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Nor is a spot, surrounded with brush and briers, The sea-beach, visible from inhabited houses, is a 200 yards from where a public shooting-match is public place. Reg. v. Creusden, 2 Camp. 89. But going on. Com. v. Vandine, 6 Gratt. 689. Nor a an indictment charging indecent exposure “in a room in an out-house within a tavern inclosure, public place, to wit, a public road," is bad, the pubformerly used in connection with the tavern, and licity having reference to the number of persons room over which is still so used, but now used inde- rather than the locality. Moffit v. State, 43 Tex. pendently of the tavern by one who boards there. 346. Purcell v. Commonwealth, 14 id. 679. Nor a hollow A field in a forest and one mile from a highway 100 yards from a dram shop, not visible therefrom any other public place is not a public place, alnor from a public road, and not customarily used though three persons are present, two of whom enfor gaming. Smith v. State, 23 Ala. 39; Bythwood gage in an affray. Taylor v. State, 22 Ala. 15. (So v. State, 20 id. 47. Nor is a private house, to which held in respect to an indecent exposure in a barthe public are not permitted to go without invita- room, only one other person being present. Reg. v. tion, made a public place by the presence of eight Webb, 1 Den. C. C. 338. So under the like circumor ten invited persons. Coleman v. State, 20 id. 51. stances in a church-yard. Rex v. Watson, 2 Cox's C. Nor the office of an unmarried physician, where he C. 376.) But an inclosed lot, thirty yards from the eats and sleeps, the gaming being at night with street of a country town, but visible from the street, closed doors and a few invited friends. Clarke v. is a public place within the common-law definition State, 12 id. 492. Nor a lawyer's office, occupied of an affray. Carwile v. State, 35 Ala. 392. "The and used in like manner, although during the session tumult could be heard and its exciting scenes witof court. Burdine v. State, 25 id. 60. Nor the nessed; and persons passing by would be within office of a married physician, adjoining a mer- reach of missiles thrown by the combatants,” said chant's counting-room, and occupied at night by the court. another as a sleeping-room, who frequently held in- For the purpose of posting notices, houses of pubvited card parties there. Sherrod v. State, 25 id. lic worship, inns, and perhaps in some places, retail 78. Nor the back room used by a register in chan- shops, are public places. Scammon v. Scammon, 28 cery as a bed-room, adjoining and communicating N. II. 428; T'idd v. Smith, 3 id. 181. with his office, the house having a high fence in the In Homer v. State, 49 Md. 277, an indictment for rear, and the persons invited coming in by the back nuisance, it was held that the ordinary and accepted way. Boquemore v. State, 19 id. 528. Nor a store- meaning of the words “roads and streets,” is “ways house in a village, late at night, after persons have for public travel,” unless qualified by the adjective ceased to come for goods, and the door is locked. “private" or some equivalent expression; and so Commonwealth v. Feazle, 8 Gratt. 585; Windsor v. an allegation of the maintenance of an offensive Com., 4 Leigh, 680. (But it is a “public house." trade "near unto divers roads and streets,” etc., Skinner v. State, 30 Ala. 524.) Nor is a room made was held to imply a public nuisance. a public place by the mere fact that it adjoins and communicates by an open door with another in

TREATIES AND THE FEDERAL CONVENwhich are persons who are not gaming. Lowrie

TION. V. State, 43 Tex. 602. A “room in a public courthouse” is not necessarily a “public place.” Shiha

BY SAMUEL T. SPEAR, D.D. gan v. Steele, 9 id. 430.

A public omnibus is a "public place” within a statute against indecent exposure of the person.


proceedings of the Federal Convention, from the Reg. v. Holmes, 3 Carr. & K. 360. In Reg. v. Orch- commencement of its sessions on tho 14th of May, ard, 3 Cox's C. C. 248, it was held that a urinal, 1787, to the signing of a draft of the Constitution on with boxes or divisions, for the convenience of the

the 17th of the ensuing September, covering a period

of a little more than four months. One of the quespublic, situated in an open market, was not a public tions considered and determined by the Convention place within the same statute. But the contrary relates to the subject of treaties with foreign nations. was held in Queen v. Harris, L. R., 1 C. C. 282. The purpose of this article is to give a brief history of The court said: “It appears that the urinal was

this question in the Federal Convention as found in

the Madison papers. open to the public; that it was in Ilyde Park, upon

1. One branch of the question relates to the denial a public foot-path, and that the entrance to it was

of the treaty-power to the several States, and in refrom that foot-path. I think it was just as much a gard to this point there does not seem to have been public place, with respect to that portion of the any division of opinion among the members of the public who use it, as a public highway. Every | Convention. The Articles of Confederation, which place must be more or less screened from view on

preceded and were superseded by the Constitution,

while granting, with certain qualifications, to the some side, and the size of an inclosure does not

United States, “the sole and exclusive power” of necessarily affect the question whether it is a public entering into treaties and alliances,” declared that place or not.” Where one indecently exposed him- “no State, without the consent of the United States self on the roof of a house in view from the back in Congress assembled,” shall “enter into any conwindows of several other houses, and was seen by ference, agreement, alliance, or treaty with any king,

prince or State," and that “no two or more States seven persons from one of those windows, but could

shall enter into any treaty, confederation, or alliance not be seen from the highway, held, that this was in whatever between them, without the consent of the a public place. Reg. v. Thallman, 1 Leigh & C. 326. United States in Congress assembled, specifying ac

curately the purposes for which the same is to be en- the following words: “But no treaty shall be binding tered into, and how long it shall continue." Article on the United States which is not ratified by law." VI.

This motion, after debate, was rejected, and the secThe plan of a Constitution, submitted to the Con- tion was then referred “to the committee of five" for vention, May 29th, by Mr. Charles Pinckney, provided, further consideration." Pp. 1412-1415. in the eleventh article, that no State shall “enter On the 31st of August the Convention referred such into treaty, or alliance, or confederation," or “enter parts of the Constitution as had been postponed, tointo compacts with other States or foreign powers." gether with such parts of reports as had not been acted P. 744. The Constitution, as finally adopted, declares, upon, to a committee of eleven, consisting of a memin article 1, section 10, that “no State shall enter into ber from each State. P. 1478. This committee reany treaty, alliance, or confederation," and that no ported on the 4th of September, recommending that State shall, without the consent of Congress, “enter the grant of the treaty power should be as follows: into any agreement or compact with another State or “The President, by and with the advice and consent with a foreign power.”

of the Senate, shall have power to make treaties; but The first of these clauses expressly denies to the no treaty shall be made without the consent of twoStates all power to "enter into any treaty, alliance, or thirds of the members present." Pp. 1487, 1488. The confederation." This applies, as Mr. Justice Story Convention on the 7th of September entered upon the thinks, “to treaties of a political character, such as cousideration of this recommendation. Mr. Wilson treaties of alliance for purposes of peace and war, and moved to amend it by adding the words, “and House treaties of confederation in which the parties are of Representatives," immediately after the word leagued for mutual government, political co-operation “Senate," saying: “As treaties are to have the operaand the exercise of political sovereignty, and treaties tion of laws, they ought to have the sanction of laws of cession of sovereignty, or conferring internal polit- also. The circumstance of secrecy in the business of ical jurisdiction, or exterual political dependence, or treaties formed the only objection; but this, so far as general commercial privileges." Story's Const., $ 1403. it was inconsistent with obtaining the legislative sancThe other clause - the one relating to "any agreement tion, was outweighed by the latter." Mr. Sherman or compact," etc., - is regarded by the same eminent thought that the power “could be safely trusted to jurist as applying to “mere private rights of sover- the Senate," and that “the necessity of secrecy in eignty, such as questions of boundary, interests in the case of treaties forbade a reference of them to land situate in the territory of each other, and other the whole Legislature." The motion of Mr. Wilson internal regulations for the mutual comfort and con- was rejected, and the recommendation of the commitvenience of States bordering on each other.” Id. tee adopted. Pp. 1518, 1519. Such agreements or compacts the States are permitted A draft of the Constitution having been agreed to to make with each other or with a foreign power, with by the Convention, it was on the 9th of September rethe consent of Congress. The compact between Vir- ferred to a committee to revise its style and arrange ginia aud Kentucky is an example to this effect. its several articles and sections in the proper order.

Thus the treaty power, in the general sense of this This committee raported on the 12th of September, phrase, is entirely excluded from the States; and all proposing that the clause in respect to the lodgment agreements or compacts of the States with each other of the treaty power should be a part of article 2, secor with a foreign State are excluded, except with the tion 2, and should read as follows: “He (the Presiconsent of Congress. This, as was intended, dispos-dent) shall have power, by and with the advice and sesses the States of one of the fundamental attributes consent of the Senate, to make treaties, provided twoof nationality. IIolmes v. Jennison, 14 Pet. 540; and thirds of the Senators present concur.” P. 1555. In The People v. Curtis, 59 N. Y. 321.

this form the clause was adopted by the Convention, 2. A second branch of the treaty question relates to and, being subsequently ratified by the people, became the proper lodgment of the treaty power in the gen- a part of the fundamental law of the land. The Coneral government. Excluding the judiciary, the power vention proposed to commit to the President tho genmight have been delegated to the President alone, or eral management of our relations with foreign nations, to him in connection with one or both houses of Con- and, as a part of this idea, to vest iu him the treatygress, or to either house of Congress exclusively, making power, subject, however, in its exercise to the or to both houses in conjunction. These were pos- advice and consent of the Senate given by a two-thirds sible methods of lodging this power. The matter majority of the members present. to be settled was to decide which, on the whole, would 3. The third branch of the treaty question, as conbe the wisest; and this, at different times during the sidered and determined by the Convention, relates to sessions of the Convention, involved considerable dis- the legal effect of treaties made under the authority of cussion,

the United States, and the manner of making them Mr. Pinckney's plan, proposed May 29th, provided operative as laws. The solution of this problein, as that “the Senate shall have the sole and exclusive contained in Mr. Pinckney's plan of a Constitution power” “to make treaties." P. 742. That of Alex- presented May 29th, was as follows: ander Hamilton, proposed June 18th, provided that the President shall “have, with the advice and appro

“All acus made by the Legislature of the United bation of the Senate, the power of making all treat

States pursuant to this Constitution, and all treaties ies," and that the Senate shall have

“the power of

made under the authority of the United States, shall

be the supreme law of the land; and all judges shall advising and approving all treaties." P. 891. The be bound to consider them as such in their decisions." report of a draft of the Constitution by the Committee Pp. 741, 742. of Detail, made August 6th, declared that “the Senate of the United States shall have the power to make

Mr. Patterson's solution, submitted June 15th, read treaties." P. 1234.

as follows: Mr. Madison, in the discussion of this part of the re- “ Resolved. That all acts of the United States, made port, August 23d, observed “that the Senate represents by virtue and in pursuance of the powers hereby and the States alone, and that for this, as well as other by the Articles of Confederation vested in them, and all obvious reasons, it was proper that the President treaties made and ratified uuder the authority of the should be an agent in making treaties." Gouverueur

United States, shall be the supreme law of the re

spective States, so far forth as those acts or treaties Morris did not know that he should agree to refer

shall relate to the said States or their citizens; and the making of treaties to the Senate at all, but for the

that the judiciary of the several States shall be bound present would move" to amend the section by adding thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwith- they may involve, they operate, so long as they constanding; and that if any State, or any body of men tinue in force, as supreme laws within the territory of in any State, shall oppose or prevent the carrying into

the United States. They are, consequently, supreme execution such acts or treaties, the Federal executive shall be authorized to call forth the power of the con

laws in every State in the Union. federated States, or so much thereof as may be neces

The history of this part of the Constitution, as it sary, to enforce and compel an obedience to such acts, passed through its successive modifications in the or an observance of such treaties." P. 866.

Federal Convention until it reached its final form, Mr. Luther Martin, on the 17th of July, submitted a

shows that the framers thereof meant to assert the resolution on the same subject, which appears to have

supremacy of treaties, not in contrast with or as supebeen accepted by the Convention without debate,

rior to the Constitution or laws enacted by Congress, reading as follows:

but as supreme laws considered relatively to State

constitutions and State laws. " Resolved. That the legislative acts of the United

They predicate suStates made by virtue and in pursuance of the Arti

premacy of three things, namely, the Constitution cles of Union, and all treaties made and ratified under

itself, the laws of Congress, and the treaties of the the authority of the United States, shall be the su- United States, placing them all in the category of preme law of the respective States,

so far as those acts supreme laws, without any formal discrimination beor treaties shall relate to the said States, or their citi- tween them as to rank. Having done this, they then zens and inhabitants; and that the judiciary of the

provide that “the judges in every State shall be several States shall be bound thereby in their decisions, any thing in the respective laws of the individual

bound” by all parts of this composite supreme law, States to the contrary notwithstanding." P. 1119.

'any thing in the constitution or laws of any State to

the contrary notwithstanding." This special referThis resolution, with others, was, on the 26th of

ence to State judges, taken in connection with the July, referred to the Committee of Detail, charged

oath they were to take to support the Constitution, with the duty of preparing and reporting the form of

and to the constitutions and laws of the States, clearly a Constitution, and on the oth of August the commit

indicates that it was the exercise of State authority tee made their report, the eighth article of which read

which was meant to be placed in subordination to "the as follows:

supreme law,” including treaties therein. “The acts of the Legislature of the United States And in order to secure this end and make the sumade in pursuance of this Constitution, and all treat- preme law" practically effective, it was further proies made under the authority of the United States, shall be the supreme law of the several States and of

vided, in article 3 of the Constitution, that “the juditheir citizens and inbabitants; and the judges in the

cial power of the United States shall extend to all several States shall be bound thereby in their decisions cases in law and equity arising under this Constitution, any thing in the constitutions or laws of the several the laws of the United States, and treaties made or States to the contrary notwithstanding." P. 1234. which shall be made under their authority.” The in

This article was, on the motion of Mr. Rutledge, terpretation, application, and enforcement of treaties, August 23d, amended so as to read as follows:

considered as supreme laws, were thus placed within

the scope of the judicial power of the United States. “This Constitution, and the laws of the United

And still further, Congress, in article 1, section 8, of States made in pursuance thereof, and all the treaties made under the authority of the United States, shall

the Constitution, was authorized to make all laws be the supreme law of the several States and of their necessary and proper for carrying into execution the citizens and inhabitants; and the judges of the several "powers vested by this Constitution in the government States shall be bound thereby in their decisions, any of the United States, or in any department or officer thing in the constitutions or laws of the several States thereof." The treaty power is vested in the President, to the contrary notwithstabding." P. 1408.

in connection with the Senate; and the judicial power The article was again amended, August 25th, on the of the United States, extending to cases in law and motion of Mr. Madison, by adding after the words, equity arising under treaties, is “vested in one Supreme "all the treaties made," the words,“ or which shall Court, and in such inferior courts as the Congress may be made," thus providing that the supremacy intended from time to time ordain and establish." The power to be asserted shall attach to all the treaties of the to enact laws to carry this executive and this judicial United States, whether made before or after the adop- power into effect is given to Congress. This places in tion of the Constitution. P. 1430. The draft of the the hands of the general government all the necessary Constitution having been adopted and referred to the legal machinery for making treaties operative as suCommittee on Style, this committee, on the 12th of

preme laws. September, reported the article as section 2 of article There was a special reason in the antecedent history 6, in the following words:

of the United States, as well as in the complex charac“This Constitution, and the laws of the United

ter of our political system, which led the framers of States which shall be made in pursuance thereof, and

the Constitution to give to a treaty the attributes of all treaties made or which shall be made, under the law, and make it a part of “the supreme law of the authority of the United States, shall be the supreme land." The Articles of Confederation, though bestowlaw of the land; and the judges in every State shall ing the treaty power on the United States in Congress be bound thereby, auy thing in the Constitution or

assembled, and denying it to the States, except with laws of any State to the contrary notwithstanding.” P. 1559.

the consent of Congress, nevertheless, contained no

provision for the enforcement of treaties, or to preThis is the precise language of the section as found vent their infraction by Stato authority. Congress in the Constitution when signed by the members of the could not raise a dollar by taxation to fulfill the stipuConvention, and afterward ratified by the people; and lations of a treaty, and could not compel the States to hence it was the final disposition of the question relat- supply funds for this purpose. It had the treaty ing to the legal effect of treaties made “under the power without the adjuncts necessary to make it effectauthority of the United States." Treaties made under ive. The consequence was that treaties made by Conthis authority are such as were made by the United gress were regarded by the States as mere compacts, States in Congress assembled, prior to the adoption of which they were at liberty to observe or not as they the Constitution, and such as have been made by the should see fit; and, as a matter of fact, they did see fit President, with the approval of the Senate, under the in several iustances to disregard them. This was speauthority conferred by the Constitution. Whatever cially true in respect to the treaty of peace with Great these treaties may be, considered as compacts with Britain in 1783. other nations, and whatever international obligations Congress remonstrated, and even implored the States

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ACTION upon, a promissory note.

to pay due respect to its treaties; yet the sense of was not the fact under the Articles of Confederation; moral obligation was not sufficient to secure the result. and such would not have beeu the fact under the Con“Power and right, says Mr. Justice Story, were stitution, without some provision to secure treaties separated. The argument was all on one side, but the against infraction by State authority. The problem power was on the other." Story's Const., § 1838. Con- was a delicate and difficult one to solve, yet it was gress, though charged with the duty of conducting the solved by giving to treaties the character of supreme intercourse of the country with foreign nations, in- laws, and requiring judges, both State and National, cluding the making of treaties, could not guarantee to regard them as such. Though not laws in the sense the fulfillment of its own stipulations. This was a of being enacted by Congress, they are placed on the source alike of weakness and peril, as a very brief ex- same footing, and precisely the same provision is made perience abundantly showed.

for their interpretation, application and enforcement, Moreover, the political system of the United States so far as they operate within the territory and among is planned upon the principle of a law-making and a the people of the United States. law-executing power reserved to the States, which, in its sphere, operates independently of the general government. Such was the fact under the Articles of Con- PLEADING IN ACTION UPON PROMISSORY federation; and this fact remains under the Constitu

NOTE. tion. The system is duplicate in its character. Hence arises the necessity that treaties, if they are to be ope

NEW YORK COURT OF APPEALS. rative as sacred compacts, should be placed beyond the power of the States to nullify them.

ALLIS V. LEONARD ET AL., appellants.* It was at first proposed to gain this end by giving Congress the power to enforce treaties by legislative In an action upon a promissory note the complaint alleged action. This was the idea of Mr. Pinckney in his that defendant made the note, that one W. indorsed it plan of a Constitution, and it was incorporated in the and delivered it to the payee, who before the comdraft made by the committee of detail, pp. 741, 1233.

mencement of the action, for a valuable consideration, The idea was, however, abandoned, and, as a wiser

sold and delivered it to the plaintiff, who is now the

owner and holder thereof. The answer admitted "the method of attaining the result, it was provided that

making and delivery of said note as averred in the treaties should have the character of supreme munici

complaint," set up payment and denied each and every pal laws, and that the judges in every State should be

allegation except those admitted. Held, that there was bound thereby, “any thing in the constitution or laws a sufficient denial of the transfer of the note by the of any State to the contrary notwithstanding." If a payee to the plaintiff to entitle defendant to prove State constitution or law conflicts with a treaty of the payment to the payee, and that the note then belonged United States, it is to the extent of the conflict void

to such payee. and of no effect; and State judges are required thus

The opinion to decide in any issue involving the question.

states the case. So, also, treaties, as a part of “the supreme law of the land," are placed under the cognizance of the judi- M. W. Waters, for appellants. cial power of the United States. This enables the

Ballard & Warner, for respondent. Federal judiciary to expound and apply them as supreme municipal laws. The remedy for any conflict RAPALLO, J. This action was brought upon a note between State action and the treaties of the United made by the defendants, Leonard, Stevens and HathStates is hence located in the powers and functions of away, dated August 20, 1866, and payable to Fid. the judiciary, both State and National, and ultimately Allis or bearer, sixty days after date. The plaintiff in the latter. Not only are State courts bound to sued as transferee and holder, and to prove his title regard treaties as supreme laws, but their judgments gave evideuce that the note was received by Fid. Allis and decrees affecting rights claimed under treaties, may for money loaned to the defendant, Leonard, which be carried to the Supreme Court of the United States

money belonged to the plaintiff, and that the note was for final review.

immediately afterward delivered by Fid. Allis to the The twenty-fifth section of the Judiciary Act of plaintiff. September 24, 1789, provides that a final judgment or The plaintiff testified that all the claim he pretended decree in any suit, in the highest court of law or equity to have to it was by virtue of his ownership of the of a Stato in which a decision in the suit can be had, funds which were loaned in taking it. where is drawn in question the validity of a treaty of The defendant offered to prove, by Fid. Allis, paythe United States, and the decision is against its ment of the note to him by John Leonard; also, that validity, or where is drawn in question the validity of Fid. Allis was in fact the owner of the money loaned a statute of any State on the ground of its repugnance on taking the note. to a treaty, and the decision is in favor of the validity This proof was excluded and exception taken, aud of the statute, or where is drawn in question the con- a verdict directed for the plaintiff. The ground stated struction of a treaty, and the decision is against the by the court for excluding evidence of Fid. Allig' right, privilege or exemption claimed under such treaty, ownership of the note was that under a simple denial "may be re-examined and reversed or affirmed in the in the answer the defendant could not prove that some Supreme Court of the United States upon a writ of

person other than the plaintiff was the owner of the error.” 1U. S. at Large, 73. This section, which is note, and that the answer raised no issue, except that reproduced in section 709 of the Revised Statutes of

of payment. the United States, enables the highest tribunal of the As the question seems to have been disposed of land to review the decisions of State courts in regard wholly on the question of pleading, it is necessary to to treaties. Suits in law and equity, in which treaties examine the complaint and answer. are involved, may, in the cases specified, be transferred The complaint alleges that the defendant made the to this court for final settlement.

note, and thereupon one Wheeler indorsed it, and then If all governmental powers had been lodged in the and there delivered it to the payee, and before the United States, there would have been no necessity for commencement of the action, for a valuable considerany constitutional provision in regard to the legal authority and effect of treaties. The National govern- * This case was decided November 11, 1871, and is referred ment, having the power to make them, would have to in the “Memoranda of causes not reported in full." 46 equal power to carry them into effect. Such, however, N. Y. 688.



ation, sold and delivered it to the plaintiff, who is now fail and refuse to comply with the said contract, or any the owner and holder thereof.

part thereof, by building its permanent and only depot The answer specially admits “the making and de- on the said lots on the east side of the Des Moines livery of said note, as averred in the complaint," and river, as it had contracted to do," and instead thereof sets up payment. It denies each and every allegation, "proposes to and has already commenced to build its except those expressly admitted.

permanent and chief passenger depot on the west side We think that this was a sufficient denial of the of the Des Moines river, in West Des Moines." transfer of the note by the payee to the plaintiff to en- The plaintiffs allege that, by “the willful, wrong and able the defendant to prove, if he could, that the note fraudulent representations and violations of said conbelonged to the payee at the tiine of the alleged pay- tract by the defendant, they are damaged in the money ment to him.

contributed by them, and the conveyance of said lots The defense was meritorious, if true, and the plead- to the defendant, and the time and labor expended in iugs should have been liberally construed for the pur- the same, aud the depreciation of the value of their pose of admitting it. But a strict construction would property * in the aggregate sum of $40,000." lead to the same result.

The evidence is in entire harmony with these allegaThe complaint alleges two deliveries of the note in tions of the petition. [The evidence is considered at first a making and delivery to the payee, and a subse- length.] quent sale and delivery by the payee to the plaintiff. The evidence shows that the defendants erected, and

The answer admits only the making and delivery and that they now maintain on the lots in question, a denies every other allegation.

wooden depot building, at which all the day trains This puts in issue the alleged salo and delivery. In stop. It is evident, both from the allegations of the the absence of such sale or delivery the payment to petition and the evidence submitted in support of it, the payee was a good defense.

that the contract which the plaiutiffs claim the deWhen the transfer and delivery of a note by the fendant made was that it would erect a passenger depayee to the plaintiff is specifically alleged, and not pot in East Des Moines, and would erect no passenger denied, a mere denial that the plaintiff is the holder is depot in West Des Moines, and that the substantial a denial of a conclusion drawn from the facts stated, cause of the plaintiffs' complaint is, 110t that the and not of the facts themselves, and has been held in-defendant has failed to construct a depot on the east sufficient; but a denial that the note has been thus side of the Des Moines river, but that it has constructed transferred is a sufficient basis for proof, controvert- a depot on the west side of the Des Moines river. The ing the plaintiff's title and establishing that the payee evidence shows very clearly “that the business, comremained the owner and payment to him.

merce, trade and necessities of the city of Des Moines The judgment should be reversed, and a new trial demand, and have demanded from the time the road ordered, with costs to abide the event.

crossed the river, a depot on the west side of the river. The important question in this case, and the one which

we think is decisive of it, is this: Is the contract in CONTRACT VOID AS AGAINST PUBLIC

question valid, so that damages may be recovered for POLICY.

a breacb of it, or is it void as against public policy?

In the case of the St. L., Jacksonville & Chi. R. Co. v. IOWA SUPREME COURT, MARCH 18, 1880.

Mathers, 71 Ill. 592, it was alleged that Mathers con

veyed 200 lots in the town of Ashland to trustees for a WILLIAMSON ET AL. V. CHICAGO, Rock ISLAND & railroad company, on condition that it should build no PACIFIC RAILWAY Co.

station within three miles of Ashland. Upon the

breach of this condition, Mathers commenced au acA railroad company, in consideration of the conveyance of

tion to compel a reconveyance of the property. In certain lands to it for depot purposes in the city of D., agreed with plaintiffs, who conveyed the lands, that is

the court below the relief asked was granted. The would erect no depot in said city but upon such lands.

Supreme Court, reversing this judgment, said: “The It erected a depot upon the lands and also another in alleged agreement or condition, on account of the a different part of the city. Iicld, that the contract was non-performance of which relief is here sought, was void as against public policy, and that plaintiffs could that a railroad company, chartered by an act of the not maintain an action for damages caused by the Legislature, and invested with the power of condemubreach of it by the railroad company.

ing private property, upon the ground that its road is CTION for a breach of contract. From a verdict for the public use, shall not establish a depot or stain favor of plaintiffs defendant appealed. Suffi

tion within three miles of Ashland. It cannot be precient facts appear in the opinion.

tended for a moment that the board of directors had

authority to make such an arrangement or condition, Wright, Gatch & Wright, for appellant.

They were trustees both for the public and the stockH. W. Maxwell and P. Gad Bryan, for appellees.

holders of the company, and in the discharge of their

twofold duty, were required to act with reference to DAY, J. The petition alleges that in consideration the public convenience, on the one hand, and the priof the conveyance of the lots in question the defend- vate interests of the stockholders upon the other. aut proposed to contract to "build all its depots, both The interests * * * both of the stockholders and passenger and freight, which it might or would build the public forbid that there should be a positive proin the said city of Des Moines, on the east side of the hibition against the establishing of stations at any Des Moines river, in the said East Des Moines, and on points on the line of the road. Whenever the public the lots so transferred and conveyed to it," and that commerce requires that a station on a railroad should "the plaintiffs agreed to and accepted the said propo- be established at a particular place, and it can be dono sition upon the terms offered by the defendant." The without detriment to the interests of the stockholders petition further alleges that the defendant, for a long of the company, the law authorizes it to be established, time after the occupation of said lots, and the build- and no contract between a board of directors and ining of said temporary depot, gave out in speeches, and dividuals can be allowed to prohibit it.

* * * Apheld out inducements and encouraged the plaintiffs to pellee stands in pari delicto with the board of directbelieve, that they were going to build their permanent ors, so far as this agreement or condition is concerned. depot on the said lots in the said East Des Moines, and He voluntarily, according to his own showing, conthat they would not build one anywhere else in the tracted for this breach of trust toward the stockholders city of Des Moines,” but that the defendant “does of the railroad company, and breach of duty to the


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