prepared the following suggestions for the construction of this clause: "And the respective jurisdictions of this commonwealth, and of the proposed state, on the river as aforesaid, shall be concurrent only with the states which may possess the opposite shores of the said river."

the river in herself in the deed of cession. And the deed of cession plainly shows that Virginia wished to retain the jurisdiction of the Ohio river in herself.

2. All right of soil or jurisdiction Virginia had in the river was transferred to Kentucky opposite the shore of the latter state.2

3. The doctrine of contemporaneous construction is applicable. The construction placed upon section 11 by the statutes passed nearly at the same time, as the clause in question can be restored to for the purpose of construing it. This rule especially applies where the clause, as the one in question is, is ambiguous. The compact between Kentucky and Virginia was approved December 18, 1789, by both states. Congress enacted laws admitting Kentucky into the Union as a state in 1791, 1792, according to the provisions of this compact. In April, 1802, the state of Ohio was admitted into the Union, and its boundary was fixed at the Ohio river, but nothing was said in the act of congress admitting Ohio into the Union, about Ohio having concurrent jurisdiction over the Ohio river. On April 19, 1816, congress passed an act authorizing the inhabitants of the territory of Indiana to form a State. It fixed the boundary of Indiana on the west, at the middle of the Wabash river, and on the south by the Ohio river. Notice the distinction. The boundary is fixed in the middle of one river, and on the north of the other river. But further in this act it is said: "That the said state shall have concurrent jurisdiction on the river Wabash, with the state to be

1. All statutes relating to the same subject must be construed in pari materia. So, therefore, all resolutions of the Virginia legislature, relating to the cession of the northwestern territory, the deed of cession of the northwestern territory, the ordinance of 1787, by congress accepting the grant of the same, the act of 1788, by the legislature of Virginia amending the deed of cession, at the request of congress, and the acts of congress admitting Kentucky, Indiana, Illinois and Ohio into the Union as states, the compact between Kentucky and Virginia must be all construed as a whole. The statutes can be found as follows: (History of the northwestern grant, 10 Henning's Statutes, page 547; Acts of General Assembly of Virginia, authorizing the deed of cession of the north-formed west thereof, so far as the said river western territory to the United States, 11 Henning's Statutes, page 32. Deed of cession, Ibid., page 571; act admitting Kentucky into the Union, 1 U. S. Stat. at Large, page 189; act admitting Ohio into the Union, 2 Statutes at Large, page 173; act admitting Indiana, 2 Statutes at Large, page 103; act admitting Illinois into the Union, 3 Statutes at Large, page 428).1 In none of these stat

shall form a common boundary to both." But the act does not give Indiana concurrent jurisdiction with the state of Kentucky over the Ohio river. This omission shows that the federal government never assumed that the "proposed states" (Ohio, Indiana and Illinois), had concurrent jurisdiction with the state of Kentucky over the Ohio river. Two years later (1818) Illinois was admitted into

bash river, with the state opposite it, but the act omits to give the state concurrent jurisdiction over the Ohio river. This omission is significant. It shows that congress did not regard the compact of Virginia and Kentucky, as surrendering the right of exclusive jurisdiction in the Ohio river with any states or proposed state. In 1820, Virginia declared the Ohio river lying opposite her was to be considered as compounded, and is declared to be compounded within the bodies of several of her counties subject to the provisions contained in the article of compact between Kentucky and herself. This would seem to exclude the idea that the states on the opposite shore of the Ohio river had concurrent jurisdiction over the main body of the river. Kentucky had ten years prior to that time, enacted a statute to the same effect.

Even if the federal government which owned the northwestern territory, at the time of the compact between Kentucky and Virginia, had acquired concurrent jurisdiction with those states over the main body of the Ohio river, it waived it by the acts admitting Ohio, Indiana and Illinois as states into the Union, and not giving them concurrent jurisdiction over the Ohio river.

4. Even if the federal government had acquired concurrent jurisdiction over the Ohio river, it did not surrender it to Indiana as the act which admitted Indiana into the Union as a state did not give it. Could Indiana acquire any right not given her by the federal government? She derived her whole existence from the federal government, and she can claim no right from any source, except that government.

5. Ohio has never enacted any legislation claiming concurrent jurisdiction over the main body of the Ohio river, that I can find after an earnest and painstaking investigation. Nor has its supreme court ever expressly claimed jurisdiction over the Ohio river, although there is some obiter dictum in one case claiming that the state of Ohio owned the Ohio to the middle of the river. I understand that the executive officers of Ohio have never claimed jurisdiction over any part of the Ohio river above low-water mark on the Ohio shore.

6. Illinois never claimed any jurisdiction

3 Code of Virginia, p. 50.

4 Morehead & Brown, vol. 1, page 268.

over the Ohio river until the constitution of 1848, sixty years after the compact between Kentucky and Virginia, if she has ever claimed it at all. The constitution of Illinois of 1818, fixed the boundaries of that state according to the act admitting Illinois into the Union, but in the constitution of 1848 it is provided: "This state shall exercise such jurisdiction upon the Ohio as she is now entitled to, or such as may be agreed upon by this state and the state of Kentucky." It is conceded by this provision of the Illinois constitution, that Kentucky has jurisdiction over the Ohio river except the jurisdiction that Illinois had already acquired, namely, jurisdiction above the lowwater mark on the northern shore. Prior to 1848 Illinois had never claimed concurrent jurisdiction over the Ohio river with Kentucky, and she only claimed in the constitution of 1848 to the low-water mark on the northern shore, and conceded to Kentucky the jurisdiction beyond the low-water mark on the northern shore. The same provision as to the jurisdiction of Illinois over the Ohio river that was in the constitution of that state of 1848, is in the constitution of 1870. Illinois, therefore, has never claimed concurrent jurisdiction with Kentucky over the main body of the Ohio.

7. In the constitution of Indiana of 1816, the preamble states that the constitution is formed consistent to the law of congress entitled: "An act to enable the people of Indiana territory to form a state." That act fixed the limits of the state as stated in number 3 of this article on the Ohio river, and it did not give Indiana concurrent jurisdiction over the Ohio river, and so consequently Indiana never claimed concurrent jurisdiction over the Ohio river in the first constitution of that state. There was also an ordinance passed by the first constitutional convention of Indiana, accepting the boundaries of the state as fixed by congress, in the act to enable the people of Indiana territory to form a state. Also in the first constitution of Indiana (article 5, section 2) the jurisdiction of the Supreme Court of Indiana is fixed "with the limits of the state;" these limits did not include concurrent jurisdiction over the main body of the Ohio river, neither by the act of congress admitting Indiana, nor by the ordinance of the constitu.

tional convention of Indiana, accepting the act of congress defining the boundaries of the state. In the constitution of 1851, Indiana, after the lapse of over sixty years from the date of the compact between Kentucky and Virginia asserted by legislative action the claim that she had concurrent jurisdiction with Kentucky over the Ohio river for the first time.

If the compact between Kentucky and Virginia gave Indiana jurisdiction, which was concurrent in those states, did not Indiana abandon that concurrent jurisdiction by waiting for sixty years, after the compact, and thirty-five years after she became a state before she enacted legislation asserting her claim? The first case on this question, andwhere the supreme court first claimed jurisdiction is one of Carlisle v. State. That case has been followed in a number of subsequent cases by that court. They are all cited in Packet Company v. Mickey.

6

8. The fact that Indiana has assumed jurisdiction over the Ohio river for forty years, does not confer it, if the jurisdiction has been wrongfully assumed."

9. The clause of the compact between Kentucky and Virginia in question was for the purpose of giving free navigation to the citizens of the United States.8

10. The only grant meant in this clause was concurrent jurisdiction over the northern shores.9

11. Indiana, not being a party to the compact between Kentucky and Virginia can take no advantage under the compact.10

12. The construction of the clause in question has been argued before the Supreme Court of the United States, several times, but in every instance that court has declined to pass upon the question as to whether or not concurrent jurisdiction, was conferred over the main body of the Ohio river, by the clause in question. In Handley v. Anthony," the question was presented but

533 Ind. 55 (1869).

* 142 Ind. 310.

7 Coffee v. Grover, 1-23 U. S. 29, and the authorities therein cited. Keyser v. Coe, Fed. Cas. No. 7,750. 8 Penn v. Bridge Co., 13 How. 565; Garner's Case, 3

not passed upon, although Chief Justice Marshall, intimated that the clause was simply a repetition of the deed of cession of the Northwestern territory. In Penn V. Bridge Co.,12 the supreme court decided that under section 11 of the compact between Kentucky and Virginia the navigation. of the Ohio, was for the citizens of the United States. In Sherlock v. Alling,13 the exact question as to whether Indiana has concurrent jurisdiction with Kentucky over the main body of the Ohio was presented. The Supreme Court of Indiana had rested its decision upon that ground alone. The supreme court declined to pass upon the question as it decided that the collision between the two steamboats, out of which the action grew, took place above the low water mark of the Indiana shore. But there is an intimation that had the collision taken place below the low water mark, that the laws of Kentucky, governing the right of an administrator to sue, would have controlled. Again, in Indiana v. Kentucky," the question was argued by the late senator Joseph E. McDonald, but the court did not pass upon it.

13. The title to the land under the Ohio river belongs to Kentucky, Virginia and West Virginia, and they claim and exercise the power to grant title thereto to their citizens as patentees.15 This goes to low water mark on the north bank under the original deed of cession from Virginia to the federal government. The laws of state have no extra territorial force. The power of a state law ends at the territorial line. If one state claims jurisdiction over the land of another state she must show some grant to her, from the state within which the land is situated. Failing in this, the claim fails. Kentucky has never granted to Indiana any jurisdiction over the Ohio river, concurrent or otherwise. When congress defined the boundary of Indiana, in her enabling act, it was done in accordance with the act of cession. Congress was the sovereign power on this subject. In defining the north bank of the

12 13 How. 518. 13 93 U. S. 101. 14 136 U. S. 479.

« ПредишнаНапред »