Atchison, Topeka & Santa Fe Rld. v. Comm'rs of Jefferson Co.

1. Bes Judicata; Bide Stated. To make a matter res judicata there must be a concurrence of the four conditions following, namely: 1st, Identity in the thing sued for. 2d, Identity of the cause of action. 3d, Identity of persons and of parties to the action. 4th, Identity of the quality in the persons for or against whom the claim is made. 2. ---A decree enjoining county commissioners from issuing certain bonds, made in an action to which the persons claiming a right to them are not parties, is no bar to an action by such parties to compel the issue of those bonds. 3. Mandamus; Issue of Bonds. Mandamus is the usual and appropriate if not the only remedy to compel the issue by a county of its bonds in payment of a subscription to the capital stock of a corporation. 4. ---Discretion of Court. While mandamus is a writ largely within the discretion of the court, it would be an abuse of that discretion to refuse the writ when it is the only adequate remedy to enforce a party’s rights. 5. - Only Bemedy. Mandamus will not ordinarily be issued to command the doing of an act enjoined by the decree of a competent court; but when one who was not a party to that decree has rights which can be secured only by the writ of mandamus, it may be issued.

Original Proceedings in Mandamus. On the 17th of September 1872, the A. T. & Santa Fe Rld. Co., as plaintiff, commenced an action in this court against The Board of Cou/nty Comm’rs of the Co. of Jefferson, as such, against the members of the board, by their proper names, and W. F. Gilluly, as county clerk, defendants. Upon a duly verified petition therefor, an alternative writ of mandamus was issued, directed to the defendants, commanding them, and each of them, to receive from the A. T. & Santa Fe Bid. Company the certificate or certificates of full-paid stock to the capital stock of said Railroad Compmvy to the amount of $150,000, as had been tendered by said Railroad Company, and that upon the receipt of the same that they duly issue and deliver to said Railroad Company, in payment for said capital stock, the bonds of said county of Jefferson in the sum and to the amount of $150,000, in accordance with the terms and conditions of the order of submission to the people of said county made by said board of commissioners on the 6th of December 1867, the election held on the 7th of January 1868, and subscription made to the capital stock by such commissioners on the 14th of January, 1869, or show cause before this court on the 1st day of November, 1872, why they have not done so. (At said election of 7th January 1868 there were 862 votes cast in said county of Jefferson in favor of making said subscription, and issuing said bonds, and 766 votes against said proposition.) The defendants showed cause. Their answer sets up several defenses. They allege that the election-order of 6th December 1867 was made without the necessary and proper petition therefor; that more than a hundred illegal and spurious votes were cast in favor of the proposition at the,election of 7th January 1868; that a majority of the legal votes cast at said election were against making the subscription and issuing the bonds; and that the subscription to the stock of said Railroad Company made by order of said county commissioners on the 14th of January 1869, was wholly without authority of law, and void. And their answer contains this further defense: “And these defendants further answering, show, that after the holding of said pretended election on the 7th of January 1868, and in the month of February 1868, in the circuit court of the United States in and for the District of Kansas, G. AY. Norton, G. AY. Ryan, D. T. Swineburne, M. D. L. Simpson, David R. Beard, Saunders Eaves, A. Levy, O. H. Morrow, S. T. Bacon, George B. Hodge, Hugh Kennedy, H. H. Coleman, and J. F. Eaton duly exhibited their bill in chancery against The Board of County Commissioners of Jeffebson county aforesaid, with others, parties defendant, and such proceedings were thereupon had in the said suit that said Board of County Commissioners appeared and answered the said bill, and a final decree was therein rendered, (a copy whereof is herewith filed, and made a part of this answer.) That in and by the said decree it was by the said circuit court (they having full jurisdiction, power, and authority in the premises,) adjudged, decreed and determined that the board of county commissioners of Jefferson county, and the county clerk of said county, be enjoined from subscribing to the capital stock of the Atchison, Topeka & Santa Ee Railroad Company, and from issuing any bonds in payment thereof; that in pursuance of-said decree, an injunction was duly granted and issued from the said court, and service thereof made and had upon the board of county commissioners of Jefferson county, which said injunction is still in force, and binding upon the defendants.” The decree made by the United States circuit court, referred to in the foregoing defense, and annexed thereto, was made and entered on the 31st of May 1870, at the May Term 1870 of said circuit court, held at the city of Topeka, Hon. John E. Dillon, Circuit Judge, presiding. The decree is as follows: United States of America, District of Kansas, ss. In the Circuit Court of the United States for the District of Ka/nsas, in Chancery sitting: May Term, 1870. Tuesday, May 31, 1870. And now, on this day, came the plaintiffs herein by Messrs. Hurd and Stillings, their counsel, * * * and thereupon came A. H. Case and Walter N. Allen, solicitors and counselors of this court, and presented record evidence to this court that the Board of County Commissioners of the County of Jefferson, one of the defendants herein, had at a recent session of the board authorized them to appear in this action and represent said defendants herein, and had revoked any power and right that Clough & Wheat, Henry Keeler, William McNeil Clough, L. B. Wheat, David Brockway, or any other person other than Walter N. Allen and his associates, have heretofore had or proposed to represent said Board of County Commissioners in this action. And thereupon said A. H. Case and Walter N. Allen moved the court that they be permitted to represent the Board of County Commissioners of the County of Jefferson, and the said county, which motion was then by the court sustained, and the court then ordered that the said Allen and Case would be by it recognized as the solicitors and counselors herein of and for said Board of County Comniissioners. And thereupon said Board of County Commissioners by said Allen and Case, its counselors herein, withdraws its demurrer to the amended bill of complaint heretofore filed herein; and thereupon came Hugh S. Walsh, Uri Coy, and J. D. Rollins, by said Allen and Case as their solicitors, and at the request of their said solicitors and of the plaintiffs herein by their counsel, they the said Walsh, Coy and Rollins are, as constituting the present Board of County Commissioners of the County of Jefferson, made parties defendant to this suit. And thereupon the Atchison, Topeka & Santa Fe Railroad Company, by its counselor John Martin, and the Atchison, Oskaloosa & Lawrence Railroad Company, by its counselor C. K. Gilchrist, and John A. Coffey, defendant herein by his counsel, requested that their respective demurrers herein to said amended bill of complaint be now heard; and William Gragg, defendant herein, by his counsel asked that his plea to said amended bill of complaint be allowed. And thereupon said plaintiffs asked to have their said amended bill taken as confessed as against the Board of County Commissioners of the County of Jefferson, and as against the County of Jefferson, the said Board and the said County having declined to answer or make further defense; and thereupon the Railroad Companies aforesaid, by their counsel, objected to any decree being rendered herein against said Board of County Commissioners of said County, and by counsel announced that they were ready to argue their respective demurrers herein, and that they were ready to show that the plaintiffs herein had not, nor any of them, set forth any cause of action in their said amended bill, and that there was no equity in said amended bill, and that this court had not jurisdiction of this action. And thereupon plaintiffs by their counsel dismissed their said amended bill as to the Atchison, Topeka & Santa Ee Eailroad Company, and as to the Atchison, Oskaloosa & Lawrence Eailroad Company, defendants herein, the court allowing said dismissal to be made without prejudice to the rights of said companies, or either of them. The said plaintiffs also then dismissed their said amended bill as to defendants J. C. W. Davis, William Gragg, and John A. Coffey. And thereupon the Atchison, Topeka & Santa Ee Eaiiroad Company aforesaid, and the Atchison, Oskaloosa & Lawrence Eailroad Company aforesaid, by their respective counsel herein, claimed to and of the court that they are necessary parties to any suit having for its object the obtaining of such an injunction as is prayed for in said amended bill, and objected to the court further entertaining said amended bill as against the Board of County Commissioners of the County of Jefferson aforesaid, which objection was then and there by the court overruled. It is therefore now by the court here, considered, ordered, adjudged, and decreed, that the said amended bill be and the same is now here taken as true and confessed as against the Board of County Commissioners of the county of Jefferson, and as against Hugh S. Walsh, Uri Coy, and J. D. Eollins, the present members of the board of county commissioners of said county.’ And it is also now by the court here, further considered, ordered, adjudged, and decreed, that all proceedings had or done by the Board of County Commissioners of said county of Jefferson pending this suit, and since the service of the injunction herein, in any way giving force and effect to any pretended or other subscription to said Railroad Companies, or either of them, be set aside and declared null and void. And it is further considered, ordered, adjudged and decreed by the court, that the said Board of County Commissioners of said county of Jefferson, and the said Hugh S. Walsh, Uri Coy, and J. D. Eollins, who constitute the present members of said board, and their successors in office be forever enjoined and restrained from making any subscription to the capital stock to said above-named Eailroad Companies, or either of them, and that said Board of County Commissioners, and the said Walsh, Coy, and Rollins, county commissioners, and their successors in office, be forever enjoined from issuing any bond or bonds, or any other obligation, or levying any tax, on account of any pretended subscription to said Railroad Companies, or either of them. This decree is not to prejudice the right of the said Railroad Companies, or either of them, in any respect; but is to be held, construed, and treated as if made in a suit to which said companies were not parties; but this saving of the rights of said Railroad Companies is not to be construed in any way to modify, as to said County of Jefferson, or its commissioners, or their successors in office, the aforesaid order for an injunction, which is to remain in full force as against' the said county, and its commissioners and officers, and their successors. * * * To which orders and decrees of the court the Atchison, Topeka & Santa Fe Railroad Company, and the Atchison, Oskaloosa & Lawrence Railroad Company, John A. Coffey, William Gragg, each of them, severally excepts. John F. Dillon, Circuit Judge. The plaintiff here, (the A. T. & Santa Fe Railroad Co.,) moved to strike out from the answer of the defendants, (the Board of Co. Comm’rs,) the foregoing defense pleading said decree in bar of this action; and the present hearing in this court is upon said motion. 1. In order to make a matter res judicata there must be a concurrence of the four conditions following: 1st, identity in the thing sued for; 2d, identity of the cause of action; 3d, identity of persons and parties to the action; 4th, identity of the quality in the persons for or against whom the claim is made. (2 Bouv. Law Die., 467; 3 Kas., 397.) In other words, in order to make a final judgment, there must be a real interest, a real argument, a real prosecution, a real defense, and a real decision. Broom’s Legal Maxims, p. 323, note 2; id., p. 335; 3 Bouv. Inst., § 3105. 2. The equity decree in the case of Norton, et al., v. The Board of County Commissioners of the County of Jefferson, et al., in the United States circuit court, cannot be interposed, as a defense to this action for the following reasons: 1st, The decree does not purport or indicate on its face that it is a final decree, or intended to operate as a decree against the plaintiff in this action. Upon the contrary, it-carefully and expressly guards and protects the rights of the plaintiff in this, action, whatever those rights may be, from the effect and operations of the decree. 2d, There is wanting in the two suits, or the equity suit and this action, identity in the thing sued for; identity in the cause of action; identity of persons and parties to the action; and identity of quality in the party for whom the claim was and is made. There is no privity between the plaintiff in this action and either of the parties to the equity suit. 1 Greenl. Ev., §189; 3 Bouv. Inst., §§3101, 3102. 3. The decree in the case of Norton, et al., v. The Board of County Commissioners of Jefferson County, et al., is not a bar to this action, even if the suits were between the same parties, and upon the same subject-matter, for the reason that the present suit is upon a cause, of action that has accrued to the plaintiff since the entry of the decree in the equity suit. 36 Cal., 231. 4. Upon the question of the plea of res judicata generally, as applicable in many respects to the facts in this case, we refer to the following authorities: 21 La. An., 355, 706; 12 Md., 564; 27 Md., 6; 17 Gratton, 534; 44 Mo., 268; 51 Barb., 267; 4 Cush., 27; 1 Paine C. C., 549; 2 Gallison C. C., 216; 24 How., 233; 6 Wall., 166, 514; 7 Wall., 82; 9 Wall., 175, 409, 415; 42 Penn. St., 402; 35 N. Y., 331. 1. The defendants having beén enjoined by a court of competent authority, their acts in violation of the injunction are acts contrary to public policy, and prohibited by law, and are therefore void. Acts done in contravention of the Sunday law are void: 24 N. Y., 353. So, acts contrary to the terms of letters-patent, are void: Broom’s Legal Maxims, 542. And it has been held that an officer who being restrained by injunction from selling on execution, yet proceeds to a sale, will be held a trespasser from the beginning: 8 B. Monroe, 615. And a judgment obtained in violation of an existing injunction is void: 27 Ind., 477. To uphold the validity of bonds issued in violation of an injunction, is to encourage the deliberate violation of judicial decrees, and is contrary to public policy. All contracts or agreements which have for their object anything which is repugnant to justice or against the general policy of the common law, or contrary to the provisions of any statute, are void: 7 N. Y., 109. If the bonds when issued would be illegal, or if the act of issuing would be illegal, or contrary to public policy, or against the general policy of the common law, or for any other reason, void, this court will not command the act to be done. For the court being organized to enforce the law will not further its violation. 34 N. J. Law R., 254. 2. The injunction set up in the answer was granted in the U. S. circuit court, which court has full power and authority to grant the writ, and administer the relief, as also to punish for its violation. The injunction was granted upon hearing. It was not granted improvidently, the plaintiffs in this action appearing, and objecting. It is a final judgment and decree, and concludes the defendants. They may be punished for a breach of it at the suit of the parties to that action who are not defendants in this proceeding. 3. This court will not by mandamus compel a party to violate the judgment of another court, and subject itself to punishment therefor, nor will it put such party in jeopardy: 4 Hill, 582; 21 Wis., 387; 9 N. Y., 264; 34 N. J., 254; 7 Ohio St., 278. To allow this writ, is to review the judgment of another court. This power does not exist. The judgments of the United States circuit court cannot be reviewed here, nor will this court deliberately order a party to violate such judgment. 20 Wend., 658. To grant the writ is to impeach the judgment of the circuit court, which cannot be done thus collaterally: 4 Wallace, 444.