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buch notice. An express written contract, embodying in clear and positive terms the intention of the parties, cannot be varied by evi. dence of usage or custom. In Barnard v. Kellogg, 10 Wall. 383, this court quotes with approval the language of Lord LYNDHURST, in Blackett v. Royal Ex. Assurance Co. 2 Cromp. & J. 249, that "usage may be admissible to explain what is doubtful; it is never admissible to contradict what is plain." This rule is based upon the theory that the parties, if aware of any usage or custom relating to the subject-matter of their negotiations, have so expressed their intention as to take the contract out of the operation of any rules established by mere usage or custom. Whatever apparent conflict exists in the ad judged cases as to the office of custom or usage in the interpretation of contracts, the established doctrine of this court is as we have stated. Partridge v. Ins. Co. 15 Wall. 573; Robinson v. U. S. 13 Wall. 365; The Delaware, 14 Wall. 603; Nat. Bank v. Burkhardt, 100 U. S. 692.

The record in this case presents a question of jurisdiction, which, although not raised by either party in the court below or in this court, we do not feel at liberty to pass without notice. Sullivan v. Steam-boat Co. 6 Wheat. 450. As the jurisdiction of the circuit court is limited, in the sense that it has no other jurisdiction than that conferred by the constitution and laws of the United States, the presumption is that a cause is without its jurisdiction unless the contrary affirmatively appears. Turner v. Bank of North America, 4 Dall. 8; Ex parte Smith, 94 U. S. 456; Robertson v. Cease, 97 U. S. 649. In the last case it is said that “where jurisdiction depends upon the citizenship of the parties, such citizenship, or the facts which in legal intendment con. stitute it, should be distinctly and positively averred in the pleadings, or they should appear affirmatively and with equal distinctness in other parts of the record." Ry. Co. v. Ramsey, 22 Wall. 322; Briges v. Sperry, 95 U. S. 401. In Brown v. Keene, 8 Pet. 115, it is declared not to be sufficient that jurisdiction may be inferred argumentatively from averments in the pleadings; that the averments should be posi. tive.

The present case was commenced in the supreme court of New York, and was thence removed, on the petition of the defendant, to the cir. cuit court of the United States for the eastern district of New York. The record does not satisfactorily show the citizenship of the parties. The complaint, filed in the state court, shows that the firm of William R. Grace & Co., composed of William R. Grace, Michael P. Grace, and Charles R. Flint, is doing business in New York, and that William R. Grace and Charles R. Flint are residents of that state. The petition for the removal of the cause shows that the defendant is a corporation of the state of Missouri; that William R. Grace and Charles R. Flint reside in New York; and that Michael P. Grace is a resident of some state or country unknown to defendant, but other than the state of Missouri. The record, however, fails to show of what state

the plaintiffs are citizens. They may be doing business in and have residence in New York, without necessarily being citizens of that state. They are not shown to be citizens of some state other than Missouri. Bingham v. Cabot, 3 Dall. 383; Abercrombie v. Dupuis, 1 Cranch, 343; Jackson v. Twentyman, 2 Pet. 136; Sullivan v. Fulton Steam-boat Co., supra; Hornthal v. Collector, 9 Wall. 565; Brown v. Keene, supra; Robertson v. Cease, supra.

It is true that the petition for removal, after stating the residence of the plaintiffs, alleges "that there is, and was at the time when this action was brought, a controversy therein between citizens of different states." But that is to be deemed the unauthorized con. clusion of law which the petitioner draws from the facts previously averred. Then there is the bond given by the defendant on the removal of the cause, which recites the names of the firm of Williamin R. Grace & Co., and describes it as “of the county of Kings and state of New York.” If that bond may be considered as part of the record for the purpose of ascertaining the citizenship of the parties, the averment that the plaintiffs are "of the county of Kings and state of New York” is insufficient to show citizenship. Bingham v. Cabot, 3 Dall. 382; Wood v. Wagnon, 2 Cranch, 9.

As the judgment must be reversed and a new trial had, we have felt it to be our duty, notwishstanding the record as presented to us fails to disclose a case of which the court below could take cogni. zance, to indicate, for the benefit of parties at another trial, the conclusion reached by us on the merits. And we have called attention to the insufficient showing as to the jurisdiction of the circuit court, so that, upon the return of the cause, the parties may take such further steps touching that matter as they may be advised.

The judgment is reversed and the cause remanded, with directions to set aside the judgment, and for such further proceedings as may not be inconsistent with this opinion.

(109 U. 8. 285) STATE OF LOUISIANA EX rel. Folsom and another o. MAYOR, ETC., OF THE



ERTY IN A JUDGMENT. A statute of a state 80 restricting the taxing power of a municipal corporation as

to disenable it to satisfy a judgment previously recovered against it upon a statutory liability for injuries sustained from unlawful violence within its bor.

ders, is not by reason of that result unconstitutional. Such a statute does not impair the obligations of contracts, for the liability arises

from a tort; and a judgment, though by a legal fiction enforceable in an ac. tion ex contractu, is not a contract within the sense of the constitution.

Nor does such a statute deprive any one of property against the fourteenth amend

ment, for while a judgment remains outstanding the property in it cannot be

said to be gone, even though its collection be rendered impossible. Per BRADLEY, J.: The property in a judgment founded upon a purely statutory

liability, unlike that in a judgment based upon absolute rights, is qualified

and subject to legislative modification or abridgment. HARLAN, J., dissenting.

In Error to the Supreme Court of the State of Louisiana.

Robert Mott, Thos. J. Semmes and Henry B. Kelly, for plaintiffs in error.

Henry C. Miller, for defendant in error.

FIELD, J. The relators are the holders of two judgments against the city of New Orleans,-one for $26,850, the other for $2,000. Both were recovered in the courts of Louisiana,—the first in June, 1877, the relators; the second in June, 1874, by parties who assigned it to them. Both judgments were for damages done to the property of the plaintiffs therein by a mob or riotous assemblage of people in the year 1873. A statute of the state made municipal corporations liable for damages thus caused within their limits. Rev. St. La. 1870, $ 2453. The judgments were duly registered in the office of the comptroller of the city, pursuant to the provisions of the act known as No. 5 of the extra session of 1870, and the present proceeding was taken by the relators to compel the authorities of the city to provide for their payment. At the time the injuries complained of were committed, and one of the judgments was recovered, the city of New Orleans was authorized to levy and collect a tax upon property within its limits of $1.75 upon every $100 of its assessed value. At the time the other judgment was recovered this limit of taxation was reduced to $1.50 on every $100 of the assessed value of the property. By the constitution of the state adopted in 1879 the power of the city to impose taxes on property within its limits was further restricted to 10 mills on the dollar of the valuation. The effect of this last limitation is to prevent the relators, who are not allowed to issue executions against the city, from collecting their judgments, as the funds receivable from the tax thus authorized to be levied are exhausted by the current expenses of the city, which must first be met. The relators sought in the state courts to compel a levy by the city of taxes to meet their judgments at the rate permitted when the damages were done for which the judgments were obtained. They contended that the subsequent limitation imposed upon its power violated that clause of the federal constitution which prohibits a state from passing a law impairing the obligation of contracts, and also that clause of the fourteenth amendment which forbids a state to deprive any person of life, liberty, or property without due process of law. The supreme court of the state, reversing the lower court, decided against the relators, and the same contention is renewed here.

The right to reimbursement for damages caused by a mob or riotous assemblage of people is not founded upon any contract between the


city and the sufferers. Its liability for the damages is created by a law of the legislature, and can be withdrawn or limited at its pleas

Municipal corporations are instrumentalities of the state for the convenient administration of government within their limits. They are invested with authority to establish a police to guard against disturbance; and it is their duty to exercise their authority so as to prevent violence from any cause, and particularly from mobs and riotous assemblages. It has therefore been generally considered as a just burden cast upon them to require them to make good any loss sustained from the acts of such assemblages which they should have repressed. The imposition has been supposed to create, in the holders of property liable to taxation within their limits, an interest to discourage and prevent any movements tending to such violent proceedings. But, however considered, the imposition is simply a measure of legislative policy, in no respect resting upon contract, and subject, like all other measures of policy, to any change the legislature may see fit to make, either in the extent of the liability or in the means of its enforcement. And its character is not at all changed by the fact that the amount of loss, in pecuniary estimation, has been ascertained and established by the judgments rendered. The obligation to make indemnity created by the statute has no more element of contract in it because merged in the judgments than it had previously. The term "contract” is used in the constitution in its ordinary sense, as signifying the agreement of two or more minds, for considerations proceeding from one to the other, to do or not to do certain acts. Mutual assent to its terms is of its very essence.

A judgment for damages, estimated in money, is sometimes called by text writers a specialty or contract of record, because it establishes a legal obligation to pay the amount recovered; and, by a fiction of law, a promise to pay is implied where such legal obligation exists. It is on this principle that an action ex contractu will lie upor. a judgment. Chit. Cont. (Perkins' Ed.) 87. But this fiction cannot convert a transaction wanting the assent of parties into one which necessarily implies it. Judgments for torts are usually the result of violent contests, and, as observed by the court below, are imposed upon the losing party by a higher authority against his will and protest. The prohibition of the federal constitution was intended to secure the observance of good faith in the stipulation of parties against any state action. Where a transaction is not based upon any assent of parties, it cannot be said that any faith is pledged with respect to it; and no case arises for the operation of the prohibition. Garrison v. City of New York, 21 Wall. 203. There is therefore nothing in the liabilities of the city, by reason of which the relators recovered their judgments, that precluded the state from changing the taxing power of the city, even though the taxation be so limited as to postpone the payment of the judgments. • The clause of the fourteenth amendment cited is equally inoperative to restrain the action of the state. Conceding that the judgments, though founded upon claims to indemnity for unlawful acts of mobs or riotous assemblages, are property in the sense that they are capable of ownership and may have a pecuniary value, the relators cannot be said to be deprived of them so long as they continue an existing liability against the city. Although the present limitation of the taxing power of the city may prevent the receipt of sufficient funds to pay the judgments, the legislature of the state may, upon proper appeal, make other provision for their satisfaction. The judgments may also, perhaps, be used by the relators or their assigns as offsets to demands of the city; at least, it is possible that they may be available in various ways. Be this as it may, the relators have no such vested right in the taxing power of the city as to render its diminution by the state, to a degree affecting the present collection of their judgments, a deprivation of their property in the sense of the constitutional prohibition. A party cannot be said to be deprived of his property in a judgment because at the time he is unable to collect it.


The cases in which we have held that the taxing power of a municipality continues, notwithstanding a legislative act of limitation or repeal, are founded upon contracts; and decisions in them do not rest upon the principle that the party affected in the enforcement of his contract rights has been thereby deprived of any property, but upon the principle that the remedies for the enforcement of his con. tracts, existing when they were made, have been by such legislation impaired. The usual mode in which municipal bodies meet their pecuniary contracts is by taxation. And when, upon the faith that such taxation will be levied contracts have been made, the constitutional inhibition has been held to restrain the state from repealing or diminishing the power of the corporation so as to deprive the holder of the contract of all adequate and efficacious remedy. As we have often said, the power of taxation belongs exclusively to the legislative department of the government, and the extent to which it shall o a be delegated to a municipal body is a matter of discretion, and may be limited or revoked at the pleasure of the legislature. But, as we held in Wolff v. New Orleans, 103 U. S. 358, and repeated in Louisiana v. Pilsbury, 105 U. 8. 278, in both cases, by the unanimous judgment of the court, the legislation in that respect is subject to this qualification, which attends all state legislation, that it “shall not conflict with the prohibitions of the constitution of the United States, and, among other things, shall not operate directly upon contracts of the corporation, so as to impair their obligation by abrogating or lessening the means of their enforcement. Legislation producing this latter result, not indirectly as a consequence of legitimate measures taken, as will sometimes happen, but directly by operating upon those means, is prohibited by the constitution, and must be disregarded,-treated as if never enacted,-by all courts recognizing the constitution as the paramount law of the land. This doctrine has been repeatedly asserted by this court when attempts have been

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