These two suits concern, substantially, the same subject-matter. The first is instituted for the purpose of enjoining the county of Douglas, through its corporate authorities, from issuing certain bonds to the amount of three, hundred thousand dollars, to the Leavenworth, Lawrence and Galveston Railroad; the second is to enjoin the treasurer, and other officers of the. county, from the collection of a tax imposed by the commissioners, for the payment of the coupon due January 1, 1869, upon a bond for three hundred thousand dollars already issued, and from the application of the proceeds of such tax to the liquidation of the coupon. The facts in brief are, that the question of issuing bonds to the amount of three hundred thousand dollars to this company was submitted, by an order of the board of county commissioners, to the voters of the county, by virtue of an act of the legislature of the. state as far back at ’ he 8th day of February, 1867.
The terms and conditions upon which the issuance of the bonds was to be made are expressly stated in the submission, as follows: “Shall the county of Douglas subscribe three hundred thousand dollars, in full paid stock, to the capital stock of the Leavenworth, Lawrence and Galvestou Railroad Company, and issue bonds of the county therefor, in bonds payable thirty years after date, bearing interest at the rate of seven per cent, per annum from the date of delivery, to be issued to said company when twenty-four miles of s.iid railroad track shall be completed and in full operation from Lawrence, Douglas county, via Baldwin City: provided, that no greater amount of bonds shall be issued than the amount of stock issued by the railroad company to the county of Douglas.
“2. The conditions of the above is with the express understanding and agreement, that the said company shall relinquish all claim to the bonds for subscription of stock heretofore voted to said company, to wit, on the 12th day of September, 1865.” The vote was taken with this result: Two thousand one hundred and seventy for the proposition, and four hundred and twenty-four against, a majority of little less than five-sixths of the entire vote.
The board- of commissioners, by resolution, on the 15th day of April, 1868, reciting the above submission, the vote and the result, declared that, the company having complied with all the requirements, stock to the amount mentioned should be subscribed, and the bonds issued. Since this time, a series of suits in the state courts, some of which
It will be seen, from this review of the facts, that the cases affect very large pecuniary interests, and the nature of the work, the early completion of which may much depend upon the aid contributed by the subscription for its stock, shows that the interests other than those merely pecuniary must be even greater. Not to introduce into this opinion the ordinary speculations as to the advantages to arise to the state, and especially to that region through which the proposed road will pass, it will suffice to call attention to the vote of the people of Douglas county, in illustration of their own estimate of these advantages. But in a country where railroad intercommunication commands so large a share of public interest, and elicits such immense outlays of capital, I might feel myself justified in enlarging upon this subject, were it not that, holding the scales of justice, and performing the duties of her minister. I am not allowed to be swayed from her díctales by any consideration of the character of one or the other óf the litigants in her courts. The complainant is entitled, small though his interest may be in comparison to that appertaining to the other parties in this proceeding, to have that interest protected, provided he brings himself within the class of persons and exhibits an interest over which this court has jurisdiction. The respondents have moved for a dissolution of the injunctions which had been temporarily issued in the two cases, and insist, a3 grounds for their motion, from the showing of the bill and the papers filed in the eases: First. That this court has no jurisdiction. Second. That there are not such equities disclosed as entitle the complainants to a continuation of this relief. These propositions will be disposed of in their order.
. The jurisdiction of the courts of the United States is prescribed by law. that of the circuit court included. Its jurisdiction is derived from the nature of the subject in controversy in some cases, and in others from the character of the partios, and in some from the union of those several elements. The latter is the ease in the present instance. It must appear in the bill that the complainant is a non-resident of the state, to enable him to invoke the aid of this court, otherwise he is remitted for redress to the courts of the state. In addition to this, it must appear in the bill that there is in controversy, or in jeopardy by the action of the respondents, whom he desires to restrain, an amount exceeding five hundred dollars. Judiciary Act 1789, c. 20, § 11, [1 Stat. 78.] The non-residence of the complainant sufficiently appears, and the respondents make no point to the contrary. Whether the bill shows more than the sum of five hundred dollars to be involved in the proceeding is another question. The respondents say, as one of their grounds of motion, that it does not. The complainant insists that it does. If, in any proper sense, the sum of three hundred thousand dollars, the amount of bonds the issue of which is asked to be enjoined, may be said to be in controversy, then of course, in the first case, no question can exist. There is a sense in which this amount may be said to be in controversy. But is it a sense which will determine the question in favor of the complainant? To be in eontro* versy certainly can not, properly, be understood in any other sense than as being in an attitude to be decided in favor of, or against, the party who asks the interference of the court. While that amount is really the subject of which the court is asked to adjudicate, it is not the amount which the complainant claims that he is in jeopardy of losing by the respondents unless they are restrained.
We do not see how any other test of jurisdiction can be maintained, than that when more than five hundred dollars are required as the basis of jurisdiction, it must mean an amount exceeding five hundred dollars which the plaintiff is liable to lose or gain by the result of the suit. It could never have been intended by the act of congress, that because a subject matter may have been involved in the proceeding, worth more than five hundred dollars, therefore any non-resident may have brought his suit in the circuit court, even although his own interest may have been a very small amount of the item of property. The result of such a doctrine would be, or might be, to throng these courts with proceedings in which a mere trifle might be claimed by the complainant, simply because that trifle comprised a part— a small part — of some large interest. A single stockholder in a banking or any other corporation, to the amount of fifty dollars, might thus gain in the circuit court a foothold for litigation, merely because the capital stock of the company was a million. Thus all the safeguards, whether of protection of the courts against the annoyance of numerous petty litigations, or of parties against being burdened with the more inconvenient and expensive proceedings of courts of the United States, would be effectually destroyed. We understand the act of congress to mean, not that the party must litigate in reference to something worth
This view disposes of the case, and here this opinion might very well close, yet I do not think that I ought to leave the case without some review of the second proposition of the respondent, that the bill does not disclose such a ease of merit as would
The law, therefore, and constitution of Kansas, have not given to the complainant in these suits any say whatever upon this question. In so far, this law may be unconstitutional. I do not propose to say that it is. I do not think that it is, but I have not reviewed, and do not propose to decide that question. I will remark only in passing that the law is certainly not so, as being against the constitution of the state. If there be any qualification of voters unconstitutional, it is that both the constitution and the law are so, as being in conflict with the constitution of the United States. The affirmative of this proposition would be so comprehensive as to affect the constitution and laws of every state in the union. These constitutional and legal questions may well suggest the inquiry, whether the complainant in this suit can have anything to do with the subject of these bills. He was not allowed, as a non-resident, to vote upon the question of authorizing the issuing of the bonds. Can he come into the courts of the United States, under any circumstances, claiming to exercise any control over this subject? With never so large an interest, the complainant might find himself embarrassed by this peculiar state of things. It is not made necessary by any presentation of the point to decide this question, and I shall, therefore, not do more than observe that, if to recognize such a barrier to his enforcement of a claim here should be said to present an exception to the rule that there is no wrong without a remedy, ail that need be said in reply is, that the public policy of every state must, and does, sometimes give rise to similar anomalous conditions.
At all events, it may be safely said that#! to lay a foundation of right in a case of this description, there should be distinct allegations. either of fraudulent collusion against complainant’s interest or clear departure from the line of imposed duty. There are no such allegations in either of these bills.
Every one owning land in a state holds it subject to the constitution and laws of the state. Not willing so to hold it he may sell, or, preferring to hold it and not satisfied to be uemed any privilege of citizenship in regard to it, he may relieve himself of the disability by becoming a citizen. But a few observations are due in reference to the allegations of the bill, relied upon particularly to show merits. They are, that, at a meetmg alleged to be informal, certain values, consisting of other bonds and moneys, and stocks of other companies, were issued without sufficient consideration, and to give a controlling influence against the interests of Douglas county; that the road was not constructed and equipped, by reason of the want of turn tables, water tanks, etc., by the 1st of January, 1808, as by the terms of the submission of the question to the people it was provided it should be. It is supposed the court will take judicial notice of the necessity of these, as equipments of the road. It may be well questioned, on the contrary, whether a provision of water tanks, turn tables, etc., the want of which is alleged in proof of noncompliance by the company with the terms of the submission, was necessary to constitute a compliance. The language of the submission is, that the “railroad track shall be completed, and in full operation.” While it is true that a railroad is, in one sense, incomplete without these appendages, in a more limited sense it is not so. Certainly a railroad track may be complete, literally, without any one of these, while it is not complete only when we make railroad track to mean something more than it literally does. But besides this, may not the requirement have been thus restricted, for the reason that it was not intended to exact more of the company than simply to construct the railroad track, literally, by that time, leaving those appendages necessary for its absolute completion, in a more extended sense, to follow, as of course they must to make it practically useful anti valuable? Besides, time is not necessarily of the essence of an agreement, and particularly in proceedings in equity. The most that could be claimed is, that the board of commissioners might, or if it be preferred ought, to have forborne the issuing of the bonds, and submitted the question again to vote. But they are entrusted with the management of the interests of the county, and have a right to the exercise of a fair and honest discretion, and, if, in the exercise of this, they do what a fair man under the same circumstances might do, I can not see any just cause of complaint. The charge of an undue motive in issuing the values above mentioned is not sustained. Motive may be inferred and judged from circumstances, but is not very well capable of direct proof; a mere assertion, or even an assertion sustained
There remain two other questions, to which some reference should be made before dismissing the second point of inquiry. First. May any and every individual nonresident tax payer institute such a proceeding against the corporate authorities of a •county? While on the one hand, individual rights are entitled to protection, on the other, great public interests ought not lightly to be subjected to delay and annoyance. Whether any principle can be stated, that would be capable of application without possible hardship, may be doubted; to deny all redress to individuals in such cases would be apt, sometimes, to result in injustice. To recognize the right of every ■one to arraign public servants of the description under consideration is full of inconvenience and danger. High authorities have held that, unless the individual has some interest other than that which is common to the whole community, he can not maintain a proceeding in such cases. Doolittle v. Supervisors of Broome County, 18 N. Y. 155, and Roosevelt v. Draper, 23 N. Y. 318, are leading cases in a large class in support of this doctrine; and the following are a few, of many, by which they are sustained: [O’Brien v. Norwich & W. R. Co.,] 17 Conn. 372; [Smith v. City of Boston.] 7 Cush. 254; [Mayor, etc., of Georgetown v. Alexandria Canal Co.,] 12 Pet. [37 U. S.] 91; [Hale v. Cushman,] 6 Metc. [Mass.] 425; [Pratt v. Bacon,] 10 Pick. 123; 3 Daniell, Ch. Pr. 1768-1770. With this doctrine I am much inclined to concur, as far more reasonable and just than that which would recognize every one, in a community of common interest, as entitled to arrest the onward progress of groat public concerns. It may be that, legislative wisdom might well direct itself to this subject, and, while amply protecting personal rights, provide more fully than now seems to be done the proper safeguards against 111 advised invocations of judicial protection.
As a ground of equity interference, not only well established by authority but expressly provided by statute, for the government of the courts of the United States, redress rests upon the want of adequate remedy without it. “Suits in equity shall not be sustained in either of the courts of the United States, where plain, adequate and complete remedy may be had at law. Act Cong. 1789, ch. 20, § 16, [1 Stat. 82.]
While the equity jurisdiction of the courts of the United States is independent of the local law, and therefore no objection to their jurisdiction may arise from the fact of a remedy under the local law, as decided in Gordon v. Hobart, [Case No. 5,609;] 3 Cranch, C. C. 267, [Mandeville v. Cookenderfer,] Id. 9,-009;] yet, if such redress may be had at law in the courts of the United States, the equity jurisdiction now invoked plainly can not be entertained. Why may not such redress be had in these courts? There can be little doubt that, either in resistance of an unjust exaction or by proceedings to correct an evil suffered, redress at law might be successfully sought. This suggests another inquiry, which might well be somewhat elaborately considered, were the other propositions differently decided; that is, how far the equitable remedy by injunction is dependent upon the irreparability of the threatened wrong, and whether, judged by this standard, these suits are maintainable. But in the views I have taken this inquiry is rendered unnecessary. I will but ask, is there any evil, not to say irreparable, to be inflicted by the proceedings proposed to be enjoined, or on the contiary, are they not, however regarded by the complainant, of the highest advantage to him? If, indeed, some additional tax be the result, is it not likely to redound in a largely increased value of his property? Assuredly those to whom the proposition was submitted, and by whose votes it was determined, expect to reap large advantages from the outlay. It is inevitable that the complainant shall enjoy these as largely as others. In such a case he can not claim to be injured, had he a right to the position of complainant. The courtesy and ability with which the views of the learned counsel for the complainant have been presented will not permit me to close without noticing some of the leading authorities relied upon by him upon some other points. He objects to the dissolution in
It is objected again, that dissolution can not be made in vacation. Brightly, Dig. p. 256, § 5. The power in injunctions, as conferred upon the judges of the district courts, is peculiar and ample. It is as follows: “The judges of the district courts of the United States shall have as full power to grant writs of injunction, to operate within their respective districts, in all cases which may come before the circuit courts within their respective districts, as is now exercised by any of the judges of the supreme court of the United States, under the same rules, regulations and restrictions as are provided by the several acts of congress establishing the judiciaiy of the United States, any law to the contrary notwithstanding: provided, that the same shall not, unless so ordered by the circuit court, continue longer than to the circuit court next ensuing; nor shall an injunction be issued by a district judge in any case where a party has had a reasonable time to apply to the circuit court for the writ.” 2 Stat. 418.
This, it will be seen, confers upon the judges of the district courts, not the courts themselves, the same power as have the judges of the supreme court. The power of these latter is derived from the judiciary act, (1 Stat. 34.) “Writs of ne exeat and of injunction may be granted by any judge of the supreme court, in cases where they might be granted by the supreme, or a circuit court.” Whence it follows, that the judges of the district courts, to the extent i of their territorial jurisdiction, have in these matters the full power of the supreme and circuit courts. This carries as well, in vacation, the power to dissolve as to grant, the former being incident to the latter. The act of the 23d August, 1842, (5 Brightly, Dig. p. 257, § 6, [5 Stat. 517, § 5,] is amply confirmatory: “And it shall bo competent for any judge of the court, upon reasonable notice to the parties, in the clerk’s office or at chambers, and in vacation as well as in term, to make, direct, and award all such process, commissions, and interlocutory orders, rules and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the. court.” But besides this view of the law of the question, the attitude of these cases is such as, itself, to make an exception to the rules ordinarily governing the dissolutions of injunctions, whether it respect the doing so without answer or the exercise of the power in the vacation. When applied for, a time was fixed for a hearing. The respondents were hindered by circumstances not under their control from attending, and the hearing was adjourned to Thursday, December 17, 1868. In the meantime the injunction was granted, temporarily, but it was not intended that the respondents should thereby be placed in any worse, or the complainants in any better situation, but, on the contrary, it was understood that the whole cases were to be heard as if no injunctions had been allowed. Under such circumstances, 1 cannot hesitate to treat them as of themselves exceptional, and not properly to be circumscribed by what, under other circumstances, might be not a too rigid rule, but, in addition to all this, is it not abundantly clear that, if the views expressed as to the question of jurisdiction are sound, a dissolution ought to be allowed? I understand the doctrine to not need to be sustained by accumulating authorities, that so soon, at whatever stage of a cause, as a want of jurisdiction shall be disclosed, the further entertainment thereof shall cease.
The complainant’s counsel insists further that the Leavenworth, Lawrence and Galveston Railroad Company has no corporate existence, and relies upon article 12, § 1, Const. Kan.: “The legislature shall pass no special act conferring corporate powers; corporations may be created under general laws, but all such general laws may be amended or repealed.” This company was incorporated under a territorial law of 1858, before the adoption of the constitution. Under the fourth section of the schedule that law was undoubtedly continued in force. It was amended by act of 1864, and it is claimed that, under the decision of the supreme court of the state of Kansas, in the case of the City of Atchison v. Bartholow, 4 Kan. 124, the last named act is unconstitutional. That the provision first cited is to be construed as denying to the legislature the
Complainant’s counsel refers to several an-thorities to sustain the right of the complainant to seek redress as he here does, the most prominent of which are Smith v. Swormstedt, 21 Curt. Dec. 141, and Dodge v. Woolsey, 18 How. [59 U. S.] 331. The first was an application for a division of a common property of the Methodist Episcopal Church, the complainants averring that the hill was brought by authority and under the direction of the general and annexed conferences of the church south, which had been erected into a separate ecclesiastical organization under an ordinance of a general conference and the subsequent action of certain annual conferences. That the supreme court recognized -ne complainants as competent parties in such a proceeding does not furnish support to the complainant in this suit. The case in 18 How. [59 U. S.] does not seem to me to be any more influential in this direction.
This opinion has already grown too long to permit me to feel at liberty to more particularly review the last mentioned or other authorities cited in opposition to the conclusions I have reached. The injunctions heretofore issued in these causes are dissolved, with costs.