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U.S. Supreme Court

Marshall v. Baltimore & Ohio Railroad Company, 57 U.S. 16 How. 314 314 (1853)

Marshall v. Baltimore & Ohio Railroad Company

57 U.S. (16 How.) 314


A citizen of Virginia may sue the Baltimore & Ohio Railroad Company in the Circuit Court of the United States for Maryland, and an averment that the defendants are a body corporate, created by the Legislature of Maryland, is sufficient to give the court jurisdiction.

The constitutional privilege which a citizen of one state has to sue the citizens of another state in the federal courts cannot be taken away by the erection of the latter into a corporation by the laws of the state in which they live. The corporation itself may therefore be sued as such.

The preceding cases upon this subject, examined.

Where a contract was made to obtain a certain law from the Legislature of Virginia, and stated to be made on the basis of a prior communication, this communication is competent evidence in a suit upon the contract.

A contract is void as against public policy, and can have no standing in court by which one party stipulates to employ a number of secret agents in order to obtain the passage of a particular law by the Legislature of a state, and the other party promises to pay a large sum of money in case the law should pass.

It was also void if, when it was made, the parties agreed to conceal from the members of the legislature the fact that the one party was the agent of the other, and was to receive a compensation for his services in case of the passage of the law.

And if there was no agreement to that effect, there can be no recovery upon the contract, if in fact the agent did conceal from the members of the legislature that he was an agent who was to receive compensation for his services in case of the passage of the law.

Moreover, in this particular case, the law which was passed was not such a one as was stipulated for, and upon this ground there could be no recovery.

There having been a special contract between the parties by which the entire compensation was regulated and made contingent, there could be no recovery on a count for quantum meruit.

Marshall, a citizen of Virginia, sued the railroad company, to recover the sum of fifty thousand dollars, which he alleged that they owed him under a special contract, for his services in obtaining a law from the Legislature of Virginia, granting to the company a right of way through Virginia to the Ohio River.

The declaration set out the special contract, and also contained a count for a quantum meruit.

The circumstances of the case are related in the opinion of the Court.

Inasmuch as one of the instructions of the circuit court was that if

"the services of the plaintiff were to be of the character and description set forth in his letter to the president of the company, dated November 17, 1846, and the paper therein enclosed"

no "action could be maintained on the contract," it is proper, for future reference, that both of those papers should be inserted. They were as follows:

Letter from A. J. Marshall to L. McLane, 17th November, 1846

"WARRENTON, November 17"

"DEAR SIR: In an interview with you a few days since, I promised

Page 57 U. S. 315

to submit in writing a plan, by which I thought your much desired 'right of way' through this state might be procured from our legislature. I herewith enclose my views on that subject, and shall respectfully await your reply."

"In offering myself as the agent of your company to manage so delicate and important a trust, I am aware I lack that commanding reputation which of itself would point me out as best qualified for such a post. Of my qualification and fitness it is not for me to speak, and, in consequence of the absolute secrecy demanded, I cannot seek testimonials of my capacity, lest I should excite inquiry. If your judgment approves my scheme, it is probable you might get satisfactory information respecting me by a cautious conversation with John M. Gordon, A. B. Gordon, Dr. John H. Thomas, or Joseph C. Wilson, all of your city. Without impropriety, I may say for myself I have had considerable experience as a lobby member before the Legislature of Virginia. For several winters past, I have been before that body with difficult and important measures, affecting the improvement of this region of the country, and I think I understand the character and component material of that honorable body."

"I shall have to spend six or eight weeks in Richmond next winter to procure important amendments to the charter of the Rappahannock Company. This will furnish reason for my presence in Richmond."

"There is an effort in progress to divide our county, to which we of Warrenton are violently hostile. This furnishes another reason for myself, and also for one or two other agents, to remain in the City of Richmond during the winter."

"Col. Walden and myself are interested in large bodies of land in western Virginia, near which the track of your railroad will pass. This is an ostensible reason for our active interference. I live in a range of country whose representation ought to be entirely disinterested on this question of the 'right of way.' Notwithstanding which, I believe a plurality of our representatives have heretofore been in opposition. I know the influences that effected this, and am happy to say they will not exist next winter."

"Edmund Broaddus, for many years a representative from Culpepper, a shrewd, intelligent man, influenced this result. Broaddus was a sort of protege of the Richmond and James River whigs, was distinguished and promoted by them, and habitually acted with them. His place is now filled by Slaughter, a personal friend of mine. I should have little fear to carry this section of the state."

"The proposed plan best speaks for itself; if you think it feasible,

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there is no time to be lost. I hope to hear from you at your earliest leisure. With entire respect, I am your humble servant &c."


"I tax you with the postage, as I do not wish to be known as in correspondence."

"Document accompanying the foregoing letter"

"In explanation of the plan I wish to submit, it is necessary to indulge some latitude of remark on the causes which have heretofore thwarted the just pretensions of your company."

"Richmond City, the Petersburg, Richmond & Potomac Railroad, the James River Canal, and the Wheeling interests, acting in concert, have heretofore successfully combated 'the right of way.' These interests fall far short of a majority in the two branches of the Virginia Legislature. There is no sufficient ground, in the numeric force of this antagonist interest, to discourage the hope of an eventual success. On an examination of their arguments, based either upon justice or expediency, I find nothing to challenge a conviction of right, or an assurance of high state policy. On the contrary, standing heretofore as a disinterested spectator of the struggle, I have condemned the emptiness and arrogance of their pretensions, and felt indignant at the success of their narrow, selfish, and bigoted policy."

"I have observed no superiority of talent, no greater zeal or power of advocacy in the opposition than in favor of the 'right of way.' The success of a cause before our legislature, having neither justice, greater expediency, stronger advocacy, or greater numeric strength, is matter of just amazement to the defeated party. The elements of this success should be a subject of curious and deeply anxious investigation, for when the cause is known, a remedy or counteracting influence may be readily applied. I have no idea that any dishonorable measures or appliances further than log-rolling may be one have been used to defeat the 'right of way.' As to log-rolling, I am sorry to say it has grown into a system in our legislature. Members openly avow and act on it, and never conceal their bargain, except where publicity would jeopard success. No delegation are more skillful or less scrupulous at this game than our western right-of-way men; so in that regard there is a stand off. It seems to me the great secret of this success is the propinquity, the presence on the ground, of your opponents. The legislature sits in their midst. They exercise a vigilant, pressing, present out-of-door influence upon the members. If the capitol were located at Weston or Clarksburg, who would question success? The Richmond interest is ever present and ever pressing; her associates of the railroad

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and canal are at hand and equally active. You have no counteracting influence, and hence the success and triumph of your opponents. If I am right in these views, your claims, resting alone on justice, sectional necessity, or even high state policy, will be urged in vain, and must become as mere sounding clamor in the hall unless you meet your opponents with the weapons they use so successfully against yourselves. Experience shows that something beyond what you have heretofore done is necessary to success, and in this necessity the plan I have to submit has its origin."

"The mass of the members in our legislature are a thoughtless, careless, light-hearted body of men who come there for the 'per diem' and to spend the 'per diem.' For a brief space they feel the importance and responsibility of their position. They soon, however, engage in idle pleasures, and, on all questions disconnected with their immediate constitutents, they become as wax, to be moulded by the most pressing influences. You need the vote of this careless mass, and if you adopt efficient means you can obtain it. I never saw a class of men more eminently kind and social in their intercourse. Through these qualities they may be approached and influenced to do anything not positively wrong, or which will not affect prejudicially their immediate constituency. On this question of the 'right of way,' a decided majority of the members can vote either way without fear of their constituents. On this question, therefore, I consider the most active influences will ever be the most successful."

"Before you can succeed, in my judgment, you must re enforce the 'right-of-way' members of the house with an active, interested, well organized influence about the house. You must inspire your agents with an earnest -- nay an anxious -- wish for success. The rich reward of their labors must depend on success. Give them nothing if they fail -- endow them richly if they succeed. This is, in brief space, the outline of my plans. Reason and justice are with you; an enlarged expediency favors your claim. You have able advocates, and the best of the argument; yet with all these advantages, you have been defeated. I think I have pointed out the cause. Your opponents better understand the nature of the tribunal before which this vast interest is brought. They act on individuals of the body out of doors and in their chambers. Your adversaries are on the spot, and hover around the careless arbiters of the question in vigilant and efficient activity. The contest as now waged is most unequal. My plan would aim to place the 'right-of-way' members on an equality with their adversaries, by sending down

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a corps of agents stimulated to an active partisanship by the strong lure of a high profit."

"In considering the details of the plan, I would suggest that all practicable secrecy is desirable. It strikes me the company should have or know but one agent in the matter, and let that agent select the subagents from such quarters and classes and in such numbers as his discreet observation may dictate."

"I contemplate the use of no improper means or appliances in the attainment of your purpose. My scheme is to surround the legislature with respectable and influential agents whose persuasive arguments may influence the members to do you a naked act of justice. This is all. I require secrecy from motives of policy alone, because an open agency would furnish ground of suspicion and unmerited invective, and might weaken the impression we seek to make."

"In regard to the cost of all this, it must necessarily be great. The sub-agency must be extensive, and of first influence and character. All your agents must be inspired by an active zeal and a determined purpose of success. This can only be accomplished for you by offers of high contingent compensation."

"I will illustrate this point by a single example. Were I to become your agent on my plan, I should like to have the services of Major Charles Hunton, of this county. Hunton for many years was a member of our state senate. His last year of service was as president of that body. He is an unpretending man, of good understanding and excellent address. He is a great favorite with his own party, democratic, and universally esteemed as a gentleman of highest character. He is in moderate circumstances, with a large family. I have no doubt if I would bear his expenses and secure him a contingent of one thousand dollars, he would spend the winter in Richmond and do good service, but if I could offer him two thousand, it would become an object of great solicitude. It would pay all his debts and smooth the path of an advancing old age. Two thousand dollars would stimulate his utmost energies. If I am enabled to offer such inducements, I should have great confidence of success. Under this plan, you pay nothing unless a law be passed which your company will accept. Of what value would such a law be to you? Measure this value, and let your own interests, in view of the high stake you play for, fix the price. There is no use in sending a boy on a man's errand; a low offer, and that contingent, is bad judgment; high service can't be had at a low bid."

"I have surveyed the difficulties of this undertaking, and think they may be surmounted. The cash outlay for my own expenses and those of the subagents, would be heavy. I know the

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effective service of such agents as I would employ cannot be had except on a heavy contingent. Taking all things into view, I should not like to undertake the business on such terms unless provided with a contingent fund of at least fifty thousand dollars, secured to my order on the passage of a law and its acceptance by your company."

"If the foregoing views are deemed worthy of consideration, I hold myself in readiness to meet any call in that behalf that may be made upon me."

"Respectfully &c."


After the evidence had been closed, the counsel for the plaintiff asked the court to instruct the jury as follows:

"1. That there is nothing in the terms or provisions of the agreement embraced in the resolution of the committee of correspondence, dated 12 December, 1846 which is set forth in the opinion of the court offered in evidence, which renders the same void on grounds of public policy."

"2. That the plaintiff is not precluded from recovering under the agreement aforesaid, dated 12 December, 1846, as modified by the agreement stated in the letter of 11 February, 1847, by reason merely of the second proviso contained in the first section of the Act of 6 March, 1847, which has been offered in evidence, provided the jury shall find that the route, entering the ravine of the Ohio River at the mouth of Fish Creek, and running so as to pass from a point in the ravine of Buffalo Creek, at or near the mouth of Pile's Fork, to a depot to be established by the defendant on the northern side of Wheeling Creek, in the City of Wheeling, upon minute estimates made in the manner and on the basis prescribed in said act, and made after full examination and instrumental surveys of the feasible or practicable routes, appeared to be the cheapest upon which to construct, maintain, and work said railroad; and provided they shall also find that the City of Wheeling did not agree to pay the difference of cost, as specified in said act, but on the contrary renounced the right to do so as early as the 10th of July, 1847, and provided they shall also find that said act was accepted by the stockholders of the defendant, as a part of its charter, on the 25th of August, 1847."

"3. Upon the evidence aforesaid, the plaintiff prays the court to instruct the jury:"

"That if they find the contract contained in the resolution of the committee of correspondence of 12th of December, 1846, and in the resolution of the committee of correspondence of the 18th of January, 1847, and in the letter of Louis McLane of the 11th of February, 1847, aforesaid, to have been made with

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the plaintiff by the defendant, and also that the Act of Virginia of the 6th of March, 1847, was passed at the session of the Legislature of Virginia for 1846-1847, in the contract mentioned, and also that the Baltimore & Ohio Railroad, by the cheapest route to the City of Wheeling, entering the ravine of the Ohio at or north of Grave Creek, was ascertained, by such estimates as the law prescribed, to be more costly to construct, maintain, and work than said road would be by the route passing into the ravine of the Ohio at or near the mouth of Fish Creek, and then to the City of Wheeling, and that the difference of said probable cost was then in like manner ascertained; that the defendants accepted the said law within six months from the passage thereof, and also that when the difference of probable cost between said two routes was ascertained according [to] said act, the City of Wheeling did not agree to pay to the defendant such difference of cost by the time specified in said act, and that the plaintiff did attend at Richmond during the session aforesaid, and did then and there superintend and further the applications and other proceedings to obtain the right of way through the State of Virginia, on behalf of the defendant, then the plaintiff is entitled to recover, on the special contract contained in the instrument aforesaid, the value of the contingent compensation therein stipulated."

"And the defendants, by their counsel, prayed the court to instruct the jury that the plaintiff was not entitled to recover, because the contract, which stipulated for the payment of a contingent fee of fifty thousand dollars, in the event of the obtaining from the Legislature of Virginia such a law as is described therein, was against public policy, and void."

"2. That if the jury shall believe that it was agreed between the parties to the said contract that the same should be kept secret, either in the terms of it or otherwise, from the Legislature of Virginia or the public, such contract, if otherwise proper and legal, was invalid as against public policy, and the plaintiff is not entitled to recover."

"3. If the jury find that the special contract offered in evidence by the plaintiff was proposed to be entered into by plaintiff from the reasons and motives, and to be executed by him in the way suggested in his communication of the 17th of November, and its enclosure, offered in evidence by the defendant, if the jury shall find that such communication was so made by plaintiff, and if they shall find that the contract aforesaid was entered into accordingly, and that said contract, or plaintiff's agency under it, was not made known to the Legislature of Virginia, but in fact concealed, that then said contract was illegal and void, upon grounds of public policy. "

Page 57 U. S. 321

"4. That the contract between the plaintiff and defendants of 12th of December, 1846, looked to the obtaining of a law authorizing the defendants to extend their road through the State of Virginia to a point on the Ohio River as low down the river as Fishing Creek, which law should be afterwards accepted by the defendants with a determination to act under it, or to the incorporation of an independent company, which the defendants should determine to accept and adopt, or of whose charter they should become the proprietors, authorizing the construction of a railroad from any point on the Ohio River between the mouth of Little Kenawha and Wheeling, and that no such law having been obtained, the plaintiff is not entitled to recover."

"5. That the modified contract of the 11th of February looked to the obtaining of the passage of Hunter's substitute, with the adoption of Fish Creek instead of Fishing Creek, as the point of striking the Ohio. That the law which was passed on the 6th of March, 1847, was a law which did not, in its terms or effect, fulfill the stipulations of the modified agreement of February 11th, 1847."

"6. That the acceptance of the law of March 6, 1847, by the defendants, even supposing it to be substantially the same as Hunter's substitute, did not entitle the plaintiff to recover unless the jury should believe that such law was obtained through his agency, under the agreement with the defendants."

"7. That even if the jury should believe that the law of March 6, 1847, was obtained through the plaintiff's agency, the plaintiff is not entitled to recover if they shall believe that it was accepted by the defendants in consequence of the waiver, by the City of Wheeling, of the privileges accorded to it therein, and the stipulations contained in the agreement between the City of Wheeling and the defendants of March 6, 1847."

"8. That the modified agreement of February 11, 1847, which made Hunter's substitute, modified as stated in the foregoing prayer, the standard of the law which was to be obtained to entitle the plaintiff to the stipulated compensation, made it necessary that such law should give to the defendants the absolute right to approach the City of Wheeling by way of Fish Creek; should release them from the necessity of continuing their road to Wheeling unless the city should, within one year, or the citizens of Ohio County should, in the same time, subscribe one million dollars to the stock of the defendants; should enable the defendants to open and bring into use, as they progressed, the sections of their road as they were successively finished, and should authorize the defendants to charge, in proportion to distance, upon passengers and goods taken from Baltimore to Wheeling, should the road be continued to the

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latter place, while the law that was actually passed made it the right of the defendants to take the Fish Creek route depend upon its being the cheapest, and even then placed the defendants' right to go to Fish Creek at the option of the City of Wheeling; made it imperative that Wheeling should be the terminus of the road, without any subscription on the part of herself or others; prevented the opening of any portion of her road west of Monongahela until the whole road could be opened to Wheeling, and obliged the defendant to charge no more for passengers or tonnage to Wheeling than they charged to a point five miles from the river; and that before the defendant accepted the law thus differing from that referred to in the modified agreement of February 11, 1847, the City of Wheeling waived its control of the route, leaving it to depend upon its comparative cost, agreed to subscribe five hundred thousand dollars to the stock of the defendants and provided a depot for the defendants at the terminus of the road; and that the adoption and acceptance of the law of March the 6th, 1847, thus differing from Hunter's substitute, and induced by the waiver and stipulation of Wheeling, already mentioned, and action under it, was not such an acceptance, adoption, and action, as entitled the plaintiff to recover."

"9. That if the jury shall believe that the plaintiff received from the defendants the six hundred dollars given in evidence in full discharge of his claims for compensation under the agreement in question, then the plaintiff is not entitled to recover."

But the court refused to give the instructions as prayed by either plaintiff or defendant, but instructed the jury as follows:

"1. If at the time the special contract was made upon which this suit is brought it was understood between the parties that the services of the plaintiff were to be of the character and description set forth in his letter to the president of the railroad company, dated November 17, 1846, and the paper therein enclosed, and that in consideration of the contingent compensation mentioned in the contract, he was to use the means and influences proposed in his letter and the accompanying paper, for the purpose of obtaining the passage of the law mentioned in the agreement, the contract is against the policy of the law, and no action can be maintained."

"2. If there was no agreement between the parties that the services of the plaintiff should be of the character and description mentioned in his letter and communication referred to in the preceding instruction, yet the contract is against the policy of the law, and void if at the time it was made, the parties agreed to conceal from the members of the Legislature of Virginia the fact that the plaintiff was employed by the defendant

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as its agent to advocate the passage of the law it desired to obtain, and was to receive a compensation in money for his services in case the law was passed by the legislature at the session referred to in the agreement."

"3. And if there was no actual agreement to practice such concealment, yet he is not entitled to recover if he did conceal from the members of the legislature, when advocating the passage of the law, that he was acting as agent for the defendant and was to receive a compensation, in money, in case the law passed."

"4. But if the law was made upon a valid and legal consideration, the contingency has not happened upon which the sum of fifty thousand dollars was to be paid to the plaintiff -- the law passed by the Legislature of Virginia being different in material respects from the one proposed to be obtained by the defendant by the agreement of February 11, 1847, and the passage of which, by the terms of that contract, was made a condition precedent to the payment of the money."

"5. The subsequent acceptance of the law as passed, under the agreement with the City of Wheeling stated in the evidence was not a waiver of the condition, and does not entitle the plaintiff to recover in an action on the special contract."

"6. There is no evidence that the plaintiff rendered any services or was employed to render any under any contract, express or implied, except the special contract stated in his declaration, and as no money is due to him under that contract, he cannot recover upon the count upon a quantum meruit."

"And thereupon the plaintiff excepts as well to the refusal of his prayers as to the granting of the instructions aforesaid given, and tenders this his second bill of exceptions, and prays that the same may be signed and sealed by the court, which is accordingly done ___ day of November, 1852."


The first bill of exceptions was to the admissibility of the evidence above mentioned.

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