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The defendants demurred to the bill for want of equity. The Circuit Court sustained the demurrer on the ground that the deed of assignment was void on its face, and dismissed the bill. The complainants thereupon appealed.
Mr. S. F. Clark and Mr. S. W. Williams for the appellants. Mr. U. M. Rose for the appellees.
MR. JUSTICE Woods delivered the opinion of the court.
The statute of Arkansas provides that the property assigned for the benefit of creditors shall be sold at public auction within one hundred and twenty days after the exécution of the bond required of the assignee.
The deed of assignment in effect authorized the assignee to sell at private sale, and at such time and in such manner as he should deem advisable and right. Under this power he could wait an indefinite time, and then sell the property at wholesale, or he could carry on the business of selling off the stock of goods in the ordinary way of retail merchants, and without any limit of time within which the sale should be completed. The powers conferred by the deed of assignment were, therefore, in direct opposition to the policy of the statute. It is true the powers conferred on the trustee were subject to the supervision of the creditors. But this could only mean a majority of the creditors. The assignee was, therefore, authorized by the assignment to dispose of the property assigned in a manner different from that pointed out by the statute, and in disregard of the wishes and remonstrances of a minority of the creditors. The question presented is therefore this, Is an assignment for the benefit of creditors, which authorizes the assignee to violate the provisions of the statute regulating such assignments, valid and binding on the creditors of the assignor ?
The contention of the appellant is that the assigninent is valid, 1, Jecause the discretion given the assignee by the assignment leaves him at liberty to follow the law; and, 2, because, even if the assignment required him to administer the trust in a manner different from that prescribed by the law, only such directions as conflicted with the law would be void, and the assignment itself would remain valid.
We think that, under the construction given the assignment law by the Supreme Court of Arkansas in Raleigh v. Griffith, 37 Ark. 150, these positions cannot be maintained. The as signment in that case provided as follows: "The party of the second part,” the assignee, “shall take possession of all and singular the property and effects hereby assigned, and sell and dispose of the same, either at public or private sale, to suclı person or persons, for such prices and on such terms and conditions, either for cash or upon credit, as, in his judgment, may appear best and most for the interest of the parties concerned, and convert the same into money."
It will be observed that the terms of the assignment did not prevent the assignee, in the administration of his trust, from following the directions of the statute in all particulars. He was at liberty to sell for cash at public auction, and within one hundred and twenty days after the filing of his bond. But the assignment vested him with a discretion to do otherwise. The court declared the assignment to be void. It said: “In providing for the sale of the property, the statute is disregarded in the deed of assignment; the assignee was authorized to sell at a private or public sale, and for cash or credit. Under such provision it was in the power and discretion of the assignee to prolong the execution and closing of the trust for an indefinite period. The legislature deemed it expedient, as a matter of public policy, to require assignees, in general deeds of assignment for the benefit of creditors, to sell all property assigned to them, for the payment of debts, at public auction, within one hundred and twenty-five days after the execution of the bond, on thirty days' notice of the time and place of sale.” And the court declared : “ The statute prescribes a mode of sale in this State, and dissenting creditors are not barred by a deed made in direct contravention of a plain provision of the statute.”
The effect of this decision- and there is no other decision of that court in conflict therewith — is that the provisions of the statute respecting the sale of property assigned for the benefit of creditors are mandatory and not directory. See also French v. Edwards, 13 Wall. 506. This being the construction put upon the law by the Supreme Court of the State
when the assignment in this case was made, it is binding on the courts of the United States. Brashear v. West, 7 Pet. 608; Sumner v. Hicks, 2 Black, 532; Leffingwell v. Warren, id. 599. It follows that the assignment, which vests the assignee with a discretion contrary to the mandates of the statute, and in effect authorizes him to sell the property conveyed thereby in a method not permitted by the statute, must be void, for contracts and conveyances in contravention of the terms or policy of a statute will not be sanctioned. Peck v. Barr, 10 N. Y. 294 ; Macgregor v. Dover f Deal Railway Co., 18 Q. B. 618; Jackson v. Davison, 4 Barn. & Ald. 691; Miller v. Post, 1 Allen (Mass.), 434; Parton v. Hervey, 1 Gray (Mass.), 119;. Hathaway v. Moran, 44 Me. 67.
The result of these views is that the decree of the Circuit Court dismissing the bill, because the assignment in question was void on its face, was right, and must be
WIGGINS FERRY COMPANY V. EAST St. Louis.
1. The fourth section of the act of the legislature of Illinois passed in 1819, touch
ing a ferry across the Mississippi River from a place in Illinois to the city of St. Louis, Missouri, declares : "That the ferry established shall be subject to the same taxes as are now, or hereafter may be, imposed on other ferries within this State, and under the same regulations and forfeitures.” Held, that the section provides for equality of taxation; that is to say, that the property of the ferry company shall be valued and taxed by the same rule as other like property, and be subject to the same exactions and for. feitures, but the company is not exempted from any license tax on its ferry-boats which the State or a municipal corporation thereunto authorized
might impose. 2. The power
license is a police power, although it may also be exercised for the purpose of raising revenue. 3. A State has the power to impose a license fee, either directiy or through one
of its municipal corporations, upon the ferry-keepers living in the State, for boats which they own and use in conveying from a landing in the State passengers and goods across a navigable river to a landing in another
State. 4. The levying of a tax upon such boats, although they are enrolled and licensed
under the laws of the United States, or the exaction of a license fee by
the State within which the property subject to the exaction has its silus, is not a regulation of commerce within the meaning of the Constitution of the United States, nor is such tax or fee a duty of tonnage if it be not graduated by the tonnage of the boats or by the number of times they cross the river or land within the linits of the State.
ERROR to the Supreme Court of the State of Illinois.
This was an action of debt brought in the City Court of East St. Louis, St. Clair County, Illinois, by the city of East St. Louis against a corporation of the State of Illinois, known as the Wiggins Ferry Company, to recover from it license money imposed by an ordinance of the city. The Ferry Company pleaded nil debet. By consent of parties the cause was submitted to the court on an agreed statement of facts, which is as follows:
Under and by authority of an act of the legislature of Illinois, entitled "An Act to authorize Samuel Wiggins to estab. lish a ferry upon the waters of the Mississippi,” approved March 2, 1819, and amendatory acts, Wiggins and his associates did establish, maintain, and operate a ferry upon and over the Mississippi River, between the city of St. Louis, in the State of Missouri, and the Illinois shore of the river opposite to the city of St. Louis, now within the limits of the city of East St. Louis, from about the time of the passage of the act of 1819, until the organization of the Wiggins Ferry Company in the year 1853, under and by authority of an act of the legislature, entitled “An Act to incorporate the Wiggins Ferry Company,” approved Feb. 11, 1853. In the year.1853, under authority of said act of 1853, the successors, heirs, and assigns of Samuel Wiggins, the then owners of the ferry and ferry franchise, and of all the rights, privileges, and immunities granted to Samuel Wiggins and his successors, heirs, and assigns, by proper deeds and assignments conveyed the same to defendant, they having become the stockholders of said ferry company, and from thence hitherto defendant has remained the lawful owner of said ferry, ferry franchise, rights, privileges, and'immunities, including the ferry-boats, wharf-boats, wharves, and landings in use by said ferry, and the rights, privileges, immunities, and franchises granted by said act of 1853 and amendatory acts, and under and by authority of all said grants,
franchises, rights, privileges, and immunities defendant has maintained and operated said ferry from thence hitherto. The Mississippi River, at the point between the States of Illinois and Missouri, upon and over which the said ferry is established and operated, has, under the laws of the United States and the rules and regulations established thereunder, by the duly authorized officers of the United States, been declared to be, and is, a navigable river within the purview of such laws; and under said laws, rules, and regulations, and especially in conformity to the Revised Statutes of the United States, title L, " Regulation of vessels in domestic commerce," the defendant for the last twenty years and more has been required to, and has had all its ferry-boats, all of which are more than twenty tons burthen, regularly enrolled and annually inspected and licensed, at an annual cost of from seventy-five dollars to one hundred dollars per boat, according to tonnage and number of men employed on each. The defendant ever since its organization has paid to the county of St. Clair, as a ferry license, the sum of $300 per annum, under the laws of Illinois and the requirements of the county authorities ; and has owned the wharves and landing used by said ferry in the city of East St. Louis, which is graded and paved at its own expense, and it has never used or employed any wharf or landing belonging to the city of East St. Louis. Defendant ever since its organization has annually listed for taxation and paid all taxes legally assessed upon all its property; all its personal property, including its boats and franchise, and all its real estate which is situated within the city limits, and including its wharves and landings, having been taxed by said city of East St. Louis ever since the organization of said city.
The Illinois and St. Louis Ferry Company and the St. Louis and Cahokia Ferry Company own and operate ferries over and across the Mississippi River between the said city of St. Louis and the Illinois shore, but without the limits of the city of East St. Louis, both in active competition with the ferry of defendant, neither of which is or ever has been required to pay any sum whatever for license to either the city of East St. Louis or any other municipal corporation except the county of St. Clair, to which they both pay license fees.