In re Copenhaver

• Decision Date: 02 March 1893
• Citation: 54 F. 660
• Parties: In re COPENHAVER et al.
• Court: U.S. District Court — Western District of Missouri

54 F. 660

In re COPENHAVER et al.

United States Circuit Court, W.D. Missouri, Western Division.

March 2, 1893

John H Lucas, for petitioners.

Geo. A Neal, for the United States.

PHILIPS District Judge.

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 I have given to it. The right of the citizen to have his 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 30 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 revenue to cover liabilities of the municipal government; otherwise the federal judiciary would present the anomaly of being provided for in the organic law of the federal government, with unquestionable power and jurisdiction to proceed to judgment in an action by a non-resident citizen against the county or other municipal organization, and yet without power to execute judgment. As expressed tersely by the supreme court: 'No court having proper jurisdiction and process to compel the satisfaction of its own judgments can be justified in turning its suitors over to another tribunal to obtain justice. ' In other words, it would seem to be a travesty of justice that, after conferring on the United States court jurisdiction to render judgment, (as congress had the unquestioned right to do,) the judgment suitor, as the opposers of the doctrine in question contended, should be turned out to pursue his remedy by another suit on his judgment in the state court. It is not necessary for me to say at this late day in the history of this matter what other remedy congress might have provided to mitigate any supposed evils of the practice in vogue, or what substitute might now be made with justice to both creditor and debtor. But it is proper to say that, unless congress shall wholly strip the courts of the United States of jurisdiction over controversies between citizens of different states whenever a municipality is concerned, it were madness to suppose it, or the federal courts, will ever deny the remedy by mandamus, until some other remedy, equally, if not more, efficacious, is provided.

It is insisted here, as elsewhere, that the federal courts of this jurisdiction, in attempting to enforce the collection of these county bonds, are disregarding and overriding the decisions of the state supreme court in construing the constitutions and statutes of the state. Sometimes a cure for a prevailing public distemper is found in a forgotten or neglected chapter in history, written or unwritten. I will take this occasion to recall one, connected with the county bond litigation in this state, which establishes the fact, however little it may suit the purpose of some people, that the responsibility for the judgments in this court against St. Clair county rests rather upon the rulings of the state supreme court than the federal courts. No state court had decided the subscription of St. Clair county invalid prior to the adjudication in the federal courts. Senator Vest and myself were the attorneys for the counties of Cass, Henry, and St. Clair throughout that litigation. The cases against Henry and St. Clair counties involved precisely the same questions, so that the litigation was conducted, by agreement, in the name of Henry Co. v. Nicolay, 95 U.S. 619.

Our first line of defense was that the bonds had been issued in 1870, after the adoption of the state constitution of 1865, and were in contravention of section 14, art. 11, thereof, which prohibited the county from issuing such bonds in aid of any railroad without the consent of two thirds of the qualified voters of the county, expressed at an election held therefor. We were at once confronted with decisions of our own supreme court, holding that this provision of the constitution was prospective, and had no retroactive operation, so as to subject to its interdiction a subscription made under a charter granted by the legislature anterior to its adoption. The Macon County Case, 41 Mo. 453.

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 act, 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, JJ., Napton, J., not then being on the court; the Green county decision, also by Wagner, J., being concurred in by Adams and Napton, JJ., Vories, J., dissenting, Sherwood, J., not sitting.

The next fortification we fell back behind was the act of 1861, (Laws Mo. 1861, p. 60,) which declared that '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 voter,' 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 legislative 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 1861, the last rock on which we planted ourselves with any reasonable hope of success. That opinion was written by so distinguished a jurist as Judge Napton, and was concurred in by Adams, Vories, and Wagner, JJ., Sherwood, J., 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 this circuit, had been 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 in 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 observation in this connection that the doctrine of the inviolability of such bonds as commercial securities when in the hands of purchasers for value was as stoutly asserted by our supreme court as it has ever been maintained by the federal courts. See Flagg v. City of Palmyra, 33 Mo. 440; Smith v. Clark Co., 54 Mo. 71-74. So let the responsibility, if any is to attach by way of censure, for the deplorable condition of the taxpayers of St. Clair county, rest where absolute history...