text:
Atlantio Works v. Brady Brady/Opinion of the Court

This case arises upon a bill in equity filed by Edwin L. Brady against the Atlantic Works, a corporation of Massachusetts, having workshops and a place of business in Boston, praying for an account of profits for building a dredge-boat in violation of certain letters patent granted to the complainant, bearing date December 17, 1867, and for an injunction to restrain the defendants from making, using, or selling any dredge-boat in violation of said letters patent. The bill was filed on the ninth of April, 1868, and had annexed thereto a copy of the patent alleged to be infringed. The following are the material parts of the specification:

'The excavator consists of a strong boat, propelled by one or     two propellers placed in the stern of the boat. I prefer two     propellers, as affording greater power and rendering the boat more      manageable in steering in crooked channels. This propeller is     driven in the ordinary manner by steam-engines of ordinary      construction. Near the bow of the boat I place another     steam-engine, driving what I call the 'mud-fan,' which      projects from and in front of the bow of the boat. This is     formed by a set of revolving blades shown at A, turned, like      the propellers, by a shaft passing through a stuffing-box, D.      The blades are shaped somewhat like those of a propeller, but      they are sharper on their fronts and less inclined on their      faces. These blades should extend, say, two feet below the     bottom of the boat, and their object is by their rapid      revolution to displace the sane and mud on the bottom, and,      stirring them up, to mix them with the water so that they may      be carried off by the current.

'The motion of the 'mud-fan' tends to draw forward the boat,     assisting the propellers.

'All the engines may be driven by one set of boilers, F,     placed amid-ships. In order that the 'mud-fan' may be brought     in contact with the bottom, I construct the boat with a      series of water-tight compartments, E, placed in the bow and      stern, and on each side of the center, amid-ships, into which      the water may be permitted to flow through pipes so as to      sink the vessel to the required depth; the compartments being      so placed and proportioned that the vessel shall sink with an      even keel, by which the effective action of the 'mudfan,' the      propellers, and the steering apparatus is preserved, the boat      being manageable at any depth. A large pump, B, driven by the     engine, is connected by pipes with all the compartments, so      that the water may be pumped out when necessary to raise the      boat.

'I am aware that boats have been constructed with     compartments to be filled with water, to sink the dredging      mechanism to the bottom, by loading the end of the boat in      which such mechanism is placed; but this construction is      subject to the disadvantage of requiring more complicated      machinery for dredging, in order that it may be accommodated      to the inclination of the boat, and to the further      disadvantage that the boats thus inclined are comparatively      unmanageable.

'What I claim as my invention, and desire to secure my     letters patent, is: (1) A dredging-boat, constructed with a      series of water-tight compartments, so proportioned and      arranged that, as they are filled with water, the boat shall      preserve an even keel, and the dredging mechanism be brought into action without any      adjusting devices, substantially as set forth. (2) The     combination of the 'mud-fan' attached to a rigid shaft, and a      boat containing a series of water-tight compartments, E, so      adjusted as to cause the boat to settle on an even keel as      the compartments are filled with water, and a pump, B, for      exhausting the water from all the compartments, substantially      as set forth.'

The defendants, in their answer, denied the validity of the patent, and denied infringement of any valid patent of the complainant. They then stated the circumstances under which they came to construct the dredge-boat complained of, namely: That in October, 1867, the government of the United States advertised for proposals for building a dredge-boat for the mouth of the Mississippi river, according to certain plans and specifications; that the defendants, being manufacturers and builders of marine engines and steam-boats, examined the plans and specifications, and made proposals for building the boat according to the same, which were accepted, and they at once began the construction of the boat and completed it under the inspection and supervision of a United States officer, in conformity with the stipulations, and the boat went in charge of said officer to the mouth of the Mississippi river; that the said plans and specifications were made and furnished by Gen. McAlester, of the engineer corps of the United States, for the use of the government, and were the result of his own study, observations, and experience, and that, so far as they were original, he was the author of them. They further alleged by their answer (as amended) as follows:

'That the plans and specifications by which the said     dredge-boat was constructed were not, and the said      dredge-boat itself was not, a new invention or novel and      original; but the same, and the principle of said      dredge-boat, had been substantially known and publicly used      before, to-wit, at New Orleans, on the mouth of the      Mississippi river, in the year 1859, in the steam dredge-boat      Enoch Train, by Charles H. Hyde, by Thomas G. Mackie, and      William A. Hyde, copartners, under the firm of Hyde & Mackie,      and by Henry Wright, and had also been used and applied in      the construction of light-draught monitors, so called, built      by the United States government during the late rebellion, and long prior to the alleged patent or invention of the said      Brady, and the dates of his patent or caveat, and one of      which said light-draught monitors was built at the works of      these defendants.'

The answer further stated that in 1866 and 1867, prior to the date of Brady's alleged invention, he was acting as agent for one Tyler, in carrying out a contract with the government for the improvement of the mouth of the Mississippi river; that Gen. McAlester was then stationed at New Orleans to supervise and inspect, on behalf of the United States, the execution of the contract; that Brady was fitting and preparing a steam-boat for the purpose on a plan entirely different from that of his alleged invention; that McAlester then detailed and described to him a plan for a dredge-boat identical with that of the boat constructed by the defendants, which plan McAlester communicated to the board of engineers of the army before the date of the alleged invention by Brady; that Brady's boat was a failure, and the contract was annulled; that then Brady made drawings for a boat on the plan described to him by McAlester, and afterwards claimed to be the inventor of it, and made application for his patent, and obtained the same after the defendants had commenced work on the boat complained of.

Evidence was taken, and on a hearing before Mr. Justice CLIFFORD, in September, 1876, a decree was made sustaining the patent, declaring that the defendants had infringed the same, and referring it to a master to take an account of the profits received by the defendants from the infringement. The master reported the sum of $6,604.82. Both parties excepted, but their exceptions were overruled, and a final decree, in accordance with the report, was rendered October 9, 1878, with costs. Both parties have appealed.

The most important question, and first to be considered, is the validity of the patent.

It is obvious, from reading the specification, that the alleged invention consists mainly in attaching a screw (which the patentee calls a mud-fan) to the forward end of a propeller dredge-boat, provided with tanks for settling her in the water. It is operated by sinking the boat until the screw comes in contact with the mud or sand, which, by the revolution of the screw, is thrown up and mingled with the current. The use of a series of tanks for the purpose of keeping the vessel level while she settles is an old contrivance long used in dry-docks, and is shown by the evidence to have been used in many light-draught monitors during the late war. The defendants themselves built one of these vessels-the Casco. Mr. Edwards, the president of the Atlantic Works, in his testimony says:

'The Casco was built double, leaving a water-space on each     side nearly the entire length of the vessel, with an      arrangement of valves for flooding the compartments at      pleasure, for the purpose of sinking the vessel to the      desired draught of water, and with powerful steam-pumps to      pump the water out for the purpose of raising it in the      water. The compartment on the side was divided into several,     and one or all of them could be filed as desired. The object     was to enable them to put her on an even keel, or to raise or      depress one end at pleasure.'

The employment of their screws by propeller ships, driven stern foremost, for the removal of sand and mud accumulated at the mouths of the Mississippi, had frequently occurred years before the patentee's invention is alleged to have been made. Several French steamers, one of which was named the Francis Arago, had used this method there prior to the year 1859. In that year the Enoch Train, a double propeller,-that is, having two screws at her stern,-was used in the same way by certain contractors under the government for dredging the mouth of the Mississippi. Mr. Hyde, one of the contractors and owners, in his testimony describes her construction and operation as follows:

'She was a propeller of burden between three and four hundred     tons, with two propeller screws at her stern, about nine feet      in diameter each; the cylinders were 36 inches in diameter,      and 34 inches stroke; she had one doctor engine; was fitted      also with a large wrecking-pump, with two low-pressure      boilers; engines were also low-pressure engines. Her draught     of water, in ordinary trim, with 300 barrels of coal on      board, was about 13 feet aft, and a little less at the bows. By ordinary trim I mean the usual sailing trim. The propeller     screws were one on each quarter, or each side of the      stern-post. Before going to dredging on the bar, I fitted her     up with a water-tight apartment or tank, at the stern, by a      bulk-head running athwart-ships, say about 20 or 25 feet from      the stern. That space was divided by a fore-and-aft     bulk-head, making two water-tight compartments.

'The mode of filling the compartments was by stop-cocks in     the sides of the vessel opening into the water-tight      compartment; the draught of water could be increased from her      natural draught of water, say to feet to 18 feet, according      to the quantity of water let into the tanks. The more of     operating was by running the vessel up and down over the bar,      and thus stirring up the mud with the propeller screws. When     the water was too shoal for her to pass over, the stern of      the vessel was turned to the bar, and she was run stern on,      the engines being reversed. Whenever we got done working on     the bar there was a valve in the water-tight compartments for      letting the water into the hold of the vessel, from which the      water was pumped out of the vessel by the steam-pumps, and      the vessel would then be left at her ordinary draught.

'Interrogatory 13. Please to state how you happened to employ     this mode of dredging by the Enoch Train.

'Answer. Well, I thought it would be an effectual way of     removing the mud from the bar; that by the screws coming in      contact with the mud and deposit, and the revolutions of the      screws about 60 times a minute, would create a current of      water by which the sediment would be washed way.'

The evidence of Henry Wright, the master of the Enoch Train, under whose charge her operations were conducted, is to the same purport. He says:

'We used to work our propellers in cutting up the mud. The     operation consisted in cutting through the mud with our      propellers. Sometimes we went at the mud stern foremost,     sometimes sideways, and sometimes bows on. When I went to the     bar at first there was about 15 feet of water on it, and when      I quit operating there were 18 feet on it in most places. Where the water was shallow we invariably went at the mud     stern foremost. The stern was always loaded down to 18 feet     when dredging, but the bows were not loaded down. In     dredging, the stern was always several feet lower down than      the bows, say three or four feet.' The boat built by the defendants, which was called the Essayon, was operated in precisely the same way. Being built expressly for dredging, her dredging screw was placed at her stem, it is true; but her mode of operation was the same as that of the Enoch Train. Her master, Putnam, describes it is follows:

'The method we use is to go outside the bar into deep water;     then we sink the dredging end of the vessel by filling up the      tanks at that end with water to any depth required; then we      start the propelling screw at the other end of the vessel,      and go in with that until the vessel grounds; then we stop      the propelling screw and start the dredging screw, and as      that screw revolves it cuts up the mud at the bottom and      drags the vessel after it at the same time. After going as     far as we wish, we stop the dredging screw, lower the rake at      the dredging end, and back out into deep water, using either      or both of the screws to go back with, thus dragging the mud      after us that the dredging screw has cut up from the bottom,      and earrying at out into deep water; or, rather, the      operation is that the dredging screw agitates the mud and      throws it up into the surface current, and the current takes      it out to a large extent, while the rake takes fresh hold of      the bottom and also carries out whatever is broken up by the      screw and settles from the current. After backing out into     deep water, we hoist the rake and go back again and repeat      the operation. When we first arrived at the bar we made     several experiments as to the best mode of dredging, but the      mode above described we found to be the correct one, and have      ever since used.'

Nearly all the witnesses examined on the subject declare that there is no difference in principle between the mode of operation of the Enoch Train and that of the Essayon. The scraping or raking apparatus is not mentioned in the plaintiff's patent at all. This, as will be hereafter seen, is part of the original design of Gen. McAlester, the government officer who had charge of the improvement of the mouth of the Mississippi.

It is further noticeable that the Essayon, as is abundantly established by the evidence, always worked with her stern sunk and depressed, and never with an even keel, upon which special emphasis is placed by the patent in suit. It may well be asked, at this point, where was there any invention in the device described in the patent? Was it invention to place a screw for dredging at the stem of the boat? Nothing more than this was in reality suggested by the patentee. And that was substantially what was done with the French steamers prior to 1859, and with the Enoch Train in that year. They were curned end for end, and the stern was used as the stem, and the screws went forward, working in the bottom deposit in advance of the vessels. When the Enoch Train was procured for the service which she performed, she was ready-made, and the contractors, to save time and expense, simply supplied her with a tank, in order to settle her to the proper depth, and they found her very serviceable. Had she been built for a dredge-boat, with the design of using screws for dredging, (as she did use them,) can it be doubted that her dredging screw would have been placed forward instead of turning her stern forward? Would not this have been suggested by ordinary mechanical skill? The plan and mode of operation would have been precisely the same. When, after this, the government proceeded to build a boat expressly for dredging the mouths of the Mississippi, we should naturally expect to find it built as the Essayon was built, with her dredging screws at the stem instead of the stern. The making of them with longer blades than those of the propelling screw, and sharpened at the points, would be a matter of course. No invention would be requisite for any of these arrangements. It seems to us that the whole principle of the Essayon's construction and furnishment, as well as that of the patent in question, was anticipated by the Enoch Train, if not by the French steamers, and that a patent for that principle, though qualified by the natural incidents and adjuncts of its application, ought not to be sustained.

The process of development in manufactures creates a constant demand for new appliances, which the skill of ordinary head-workmen and engineers is generally adequate to devise, and which, indeed, are the natural and proper outgrowth of such development. Each step forward prepares the way for the next, and each is usually taken by spontaneous trials and attempts in a hundred different places. To grant a single party a monopoly of every slight advance made, except where the exercise of invention somewhat above ordinary mechanical or engineering skill is distinctly shown, is unjust in principle and injurious in its consequences.

The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in advance in the useful arts. Such inventors are worthy of all favor. It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the art. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith.

But the Enoch Train did not exhibit all that was done in the matter of dredge-boats anterior to the alleged invention of Brady. If the application of dredging screws to the stem of a boat, driven by a propeller or otherwise, was not formerly exhibited in the Enoch Train, it was certainly exhibited in the invention of one Ephraim B. Bishop, which was patented in April, 1858, and was applied by Brady himself to a dredge-boat called the Wiggins Ferry, fitted up and operated by him at the mouth of the Mississippi in 1866. This boat was propelled by an ordinary center paddle-wheel, and to the bow was fixed two revolving conical-shaped screws, which, on being let down to the river bottom, cut and stirred up the mud and sand, and caused it to float away in the current. Each screw was driven by a separate steam-engine. Bishop was examined as a witness, and testified that the idea occurred to him from seeing a stern-wheel boat on the Arkansas river make a channel for herself by turning stern foremost and removing the sediment by the revolution of her propeller. He says:

'About 1852 or 1853, I was then keeping store at Van Buren,     Arkansas. The difficulty of getting goods up the Arkansas     river, in consequence of sandbars, was very great-so great      that we had a cargo of goods, nearly a whole boat-load, that      was detained in consequence of sand-bars for at least eight      months before she could reach Van Buren from Pine Bluffs,      Arkansas. Seeing this necessity of removing these     obstructions, and knowing all about the usual machines up to      that date that had been invented, and their capacity, and      knowing of the very great amount of sediment that must be      removed to do any good, it appeared to me absolutely      necessary that machinery of greater capacity and strength      should be invented, and, thinking upon this subject, I      thought of and planned out one or more spirally-flanched      screws, to be rotated by machinery on deck of a boat or in      her hull, with the large ends of the spiral screws down, with      sharp-cutting corners or points, the screws to revolve right      and left powerfully, intended to elevate the sediment up the      inclination of the drum by reason of the powerful motion of      those drums. The water, being comparatively still, would     necessarily force the sediment up the inclination of the      screws, and throw the sediment off to the right and left into      the water, which would carry it to harmless localities. This     was the first plan that was afterwards developed into my      patent.'

In the fall of 1866 Brady and several other persons associated with him, Bishop himself being interested, made a contract with the government to dredge the South-west pass of the Mississippi, and procured for the purpose the Wiggins Ferry, and fitted up her bow with Bishop's apparatus. Brady had the superintendence of her fitting up, and of operating her after she was ready for work. They commenced upon her in November, 1866, but did not get her started until the nineteenth of March, 1867. After working with her for several months, and finding that she was not strong enough for the work required in the South-west pass, and that the sediment would fill up again when she was taken off for repairs, (although they often succeeded in deepending the channel three or four feet,) the contract was abandoned. For a common river bottom she would have answered well enough. Mr. Roy, one of the parties interested in her, and who was on her for several days at the commencement of her operations, says that in the pass, before trying the bar, she worked very successfully. If her machinery was not strong enough for accomplishing the hard work to be done on the bar, she was nevertheless well fitted for lighter dredging, and exemplified in her construction the use of screws at her stem.

It is true that Bishop's patent was not set up by way of defense in the answer; but there is no dispute as to the time it was issued, and that fact, together with Bishop's testimony, makes it clear that his invention, which was exemplified in the Wiggins Ferry, was made as far back as 1858, anticipating Brady, according to his own showing, for at least seven or eight years.

It is clear, then, that Brady did not invent the furnishing of vessels with water-tanks, so arranged as to sink them on an even keel; for these had been used long before in the light-draught monitors; he did not invent the use of revolving screws on a dredging-boat, for cutting and stirring up the mud and sediment; for these had been used for that purpose on the French steamers, and on the Enoch Train, in and prior to 1859; he did not invent the use of water-tanks in a dredging-boat for sinking the screws down to the bottom or bar to be dredged; for this plan had been adopted in the Enoch Train; he did not invent the application of screws to the forward end of a dredge-boat, so as to work in advance of the boat; for this had been virtually done on the Enoch Train, and was formerly done on the Wiggins Ferry, the plan of which had been invented by Bishop in 1858. What, then, did he invent? Did he make a selection and combination of these elements that would not have occurred to any ordinary skilled engineer called upon, with all this previous knowledge and experience before him, to devise the construction of a strong dredge-boat for use at the mouth of the Mississippi? We think not. We think that there is no reasonable ground for any such pretension.

But if a different conclusion could be reached, to our minds it is as certain as any fact depending on conflicting testimony can be, that Brady derived the ideas embraced in his patent from Gen. McAlester, the government officer, who in 1866 and 1867 had charge of the improvements at the mouth of the Mississippi river, and that he never conceived these ideas till they were communicated and explained to him by Gen. McAlester during the fitting up of the Wiggins Ferry at New Orleans, and during the progress of her operations at the South-west pass. It is proved by overwhelming evidence that during the whole period of her fitting up, and until it was developed by her working on the bar that she was incapable of performing the work required of her at that place, that Brady regarded and spoke of Bishop's plan as the best possible plan that could be devised, and that, although deeply interested in the success of the operations, he never alluded to or hinted at any plan of his own devising different from it. His whole conduct for months, as well as his total silence on the subject of any prior invention made by himself, in all his intercourse with his associates in the contract, with the government officers in charge, and with the superintendents and owners of the foundry where the Wiggins Ferry was fitted up, is the strongest possible proof that no such invention as he claims had been projected by him. The witnesses who speak of his conversations and sketches in December, 1865, and early in 1866, as communicated to them with the utmost freedom, with no apparent object so far as they were concerned, must either be mistaken as to the time, or as to the devices described. Interested as he is in the result of the suit, his own testimony cannot be allowed to prevail against a course of conduct so utterly at variance with it. It may be true; but we cannot give it effect against what he himself did, and did not do, without disregarding the ordinary laws that govern human conduct.

During the operation of the Wiggins Ferry on the bar, it is true, he did make divers plans and drawings for an improved dredge-boat. The first, made, as Lieut. Payne says, a week or 10 days after the vessel arrived at the South-west pass, (therefore the last of March or first of April,) was merely a modification of Bishop's plan, placing the cones parallel to each other instead of being pointed together in a salient angle, and providing the boat with water-tight compartments by which she could be raised or lowered. He worked at these drawings for some time, and Lieut. Payne helped him to make tracings of them. In one corner of the drawings on the same sheet two or three screws were exhibited, intended to be used in place of the cones, if thought best or desired. It is stated in the bill that on the seventeenth of May, 1867, Brady filled a caveat in the patent-office describing his invention; but the patent was not obtained till the seventeenth of December following. No copy of the caveat appears in the record, so that we cannot tell what it contained.

Now, where was it that Brady, who had been so enthus astic upon the superlative merits of Bishop's plan as applied to the Wiggins Ferry, obtained the new light which resulted in the filing of his caveat the seventeenth of May, and in the obtaining of his patent in December? The story is told by Lieut. Payne, who appears to he, not only an intelligent, but an entirely disinterested witness. He says:

'In the latter part of February 1867, at the engineer office. New Orleans, Gen. McAlester told Brady that he had doubts of     the sucessful working of the Wiggins, and in the case of her      proving a failure, he should suggest to the engineer      department a plan of his own for doing that work, which plan      he then explained to Brady in my presence. He said he should     recommend the building of a strong vessel provided with      propellers at each end and arranged with water-tight      compartments, so that the vessel could be raised or lowered      at pleasure. She was also to be provided with scrapers, which     could be attached at either end, and raised or lowered at      will by machinery. She was to have rudders at each end, and     be able to move in either direction, either head or stern,      equally well. He proposed to try the scrapers first, and, if     they were not found to work satisfactorily, to try any other      device which might be thought practicable. Brady seemed to be     much pleased with the idea, but seemed confident of the      success of the Wiggins.'

It further appears that Gen. McAlester, in pursuance of his idea, communicated his plans to the government board of engineers, and during the spring and summer of 1867, commencing as early as April, prepared the plans and specifications according to which the Essayon was afterwards built. It is very strange that the copy of Gen. McAlester's letters to the department, and several other important exhibits that were put in evidence, have not been inserted in the record used on this appeal. Where the fault lies, it is not for us to say. Sufficient appears, however, notwithstanding the evidence adduced to the contrary, consisting mostly of the testimony of the complainant himself, to convince us that Brady derived his those idea from the suggestions of Gen. McAlester; and that the plans for the construction of the Essayon originated entirely with that officer.

Our conclusion is that the patent sued on cannot be sustained, and that the decree of the circuit court must be reversed, and the cause remanded, with instructions to dismiss the bill of complaint.

Decree reversed accordingly.


text: Talk:Atlantio Works v. Brady Brady/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
New York Guaranty Indemnity Company v. Memphis Water Company

W. M. Randolph, for appellants.

J. B. Heiskell, for appellees.

BRADLEY, J.


text: Talk:New York Guaranty Indemnity Company v. Memphis Water Company


text:
New York Guaranty Indemnity Company v. Memphis Water Company/Opinion of the Court

This case was commenced by a bill in equity filed by the New York Guaranty & Indemnity Company and others, holders of bonds of the Memphis Water Company, against said water company, the city of Memphis, the trustees of a mortgage given to secure said bonds, and certain others of the bondholders and persons interested. The principal object of the bill was to have declared valid a certain contract made between the city and the water company, and to compel the city to comply with its terms, in order that the moneys alleged to be due thereon from the city might be applied to the payment of the bonds held by the complainants and others, the said contract being included in the mortgage. There was also a prayer for a sale of all the property and privileges of the water company under the mortgage, and an alternative prayer that the said contract might be cancelled if the court should hold it to be void, and that then the city might be compelled to pay up a subscription it had made to the stock of the water company, or else that the stock might be cancelled. The circumstances of the case on which the bill was founded may be briefly stated as follows:

The charter of the city of Memphis, among other things,     conferred upon its corporate authorities the power of      supplying the city with water for all purposes. But on the     twenty-eighth of February, 1870, an act was passed chartering      the Memphis Water Company, and giving to it the exclusive      privilege of laying down water-pipes and extending aqueducts      and conductors through all or any of the streets, lanes, and      alleys of the city, and of supplying to the inhabitants water      by public works. Under this charter the company commenced     operations for laying pipes and erecting works without the      acquiescence of the city authorities. The city undertook to     carry out a counter scheme, which had been under      consideration for several years. A litigation ensued, which     resulted in June, 1871, in a judgment of the supreme court of      Tennessee, confirming the water company's exclusive right,      and enjoining the city from interfering therewith, the court      holding in substance that the exclusive right given to the      water company suspended that of the city for the period named      in the former's charter. Thereupon, on the eighteenth of January, 1872, the city and the water     company entered into a contract, whereby, among other things,      the water company agreed to erect water-works in the city,      including a certain number of street hydrants of a peculiar      construction, which the city agreed to hire for the purpose      of extinguishing fires, and to pay therefor a certain annual      rent; and it was mutually agreed that the city should receive      one-half of the company's capital stock, amounting to      $100,000.

Immediately after this contract was executed the water     company took measures to raise money by an issue of bonds to      the amount of $600,000. For this purpose they executed a deed     of trust in the nature of a mortgage to F. S. Davis, T. R.      Farnsworth of Memphis, and J. L. Worth of New York, whereby      they conveyed all their franchises, lands, wells, pumps,      machinery, pipes, and other property then held and thereafter      to be acquired, and all the income which they might      thereafter 'receive, acquire, or become entitled to,      including all sums of money which the party of the first part      may become entitled to receive from the city of Memphis under      and by virtue of a contract made and entered into between the      said city of Memphis and the said party of the first part      hereto, on the eighteenth day of January, A. D. 1872.' This      deed was declared to be given for the purpose of securing the      payment of 600 bonds of $1,000 each, payable to bearer, with      interest at 7 per cent. per annum semi-annually. In case     default should be made in payment of principal or interest,      power was given to the trustees to take possession of the      property and books of the company, and to collect all moneys      due to it, including all sums due or coming due from the city      of Memphis under the said contract, and to apply the same to      the payment of unpaid interest on the bonds; and, if two      successive installments of interest should be unpaid, the      principal to become due, and, at the request of a majority in      interest of the bondholders, the trustees should take      possession, given notice, and sell the entire property, for      cash, and apply the same to the payment of principal and      interest on the bonds.

The bonds provided for by this mortgage were duly issued and     disposed of, and the complainants represent themselves as holding nearly all of them; those supposed to hold the      remainder being made defendants.

It is alleged and not denied that on or prior to the first of     April, 1873, the water-works were completed and in operation,      and the hydrants stipulated for in the contract of January,      1872, were used by the city. But, the city refusing to pay     the rent therefor, a suit was brought by the water company      against the city to recover the first installment of rent      due. After the pleadings were filed, the writ and declaration     were amended by consent, so as to be in the name of the water      company, to the use of Davis, Farnsworth, and Worth, trustees      of the mortgage. The cause was tried in April, 1874, and a     verdict was given and judgment rendered for the plaintiffs. The supreme court of Tennessee, on a writ of error, reversed     this judgment in December, 1876, and awarded a new trial, the      court holding that the contract between the city and the      water company was ultra vires of the city and absolutely      void.

In the mean time, in May, 1875, while the writ of error was     pending, at the request of the requisite number of      bondholders, the trustees of the mortgage took possession of      the property of the water company, and proceeded to advertise      the same for sale. Thereupon one T. W. Yardley, a holder of     some of the bonds, filed a bill in equity in the chancery      court of Shelby county, Tennessee, alleging that the New York      Guaranty & Indemnity Company had obtained the bonds held by      it for an usurious and corrupt consideration, which made it      inequitable for that company to hold the said bonds, or at      least for the full amount thereof; and that said company was      urging the trustees to make said sale, which would at that      time be at a sacrifice of the property; and he prayed for an      injunction to prevent the sale, and for an investigation of      the true amount due, if anything, to said New York Guaranty &      Indemnity Company. All the bondholders, as well as the water     company itself, were made parties to the suit. A temporary     injunction was granted. On the twenty-fifth of May, 1875, a     decree was made, by consent of all parties, that the property      should be exposed for sale by the trustees on 60 days'      notice, whenever the court, in its discretion, should so      order, on the demand of the requisite number of bondholders,      and that the mutual rights of the parties to a distribution of the proceeds should be ascertained by      the further litigation in the cause; the trustees in the mean      time to keep possession of the property and account for all      receipts and expenditures. An amendment to the bill was     afterwards filed, which prayed an account to be taken of the      amount justly due to all parties, and for a foreclosure and      sale of the mortgaged premises. Answers and cross-bills were     filed, nearly all the bondholders appearing to assert their      respective interests. In January, 1876, the cause was removed     to the circuit court of the United States, and further      proceedings took place in that court. On the fifteenth of     May, 1876, the trustees, at their own request, and with the      assent of all parties, were by decree discharged from the      custody of the water-works, and the president and secretary      of the water company were placed in charge; but it was stated      in the decree that the property was not thereby restored to      the company itself, but to be operated in the interest of the      bondholders, and at all times subject to the supervision and      control of the court. In March, 1877, a few days after the     filing of the bill in the present case, a decree was made      dismissing Yardley's bill and the several cross-bills. An     appeal was taken to this court, but was dismissed for want of      prosecution. On the second of June, 1879, (after the final     decree was made in the present case,) the circuit court, on      the application of the New York Guaranty & Indemnity Company      and others, holding a majority of the bonds, made a decree in      the Yardley suit, in pursuance of the consent decrees of May      28, 1875, and May 15, 1876, ordering a sale, by a      commissioner appointed for that purpose, of all the      franchises, rights, privileges, and property conveyed by the      deed of mortgage, and authorizing the commissioner to receive      the bonds and coupons secured by the mortgage as cash in      payment of the property, and foreclosing the equity of      redemption. In answer to an application of the appellants     here, it is now shown by the appellees that the said decree      for sale was carried into effect in 1880, and the purchase      money paid, and that in June of that year, pending this      appeal, the circuit court made a decree confirming said sale.

In the present case, the principal defense set up by the city     of Memphis, by answer and demurrer, was the alleged      illegality of the contract, as adjudged by the supreme court of      Tennessee. It was also insisted that there was a complete and     adequate remedy at law; that if there was any cause of action      or complaint, it was vested in the water company and the      trustees of the mortgage, all of whom reside in Tennessee;      and that the complainants, if they have any claim, acquired      it through the assignment of the water company, which,      itself, could not maintain a suit in the United States court. The circuit court concurred in the view taken by the supreme     court of the state, and held that the contract on the part of      the city was ultra vires and void, and dismissed the bill by      a final decree rendered May 27, 1879. From this decree the     present appeal was taken.

The main object of the bill was to enforce the performance of the contract made between the city of Memphis and the water company; to have it declared binding, and to compel the city to pay the rents due under it, in order that they might be applied in satisfaction of the bonds held by the complainants and others. There was added, it is true, a prayer for the foreclosure and sale of the mortgaged property, and the application of the proceeds to the payment of the debts received. But this latter relief was already provided for by the consent decrees entered in the Yardley suit, which, as we are now informed, have been carried into effect at the instance of the appellants themselves, pending this appeal. The important question to be considered is, whether the principal relief prayed for can be granted in this suit.

The contract sought to be enforced was not made with the complainants; nor has it ever been assigned to them. It was made with the water company, and its interest therein was assigned to the trustees of the mortgage, as part of the security for the payment of the bonds held by the complainants. Whatever interest the complainants have therein they derive as beneficiaries under the mortgage, through the assignment which it contained. They stand in no better plight for the maintenance of the suit than the trustees would if they had brought it. There seems to be no reason, indeed, why the suit was not brought by the trustees. No allegation is made that they were even unwilling to bring it. The legal interest of the mortgage was in them, and they were the proper representatives of all the bondholders, and the most proper persons to protect the trust in their hands. Indeed, they did bring a suit to enforce the contract. The action at law brought in the name of the water company against the city for the recovery of the first installment of rent was prosecuted for the use of the trustees; and this was really the proper mode of proceeding. Had the judgment in that case been a final one, the questions raised in this cause would have been res judicata; but a new trial being ordered it failed to have this effect. Thereupon, shortly after the decision of the supreme court was rendered, the principal bondholders, without, so far as appears, making any effort to have that suit further prosecuted, brought this suit in the federal court in their own names as complainants, and seek in this indirect way to accomplish the same purpose which was attempted to be obtained by the direct proceeding in the state court. It is a manifest attempt to evade the decision of the case by that court, which had full and adequate jurisdiction of the subject.

It was objected in limine, by the demurrer to the bill, that as the complainants claim under the assignment of the contract made to the trustees, the circuit court had no jurisdiction, because the water company, with which the contract was made, and which made the assignment, is a citizen of Tennessee. This objection is insisted on here, and would seem to be conclusive, if the citizenship of the parties were the only ground of jurisdiction of the circuit court. The act of March 3, 1875, declares that no circuit or district court shall have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made. This suit is founded on the contract between the city and the water company. The whole claim of the bondholders to any benefit therefrom depends upon the assignment thereof contained in the mortgage deed; and although the trustees of the mortgage are the real assignees, the bondholders, as cestui que trusts, claim under them, and stand on no higher plane, as regards the right to sue, than the trustees themselves. The complainants, however, insist that this suit is cognizable by the circuit court by reason of that court's having judicial possession and control of the mortgaged property in the Yardley suit. The bill and cross-bills in that suit, it has been seen, were dismissed; but the parties regarded the consent decrees entered therein as giving the court authority to keep the property under its control, and to cause it to be sold. Therefore, so far as relates to the water-works themselves, and all the property comprised in the mortgage which is susceptible of actual possession, the position of the appellants may be correct. But the claim against the city does not lie in possession, but in contract alone. The contract itself may be subject to sale as part of the mortgage assets; but the proceeds of the contract, the money alleged to be due from the city to the water company under it, has never been reduced to possession, and the city of Memphis denies its liability to pay it. In order to reduce to possession the money claimed to be due, and subject it to the control of the court, the ordinary mode of enforcing the contract must be resorted to. It may be that the circuit court had the power to direct such a proceeding to be had as ancillary to its administration of the mortgage fund; but it must be a proper proceeding, adapted to the nature of the demand. If a promissory note were included in the mortgage fund, and the parties liable upon it should refuse to pay it, the circuit court might probably order the trustees of the mortgage to bring an action on the note; but a bill in equity would hardly be considered a proper proceeding for enforcing its collection.

The view we have taken with regard to the propriety of the proceeding in this case, for enforcing the contract against the city, renders it unnecessary to determine the question raised on the assignment of it by a citizen of Tennessee. Whether the contract is or is not a valid one, and, if valid, what are the obligations of the city under it, and the damages for the breach thereof, are pure questions of law, which the city cannot, under ordinary circumstances, be compelled to litigate with any other party than the water company or its legal assigns. If the parties having the legal interest refuse to sue, those having the beneficial interest will be authorized to use their names on giving them proper indemnity against costs. The city has a right to be confronted with those who have the legal interest in the contract, unless they absolutely refuse the use of their names, or special circumstances exist which would prevent or greatly embarrass the prosecution of the suit. It does not lose its right to a trial at law by any pledges or assignments which the water company may make of its interest in the contract. Such pledges or assignments may create equitable rights in regard to that interest, as between the water company and the assignees; but the contract, so far as the city is concerned, remains a matter of legal cognizance. If a merchant should pledge his bills receivable as security for a loan, any equitable rights which arise between him and his pledgees may be adjudged in equity; but the makers and acceptors of the bills must be sued thereon at law. And so, here, while the equities between the water company as mortgagor and the mortgagees, or those claiming under them, (such as the right of redemption, etc.,) may be determined by a court of equity, the legal demand against the city on the contract is cognizable at law, and should be prosecuted in the ordinary courts of law, as was done in the action brought in the name of the water company against the city. Every question arising on the contract in this suit is determinable in an action at law, and was determined in the action referred to.

Recurring for a moment to the leading facts, how does the case really stand? The trustees of the mortgage, on default of the water company in payment of interest, took possession of its works, and carried them on. In performing this duty they found, or supposed they had found, that certain rents had accrued and were accruing from the city for the use of the hydrants, under the contract in question, which rents the city refused to pay. To establish the contract and recover these rents, their remedy was clear and adequate by an action at law in the name of the water company. They brought such an action and failed by the adverse decision of the supreme court of Tennessee. Then the bondholders, dissatisfied with this result, brought this suit in equity in the federal court for the purpose of raising the same questions anew. It is difficult to see how they acquired any right to transfer the controversy from a court of law to a court of equity. The fact that they have only a beneficial interest is not of itself sufficient. Whether the legal interest in the contract remained in the water company or became vested in the trustees, an action at law could have been brought in the name of the party having it. There is no allegation in the bill that either of these parties were applied to, or that they refused to allow such an action to be brought in their names.

We have lately decided, after full consideration of the authorities, in the case of Hayward v. Andrews, 5 Morr. Trans. 629, [S.C.. 1 SUP. CT. REP. 544,] that an assignee of a chose in action on which a complete and adequate remedy exists at law, cannot, merely because as such assignee his interest is an inequitable one, bring a suit in equity for the recovery of the demand. He must bring an action at law in the name of the assignor to his own use. This is true of all legal demands standing in the name of the trustee, and held for the benefit of cestuis que trust. Besides the authorities cited in Hayward v. Andrews, reference may be made to Mitf. Pl. 123, 125; Willis, Eq. Pl. 435, note g; Adair v. Winchester, 7 Gill & J. 114; Moseley v. Boush, 4 Rand. 392; Doggett v. Hart, 5 Fla. 215; Smiley v. Bell, Martin & Y. 378; and Eng. & Am. Notes to Ryall v. Bolles, 2 White & T. Lead. Cas. Eq. 1567, 1670, (Ed. 1877.)

In view of the early enactment by congress in the sixteenth section of the judiciary act, (Rev. St. § 723,) declaring 'that suits in equity shall not be sustained in either of the courts of the United States in any case where plain, adequate, and complete remedy may be had at law,' the rule laid down in Hayward v. Andrews is entitled to special consideration from the courts of the United States. This enactment certainly means something; and, if only declaratory of what was always the law, it must, at least, have been intended to emphasize the rule, and to impress it upon the attention of the courts.

We think that the present case clearly falls within the rule. The bill alleges no special circumstances which can properly take it out of its operation. The fact that there are many beneficiaries entitled to a distribution of the fund is not sufficient for that purpose. All the property covered by the mortgage deed constitutes one fund, and is to be brought together and administered as such by first discharging the expenses of the trust, and distributing the residue among the bondholders pro rata. There is no such division and separation of interests into distinct parcels as existed in the case of Field v. Mayor of New York, reported in 6 N. Y. 179. The whole beneficiary interest is a unit, and is represented by the trustees of the mortgage; and the case presents no difficulty or embarrassment in the way of an action at law.

We think, therefore, that the bill could have been properly dismissed on this ground alone; and this renders it unnecessary for us to consider the other questions in the case.

The decree of the circuit court is affirmed.


text: Talk:New York Guaranty Indemnity Company v. Memphis Water Company/Opinion of the Court


text:
Von Cotzhausen v. Nazro

F. W. Cotzhausen, for plaintiff in error.

Asst. Atty. Gen. Maury, for defendants in error.

MILLER, J.

title: Von Cotzhausen v. Nazro


text: Talk:Von Cotzhausen v. Nazro

title: Talk:Von Cotzhausen v. Nazro


text:
Von Cotzhausen v. Nazro/Opinion of the Court

This was a suit commenced before a justice of the peace by the plaintiff in error against the defendants for seizing and converting to their own use a flexible woolen scarf or shawl of the value of four dollars. It was removed into the circuit court of the United States by a writ of certiorari on the ground that Nazro was collector of customs of the United States for the port of Milwaukee, and that what was done in seizing the shawl was in the performance of his duty as such collector. On the trial in that court it appeared that the article in question came in a closed or sealed envelope by foreign mail from Germany, and the proper officer of the customs at Milwaukee, being notified to be present when the letter was delivered to and opened by plaintiff, seized it as forfeited under the customs laws of the United States. The jury being requested to make a special verdict, answered the questions propounded to them by the court as follows:

'Question 1. Was the article in question sent from a foreign     country by mail, inclosed in a sealed envelope addressed to      the plaintiff at Milwaukee, and was it transmitted by mail,      thus inclosed, to its point of destination? Answer. Yes. Q.     2. Were the contents of the package disclosed by any writing     placed upon it by the sender? A. Yes. Q. 3. Was the package     received at the post-office in Milwaukee, and, if so, was the      collector of customs for this district notified of its      receipt? A. Yes. Q. 4. Was the package placed in the hands of     the plaintiff by a clerk in the post-office, in the presence      of the deputy collector, and did she open it? A. Yes. Q. 5. Did the deputy collector of customs then seize the article in     question after it was opened? A. Yes. Q. 6. Did the collector     thereafter cause said article to be appraised by the      appraiser for this collection district, and did he refuse to      surrender it to the plaintiff without payment of the amount      of such appraisal? A. Yes. Q. 7. Was the article sent by mail     for the purpose or with intent on the part of the sender or      the plaintiff to avoid the payment of duties thereon. A. No.

Q. 8. What was the value of said article on the twenty-first     day of May, 1877? A. Four dollars.'

And on this verdict the circuit court rendered a judgment for defendants, with costs.

A bill of exceptions is signed embodying all the evidence in the case, from which it appears that there was no little ill-feeling in the case on the part of plaintiff and her attorneys, who refused to make application to the secretary of the treasury for a remission of the penalty, and that the seizure was reported to him and to the proper law officers by the collector. But as no ruling of the court was made on the admission or rejection of this evidence, and as no instructions of the court were given or asked, and no exceptions taken to any ruling of the court at the trial, the bill of exceptions is of no value here. The plea to the action was the general issue, and we must look alone to the special verdict to see if it justified the judgment of the court. The letter containing this scarf came from Germany to the United States under the international postal system, established by the treaty of Berne of October 9, 1874. The twenty-fifth article of the protocol to that treaty, which, under the signatures of the plenipotentiaries who negotiated it, is declared to be of the same force as if it was inserted in the treaty, provides that 'there shall not be admitted for conveyance by the post any letter or other packet which may contain either gold or silver money, jewels, precious articles, or any article whatever liable to custom duties.' 19 St. 604, art. 25.

While some attempt in argument is made to show that, either by treaty or by act of congress, books, patterns of merchandise, and perhaps other articles, may come through the foreign mail without liability to forfeiture, it is sufficient to say that the article seized in this case was not sent as a sample, nor is it a book or other article asserted to be admissible. Its introduction into the United States in this manner is, therefore, forbidden by the express provisions of the postal treaty under which it came, which is the law of the land, and is unauthorized by any act of congress. No question is made in this case that the shawl was dutiable, or that the amount of the duty claimed on it was the proper duty. Being dutiable, its introduction by mail into the United States was forbidden by the treaty. The revenue laws of the United States require that every owner or consignee of property imported from other countries shall report the same to the customs officers before it is landed from the vessel, and shall furnish an invoice of its character and purchase price, for valuation, or that it may be seen if it is duty free, and all the vexatious and annoying machinery of the custom-house, and the vigilance of its officers, are imposed by law to prevent the smallest evasion of this principle.

Of what avail would it be that every passenger, citizen and foreigner, without distinction of country or sex, is compelled to sign a declaration before landing, either that his trunks and satchels in hand contain nothing liable to duty, or, if they do, to state what it is, and even the person may be subjected to a rigid examination, if the mail is to be left unwatched, and all its sealed contents, even after delivery to the person to whom addressed, are to be exempt from seizure, though laces, jewels, and other dutiable matter of great value may thus be introduced from foreign countries. It is a violation of the law to introduce dutiable articles at all in that mode, and articles so introduced are liable to seizure for such violation. But the jury found that the shawl was not sent by mail for the purpose or with the intent, on the part of the sender or the plaintiff, to avoid the payment of duties thereon; and it is said that, under section 3082 of the Revised Statutes, the goods cannot be seized or forfeited unless fraudulently or knowingly imported contrary to law.

'If any person shall fraudulently or knowingly import or     bring into the United States, or assist in so doing, any      merchandise, contrary to law, or shall receive, conceal, buy,      sell, or in any manner facilitate the transportation,      concealment, or sale of such merchandise after importation,      knowing the same to have been imported contrary to law, such      merchandise shall be forfeited, and the offender shall be fined in any sum not exceeding $5,000, nor less than      $50, or be imprisoned for any time not exceeding two years,      or both.'

The language of this section is that if a person fraudulently or knowingly brings into the United States, or assists in so doing, any merchandise contrary to law, the goods shall be forfeited, and the offender punished by fine and imprisonment; and while the jury negative the fraudulent intent, they do not negative the knowledge of the sender that the goods were sent in violation of law, or that they were dutiable goods.

This fraudulent and guilty knowledge, however, relates mainly to the punishment of the offender by fine and imprisonment; and other sections, as 3061, authorize and direct the seizure of any property imported contrary to law, and the officer is to open envelopes for that purpose, and, on reasonable ground to believe it subject to duty or to have been unlawfully imported, he shall seize and secure the same for trial.

In this case the article was unlawfully imported in a sealed envelope, and it was discovered and seized by the proper officer in the hands of the owner after she had opened it. There is no finding by the jury as to what he did with it, except that he had it appraised. But the presumption is that he did his duty, by notifying the officers whose business it was to institute proceedings for condemnation, and though we may not properly look at the bill of exceptions, which shows what he did with it, this is unnecessary, for if the seizure was rightful, there is no evidence whatever of a wrongful conversion. It has been suggested that by reason of section 16 of the act of June 22, 1874, (Supp. Rev. St. 80,) and the finding of the jury that there was no intention to defraud in this case, the defendants are liable. But that section relates to actions brought by the government to enforce the revenue laws by fine, forfeiture, and penalty, and declares that in such cases, unless there is a verdict of the jury or finding of the court that the alleged acts were done with an actual intention to defraud the United States, no fine, penalty, or forfeiture shall be imposed.

If the plaintiff in this case shall, in any proceeding in court for its condemnation, appear and claim this property, or any suit shall be instituted against her personally for a violation of the revenue law, she can have the full benefit of this statute. Or, if she is impatient of the delay of the officers in instituting such proceeding, she can, under section 3076 of the Revised Statutes, cause such proceedings to be instituted, in which she can have the same relief. But if the present action be sustained on the ground of absence of fraudulent intention on her part, the officer making the seizure is held liable in the absence of such a proceeding though in such case the court might have protected him by a certificate of probable cause, and though he may have done his duty and been guilty of no conversion. Such a construction of the statute requires him to know the guilty or innocent intent of a party violating the law at the hazard of personal liability for the result. It is to be observed, also, that all the trouble, cost, and vexation of this suit could have been avoided by an application to the secretary of the treasury under section 5293, and the rules prescribed by that officer for such cases, when he would undoubtedly have remitted the forfeiture, on what were the undisputed facts of the case, on payment of the small sum assessed as the duty. We think that in making the seizure the defendants only did their duty, and, whatever the hardship to plaintiff, they are not liable in this action on the facts found in the verdict of the jury.

The judgment of the circuit court is, therefore, affirmed.

FIELD, J., did not sit on the hearing of this case, and took no part in its decision.


text: Talk:Von Cotzhausen v. Nazro/Opinion of the Court


text:
Kring v. State of Missouri

L. D. Seward and ''Jeff. Chandler'', for plaintiff in error.

S. F. Phillips, for defendant in error.

MILLER, J.

title: Kring v. State of Missouri


text: Talk:Kring v. State of Missouri

title: Talk:Kring v. State of Missouri


text:
Kring v. State of Missouri/Opinion of the Court

This is a writ of error to the supreme court of Missouri. The plaintiff in error was indicted in the criminal court of St. Louis for murder in the first degree, charged to have been committed January 4, 1875, to which he pleaded not guilty. He has been tried four times before a jury, and sentenced once on plea of guilty of murder in the second degree. His case has been three times before the court of appeals of that state, and three times before the supreme court of the state. In the last instance, the supreme court affirmed the judgment of the criminal court, by which he was found guilty of murder in the first degree and sentenced to be hung, and it is to this judgment that the present writ of error is directed. It is to be premised that the court of appeals is an intermediate appellate tribunal between the criminal court of St. Louis and the supreme court of the state, to which all appeals of this character are first taken. At the trial, immediately preceding the last one in the court of original jurisdiction, the prisoner was permitted to plead guilty to murder in the second degree, which plea was accepted by the prosecuting attorney and the court, and on this plea he was sentenced to imprisonment in the penitentiary for 25 years. He took an appeal from this judgment, on the ground that he had an understanding with the prosecuting attorney that if he would plead as he did his sentence should not exceed 10 years' imprisonment, and the supreme court reversed that judgment, and remanded the case to the St. Louis criminal court for further proceedings. In that court, when the case was again called, the defendant refused to withdraw his plea of guilty of murder in the second degree, and refused to renew his plea of not guilty, which had been withdrawn when he pleaded guilty to murder in the second degree, and the court, against his remonstrance, made an order setting aside his plea of guilty of murder in the second degree, and ordered a general plea of not guilty to be entered. On this plea he was tried by a jury and found guilty and sentenced to death, as we have already said, which judgment was affirmed by the supreme court of the state. By refusing to plead not guilty to murder in the first degree and to withdraw his plea of guilty in the second degree, defendant raised the point that the proceedings under that plea, namely, its acceptance by the prosecuting attorney and the court, and his conviction and sentence under it, was an acquittal of the charge of murder in the first degree, and that he could not be tried again for that offense. This point he insisted on in the circuit court, and relied on it for reversing the judgment in the court of appeals and in the supreme court. Both these latter tribunals, in the opinions delivered by them, and which are part of the record, conceded that such was the law of the state of Missouri at the time the homicide was committed. But they overruled the defense on the ground that by section 23 of article 2 of the constitution of Missouri, which took effect November 30, 1875, that law was abrogated, and for this reason defendant could be tried for murder in the first degree, notwithstanding his conviction and sentence for murder in the second degree. As this new constitution was adopted after the crime was committed for which Kring is indicted, and, as construed by the court of appeals and the supreme court, changes the law as it then stood to the disadvantage of the defendant, the jurisdiction of this court is invoked on the ground that, as to this case, and as so construed, it is an ex post facto law, within the meaning of section 10, art. 1, of the constitution of the United States.

That it may be clearly seen what the supreme court of Missouri decided on this subject and what consideration they gave it, we extract here all that is said in their opinion about it. 'There is nothing in the point,' they say, 'that after an accepted plea of guilty of murder of the second degree the defendant could not be put upon trial for murder of the first degree. We shall, on that proposition, accept what is said by the court of appeals in its opinion in this cause.' What that court said on this subject is as follows:

'The theory of counsel for defendant that a plea of guilty of     murder in the second degree, regularly entered and received,      precludes the state from afterwards prosecuting the defendant      for murder in the first degree, is inconsistent with the      ruling of the supreme court in State v. Kring, 71 Mo. 551,     and in State v. Stephens, Id. 535. The declarations of     defendant that he would stand upon his plea already entered      were all accompanied with a condition that the court should      sentence him for a term not to exceed 10 years, in accordance      with an alleged agreement with the prosecuting attorney,      which the court would not recognize. The prisoner did not     stand upon his plea of guilty of murder in the second degree;      he must, therefore, be taken to have withdrawn that plea,      and, as he refused to plead, the court properly directed the      plea of not guilty of murder in the first degree to be      entered.

'Formerly it was held in Missouri (State v. Ross, 20 Mo. 32     that when a conviction is had of murder in the second degree      on an indictment charging murder in the first degree, if this      be set aside the defendant cannot again be tried for murder in the first degree. A change introduced by section 23 of      article 2 of the constitution of 1875 has abrogated this      rule. On the oral argument something was said by counsel for      the defendant to the effect that under the old rule defendant      could not be put on his trial for murder in the first degree,      and that he could not be affected by the change of the      constitutional provision, the crime having been committed      while the old constitution was in force. There is, however,      nothing in this; this change is a change, not in crimes, but      in criminal procedure, and such changes are not ''ex post      facto. Gut v. State'', 9 Wall. 35; cummings v. Missouri, 4     Wall. 326.'

We have here a distinct admission that by the law of Missouri, as it stood at the time of the homicide, in consequence of this conviction of the defendant of the crime of murder in the second degree, though that conviction be set aside, he could not be again tried for murder of the first degree; and that, but for the change in the constitution of the state, such would be the law applicable to his case. When the attention of the court is called to the proposition that if such effect is given to the change of the constitution it would, in this case, be liable to objection as an ex post facto law, the only answer is that there is nothing in it, as the change is simply in a matter of procedure. Whatever may be the essential nature of the change, it is one which, to the defendant, involves the difference between life and death, and the retroactive character of the change cannot be denied.

It is to be observed that the force of the argument for acquittal does not stand upon defendant's plea, nor upon its acceptance by the state's attorney, nor the consent of the court; but it stands upon the judgment and sentence of the court by which he is convicted of murder in the second degree, and sentence pronounced according to the law of that guilt, which was by operation of the same law an acquittal of the other and higher crime of murder charged in the same indictment. It is sufficient for this case that the supreme court of Missouri, in the opinion we are examining, says it was so, and cites as authority for it the case of State v. Ross, 29 Mo. 32, in the same court; but counsel for plaintiff in error cites to the same effect the cases of State v. Ball, 27 Mo. 327; State v. Smith, 53 Mo. 139.

Blackstone says, (Comm. book 4, side page 336:)

'The plea of autrefois convict, or a former conviction for     the same identical crime, through no judgment was ever given,      or, perhaps, will be, (being suspended by benefit of clergy      or other causes), is a good plea in bar to an indictment. And     this depends upon the same principle as the former, (that is,      autrefois acquit,) that no man ought to be twice brought in      danger of his life for one and the same crime. Hereupon it     has been held that a conviction of manslaughter, on an appeal      or indictment, is a bar even in another appeal, and much more      in an indictment for murder; for the fact prosecuted is the      same in both, though the offenses differ in coloring and      degree.' See State v. Norvill, 2 Yerg. 24; 9 Yerg. 337.

This law, in force at the date of the homicide for which Kring is now under sentence of death, was changed by the state of Missouri between that time and his trial so as to deprive him of its benefit, to which he would otherwise have been entitled, and we are called on to decide whether in this respect, and as applied by the court to this case, it is an ex post facto law within the meaning of the constitution of the United States. There is no question of the right of the state of Missouri, either by the her fundamental law or by an ordinary act of legislation, to abolish this rule, and that it is a valid law as to all offenses committed after its enactment. The question here is, does it deprive the defendant of any right of defense which the law gave him when the act was committed, so that as to that offense it is ex post facto. This term necessarily implies a fact or act done, after which the law in question is passed. Whether it is ex post facto or not relates, in criminal cases, to which alone the phrase applies, to the time at which the offense charged was committed. If the law complained of was passed before the commission of the act with which the prisoner is charged, it cannot. As to that offense, be an ex post facto law. If passed after the commission of the offense, it is as to that ex post facto, though whether of the class forbidden by the constitution may depend on other matters. But, so far as this depends on the time of its enactment, it has reference solely to the date at which the offense was committed to which the new law is sought to be applied. No other time or transaction but this has been in any adjudged case held to govern its ex post facto character.

In the case before us an argument is made founded on a change in this rule. It is said the new law in Missouri is not ex post facto, because it was in force when the plea and judgment were entered of guilty of murder in the second degree; thus making its character as an ex post facto law to depend, not upon the date of its passage as regards the commission of the offense, but as regards the time of pleading guilty. That, as the new law was in force when the conviction on that plea was had, its effect as to future trials in that case must be governed by that law. But this is begging the whole question, for if it was, as to the offense charged, an ex post facto law, within the true meaning of that phrase, it was not in force and could not be applied to the case, and the effect of that plea and conviction must be decided as though no such change in the law had been made. Such, however, is not the ground on which the supreme court and the court of appeals placed their judgment. 'There is nothing,' say they, 'in this; the change is a change, not in crimes, but in criminal procedure, and such changes are not ex post facto.'

Before proceeding to examine this proposition, it will be well to get some clear perception of the purpose of the convention which framed the constitution in declaring that no state shall pass any ex post facto law. It was one of the objections most seriously urged against the new constitution by those who opposed its ratification by the states, that it contained no formal bill of rights. Federalist, No. 84. And the state of Virginia accompanied her ratification by the recommendation of an amendment embodying such a bill. 3 Elliott, Deb. 661.

The feeling on this subject led to the adoption of the first 10 amendments to that instrument at one time, shortly after the government was organized. These are all designed to operate as restraints on the general government, and most of them for the protection of private rights of persons and property. Notwithstanding this reproach, however, there are many provisions in the original instrument of this latter character, among which is the one now under consideration. So much importance did the convention attach to it, that it is found twice in the constitution,-first as a restraint upon the power of the general government, and afterwards as a limitation upon the legislative power of the states. This latter is the first clause of section 10 of article 1, and its connection with other language in the same section may serve to illustrate its meaning: 'No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.' It will be observed that here are grouped contiguously a prohibition against three distinct classes of retrospective laws, namely bills of attainder, ex post facto laws, and laws impairing the obligations of contracts. As the clause was first adopted, the words concerning contracts were not in it, because it was supposed that the phrase 'ex post facto law' included laws concerning contracts as well as others. But it was ascertained before the completion of the instrument that this was a phrase which, in English jurisprudence, had acquired a signification limited to the criminal law, and the words 'or any law impairing the obligation of contracts' were added to give security to rights resting in contracts. 2 Banc. His. Const. 213.

Sir Thomas Tomlin, in that magazine of mearing, the English edition of 1835 of his Law Dictionary, says: 'Ex post facto is a term used in the law, signifying something done after, or arising from or to affect, another thing that was committed before.' 'An ex post facto law is one which operates upon a subject not liable to it at the time the law was made.'

The first case in which this court was called upon to construe this provision of the constitution was that of Calder v. Bull, 3 Dall. 386, decided in 1798. The opinion of the court was delivered by CHASE, J., and its main purpose was to decide that it had no application to acts concerning civil rights. The opinion, however, is important, as it discusses very fully the meaning of the provision in its application to criminal cases. It defines four distinct classes of laws embraced by the clause:

'(1) Every law that makes an action done before the passing     of the law, and which was innocent when done, criminal, and      punishes such action; (2) every law that aggravates the crime      of makes it greater than it was when committed; (3) every law      that changes the punishment and inflicts a greater punishment      than was annexed to the crime when committed; (4) every law      that alters the legal rules of evidence, and receives less or      different testimony than the law required at the time of the      commission of the offense in order to convict the offender.'

'But I do not consider any law ex post facto, within the     prohibition, that modifies the rigor of the law, but only      these that create or aggravate the crime or increase the      punishment or change the rules of evidence for the purpose of      conviction.'

In the case before us the constitution of Missouri so changes the rule of evidence that what was conclusive evidence of innocence of the higher grade of murder when the crime was committed, namely, a judicial conviction for a lower grade of homicide, is not received as evidence at all, or, if received, is given no weight in behalf of the offender. It also changes the punishment, for, whereas the law, as it stood when the homicide was committed, was that, when convicted of murder in the second degree, he could never be tried or punished by death for murder in the first degree, the new law enacts that he may be so punished, notwithstanding the former conviction. But it is not to be supposed that the opinion in that case undertook to define, by way of exclusion, all the cases to which the constitutional provision would be applicable. Accordingly, in a subsequent case tried before Mr. Justice WASHINGTON, he said, in his charge to the jury, that 'an ex post facto law is one which, in its operation, makes that criminal which was not so at the time the action was performed, or which increases the punishment, or, in short, which, in relation to the offense or its consequences, alters the situation of a party to his disadvantage.' U.S. v. Hall, 2 Wash. C. C. 366. He adds, by way of application to that case, which was for a violation of the embargolaws: 'It the enforcing law applies to this case, there can be no doubt that, so far as it takes away or impairs the defense which the law had provided the defendant at the time when the condition of this bond became forfeited, it is ex post facto and inoperative.' This case was carried to the supreme court and the judgment affirmed. 6 Cranch, 171.

The new constitution of Missouri does not take away what, by the law of the state when the crime was committed, was a good defense to the charge of murder in the first degree.

In the subsequent cases of Cummings v. State and Ex parte Garland, 4 Wall. 277-333, this court held that a law which excluded a minister of the gospel from the exercise of his clerical function, and a lawyer from practice in the courts, unless each would take an oath that they had not engaged in or encouraged armed hostilities against the government of the United States, was an ex post facto law, because it punished, in a manner not before punished by law, offenses committed before its passage, and because it instituted a new rule of evidence in aid of conviction. Though this court was divided in that case, it was because the minority were of the opinion that the act in question was not a crimes act, and that it inflicted no punishment, in the judicial sense, for any past crime, and they did not controvert the proposition that it was an ex post facto law if it had that effect.

In these cases we have illustrations of the liberal construction which this court, and Mr. Justice WASHINGTON in the circuit court, have given to the words 'ex post facto law'-a construction in manifest accord with the purpose of the constitutional convention to protect the individual rights of life and liberty against hostile retrospective legislation. Nearly all the states of the Union have similar provisions in their constitutions, and whether they have or not, they all recognize the obligatory force of this clause of the federal constitution on their legislation. A reference to some decisions of those courts will show the same liberality of construction of the provision, many of them going much further than is necessary to go in this case to show the error of the Missouri courts.

In the supreme court of Massachusetts, in the case of Com. v. McDonough, 13 Allen, 581, it was held that a law passed after the commission of the offense of which defendant stood charged, which mitigated the punishment, as regarded the fine and the maximum of imprisonment that might be inflicted, was an ex post facto law as to that case, because the minimum of imprisonment was made three months, whereas before there was no minimum limit to the court's discretion. This slight variance in the law was held to make it ex post facto and void as to that case, though the effect of the decision was to leave no law by which the defendant could be punished, and he was discharged, though found guilty of the offense.

In the case of Hartuny v. People, 22 N. Y. 95, after she had been convicted of murder and sentenced to death, and while her case was pending on appeal, the legislature of that state changed the law for the punishment of murder in general, so as to authorize the governor to postpone indefinitely the execution of the sentence of death, and to keep the party confined in the penitentiary at hard labor until he should order the full execution of the sentence or should pardon or commute it. The court of appeals held that, while this later law repealed all existing punishments for murder, it was ex post facto as to Mrs. Hartung's Case, and could not be applied to it, and this was decided in face of the fact that it resulted in the discharge of a convicted murderess without any punishment at all. Judge DENIO, in delivering the opinion of the court, makes these excellent observations:

'It is highly probable that it was the intention of the     legislature to extend favor, rather than increased severity,      towards this convict and others in her situation; and it is      quite likely that, had they been consulted, they would have      preferred the application of this law to their cases, rather      than that which existed when they committed the offences of      which they were convicted. But the case cannot be determined     upon such considerations. No one can be criminally punished     in this country, except according to a law prescribed for his government by      the sovereign authority, before the imputed offence was      committed, and which existed as a law at that time. . . . No     State shall pass any ex post facto law, is the mandate of the      Constitution of the United States.' (Emphasis added.)

This is reaffirmed by the same court in the cases of Shepherd v. People, 25 N. Y. 406; Green v. Shumway, 39 N. Y. 418; and In re Petty, 22 Rand. (Kan.) 477, the same thing is decided.

In the case of State v. Keith, 63 N. C. 140, the supreme court of that state held that a law repealing a statute of general amnesty for offenses arising out of the rebellion was ex post facto and void, though both statutes were passed after the acts were committed with which defendant was charged.

In the case of the State v. Sneed, 25 Tex. (Supp.) 66, the court held that, in a criminal case barred by the statute of limitations, a subsequent statute which enlarged the time necessary to create a bar was, as to that case, an ex post facto law, and it could not be supposed to be intended to apply to it.

When, in answer to all this evidence of the tender regard for the rights of a person charged with crime under subsequent legislation affecting those rights, we are told that this very radical change in the law of Missouri to his disadvantage is not subject to the rule because it is a change, not in crimes, but in criminal procedure, we are led to inquire what that court meant by criminal procedure.

The word 'procedure,' as a law term, is not well understood, and is not found at all in Bouvier's Law Dictionary, the best work of the kind in this country. Fortunately a distinguished writer on criminal law in America has adopted it as the title to a work of two volumes. Bishop, Crim. Proc. In his first chapter he undertakes to define what is meant by procedure. He says: 'Sec. 2. The term procedure is so broad in its signification that it is seldom employed in our books as a term of art. It includes in its meaning whatever is embraced by the three technical terms, 'pleading,' 'evidence,' and 'practice." And in defining 'practice,' in this sense, he says: 'The word means those legal rules which direct the course of proceeding to bring parties into the court and the course of the court after they are brought in;' and 'evidence,' he says, as part of procedure, 'signifies those rules of law whereby we determine what testimony is to be admitted and what rejected in each case, and what is the weight to be given to the testimony admitted.'

It this be a just idea of what is intended by the word 'procedure,' as applied to a criminal case, it is obvious that a law which is one of procedure may be obnoxious as an ex post facto law, both by the decision in Calder v. Bull, 3 Dall. 386, and in Cummings v. Missouri, 4 Wall. 277, for in the former case this court held that 'any law which alters the legal rules of evidence, and receives less or different testimony than the law requires at the time of the commission of the offense in order to convict the offender,' is an ex post facto law; and in the latter, one of the reasons why the law was held to be ex post facto was that it changed the rule of evidence under which the party was punished. But it cannot be sustained without destroying the value of the constitutional provision that no law, however it may invade or modify the rights of a party charged with crime, is an ex post facto law within the constitutional provision, if it comes within either of these comprehensive branches of the law designated as 'pleading,' 'practice,' and 'evidence.' Can the law with regard to bail, to indictments, to grand juries, to the trial jury, all be changed by state legislation, after the offense committed, to the disadvantage of the prisoner, and not held to be ex post facto, because it relates to procedure, as it does according to Mr. Bishop? And can any substantial right which the law gave the defendant at the time to which his guilt relates be taken away from him by ex post facto legislation, because, in the use of a modern phrase, it is called a law of procedure? We think it cannot.

Some light may be thrown upon this branch of the argument by recurrence to a few of the numerous decisions of the highest courts construing the associated phrase in the same sentence of the constitution which forbids the states to pass any law impairing the obligation of contracts. It has been held that this prohibition also relates exclusively to laws passed after the contract is made, and its force has been often sought to be evaded by the argument that laws are not forbidden which affect only the remedy, if they do not change the nature of the contract or act directly upon it. The analogy between this argument and the one concerning laws of procedure, in relation to the contiguous words of the constitution, is obvious. But while it has been held that a change of remedy made after the contract may be valid, it is only so when there is substituted an adequate and sufficient remedy by which the contract may be enforced, or where such remedy existed and remained unaffected by the new law. Tennessee v. Sneed, 96 U.S. 69; Antoni v. Greenhow, ante, 91.

On this point it has been held that laws are void enacted after the date of the contract: (1) Which give the debtor a longer stay of execution after judgment. Blair v. Williams, 4 Litt. (Ky.) 35; McKinney v. Carroll, 5 Mon. 98. (2) Which require on a sale of his property under execution an appraisement, and a bid of two-thirds the value so ascertained. Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608; 4 Litt. 35; Sprott v. Reid, 3 G. Greene, 489. (3) Which allow a period of redemption after such sale. Lapsley v. Brashear, 4 Litt. 58; 7 Mon. (Ky.) 54; Cargill v. Power, 1 Mich. 369; Robinson v. Howe, 13 Wis. 341. (4) Which exempt from sale under judgment for the debt a larger amount of the debtor's property than was exempt when the debt was contracted. Edwards v. Kearney, 96 U.S. 59, and the cases there cited; Story, Comm. Const. § 1385.

There are numerous similar decisions showing that a change of the law which hindered or delayed the creditor in the collection of his debt, though it related to the remedy or mode of procedure by which that debt was to be collected, impaired the obligation of the contract within the meaning of the constitution. Why are not the rights of life and liberty as sacred as the right of contract? Why should not the contiguous and associated words in the constitution, relating to retroactive laws, on these two subjects, be governed by the same rule of construction? And why should a law, equally injurious to the rights of the party concerned, be void in one case and not in the other, under the same circumstances? But it is said that at the time the prisoner pleaded guilty of the second degree of murder, and at the time he procured the reversal of the judgment of the criminal court on that plea, the new constitution was in force, and he was bound to know the effect of the change of the law on his case. We do not controvert the principle that he was bound to know and take notice of the law. But, as regards the effect of the plea and the judgment on it, the constitution of Missouri made no change. It still remained the law of Missouri, as it is the law of every state in the Union, that so long as the judgment rendered or that plea remained in force, or after it had been executed, the defendant was liable to no further prosecution for any charge found in that indictment. Such was the law when the crime was committed, such was the law when he pleaded guilty, such is the law now in Missouri, and everywhere else. So that, in pleading guilty under an agreement for 10 years' imprisonment, both he and the prosecuting attorney and the court all knew that the result would be an acquittal of all other charges but that of murder in the second degree.

Did he waive or annul this acquittal by prosecuting his writ of error? Certainly not by that act, for if the judgment of the lower court sentencing him to 25 years' imprisonment had been affirmed, no one will assert that he could still have been tried for murder in the first degree. Nor was there anything else done by him to waive this acquittal. He refused to withdraw his plea of guilty. It was stricken out by order of the court against his protest. He refused then to plead not guilty, and the court in like manner, against his protest, ordered a general plea of not guilty to be filed. He refused to go to trial on that plea, and the court forced him to trial.

The case rests then upon the proposition that, having an erroneous sentence rendered against him on the plea accepted by the court, he could only take the steps which the law allowed him to reverse that sentence at the hazard of subjecting himself to the punishment of death for another and a different offense of which he stood acquitted by the judgment of that court; that he prosecuted his legal right to a review of that sentence with a halter around his neck, when, if he succeed in reversing it, the same court could tighten it to strangulation, and if he failed, it did him no good. And this is precisely what has occurred. His reward for proving the sentence of the court of 25 years' imprisonment (not its judgment on his guilt) to be erroneous, is that he is now to be hanged, instead of imprisoned in the penitentiary. No such result could follow a writ of error before, and as to this effect the new constitution is clearly ex post facto. The whole error, which results in such a remarkable conclusion, arises from holding the provision of the new constitution applicable to this case, when the law is ex post facto and inapplicable to it.

If Kring or his counsel were bound to know the law when they prosecuted the writ of error, they were bound to know it as we have expounded it. If they knew that by the words of the new constitution such a judgment of acquittal as he had when he undertook to reverse it would be no longer an acquittal after it was reversed, they also knew that, being as to his case an ex post facto law, it could have no such effect on that judgment.

We are of opinion that any law passed after the commission of an offense which, in the language of WASHINGTON, in U.S. v. Hall, 'in relation to that offense, or its consequences, alters the situation of a party to his disadvantage,' is an ex post facto law; and in the language of DENIO, in Hartung v. People: 'No one can be criminally punished in this country, except according to a law prescribed for his government by the sovereign authority before the imputed offense was committed, and which existed as a law at the time.'

Tested by these criteria, the provision of the constitution of Missouri which denies to plaintiff in error the benefit which the previous law gave him of acquittal of the charge of murder in the first degree, on conviction of murder in the second degree, is, as to his case, an ex post facto law within the meaning of the constitution of the United States, and for the error of the supreme court of Missouri, in holding otherwise, its judgment is reversed, and the case is remanded to it, with direction to reverse the judgment of the criminal court of St. Louis, and for such further proceedings as are not inconsistent with this opinion.


text: Talk:Kring v. State of Missouri/Opinion of the Court


text:
Bowden v. Johnson

J. A. J. Creswell, for appellant.

''Thos. N. McCarter'', for appellee.

BLATCHFORD, J.

title: Bowden v. Johnson


text: Talk:Bowden v. Johnson

title: Talk:Bowden v. Johnson