Louis Loeb v. Trustees of Columbia Township

• Decision Date: 10 December 1900
• Docket Number: No. 42,42
• Parties: LOUIS LOEB, Plff. in Err. , v. TRUSTEES OF COLUMBIA TOWNSHIP, Hamilton County, Ohio
• Court: U.S. Supreme Court

179 U.S. 472

21 S.Ct. 174

45 L.Ed. 280

LOUIS LOEB, Plff. in Err.,

v TRUSTEES OF COLUMBIA TOWNSHIP, Hamilton County, Ohio.

No. 42.

Argued April 27, 1900.

Decided December 10, 1900.

Messrs. C. Hammond Avery, J. W. Warrington, and H. D. Peck for plaintiff in error.

Messrs.Wm. Wallace Burch, Simeon M. Johnson, and Oliver G. Bailey for defendants in error.

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 fufficient 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 27th, 1893, the general assembly of Ohio passed an act by the 1st 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 2d 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 4th 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 instalments or at intervals not exceeding in all the period of 6 years, bearing interest at the rate of 6 per cent 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 3d 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 $25 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 § 1 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 2d 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 10 per cent 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 meet the expense of the appropriation the trustees, on or about September 29th, 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 1 to 26 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 6 per cent 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 29th, 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 29th, 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 29th, 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 27th, 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 $500 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 6 per cent 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 Fed. Rep. 37. In that opinion it is expressly stated that the following points were made in argument in support of the demurrer.

1. That the petition did not show that the plaintiff was the original holder of the bonds sued on, and if he were an assignee or subsequent holder thereof he was not entitled to maintain the action, because the bonds were payable to bearer, and were not made by a corporation.

2. That the act of the general assembly, under and by virtue of which the bonds were issued, was in violation of the Constitution of the state, and therefore the bonds were invalid.

3. That the act contravened the provisions of the Constitution of the United States, and therefore the bonds were invalid.

It appears from the opinion of the circuit court that the first and second of these points were ruled in favor of the plaintiff. But the third point was decided for the defendant the court being of opinion that according to the principles laid down in Norwood v. Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187, the law under which the bonds sued on were issued was repugnant to that clause of the 14th Amendment of the Constitution of the United States forbidding a state to deprive any person of property without due process of law. In disposing of the third point the court referred to the propositions made in its support as having been 'claimed' by the township.

I. The first question to be considered is one of the jurisdiction of this court to proceed upon writ of error directly to the circuit court.

By the 5th section of the circuit court of appeals act, appeals or writs of error may be prosecuted to this court from the circuit courts 'in any case in which the Constitution or law of a state is claimed to be in contravention of the Constitution of the United States.' 26 Stat. at L. 826, 827, 828, chap. 517.

The petition shows that the parties are citizens of different states. It states no other ground of Federal jurisdiction. If nothing more appeared bearing upon the question of jurisdiction, then it would be held that this court was without authority to review the judgment of the circuit court.

Is not this court, however, sufficiently informed by the record that the defendant township, under its general demurrer, 'claimed' in the circuit court that the statute of Ohio by the authority of which the bonds were issued was in...