TOWN OF GREENBURG V. IN'l'ERNATI'oNAL TRUST CO.
755
Consequ'entlythe court below committed no errOr in declining to hold, as, by !Several of the plaintiff's points it wal> requested to do, that a contraetexclusively in writing had been ,established. The plaintiff, indeed, was not willing to rest its proof of contract upon the letters merely; for it intrqduced supplementary testimony, which, if the letters had constituted a complete contract, would both superfluous and irrelevant. The complaint made of the action of the trial judge in declining to instruct the jury that, in the absence ofa plea of accord and satisfaction, "the alleged transaction of January 22d, as to a settlement ,on that day, cannot be considered by the jury in that light," is not well founded. The testimony relating to this transaction was received without objection, and there was some cross-examination with respect'to it. In oilr opinion, the court would not have been justified in directing the jury as the plaintiff requested. What it did say was, we think, entirely proper and appropriate, viz.: "I may say, powever, respecting this, that I have been more inclined to regard the evidence beard on this" SUbject as bearing on the question whether the plaintiff at that time believed it had such a claim as it now sets up,-in other words, 'whether the claim is an afterthought.-than as evidence of a settlement of the claim made here. The parties were ,at that time settling an old account, and they introduced into it the cost of putting in the electric light and preparing the office for this business. They made no such claim then as is now set up, so far as my memory of the testimony goes.--,though I leave it to you,-nor uutil this suit was brought. You have heard the testimony of the witnesses respecting what was said upon that occasion. The defendant sets it up as evithat this matter was called up, and that any claim the plaintiff had against the defendant on account of what had taken plaCe was settled. I rep('at to, you that I have regarded it, not SO much as evidence of such a settlement: as evidence bearing upon the question whether the, plaintiff then at that, timebeUeved it had such a claim,-believed that the contract now set up existed,-or whether this claim was an afterthought. You have heard the defendant's testimony in answer to the plaintiff's on this subject, and must determine, from a fair consideration of it, and of all that is before you, what weight should be attached to it." '
The fourth point submitted by the plaintiff in error, that ''the verdict was against the evidence," presents no question which is properly for consideration by this court. The judgment is affirmed.
TOWN OF
Y.
I1\'TERNATIONAI, TRUST CO. 25, 1899.)
(Circuit Court of Appeals, Second Circuit. No. 82. 1. HIGHWAYS-DETERMINATION OF NECESSITY 1;ORK 8TA'l'UTE. BY
COURTS-VALIDITY OF .NEW
Laws N. Y. 189'2, c. 493, providing for the extending of highways in one town into or through other tOWns in the same county, was not in violation of the state constitution because it conferred on certain courts of the state tbe power to determine the or expediency of such extensions. the highest court of the state having upheld the exercise of such powers by the courts in numerous analogous cases. arising under the same cbnstltution.
756;
94 FJtJI?ERALRE<P,ORTER. IN lSSUANCl,,--BoNA FIDE HOLDERS.
' T h e faCt, that the municipal authorities gave a credit to the ptll'chaser of the bonds of a -town, Instead of' seIlIng them for cash, as required by the statute, 'is not a defense, to an Action on such bonds by a subsequent bona fide purcbllSer. ,
.
Circuit Court of' the United States for the Southern District of New York.' ' J. Rider Cady, for plaintiff in error. John Dillon, for defendant in error. Before WALLACE and SHIPMAN, Circuit WALLACE, Oircuit Judge.'l'be bonds in suit were created pursuant'to the authority conferred by an act of the of the state of New York entitled "An act to provide for the construction upon highways running through two or more of highwaj's arid towns of the same ccnnty" (chapter 493, Laws 1892), and their validityis cont.e,sted upon the propoSition that the act violates the constitution of the state. The contention, if well fajluded, is of course faial to the validity of the bonds, and no hclder of them can invoke protection as a bona fide purchaser,as all purchasers take them with knowledge of the law, and presumed knowledge that they are void. ' , , ,Section 1 of the act provides as follows: "Any twelve or more freeholders, residing In any county of this state. may present a petition which must be duly verified by at least all of the, said freeholders, to the' supreme court at a special term to be held in the judicial district where such' court is situated or to the county court of said county, stating that it is necessary for thepubIic welfare ,And convenience that a highway In any one town in said county shall be continued along and through another town in the saine county. Upon receipt' of' the said petition the said court shall carefully: eonsider'the facts thereln,alleged, and iftt shall be satisfied that the said hlgh,,:ayis necessary for' the pubiic welfare and convenience, and that its continuation and construction will afford a nearer road between two populous points, in two towns than by any existing highway, then the said court may make an order directing that a notice .shall be pUblished h1 two newspapers of saidcoul1ty, for two successive weeks, of the time and place when an application commissioners shall be made, and at said time and place said court shall make an order appointing tbree commissioners for the purposes hereinafter described, all of which commissioners shall be freeholders residing within the said county."
IIi Error to
By other sections of the act, the ccmmissioners are directed to proceed with due diligence to continue, layout, opim, and construct the highway by as direct a route as they ahall deem practicable between the terminal points named in the petition, and build any necessary bridges, are empowered to enter upon necessary la.mll'l and remove the fences, and are directed, upon a prescribed notice, to ascertainand determine the damages sustained by any p0J'son interested in ,the landsthr9'ugh Which the highwilY may have been laid ·O'1It. The act also provides for an appeal from the award of the commissioners by any person "aggrieved to tbe, COUl't ,by which the commissioners were ,appointed; authorizes the to confirm, or orde,r the or amend, the provides that the amount ascerta.ined by the commissioners fol' the expenses and damages of
TOWN OF GREENBURG V. INTERNATIONAL TRUST CO.
757
laying out and constructing the road shall be paid by the town through which it is constructed; directs the supervisor of each of the towns to issue the bonds or obligations of the town for the amount, payable in 20 years from date, and deliver them to the commissioners; and directs the commissioners to payout the bonds at not less than par, in liquidation of the expenses and damages, or, at their option, to sell them at not less than par, and apply the proceeds for that purpose. The constitution in force in 1892 (Canst. 1846, and amendments) contained no provision in terms prohibiting the legislature from conferring upon the court the powers now in question. As to "officers whose offices may hereafter be created by law," it authorized their selection by appointment "as the legislature may direct" (article 10, § 2), and thereby enabled that body to lodge the appointment with any agency it might see fit to designate. Sturgis v. Spofford, 45 N. Y. 446. It authorized the legislature to ascertain the compensation to be made when private property was to be taken for public use "by not less than three commissioners to be appointed by a court of record as shall be prescribed by law" (article 1, § 7); and under this provision it was adjudged by the court of appeals to be no objection to the constitutionality of an act that it devolved upon the commissioners, thus to be appointed by the court, administrative duties in the management of the public undertaking. In re Village of Middletown, 82 N. Y. 196. Dnder the general powers confided by the constitution, it has been declared by the highest court of the state that the legislature could delegate to public officers the determination of the expediency of laying out highways and appropriating the property of individuals for the purpose; could direct the construction of highways by towns; could compel the creation of a town debt therefor by the issue of bonds; could impose a tax upon the property of the towns to pay the bonds; could do these things without the consent of the citizens or the town authorities; and that, when the legislative act has committed to public officers the duty of judging of the expediency of making an appropriation of property for a public use, it is no objection to its validity that it permits them to act upon their own views of propriety and duty without the aid of a forensic contest, or affording a hearing upon the question to parties interested. People v. Smith, 21 No Y. 595; People v. Flagg, 46 N. Y. 40l. That the legislature can delegate to the courts the power of determining the question of the extent and necessity of an appropriation of property for public use is shown by the deeisions under the general railroad act of 1850. In Railroad 00. v. Davis, 43 N. Y. 137, the cOlirt used this language: "It is, we think, the clear construction of the statute that the court is to determine, upon the application by a railroad company to acquire additional lanns for the purposes of the corporation, the question as to the necessity and extent of the appropriation. The plenary power of the legislature covering the snbject 'lYould have authorized it to designate the particular premises which the respondent might take for its purpose. '.rhe general purpo"e being public, the legislature eould have defined the extent of the appropriation necessary for the public use. But this the legislature has not attempted to do, nor has it
.f)')
':
fEi'tl:ie railread! companY t6 determine the for the approprillitfon[(lfr:private property. fur cdrporate purposes. lthas constituted the .coullt.3 to hljar alld deterIWne .on
the court said: made question, and it is ob,vio.us that ,the. facts must, in sonie fo!ju, be laid before the ,court to enabl.e ittodedde." , .. "'," . " '. , , . . ' :" .
We,do not understand that the constitutionality of act upon aily,other coptention than that it undertakes to upon the court legislative 01' administrative, inj;ltead, ,of judicial, functions. The separation of ,legislative, executive, and judicial powers i$i throughou·t,the constitution, ,aE!,it is in the co;nstit'l\tions of all tbe states; .and, if theqnestic>D of the necessity of opening public highways is not a judicial, question! the legislaturec.ould not commit it to the courts, and the .acUs:clearly void. 'ntisis the Ileal and, as it appears tov.s, the.onJyone that requires dJiscussion upon :this brancb Qt'. the cause. " If the, legislatul'!can upon a court the decision of the necessity of property, for the uses of a taJlway, it is difficult tOi,UlllQerstaJiw ,why this may Dot be when the public use is forthe'purpOfie ofa common;high:way. No adjwiication by the courts of.. this state, by :any: other C()urt, directly in' point, is cited for the proposition that: tbe legislatune may nMeonfer, uJOOn a judicial tribunal the power to determine as to the necessity of the con: stl'uction 01.a highway. iInasmuch as such a questiot!can be referred to amnnicipality, or to public officers, for detel"J1!.inatitm, the objection to depo$iting. the. power .with a judicial tribunal can only be found in the consideration that the question is notol a nature to involve the of the judicial' function. The objection is met by many decisions of the courts of state in cases: arising under l'rtatutes autho;Itizing, courts to ;review the action of 'commissioners in laying outj or refusing to lay,out,highways. In Lawton v. Commissioners, 2 Qaines, 179, the supreme court, ill considering a statute which the of highways to layout a road, and, if they refused to lay it out, gave an appeal to the judges of the court of common pleas, assumed as unquestionable the authority of the judges to decide the appeal upon the merits,-"thefitness or unfitness of laying out the road." In People v. Champion, 16 Johns. 61, the case arose under a later statute authorizing an appeal to three of the judges of the court of common pleas'by any person aggrieved' by the determination of the commissioners of highways in laying O'l1t, or refusing to layout, any road, and the court declared that the power of the judges in appeals from a refusal authorized them "to lay it out themselves." Commissioners of Highways of Warwick ". Judges of Orange Co., was a case arising under a later. statute: substantially similar provisipn$, and the court said:. :,' "The proceeding. by appeal. was not hltended to' be a review' of legal. qUel!tions.Or of Irregularities that mig).lt exist in fj1eprellmluary steps, or of a right of certiorll;rl,brlt to be an examination of the necessity or of. the road, assuIUiu/hUI'of theprevloussfeps to have been taken."
TOWN OF GREEKBURG V. INTERNATIONAL TRUST CO.
759
In People v. Judges of Dutchess Co., 23 Wend. 360, the court said: "The commissioners had decided, in effect, that no road on any route between these points should be laid out. Upon that decision the judges were sitting in review, and it was a matter of no moment what particular route either the jury or the commissioners had examined."
In People v. Commissioners of Highways of Cherry Valley, 8 N. Y. 476, the syllabus is: "Upon an appeal from the determination of the commissioners of highways refusing to layout a highway, the referees have all the powers, and are charged with all the duties, formerly possessed by the three jUdges of the court of common pleas under the provisions of the Hevlsed Statutes. To reverse the determination of the commissioners, they should make such an order in relation to laying out the highway as in their judgment the commissioners should have made."
In People v. Commissioners of Highways of Town of 37 N. Y. 360, the case was one where the commissioners had refused to open a highway, and, upon an appeal from their order, the referees had ordered it to be laid out and opened. ffhe court affirmed the lower courts in ordering a peremptory mandamus compelling the commissioners to open the road. All of Ithese cases necessarily sanction the proposition that the question of the propriety and necessity of opening, or refusing to open, a highway can be properly committed to the decision of a judicial tribunal. We entertain no doubt that the present act was a constitutional exercise of power by the legislature, and, having reached this conclusion, do not feel. it to be our duty to consider whether it was expedient or inexpedient legislation. It is proper to say, however, in answer to. the suggestion that the act as framed precluded the officers or citizens from any voice in a matti.'r entailing a large debt upon the town, that we do not so read the act. The commigsioners were to be appointed after two weeks' public notice; and at any time before the appointment was made it was within the power of the court· to reconsider its decision;, and refuse to appoint commissioners, and it is to be presumed that the court would have given due weight to any remonstrances or representations had any been presented. The bonds in suit were issued and negotiated conformably in all respects to the provisions of the act but one. They were negotiated at par, but not for cash, and under an agreement with the purcliaser that, as to a' portion of the price,payment might be deferred and collateral securities substituted meanwhile. Assuming this to have been a departure from the statutoryr:equirement, as. the plaintiff was a bona fide holder of the bonds, w'ithout notice of the deviation by the agellts of the town from the terIllil of their authority, the facts did not afford any defense to his action. Mercer Co. v. Hacket, J. Wall. 83; Grand Chute v. Wineg:lr, Wall. 3.55; Provident Life & 'rrust Go. ofPllUadelphia v. Mercer Co.; 170 U. So 18 Sup. Ct. 788. The colirt below properly directed a verdict for the. plaintiff, and the judgment is affirmed, with costs.
76().
94 FEDERAU REPORTER.
(:)
DOREMUS
v.ROO'f et
a1.
(Circuit Court, D. WashingtQn, S. D., l\Iay 22', 1809.) 1. MASTER AND SERVANT-AcTION FOU PERSONAL INJUny--JotNDtnt OF DEFENDANTS. " " " ,
Although a master and his servaht. through whose culpable negligence another is injured, may each be liable 'for sueh illjnry, their obligations rest upQudifferent grouJ:!.ds,and they cannot be held jointly liable.
2.
REMOVAL OF CAusis-AcTION SEVlllRABLE CONTROVERSIES.
dF
TORT AGAINS'l'
SEVEUAL DEFENDANTS'-
An action to recover unliquidated damages for a personal Injury causecl by negligence, thougll the negligence complained of may constitute a breach of' contract on' the part of defendant, is an action delicto" governecl by the law of torts; and the plaintiff may join several as defendants, and, if the sustains his complaint against one only, may recover against that oile and dismiss as against the others. In such case, defenclants, though, sued as though jointly liable, and although the complaint shows affirmatively that they are not jointly Untie, cannot recast the issues tendered by the complaint, and divide the cause so as to present separate controversies as to each.1
3.
SAME--'-'-PLEADING.
When the right to ,remove a ca.use depend:; upon the nature of the coutroversy and the questions to be litigated, the comlJlalnt alone is to be considered for the purpose of ascertaining. the nature oJ the controversy aucl the questions involved; and, although tile defendants mny by their plead· ings introduce new matter and raise additional questions, they cannot so change the case as to make it cognizable in a federal court, If it was not so wbencommenced. ;
4,
SAME-JOINDER OF DEFENDANTS TO PREVEN'r llEMOV Ai,.
Where two defendants are sued together, and plaintiff demands judgment against both, the court cannot' assume that either one of them is the real lJarty against whom the plaint11f intends' to prosecute his action, and that, the other has been joined merely for the frandulent purpose of. deprlvingthereal defendant of his right of removal. In order to sustain the jurisdiction of the federal court on that It is necessary for the removing defendant to allege and prove such fraudulent purpose.
Action 'at law to recover damages for a personal injury, commenced in the superior court for the stateo! Washington, and removed to the United States circuit court by the defendant the Oregon Railroad & Navigation Company on the ground of a separable controversy. Heard on motion to remand. I, · M..O. Reed, for plaintiff. W" W.Clltton, for defendant Oregon'R. R. & Na.v. Co. HANFORD, District Judge. .The plaintiff slles to recover damages for a personal injury suffer,ed by ,him while employed in the operation of the Qregon Railroad '& Navigation Compans's railroad, through alleged The complirintcharges the defendants jointly with, and wrougfufcontluct produci;ng the injury, but it is app3.rent from the recital, in the complaint thatthe two defendants could llot have been joint actors, so as to become jointly liable, as in casel{ where several persons, actively participate in the commission of a trespass. If the deferid!Jllt nllOt is guilty 'of any wrong, 1 For separable controversy as ground £or remo\'al, see note to Robbins v. Ellenbogen,18 C. C. A. 86.