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Dissenting Opinion: Field, J

to hesitate in declaring that in no respect can it be deemed an impartial tribunal, however honest its members may personally be, to determine the compensation which the owners of the water delivered to the city and its inhabitants should receive. Interested as its members are, as consumers of the water, as agents of the city, also a large consumer, and elected by constituents, every one of whom is a daily consumer, it is wanting in every essential particular to render it, in a legal sense, an impartial tribunal. If, therefore, as I have attempted to show, and I think have shown, the water of the plaintiff is its property, and when it is taken under the law of the State for public use, the plaintiff is entitled to just compensation, that board is incompetent to act in determining what that compensation shall be. It is difficult to conceive of any tribunal more liable to be controlled by external influences against the interests of the company.

Upon the action of the supervisors with reference to all other matters, it has been found necessary, for the protection of the public, to impose numerous restrictions. Without them, improvident contracts on behalf of the city and county would be made, extravagant schemes of supposed improvement undertaken, and its treasury be depleted. And yet this body, which, without any imputation upon the personal integrity of its members, but out of regard to the common weakness of humanity, the community will not trust in other matters without guards against its improvidence, and which is exposed to every influence which can warp its judgment and pervert its action, is allowed almost unlimited control over the property of the plaintiff and the compensation to be paid for it, and respecting which the plaintiff is not permitted to be heard except as a matter of favor.

So in every aspect in which this case can be exhibitedwhether we regard the contract contained in the act of 1858, or treat the compulsory delivery of the property as a taking of it for public use-there is no feature in the acts authorized by the new Constitution with respect to its property which does not violate the constitutional rights of the plaintiff. In the enforced sale of its property at prices to be fixed by the agents

Opinion of the Court.

of the consumers, the line is passed which separates regulation from spoliation.

For the reasons thus stated I cannot assent to the judgment of the court.

HOWARD COUNTY v. PADDOCK.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI.

Argued January 22d, 1884.-Decided February 4th, 1884.

Missouri-Municipal Bonds-Municipal Corporation.

The Louisiana and Missouri Railroad, through Howard County, Missouri, was constructed under authority derived from the original charter granted in 1859, and the power conferred by that act upon the county to subscribe to the capital stock of the railroad company without a vote of the people was not affected by the amendment to the Constitution in 1865. Callaway Compty v. Foster, 93 U. S. 567, affirmed and followed.

Mr. John D. Stevenson for plaintiff in error.

Mr. John H. Overall for defendant in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. It was conceded on the argument of this case that under the original charter of the Louisiana and Missouri River Railroad Company granted in 1859, Howard County had authority to subscribe to the capital stock of the company without a vote of the people, and that this authority was not taken away by the Constitution of 1865. The claim is, however, that the amending act of 1868 so changed the original charter as to subject it to the prohibitions of the Constitution as to municipal subscriptions made after that act was passed and accepted by the company. As to this it is sufficient to say that in County of Calla way v. Foster, 93 U. S. 567, it was decided otherwise. By the act of 1868 power was given to build a branch through Callaway County, and to extend the road across the Missouri River, but no change was made in the direction of the main line.

Opinion of the Court.

That was left to the discretion of the directors, who retained their original authority to build through Howard County on the way to the Missouri. The original authority of Howard County to subscribe to the stock was consequently unimpaired. The fact that the branch through Callaway County was located, and the subscription of that county received, before Howard County made its subscription, is unimportant in this case, because the line through Callaway County was located as a branch, while that through Howard County was designated in express terms as the main line. If either part of the road was built under new authority conferred on the company by the act of 1868, it certainly was not the main line as located. The power to build the main line was clearly conferred by the act

of 1859.

It follows that the judgment of the Circuit Court was right, and it is consequently

Affirmed.

EX PARTE CLODOMIRO COTA.

ON CERTIFICATE OF DIVISION OF OPINION FROM THE DISTRICT OF CALIFORNIA.

Submitted January 22d, 1884.-Decided February 4th, 1884.

Division of Opinion—Jurisdiction.

This court cannot take jurisdiction of a certificate of division in opinion in proceedings under writ of habeas corpus, until entry of final judgment, Ex parte Tom Tong, 108 U. S. 556-approved and followed.

Mr. Assistant Attorney-General Maury for the United States.

No counsel appeared for Clodomiro Cota.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. It was decided at the last term in Ex parte Tom Tong, 108 U. S. 556, that this court could not take jurisdiction of a certificate of division in opinion between the judges of a Circuit Court

VOL. CX-25

Opinion of the Court.

in proceedings under a writ of habeas corpus until final judg ment had been rendered in accordance with the opinion of the presiding justice or judge. This is such a case, and it is consequently remanded to the Circuit Court for further proceedings according to law.

WEBSTER & Another v. BUFFALO INSURANCE COMPANY.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

Argued January 24th, 1884.- Decided February 4th, 1884.

Jurisdiction.

When the pleadings plainly show that a sum below the jurisdictional amount is in controversy, the court cannot accept a stipulation of the parties that judgment may be entered for a sum in excess of that amount.

The case is stated in the opinion of the court. The question of jurisdiction, decided in the case, was not raised by the parties, but was suggested by the court of its own motion during the argument.

Mr. Jefferson Chandler for plaintiffs in error.

Mr. O. B. Sansum for defendant in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This is a suit upon an open cargo policy of insurance issued by the Buffalo Insurance Company to the firm of Webster, Heinicke & Coglin "on shipments of merchandise to them at St. Louis, they stipulating to report all such shipments and modes of transit to this office as soon as advised thereof." The aggregate amount of the company's liabilities under the policy was in no case to exceed $5,000 on one vessel at any one time, unless special arrangements were mutually agreed upon for amounts exceeding that sum. One of the conditions of the

Opinion of the Court.

policy was that, "in case of total loss, the adjustments of the same shall be made upon the valuations specified in the policy, if any; but in the absence of a valuation, then upon the invoice price, without reference to the market value of the article insured."

The allegation of Webster & Coglin in their pleading is, that:

"On the 26th day of February, 1879, they notified defendant at its office in said city of St. Louis of the shipment to them at the said city of St. Louis, from the port of Liverpool, England, on some steamboat whose name was then unknown to said firm, of the merchandise mentioned in the plaintiffs' petition, and re-. quested defendant to enter said shipment on defendant's books at the valuation of four thousand dollars, and then and there delivered to defendant a written and printed application for entering said merchandise under said policy upon a blank form furnished by defendant therefor. Whereupon the defendant, by and through their agents. accepted said notice, and then and there agreed to accept said risk for said firm under said policy of insurance and to cover the merchandise mentioned in plaintiffs' petition under said policy in the sum of four thousand dollars."

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The goods were lost on the voyage, and this suit was begun on the 1st of May, 1879. The further allegation is that the goods were worth $5,010, and a judgment is asked for that amount. The defence is that the policy did not include the ocean risk, and was limited to "river cargo." and nothing else.

On the 23d of April, 1880, the following stipulation was filed in the cause:

"The plaintiffs and defendants agree that the value of the merchandise described in the plaintiffs' said petition is the sum of $4,800, and that upon the trial of this cause neither party shall give any evidence as to said value. Also, that if the court shall be of opinion that the plaintiffs are entitled to judgment, the judgment shall be entered for the sum of $5,010. But this agreement is expressly limited to the single fact of value, and is not to

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