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MICHIGAN LAND & LUMBER CO., Limited, v. PACK et al


(Circuit Court of Appeals, Sixth Circuit. May 7, 1895.)


-, Upon facts similar to those in Lumber Co. v. Rust, 68 Fed. 155, except that there had been, in this case, no approval of the lists of lands, including those in controversy, by the secretary of the interior, but only a selection thereof by the surveyor general and report by him to the commissioner of the land office, the lists so reported having, afterwards, been superseded by other lists made in accordance with corrected surveys, held, that such selection was not confirmed by Act March 3, 1857 (11 Stat. 251). Error to the Circuit Court of the United States for the Eastern District of Michigan.

These were two actions of ejectment by the Michigan Land & Lumber Company, Limited, against Pack, Woods & Co. and Vyron Butman, respectively. Judgment was rendered in the circuit court for the defendant in each case. Plaintiff brings error. Affirmed.

J. W. Champlin and Frank E. Robson, for plaintiff in error.

Hanchett, Stark & Hanchett and Humphrey & Grant, for defendants in error.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

SEVERENS, District Judge. The controlling facts in each of these cases are similar to those involved in the case of Same Plaintiff v. Rust (No. 178, just decided) 68 Fed. 155, and are subject to the application of the same principles upon which that decision rests. The most material difference in the facts consists in this: that in these cases there was no approval and certification of the lands in suit by the secretary of the interior, as in the Rust Case, but the plaintiff founds its title upon the selection of lists of swamp lands made by the surveyor general, and reported to the commissioner of the general land office, in pursuance of the instructions of the commissioner of November 21, 1850, in which the surveyor general was directed to tender the option to the state in respect to the basis on which the granted lands should be identified. Those lists, as has been said, were never approved by the secretary, but were superseded by other lists, which were made in correction of the mistakes in the former lists, upon the ascertainment of the frauds and errors of the original survey. The old lists had been thus superseded before the passage of the act of March 3, 1857. We are entirely unable to agree with the plaintiff in its contention that the original selection of the surveyor general was confirmed by that act.

We do not think that congress intended to resurrect the lists which had been already discarded because erroneous. But we have discussed this subject in the principal case, and indicated the grounds of our opinion so fully that it is unnecessary to repeat them here. There is no other difference in the essential facts of the cases which requires especial consideration. The details vary, but not enough to affect the main drift of the facts or the principles applicable to them. We think the judgment in each of these cases should be affirmed.



(Circuit Court of Appeals, Eighth Circuit. May 6, 1895.)

No. 532.


The statutes of Kansas (1 Gen. St. 1889, par. 1633) provide that boards of county commissioners (who have power to purchase sites for, build, aud keep in repair, county buildings, levy taxes therefor, and care for the county property) shall not build "any permanent county buildings,” or assess any tax for that purpose, without submitting the question to a vote of the electors of the county. Held, following the decision of the supreme court of Kansas, that a board of county commissioners has power, without a vote of the electors, to make a contract for the erection of cells in the jail building of the county.

In Error to the Circuit Court of the United States for the District of Kansas.

This was an action by the Pauly Jail-Building & Manufacturing Company against the board of county commissioners of Kearney county, Kansas, on a contract for the erection of cells in a jail. Judgment was rendered in the circuit court for the defendants. Plaintiff brings error.

Milton Brown (J. W. Phillips, of counsel), for plaintiff in error.

M. G. Kelso, Joseph W. Ady, Samuel R. Peters, and John C. Nicholson, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

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SANBORN, Circuit Judge. Is it beyond the powers of the board of county commissioners of a county in the state of Kansas to make a contract for the manufacture and erection of cells in the cell room of the jail building of the county without submitting the question of the purchase of such cells to the voters of the county? This is the single question presented in this case. The Pauly Jail. Building & Manufacturing Company, the plaintiff in error, brought an action in the court below against the board of county commissioners of Kearney county, Kan., the defendant in error, to recover the purchase price of two cells which the plaintiff had furnished to the defendant pursuant to a written contract between them. A jury trial was waived, and the court, after hearing the evidence, made and filed special findings of fact to the effect that the plaintiff had agreed with the defendant, for the sum of $6,000, to manufacture and erect in the cell room of the jail building in the town of Lakin, in the county of Kearney and state of Kansas, two cells, furnished complete, and ready for occupancy, including all the attachments connected therewith, in accordance with the specifica

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tions attached to the contract; that the plaintiff had delivered the jail cells at the town of Lakin, pursuant to the contract, but that the defendant had refused to accept or pay for them; and that the question of purchasing, and of authorizing a levy to purchase, the cells had never been submitted to the voters of the county. From these facts the court drew the conclusion of law that the contract was for a jail, and not for the furniture or fixtures for a jail building, and that the board of county commissioners had no authority to make the contract without a vote of the people, and entered judgment for the defendant. The error assigned is that the findings of fact are insufficient to support this judgment, and that the legal conclusion from these facts is a judgment for the plaintiff.

It is settled both by statute and by judicial decision, in the state of Kansas, that it is the duty of the board of county commissioners of each county to furnish a good and sufficient jail in their own county. 1 Gen. St. Kan. 1889, par. 1614; Board of Com’rs v. Honn, 23 Kan. 256. The provisions of the statutes of Kansas material to the issue presented in this case are as follows:

"The board of county commissioners of each county shall have power, at any meeting; * * * Third. To purchase sites for, and to build and keep in repair county buildings, and cause the same to be insured in the name of the county treasurer, for the benefit of the county; and, in case there are no county buildings, to provide suitable rooms for county purposes. Fourth. Apportion and order the levying of taxes as provided by law, a sum sufficient for the erection of county buildings, or to meet the current expenses of the county, in case of a deficit in the county revenue. Fifth. To represent the county and have the care of the county property, and the management of the business and concerns of the county, in all cases where no other provision is made by law.” 1 Gen. St. Kan. 1889, par. 1630. "No board of county commissioners shall proceed to build any permanent county buildings, and assess any tax for that purpose, without first submitting the question to a vote of the electors of the county at some general or special election." Id. par. 1633.

The extent of the powers and of the liabilities of counties in states, and of their officers, must necessarily be determined by an examination and construction of the constitution and statutes which grant the powers and impose the liabilities. The national courts uniformly follow the construction of the constitution and statutes of the state which grants these powers and imposes these liabilities that is given to them by the highest judicial tribunal of that state, in all cases that involve no question of general or commercial law, and no question of right under the constitution and laws of the nation. Madden v. Lancaster Co., 12 C. C. A. 566, 65 Fed. 188, 192; Dempsey v. Township of. Oswego, 4 U. S. App. 416, 435, 2 C. C. A. 110, 51 Fed. 97; Rugan v. Sabin, 10 U. S. App. 519, 3 C. C. A. 578, 53 Fed. 415, 420; Travelers’ Ins. Co. v. Oswego Tp., 7 C.C. A. 669, 674, 59 Fed. 58; Claiborne Co. v. Brooks, 111 U. S. 400, 410, 4 Sup. Ct. 489; Bolles v. Brimfield, 120 U. S. 759, 703, 7 Sup. Ct. 736; Detroit v. Osborne, 135 U. S. 492, 499, 10 Sup. Ct. 1012. The question before us is of this character, and it has been settled by a decision of the highest judicial tribunal of the state of Kansas, rendered in 1880. In State v. Harrison, 24 Kan. 271, it appeared that the board of county commissioners of Marion county, in that


state, had incurred an indebtedness of $7,450 for "additions, extensions, and improvements to the courthouse of said county,” without submitting the question of the appropriation of money for this purpose, or of the construction of these improvements, to the legal voters of the county. The question presented was whether or not the board of county commissioners had acted beyond their power. The supreme court of that state declared that they had not. That court announced the rule for the construction of the statute defining the powers of county commissioners in these words:

"It is certainly true that, before the county commissioners of any county can appropriate any money for the purpose of erecting any permanent county building, it is necessary that such commissioners should first submit the question of appropriating such money or of erecting such building to the legal voters of the county. Comp. Laws 1879, p. 276, § 18; State v. Marion Co. [21 Kan. 419] supra. But, for the purpose of making necessary repairs or alterations of an already existing courthouse, it is not necessary that the question should be so submitted."

In that case the supreme court of Kansas was considering the same statutes that are now before this court for construction, and the rule it announced has never been modified in that state. It is decisive of the question presented in this case, and must control its decision in this court. It cannot be successfully maintained that either one or two cells in a jail building constitute “a permanent county building." No argument or illustration can make this proposition much clearer than its statement. A cell is but a very small room,—a room not much larger than many closets in private houses; and it can hardly be contended that the manufacture and erection of a room in a building, whether small or large, would be forbidden by an inhibition to construct a permanent building. The judgment below must be reversed, with costs, and the cause remanded, with directions to grant a new trial, and it is so ordered.



In Virginia, where the distinction between the common-law and equity systems is strictly maintained, no relief against an award, made in pursuance of a submission in pais, can be obtained, except in equity; and, accordingly, when the amount of loss payable under an insurance policy has been fixed by an award made by arbitrators, appointed pursuant to the terms of the policy, no evidence can be received in an action on the policy to prove a loss greater than the amount of such award, or to prove that the arbitrators were not competent and disinter



The allegation, in a petition for removal of a cause to a federal court, that the defendant is "a company duly chartered and incorporated under the laws of Great Britain," is a sufficient statement of the citizenship

of such defendant to give the federal court jurisdiction. B. SAME-AMENDMENT OF PETITION.

It seems that where the jurisdictional facts authorizing the removal of a cause from a state to a federal court exist, but are not properly stated in the petition for removal, such petition may be amended to show the facts properly.

This was an action by C. C. Robertson & Co. against the Scottish Union & National Insurance Company on a policy of insurance, originally brought in the corporation court of the city of Lynchburgh, Va., and removed by the defendant to this court. When the case came on for trial, and after a jury had been impaneled, the plaintiff offered certain evidence, to which the defendant objected, and the court took the question under advisement.

Kirkpatrick & Blackford, for plaintiffs.
Peatross & Harris, for defendant.

PAUL, District Judge. This is an action in assumpsit, brought by the plaintiffs against the defendant company, on a policy of insurance, to recover damages for a loss to the plaintiffs by a fire which occurred in the city of Lynchburgh, Va., on the 3d day of February, 1894. The policy, among its provisions, contains the following:

“In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one; and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award, in writing, of any two, shall determine the amount of such loss."

The assured and the insurance company failed to agree as to the amount of damage the plaintiffs had sustained, and on the 12th of February, 1894, each selected an appraiser, and on the 14th of February, 1894, these two selected an umpire. On the 24th of February, 1894, the appraiser selected by the insurance company, and the umpire, made an award in writing, fixing the amount of damage sustained by the assured at $4,615.65. The appraiser selected by the assured refused to sign the award. On the 3d of August, 1894, an action on the policy was instituted by the plaintiffs in the corporation court of the city of Lynchburgh, Va., and on the 11th day of September, 1894, on the petition of the defendant company, the case was removed into this court. The case coming on for trial at this term, a jury being impaneled, the plaintiffs have offered to introduce evidence to show that the loss sustained by them was greater than the amount allowed in the award which had been made as above stated, and also to show that the appraiser selected by the defendant company and the umpire were not competent and disinterested, as required by the clause in the policy providing for a submission to arbitration. To the introduction of this evidence the defendant company objects, on the ground that the amount of damages due to the plaintiffs has been ascertained by the award, and that it is not competent for the plaintiffs to assail the award in a court of law. This is the question which the court is to determine.

In Virginia we have two classes of awards,--one provided for by section 3006 of the Code of 1887, as follows:

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