179 U.S. 472 (1900), 42, Loeb v. Columbia Township Trustees

Docket Nº:No. 42
Citation:179 U.S. 472, 21 S.Ct. 174, 45 L.Ed. 280
Party Name:Loeb v. Columbia Township Trustees
Case Date:December 10, 1900
Court:United States Supreme Court
 
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Page 472

179 U.S. 472 (1900)

21 S.Ct. 174, 45 L.Ed. 280

Loeb

v.

Columbia Township Trustees

No. 42

United States Supreme Court

December 10, 1900

Argued April 27, 1900

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF OHIO

Syllabus

In a case brought here from a circuit court, the opinion regularly filed below, and which has been annexed to and transmitted with the record, may be examined in order to ascertain, in cases like this, whether either party claimed that a state statute upon which the judgment necessarily depended in whole or in part was in contravention of tile Constitution of the United States; but this must not be understood as saying that the opinion below may be examined in order to ascertain that which, under proper practice, should be made to appear in a bill of exceptions, or by an agreed statement of facts, or by the pleadings.

If a claim is made in the circuit court that a state law is invalid under the Constitution of the United States, this Court may review the judgment at the instance of the unsuccessful party.

As the bonds in suit in this case were executed by the defendant township, a corporation, and are payable to bearer, the present holder, being a citizen of a state different from that of which the township was a corporation, was entitled to sue upon them, without reference to the citizenship of any prior holder.

The circuit court erred in holding that the petition in this case made a case that brought it within the decision in Norwood v. Baker, 172 U.S. 269.

Even if the third section of the statute in question be stricken out, the petition makes a case entitling the plaintiff to a judgment against the township.

The contention that, independently of any question of federal law, the statute of Ohio under which the bonds were issued was in violation of the constitution of that state in that, when requiring the defendant township to widen and extend the avenue in question, the legislature exercised administrative, not legislative, powers, is not supported by tile decisions of the Supreme Court of Ohio made prior to the issuing of these bonds.

The case is stated in the opinion of the Court.

Page 473

HARLAN, J., lead opinion

MR. JUSTICE HARLAN delivered the opinion of the Court.

This action was brought in the court below by Loeb, a citizen of Indiana, against the trustees of Columbia township in Hamilton County, Ohio.

The petition was demurred to upon the ground that it did not state facts sufficient to constitute a cause of action against the township. After argument, the demurrer was sustained, and, the plaintiff electing not to plead further, judgment was rendered for the defendant.

The suit is upon bonds issued by the township for the purpose of raising money to meet the cost of widening and extending a certain avenue within its limits.

The questions to be considered relate to the jurisdiction of this Court, the validity under the Constitution of the United States of an act of the General Assembly of Ohio in virtue of which the bonds in suit were issued, and the applicability in this case of certain decisions of the supreme court of the state rendered after such bonds were executed and delivered.

The pleadings and orders of court make the following case:

The petition alleged that, on April 27, 1893, the General Assembly of Ohio passed an act by the first section of which the trustees of that township were authorized and required to widen and extend Williams Avenue between certain points named, and to appropriate and enter upon and hold any real estate within the township necessary for such purpose;

That, by the second section of the act, the township trustees were directed to

immediately make application to the probate court of the county as provided in § 2236 of the Revised Statutes of Ohio, and thereafter, as far as practicable, the proceedings shall conform to and be had under the provisions of §§ 2236 to 2261, inclusive, of the Revised Statutes of Ohio,

and

That, by the fourth section, it was provided that

for the purpose of raising money necessary to meet the expense of the improvement, the trustees of said township are hereby authorized and directed to issue the bonds of the township, payable in installments or at intervals not exceeding in all the period of

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six years, bearing interest at the rate of six percent per annum, which bonds shall not be sold for less than their par value.

90 Ohio Local Laws, 251.

The petition did not set out the third section of the act. But as it was the duty of the circuit court to take notice of its provisions, and as it must be referred to in order to dispose of the questions arising on this record, it is here given in full:

The trustees shall receive reasonable compensation for their services, which shall not exceed the sum of twenty-five dollars each, which, with all costs and expenses of constructing said improvement, together with the interest on any bonds issued by the trustees for the same, shall be levied and assessed upon each front foot of the lots and lands abutting on each side of said Williams Avenue between the termini mentioned in section one hereof, and shall be a lien from the date of the assessment upon the respective lots or parcels of lands assessed; said assessment shall be payable in five annual payments, and shall be paid to the township treasurer, and the option of paying his portion of such assessment in full within a period of twenty days from the date of the levy thereof shall be given to each of the property owners, but no notice to the property owners of such option shall be necessary. The township treasurer shall, on or before the second Monday of September, annually, certify all unpaid assessments to the county auditor, and the same shall be placed on the tax list, and shall be, with ten percent penalty to cover interest and cost of collection, collected by the county treasurer in the same manner as other taxes are collected, and when collected he shall pay the same to the township treasurer, and all moneys received by the township treasurer on such assessments shall be applied to the payment of the bonds issued under this act, and for no other purpose, and for the purpose of enforcing the collection of the assessments so certified to him the county treasurer shall have the same power and authority now allowed by law for the collection of state and county taxes.

90 Ohio Local Laws 251.

It further appears from the petition that the township trustees appropriated land for the avenue in the manner provided in the act, and that, for the purpose of raising the money necessary to

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meet the expense of the [21 S.Ct. 176] appropriation the trustees, on or about September 29, 1894, duly executed and issued, in proper form and in accordance with the terms and provisions of the act, twenty-five bonds of Columbia township of $500 each, five payable respectively in one, two, three, four, and five years each, and one for $432 payable one year from date, all of the above date, and numbered consecutively from one to twenty-six, inclusive, and all payable to the order of the bearer at the office of the treasurer of the county, and bearing interest represented by coupons attached at the rate of six percent per annum, payable semi-annually, on the 29th days of March and September of each year; that, on or about the September, 1894, the bonds were sold by the township to a bona fide purchaser and the highest bidder for $13,325 and accrued interest; that, on or about September 29, 1895, the trustees paid bonds Nos. 1, 2, 3, 4, and 5, then due, each for $500, and No. 26 for $432, and the interest coupons payable on the date last named on the entire issue of the twenty-six bonds, and that, on March 29, 1896, the trustees paid the interest coupons, due on that day, on the twenty bonds remaining unpaid, including bonds numbered 6, 7, 8, 9, and 10.

The petition set out each of the bonds last named, and alleged that the plaintiff was the bona fide owner and holder for value of each of them, and had demanded payment of each in accordance with its terms, but that payment was refused.

The bonds dated September 29, 1894, were signed by the trustees and attested by the seal of the township, and were alike in form. Each recited that it was

one of a series of twenty-five bonds of $500 each, issued by virtue of an act of the General Assembly of the State of Ohio, passed April 27, 1893, authorizing the trustees of Columbia township to levy an assessment on the real estate abutting on the Williams Avenue between Duck Creek Road and Madison Pike, and one bond for $432 for the payment of $12,932, for widening and extending said avenue;

and that,

by virtue of said act, the trustees of Columbia township hereby acknowledge said township indebted to the bearer in the sum of five hundred dollars,

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which sum they, as trustees, and for their successors in office, promise to pay to the bearer hereof, upon the surrender of this bond at the office of the treasurer of said township, on the 29th day of September, 1896, and also interest thereon at the rate of six percent per annum, payable semi-annually, on the 29th days of March and September of each year, during the continuance of this loan, on presentation to the township treasurer of the respective coupons hereto attached.

A judgment was asked for the amount of bonds 6 to 10 inclusive, with the interest thereon.

The record contains in full the opinion rendered and filed by the court when disposing of the demurrer. 91 F. 37. In that opinion, it is expressly stated that the following points were made in argument in support of the demurrer.

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