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Opinion of the Court.
nesses as the parties may require," and examine them on oath in relation to the value of the land, and reduce the testimony to writing, and ascertain and determine the compensation which ought to be made by the United States to the party owning or being interested in the land to be condemned; and that the jury shall reduce their inquisition to writing, and sign and seal it, and it shall then be returned by the sheriff, together with the testimony, to the clerk of the circuit court for the county; that the inquisition shall be confirmed by the court, if no sufficient cause be shown by the fourth day of the ensuing term, and, when confirmed, shall be recorded; that, if the inquisition be set aside, the court may direct another inquisition in the manner before prescribed; that the inquisition shall describe the land condemned, and state the valuation thereof; and that such valuation, when paid or tendered to the owner, shall entitle the United States to the land, for the use and purposes set forth in the petition.
The only position, other than the denial of the constitutionality of the act of Congress, argued by the plaintiff in error in this court, was that by the statutes and decisions of Maryland the jury which returned the inquisition was but a body of assessors of damages, in the nature of a special jury of inquest, or board of commissioners, and that he was entitled to have the whole case tried anew by an ordinary jury. In support of this position were cited the following cases, decided under different statutes of Maryland: Tide Water Canal Co. v. Archer, 9 Gill & Johns. 479; Steuart v. Baltimore, 7 Maryland, 500; State v. Graves, 19 Maryland, 351. But, however that may be under the statutes of the State, it is not so under the act of Congress.
The direction, in the act of Congress, that the practice, pleadings, forms and modes of proceeding, in cases arising under it, "shall conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record of the State," must, as was said by this court in an analogous case, following the decisions under the corresponding provision of section 914 of the Re
Opinion of the Court.
vised Statutes, "give way, whenever to adopt the state practice would be inconsistent with the terms, defeat the purpose, or impair the effect, of any legislation of Congress." Luxton v. North River Bridge Co., 147 U. S. 337, 338.
This proceeding for the condemnation of an interest in land, for the use and benefit of the United States for lighthouse purposes, was instituted in the District Court of the United States by the Secretary of the Treasury, acting through the Attorney General of the United States, as authorized by the act of Congress. Having been commenced in the name of the Secretary of the Treasury, it was rightly ordered to be amended so as to make the United States the formal, as they were the real petitioners. Kohl v. United States, 91 U. S. 367; United States v. Jahn, 155 U. S. 109, 111; United States v. Hopewell, 5 U. S. App. 137. The proceeding was conducted in substantial accordance with the provisions of the statute of Maryland upon the same subject, except so far as controlled by the act of Congress under which it was instituted, or by other laws of the United States.
The provision of the Maryland statute, that a petition in the county court shall be verified by affidavit of the agent of the United States, is inapplicable to a petition presented to a court of the United States by the officer designated in the act of Congress. And the provision requiring a sheriff's jury to reduce to writing, and to return to the clerk of the court, the testimony taken before them, has no application to a trial had and evidence taken before the court itself.
The proceeding, instituted and concluded in a court of the United States, was, in substance and effect, an action at law. Kohl v. United States, 91 U. S. 367, 376; Upshur County v. Rich, 135 U. S. 467, 476. The general rule, as expressed in the Revised Statutes of the United States, is that the trial of issues of fact in actions at law, both in the District Court and in the Circuit Court, "shall be by jury," by which is evidently meant a trial by an ordinary jury at the bar of the court. Rev. Stat. §§ 566, 648. Congress has not itself provided any peculiar mode of trial in proceedings for the condemnation of lands for public uses. The direction in the act
1160 514 L-ed 515
160 514 L-ed 515 741 366
160 514 Led 515 174 567
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160 5142 L-ed 515 108f 418
L-ed 515 183 650 109f 509
of 1888, c. 728, § 2, that such proceedings shall conform, "as near as may be," to those "in the courts of record of the State," is not to be construed as creating an exception to the general rule of trial by an ordinary jury in a court of record, and as requiring, by way either of preliminary, or of substitute, a trial by a different jury, not in a court of record, nor in the presence of any judge. Such a construction would unnecessarily and unwisely encumber the administration of justice in the courts of the United States. Indianapolis & St. Louis Railroad v. Horst, 93 U. S. 291, 301; Southern Pacific Co. v. Denton, 146 U. S. 202, 209; Mexican Central Railway v. Pinkney, 149 U. S. 194, 206, 207. This plaintiff in error had the benefit of a trial by an ordinary jury at the bar of the District Court on the question of the damages sustained by him; and he was not entitled to a second trial by jury, except at the discretion of that court, or upon a reversal of its judgment for error in law.
To prevent any possible misconception, it is fit to observe that this case concerns only the taking by the United States, on making compensation to the owner, of an interest in fast land above high water mark; and does not touch the question, argued but not decided in two recent cases, of the right of the United States to take, without compensation, for the purpose of a light-house, land under tide waters. Hill v. United States, 149 U. S. 593; Chappell v. Waterworth, 155 U. S. 102. Judgment affirmed.
JACKSONVILLE, MAYPORT, PABLO RAILWAY
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE
No. 80. Submitted November 21, 1895. - Decided January 13, 1896.
Whether an instrument is under seal or not is a question for the court upon inspection; but whether a mark or character shall be held to be a seal, depends upon the intention of the executant, as shown by the paper. When no legislative prohibition is shown, it is within the chartered powers
Statement of the Case.
of a railroad company to lease and maintain a summer hotel at its seaside terminus, and such power is conferred on railroads in Florid The authority of the president of such company to execute in the name of the company a lease to acquire such hotel may be inferred from the facts of his signing, sealing, and delivering the instrument, and of the company's entering into possession under the lease and exercising acts of ownership and control over the demised premises, even if the minutes of the company fail to disclose such authority expressly given. The court adheres to the rule laid down in Central Transportation Co. v. Pullman's Car Co., 139 U. S. 24, that a contract of a corporation which is ultra vires in the proper sense is not voidable only, but wholly void and of no legal effect; but it further holds that a corporation may also enter into and engage in transactions which are incidental or auxiliary to its main business, which may become necessary, expedient, or profitable in the care and management of the property which it is authorized to hold, under the act by which it is created.
Impossibility of performing a contract, arising after the making of it, although without any fault on the part of the covenantor, does not discharge him from his liability under it.
A lessee of a building who contracts in his lease to keep the leased building insured for the benefit of the lessor during the term at an agreed sum, and fails to do so, is liable to the lessor for that amount, if the building is destroyed by fire during the term.
There is no error in an instruction to the jury, where the evidence is conflicting, that in coming to a conclusion they should consider the testimony in the light of their own experience and knowledge.
IN the Circuit Court of the United States for the Northern District of Florida, on the 4th day of December, 1889, Mary J. Hooper, Henry H. Hooper, her husband, and William F. Porter, for the use of said Mary J. Hooper, citizens of the State of Ohio, brought an action against the Jacksonville, Mayport, Pablo Railway and Navigation Company, a corporation of the State of Florida. The plaintiffs' amended declaration set up causes of action arising out of the covenants contained in a certain indenture of lease between the parties. This lease, dated July 10, 1888, purported to grant, for a term of two years, certain lots of land situated at a place called "Burnside," in Duval County, Florida, whereon was erected a hotel known as the "San Diego Hotel." In consideration. of this grant the railroad company agreed to pay in monthly instalments a yearly rent of $800, and to keep the premises insured in the sum of $6000.
Opinion of the Court.
It was alleged that on November 28, 1889, during said term, and while the railway company was in possession, the hotel and other buildings were wholly destroyed by fire; that the defendant had failed and neglected to have the same insured, and that there was an arrearage of rent due amounting to the sum of $106.67. For the amount of the loss occasioned by the absence of insurance and for the back rent the action was brought.
The defendant denied that the railway company had duly executed the instrument sued on; denied that Alexander Wallace, the president of the company, and who had executed the lease as such president, had any authority from the company so to do. The defendant also alleged that such a lease, even if formally executed, was ultra vires; also that the covenant to insure was an impossible covenant, as shown by ineffectual efforts to secure such insurance.
The case was tried in April, 1891, and resulted in a verdict and judgment against the defendants in the sum of $6798.70. On errors assigned to certain rulings of the court and in the charge to the jury the case was brought to this court.
Mr. J. C. Cooper for plaintiff in error.
Mr. James R. Challen for defendants in error.
MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the Court.
The nineteen assignments of error may be classified as follows: Those which raise questions as to the sufficiency of the proof of the due execution by the defendant of the contract sued on; those which deny the competency of the railroad company to enter into such a contract; those which deal with the question whether the defendant was relieved from liability on its covenant to insure by reason of alleged impossibility to comply therewith; finally, those alleging error in the admission of evidence, and in certain portions of the charge particularly in respect to the measure of damages.