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ground of punishment. No forms of statement can change the substantial fact that the inherent power of courts to punish for -contempt is exercised, not to preserve the authority of the court, not in aid of proceedings carried on in them, but to aid a merei, adn.inistrative body, and to compel obedience to its requirements. It makes the courts the Taere assistants of a commission.

It is said that this proceeding is substantially, if not precisely, similar to that which would arise if congress had passed an act imposing penalties on parties refusing to testify before a commission, and a proceeding was commenced to recover such penalties. But surely the differences are vital. If such proceeding was a criminal prosecution, defendants would have the constitutional guaranty of a trial by jury; and this, too, in an action at law, if the amount of the penalty exceeded $20. By making it a proceeding for contempt, these constitutional protections are evaded. Further, there is no penalty prescribed. Refusal to answer is not made an offense, misdemeanor, or felony.

Suppose a law was enacted making criminal the refusal to answer questions put by a commission (and a statute would be necessary before such refusal could be adjudged criminal, for there are no common-law offenses against the United States). U. S. v. Eaton, 144 U. S. 677, 12 Sup. Ct. 764. Would it not be necessary that the statute define the questions, or at least the scope of the questions, to be asked? Would not an act be void for indefiniteness and lack of certainty which simply made criminal the refusal to answer relevant questions in any proper investigation carried on before a commission? Would it not be like the famous Chinese statute:

"Whoever is guilty of improper conduct, and of such as is contrary to the spirit of the laws, though not a breach of any specific part of it, shall be punished at least forty blows; and when the impropriety is of a serious nature, with eighty blows."

Could it be left to the commission to select the matter of investigation, determine the scope of the inquiry, and thus, as it were, create the crime?

Can all these difficulties be avoided by bringing the refusal to testify before a commission within the reach of the comprehensive inherent power of the courts to preserve their authority by proceedings for contempt?

But again it is said that the act of congress imposes upon all persons and corpora. tions engaged in interstate commerce a duty to answer every proper question which the commission may see fit to ask, and that a refusal to answer constitutes a refusal to discharge a duty upon rightful demand. It is true that authority is conferred upon the commission to obtain information, but the act does not impose the duty to furnish it upon all persons interested in interstate commerce, and congress cannot invest the com

mission with discretionary power to create or not create a duty. If, when a question is asked, a duty is established, then the court would have no power to do anything except to enforce the act of the commission, if valid, or punish its violation without inquiry, which, as has been stated, would make the court the mere ministerial agent of the commission. If the duty is not established, then the court is called upon to take part in a mere inquiry as to whether it would be lawful or expedient that the duty be established. It is not pretended that the court can take cognizance of the whole investigation on petition, and this application is not a part of any judicial proceeding, nor could the order adjudicate anything. It is clear that the duty, if it exists at all, is a political, and not a judicial, duty. Would mandamus lie to compel the discharge of this duty? Yet mandamus is the recognized proceeding for the enforcement of a duty.

It may be that it is the duty of every citizen to give information to the commission when demanded, but it is no more a duty than it is to avoid murder or other crimes, to lead a life of social purity, to avoid fraud in* business transactions, or neglect of other duties of good citizenship. Will it be pretended that these obligations can be enforced by the courts through proceedings as for contempt?

To say that there is a case, something that calls for judicial action, because there are parties on the one side or on the other, is a breadth of definition hitherto unrecognized. Every effort at administrative or executive action, which is not voluntarily assented to by those whom it affects, creates a dispute between parties. Can it be that every such dispute justifies an appeal to the courts, and presents a case for judicial action? If so, there is nothing which any administrative body or executive officer shall attempt to do which cannot be carried into the courts, and every failure to comply with the orders of such body or officer makes the delinquent subject to punishment by the process of contempt. Hitherto the power to punish for contempt has been regarded as a power lodged in judges and courts to compel obedience to their orders, decrees, and judgments, and to support their authority.

This is something more important than a mere question of the form of procedure. It goes to the essential differences between judicial and legislative action. If this power of the courts can be invoked to aid the inquiries of any administrative body, or enforce the orders of any executive officer, why may not the power to punish for contempt be vested directly in the administrative board or in the executive officer? Why call in the court to act as a mere tool? If the interstate commerce commission can rightfully invoke the power of the courts to punish as for contempt those who refuse to answer their questions, why may not like power be given to any prosecuting attorney, and he be au

thorized to summon witnesses,-those for as well as those against the government,-and in advance compel them, through the agency of the courts, to disclose all the evidence they can give on any expected trial? If these appellees have committed crime, punishment therefor comes only through the courts, and by the recognized procedure of information or indictment. They cannot be tried by the commission for any act done.

"One often-declared difference between judicial and legislative power is that the former determines the rightfulness of acts done; the latter prescribes the rule for acts to be done. The one construes what has been; the other determines what shall be. As said in Cooley, Const. Lim. side p. 92:

"In fine, the law is applied by the one, and made by the other. To do the first, therefore, to compare the claims of parties with the law of the land before established, -is in its nature a judicial act. But to do the last-to pass new rules for the regulation of new controversies-is in its nature a legIslative act; and if these rules interfere with the past or the present, and do not look wholly to the future, they violate the definition of a law as 'a rule of civil conduct,' because no rule of conduct can with consistency operate upon what occurred before the rule itself was promulgated."

So, for whatever the appellees have done in the past, whether they have violated any law of the land or not, an inquiry is to be made in and by the courts. The judicial power cannot be invoked to sustain an investigation into past conduct, which, when disclosed, may or may not be, at the will of an administrative board or executive officer, presented for judicial consideration or action. It is not meant to be affirmed that no inquiry can be made into past conduct or actions except through the power and processes of the courts. On the contrary, the full power of legislative or executive departments to inquire into what has been is conceded. But, if designed to aid legislative or executive action, it must be by legislative or executive proceedings. Can the courts be turned into commissions of inquiry in aid of legislative action?

In short, and to sum it up in a word: If these appellees have violated any law, their punishment should be sought in the ordinary way, by prosecution therefor in the courts. If they have violated no law, and the simple purpose is to elicit information for the guidance of the commission or the legislature, let that information be sought by the ordinary processes of legislative or administrative bodies.

Take a familiar illustration: Once in 10 years a census is ordered by authority of congress, and the scope of that census, constantly enlarged, is to elicit from the citizens of the United States information as to a variety of topics. No thought of punishment for past misdeeds enters into such an

inquiry. Information, and that only, is sought. It is unquestionably the duty of every citizen to respond to the inquiries made by the census officers, and furnish the information desired. Can it be that courts can be authorized to make the refusal of a citizen to furnish any such desired information a contempt of their authority, and to be punished as such? There is no question of the lawful power of congress to elicit this information; possibly, none as to its power to provide that a refusal to give the information shall be deemed a misdemeanor, and prosecuted and punished as such. But it seems to me to obliterate all the historic distinction between judicial and legislative or administrative proceedings to say that the courts can be called upon to punish as for a contempt of their authority a mere refusal to respond to this administrative inquiry as to facts.

This question was fully considered by Mr. Justice Field, while holding the circuit court, in Re Pacific Railway Commission, 32 Fed. 251, and the power of congress to make the courts the mere assistants of an investigating committee was most emphatically denied.

I am authorized to say that Mr. Chief Justice FULLER and Mr. Justice JACKSON concur in the views herein expressed.

(155 U. S. 54)

LEWIS v. PIMA COUNTY.

(October 29, 1894.)
No. 550.

RAILROAD BONDS-MUNICIPAL CORPORATIONS. Railroad aid bonds issued by a municipal corporation in one of the territories are void, under the act of June 8, 1878 (20 Stat. 101), which provides that nothing therein shall authorize such a corporation to incur any debt or obligation except such as shall be "necessary to the administration of its internal affairs."

On Appeal from the Supreme Court of the Territory of Arizona.

This was an action originally begun in the district court of the first judicial district of Arizona upon 2,250 coupons attached to 150 bonds, issued by the defendant county July 1,1883, and payable to the Arizona & NarrowGauge Railroad Company or bearer. The railroad in question was organized under a general act of the territorial legislature for the incorporation of railroads, passed in 1879, which gave them power to make all contracts, acquire real and personal property, to sue and be sued, to borrow money necessary for the construction of the road, to issue bonds and notes therefor, and to receive donations or voluntary grants of real and personal property to that end. The bonds in question were issued by the board of su pervisors of the defendant county under an act of the legislature of Arizona of February 21, 1883, entitled “An act to promote the construction of a certain railroad," and were part of a series of 200 bonds issued in pursuance of said act, and exchanged for a like

Dumber of bonds of the railroad company of like amounts, bearing like interest, and running like times as the bonds in suit.

Defendant demurred to the complaint both generally and specially, and upon argument the demurrer was sustained and judgment entered in favor of defendant.

Plaintiff appealed to the supreme court of the territory, by which the judgment of the district court was affirmed.' He thereupon sued out this writ of error.

W. H. Barnes and W. H. Rossington, for appellant. Chas. Weston Wright, for appellee.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

This case involves the validity of certain bonds issued by the county of Pima under an act of the legislative assembly of Arizona, approved February 21, 1883, authorizing and requiring the board of supervisors to issue $200,000 of bonds of such county, and to exchange the same, in lots of $50,000 each, for an equal number of the bonds of the Arizona & Narrow-Gauge Railroad Company, secured by a mortgage upon its road. Assuming that the bonds were issued in conformity with this act, the act itself is claimed to be in conflict with certain acts of congress upon the subject of the organization of territories.

By the Revised Statutes (section 1889 of a chapter containing a provision common to all the territories), "the legislative assemblies of the several territories shall not grant private charters or especial privileges, but they may, by general incorporation acts, permit persons to associate themselves together as bodies corporate for mining, manufacturing, and other industrial pursuits, or the construction or operation of railroads, wagonroads, irrigating-ditches and the colonization and improvement of lands in connection therewith, or for colleges, seminaries, churches, libraries, or any benevolent, charitable, or scientific association."

In 1878 this section was amended by an explanatory act (20 Stat. 101), to the effect

The following opinion of the supreme court of the territory of Arizona was filed April 14, 1893: "Kibbey, J. This cause came on regularly to be heard, the parties hereto being duly represented, and, having by the court been duly considered, it is ordered that the judgment made and entered in the district court of the first judicial district, territory of Arizona, in and for the county of Pima, in favor of said county of Pima, appellee herein, and against said Charles Edward Lewis, appellant herein, be, and the same is hereby, affirmed; and it is further ordered, adjudged, and decreed that the said Pima county, appellee, do have and receive of and from said Charles Edward Lewis, appellant therein, and of his sureties on the appeal bond herein, its costs incurred in the lower court, taxed at $and its costs incurred and expended on this appeal in this court, taxed at $ Gooding, C. J., and Wells, J., concurring."

that the restrictions contained in section 1889 "shall not be construed as prohibiting the legislative assemblies * ** from creat

ing towns, cities, or other municipal corporations, and providing for the government of the same, and conferring upon them the corporate powers and privileges, necessary to their local administration, by either general or special acts." Following this there is a paragraph validating acts theretofore passed creating municipal corporations, and providing, further: "That nothing herein shall have the effect to create any private right, except that of holding and executing municipal offices, or to divest any such right, or to make valid or invalid any contract or obligation heretofore made by or on behalf of any such town, city, or other municipal corporation, or to authorize any such corporation to incur hereafter any debt or obligation other than such as shall be necessary to the administration of its internal affairs."

In the face of these restrictions upon its power, the legislature of Arizona, on February 21, 1883, passed the act in question, making it the duty of the board of supervisors to issue $200,000 of county bonds, and to deliver the same to the railroad company in exchange for corresponding bonds* of such company. Now, unless a debt thus incurred in aid of the construction of a railroad can be said to be an obligation "necessary to the administration of the internal affairs" of Pima county, it must necessarily follow, irrespective of every other considera tion, that the legislature exceeded its powers in authorizing and requiring the county to issue its bonds in exchange for those of the railroad company in question, and that the bonds are void.

The question is too clear for extended argument. By the "internal affairs" of a municipal corporation, in the administration of which the legislature could alone authorize it to incur a debt, was undoubtedly intended such business as municipalities of like character are usually required to engage in to fulfill their proper functions, and to effectuate the objects of their charters. In the case of counties these are ordinarily to provide a courthouse for the administration of justice; a jail for the confinement of prisoners; a poorhouse for the sustenance of paupers (where by local law they are made chargeable upon the county); offices for the various officials of the county; and, under certain circumstances, highways and bridges for the accommodation of the public. It could never have been contemplated, however, that this power would be used to incur obligations in favor of a railroad operated by a private corporation for private gain, though also subserving a public purpose. The record before us does not show whether this railroad was designed to extend beyond the limits of the county; but, if the county had power to issue its bonds in aid of railroads at all, there is nothing to indicate that such power was

restricted to such roads as were wholly within the county, and, if this act were a valid exercise of the authority of the legislature, the credit of the county might be indefinitely pledged for the construction of railways extending far beyond the county limits, and, indeed, for carrying out any such schemes of public improvement as the legislature could be persuaded to authorize. Clearly, such debts I would not be incurred in the administration of the internal affairs of the county.

The argument of counsel on both sides was largely directed to the question whether the territorial act of 1883, under which these bonds were issued, conferred an "especial privilege" upon the railroad company, within the meaning of Rev. St. § 1889, inhibiting "private charters and especial privileges," and also to the further question whether bonds issued under a mandatory or compulsory statute are valid; but in the view we have taken of the case it is unnecessary to express an opinion upon these points.

We are compelled to hold that the bonds In question create no obligation against the county which a court of law can enforce. The judgment of the court below is, therefore, affirmed.

(155 U. S. 58)

GREELEY v. LOWE et al.
(October 29, 1894.)
No. 517.

CIRCUIT COURT-JURISDICTION-SUITS FOR PARTI-
TION AGAINST NONRESIDENTS.

1. Rev. St. § 738 (17 Stat. 196, § 13), relating to suits in United States courts, provides that when any defendant in a suit in equity to enforce any lien or claim against land within the district where suit is brought is not an inhabitant of or found within such district, and does not appear, it shall be lawful for the court to order the absent defendant to appear, etc., at a designated day. Section 739 provides that, except as provided in the next three sections and "the preceding section," no civil suit shall be brought in any other district than that of which defendant is an inhabitant, or in which he shall be found at the time of serving the writ. Act March 3, 1875 (18 Stat. 470), § 1, provides that no civil suit shall be brought against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found when process is served or proceeding commenced, "except as hereinafter provided." Section 8, relating to the class of cases mentioned in Rev. St. § 738, provides for publication in any suit to enforce any legal or equitable lien or claim to, or to remove any incumbrance or lien or cloud on title to, land within the district, and that the adjudication shall, as regards such absent defendant or defendants without appearance, affect only the property under the jurisdiction of the court therein within such district. Act Aug. 13, 1888 (25 Stat. 434, amending Act March 3, 1875), § 1, contains the same provision first quoted from section 1 of the latter act, and the further provision that, "where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." tion 5 expressly reserves any jurisdiction or right mentioned in Act March 3, 1875, § 8.

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Held, that in suits of the class mentioned in Act March 3, 1875, § 8, the circuit court of the district wherein the land in dispute lies may assume jurisdiction, though plaintiff and some of defendants are residents of other districts. Smith v. Lyon, 10 Sup. Ct. 303. 133 U. S. 315, distinguished. Goodman v. Niblack, 102 U. S. 556, applied.

2. A suit for partition is within the class of cases specified in Act March 3, 1875, § 8. Mr. Chief Justice Fuller dissenting.

Appeal from the Circuit Court of the United States for the Northern District of Florida.

This was a bill in equity for the partition of real estate originally filed by George P. Greeley and wife, who were alleged to be citizens of New Hampshire, against 130 defendants, most of whom were citizens of Florida. Of the remaining defendants, some were citizens of Georgia; others, of Illinois, South Carolina, Alabama, Texas, North Carolina, New York, New Jersey, Mississippi; and one, Eliza B. Anderson, of the city of Washington and District of Columbia.

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The bill averred the plaintiff, George P. Greeley, to be seised as tenant in common, in fee simple, and in actual possession, of 10,016 acres of land in the northern district of Florida, of the value of $10,000, exclusive of interest and costs, etc.; that one John T. Lowe, and Susan, his wife, were originally seised of the said premises by grant from the Spanish government in 1816, as a mill right (Lowe being then married, and his wife, Susan, being seised, by ganancial right, of an undivided half of said premises under the laws of Spain, which declared that real estate acquired by either the husband or wife during coverture by purchase, gift, or gain be comes and remains community property), and that they were seised thereof as tenants in common; that Lowe died in 1824, and the grant was subsequently confirmed by the supreme court of the United States in 1842 (U. S. v. Low, 16 Pet. 162); that the ganancial right and title of said Susan Lowe has never been alienated, relinquished, or annulled, and has been duly protected and guarantied by the treaty of 1819 between the United States and Spain; that Lowe attempted to convey to one Clark the southern half of this grant, but his wife, then living, did not join, and the half of the south half only was conveyed; that Clark conveyed to Duncan L. Clinch, g who died testate, leaving his executor power to sell said lands; that Susan Lowe survived her husband, but both died intestate, and their estates had long been settled; that the north half of said grant and half of the south half descended to their children, nine in number.

The genealogy and shares of the heirs and their grantees are stated at great length in the bill, all the claims of the various members being set up and defined, and the invalidity of certain deeds attached as exhibits being averred and pointed out. The bili contained a general averment that no other person, except such as were made parties, had any interest in or title to the premises;

that by reason of the lapse of time, the disturbed condition of the country, etc., it has been almost impossible to trace the lineage of the several families, and to find the actual parties in interest.

The bill prayed that the different deeds attached as exhibits might be construed, and the interest, if any conveyed, ascertained or the deeds canceled; that all persons having any claims or liens upon the lands might be brought in and required to prove their claims, or have the same held null and void; that partition of the lands be made, if possible and equitable, and, if not, that they might be sold, and the proceeds distributed; that plaintiff recover his advances for taxes and expenses, including costs and counsel fees; that a master be appointed to state the shares, advances, and fees; and that commissioners be appointed to make partition or sale, etc. Isaac A. Stewart, one of the defendants resident in Florida, filed a plea to the jurisdiction, setting up, among other things, that the suit was not brought in the district of the residence of either the plaintiffs or defendants; that the controversy was not between citizens of different states; that certain defendants had interests adverse to other defendants; that Eliza B. Anderson, one of the defendants, was a resident and citizen of the District of Columbia; that her claim was adverse to his (Stewart's); that Gree ley's wife was improperly joined, was not the cotenant, and could not maintain a suit; that the wives of several of the defendants were improperly joined, in that they possessed no legal interest in the property; and that others who were necessary parties were not joined as defendants. Thereupon, plaintiff moved for leave to amend his bill by inserting after the name of Eliza Anderson the words, "citizen of South Carolina, now resident in Washington, D. C.," and also to add other defendants. The court granted the motion to amend, and the cause came on to be heard on the plea to the jurisdiction. The court made a final decree, holding that while it was true that the complainants were citizens of New Hampshire, and resident there, and some of the defendants were citizens of Florida, in the district in which the land lies, yet because there were other defendants citizens of New York, and also of other states than the state in which the complainants reside and have citizenship, and also citizens of other federal districts than that where the land is situate, and where certain defendants reside, it was decreed that "this court has not jurisdiction over all the defendants to this action, because they are not all residents and citizens of the district in which the land sought to be partitioned lies, and are not all found in said district at the time of the service of the process."

On May 6, 1892, plaintiffs filed a petition for rehearing, and on June 13th amended their bill by striking out the name of Eliza B. Anderson as defendant. While no formal

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decree subsequent to the rehearing appears to have been entered, by an indorsement made upon the bill of June 15th, it would ap pear that the bill was finally dismissed upoL that date. From this decree an appeal was taken to this court, and the question of jurisdiction, as above stated, was certified to this court for decision, pursuant to section 5 of the court of appeals act.

Jas. R. Challen and George A. King, for appellant. Isaac A. Stewart and Eleazer K. Foster, for appellees.

Mr. Justice BROWN delivered the opinion of the court.

This bill appears to have been dismissed by the court below upon the ground that inhabitants of other districts than the northern district of Florida were made defendants. The question really is whether, under the act of August 13, 1888 (25 Stat. 433), requiring, in actions between citizens of different states, suits to be brought only in the district of the residence of either the plaintiff or the defendant, it is admissible to bring a suit for partition in a district in which only a part of such defendants reside. As suits are usually begun in the district in which the defendants, or one of the defendants, reside, the question practically involves the whole power of the circuit court of one district to take jurisdiction of such suits, brought against defendants, some of whom are residents of other districts.

1. The paragraph of section 1 of the act of 1888 relied upon by the defendants reads as follows: "And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." In the case of Smith v. Lyon, 133 U. S. 315, 10 Sup. Ct. 303, this court held that the circuit court has no jurisdiction on the ground of diverse citizenship, if there are two plaintiffs to the action, who are citizens of and residents in different states, and defendant is a citizen of and a resident in a third state, and the action is brought in a state in which one of the plaintiffs resides. As was said by the court (page 317, 133 U. S., and page 303, 10 Sup. Ct.), the argument in support of the jurisdiction was "that it is sufficient if the suit is brought in a state where one of the defendants or one of the plaintiffs is a citizen. This would be true if there were but one plaintiff or one defendant. But the statute makes no provision, in terms, for the case of two defendants or two plaintiffs who are citizens of different states. In the present case, there being two plaintiffs, citizens of different states, there does not seem to be, in the language of the statute,

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