"Be it remembered, that, on this 5th day of | 2 Heisk., 404. And such is the rule laid down February, 1872, before me, Charles Nettleton, by this court. Carpenter v. Dexter, 8 Wall., a commissioner, resident in the City of New 513 [75 U. S., XIX., 426]. The certificate here York, duly commissioned and qualified by the in question sets forth: Before me," etc., "perexecutive authority and under the laws of the sonally appeared Ex. Norton, the President of State of Tennessee, to take acknowledgments the Paducah and Memphis Railroad Co., and of deeds, etc., to be used or recorded therein, Henry L. Jones, the secretary of the same compersonally appeared Ex. Norton, the President pany, who are personally known to me to be of the Paducah and Memphis Railroad Com-such, and," etc. To be "personally acquainted pany, and Henry L. Jones, the Secretary of said with," and to know personally," are equivacompany, who are personally known to me to lent phrases. Upon looking into the paragraph be such; and who, being by me duly sworn, just quoted, two points are found to be salient. did depose and say that he, the said Ex. Nor- It is certified (1) that the parties named apton, resided in the City, County and State of peared in person; (2) that they were personally New York; that he, the said Henry L. Jones, known to the commissioner to be the incumresided in Paducah, in the State of Kentucky; bents of the offices specified. He might have that he, the said Norton, was President of the known them to be the latter, by information desaid Paducah and Memphis Railroad Company; rived from various sources, without personal that he, the said Jones, was Secretary of the said knowledge upon the subject. Such knowledge company; that they knew the corporate seal of is independent, and complete in itself. It might said company; that the seal affixed to the fore-exist with or without other information. Pergoing instrument, purporting to be the corpo-sonal knowledge to the extent certified necesrate seal of said company, was such corporate seal; that it was affixed thereto by order of the Board of Directors of said company, and that they signed their names thereto by the like or der, as the president and secretary of said company, respectively; and the said Ex. Norton and Henry L. Jones also acknowledged to me that they executed said instrument as their act and deed, and the act and deed of said company, for the uses and purposes therein mentioned. And, at the same time and place, before me, also personally appeared Philo C. Calhoun and L. H. Meyer, also parties to the foregoing instrument, with each of whom I am personally acquainted, who severally acknowledged that they executed the within instrument, for the purposes therein mentioned." The law of Tennessee requires deeds for the conveyance of lands, "in what manner or form soever drawn," to be "acknowledged by the maker, or proved by two subscribing witnesses, at least." Code, secs. 2005-2038. Where the instrument is acknowledged, the prescribed formula, omitting the caption, is: "Personally appeared before me, clerk (or deputy clerk) of the county court of said county, the within-named bargainor, with whom I am personally acquainted, and who acknowledged that he executed the within instrument, for the purposes therein contained." Sec. 2042. If the acknowledgment be taken without the State, by one of the officers designated in section 2043, the same formula must be followed. Bone v. Greenlee, 1 Coldw., 29; Mullins v. Aiken, 2 Heisk., 535. sarily included the personal identity of the officers, as well as the incumbency of their offices. A defect of such knowledge as to either point would be inconsistent with the language used, and falsify the certificate. It can hardly be doubted that the paragraph was meant to cover both points. It is a reasonable and necessary construction to give it that effect. Indeed, it involves no straining to hold that the phrase "personally known to me to be such," applies proprio vigore to those named, alike individually and officially; in other words, that the certifier meant that he personally knew them to be such individuals and such officers. The certificate was evidently drawn with studied deliberation. It seems to have been intended to meet the requirements of the law, both as to proof of execution and acknowledgment without proof. In the latter aspect, we hold the certificate to be sufficient. In the former, we have, therefore, no occasion to consider it. Instruments like this should be construed, if it can be reasonably done, ut res magis valeat quam pereat. It should be the aim of courts, in cases like this, to preserve and not to destroy. Sir Matthew Hale said they should be astute to find means to make acts effectual, according to the honest intent of the parties. Roe v. Tranmarr, Willes, 682. The second proposition relied upon by the counsel for the appellees, relates to the filing of their bill and the lis pendens before the judg ments of the interveners were recovered. The conclusion at which we have arrived as to the certificate, renders it unnecessary to consider this subject. Otherwise, it would require grave consideration. The decree of the Circuit Court is affirmed. There is no statutory provision in Tennessee as to the execution or acknowledgment of deeds by corporations. In such cases, the officer affixing the seal is the party executing the deed, within the meaning of the statutes requiring deeds to be acknowledged by the grantor. Lovett v. Steam Saw-Mill Asso., 6 Paige, 54. In the formula we have quoted, both the phrases" per- UNITED STATES ex rel. WILLIAM A. JOHNSsonally appeared" and "with whom I am personally acquainted," are found. It has been held by the Supreme Court of the State that the latter means more than the former, and that personal knowledge is indispensable. But it has been also held that a substantial compliance (See S. C., "U. S. v. County of Clark," 5 Otto, 769–774.) with the statute is all that is required. John COUNTY TON, Piff. in Err., v. COURT OF CLARK COUNTY AND THE JUSTICES THEREOF. son v. Walton, 1 Sneed, 258; Fall v. Roper, 3 Tax to pay county bonds—power of county court Head, 485; see, also, Farquharson v. McDonald, -mandamus to state officers. 1. So long as county bonds remain unissued, a tax to pay them is unauthorized. 2. The fact that the bonds, when delivered, had coupons for interest attached to them, which, apparently, had accrued prior to their delivery, could not enlarge the power of the county court, to levy in any year more than one special tax authorized for that year. 3. A court will not by mandamus compel county officers of a State to do what they are not authorized to do by the laws of the State. [No. 102.] Submitted Nov. 20, 1877. Decided Jan. 7, 1878. Circuit Court of the United ments in this case and in other cases on coupons of bonds of the same issue, and also to the interest on the other bonds of the same issue, and that the respondents cause to be levied from year to year the same per cent, on assessed values, until the pro rata portion thereof applicable to the judgment, interest and costs in this case is paid. The relator sued out this writ of error. Messrs. Jas. & Wm. Grant and J. D. S. Dryden, for plaintiff in error. Messrs. Geo. W. McCrary, James O. Broad IN ERROR to the Osteunt District of Missouri. head and Samuel N. Holliday, for defendants William A. Johnston filed his petition in the court below for a writ of mandamus to be directed to the County Court of Clark County, Missouri and the Justices thereof, commanding them to levy and collect a tax of one twentieth of one per cent. for the years 1871, 1872, 1873 and 1874, and each following year, and apply a pro rata share thereof on the petitioner's judgment, and to levy the residue of a five mill tax for the year 1874 and each succeeding year, and collect and apply the same until his judgment should be extinguished. The petition represented that June 6, 1874, the petitioner had recovered a judgment in the circuit court upon certain bonds which were executed and delivered by Clark County, June 1, 1871, by order of the County Court pursuant to the charter of the Missouri and Mississippi Railroad Company; that by section 14 of that charter, the County Court was authorized and empowered to levy a tax of one twentieth of one per cent. upon the assessed value of taxable property for each year after the issue of said bonds; that the County was also authorized to levy a tax of one half of one per cent. yearly on the taxable property of the County to pay the debts and expenses of said County. The petition further represented that for the year 1874, the County Court had levied a tax for county purposes of only four mills on a dollar; that, for the years 1873 and 1874 the County Court had neglected to levy one twentieth of one per cent. or any other sum, to pay the interest on the bonds upon which the judgment was recovered; that execution had issued on the judgment, and returned "No property found; " that a demand had been made on the County Court to levy and collect taxes to pay the judgment, and the County Court had neglected so to do. An alternative writ of mandamus issued, com manding the County Court to levy and collect a tax of one twentieth of one per cent. for the years 1872, 1873 and 1874, and each of the following years, and to levy the residue of the five mill tax for the year 1874 and each succeeding year, and to collect and apply the same, etc. The defendants made return to this alternative writ of mandamus, setting up facts which are sufficiently stated in the opinion of the court. The plaintiff demurred, and the court ordered that a peremptory writ issue, commanding the defendants to cause a tax levy to be made for the year 1873 on the assessment of that year, to the extent of one twentieth of one per cent., and for the year 1875, on the assessment of that year at the same rate; the proceeds thereof to be applied pro rata to the amount of the judg NOTE.-Mandamus to compel city, town or county to levy tax to pay bonds or interest on bonds. See note to The Mayor v. U. S., 76 U. S., XIX., 704. in error. Mr. Justice Strong delivered the opinion of the court: The judgment of the circuit court was correct. The return of the defendants to the alternative writ set up a complete defense, and its averments of fact are admitted by the demurrer of the United States. It is then, for the purposes of this case, an established fact that the county bonds held by the relator, and the coupons upon which his judgment was obtained, were not issued and, therefore, did not become a debt of the County until January 1, 1874. Until they were issued, they imposed no liability upon the obligor; and until the liability arose, there was no obligation resting on the County Court to levy the tax of one twentieth of one per cent. authorized by the charter of the Missouri and Mississippi Railroad Company. That tax was allowed for a specific purpose, which was to provide means for the payment of the bonds which might be issued for the payment of the County's subscription to the capital stock of that company. So long as the bonds remained unissued, the tax remained unauthorized. There never was, therefore, any authority given by law for the levy of that special tax for the years 1872 and 1873. The fact that the bonds, when delivered in 1874, had attached to them coupons for interest, apparently accrued prior to their delivery, could not enlarge the power conferred by the Act of the Legislature or confer upon the County Court authority to levy in any year more than one special tax of one twentieth of one per cent. It need not be said that no court will by mandamus compel county officers of a State to do what they are not authorized to do by the laws of the State. A mandamus does not confer power upon those to whom it is directed. It only enforces the exercise of power already existing, when its exercise is a duty. The circuit court was, therefore, right in refusing to order a peremptory mandamus to levy and collect the special tax for the years 1872 and 1873, and in directing it only for the subsequent years. There was also no error in refusing to order the writ to enforce the levy and collection of other taxes. The County Court has, by law, no power to levy a tax (in addition to the special tax allowed by the charter of the Missouri and Mississippi Railroad Company), exceeding the rate of one half of one per cent. of the valuation of the taxable property; and the return to the alternative writ avers, that, for the year 1874, a county tax of one half of one per cent. had been fully levied and collected. If this was so, and the demurrer admits it, the County Court was in no default in this particular; and as the petition for the mandamus was presented in 1874, before any default in levying a tax, a more favorable judgment on the demurrer could not have been given for the relator, than the court gave. The judgment must, therefore, be affirmed. In thus deciding, we are not to be understood as maintaining all that is averred in the defendants' return to the alternative writ. We do not assert that the relator is without remedy against the County, or that his remedy is restricted to a resort to the proceeds of the special tax. It is enough for this case that the judgment of the circuit court was correct on the pleadings. The judgment is affirmed. ELIZA JANE HALL, Admrx. of the Estate of JOHN G. BENSON, Piff. in Err., v. JOSEPHINE DE CUIR. (See S. C., 5 Otto, 485-517.) "Section 4. For a violation of any of the provisions of the first and second sections of this Act, the party injured shall have a right of action to recover any damage, exemplary as well as actual, which he may sustain, before any court of competent jurisdiction." (Acts of 1869, p. 37; R. S. 1870, p. 93). Benson (the defendant below) was the master and owner of The Governor Allen, a steamboat enrolled and licensed under the laws of the United States for the coasting trade, and plying as a regular packet for the transportation of freight and passengers between New Orleans, in the State of Louisiana, and Vicksburg, in the State of Mississippi, touching at the intermediate landings both within and without Louis State laws affecting interstate commerce-Louisiana, as occasion required. The defendant in iana law. Mr. Chief Justice Waite delivered the opinion of the court: 66 By the Constitution of Louisiana (art. 13) it is provided that "All persons shall enjoy equal rights and privileges upon any conveyance of a public character." And by an Act of the General Assembly, approved February 23, 1869, to enforce this article, it was enacted as follows: Section 1. All persons engaged within this State, in the business of common carriers of passengers, shall have the right to refuse to admit any person to their railroad cars, street cars, steamboats, or other water-craft, stage-coaches, omnibuses, or other vehicles, or to expel any person therefrom after admission, when such person shall, on demand, refuse or neglect to pay the customary fare, or when such person shall be of infamous character, or shall be guilty, after admission to the conveyance of the carrier, of gross, vulgar or disorderly conduct, or who shall commit any act tending to injure the business of the carrier, prescribed for the management of his business, after such rules NOTE.-Power of Congress to regulate commerce; state licenses; power of State to tax commerce. See note to Gibbons v. Ogden, 22 U. S. (9 Wheat.), 1; and note to Brown v. Maryland, 25 U. S. (12 Wheat.), 419. error (plaintiff below), a person of color, took passage upon the boat, on her trip up the river from New Orleans, for Hermitage, a landingplace within Louisiana, and being refused accommodations, on account of her color, in the cabin specially set apart for white persons, brought this action in the Eighth District Court for the Parish of New Orleans, under the provisions of the Act above recited, to recover damages for her mental and physical suffering on that account. Benson, by way of defense, insisted among other things, that the statute was inoperative and void as to him, in respect to the matter complained of, because, as to his business, it was an attempt to "regulate commerce among the States and, therefore, in conflict with article I, section 8, paragraph 3, of the Constitution of the United States. The District Court of the parish held that the statute made it imperative upon Benson to admit Mrs. De Cuir to the privileges of the cabin for white persons, and that it was rot a regulation of commerce among the States and, therefore, not void. After trial, judgment was given against Benson for $1,000; from which he appealed to the Supreme Court of the State where the rulings of the District Court were sustained. This decision of the Supreme Court is here for re-examination under section 709, R. S. For the purposes of this case, we must treat the statute, as requiring those engaged in interstate commerce to give all persons traveling in Louisiana, upon the public conveyances em ployed in such business, equal rights and privileges in all parts of the conveyance, without distinction or discrimination on account of race or color. Such was the construction given to that Act in the courts below, and it is conclusive upon us as the construction of a state law by the state courts. It is with this provision of the statute alone that we have to deal. We have nothing whatever to do with it as a regulation of internal commerce, or as affecting anything else than commerce among the States. There can be no doubt but that exclusive | sarily influence his conduct to some extent in power has been conferred upon Congress in re- the management of his business throughout his spect to the regulation of commerce among the entire voyage. His disposition of passengers several States. The difficulty has never been taken up and put down within the State, or as to the existence of this power, but as to taken up within to be carried without, cannot what is to be deemed an encroachment upon it; but affect, in a greater or less degree, those taken for, as has been often said, "Legislation may up without and brought within, and sometimes in a great variety of ways affect commerce and those taken up and put down without. A paspersons engaged in it without constituting a senger in the cabin set apart for the use of regulation of it within the meaning of the Con- whites without the State must, when the boat stitution." Sherlock v. Alling, 93 U. S., 103 comes within, share the accommodations of [XXIII., 820]; State Tax on R. Gross Receipts, that cabin with such colored persons as may 15 Wall., 284 [82 U. S., XXI., 164]. Thus, come on board afterwards, if the law is enin Munn v. Illinois [ante, 77], it was decided forced. that a State might regulate the charges of pub- It was to meet just such a case that the comlic warehouses, and in R. R. Co. v. Iowa [ante, mercial clause in the Constitution was adopted. 94], of railroads situate entirely within the The River Mississippi passes through or along State, even though those engaged in commerce the borders of ten different States, and its trib among the States might sometimes use the utaries reach many more. The commerce upon warehouses or the railroads in the prosecution these waters is immense, and its regulation of their business. So, too, it has been held that clearly a matter of national concern. If each States may authorize the construction of dams State was at liberty to regulate the conduct of and bridges across navigable streams situate carriers while within its jurisdiction, the conentirely within their respective jurisdictions. fusion likely to follow could not but be proWillson v. Blackbird Cr. M. Co., 2 Pet.. 245; ductive of great inconvenience and unnecessary Pound v. Turck, not yet reported [ante, 525], hardship. Each State could provide for its p. 459; Gilman v. Philadelphia, 3 Wall., 713 own passengers and regulate the transportation [70 U. S., XVIII., 96]. The same is true of of its own freight, regardless of the interests of turnpikes and ferries. By such statutes the others. Nay more, it could prescribe rules by States regulate, as a matter of domestic concern, which the carrier must be governed within the the instruments of commerce situated wholly State in respect to passengers and property within their own jurisdictions, and over which brought from without. On one side of the they have exclusive governmental control ex- river or its tributaries he might be required to cept when employed in foreign or interstate com- observe one set of rules, and on the other anmerce. As they can only be used in the State, other. Commerce cannot flourish in the midst their regulation for all purposes may properly of such embarrassments. No carrier of pasbe assumed by the State, until Congress acts sengers can conduct his business with satisfacin reference to their foreign or interstate rela- tion to himself, or comfort to those employing tions. When Congress does act, the state laws him, if, on one side of a state line, his passengers, are superseded only to the extent that they af- both white and colored, must be permitted to fect commerce outside the State as it comes occupy the same cabin, and on the other be within the State. It has also been held that kept separate. Uniformity in the regulations health and inspection laws may be passed by by which he is to be governed from one end to the States, Gibbons v. Ogden, 9 Wheat., 1; and the other of his route is a necessity in his busi that Congress may permit the States to regulate ness, and to secure it Congress, which is unpilots and pilotage until it shall itself legislate trammeled by state lines, has been invested upon the subject, Cooley v. Bd. of Wardens, 12 with the exclusive legislative power of deterHow., 299. The line which separates the pow-mining what such regulations shall be. If this ers of the States from this exclusive power of Congress is not always distinctly marked, and oftentimes it is not easy to determine on which side a particular case belongs. Judges not unfrequently differ in their reasons for a decision in which they concur. Under such circumstances it would be a useless task to undertake to fix an arbitrary rule by which the line must in all cases be located. It is far better to leave a matter of such delicacy to be settled in each case upon a view of the particular rights involved. But we think it may safely be said that state legislation which seeks to impose a direct burden upon interstate commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of Congress. The statute now under consideration, in our opinion, occupies that position. It does not act upon the business through the local instruments to be employed after coming within the State, but directly upon the business as it comes into the State from without or goes out from within. While it purports only to control the carrier when engaged within the State, it must neces statute can be enforced against those engaged in interstate commerce, it may be as well against those engaged in foreign; and the master of a ship clearing from New Orleans for Liverpool, having passengers on board would be compelled to carry all, white and colored, in the same cabin during his passage down the river, or be subject to an action for damages, "exemplary as well as actual," by anyone who felt himself aggrieved because he had been excluded on account of his color. This power of regulation may be exercised without legislation as well as with it. By refraining from action, Congress, in effect, adopts as its own regulations those which the common law or the civil law, where that prevails, has provided for the government of such business, and those which the States, in the regulation of their domestic concerns, have established affecting commerce, but not regulating it within the meaning of the Constitution. In fact, congressional legislation is only necessary to cure de fects in existing laws, as they are discovered, and to adapt such laws to new developments of trade. As was said by Mr. Justice Field, speak ing for the court in Welton v. Missouri, 91 U. S., | does not contain room or suitable accommoda282 [XXIII., 350], "Inaction [by Congress] ** tions for the purpose, and they may refuse to is equivalent to a declaration that interstate admit an applicant, or expel him or her after commerce shall remain free and untrammeled." admission, if the applicant refuses to pay fare, Applying that principle to the circumstances or is of infamous character, or is guilty, in the of this case, congressional inaction left Ben- conveyance, of gross, vulgar or disorderly conson at liberty to adopt such reasonable rules duct, or shall commit any act in violation of and regulations for the diposition of passengers the known rules and regulations of such carrier upon his boat, while pursuing her voyage with- tending to injure his business, provided such in Louisiana or without, as seemed to him most rules and regulations make no discrimination for the interest of all concerned. The statute on account of race or color. Such rules and under which this suit is brought, as construed regulations as are there authorized must be duly by the State Court, seeks to take away from made known to the public in order to be operahim that power so long as he is within Louisi- tive, and they must not deny to the applicant ana; and while recognizing to the fullest extent any right or privilege on account of race, color, the principle which sustains a statute, unless its or previous condition of servitude. unconstitutionality is clearly established, we think this statute, to the extent that it requires those engaged in the transportation of passengers among the States to carry colored passengers in Louisiana in the same cabin with whites, is unconstitutional and void. If the public good requires such legislation, it must come from Congress and not from the States. We confine our decision to the statute in its effect upon foreign and interstate commerce, expressing no opinion as to its validity in any other respect. The judgment of the Supreme Court of Louisi ana is reversed and the cause remanded, with instructions to reverse the judgment of the District Court, and direct such further proceedings in conformity with this opinion as may appear to be necessary. Mr. Justice Clifford concurred in the judgment, and delivered the following opinion: Power to regulate commerce is, by the Constitution, vested in Congress; and it is well settled law that the word "commerce" as used in the Constitution comprehends navigation, which extends to every species of commercial intercourse between the United States and foreign nations, and to all commerce in the several States, except such as is completely internal, and which does not extend to or affect the other States. Tonnage Tax Cases, 12 Wall., 204 [79 U. S., XX., 370]. Beyond all doubt, the power as conferred includes navigation as well as traffic, and it is equally well settled that it extends to ships and vessels exclusively employed in conveying pas sengers as well as to those engaged in transporting goods and merchandise. Gibbons v. Ogden, 9 Wheat., 1. Equality of right and privilege is guarantied by the State Constitution to every person in the State transported in the vehicles or water craft of a common carrier of passengers, in the words following, to wit: "All persons shall enjoy equal rights and privileges upon any conveyance of a public character." Rules and regulations to enforce that provision have been enacted by the State Legislature, as fully set forth in the transcript. Sess. L. La. (1869), 37. Common carriers of the kind, it is conceded, may adopt rules and regulations for the management of their business, not inconsistent with the State Constitution and the enactment of the State Legislature. By the terms of that enact ment they may refuse to admit persons to such conveyance when the vehicle or water-craft See 5 OTTO. U. S., Book 24. Sufficient appears to show that the plaintiff is a person of color, and that the defendant is the master and owner of the steamer, which is a packet vessel duly enrolled and licensed for the coasting trade, and that the vessel was engaged in carrying passengers and cargo between the Port of New Orleans in the State of Louisiana and the Port of Vicksburg in the State of Mississippi; that the steamer has two cabins for the accommodation of passengers, conveniently arranged one above the other; that the upper is assigned to white persons and that the lower is assigned to persons of color, both being constructed with state-rooms, cabin, and a hall used as a dining-room where meals are furnished; that the plaintiff, being at the time in New Orleans and desiring to visit her plantation in another parish of the same State, went on board the steamer to secure her passage to the proper landing near her plantation; that the clerk of the steamer to whom she applied for a passage in the upper cabin, having previously informed her agent that he could not give her a passage in that cabin, refused her request, telling her at the same time that he would give her a passage in the lower cabin; that the plaintiff declined to accept a berth in the lower cabin, and that she passed the night during which she remained on board sitting in a chair, in what is known as the recess back of the upper cabin. Both parties concede that the steamer was engaged in one of her regular trips from New Orleans to Vicksburg, and it appears that the plaintiff took passage for the landing called the Hermitage, and that on arriving there she paid $5 fare, which is the regular fare to that landing for persons whose passage is in the lower cabin, and that it was $2 less than the regular fare for persons whose passage is in the upper cabin. Proof of a decisive character is exhibited that the plaintiff applied for a berth in the upper cabin, which was refused, and that she declined to accept one in the lower cabin, which by the rules and regulations of the steamer is assigned for persons of color. Based upon these undisputed facts, the charge of the declaration is that the plaintiff was denied the equal rights and privileges guarantied and secured to all persons by the State Constitution and the aforesaid Act of the State Legislature. Superadded to that is also the charge that such equal rights and privileges were denied to her on account of her race and color, for which she claims actual and exemplary damages in the sum of $75,000. Service was made, and the defendant ap35 549 |