text:
Mellen v. Wallach/Opinion of the Court

Mrs. Susan L. Wallach, the wife of Charles L. Wallach, and Mrs. Catharine Burche, the wife of Raymond W. Burche, sisters and owners, as tenants in common, of land and buildings on the north-west corner of Sixth street west and D street north, in the city of Washington, joined with their husbands on January 15, 1872, in the execution to Joseph C. G. Kennedy of a deed of trust of that property to secure the payment to Mrs. Rebecca R. Mellen of a joint and several promissory note for $5,000, made by the grantors, payable at the end of five years from that date, with interest, at the rate of 10 per cent. per annum, payable in quarterly installments. The deed provided that the trustee might, on default, sell the property at public sale to the highest bidder, on such terms and conditions as he might deem most for the interest of all parties concerned in the sale, first giving at least 10 days' notice of the time, place, and terms of sale, by published advertisement. The deed provided that the proceeds of the sale, after paying its expenses, and other expenses of the trust, and a commission to the trustee, should be used to pay the debt, interest, costs, and expenses, whether due and unpaid, or unpaid though not due, and the surplus to the grantors. There was also a provision that the expense of insurance, as well as of any taxes the payment whereof might become necessary, should thereupon become a debt due and owing by the grantors, the payment of which should be secured by the deed.

There being default in the payment of interest, the trustee published a notice that he would sell the property at public auction, on December 8, 1873, on the following terms: $5,000, with interest thereon at the rate of 10 per cent. per annum, from January 15, 1873, 'together with the expenses of sale, in cash, and the balance at one and two years, for which the purchaser is to give his notes, bearing interest at the rate of 8 per cent. per annum, and secured by deed of trust on the property sold.' The property was sold for $16,509.66. The purchaser was Mrs. Burche. The charges against the purchase money were stated by the trustee to be $7,692.45, made up of $5,093.74 for note and interest, and $2,598.71 for taxes, trustee's fee, auctioneer's commission, and advertising. This left a net balance of $8,817.21, of which one-half, or $4,408.60, was stated to belong to Mrs. Wallach, and to be the sum to be secured for her benefit under the deed of trust to be given on the property sold, according to the published terms of sale. Mr. Kennedy, as trustee, and Mrs. Mellen, on December 15, 1873, made a deed to Mrs. Burche, conveying the property to her. This deed was acknowledged by the trustee on December 24, 1873. On that day Mrs. Burche executed to Mrs. Mellen a deed of trust of the same property, to secure the payment of a promissory note bearing that date, made by Mrs. Burche, for $8,200, payable to the order of Mrs. Elizabeth Hain, five years after date, with interest at the rate of 10 per cent. per annum, payable quarterly. This deed was acknowledged and recorded on that day, so as to make it a first lien on the property. On the same day Mrs. Burche executed two promissory notes, payable to the order of Mr. Kennedy, each for $2,204.30, payable one in one year and the other in two years after date, with interest at the rate of 8 per cent. per annum, and, to secure them, executed to Anthony Hyde and Albert F. Fox a deed of trust on the same property. This deed was acknowledged December 31, 1873, and recorded January 7, 1874. Of course, it was only a second lien on the property. Mrs. Mellen, Mrs. Burche, and the trustee intended that these notes to Mr. Kennedy and this second deed of trust should be the provision for the $4,408.60 for Mrs. Wallach.

What was done came about in this way: Mrs. Mellen made an arrangement with Mrs. Burche to let the $5,000 of principal stand, and to lend her $3,200 more, if she would secure the $8,200 by a first lien on the property. Mrs. Hain was the mother of Mrs. Mellen, and lent to her $1,000 of the $3,200. Mrs. Mellen furnished the rest, and had the note made to Mrs. Hain, and herself made trustee. Subsequently the notes were transferred to her. With some of the $3,200, the interest, taxes, expenses, etc., beyond the $5,000, were paid, and the remainder Mrs. Burche retained. Mrs. Wallach never accepted the two notes given to Mr. Kennedy, or the deed of trust securing them, and did not record that deed, or procure or authorize it to be recorded. In September, 1873, there being a dispute between Mrs. Wallach and Mrs. Burche as to the application of the rents of the property, which, under an agreement between them, Mrs. Wallach had been receiving for several years, and as to other matters concerning the property, they agreed, in writing, to submit the matter to three referees, who made an award November 8, 1873. On January 29, 1874, Mrs. Burche brought a suit in equity in the supreme court of the District of Columbia against Mrs. Wallach and Mr. Kennedy, praying for an accounting between herself and her sister respecting their interests in the property, and respecting the rents received, and taxes paid, and repairs made by Mrs. Wallach, and respecting the moneys Mrs. Burche had paid or secured on the property for taxes and expenses of the trustee's sale, and interest on the debt to Mrs. Mellen, and respecting charges on the property at the time of the sale, and that the amount which should be found to be due to Mrs. Burche be deducted from the $4,408.60 going to Mrs. Wallach, and that Mrs. Wallach convey her interest in the property to Mrs. Burche in fee-simple, and that Mr. Kennedy and Mrs. Wallach be enjoined from parting with the two notes or their proceeds till a final decree. On December 1, 1874, Mrs. Wallach filed an answer to Mrs. Burche's bill, and also a cross-bill against Mr. Kennedy, Mr. and Mrs. Burche, Mrs. Hain, and Mrs. Mellen. In this bill she attacked the validity of the sale under the deed of trust, for various reasons, and prayed for an accounting between herself and Mrs. Burche, and for the setting aside of the award and of the sale under the deed of trust, and for the canceling of the deed from Mr. Kennedy to Mrs. Burche, and for a sale of the property. This cross-bill was not prosecuted, but on the sixteenth of January, 1875, Mrs. Wallach filed an original bill in the same court against the same defendants as in the cross-bill, and containing in substance the same allegations, and praying the same relief, and, in addition, the canceling of the trust deed from Mrs. Burche to Mrs. Mellen, and of that from Mrs. Burche to Hyde and Fox. This bill contains the averment that Mrs. Wallach never admitted that the sale to Mrs. Burche was a valid one, and that she had never received, or sought to receive, any benefit therefrom, or to claim anything thereunder, and that, shortly after the sale was made, she gave notice to Mr. Kennedy that she denied that the sale was valid. Mr. and Mrs. Burche answered this bill. So did Mrs. Mellen. The two suits were brought to a hearing together, on proofs, before the court at special term, and on the twenty-seventh of June, 1877, a decree was made, entitled in both suits, adjudging the sale of December 8, 1873, to have been a valid sale, and that Mrs. Burche and Mrs. Wallach agreed with Mrs. Mellen that the sale should be made, and that, if either of them should purchase at the sale, Mrs. Mellen should lend to the purchaser so much money as should be found necessary to pay off the liens on the property and the arrears of interest, with costs and expenses of sale, and add the same to the original debt of $5,000, and take a new deed of trust for the aggregate amount of those two sums, which deed was to be the first mortgage on the property. The decree referred the suit brought by Mrs. Burche to an auditor to state accounts between Mrs. Burche and Mrs. Wallach. A decree was made dismissing the bill filed by Mrs. Wallach. She appealed from both decrees to the court in general term, which, by a decree made June 5, 1878, consolidated the two suits, reversed the decree in the suit brought by Mrs. Wallach, modified the decree in the other suit, and directed the court in special term to enter a decree in the consolidated suits, confirming the sale by Mr. Kennedy, and referring it to an auditor to take various accounts between the parties. On the fifth of May, 1879, he reported eight accounts. Mrs. Mellen excepted to the report, and the auditor was directed to state a further account. He did so on October 30, 1879.

On the third of January, 1880, the court in special term made a decree in the consolidated suit, adjudging that the sum of $5,000 due to Mrs. Mellen, and the further sum of $2,429.02 afterwards advanced by her for the payment of interest in arrear, taxes, and other incumbrances, constituted the only lien upon the estate of Mrs. Burche and Mrs. Wallach in the property on the day of sale, December 8, 1873; that the further sum of $970.98 was due Mrs. Mellen from Mrs. Burche, and chargeable on her share in the property; that the sum of $3,975.49 became due on December 8, 1873, to Mrs. Wallach, with interest at the rate of 8 per cent. per annum, for her share of the net proceeds of the sale of the property on that day; and that the property be sold by trustees. An ineffectual attempt by them to sell at auction was made January 26, 1880; $11,000 being bid, and the property being then withdrawn. On June 9, 1880, they sold it at auction to Mrs. Mellen for $9,900. On exceptions by Mrs. Wallach, the court, on November 8, 1880, set aside the sale, and ordered another. It was made at auction on November 19, 1880, to Mrs. Mellen for $9,900. On December 29, 1880, the court, in special term, made a decree confirming the sale, and allowing Mrs. Mellen to discount out of the purchase money her claim of $7,429.02, fixed by the decree of January 3, 1880, with interest on $7,105.41 thereof from December 8, 1873, and the taxes and assessments which had accrued against the property since that date. A statement agreed to between Mrs. Mellen and Mrs. Wallach showed that the net proceeds of sale were insufficient to pay the claims so allowed to Mrs. Mellen by the sum of $3,580.81. Mrs. Wallach appealed to the court in general term, and on the ninth of July, 1881, it made a decree (1 Mackey, 236) which adjudged that the arrangement made between Mrs. Burche and Mrs. Mellen to incumber the property for $8,200 was without the knowledge of Mrs. Wallach, and was never approved or ratified by her; that, at the time of the execution of the trust deed for $8,200, Mrs. Wallach was entitled to have out of the property $3,975.49, with interest at the rate of 8 per cent. per annum from December 8, 1873; that the rights of Mrs. Wallach had not been waived by her, and could not be affected by any arrangement between Mrs. Burche and Mrs. Mellen; that the decree of the court in special term, made December 29, 1880, be reversed; that Mrs. Mellen comply with the terms of sale on her purchase within 30 days, or the property be resold at her risk and cost; that the proceeds of the property be applied in the first place to pay to Mrs. Wallach the $3,975.49, with interest thereon at the rate of 8 per cent. per annum from December 8, 1873, and the residue to be paid to Mrs. Mellen; and that Mrs. Mellen pay the costs of the suits. From this decree Mrs. Mellen has taken the present appeal.

The only question for consideration is whether Mrs. Mellen or Mrs. Wallach is entitled to priority of payment out of the net proceeds of the sale of the property under the decree of January 3, 1880. If Mrs. Mellen is entitled to priority, there is nothing for Mrs. Wallach; and she will have lost her interest in the property and her share of the net proceeds of its sale by Mr. Kennedy. Mr. Kennedy was authorized by the deed of trust to sell upon such terms and conditions as he might deem most for the interest of all parties concerned in the sale. He exercised his best judgment in prescribing the terms he did, which were $5,000, with interest at the rate of 10 per cent. per annum from January 15, 1873, and the expenses of the sale, in cash, and the balance at one and two years, with interest at 8 per cent per annum, secured by deed of trust on the property sold. Although Mrs. Wallach attacked the validity of the sale by her suit, and prayed for the canceling of the deed from Mr. Kennedy to Mrs. Burche, and of the trust deed from Mrs. Burche to Mrs. Mellen, the court, in special term, by its decree of June 27, 1877, adjudged the sale to be valid, and, although Mrs. Wallach appealed, the court in general term confirmed the sale. If that sale had been carried out according to its terms, Mrs. Mellen would have received in cash her $5,000 of principal, and what was due to her beyond that would have been secured in notes at one and two years, with a deed of trust, and the surplus going to Mrs. Wallach would have been secured by the same deed of trust. But in such event Mrs. Mellen would have been entitled to receive first the whole amount going to her before Mrs. Wallach could receive anything, because Mrs. Wallach's claim was only to the surplus. But the sale by Mr. Kennedy was not carried out according to its terms. The court, in general term, by its decree of June 5, 1878, confirmed the sale, and provided for taking accounts, although it reversed the decree which had dismissed Mrs. Wallach's bill, and evidently contemplated then that the sale might be carried out; for the decree says that inasmuch as the settlement for such sale, made by Mrs. Mellen and Mrs. Burche, was complained of, and it was alleged that the account on which the sale was settled was made up without the knowledge of Mrs. Wallach, and Mrs. Wallach alleged that a much larger amount had been charged to her than ought to have been, therefore, in order to settle the equities of the parties interested in the sale, between Mrs. Mellen and Mrs. Wallach and Mrs. Burche, and between Mrs. Mellen and Mrs. Burche, and between Mrs. Wallach and Mrs. Burche, growing out of the sale, and otherwise, the reference is made. The reference embraced an ascertainment of the liens on the property at the date of its sale, and what share of them was chargeable to Mrs. Wallach, and what sum, if any, due from her to Mrs. Burche ought to be set off against Mrs. Wallach's interest in the proceeds of Mr. Kennedy's sale, and what were the expenses of such sale. The same decree reserved all the equities between the parties touching the matters in controversy until the report should be made and confirmed.

The $8,200 deed of trust was given by Mrs. Burche to Mrs. Mellen, and the parties got into litigation. As a result of that, the court in special term decreed, on January 3, 1880, that the sum of $5,000 due to Mrs. Mellen, and the $2,429.02 which she had advanced to pay interest in arrear, taxes, and other incumbrances, were liens on the property on the day of Mr. Kennedy's sale. But the decree went on to direct a sale of the property, and of all the interest and estate therein, of all the parties to the suit, by trustees whom it appointed. The decree directed the trustees to bring into court the money and notes which they should receive, to be distributed under the further order of the court. This decree was not appealed from, but the sale took place under it. That sale was confirmed by the court in special term, by its decree of December 29, 1880. Mrs. Mellen acquiesced in that decree by not appealing from it. On Mrs. Wallach's appeal from it, the court in general term decreed that the trustees who made the sale should require Mrs. Mellen to comply specifically with the terms of her purchase. Mrs. Wallach did not appeal from that, and so she acquiesced in it; and Mrs. Mellen, on her appeal to this court, assigns for error only the action of the general term in giving to Mrs. Wallach priority of payment. Mrs. Burche, being a party to both suits, and not appealing, is bound by the decrees. In view of all this, it must be held that all parties have by their action abandoned the sale by Mr. Kennedy, and acquiesced in the subsequent sale to Mrs. Mellen. It follows from this that all claim of Mrs. Wallach to any surplus from the sale by Mr. Kennedy is gone. Mrs. Mellen, instead of exacting on the sale in cash her $5,000, was willing to leave it to be still a first lien on the property. Her priority of lien, as established by the decree of January 3, 1880, which was not appealed from, extended to the sum of $2,429.02, beyond the $5,000, as money which she had paid to discharge interest, costs, expenses, and taxes which were made a lien on the property by the trust deed to Mr. Kennedy. That amount was, with the $5,000 embraced in the $8,200, covered by the deed of trust made by Mrs. Burche. But, to the extent of $7,429.02, with the interest awarded by the decree of December 29, 1880, Mrs. Mellen's claim stands and has never been satisfied. It is a first lien under the trust deed to Mr. Kennedy, which remains to be enforced for the benefit of Mrs. Mellen, the sale under that deed being, as shown, out of the way, by assent of all parties. Mrs. Mellen has never waived that claim and lien. She asserted them by taking the trust deed from Mrs. Burche, to which we see no valid objection, so far, at least, as the amount for which she had a lien at the date of Mr. Kennedy's sale is concerned, and which is the amount allowed her by the court in special term as a lien. She has asserted the same claim and lien constantly ever since. She did not abandon them by assenting to the resale provided for by the decree of January 3, 1880. In fact, that decree, so far as the $7,429.02 adjudged by it to be due to Mrs. Mellen and to have been a lien on the property on the day of Mr. Kennedy's sale, and so far as Mrs. Mellen's claim to that extent is concerned, may properly be regarded as ordering a resale to enforce Mrs. Mellen's rights under the deed of trust to Mr. Kennedy. Such is its effect. Astor v. Miller, 2 Paige, 68; Olcott v. Bynum, 17 Wall. 63; Markey v. Langley, 92 U.S. 142, 155.

The decree of the court in general term, made July 9, 1881, is reversed, and the cause is remanded to that court, with direction to affirm, with costs, the decree of the court in special term made December 29, 1880, and to take or direct such further proceedings as may be in conformity with law and not inconsistent with this opinion.

title: Mellen v. Wallach/Opinion of the Court


text: Talk:Mellen v. Wallach/Opinion of the Court

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


text:
Butterworth v. United States

''Sol. Gen. Phillips'', for plaintiff in error.

A. J. Willard, for defendant in error.

MATTHEWS, J.

title: Butterworth v. United States


text: Talk:Butterworth v. United States

title: Talk:Butterworth v. United States


text:
Butterworth v. United States/Opinion of the Court

This is a writ of error prosecuted for the purpose of reviewing and reversing the judgment of the supreme court of the District of Columbia, awarding a peremptory mandamus commanding the plaintiff in error, the commissioner of patents, to receive the final fee of $20 tendered by the relators, and cause letters patent of the United States to R. Hoe & Co., as assignees of Gill, to be prepared and sealed, according to law, for a certain invention therein particularly described, and to be presented to the secretary of the interior for his signature. The facts upon which the controversy arises are shown by the record to be as follows: On March 12, 1881, Gill, one of the relators, made application in due form to the commissioner of patents for letters patent for certain new and useful improvements in printing machines, of which he claimed to be the original and first inventor. An interference was declared with an unexpired patent, No. 238,720, granted to Walter Scott, March 8, 1881. A hearing was had before the examiner of interferences, who decided in favor of Scott, and, on appeal to the examiners in chief, that decision was affirmed. An appeal from that decision was taken by Gill to the commissioner of patents, who decided that Gill was the original and first inventor of the improvements claimed, and was entitled to a patent therefor; and on June 4, 1883, adjudged that such patent should issue to the relators, composing the partnership of R. Hoe & Co., as assignees of Gill, the inventor. On June 14, 1883, an appeal was taken by Scott from that decision of the commissioner of patents to the secretary of the interior, under rules prescribed by that officer, dated May 17, 1883, who, on March 7, 1884, reversed the decision of the commissioner of patents in favor of Gill, adjudged Scott to be the original and first inventor of the improvements claimed, and that Gill was not entitled to a patent therefor. In his return to the alternative writ the commissioner of patents, admitting that he had refused, in compliance with the demand of the relators, to accept their tender of the final fee, and to prepare the patent for signature, and to take any further steps therein, declares: 'That he so refused, not because he desired to make further inquiry, or to be further advised in that behalf, no motion or other proceeding for rehearing or review had been taken or was pending before him in that behalf, but that he based his refusal, and does so still, solely upon the ground that the honorable the secretary of the interior had entertained the appeal taken to him from said decision under the rules aforesaid, and had, in pursuance of said appeal, entered a decision reversing that of the commissioner of patents, and awarded priority of invention to Walter Scott.'

The return proceeds as follows: 'Your respondent further says that for many years, and until 1881, it was held, in pursuance of decisions and opinions of the honorable attorney general made in that behalf, that the honorable the secretary of the interior had, and therefore has, no legal authority to review on appeal a decision of the commissioner of patents wherein the commissioner has finally adjudged and applicant to be entitled to a patent as prayed for in his application; in other words, that the judgment of the commissioner of patents upon the right of an applicant to have an receive a patent is final and conclusive, subject only to review by the supreme court of the District of Columbia, and such other courts as have jurisdiction in that behalf, and by the commissioner; and the practice of the patent-office and of the honorable the secretary of the interior conformed thereto. This question, however, was again raised in the cases of Nicholson v. Edison and Le Roy v. Hopkins, and the honorable the attorney general of the United States, to whom the question was again referred, in an opinion signed on the twentieth day of August, 1881, held that the honorable the secretary of the interior had and could, on appeal to him, exercise the jurisdiction to review the decision of the commissioner of patents, and control his action in that behalf; and later on, to-wit, the twenty-sixth day of February, 1884, the honorable secretary, in an official letter, (a copy of which is hereto attached, marked E,) advised your respondent that he, the honorable secretary, had, in pursuance of the opinion of the honorable attorney general, exercised jurisdiction on appeal from the judicial action of the commissioner in determining questions devolved upon him by the statute. In deference to that opinion, and the action of the honorable the secretary of the interior in the case under consideration, your respondent refused, and does refuse, to accede to the demand of the relator. That, in view of the decisions and the uniform practice of the commissioners of patents and the heads of the department of the interior prior to 1881, doubt and uncertainty have arisen touching the legal obligations devolving upon your respondent in the case under consideration and those of like character. Your respondent further says that if the judgment of the commissioner of patents, which is that the relator is entitled to receive his patents as prayed for, is final, and if, upon such judgment, it is the lawful duty of the respondent to accept said final fee, and take the necessary and proper steps to prepare said patent for issued as prayed, then your respondent has improperly refused, and does improperly refuse, to prepare said patent for issue; but, if his decision is subject to review and reversal on appeal to the honorable the secretary of the interior, then such refusal on the part of your respondent to accept said fee and prepare said patent for issue is right and proper.'

The return of the commissioner also sets out as exhibits the decision of his predecessor in office awarding priority of invention to Gill, and adjudging him to be entitled to a patent; the appeal of Scott to the secretary of the interior; the rules governing such appeals as adopted and promulgated by that officer; the decision on that appeal by the secretary, communicated by letter to the commissioner, reversing the decision of the commissioner and awarding priority of invention to Scott, and a subsequent letter of the secretary to the commissioner, dated February 26, 1884, in which he states that at the request of his predecessor, Mr. Kirkwood, in connection with the case of Nicholson v. Edison and Le Roy v. Hopkins, the attorney general considered the question as to the extent of the supervisory authority of the secretary over the acts of the commissioner, and, in an opinion dated August 20, 1881, reached the conclusion that the final discretion in all matters relating to the granting of pattents is lodged in the secretary of the interior; that Secretary Kirkwood concurred in that opinion, and from that time to the present, appeals from the judicial action of the commissioner of patents have been considered by the secretary of the interior; that the attention of congress was particularly directed to this new practice in the annual report of the secretary of the interior for 1881, and that there has not since been any legislative expression of dissent from the interpretation the existing law had received; and that he does not feel justified in discontinuing a practice which he finds thus established. It is clear enough that if the action of the commissioner of patents, in the matter of controversy, is subject to the order of the secretary of the interior, the judgment of the supreme court of the District of Columbia must be reversed; for mandamus evidently will not lie to compel a public officer to do a particular thing which his superior in authority has lawfully ordered him not to do. The direct and immediate question, therefore, for our determination is whether the secretary of the interior had power by law to revise and reverse the action of the commissioner of patents in awarding to Gill priority of invention, and adjudging him entitled to a patent.

The authority and power claimed by the secretary of the interior are asserted and maintained upon these general grounds: That he is the head of the department of which the patent-office is a bureau; that the secretary is charged by section 441, Rev. St., with the supervision of public business relating to patents for inventions, in the same terms and in the same sense as in the cases of the various other subjects which in that section are classed together, to-wit, the census, the public lands, the Indians, pensions, and bounty lands, the custody and distribution of publications, etc.; that by section 4883 it is required that all patents shall be signed by the secretary, as the responsible representative of the government, in whose name the grant is made, and countersigned by the commissioner of patents only to attest the act of his superior; that by section 481, while the commissioner is required to superintend or perform all duties respecting the granting and issuing of patents directed by law, it is thereby also provided that it must be under the direction of the secretary of the interior,-a clause to be read, it is argued, as if it were expressly inserted as a qualification of every statutory duty imposed upon the commissioner; that by section 483 the regulations which from time to time the commissioner may establish for the conduct of proceedings in the patent-office, are subject to the approval of the secretary; that by section 487 the reasons for the refusal of the commissioner to recognize any person as a patent agent, either generally or in any particular case, are subject to the approval of the secretary; that this general relation of official subordination, with the accompanying powers of supervision and direction, extends to all the official acts of the commissioner, without regard to any distinction between those which are merely ministerial and those which are judicial in their nature; and that such supervision and direction may be exerted at any stage of a proceeding, in the discretion of the secretary, whether in advance or during its progress, or after its termination, and embraces, therefore, the mode of appeal, though no appeal in express terms is actually given. And it is claimed that this conclusion is strengthened by the analogy of the other bureaus, forming parts of the various executive departments of the government, like that, for example, of the general land-office, the commissioner of which is by law subject to the supervision of the secretary of the interior, in respect to which it was decided in Maguire v. Tyler, 1 Black, 195, approved and affirmed in Synder v. Sickles, 98 U.S. 203, that the power of supervision and appeal vested in the secretary extends to all matters relating to the general landoffice, and is co-extensive with the authority of the commissioner to adjudge.

In reference to this argument from the analogy of the general relation of the heads of executive departments to their bureau officers, it may as well be observed, in this connection, that, although not without force, it will be very apt to mislead, unless particular regard is had to the nature of the duties intrusted to the several bureaus, and critical attention is given to the language of the statutes defining the jurisdiction of the chief and his subordinates, and the special relation of subordination between them respectively; for it will be found, on a careful examination, too extensive and minute to be entered upon here, that the general relation between them, of superior and inferior, is varied by the most diverse provisions, so that in respect to some bureaus the connection with the department seems almost clerical, and one of mere obedience to direction, while in that of others the action of the officer, although a subordinate, is entirely independent, and, so far as executive control is concerned, conclusive and irreversible. And in respect to the particular illustration drawn from the relation of the general land-office to the department of the interior, the language of the section of the Revised Statutes (section 453) describes the duties of the commissioner, to be performed under the direction of the secretary, as executive duties, while those which relate to the decision of questions of private right under the pre-emption laws, being quasi judicial, are made by section 2273 expressly subject to an appeal, first from the register and receiver to the commissioner, and from him to the secretary. Lytle v. Arkansas, 9 How. 314; Barnard's Heirs v. Ashley's Heirs, 18 How. 43. Each case must be governed by its own text, upon a full view of all the statutory provisions intended to express the meaning of the legislature.

To determine that intention of the legislature, in reference to the principal question in the present case, it becomes important, in the first place, to obtain a clear idea of the nature and extent of the jurisdiction involved in the claim, that all the official acts of the commissioner of patents are subject to the direction and superintendence of the secretary of the interior. If the secretary is charged by law with the performance of such a duty, he is bound to fulfill it. It is imperative, not discretionary. He cannot discharge it, according to the intention of the statute, in a manner either arbitrary or perfunctory. While it may be admitted that, so far as the public alone have an interest in the proper performance by the commissioner of his duties in the administration of his bureau, the secretary might satisfy his duty of direction and superintendence by prescribing general rules of conducting the public business and securing, by general oversight, conformity to them; yet, on the other hand, it must also be admitted that whenever a private person acquires by law a personal interest in the performance by the commissioner of any act, he thereby also acquires an individual interest in the direction and supervision of the secretary, to correct any error, or supply any ommission or defect in its performance, tending to his injury. It is a maxim of the law, admitting few if any exceptions, that every duty laid upon a public officer, for the benefit of a private person, is enforceable by judicial process. So that the secretary would be bound, upon proper application, in every such instance, to inquire into, and if necessary redress, the alleged grievance. And hence the official duty of direction and supervision on the part of the secretary implies a correlative right of appeal from the commissioner, in every case of complaint, although no such appeal is expressly given. Such, indeed, is the practical construction put by the secretary himself upon his own powers and duties; for the rules governing appeals to the secretary of the interior in patent cases, made part of the return here, assume the equal right of all parties to the proceeding, whether ex parte or otherwise, to obtain his review of the action of the commissioner, not only in the final judgment, but upon all interlocutory questions material to the matter, to the decision of which exceptions have been duly taken during the progress of the inquiry. It is further to be observed, in the same connection, that if the power and duty of the secretary, in directing and superintending the performance by the commissioner of his duties, and those of all other subordinates in the bureau, may be exercised in the form of appeal, it may also be exercised in any other mode, in the discretion of the secretary, suitable to the end in view; for, if directing and superintending include review by appeal after a decision, they may as well embrace dictating, either in advance of action or from time to tome, during its course and progress. So that it follows, in every case of an application for a patent, or for a reissue, or for an extension, or in cases of an interference, the secretary may direct the matter to be heard before himself, and thereupon further direct what decision shall be rendered in each matter by the commissioner, so as to meet his approval. This right of interposition, at any state of the proceeding, is explicitly maintained in the opinion of attorney general of August 20, 1881, which was made the basis for the reversal of the previous practice of the department in this particular, as will appear by the following extract: 'From the right and power of the secretary to withhold his signature from the patent, unless he is satisfiled of the claimant's title thereto, plainly follows an equal right to direct the commissioner, while the proceedings are pending, to receive an amendment which will open up a line of evidence that may throw light on that title.'

We are led, therefore, immediately to inquire whether such a construction of phrases, employed in establishing the organization of the patent-office as a bureau in the department of the interior, is justified by a view of the whole legislation in part materia, and consistent with the integrity of the system of the statutes in relation to letters patent for new and useful inventions. The general object of that system is to execute the intention of that clause of the constitution, art. 1, § 8, which confers upon congress the power 'to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.' The legislation based on this provision regards the right of property in the inventor as the medium of the public advantage derived from his invention; so that in every grant of the limited monopoly two interests are involved: that of the public, who are the grantors, and that of the patentee. There are thus two parties to every application for a patent, and more, when, as in case of interfering claims or patents, other private interests compete for preference. The questions of fact arising in this field find their answers in every department of physical science, in every branch of mechanical art. The questions of law necessary to be applied in the settlement of this class of public and private rights have found a special branch of technical jurisprudence. The investigation of every claim presented involves the adjudication of disputed questions of fact, upon scientific or legal principles, and is, therefore, essentially judicial in its character, and requires the intelligent judgment of a trained body of skilled officials, expert in the various branches of science and art, learned in the history of invention, and proceeding by fixed rules to systematic conclusions.

Accordingly, it is provided in the statutes (Rev. St. § 4893) that, on the filing of any application for a patent, the commissioner shall cause an examination to be more of the alleged new invention or discovery, and if, on examination, it shall appear that the claimant is justly entitled to a patent under the law, and that the same is sufficiently useful and important, the commissioner, not the secretary, shall issue a patent therefor, although it must be signed by the secretary. The claim is examined in the first instance by a primary examiner assigned to the class to which it belongs. If twice rejected by him, the applicant is entitled (Rev. St. § 4909) to appeal from his decision to that of the board of examiners in chief, constituted a tribunal for that purpose; and from their decision, if adverse, he may appeal to the commissioner in person. Rev. St. § 4910. If dissatisfied with his decision, the party, except in cases of interference, in respect to which another provision is made, hereafter to be considered, may appeal to the supreme court of the District of Columbia. Rev. St. § 4911. To that appeal the commissioner is a formal party, the court acting only on the evidence adduced before him, and confining its revision to the points set forth in the reasons of appeal. A certificate of its proceedings and decision is to be returned to the commissioner, and entered of record in the patent-office, and shall govern, so the statute says, the further proceedings in the case, but without precluding, it continues, any person interested from the right to contest the validity of such patent in any court wherein the same may be called in question.

It is evident that the appeal thus given to the supreme court of the District of Columbia, from the decision of the commissioner, is not the exercise of ordinary jurisdiction at law or in equity on the part of that court, but is one step in the statutory proceeding under the patent laws whereby that tribunal is interposed in aid of the patent-office, though not subject to it. Its adjudication, though not binding upon any who choose, by litigation in courts of general jurisdiction, to question the validity of any patent thus awarded, is, nevertheless, conclusive upon the patent-office itself; for, as the statute declares, (Rev. St. § 4914,) it 'shall govern the further proceedings in the case.' The commissioner cannot question it. He is bound to record and obey it. His failure or refusal to execute it by appropriate action would undoubtedly be corrected and supplied by suitable judicial process. The decree of the court is the final adjudication upon the question of right. Everything after that dependent upon it is merely in execution of it. It is no longer matter of discretion, but has become imperative and enforceable. It binds the whole department, the secretary as well as the commissioner; for it has settled the question of title, so that a demand for the signatures necessary to authenticate the formal instrument and evidence of grant may be enforced. It binds the secretary by acting directly upon the commissioner; for it makes the action of the latter final by requiring it to conform to the decree.

Congress has thus provided four tribunals for hearing applications for patents, with three successive appeals, in which the secretary of the interior is not included, giving jurisdiction, in appeals fromm the commissioner, to a judicial body, independent of the department, as though he were the highest authority on the subject within it. And to say that, under the name of direction and superintendence, the secretary may annul the decision of the supreme court of the district, sitting on appeal from the commissioner, by directing the latter to disregard it, is to construe a statute so as to make one part repeal another, when it is evident both were intended to co-exist without conflict. The inference is that an appeal is allowed from the decision of the commissioner refusing a patent, not for the purpose of withdrawing that decision from the review of the secretary, under his power to direct and superintend, but because, without that appeal, it was intended that the decision of the commissioner should stand as the final judgment of the patent-office, and of the executive department, of which it is a part. As aready stated, the case of interferences is expressly excepted by section 4911 from the appeals allowed to the supreme court of the district. Further provision, covering such and also all other cases in which an application for a patent has been refused, either by the commissioner of patents or by the supreme court of the district, is found in Revised Statutes, § 4915. It is thereby provided that the applicant may have remedy by bill in equity. This means a proceeding in a court of the United States having original equity jurisdiction under the patent laws, according to the ordinary course of equity practice and procedure. It is not a technical appeal from the patent-office, like that authorized in section 4911, confined to the case as made in the record of that office, but is prepared and heard upon all competent evidence adduced, and upon the whole merits. Such has been the uniform and correct practice in the circuit courts. Whipple v. Miner, 15 Fed. Rep. 117; Ex parte Squire, 3 Ban. & A. 133; Butler v. Shaw, 21 Fed. Rep. 321. It is provided that the court, having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the commissioner to issue such patent on the applicant filing, in the patent-office, a copy of such adjudication, and otherwise complying with the requirements of law. And in all cases where there is no opposing party, a copy of the bill shall be served on the commissioner, and all the expenses of the proceeding shall be paid by the applicant, whether the final decision is in his favor or not.

It thus appears that, as, in cases of other applications for a patent refused by the commissioner, the judgment, on a direct appeal, of the supreme court of the district is substituted for, and becomes the decision of, the patent-office, so here, in cases of interference, where the commissioner has rejected an application for a patent, the decree of the circuit court of the United States governs the action of the commissioner, and requires him, in case the adjudication is in favor of the complainant, to issue the patent as decreed to him. It certainly cannot be successfully claimed that, to a writ of mandamus issued out of a court of competent jurisdiction, commanding the commissioner of patents to record and execute the judgment of the supreme court of the district, reversing on an appeal his decision refusing a patent in any case other than an interference, or the decree of a circuit court of the United States in any case under section 4915, Rev. St., requiring a patent to be issued to the claimant, it would be a sufficient answer that he had been directed by the secretary of the interior not to do so. If not, it must be and is because the decision of the commissioner, as originally rendered, or that correction of it, required by the judicial proceedings, specified in the two sections of the statutes referred to, is final and conclusive upon the department. This conclusion is strengthened by the provisions of section 4918, Rev. St. It is there enacted that in case a patent is actually, though erroneously, issued, interfering with another, any person interested in any one of them, or in the working of the invention claimed under either of them, may have relief against the interfering patentee, and all parties interested under him, by suit in equity against the owners of the interfering patent; and the court, on notice to adverse parties and other due proceedings had according to the course of equity, may adjudge and declare either of the patents void in whole or in part, or inoperative or invalid, in any particular part of the United States, according to the interest of the parties in the patent or the invention patented; of course, without prejudice to the rights of any person, except the parties to the suit, and those deriving title under them, subsequent to the rendition of the judgment. Thus, every case is fully provided for, both when the commissioner wrongfully refuses to issue a patent, and when, in case of interference, he erroneously issues one; and that, by means of judicial proceedings, through tribunals distinct from and independent of the patent-office, the integrity and force of whose judgments would be annulled, if not regarded as conclusive upon the commissioner, notwithstanding any power of direction and superintendence on the part of the secretary, which is therefore necessarily excluded.

The law gives express appeals from the decision of the commissioner, or, in cases where technical appeals are not given, other modes of review by judicial process. It gives no such appeal from him to the secretary. If it exists, it is admitted it is only by an implication which discovers an appeal in the power of direction and superintendence. That power does not necessarily, ex vi termini, include a technical appeal; and the principle applies that where a special proceeding is expressly ordained for a particular purpose it is presumably exclusive. It is clear that when the appeal is expressly authorized from the commissioner to the court, either directly or by means of an original suit in equity, another appeal to the secretary on the same matter is excluded; and no reason can be assigned for allowing an appeal from the commissioner to the secretary in cases in which he is by law required to exercise his judgment on disputed questions of law and fact, and in which no appeal is allowed to the courts that would not equally extend it to those in which such appeals are provided, for all are equally embraced in the general authority of direction and superitendence. That includes all, or does not extend to any. The true conclusion, therefore, is that in matters of this descrfiption, in which the action of the cvommissioner is quasi judicial, the fact that no appeal is expressly given to the secretary is conclusive that none is to be implied.

The conclusion is confirmed by a review of the history of legislation on the point. The first statute on the subject of patents-Act of 1790, c. 7, (1 St. 109)-authorized their issue by the secretary of state, the secretary for the department of war, and the attorney general, or any two of them, 'if they shall deem the invention or discovery sufficiently useful and important.' The act of 1793, c. 11, which next followed, (1 St. 318,) authorized them to be issued by the secretary of state upon the certificate of the attorney general that they are conformable to the act. The ninth section of the statute provided for the case of interfering applications, which were to be submitted to the decision of arbitrators chosen one by each of the parties, and the third appointed by the secretary of state, the decision or award of two of whom should be final as respects the granting of the patent.

This continued to be the law until the passage of the act of 1836, c. 357, (5 St. 117,) creating in the department of state the patent-office, 'the chief officer of which shall be called,' it says, 'the commissioner of patents,' and 'whose duty it shall be, under the direction of the secretary of state, to superintend, execute, and perform all such acts and things touching and respecting the granting and issuing of patents for new and useful discoveries, inventions, and improvements as are herein provided for, or shall hereafter be by law directed to be done and performed,' etc. By that act it was declared to be the duty of the commissioner to issue a patent if he 'shall deem it to be sufficiently useful and important,'-the very discretion previously vested in the three heads of departments by the act of 1790; and, in case of his refusal, the applicant was (section 7) secured an appeal from his decision to a board of examiners, to be composed of three disinterested persons, appointed for that purpose by the secretary of state, one of whom, at least, to be selected, if practicable and convenient, for his knowledge and skill in the particular art, manufacture, or branch of science to which the alleged invention appertained. The decision of this board being certified to the commissioner, it was declared that 'he shall be governed thereby in the further proceedings to be had on such application.' A like proceeding, by way of appeal, was provided in cases of interferences. By the sixteenth section of the act a remedy by bill in equity, as now given in sections 4915 and 4918, Rev. St., was given as between interfering patents, or whenever an application shall have been refused on an adverse decision of a board of examiners. By the eleventh section of the act of 1839, c. 88, (5 St. 354,) as modified by the act of 1852, c. 107, (10 St. 75,) it was provided that in all cases where an appeal was thus allowed by law from the decision of the commissioner of patents to a board of examiners, the party, instead thereof, should have a right to appeal to the chief justice or to either of the assistant judges of the circuit court of the United States for the District of Columbia; and by section 10 the provisions of the sixteenth section of the act of 1836 were extended to all cases where patents are refused for any reason whatever, either by the commissioner or by the chief justice of the District of Columbia, upon appeals from the decision of the commissioner, as well as where the same shall have been refused on account of or by reason of interference with a previously existing patent.

In this state of legislation the patent-office, by the act of 1849, c. 108, (9 St. 395,) was transferred to the department of the interior, the secretary of which, it was enacted, 'shall exercise and perform all the acts of supervision and appeal, in regard to the office of commissioner of patents, now exercised by the secretary of state;' which language, so far, at least, as appeals, strictly so-called, are concerned, was without force, as no appeals had ever been given from any decision of the commissioner to the secretary of state, unless that can be called so, which, by section 7 of the act of 1836, (5 St. 120), was to be determined by a board of examiners, appointed, pro re nata, by the secretary of state, and for which, as we have seen, an appeal to the chief justice of the circuit court of the District of Columbia had been substituted by the act of 1839. 5 St. 354. The act of 1861, c. 88, (12 St. 246,) created the office of examiners in chief, 'for the purpose of securing greater uniformity of action in the grant and refusal of letters patent,' 'to be composed of persons of competent legal knowledge and scientific ability, whose duty it shall be, on the written petition of the applicant for that purpose being filed, to revise and determine upon the validity of decisions made by examiners when adverse to the grant of letters patent; and also to revise and determine, in like manner, upon the validity of the decisions of examiners in interference cases, and when required by the commissioner, in applications for the extension of patents, and to perform such other duties as may be assigned to them by the commissioner; that from their decisions appeals may be taken to the commissioner of patents in person, upon payment of the fee hereinafter prescribed; that the said examiners in chief shall be governed in their action by the rules to be prescribed by the commissioner of patents.' The act of July 8, 1870, (16 St. 198,) revised, consolidated, and amended the statutes then in force on the jubject, and the substance of its provisions, material to the present inquiry, have been carried into the existing Revision.

It will be observed that the judgment and discretion, vested by the original patent law of 1790, in a mjaority of the three executive officers, the secretary of state, the secretary for the department of war, and the attorney general, who were authorized to cause letters patent to issue, 'if they shall deem the invention or discovery sufficienty useful and important,' was transferred by the act of 1836, § 7, to the commissioner of patents, it being made his duty to issue a patent for the invention, 'if he shall deem it sufficiently useful and important;' and is continued in him by section 4893, Rev. St.,-the language being that he shall cause an examination to be made of the alleged new invention, 'and if on such examination it shall appear that the claimant is justly entitled to a patent under the law, and that the same is sufficiently useful and important, the commissioner shall issue a patent therefor.' It thus appears, not only that the discretion and judgment of the commissioner, as the head of the patent-office, is substituted for that of the head of the department, but, also, that that discretion and judgment are not arbitrary, but are governed by fixed rules of right, according to which the title of the claimant appears from an investigation, for the conduct of which ample and elaborate provision is made; and that his discretion and judgment, exercised upon the material thus provided, are subject to a review by judicial tribunals whose jurisdiction is defined by the same statute. In no event could the direction of the secretary of the interior extend beyond the terms in which it is vested; that is, to the duties to be performed under the law by the commissioner. The supervision of the secretary cannot change those duties nor require them to be performed by another, nor does it authorize him to substitute his discretion and judgment for that of the commissioner, when, by law, the commissioner is required to exercise his own, and when that judgment, unless reversed in the special mode pointed out, by judicial process, is by law the condition on which the right of the claimant is declared to depend. The conclusion cannot be resisted that, to whatever else supervision and direction on the part of the head of the department may extend, in respect to matters purely administrative and executive, they do not extend to a review of the action of the commissioner of patents in those cases in which, by law, he is appointed to exercise his discretion judicially. It is not consistent with the idea of judicial action that it should be subject to the direction of a superior, in the sense in which that authority is conferred upon the head of an executive department in reference to his subordinates. Such a subjection takes from it the quality of a judicial act. That it was intended that the commissioner of patents, in issuing or withholding patents, in reissues, interferences, and extensions, should exercise quasi judicial functions, is apparent from the nature of the examinations and decisions he is required to make, and the modes provided by law, according to which, exclusively, they may be reviewed. Such has been the uniform construction placed by the department itself upon the laws defining the relation of its executive head to the commissioner of patents. No instance has been cited in which the right of the secretary to reverse such action of the commissioner in granting or withholding a patent has been claimed or exercised prior to that based upon the opinion of Atty. Gen. McVeagh in 1881. The jurisdiction had been previously expressly disclaimed, in 1876, by Secretary, Chandler, (9 O. G. 403,) and by his immediate successor, Mr. Schurz, in 1877, 1878, and 1879. 12 O. G. 475; 13 O. G. 771; 16 O. G. 220.

Some question is made as to the remedy. We think, however, that mandamus will lie, and that it was properly directed to the commissioner of patents. He had fully exercised his judgment and discretion when he decided that the relators were entitled to a patent. The duty to prepare it, to lay it before the secretary for his signature, and to countersign it, were all that remained, and they were all purely ministerial. These duties he had failed and refused to perform merely out of deference to the claim of the secretary to reverse and set aside the decision on the merits in favor of the relators. This we have held not to be a valid excuse. The case falls clearly within the principles acted upon in Commissioner of Patents v. Whiteley, 4 Wall. 522. The remedy by bill in equity under section 4915 is not appropriate, because it applies only when the commissioner decides to reject an application for a patent, on the ground that the applicant is not, on the merits, entitled to it. So that if, in such case, a decree for a patent could be considered, ex proprio vigore, as equivalent to a patent, or could be enforced by direct process in execution of it, nevertheless, the present is not a case where such a bill would lie. It is suggested that the writ was erroneously awarded by the court below, on the ground that the decision of the commissioner of patents, in favor of issuing the patent to the relators, was erroneous in law upon its face. But that question does not arise upon this record. We have adjudged that it belongs exclusively to the commissioner to decide the question for himself whether a patent ought to issue. The statute points out the remedy for a party aggrieved by his error, if he has decided erroneously. It is not by an appeal to the secretary; nor can the question be presented in such a proceeding as the present.

The judgment of the supreme court of the District of Columbia is consequently affirmed.


text: Talk:Butterworth v. United States/Opinion of the Court


text:
Moran v. City of New Orleans

J. R. Beckwith, for plaintiff in error.

C. F. Buck and S. P. Blanc, for defendant in error.

The city of New Orleans was authorized by a law of the state, (Acts Extra Session 1870, p. 37, § 12,) for the purposes of the act, 'to levy, impose, and collect a license upon all persons pursuing any trade, profession, or calling, and to provide for its collection; and said license shall not be constituted to be a tax on property.'

The same act (section 21) provides that 'all licenses imposed by the city, not paid on the thirty-first day of July, shall be seizable, after thirty days' publication in the official journal,' in certain courts of record in the city; 'and upon the prayer of the city, through its proper representatives, any court of competent jurisdiction shall enjoin the said person or persons so liable to pay a license tax, and who shall refuse or neglect to pay the same, from continuing to carry on such business or profession until he shall have paid the same, and all costs and charges for the recovery and enforcement of the claim therefor.'

The council of the city of New Orleans passed an ordinance 'to establish the rate of licenses for professions, callings, and other business for the year 1880,' which assessed and directed to be collected the sums specially set forth; among others: 'Sec. 39. Every member of a firm or company, every agency, person, or corporation, owning and running tow-boats to and from the Gulf of Mexico, five hundred dollars. Every member of a firm or company, every agent, person, or corporation, owning and running job-boats within the corporate limits, fifty dollars.'

Joseph Cooper was the owner of two steam-propellers, each measuring over 100 tons, duly enrolled and licensed at the port of New Orleans, under the laws of the United States, to be employed in the coasting trade, and employed them as tow-boats in taking vessels from the sea up the river to New Orleans, and from that port to the sea. The city of New Orleans brought its action against him in the third district court for the parish of Orleans, to recover the license tax under the ordinance, and obtained a judgment in its favor, which, on appeal, was affirmed by the supreme court of the state.

Mr. J. R. Beckwith for plaintiff in error.

Mr. S.P. Blanc and Mr. C.F. Buck for defendant in error.

[Argument of Counsel from pages 70-71 intentionally omitted]

MATTHEWS, J.

title: Moran v. City of New Orleans


text: Talk:Moran v. City of New Orleans

title: Talk:Moran v. City of New Orleans


text:
Moran v. City of New Orleans/Opinion of the Court

The defense relied on and overruled was that the ordinance imposing the license tax was a regulation of commerce among the states, and therefore contrary to article 1, § 8, par. 3, Const. U.S., and void. Whether the supreme court of Louisiana erred in overruling that defense is the single question presented for our consideration.

In the case of Sinnot v. Davenport, 22 How. 227, it was decided that a law of Alabama requiring owners of steam-boats navigating the waters of the state, before such boat shall leave the port of Mobile, to file a statement in writing in the office of the probate judge of the county, setting forth the name of the vessel, the name, place of residence, and the interest of each owner in the vessel, under a penalty for non-compliance, as applied to a vessel which had taken out a license and was duly enrolled under the act of congress for carrying on the coasting trade, and plied between New Orleans and the cities of Montgomery and Wetumpka, in Alabama, was in conflict with the act of congress, and was, therefore, unconstitutional and void. Mr. Justice NELSON, delivering the opinion of the court, (p. 243,) said: 'The whole commercial marine of the country is placed by the constitution under the regulation of congress, and all laws passed by that body in the regulation of navigation and trade, whether foreign or coastwise, is, therefore, but the exercise of an undisputed power. When, therefore, an act of the legislature of a state prescribes a regulation of the subject repugnant to and inconsistent with the regulation of congress, the state law must give way, and this without regard to the source of power whence the state legislature derived its enactment.' And, repeating what was said in Gibbons v. Ogden, 9 Wheat. 210-214, as to the force and effect of the act of congress providing for the enrollment and license of vessels engaged in the coasting trade, and of the license itself when issued, Mr. Justice NELSON said: 'These are the guards and restraints, and the only guards and restraints, which congress has seen fit to annex to the privileges of ships and vessels engaged in the coasting trade, and upon a compliance with which, as we have seen, as full and complete authority is conferred by the license to carry on the trade as congress is capable of conferring.' The act of the legislature of Alabama in that case was declared void on the single and distinct ground that it imposed another and an additional condition to the privilege of carrying on this trade within her waters.

Immediately following that case, argued and decided at the same time, was that of Foster v. Davenport, 22 How. 244. It differed from the former in this respect only: That the vessel seized for non-compliance with the law of Alabama was engaged in lightering goods from and to vessels anchored in the lower bay of Mobile and the wharves of the city, and in towing vessels anchored there to and from the city, and, in some instances, towing the same beyond the outer bar of the bay and into the gulf to the distance of several miles, but was duly enrolled and licensed to carry on the coasting trade while engaged in this business. Mr. Justice NELSON, delivering the opinion of the court, said: 'It is quite apparent, from the facts admitted in the case, that the steam-boat was employed in aid of vessels engaged in the foreign or coastwise trade and commerce of the United States, either in the delivery of their cargoes, or in towing the vessels themselves to the port of Mobile. The character of the navigation and business in which it was employed cannot be distinguished from that in which the vessels it towed or unloaded were engaged. The lightering or towing was but the prolongation of the voyage of the vessels assisted to their port of destination.'

The present case would seem to fall directly within the rule of these decisions, unless the fact that the ordinance of the city of New Orleans is the exercise of the taxing power of the state can be supposed to make a material difference. But since the case of Brown v. Maryland, 12 Wheat. 419, it has been repeatedly decided by this court that when a law of a state imposes a tax, under such circumstances and with such effect as to constitute it a regulation of commerce, either foregn or interstate, it is void on that account. Telegraph Co. v. Texas, 105 U.S. 460, and cases there cited. In the State Freight Tax Cases, 15 Wall. 232-276, it was said that it could not make any difference that the legislative purpose was to raise money for the support of the state government, and not to regulate transportation; that it was not the purpose of the law, but its effect, which was to be considered. The fundamental proposition on the subject was expressed by Mr. Justice MILLER, delivering the opinion of the court in Crandall v. Nevada, 6 Wall. 35-45, in this comprehensive language: 'The question of the taxing power of the states, as its exercise has affected the functions of the federal government, has been repeatedly considered by this court; and the right of the states in this mode to impede or embarrass the constitutional operations of that government, or the rights which its citizens hold under it, has been uniformly denied.'

Otherwise, unrestrained by the authority of the federal constitution, the taxing power of the states extends to and embraces the persons, property, and pursuits of their people; although it is not always easy, in particular cases, to draw the line which separates the two jurisdictions; as may be seen by comparing the cases of State Freight Tax, 15 Wall. 232, and of State Tax on Railway Gross Receipts, Id. 284, and as was said in Osborne v. Mobile, 16 Wall. 479. And it is undoubtedly true, as it has often been judicially declared, that vessels engaged in foreign or interstate commerce, and duly enrolled and licensed under the acts of congress, may be taxed by state authority as property; provided the tax be not a tonnage duty, is levied only at the port of registry, and is valued as other property in the state without unfavorable discrimination on account of its employment. Transportation Co. v. Wheeling, 99 U.S. 273; Morgan v. Parham, 16 Wall. 471; Hays v. Pacific Mail Steam-ship Co. 17 How. 596; Wiggins Ferry Co. v. East St. Louis, 107 U.S. 365; S.C.. 2 SUP. CT. REP. 257. But the license fee in the present case is not a tax upon the boats as property, according to any valuation. The very law authorizing its imposition declares that it shall not be construed to be a tax on property.

It is said, however, to be a tax on an occupation, and for that reason not a regulation of commerce. If it were a tax upon the income derived from the business, it might be justified by the principle of the decision in the case of State Tax on Railway Gross Receipts, 15 Wall. 284, which shows the distinction between a tax on transportation and a tax upon its fruits, realized and reduced to possession, so as to have become part of the general capital and property of the tax-payer. But here it is not a tax on the profits and income after they have been realized from the business. It is a charge explicitly made as the price of the privilege of navigating the Mississippi river between New Orleans and the Gulf, in the coastwise trade; as the condition on which the state of Louisiana consents that the boats of the plaintiff in error may be employed by him according to the terms of the license granted under the authority of congress. The sole occupation sought to be subjected to the tax is that of using and enjoying the license of the United States to employ these particular vessels in the coasting trade; and the state thus seeks to burden with an exaction, fixed at its own pleasure, the very right to which the plaintiff in error is entitled under, and which he derives from, the constitution and laws of the United States. The Louisiana statute declares expressly that if he refuses or neglects to pay the license tax imposed upon him, for using his boats in this way, he shall not be permitted to act under and avail himself of the license granted by the United States, but may be enjoined from so doing by judicial process. The conflict between the two authorities is direct and express. What the one declares may be done without the tax, the other declares shall not be done except upon payment of the tax. In such an opposition, the only question is, which is the superior authority? and reduced to that, it furnishes its own answer.

The judgment of the supreme court of Louisiana is accordingly reversed, and the cause remanded, with directions to render a judgment reversing that of the Third district court for the parish of Orleans, and directing that court to render a judgment dismissing the petition of the city of New Orleans.

By stipulation of counsel on file, the same judgment is to be entered in the cases of E. N. Yorke v. City of New Orleans, No. 34, and Eclipse Tow-boat Co. v. City of New Orleans, No. 35.


text: Talk:Moran v. City of New Orleans/Opinion of the Court


text:
United States v. Waddell

''Sol. Gen. Phillips'', for plaintiff.

''Jos. W. Martin'', for defendants.

MILLER, J.

title: United States v. Waddell


text: Talk:United States v. Waddell

title: Talk:United States v. Waddell


text:
United States v. Waddell/Opinion of the Court

This case arises on a criminal information filed by the district attorney of the United States for the Eastern district of Arkansas in the circuit court for that district. The defendants demurred to the information, and, on consideration of the demurrer, the judges of that court were divided in opinion on three questions, which they have certified to this court, as follows: '(1) Whether section 5508 of the Revised Statutes is a constitutional and valid law. (2) Whether the information in said cause charged and offence under said section 5508 of the Revised Statutes of the United States or against any statute of the United States. (3) Whether the demurrer to said information was well taken and should be sustained.'

The first and second counts of the information undertake to set out a conspiracy of the defendants, under section 5508, to deprive or hinder Burrell Lindsey, a citizen of the United States, of the right to establish his claim to certain lands of the United States under the homestead acts, namely, sections 2289, 2290, and 2291 of the Revised Statutes. And the third count, without charging a conspiracy, states that defendants went upon the land of the United States, occupied by said Lindsey as a homestead, with intent to prevent and hinder him from residing upon and improving said land, and maturing the title to himself to said homestead entry, a right secured to him by the sections of the Revised Statutes aforesaid. The first question certified to us, as to the constitutional validity of section 5508 of the Revised Statutes, was answered in the affirmative by the unanimous opinion of this court in Yarbrough's Case, 110 U.S. 651; S.C.. 4 SUP. CT. REP. 152. It is not deemed necessary or appropriate to add to what was there so recently said on that subject. The first question must therefore be answered affirmatively.

Does the information charge any offense under that section? The section reads thus: 'If two or more persons conspire to injure or oppress, threaten or intimidate, any citizen in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured,-they shall be fined not more than five thousand dollars and imprisoned not more than ten years; and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the constitution or laws of the United States.' The substance of the first two counts of the information is that Burrell Lindsey, a citizen of the United States, made on the thirtieth day of December, 1882, at the United States land-office at Little Rock, a homestead entry on a quarter section of land subject to entry at that place: that afterwards, to-wit, on the tenth day of January, 1883, while residing on and cultivating said land for the purpose of perfecting his right to the same, under the laws of the United States on that subject, namely, sections 2289, 2290, and 2291 of the Revised statutes, the defendant conspired to injure and oppress him, and to intimidate and threaten him in the free exercise and enjoyment of that right and because of his having exercised it, and to prevent his compliance with those laws; and in the second count, that, in pursuance of this conspiracy, they did, upon said homestead tract, with force and arms, fire off loaded guns and pistols in the cabin of said Lindsey, and did then and there drive him from his home on said homestead entry. The third count charges that the defendants went in disguise on said premises while occupied by said Lindsey, with intent to prevent and hinder the free exercise of and enjoyment by him of the right and privilege to make said homestead entry on lands of the United States secured to him by the constitution and laws of the United States, and the right to cultivate and improve said land, and to mature his title as provided by the statute already referred to.

It seems clear enough that the allegation of a conspiracy to prevent Lindsey from exercising the right to make effectual his homestead entry, and the acts done in pursuance of that conspiracy, and the going in disguise to his house for the same purpose, are stated with reasonable precision so as to bring the case within section 5508, if the right which he was exercising was one within the meaning of that section and within the constitutional power of congress to protect by this legislation. In reference to this latter qualification, the statute itself is careful to limit its operation to an obstruction or oppression in 'the free exercise of a right or privilege secured by the constitution or laws of the United States, or because of his having exercised such rights.' The protection of this section extends to no other right,-to no right or privilege dependent on a law or laws of the state. Its object is to guaranty safety and protection to persons in the exercise of rights dependent on the laws of the United States, including, of course, the constitution and treaties as well as statutes, and it does not, in this section, at least, design to protect any other rights.

The right assailed, obstructed, and its exercise prevented or intended to be prevented, as set out in this petition, is very clearly a right wholly dependent upon the act of congress concerning the settlement and sale of the public lands of the United States. No such right exists or can exist outside of an act of congress. The constitution of the United States, by article 4, § 3, in express terms vests in congress 'the power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States.' One of its regulations-the one under consideration-authorizes a class of persons, of whom Lindsey is one, to settle upon its land, and, on payment of an inconsiderable sum of money and the written declaration of intent to make it a homestead, he is authorized to reside there. By building a house and making other improvements on it, and residing there for five years consecutively, which, under the statute and under that alone, he has a right to do, and paying the fees to the officer necessary to its issue, he acquires a patent or title in fee to the land. But his title is dependent on continued residence of himself or family. By the original entry he acquires the inchoate but well-defined right to the land and its possession, which can only be perfected by continued residence, possession, and cultivation for five years. His right to continue this residence for five years, for that purpose, is dependent upon the act of congress. His right to the patent, after this is done, rests exclusively on the same foundation.

The right here guarantied is not the mere right of protection against personal violence. This, if the result of an ordinary quarrel or malice, would be cognizable under the laws of the state and by its courts. But it is something different from that. It is the right to remain on the land in order to perform the requirements of the act of congress, and, according to its rules, perfect his incipient title. Whenever the acts complained of are of a character to prevent this, or throw obstruction in the way of exercising this right, and for the purpose and with intent to prevent it, or to injure or oppress a person because he has exercised it, then, because it is a right asserted under the law of the United States and granted by that law, those acts come within the purview of the statute and of the constitutional power of congress to make such statute. In the language of the court in Ex parte Yarbrough: 'The power arises out of the circumstance that the function in which the party is engaged, or the right which he is about to exercise, is dependent on the laws of the United States. In both of these cases it is the duty of that government to see that he may exercise this right freely, and to protect him from violence while so doing, or on account of so doing.' This language is as applicable to the present case as it is to that. It would, indeed, be strange if the United States, under the constitutional provisions we have cited, being the owner of unsettled lands larger in area than the most powerful kingdoms of Europe, and having the power 'to dispose of and make all needful rules and regulations respecting this territory,' cannot make a law which protects a party in the performance of his existing contract for the purchase of such land, without which the contract fails, and the rights, both of the United States and the purchaser, are defeated. This view requires the second question also to be answered affirmatively.

With regard to the third question, we have some difficulty in deciding what precise point of law the judges of the circuit court differed upon, and what they referred to us for decision. Did they mean to ask, is there any reason whatever why this information shall be held bad? Or did they mean to inquire whether it was bad for either of the two other matters we have discussed? Or did they refer it to the court to decide whether it was bad for any of the reasons found in the demurrer to it filed in the case? It has been repeatedly held in this court that the object of the statute authorizing such certificates is to present some one or more well-defined, clear-cut questions of law which arise in the progress of the case in the circuit court, and on which the opinions of the judges holding it are opposed. The first two questions suggest, in each of them, such a point very clearly. The third does not. It leaves us to wander over the whole field of conjecture for any possible objection to the information, without pointing to any distinct proposition of law on which the judges divided. Wolf v. Usher, 3 Pet. 269; Sadler v. Hoover, 7 How. 646; Wilson v. Barnum, 8 How. 258; Daniels v. Railroad Co. 3 Wall. 250; Havemeyer v. Iowa Co. Id. 294; Ward v. Chamberlain, 2 Black, 430.

If we look beyond the certificate of the judges the demurrer itself, we find no ground of demurrer assigned which raises any other question than the two we have discussed. The demurrer is in the following language:

'United States v. David Waddell et als. (No. 959.)

'Come the defendants, by their attorney, and demur to the     information herein filed against them, and for cause thereof      say: (1) The matters and things alleged therein do not      constitute any offense against the laws or sovereignty of the      United States. (2) Said information does not allege any     offense of which this court has jurisdiction. (3) Because     said section 5508, so far as it may attempt to impose      penalties and inflict punishment for the lawlessness and      violence set forth in said information, is in violation of      the constitution of the United States and void. (4) And     because said information is in other respects informal, is      insufficient, and defective.

'Wherefore, said defendants pray judgment of said     information, and that the same may be quashed, etc.

'JOSEPH W. MARTIN, Atty. for Defts.'

Nor has the counsel for the United States or for the defendants suggested in their briefs or otherwise any other question or porposition of law besides the two we have already decided. The pertinency of these remarks will be seen when we observe that section 5508, after defining the punishment of those convicted under it, by fine and imprisonment, adds: 'And [they] shall, moreover, be thereafter ineligible to any office or place of honor, profit, or trust created by the constitution or laws of the United States.' When we bring this language, which is not the sentence of the court, but an indelible disgrace affixed to the party convicted by the declaration of the law itself, into direct connection with the language of the fifth article of amendment of the constitution, namely, that 'no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,' there does arise a very serious question whether this crime is not made an infamous one by the language of the statute, and cannot, therefore, be prosecuted by information. The question is a very important one. It has not been argued before us or even suggested by counsel. We see no reason to believe that it was in the minds of the judges, nor any evidence that they would have been opposed in opinion on it if it had been suggested to them. Under these circumstances we think it the true course to remit the case to the circuit court with the answers to the two other question, that the question whether the case can be prosecuted by information may be there raised in an appropriate manner, and for such action as to counsel and the court may appear best. The first and second question are answered affirmatively, and the case remanded to the circuit court for further proceedings.


text: Talk:United States v. Waddell/Opinion of the Court


text:
Wilson v. Arrick

A. S. Worthington, for plaintiff in error.

H. E. Davis, for defendant in error.

Horatio Ames, whose administrator de bonis non brings this suit, died in January, 1871. On some day not shown by the record, but prior to April, 1873, his widow, Charlotte L. Ames, was appointed administratrix, with the will annexed, of his estate. There was claimed to be due the estate, from the United States, a large sum of money for cannon furnished, which was satisfied by payments made in April, 1871, and in January, 1873. In May, 1873, Mrs. Ames filed her account, in which she charged herself with the sum of $39,955 as received by her from the United States on account of the claim of the estate, and took credit for three payments, amounting to $33,574.36, made to Clifford Arrick, the intestate of the defendant, for which vouchers were filed, signed by him. Exceptions were filed to the account by Oliver Ames, a brother of Horatio Ames. Before the exceptions were heard. the court, on January 9, 1875, removed Mrs. Ames for having failed to comply with an order of the court requiring her to give an additional bond, and appointed the present plaintiff, Nathaniel Wilson, administrator de bonis non in her place. On January 22, 1876, the exceptions were heard, and the credit of $33,574.36, which the administratrix claimed on account of payments made to Arrick, was reduced by the court to the sum of $2,955.56, and the commission she claimed was also reduced. The account, as filed, showed a balance in her hands of $2,260.64; as corrected by the court this balance was increased to $34,876.75. Disregarding this settlement of the account, this suit was brought by Wilson, the administrator de bonis non, against Arrick, to recover the sum of $39,955, the whole amount with which the administratrix had charged hereself in her account; the allegation of the declaration being that he had collected that sum for the estate of Horatio Ames, and refused to pay it over. Arrick having died pending this suit, it was revived against the administrator of his estate.

It appears from the bill of exceptions that warrants were issued by the secretary of the navy to the administratrix for the amounts due from the United States to the estate she represented; that on their delivery to her she was required to indorse upon them her receipt for the money, which she did; and, having the warrants in her possession, she indorsed and delivered them to Arrick, who drew the money. The court, at the request of the defendant, charged the jury that 'the legal effect of the receipts, given in evidence and signed by Charlotte L. Ames, as administratrix, was to invest her with the control of the moneys mentioned in said receipts; and, if the administratrix parted with said control by the indorsement of said receipts, then the plaintiff is not entitled to recover.' And the court, of its own motion, added: 'If you find, from the testimony in this case, the Mrs. Ames, administratrix of the estate of Horatio Ames, deceased, received this fund from the government for the purpose of administration, and that after receiving it she wasted it upon Arrick, or anybody else, the plaintiff in this case would not be entitled to recover; it would be the case of administration of assets, and it does not survive to the administrator de bonis non to prosecute.' This charge of the court is assigned for error.

[Argument of Counsel from page 85 intentionally omitted]

WOODS, J.

title: Wilson v. Arrick


text: Talk:Wilson v. Arrick

title: Talk:Wilson v. Arrick


text:
Wilson v. Arrick/Opinion of the Court

We think the charge was right. In the case of U.S. v. Walker, 109 U.S. 258, S.C.. 3 SUP. CT. REP. 277, which, as appears by an inspection of the record, was a suit brought by the United States for the use of Nathaniel Wilson, as administrator de bonis non of the estate of Horatio Ames, upon the bond of Charlotte L. Ames, as administratrix of the same estate, to recover the identical money sued for in this case, it was held that an administrator de bonis non derives his title from the deceased, and not from the former administrator, and to him is committed only the administration of goods, chattels, and credits of the deceased which have not been administered; and that, both at common law and under the act of congress in force in the District of Columbia, an administrator de bonis non has title only to the goods and personal property which remain in specie and have not been administered. Upon this ground the judgment of the court was based. The plaintiff in error, conceding that since the decision in U.S. v. Walker, ubi supra, he could not maintain his action against the administratrix or the sureties upon her bond to recover money, the proceeds of administered assets, still insists that the action will lie against an agent of the administratrix, to whom the money had been paid. This contention cannot be sustained. If the money sued for in this case is the proceeds of a debt due the estate of Horatio Ames, which has been administered by Mrs. Ames, the administratrix, the case of U.S. v. Walker must be decisive of this. For if the present plaintiff has no title to the money, his action will no more lie against the agent of the administratrix than against the administratrix herself.

We are of the opinion that the facts stated in the bill of exceptions, as already recited, show that the claims of the estate of Ames against the United States had been administered by Mrs. Ames, the administratrix. The demand of the estate against the United States had been settled and paid, and the liability of the United States discharged. This was an administration of these assets of the estate. The mere acceptance even of the warrants was such an alteration of the property as vested the title in the administratrix, and was tantamount to their administration. Bac. Abr. tit. 'Executors and Administrators,' B, 2, 2. The warrants and the money received on them became the property of the administratrix, and she was responsible therefor to the creditors, legatees, and distributees of the estate, and they only were entitled to sue therefor. U.S. v. Walker, ubi supra; Beall v. New Mexico, 16 Wall. 535; Ennis v. Smith, 14 How. 416. If the cases cited by counsel for appellant (Catherwood v. Chabaud, 1 Barn. & C. 150, and Blydenburg v. Lowry, 4 Cranch, C. C. 368) sustain his contention, they are inconsistent with the law as heretofore laid down by this court, and cannot avail him.

The fact that the administratrix has improperly paid out money of the estate, the proceeds of assets administered by her, or that they have been paid to her agent, does not invest the administrator de bonis non with title, and authorize him to sue therefor. If, as held in the case of U.S. v. Walker, ubi supra, the administratrix was not herself liable for the proceeds of those assets to the administrator de bonis non, it follows that the person who has received them as her agent cannot be liable. We think there was no error in the charge. It further appears by the bill of exceptions that 'the plaintiff offered to prove, by the deposition of Oliver Ames, taken in this case, transactions on the part of the intestate of the defendant with, and statements by, him to the said Oliver Ames, tending to show that the said charges,' on which the money sued for was paid to him by the administratrix, 'were unconscionable.' This evidence was excluded by the court, and its exclusion is now assigned for error. But it is clear that, if the plaintiff had no title to the money received by Arrick, the evidence offered was immaterial and was properly excluded. We find no error in the record. The judgment of the supreme court of the district of Columbia is therefore affirmed.

title: Wilson v. Arrick/Opinion of the Court


text: Talk:Wilson v. Arrick/Opinion of the Court


text:
United States v. Flanders

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

J. Q. A. Fellows, for defendant in error.

BLATCHFORD, J.

title: United States v. Flanders


text: Talk:United States v. Flanders

title: Talk:United States v. Flanders