of definition hitherto unrecognized. Every | the past, whether they have violated any law effort at administrative or executive action, of the land or not, an inquiry is to be made in which is not voluntarily assented to by those and by the courts. The judicial power cannot whom it affects creates a dispute between par- be invoked to sustain an investigation into past ties. Can it be that every such dispute justifies conduct which, when disclosed, may or may not an appeal to the courts, and presents a case for be at the will of an administrative board or judicial action? If so, there is nothing which executive oflicer presented for judicial conany administrative body or executive officer sideration or action. It is not meant to be afshall attempt to do which cannot be carried firmed that no inquiry can be made into past into the courts, and every failure to comply conduct or actions except through the power with the orders of such body or officer makes and processes of the courts. On the contrary, the delinquent subject to punishment by the the full power of legislative or executive de process of contempt. Hitherto the power to pun-partments to inquire into what has been is conish for contempt has been regarded as a power lodged in judges and courts to compel obedience to their orders, decrees, and judgments, and to support their authority. ceded. But if designed to aid legislative or executive action it must be by legislative or executive proceedings. Can the courts be turned into commissions of inquiry in aid of legislative action? In short, and to sum it up in a word: If these appellees have violated any law their punishment should be sought in the ordinary way, by prosecution therefor in the courts. If they have violated no law, and the simple purpose is to elicit information for the guidance of the commission or the legislature, let that information be sought by the ordinary processes of legislative or administrative bodies. This is something more important than a mere question of the form of procedure. It goes to the essential differences between judicial and legislative action. If this power of the courts can be invoked to aid the inquiries of any administrative body, or enforce the orders of any executive officer, why may not the power to punish for contempt be vested directly in the administrative board or in the executive officer? Why call in the court to act as a mere tool? If the Interstate Commerce Commission can rightfully invoke the power of the courts Take a familiar illustration: Once in ten years to punish as for contempt those who refuse to a census is *ordered by authority of Con-[10 answer their questions, why may not like gress, and the scope of that census, constantly power be given to any prosecuting attorney, enlarged, is to elicit from the citizens of the and he be authorized to summon witnesses, United States information as to a variety of those for as well as those against the govern- topics. No thought of punishment for past ment, and in advance compel them, through misdeeds enters into such an inquiry. Inthe agency of the courts, to disclose all the ev- formation, and that only, is sought. It is unidence they can give on any expected trial? If questionably the duty of every citizen to rethese appellees have committed crime, punish-spond to the inquires made by the census ment therefor comes only through the courts, officers and furnish the information desired. and by the recognized procedure of informa Can it be that courts can be authorized to tion or indictment. They cannot be tried by make the refusal of a citizen to furnish any the commission for any act done. such desired information a contempt of their 9] *One often-declared difference between ju- authority and to be punished as such? There dicial and legislative power is that the former is no question of the lawful power of Condetermines the rightfulness of acts done; the gress to elicit this information; possibly none latter prescribes the rule for acts to be done. as to its power to provide that a refusal to give The one construes what has been; the other the information shall be deemed a misdedetermines what shall be. As said in Cooley's Constitutional Limitations, side page 92: "In and made by the other. To do the first, therefore, to compare the claims of parties with the law of the land before established, is in its judicial act. But to do the last-to pass new rules for the regulation of new controversies-is in its nature a legislative act; and if these rules interfere with the past, or the present, and do not look wholly to the future they violate the definition of a law as 'a rule of civil conduct;" because no rule of conduct can with consistency operate upon what occurred before the rule itself was promulgated." nature 8 meanor and prosecuted and punished as such. But it seems to me to obliterate all the historic distinction between judicial and legislative or administrative proceedings to say that the courts can be called upon to punish as for a contempt of their authority a mere refusal to respond to this administrative inquiry as to facts. This question was fully considered by Mr. Justice Field, while holding the circuit court, Re Pacific R. Com. 32 Fed. Rep. 251, and the power of Congress to make the courts the mere assistants of an investigating committee was most emphatically denied. I am authorized to say that the Chief Justice and Mr. Justice Jackson concur in the views So, done in herein expressed. 155 U. S. 51 13] *JAMES HAMPDEN RƆBB and CHARLES E. STRONG, Trustees, Appts., AUGUST VOS ET AL (See S. C. Reporter's ed. 13-45.) Jurisdiction in equity-circuit court-election of remedy-ratification of agent's act-estoppel-judicial sale. 1. A court of equity is the proper tribunal to afford effectual relief against a decree obtained upon the unauthorized appearance of the attorney for the defendant therein, where the proceedings are regular upon their face, and extrinsic evidence is required to show their invalidity, 2. The circuit court of the United States may grant relief against a state judgment on equitable grounds. 3. Any decisive act by a party, with knowledge of his rights and of the facts, determines his election in the case of inconsistent remedies. 4. Ratification of an agent's act is established by the 6. Upon a judicial sale, under a decree, the purbid and upon receiving a conveyance from the master, in pursuance of the decree, becomes vest chaser, upon paying into court the amount of his ed with the title of the land so sold. [No. 38.] with her agreement with her father for her son's education from the time he became ten years of age until he became twenty-one years of age, which is now in suit No. 37,317 in the Superior Court of Cincinnati, and James Hampden Robb's claim in suit No. 37,820 in the same court, and Mrs. Ellen W. Robb's claim in suit No. 67,460 in the court of common pleas of the said county of Hamilton, are all hereby allowed by Charles A. Kebler, administrator, by and with the consent of the undersigned and at their request, as valid claims against said James Robb's estate, and shall be satisfied and discharged in the manner hereinafter provided and agreed to as to each of them, respectively, the claim of Mary Robb in suit No. 67,459, common pleas, to be also provided for and discharged as hereinafter agreed. 2. The deed which is alleged to have [15 been made by the said James Robb on or about November 14, 1879, to his daughter, Mrs. Isabella San Raman, conveying to her the tract of land near Cheviot, then owned and occupied by him, being without consideration and in consequence of his insolvency at that time wholly void as to his creditors, it is agreed by Charles A. Kebler, as administrator of said case provided and by request of the other subestate, that in pursuance of the statute in such scriber hereto he shall and will immediately bring an action for the recovery of the said land, or for the sale of said land and avoidance of the said pretended conveyance for the bene Argued March 7, 1894. Decided Oct. 15, 1894. fit of said estate and its creditors. APPEAL from a decree of the Circuit Court of the United States for the Southern District of Ohio, dismissing a suit in equity brought by James Hampden Robb et al., complainants, against August Vos et al., defendants, to set aside a decree of sale of property, etc., and for a decree that the complainants be declared to be the owners of the premises and for other relief. Affirmed. Statement by Mr. Justice Shiras: "3. Besides the outstanding debts for per Sopal and household expenses of James Robb, the cost of the monument heretofore agreed by the undersigned to be erected at Spring Grove Cemetery in memory of the said James Robb and all the proper costs and expenses of the administration of his estate and of the suit for the recovery of the land above mentioned, including the administrator's counsel's fees, shall first be paid out of the moneys now in his hands. "4. After paying the same the remaining In the year 1883, James Robb, a resident of moneys in his hands and the proceeds of the Hamilton county, Ohio, died, leaving an estate, sale of the land aforesaid, or so much as necesand James Hampden Robb, May R. Milten- sary, shall be set apart and invested for two berger, and Charlotte M. Pancoast as his sur- trust funds, as follows: One of the said funds viving children. Charles A. Kebler, an attor- shall be made sufficient to pay Mrs. Miltenberney at Cincinnati, was appointed administrator.ger the amount already due of said annuity, in Mrs. Miltenberger and Ellen W. Robb had claims against the estate. A written agreement was executed by all concerned in the following terms: "For an amicable settlement of all claims and controversy as to the estate of James Robb, deceased, late of Hamilton county, Ohio, it is mutually agreed by the undersigned as follows: "That Mrs. Miltenberger's claim for an annuity of one thousand dollars, in accordance NOTE. That ratification proves agency, see note to Bank of United States v. Dandridge, 6: 552. That ratification binds principal if made with knowledge of all the facts; assent presumed if dissent not male within reasonable time after notice, see note to Parsons v. Armor, 7: 724. That ratification of unauthorized act of agent dis charges agent's liability; but not unless made with knowledge of all facts, see note to Owings v. Hull, 9: 246. compliance with the agreement made with her ger, Ellen W. Robb, and Mary Robb, respective- | estate to one William Stix, to secure a loan of ly shall be in full satisfaction and discharge of ten thousand dollars. all their claims aforesaid as creditors of the Faid estate. "The appointment of trustees and appropriation of funds necessary and sufficient for the two trusts aforesaid shall be effected as soon as practicable by the said Charles A. Kebler, the administrator, and the parties concerned. "5. All the pictures, library, letters and papers, plate and other chattels, useful or ornamental, belonging to the said estate shall be turned over to James Hampden Robb, reserving for Mrs. Charlotte M. Pancoast some one article to be agreed upon by them, which portions of the estate shall be received and taken by the said James Hampden Robb in full satisfaction and discharge of all his claim aforesaid as a creditor of the said estate. "6. The residue, if any, of the moneys now in the administrator's hands and which shall arise from the sale of the real estate aforesaid, after providing for said trusts, and also any residue which may be left of the trust funds so set apart, after fulfilling the said trusts respectively, shall be divided and paid in four equal shares to and among the children and heirs of the said James Robb, deceased, viz, James Hampden Robb, Mrs. Isabella San Raman, Mrs. Mary R. Miltenberger, and Mrs. Charlotte M. Pancoast. "It is understood that the foregoing agree ment shall take effect immediately upon the order of the court for the sale of said real estate, and the setting aside of the deed from James Robb to Isabella San Raman herein referred to and not before. "In witness whereof the said Charles A. Kebler, administrator of the said estate, Mary R. Miltenberger, Charlotte M. Pancoast, James Hampden Robb, Ellen M. Robb, and Mary Robb have hereunto set our hands and seals in five parts interchangeably this day of June, in the year 1883." In carrying out the settlement provided for in the said agreement, ten thousand dollars in the 17] bands of the administrator*were invested in the purchase of certain pieces of real estate in the City of Cincinnati from one Moritz Loth, who conveyed the same to James Hampden Robb and Charles E. Strong, trustees, by a deed dated February 5, 1885. This deed expressed a consideration of ten thousand dollars as paid by the said Robb and Strong, as trustees, but did not define a trust or name any cestui que trust. By an instrument bearing date the same day, Robb and Strong, trustees, leased the same property to Moritz Loth during the joint life of Ellen W. Robb and Mary Robb, and during the life of the survivor, Loth, as lessee, agreeing to pay to the trustees a rent of $500, payable semi annually, and to purchase the same property, on the death of Mary and Ellen W. Robb, for the sum of $10,000. Robb and Strong, the trustees, were residents of the city of New York, and Ellen W. Robb, Mary Robb, and Moritz Loth resided in Ham ilton county, Ohio, and the deed and lease were duly recorded in that county. On March 30, 1885, Moritz Loth mortgaged bis interest in said property and in other real In November, 1885, one Meyer Guggenheim, a judgment creditor of Moritz Loth, brought an action in the court of common pleas of Hamilton county, Ohio, to subject all the real estate of Loth to the satisfaction of his judg. ment, making parties defendant a number of creditors of Loth, who held title to or liens upon the property claimed to be his, including Robb and Strong, trustees, and William Stix. A summons in that action was issued for Robb and Strong, trustees, and also for William Stix, as well as for the other defendants. On the 19th day of November, 1885, Kebler accepted service of that summons for Robb and Strong, trustees, and for William Stix, as follows: "We accept service of summons in the within cause for Charles E. Strong and James Hampden Robb, trustees, and for William Stix, this 19th November, 1885. "Kebler & Roelker, "Attorneys for above named defend- *The petition described various parcels [18 of real estate claimed to be the property of Loth, and asked that the several defendants be required to show what interest they respectively had therein, and that the liens be marshaled and priorities determined, and a sale be made. As to the parcels owned by Robb & Strong, as trustees, the petition averred that they held the property only as security, and asked that the court so find. As bearing on this averment, interrogatories were attached to the petition, requiring Robb & Strong, trustees, to state what sum of money was paid to Loth as the consideration of the conveyance to them; what indebtedness existed at the time of the conveyance in reference to said property; whether any contract existed between them and Loth in reference to the property, etc. The sheriff returned the summons: "Service accepted by Kebler & Roelker, attorneys for Charles E. Strong and James Hampden Robb, trustees, and for William Stix, as per acceptance above written." On December 18, 1885, Kebler filed the answer and cross-petition of Robb and Strong, trustees, correctly setting forth their title to the premises, and prayed that their interest be protected therein. He answered under oath the interrogatories as attorney for Robb and Strong, trustees, assigning as a reason therefor that they were non-residents of the state and absent therefrom. Kebler also filed in the same case the answer and cross-petition of said William Stix, and at a later stage of the case he filed an amended answer and cross-petition of William Stix setting up the maturity of several of the mortgage notes, breach of condition of the mortgage, and prayed a sale of the leasehoid in the premises now in controversy, and of other property mentioned in that cross-petition. To these pleadings of Stix, Kebler filed answers for Robb and Strong, trustees, which he himself swore to. On February 15,1887, he consented to an elaborate decree on the cross petition of William Stix, selling all the property described in the peti tion, and appointing George Sidney Tyler master commissioner to make the sale. That part 19] of the *decree which referred to Robb and Strong, trustees, was as follows: "And it is ordered with the consent of Henry W. Taylor, and Charles E. Strong, and James Hampden Robb, trustees, that the fee simple title of the premises described in said mortgage to William Stix be sold and said premises sold freed from the claims of Henry W. Taylor, and Charles E. Strong, and James Hampden Robb, trustees; and all other parties in this suit, their respective rights in and to said premises being transferred to and reserved in the proceeds of such sale." By proceedings under this decree, on April 16, 1887, the property in question was sold, a part thereof to August Vos and a part to William Stix, and on May 24, 1887, conveyed, by a master, to them in fee simple, Vos paying into court the amount of his bid, $9100, and Stix paying $3131.32. In the final decree of distribution it was ordered that the sum of $11,361.66, being principal and interest, should be paid over by the master to Robb and Strong, trustees, or Kebler, Roelker & Jelke, attorneys, and $7926.02 to William Stix of Kebler, Roelker & Jelke, attorneys, and those sums were paid to Charles A. Kebler, attorney. On June 23, 1887, Charles A. Kebler gave to F. G. Roelker a conveyance of lands as security for moneys due by Kebler to Roelker, and also to indemnify the latter against any loss he might sustain or liability that he might be under by reason of the partnership business of Kebler & Roelker, attorneys. On November 25, 1887, Charles A. Kebler died by his own hand, intestate and insolvent. In January, 1888, in the court of common pleas of Hamilton county, Ohio, at No. 79,812. William J. Coppock, as administrator of Charles A. Kebler, deceased. filed a petition setting forth, among other things, the death of Kebler intestate and insolvent; that there was a large amount of real estate which it was necessary to sell in order to provide means to pay debts; that certain persons had, or claimed to have, title to or liens against said real estate, etc. The minor children of Kebler and F. G. Roelker were made parties defendant. To this petition Roelker filed an answer, in which he 201 alleged the *existence of the conveyance or mortgage made to him in June, 1887, by Kebler, and that J. Hampden Robb and Charles E. Robb, as trustees, claimed to have had dealings with Charles A. Kebler, acting and professing to act as a partner of him, the said Roelker, whereby they claimed that the said partnership and the said Roelker were indebted to them; that he, the said Roelker, did not know, and was unable to state, the particulars of said transactions; that they were concealed from him by the said Charles A. Kebler during his lifetime, etc.; and that he, Roelker, if liable by reason of said transactions, was entitled to the protection of the said conveyance of June, 1887; and he further alleged that the said Robb and Strong, trustees, were necessary parties to the determination of the rights of the parties to the litigation, and asked that they be made defendants and be called upon to answer to and set up their claims, etc. In this suit Robb and Strong, trustees, appeared and filed an answer and a cross-petition, in which they set forth the particulars of their title to or interest in the lands described in their conveyance to Moritz Loth and the lease of the latter to them, and the proceedings in the Gugenheim case. In respect to that case their averments were as follows: "And these defendants further say that on said day one Myer Gugenheim, having recovered by the consideration of this court a judg. ment against the said Moritz Loth, brought suit in this court, case No.- in this court, against the said Moritz Loth, and the defendants and divers other persons, praying, among other things, that these defendants may be declared to hold said lands by way of mortgage as security for the said purchase price on said lands of $10,000, and that said lands might be free from the claim of these defendants and all other persons parties thereto to satisfy the said judgment of the said Meyer Gugenheim and the claims of divers persons therein made defendants. "And these defendants further say that thereafter, to wit, on the 18th day of December, 1885, Charles A. Kebler and Frederick G. Roelker, then partners engaged in the practice of law under the firm name and style of Kebler & Roelker, of the *city of Cin- [21 cinnati, entered the appearance of these defendants in such cause and filed an answer therein on behalf of these defendants; further say therefore, to wit. upon the 10th day of May, 1887, said firm of Kebler & Roelker was dissolved, and Charles A. Kebler, Frederick G. Roelker, and Ferdinand Jelke, Jr., entered into a partnership and engaged in the practice of law in the city of Cincinnati under the firm name and style of Kebler, Roelker & Jelke, as the successors of said firm of Kebler & Roelker, and these defendants say that thereafter all steps in said cause on behalf of these defendants were taken by said firm of Kebler, Roelker & Jelke, and by none others; and these defendants further say that such proceedings were afterwards had in said cause that the said premises were sold, free of the claims of these defendants and of all other persons whoever, by one George Sidney Tyler, who was appointed special master commissioner by this court in said cause for the purpose of making such sale, and said proceedings were thereafter had in said cause that a decree was made in said cause on the 19th day of May, 1887, whereby it was ordered, adjudged, and decreed that said George Sidney Tyler, special master commissioner in said cause, pay to these defendants or their counsel, Kebler, Roelker & Jelke, out of the proceeds of said sale, the sum of $11,361; and these defendants further say that said sum was duly paid on the 16th day of June, 1887, to said firm of Kebler, Roelker & Jelke by said George Sidney Tyler, special master commissioner, as ordered by the decree of said court, and that no portion thereof has been paid to these defendants or accounted for to them; and these defendants further say that since which time, to wit, on the 23rd day of November, 1887, Charles A. Kebler departed this life, and that Frederick G. Roelker and Ferdinand Jelke, Jr., are the surviving said Frederick G. Roelker, and one Ferdinand Jelke, Jr., entered into a partnership and engaged in the practice of the law in said city of Cincinnati, under the firm name and style of Kebler, Roelker & Jelke, as successors to the said firm of Kebler & Roelker; and these plaintiffs further say that thereafter all steps in said cause purporting to be on behalf of these plaintiffs were taken in the name of the said firm of Kebler, Roelker & Jelke. partners of said firm. Wherefore these de- | dissolved, and the said Charles A. Kebler, the fendants pray that said Ferdinand Jelke, Jr., may be made party defendant hereto and that it may be adjudged that these defendants are creditors of said firm of Kebler, Roelker & Jelke, and that the property in the petition and cross-petition of Frederick G. Roelker sought to be sold may be sold, and that out of the 22] proceeds thereof said sum $11,361, *with interest from the 16th day of June, 1887, may be paid to these defendants, and that these defendants may recover judgment against Frederick G. Roelker and Ferdinand Jelke, Jr., as surviving partners of Kebler, Roelker & Jelke, for said sum of $11,361, with interest from the 16th day of June, 1887, and for their costs." "And these plaintiffs further say that all steps taken in said cause at any time purporting to be on behalf of these plaintiffs were taken without the knowledge of these plaintiffs and without any authority from these plaintiffs; and these plaintiffs say that all orders, decrees, and judgments entered in said cause purport to have been entered by and with the consent of these plaintiffs, but that the same were entered by the said Kebler, Roel Subsequently, on May 17, 1888, Robb and Strong, trustees, obtained leave of court to withdraw their said answer and cross-petition, and filed a demurrer on the ground that they were not proper parties to the case, which de-ker & Jelke, and without the knowledge, conmurrer was sustained by the court, and Robb and Strong were, on May 26, 1888, dismissed with their costs. On May 12, 1888, Robb and Strong, trustees, at No. 43,368 of the superior court of Cincinnati, Hamilton county, Ohio, brought a suit against August Vos and William Stix. In the petition, after reciting the conveyance by themselves to Moritz Loth and the lease of the latter to them, they set forth the proceedings in the Gugenheim case, and allege as follows: "And the plaintiffs further say that on said day one Meyer Gugenheim, having recovered by the consideration of the Court of Common Pieas of Hamilton county, O., a judgment against the said Moritz Loth, brought suit in the said court of common pleas, numbered 74,375 in the said court, against the said Moritz Loth and these plaintiffs and divers other persons, praying, among other things, that these plaintiffs might be declared to hold said lands by way of mortgage as security for the said purchase price of said lands of $10,000, and that the said lands might be sold free from any claims of these plaintiffs and all other persons parties thereto, to satisfy the judgment of the said Meyer Gugenheim and the claims of the divers other persons therein made defendants. "And these plaintiffs further say that in said cause no summons or other process was ever issued for these plaintiffs (who then were and ever since have been non-residents of Ohio) and no advertisement was ever made for these plaintiffs, and that they had no notice of said proceedings; and these plaintiffs further say that thereafter, to wit, on the 18th day of December, 1885, one Charles A. Kebler, then en231 gaged in the practice of the law with one Frederick G. Roelker, under the firm name and style of Kebler & Roelker, in the said city of Cincinnati, did, without authority from the plaintiffs and without their knowledge, enter the appearance of these plaintiffs in said case, and did file an answer therein on behalf of these plaintiffs, using for that purpose said firm name of Kebler & Roelker. And these plaintiffs further say that thereafter, to wit, prior to the 11th day of May, 1887, the said firm of Kebler & Roelker was sent, or the authority of these plaintiffs, and that these plaintiffs had no knowledge of said cause or the institution thereof, or of any proceeding therein, until December 2, 1887, being long after the conveyance of said lands to the purchasers thereof, in pursuance of the pretended sale made in said case. "And these plaintiffs further say that such proceedings were had in said cause No. 74,375, that the said premises were sold by one George Sydney Tyler, who was appointed special master commissioner by said court of common pleas for the purpose of making said sale of property, and that said special master commissioner purported to make said sale free of the claims of these plaintiffs and of all other persons *whatever parties to said cause, and [24 that the said parcels of land were purchased, respectively, at said sale by the said August Vos, purchasing lots numbered 3, 4, and 5, hereinbefore described, of the subdivision of the tract of land on the west side of Vine street, 100 feet front and extending back westwardly 132 feet, of the same width in front as in rear, and the said William Stix purchasing the other lots hereinbefore described, to wit, all those parts of lots 2, 4, and 5, of block 12 of Findlay and Ludlow subdivision, hereinbefore described. "And these plaintiffs further say that in said cause numbered 74,375 a decree was made on the 19th of May, 1887, whereby it was ordered, adjudged, and decreed that the said George Sydney Tyler, special master commissioner in said case, pay to these plaintiffs, or to Kebler, Roelker & Jelke, purporting to be their attor neys in said cause, out of the proceeds of said sale, the sum of $11,361.66. "And these plaintiffs further say that thereafter, on the 16th day of June, 1887, the said George Sydney Tyler, special master commis sioner, as ordered by the decree of said court, but without the knowledge and consent of these plaintiffs and without their authority, did pay to the said Kebler, Roelker & Jelke, and the said Kebler, Roelker & Jelke received, the said sum of $11.361.66, and that no portion of the said sum has been received by these plaintiffs or been accounted to for them. "And these plaintiffs say that they were never parties to said cause in law or in fact, |