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ground of punishment. No forms of state went can change the substantial fact that the inherent power of courts to punish for contempt is exercised, not to preserve the auti!ority of the court, not in aid of proceedings Curied on ju them, but to aid a merei, ad0.inistrative body, and to compel obedience to its requirements. It makes the courts the muere assistants of a cominission.

It is said that this proceeding is substantially, if not precisely, similar to that which would arise if congress had passed an act imposing penalties on parties refusing to testify before a commission, and a proceeding was commenced to recover such penalties. But surely the differences are vital. If such proceeding was a criminal prosecution, de fendants would have the constitutional guar. anty of a trial by Jury; and this, too, in an action at law, if the amount of the penalty exceeded $20. By making it a proceeding for contempt, these constitutional protections are evaded. Further, there is no penalty prescribed. Refusal to answer is not made an offense, misdemeanor, or felony.

Suppose a law was enacted making crimi. pal the refusal to answer questions put by a commission (and a statute would be necessary before such refusal could be adjudged criminal, for there are no common-law of. fenses against the United States). U. 8. v. Eaton, 144 U. S. 677, 12 Sup. Ct. 764. Would It not be necessary that the statute define the questions, or at least the scope of the questions, to be asked ? Would not an act be void for indefiniteness and lack of certainty which simply made criminal the refusal to answer relevant questions in any proper inFestigation carried on before a commission ? Would it not be like the famous Chinese statUte:

“Whoever is guilty of improper conduct, to and of such as is contrary to the spirit of the

laws, though not a breach of any specific part of it, shall be punished at least forty blows; and when the impropriety is of a se rious nature, with eighty blows."

Could it be left to the commission to select the matter of investigation, determine the scope of the inquiry, and thus, as it were, create the crime?

Can all these difficulties be avoided by bringing the refusal to testify before a commission within the reach of the comprehensive inberent power of the courts to preserve their authority by proceedings for contempt?

But again it is said that the act of con. gress imposes upon all persons and corporations engaged in interstate commerce a duty to answer every proper question which the commission may see fit to ask, and that a refusal to answer constitutes a refusal to discharge a duty upon rightful demand. It is true that authority is conferred upon the commission to obtain information, but the act does not impose the duty to furnish it upon all persons interested in interstate commerce, and congress cannot invest the com

mission with discretionary power to create or not create a duty. If, when a question is asked, a duty is established, then the court would have no power to do anything except to enforce the act of the commission, if valid, or punish its violation without inquiry, which, as has been stated, would make the court the mere ministerial agent of the commission. If the duty is not established, then tbe court is called upon to take part in a mere inquiry as to whether it would be law. ful or expedient that the duty be established. It is not pretended that the court can take cognizance of the whole investigation on peti. tion, and this application is not a part of any judicial proceeding, nor could the order ad. judicate anything. It is clear that the duty, if it exists at all, is a political, and not a judicial, duty. Would mas pus lie to com. pel the discharge of this duty ? Yet mandamus is the recognized proceeding for the en. forcement of a duty.

It may be that it is the duty of every citi. zen to give information to the commission when demanded, but it is no more a duty than it is to avoid murder or other crimes, to, lead a life of social purity, to avoid fraud in* business transactions, or neglect of other duties of good citizenship. Will it be pretended that these obligat as can be enforced by the courts through proceedings as for contempt?

To say that there is a case, something that calls for Judicial action, because there are parties on the one side or on the other, is a breadth of definition bitherto unrecognized. Every effort at administrative or executive action, which is not voluntarily assented to by those whom it affects, creates a dispute between parties. Can it be that every such dispute justifies an appeal to the courts, and presents case for

cial action? If so, there is nothing which any administrative body or executive officer shall attempt to do which cannot be carried into the courts, and every failure to comply with the orders of such body or officer makes the delinquent subject to punishment by the process of contempt. Hitherto the power to punish for contempt has been regarded as a power lodged in judges and courts to compel obedience to their orders, decrees, and judgments, and to support their authority.

This is something more important than a mere question of the form of procedure. It goes to the essential differences between Judicial and legislative action.

If this power of the courts can be invoked to aid the inquiries of any administrative body, or en. force the orders of any executive officer, why may not the power to punish for contempt be vested directly in the administrative board or in the executive officer? Why call in the court to act as a mere tool ? If the interstate commerce commission can rightfully in. voke the power of the courts to punish as for contempt those who refuse to answer their questions, why may not like power be given to any prosecuting attorney, and he be an

thorized to summon witnesses,-those for as inquiry. Information, and that only, 18 well as those against the government,-and sought. It is unquestionably the duty of every in advance compel them, through the agency citizen to respond to the inquiries made by of the courts, to disclose all the evidence they the census officers, and furnish the informacan give on any expected trial? If these tion desired. Can it be that courts can be appellees have committed crime, punishment authorized to make the refusal of a citizen therefor comes only through the courts, and to furnish any such desired information acon. by the recognized procedure of information tempt of their authority, and to be punished as or indictment. They cannot be tried by the such? There is no question of the lawful commission for any act done.

power of congress to elicit this information; *One often-declared difference between ju- possibly, noneas to its power to provide that a dicial and legislative power is that the for refusal to give the information shall be deemmer determines the rightfulness of acts done; ed a misdemeanor, and prosecuted and pun. the latter prescribes the rule for acts to be ished as such. But it seems to me to oblit. done. The one construes what has been; the erate all the historic distinction between juother determines what shall be. As said in dicial and legislative or administrative proCooley, Const. Lim. side p. 92:

ceedings to say that the courts can be called "In fine, the law is applied by the one, upon to punish as for a contempt of their and made by the other. To do the first, authority a mere refusal to respond to this therefore,-to compare the claims of parties administrative inquiry as to facts. with the law of the land before established, This question was fully considered by Mr. -is in its nature a judicial act. But to do Justice Field, while holding the circuit court, the last-to pass new rules for the regulation in Re Pacific Railway Commission, 32 Fed. of new controversies—is in its nature a leg. 251, and the power of congress to make the Islative act; and if these rules interfere with courts the mere assistants of an investigating the past or the present, and do not look whol. committee was most emphatically denied. ly to the future, they violate the definition I am authorized to say that Mr. Chief Jus of a law as 'a rule of civil conduct,' because

tice FULLER and Mr. Justice JACKSON no rule of conduct can with consistency op concur in the views herein expressed. erate upon what occurred before the rule itself was promulgated." So, for whatever the appellees have done

(155 U. S. 54) in the past, whether they have violated any

LEWIS v. PIMA COUNTY. law of the land or not, an inquiry is to be

(October 29, 1894.) made in and by the courts. The judicial

No. 550. power cannot be invoked to sustain an in RAILROAD BONDS-MONICIPAL CORPORATIONS. vestigation into past conduct, which, when

Railroad aid bonds issued by a munici. disclosed, may or may not be, at the will pal corporation in one of the territories are of an administrative board or executive offi

void, under the act of June 8, 1878 (20 Stat.

101), which provides that nothing therein shall cer, presented for judicial consideration or

authorize such a corporation to incur any debt action. It is not meant to be affirmed that or obligation except such as shall be "necesno inquiry can be made into past conduct sary to the administration of its internal af. or actions except through the power and

fairs." processes of the courts.

On the contrary,

On Appeal from the Supreme Court of the the full power of legislative or executive de Territory of Arizona. partments to inquire into what has been is This was an action originally begun in the conceded. But, if designed to aid legislative district court of the first judicial district of or executive action, it must be by legislative Arizona upon 2,250 coupons attached to 150 or executive proceedings. Can the courts be bonds, issued by the defendant county July turned into commissions of inquiry in aid 1, 1883, and payable to the Arizona & Narrowof legislative action?

Gauge Railroad Company or bearer. The In short, and to sum it up in a word: If railroad in question was organized under a these appellees have violated any law, their general act of the territorial legislature for punishment should be sought in the ordinary the incorporation of railroads, passed in 1879, way, by prosecution therefor in the courts. which gave them power to make all con. If they have violated no law, and the simple tracts, acquire real and personal property, purpose is to elicit information for the guid to sue and be sued, to borrow money neces. ance of the commission or the legislature, let sary for the construction of the road, to issue that information be sought by the ordinary

bonds and notes therefor, and to receive doprocesses of legislative or administrative nations or voluntary grants of real and perbodies.

sonal property to that end. The bonds in o Take a familiar illustration: Once in 10 question were issued by the board of su:

years a census is ordered by authority of pervisors of the defendant county under an congress, and the scope of that census, con act of the legislature of Arizona of February stantly enlarged, is to elicit from the citi 21, 1883, entitled “An act to promote the con. zens of the United States information as to struction of a certain railroad," and were a variety of topics. No thought of punish part of a series of 200 bonds issued in pursoment for past misdeeds enters into such an ance of said act, and exchanged for a like

pumber of bonds of the railroad company of that the restrictions contained in section 1889 like amounts, bearing like interest, and run. "shall not be construed as prohibiting the ning like times as the bonds in suit.

legislative assemblies

from creat. Defendant demurred to the complaint both ing towns, cities, or other municipal corporagenerally and specially, and upon argument tions, and providing for the government of the demurrer was sústained and judgment the same, and conferring upon them the entered in favor of defendant.

corporate powers and privileges, necessary to Plaintiff appealed to the supreme court of their local administration, by either general the territory, by which the judgment of the or special acts.” Following this there is a district court was affirmed. He thereupon paragraph validating acts theretofore passed sued out this writ of error.

creating municipal corporations, and providW. H. Barnes and W. H. Rossington, for

ing, further: "That nothing herein shall appellant. Chas. Weston Wright, for appel

have the effect to create any private right, exlee.

cept that of holding and executing municipal offices, or to divest any such right, or to make

valid or invalid any contract or obligation Mr. Justice BROWN, after stating the facts

heretofore made by or on behalf of any such in the foregoing language, delivered the

town, city, or other municipal corporation, opinion of the court.

or to authorize any such corporation to incur This case involves the validity of certain

hereafter any debt or obligation other than bonds issued by the county of Pima under an

such as shall be necessary to the administraact of the legislative assembly of Arizona,

tion of its internal affairs." approved February 21, 1883, authorizing and

In the face of these restrictions upon its requiring the board of supervisors to issue

power, the legislature of Arizona, on Feb$200,000 of bonds of such county, and to ex

ruary 21, 1883, passed the act in question, change the same, in lots of $50,000 each, for

making it the duty of the board of supervian equal number of the bonds of the Arizona

sors to issue $200,000 of county bonds, and & Narrow-Gauge Railroad Company, secur

to deliver the same to the railroad company ed by a mortgage upon its road. Assuming

in exchange for corresponding bonds* of that the bonds were issued in conformity

such company. Now, unless a debt thus inwith this act, the act itself is claimed to be

curred in aid of the construction of a rail. in conflict with certain acts of congress up

road can be said to be an obligation "nec. on the subject of the organization of terri

essary to the administration of the internal tories.

affairs” of Pima county, it must necessarily By the Revised Statutes (section 1889 of a

follow, irrespective of every other considera. chapter containing a provision common to

tion, that the legislature exceeded its powers all the territories), “the legislative assemblies

in authorizing and requiring the county to of the several territories shall not grant pri

issue its bonds in exchange for those of the vate charters or especial privileges, but they

railroad company in question, and that the may, by general incorporation acts, permit

bonds are void. persons to associate themselves together as

The question is too clear for extended arbodies corporate for mining, manufacturing,

gument. By the "internal affairs" of a muni. and other industrial pursuits, or the con

cipal corporation, in the administration of struction or operation of railroads, wagon

which the legislature could alone authorize roads, irrigating-ditches and the colonization

it to incur a debt, was undoubtedly intended and improvement of lands in connection

such business as municipalities of like chartherewith, or for colleges, seminaries, church

acter are usually required to engage in to es, libraries, or any benevolent, charitable,

fulfill their proper functions, and to effectuate or scientific association."

the objects of their charters. In the case of In 1878 this section was amended by an

counties these are ordinarily to provide a explanatory act (20 Stat. 101), to the effect

courthouse for the administration of justice; * The following opinion of the supreme court

a jail for the confinement of prisoners; a of the territory of Arizona was filed April 14, | poorhouse for the sustenance of paupers 1893: "Kibbey, J. This cause came on reg (where by local law they are made chargeable ularly to be heard, the parties hereto being duly

upon the county); offices for the various ofrepresented, and, having by the court been duly considered, it is ordered that the judgment

ficials of the county; and, under certain cirmade and entered in the district court of the cunstances, highways and bridges for the first judicial district, territory of Arizona, in accommodation of the public. It could never and for the county of Pima, in favor of said county of Pima, appellee herein, and against

have been contemplated, however, that this said Charles Edward Lewis, appellant herein, power would be used to incur obligations in be, and the same is hereby, affirmed; and it is favor of a railroad operated by a private corfurther ordered, adjudged, and decreed that the

poration for private gain, though also subsaid Piala co'inty, appellee, do have and receive of and from said Charles Edward Lewis, ap

serving a public purpose. The record before pellant therein. an. of his sureties the

us does not show whether this railroad was appeal bond herein, its costs incurred in the low designed to extend beyond the limits of er court, taxed at $ and its costs incurred and expended on this appeal in this court, taxed

the county; but, if the county had power to at $ Gooding, C. J., and Wells, J., con

issue its bonds in aid of railroads at all, there curring."

is nothing to indicate that such power was

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rescricted to such roads as were wholly within Held, that in suits of the class mentioned in the county, and, if this act were a valid ex Act March 3, 1975, $ 8, the circuit court of the

district wherein the land in dispute lies ning crcise of the authority of the legislature, the

assume jurisdiction, though plaintiff and some credit of the county might be indefinitely of defendants are residents of other distriris. pledged for the construction of railways ex Smith v. Lyon, 10 Sup. Ct. 303, 133 U. S. 31.1, tending far beyond the county limits, and,

distinguished. Goodman v. Niblack, 102 U. S.

556, applied. indeed, for carrying out any such schemes

2. A suit for partition is within the class of public improvement as the legislature could of cases specified in Act March 3, 1875, $ 8. be persuaded to authorize. Clearly, such debts

Mr. Chief Justice Fuller dissenting. would not be incurred in the administration • Appeal from the Circuit Court of the United of the internal affairs of the county.

States for the Northern District of Florida. The argument of counsel on both sides was This was a bill in equity for the partition in largely directed to the question whether the of real estate originally filed by George P.

territorial act of 1883, under which these | Greeley and wife, who were alleged to be bonds were issued, conferred an "especial citizens of New Hampshire, against 130 de privilege" upon the railroad company, within fendants, most of whom were citizens of the meaning of Rev. St. § 1889, inhibiting Florida. Of the remaining defendants, some “private charters and especial privileges," and were citizens of Georgia others, of Illinois, also to the further question whether bonds is South Carolina, Alabama, Texas, North Caro sued under a mandatory or compulsory stat lina, New York, New Jersey, Mississippi; ute are valid; but in the view we have taken and one, Eliza B. Anderson, of the city of of the case it is unnecessary to express an Washington and District of Columbia. opinion upon these points.

The bill averred the plaintiti, George P. We are compelled to hold that the bonds Greeley, to be seised as tenant in common, in question create no obligation against the in fee simple, and in actual possession, of county which a court of law can enforce. 10,016 acres of land in the northern district

The judgment of the court below is, there of Florida, of the value of $10,000, exclusive fore, affirmed.

of interest and costs, etc.; that one John T. Lowe, and Susan, his wife, were originally

seised of the said premises by grant from the (155 U. S. 68)

Spanish government in 1816, as a mill right GREELEY Y. LOWE et al.

(Lowe being then married, and his wife, (October 29, 1894.)

Susan, being seised, by ganancial right, of an No. 517.

undivided ball of said premises under the CIRCUIT Court-JURISDICTION-SUITS FOR Parti

laws of Spain, which declared that real es. TIOS AGAINST NO RESIDENTS.

tato acquired by either the husband or wife 1. Rev. St. $ 738 (17 Stat. 196, § 13), re during coverture by purchase, gift, or gain be lating to suits in United States courts, provides that when any defendant in a suit in equity to

comes and remains community property), and euforce any lien or claim against land within

that they were seised thereof as tenants in the district where suit is brought is not an in common; that Lowe died in 1824, and the habitant of or found within such district, and grant was subsequently confirmed by the sudoes not appear, it shall be lawful for the court to order the absent defendant to appear, etc.,

preme court of the United States in 1812 (U. at a designated day. Section 739 provides that,

S. v. Low, 16 Pet. 162); that the ganancial except as provided in the next three sections right and title of said Susan Lowe has never and "the preceding section,” no civil suit shall

been alienated, relinquished, or annulled, and be brought in any other district than that of which defendant is an inhabitant, or in which

has been duly protected and guarantied by he shall be found at the time of serving the the treaty of 1819 between the United States writ. Act March 3, 1875 (18 Stat. 470), g 1, and Spain; that Lowe attempted to convey provides that no civil suit shall be brought against any person by any original process or

to one Clark the southern half of this grant, proceeding in any other district than that

but his wife, then living, did not join, and whereof he is an inhabitant, or in which he the half of the south half only was conveyed; shall be found when process is served or pro

that Clark conveyed to Duncan L. Cliuch, ceeding commenced, "except as hereinafter provided.' Section 8, relating to the class of

who died testate, leaving his executor power cases mentioned in Rev. St. $ 733, provides for to sell said lands; that Susan Lowe survived publication in any suit to enforce any legal or her husband, but both died intestate, and equitable lien or claim to, or to remove any incumbrance or lien or cloud on title to, land

their estates had long been settled; that the within the district, and that the adjudication

north half of said grant and half of the shall, as regards such absent defendant or de south half descended to their children, nine fendants without appearance, affect only the in number. property under the jurisdiction of the court therein within such district. Act Aug. 13,

The genealogy and shares of the heirs and 1888 (25 Stat. 43t, amending Act March 3, their grantees are stated at great lengtb in 1875), § 1, contains the same provision first the bill, all the claims of the various memquoted from sertion 1 of the latter act, and the

bers being set up and defined, and the infurther provision that, "where the jurisdiction is founded only on the fact that the action is validity of certain deeds attached as exhib between citizens of different states, suit shall its being averred and pointed out. The bili be brought only in the district of the residence

contained a general averment that no other of either the plaintiff or the defendant.” Section 5 expressly reserves any jurisdiction or

person, except such as were made parties, right mentioned in Act March 3, 1875, 8 8. I had any interest in or title to the premises;

that by reason of the lapse of time, the dis decree subsequent to the rehearing appearo turbed condition of the country, etc., it has to have been entered, by an indorsement been almost impossible to trace the lineage made upon the bill of June 15th, it would ap. of the several families, and to find the actual pear that the bill was finally dismissed upon parties in interest.

that date. From this decree an appel was The bill prayed that the different deeds at taken to this court, and the question of juristached as exhibits might be construed, and diction, as above stated, was certitied to this the interest, if any conveyed, ascertained or court for decision, pursuant to section 5 or the deeds canceled; that all persons having the court of appeals act. any claims or liens upon the lands might be brought in and required to prove their claims,

Jas. R. Challen and George A. King, for ur bave the same held null and void; that

appellant. Isaac A. Stewart and Eleazer K. partition of the lands be made, if possible

Foster, for appellees. and equitable, and, if not, that they might be sold, and the proceeds distributed; that • Mr. Justice BROWN delivered the opinion plaintiff recover his advances for taxes and of the court. expenses, including costs and counsel ftes;

This bill appears to have been dismissed that a master be appointed to state the shares, by the court below upon the ground that advances, and fees; and that commissioners inhabitants of other districts than the northbe appointed to make partition or sale, etc. ern district of Florida were made defend

Isaac A. Stewart, one of the defendants ants. The question really is whether, under resident in Florida, filed a plea to the juris the act of August 13, 1888 (25 Stat. 433), diction, setting up, among other things, that requiring, in actions between citizens of dit. the suit was not brought in the district of ferent states, suits to be brought only in the the residence of either the plaintiffs or de district of the residence of either the plainfendants; that the controversy was not be tiff or the defendant, it is admissible to tween citizens of different states; that cer bring a suit for partition in a district in tain defendants had interests adverse to oth which only a part of such defendants reside. er defendants; that Eliza B. Anderson, one As suits are usually begun in the district of the defendants, was a resident and citizen in which the defendants, or one of the deof the District of Columbia; that her claim fendants, reside, the question practically in. was adverse to his (Stewart's); that Gree volves the whole power of the circuit court ley's wife was improperly joined, was not of one district to take jurisdiction of such the cotenant, and could not maintain a sait; suits, brought against defendants, some of that the wives of several of the defendants whom are residents of other districts. were improperly joined, *in that they pos 1. The paragraph of section 1 of the act sessed no legal interest in the property; and of 1888 relied upon by the defendants reads that others who were necessary parties were as follows: “And no civil suit shall be not joined as defendants. Thereupon, plain brought before either of said courts against tiff moved for leave to amend his bill by any person by any original process or proinserting after the name of Eliza Anderson

ceeding in any other district than that wherethe words, “citizen of South Carolina, now of he is an inhabitant, but where the jurisresident in Washington, D. C.," and also to diction is founded only on the fact that the add other defendants. The court granted action is between citizens of different states, the motion to amend, and the cause came on suit shall be brought only in the district of to be heard on the plea to the jurisdiction. the residence of either the plaintiff or the The court made a final decree, holding that defendant." In the case of Smith v. Lyon, while it was true that the complainants were 133 U. S. 315, 10 Sup. Ct. 303, this court held citizens of New Hampshire, and resident

that the circuit court has no jurisdiction on tbere, and some of the defendants were citi the ground of diverse citizenship, if there are zens of Florida, in the district in which the two plaintiffs to the action, who are citizens land lies, yet because there were other de of and residents in different states, and defendants citizens of New York, and also of fendant is a citizen of and a resident in a other states than the state in which the com third state, and the action is brought in a plainants reside and have citizenship, and state in which one of the plaintiffs resides. also citizens of other federal districts than As was said by the court (page 317, 133 U. that where the land is situate, and where cer S., and page 303, 10 Sup. Ct.), the argument tain defendants reside, it was decreed that in support of the jurisdiction was "that it is “this court has not jurisdiction over all the sufficient if the suit is brought in a state defendants to this action, because they are where one of the defendants or one of the not all residents and citizens of the district plaintiffs is a citizen. This would be true in which the land sought to be partitioned if there were but one plaintiff or one defendlies, and are not all found in said district at ant. But the statute makes no provision, in the time of the service of the process."

terms, for the case of two defendants or two On May 6, 1892, plaintiffs filed a petition plaintiffs who are citizens of different states. for rehearing, and on June 13th amended In the present case, there being two plaintheir bill by striking out the name of Eliza tiffs, citizens of different states, there does B. Anderson as defendant. While no formal not seem to be, in the language of the statute,

v.15s.c.-2

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