text:
Williams v. Bankhead/Opinion of the Court

'Court was proclaimed in due form of law, when the following proceedings were had, to wit:

v.

JAMES H. BRANCH, JOSEPH BRANCH, AND George McGregor.}

'On this day, on motion, the mandate and opinion of the Supreme Court of Arkansas is filed, which opinion and mandate is in the words and figures following, to wit:

'STATE OF ARKANSAS,

IN THIS SUPREME COURT, SCT.

'Be it remembered, that at a term of the Supreme Court of the State, begun and held at the court-house in the city of Little Rock, on the first Monday in October, A.D. 1866, among others were the following proceedings had, to wit:

ISAAC BOLTON, APPELLANT,

v.

JAMES H. BRANCH, JOSEPH BRANCH, George McGregor et al., APPELLEES.}

Appeal from Desha Circuit Court, chancery.

'This cause came on to be heard upon transcript of the record of the Circuit Court of Desha County, in chancery, and was argued in this court by the solicitors of the parties. On consideration whereof,' &c.

In April, 1871, a decree was pronounced in the Circuit Court below, in favor of Bankhead for $8000, with interest from 1860, with a direction that McNiell, the administrator of Branch, as soon as he should receive from Bolton the sum of $3666.66, and the interest thereon, which by the State court had been decreed to be refunded, should pay it over to Bankhead, and leave was given to the latter to institute such further proceedings against Bolton, or others in possession of the plantation, as might enable him to obtain the benefit of this decree.

In pursuance of this last permission, Bankhead immediately filed a petition against McNiell, Bolton, and Williams, alleging a conspiracy between them and the widow of James H. Branch, and one Cash, administrator of Isaac Bolton, the vendor, to defraud him, Bankhead, out of the said sum of $3666.66, by procuring the same to be paid over to the said widow, upon a pretended claim set up by her. The petition further alleged that the decree made by the Desha County Court, awarding the said money to her, was fraudulently procured, he, Bankhead, not being a party to the proceedings. The petition prayed for a decree against Bolton, to compel him to pay the money into court or to the petitioner, and for a receiver to take possession of the land and receive the rents. The widow and Cash were not made parties, because, as the petition alleged, they did not reside in the State of Arkansas. The defendants who were made parties answered the petition, setting up, amongst other things, that the widow was an indispensable party to the proceedings, and that the decree of the Desha County Court was conclusive in her favor.

The court below decreed in favor of Bankhead, and that unless the defendants should pay to him the said sum of $3666.66, with the interest due thereon, by a certain day, the plantation should be sold to satisfy the original decree.

Appeals were taken from both the original and supplemental decrees.

1. The court below had no jurisdiction. The whole question had been settled by a decree in the State court for Desha County, in no wise annulled. Though the extracts which the record before this court give us of the proceedings in the State court are not full, they are enough to show that Bankhead was a party. The captions or titles to the orders are sufficient proof of who the parties to the case were. In the title to the mandate of the Supreme Court George McGregor et al. are expressly mentioned as the defendants. Who were these al.? Who could they be but the other partners of the firm? Bankhead, of course, included as the one chiefly or alone interested. Although in the caption of the case in the Desha County Court, the al. is omitted, yet the suit is palpably that same one which has come down from the Supreme Court, where the al. is set forth. The omission is a plain clerical error, amendable, and to be amended, by what appears in the caption meant to be copied; for the caption in the inferior court was to be the same as that in the superior, if the last was right. That the last was right is certain, for McGregor had nothing to do with the suit but in connection with the firm of which Bankhead was a member even more than he.

2. But, however this may be, it is quite plain that the widow should have been made a party. She claimed this money, and had a judicial decree awarding it to her. The proceeding below sweeps it all away from her, without her having had a chance to be heard. The law will not endure this.

1. The captions or titles to the orders of court prove nothing but that the clerk made such captions. Even if James Bankhead's name was set out specifically and at large, as a defendant, the fact would not show either that he was served or that he voluntarily, in some way, personally or by counsel, appeared. And unless he did so in some way appear, he is not concluded by the decree in the Desha County Court.

2. The widow is not a necessary party to the present suit. This court would only refuse to proceed when it is evident that the subject-matter cannot be disposed of, and ample justice done. Her interest is set out fully in the record, and being junior to that of the appellee cannot be maintained here, unless this court shall consider itself absolutely concluded by the State court decree, in which event the relief prayed would be refused on that account, whether or not she was a party.

The most that could happen by her not being made a party would be the exposure of Bolton and McNiell, to be called on by her after having paid the money to Bankhead. But the facts of the case, and the decree of this court, would be their answer.

Mr. Justice BRADLEY delivered the opinion of the court.

In this case James Bankhead obtained a decree for $8000 due him from James H. Branch, and for the specific application by way of payment to him on said decree of $3666.66 due to Branch's estate, for the reimbursement of money paid by the latter on a plantation which he had mortgaged to Bankhead, but for which he had never acquired full title. The State court of Desha County, in a suit brought therein, had decreed that the plantation must be delivered back to the vendor, and that the latter must refund the amount paid on it, which was the sum above stated. The State court, on a cross-bill filed by Branch's widow, had also decided that the reimbursement-money was in equity payable to her as her separate property under a marriage settlement. But the Circuit Court in this case, in which the widow was not a party, decreed that the same fund should be paid to Bankhead, to whom Branch had mortgaged the plantation, and, in case it was not paid by the vendor in a certain time, the plantation should be sold to raise the amount due on the mortgage. The excuse for not making the widow a party was that she did not reside in Arkansas and could not be served with process.

The parties actually before the court were one McNiell, the personal representative of Branch, Bolton, the devisee of the vendor of the plantation, and Williams, the tenant in possession of the plantation, who had rented it from the widow of Branch, she having retained possession under the alleged marriage settlement. On the other hand, the defendants contended (and that is one ground of appeal) that Bankhead was a party to the proceedings in the State court and was bound by the decree there made. This, however, was controverted by him.

The other ground is that the widow of Branch is an indispensable party in this case.

As to the first ground, it is undoubtedly true that Bankhead would be bound by the decree of the State court if he was a party to the proceedings. But he alleges that he was not a party, and the proof on the subject is not sufficient to show that he was a party. The record of the proceedings in the Desha County Court (since the war) was put in evidence, and is before us. It contains nothing to show that Bankhead, or his copartners, were parties to the suit, except the bare title of the cause at the head of one or two orders, in which the names of George McGregor, in one case, and George McGregor et al. in another, appear as defendants. Neither the original petition nor complaint, the process, nor anything else that would give light on the subject, is contained in the record as given to us. In the answer of McNiell to Bankhead's amended and supplemental cross-bill, which was struck from the files, it is positively alleged that he and his partners were made parties to the proceedings in the Desha County Court as non-resident defendants, and that a regular order of publication for their appearance was made and published, and that they actually knew of the suit and took part in it. But these allegations were not responsive to the bill, and we have nothing else on the subject sufficiently explicit to show the truth of the case.

The other ground of appeal, namely, that the widow was an indispensable party, presents a more serious question.

On the one hand it is said that, not being a party, her rights were not concluded; and that the only inconvenience arising from proceeding with the case without her was the double liability to which Bolton and the administrator of Branch became exposed by having to pay her and Bankhead both, under contrary decrees of different courts. The general rule as to parties in chancery is, that all ought to be made parties who are interested in the controversy, in order that there may be an end of litigation. But there are qualifications of this rule arising out of public policy and the necessities of particular cases. The true distinction appears to be as follows: First. Where a person will be directly affected by a decree, he is an indispensable party, unless the parties are too numerous to be brought before the court, when the case is subject to a special rule. Secondly. Where a person is interested in the controversy, but will not be directly affected by a decree made in his absence, he is not an indispensable party, but he should be made a party if possible, and the court will not proceed to a decree without him if he can be reached. Thirdly. Where he is not interested in the controversy between the immediate litigants, but has an interest in the subject-matter which may be conveniently settled in the suit, and thereby prevent further litigation, he may be a party or not, at the option of the complainant.

In the present case, if the question were one of mere personal liability on the part of Bolton, McNiell, and Williams, it might have been admissible to proceed without making the widow of Branch a party, inasmuch as she was not a resident of Arkansas, and could not at the time be made a party in the Circuit Court without being served with process in the district of Arkansas or voluntarily appearing to the suit. The act to further the administration of justice, by which an order of publication for the appearance of non-resident defendants is provided for, if it would apply to the case, had not then been passed. But this is not a case of mere personal liability. It concerns the disposal of a specific fund, in which the widow claims an interest. If the sum of $3666.66 mentioned in the decree is not paid, the plantation is directed to be sold in order to raise the amount of Bankhead's claim. And this plantation is in the possession of the widow by her tenants. She is to receive the rents and profits thereof until her claim is satisfied by the payment of the said sum of $3666.66 and the interest due thereon, awarded her by the Desha County Court. Her interests, therefore, are directly affected by the decree.

Under these circumstances we think that she was an indispensable party. The decree, therefore, must be REVERSED, and the cause remanded to be proceeded in

ACCORDING TO LAW.


text: Talk:Williams v. Bankhead/Opinion of the Court

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


text:
Stevenson v. Williams

ERROR to the Supreme Court of Louisiana.

Alfred Williams, of Louisiana, a person with no property, married in 1842 Catharine Stewart, the possessor of a large estate there. Three children were the fruit of the marriage. The wife died in 1854; the husband in 1863. During Mrs. Williams's life her husband managed her property. There was no marriage settlement; and the community of acquests and gains which existed among them under the Louisiana Code, though terminating with the wife's death, was never settled by the husband.

By the death of his wife, Williams became, by operation of the Code, the natural guardian or tutor of his minor children. He died without having rendered any account of his administration as such.

Prior to the 21st March, 1862, a certain Stevenson, resident in Nashville, Tennessee, then within the Union lines, sent to his agent in New Orleans, which at the time and till about the end of April, 1862, was in the rebel lines, a quantity of checks on banks, drafts, and some Confederate notes to invest for him. The agent deposited all to his own credit in a bank, which collected the drafts and checks, and afterwards, March 21st, 1862, he bought from indorsers of them, who had them, twelve notes of Williams for $5000 each, in all $60,000, giving a check for them on the bank of New Orleans, which check was paid in Confederate money; the only currency of New Orleans at that time. The notes themselves the agent sent to Stevenson. The notes, which had one, two, and three years to run, not being paid, Stevenson sent them to New Orleans to be collected by suit, and suit was brought on them prior to November 28th, 1863. On that day, a computation being made, $79,800 was found due on them. An arrangement was made, however, by which it was agreed $3000 should be paid in cash, with an understanding that $65,000 should be payable in two, three, four, five, and six years, with interest in full of the balance claimed.

On the 21st December, 1865, judgment was entered up in favor of Stevenson, with privilege upon the whole succession, movable and immovable. Stevenson's claim was thus put upon the same footing as funeral charges and other privileged debts.

On the 21st March, 1867, the children of Mr. and Mrs. Williams brought suit to annul the judgment thus rendered in favor of Stevenson. They alleged their father's debt to them for his management of the community of acquests and gains, for which debt they asserted that they had a legal privilege on all his property over all other creditors. They further alleged that Stevenson, residing at Nashville, then within the Federal lines, sent to New Orleans, when the city was in the possession of the insurgents, to an agent of his there, a quantity of Confederate notes-'notes issued by a government, 'so called,' the Confederate States of America,. . . who had combined to dissolve the Union,'-and that this agent had lent $60,000 of such notes to the decedent, Williams, their father; that such loan was illegal and void, because the notes were an instrument of treason. They accordingly prayed that Stevenson's judgment be declared void. Stevenson filed his answer; and on the 22d March, 1869, the case was submitted to the Second District Court of New Orleans. By its decree the judgment of Stevenson was annulled, and the judicial mortgage resulting from the recording of it ordered to be cancelled. The grounds on which the judgment was annulled were:

1st. That the notes on which the judgment was rendered were given for a loan of Confederate money; and,

2d. That the transactions between Williams and Stevenson were had while one resided within the Federal and the other within the Confederate lines.

The court, in giving its decision, said:

'It is clear from the testimony that the consideration [of the notes] was Confederate money. Article 127, constitution of 1868, prohibits the courts of this State from enforcing such agreements as this is found to be.

'On the remaining ground it is clearly established that Williams was a citizen of this State, and that Stevenson had for a long time been a citizen of Nashville, Tennessee. Nashville was taken by the Federal forces on the 23d of February, 1862, and it remained under their domination until the close of the war. New Orleans was under Confederate rule until its fall, on the 25th of April, 1862, and between these dates, on the 21st March, 1862, Stevenson sent his Confederate currency to Williams, in New Orleans, for which he gave his notes.

'This transaction was not only in violation of the laws of war, but in disobedience of the President's proclamation, in conformity with an act of Congress.'

Stevenson applied for a new trial, which was refused on 11th June, 1869, and he then appealed to the Supreme Court of Louisiana.

While the case was pending on appeal he filed a petition, professedly under the act of March 2d, 1867, for the remova, of the record of appeal from the Supreme Court of Louisiana to the Circuit Court of the United States for the Circuit and District of Louisiana. The act under which the petitioner sought to remove the case enacts that—

'Where a suit is brought in any State court in which there is controversy between a citizen of the State in which the suit is brought and a citizen of another State, &c., such citizen of another State, whether he be plaintiff or defendant, &c., may at any time before the final hearing or trial of the suit, file a petition for removal,' &c., and that when the papers get to the Circuit Court of the United States, 'the suit shall there proceed in the same manner as if it had been brought there by original process.'

The petition for removal was refused, and the judgment of the District Court was affirmed. From this judgment of affirmance by the Supreme Court of Louisiana the case was brought here, as within the twenty-fifth section of the Judiciary Act.

Messrs. J. A. and D. G. Campbell, for the plaintiff in error; Messrs. Durant and Horner, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Stevenson v. Williams


text: Talk:Stevenson v. Williams

title: Talk:Stevenson v. Williams


text:
Stevenson v. Williams/Opinion of the Court

The application of the appellant for the removal of the suit from the Supreme Court of Louisiana to the Circuit Court of the United States was made too late, and was properly refused on that ground. The act of Congress of March 2d, 1867, under which the removal was asked, only authorizes a removal where an application is made 'before the final hearing or trial of the suit,' and this clearly means before final judgment in the court of original jurisdiction, where the suit is brought. Whether it does not mean still more-before the hearing or trial of the suit has commenced which is followed by such judgment-may be questioned; but it is unnecessary to determine that question in this case.

After a final judgment has been rendered in the State court, the case cannot be removed to the Circuit Court of the United States, and 'there proceed,' as the statute provides, 'in the same manner as if brought there by original process,' without setting aside the trial and judgment of the State court as of no validity. No such proceeding is contemplated by the act; and since the decision of The Justices v. Murray, reported in 9th Wallace, legislation directed to that end, where, at least, the trial has been by jury, would be of doubtful validity.

The judgment recovered by Stevenson against the succession of Williams, appears to have been annulled on two grounds: 1st, that the notes on which the judgment was rendered were given for a loan of Confederate money; and 2d, that the transactions which resulted in the acquisition of the notes were had between enemies during the late civil war, in violation of the proclamation of the President forbidding commercial intercourse with the enemy.

The first ground would not be deemed, in a Federal court, sufficient to set aside a judgment rendered for the cash value, in National currency, of the Confederate money, especially when, as in this case, the judgment was entered upon a stipulation with the executor of the estate for an extended credit. And the evidence in the record leads us to doubt whether the transactions detailed properly fall within the rule of public law, or the proclamation of the President, forbidding commercial intercourse with the enemy.

But the ruling of the State court in these particulars, however erroneous, is not the subject of review by us. It presents no Federal question for our examination. It conflicts with no part of the Constitution, laws, or treaties of the United States.

Had the State court refused to uphold the judgment because of the provision in the constitution of the State, subsequently adopted, prohibiting the enforcement of contracts founded upon Confederate money, a Federal question would have been presented. That provision, however, although referred to, does not appear to have caused the ruling. The court only followed its previous adjudications, that contracts of the character mentioned were invalid.

JUDGMENT AFFIRMED.


text: Talk:Stevenson v. Williams/Opinion of the Court


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Osborne v. United States

ERROR to the Circuit Court for the Eastern District of Pennsylvania.

The United States brought suit in the court below against Ann Osborne, administratrix of Joseph Osborne, deceased, upon a distiller's bond, executed by Samuel McMillan as principal, and by Robert Fletcher and the decedent, the said Joseph Osborne, as sureties, in pursuance of the provisions of the seventh section of the act of July 20th, 1868, 'Imposing taxes on distilled spirits, and for other purposes.' This section enacts:

'That every distiller shall, on filing his notice of intention to continue or commence business, make and execute a bond in form prescribed by the commissioner of internal revenue, with at least two sureties, to be approved by the assessor of the district.'

The eighth section of the act further enacts:

'That no bond of a distiller shall be approved unless he is the owner in fee, unincumbered by any mortgage, judgment, or other lien, of the lot or tract of land on which the distillery is situated, or unless he files with the assessor, in connection with his notice, the written consent of the owner of the fee and of any mortgagee, judgment creditor, or other person having a lien thereon, duly acknowledged, that the premises may be used for the purpose of distilling spirits subject to the provisions of law, and expressly stipulating that the lien of the United States for taxes and penalties shall have priority of such mortgage, judgment, or other incumbrance, and that in case of the forfeiture of the distillery premises or any part thereof, the title of the same shall vest in the United States, discharged from any such mortgage, judgment, or other incumbrance.'

When the bond upon which this action was brought was delivered to and approved by the assessor, the distillery premises were incumbered by certain judgment liens, and the bond was approved and McMillan permitted to commence and continue his business without their release or a stipulation for their postponement. The distillery and the ground on which it was would have been of sufficient value to secure the claim now set up by the government (which was for unpaid internal revenue taxes), if the claim for the government taxes had had priority of the judgment liens; but, postponed by them, it was insufficient. The defendant pleaded these facts, but none others, in bar to a recovery against her.

To the plea thus made the United States demurred. The court below sustained the demurrer, and gave judgment upon the bond. To reverse this judgment this writ of error was prosecuted.

Mr. D. W. Sellers, for the plaintiff in error:

All statutory bonds are executed with relation to the statutes under which they are given, and their obligation is the same as it would be if the statute were inserted in them. In the present case no bond could be approved by the assessor until the lien of the United States for taxes should have priority, and no distiller could lawfully commence to distil until the assessor had approved the bond. Till then all was in fieri. An execution and a delivery of a bond which the assessor could not lawfully approve until the distillery premises were subject to the lien of taxes before all other liens, was accordingly the execution and delivery of nothing but an escrow. The demurrer admits that the distillery and ground whereon it was erected, was sufficient to secure the debt due the United States. Whatever loss thereon has occurred to the government has occurred, therefore, by the assessor's neglect of his duty. He is the servant of the United States. For loss accruing to the United States, he has given bond. The surety has no action against him on that bond, and he cannot compel the United States to subrogate.

This disregard of the law, by the assessor, was not of a matter formal and directory, but substantial and mandatory. The license of the assessor would not have justified the distiller, if he had been indicted for violating the law.

The provisions avoided by the assessor and distiller ought to be enforced against the government in the collection of the present tax, as those of a tax law were under circumstances very similar in principle in French v. Edwards.

We submit, therefore, that the court below erred in sustaining the demurrer to the plea.

Mr. C. H. Hill, Assistant Attorney-General, citing United States v. Hodson, and Dair v. United States, contended, contra, that the demurrer was rightly sustained.

The CHIEF JUSTICE delivered the opinion of the court.

title: Osborne v. United States


text: Talk:Osborne v. United States

title: Talk:Osborne v. United States


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

The Circuit Court did not err in sustaining the demurrer to the plea of the plaintiff in error. The object of the eighth section of the act of Congress was to protect the government, not the sureties upon the bond. By that section the assessor was not permitted to approve a distiller's bond unless the distillery property was unincumbered as against the United States. If he did he made himself liable to the government for his default, but he violated no duty he owed the sureties. He was under no obligation to protect the signers of the bond. If the sureties insisted upon a release of the incumbrances as a condition to their becoming bound, they should have taken care to see that the bond was not approved until all the requirements of the statute in favor of the government had been complied with. The assessor was in no respect called upon to act for them. If they failed to secure all the indemnity they might have had it was their fault, and not that of the United States. As to them certainly this section of the act is directory to the assessor and not mendatory.

But it is directory also as to the United States. The assessor is a ministerial officer. He is directed not to approve a distiller's bond until the distillery property is made free from incumbrances as against the claims of the government. He ought to insist upon this. If he fails to perform this duty the government will lose a part of the security it was entitled to have, but this will not prevent it from availing itself of so much as it has obtained.

It is not averred in the plea that the bond was delivered to the assessor as an escrow, to be approved and made binding upon the obligors only when the incumbrances were released. It is not even averred that the assessor, when he approved the bond, had actual knowledge of the existence of the alleged incumbrances. But the theory of the plea is that the act of Congress made the United States a guarantor to the surety that the distillery property was free from incumbrances at the time of the approval of the bond. In our opinion such is not the law.

JUDGMENT AFFIRMED.


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


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Peete v. Morgan

APPEAL from the Circuit Court for the Eastern District of Texas.

The Constitution ordains as follows:

'No State shall without the consent of Congress lay any duty on tonnage.

'Congress shall have power to regulate commerce between the States.'

With these provisions of the Constitution in force, the legislature of Texas, by an act of August 13th, 1870, enacted that every vessel arriving at the quarantine station of any town on the coast of Texas, should pay $5 for the first hundred tons, and one and a half cents for each additional ton.

In this state of things Morgan, a citizen of New York-and the owner of two lines of steamers, registered and enrolled in that city, and running from ports in Louisiana to ports in Texas, and back to the ports whence they sailed,-filed a bill in the court below to enjoin one Peete, health officer at the port of Galveston, from the future collection of quarantine fees, exacted under the act abovementioned, from all his vessels coming to the quarantine ground of the said port.

The enactment laying the tax was apparently passed on an assumption that it was justified by the language of this court in Gibbons v. Ogden, and where in speaking of inspection laws, this court say:

'They form a portion of that immense mass of legislation which embraces everything within the territory of a State, not surrendered to the General government, all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike-roads, ferries, &c., are component parts of this mass.'

The court below granted a perpetual injunction, and Peete, the health officer, brought the case here on appeal from this decree.

The question was:

Can a State levy a tonnage tax on vessels owned in foreign ports, and entering her harbors in the pursuit of commerce, in order to defray the expenses of her quarantine regulations?

Mr. P. Phillips, for Morgan, the appellee; no counsel appearing for the health officer, Peete, the appellant.

Mr. Justice DAVIS delivered the opinion of the court.

title: Peete v. Morgan


text: Talk:Peete v. Morgan

title: Talk:Peete v. Morgan


text:
Peete v. Morgan/Opinion of the Court

That the power to establish quarantine laws rests with the States, and has not been surrendered to the General government is settled in Gibbons v. Ogden. The source of this power is in the acknowledged right of a State to provide for the health of its people, and although this power when set in motion may in a greater or less degree affect commerce, yet the laws passed in the exercise of this power are not enacted for such an object. They are enacted for the sole purpose of preserving the public health, and if they injuriously affect commerce, Congress, under the power to regulate it, may control them. Of necessity, they operate on vessels engaged in commerce, and may produce delay or inconvenience, but they are still lawful when not opposed to any constitutional provision, or any act of Congress on the subject.

It is evident that the power to establish quarantine regulations cannot be executed without the State possesses the means to raise a revenue for their enforcement, but it is equally evident that the means used for this purpose must be of such a character as the restrictions imposed by the Federal Constitution upon the taxing power of the States authorize. We are not called upon in this case to go into the general subject of the limitations imposed by these restrictions, because the tax in question is manifestly outside the jurisdiction of the State to impose; as it is a 'duty of tonnage,' within the meaning of the Constitution.

This duty was doubtless imposed to raise revenue, but Chief Justice Marshall, in commenting on this subject in Gibbons v. Ogden, says: 'It is true, that duties may often be, and in fact often are, imposed on tonnage, with a view to the regulation of commerce; but they may be also imposed with a view to revenue; and it was, therefore, a prudent precaution to prohibit the States from exercising this power.' This power cannot be exercised without the permission of Congress, and Congress has never consented that the States should lay any duty on tonnage. On the contrary, so apprehensive was Congress that its legislation in 1799, directing the collectors of customs and officers commanding forts and revenue cutters to aid in the execution of the quarantine and health laws of the States, rendered necessary on account of the prevalence of yellow fever in New York, might be construed into an admission of the right of the States to lay this duty, that it used the following words of exclusion: 'That nothing herein shall enable any State to collect a duty of tonnage or impost, without the consent of the Congress of the United States thereto.'

It is, however, not necessary to discuss this subject, as it has been recently fully considered by this court in the State Tonnage Tax Cases, reported in 12th Wallace. In these cases the law of Alabama levied a tax at so much per ton on all steamboats. The boats on which the tax was levied were owned by citizens of the State, and were employed exclusively in the internal commerce of the State, over which Congress has no control. This court, while conceding the full power of the State to tax the property of its citizens, held that the inhibition in the Federal Constitution prevented the State from taxing in this mode. Much more does this inhibition apply when the vessels are owned by citizens of another State, and are engaged in commerce between the States, over which Congress has control.

DECREE AFFIRMED.

title: Peete v. Morgan/Opinion of the Court


text: Talk:Peete v. Morgan/Opinion of the Court


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Railroad Company v. Richmond (86 U.S. 584)

ERROR to the Supreme Court of the State of Iowa; the case being thus:

On the 22d of August, 1860, the Dubuque and Sioux City Railroad Company and the Dubuque Elevator Company, corporations, created both by the laws of Iowa, entered into a contract by which the elevator company was to construct an elevator for receiving, storing, handling, and delivering grain brought by the cars of the railroad company to Dubuque City. On the 2d of January, 1861, a supplemental agreement relating to the same subject was entered into between the same companies; the two contracts, as the court held, being, to be considered together as forming one.

By that contract the elevator company, on its part, stipulated, among other things, to erect on land leased from the railroad company, situated at Dubuque, in the State of Iowa, a building suitable for receiving, storing, delivering, and handling all grain that should be received by the cars of the railroad company, not otherwise consigned, and to make such additions to the building from time to time as the business of the company might require; to receive and discharge at Dubuque for the company all through grain-by which was meant all grain transmitted, by the terms of shipment, through that place to some point beyond-at one cent a bushel, and make no charge for storage unless the grain was in store more than ten days, and then only at certain specified rates; and, at the end of fifteen years, the term of the lease, to renew the contract for another fifteen years, or, at the option of the railroad company, accept payment for its buildings, machinery, and other property used in conducting its business.

And the railroad company, on its part, stipulated that it would not erect a similar building for receiving, storing, delivering, and handling grain at Dubuque, or lease to any others the right to erect any such building; that the elevator company should have the handling at Dubuque of all through grain, and be paid one cent a bushel for receiving and discharging the same, and the compensation designated for storage when it exceeded ten days.

The elevator company erected the buildings required, sufficient and suitable for the purposes intended, and had always been ready to carry out its stipulations.

On the 13th of September, 1867, the Dubuque and Sioux City Railroad Company leased its road and other property to the Illinois Central Railroad Company. In this lease the Illinois company expressly assumed the contract mentioned, made with the elevator company, and soon afterwards entered into possession of the leased property, and commenced transferring grain from Dubuque across the Mississippi River, which had been brought to that point in the cars of the Dubuque and Sioux City Railroad Company. But it did not regard the stipulations of the contract with the elevator company, or only partially performed them; grain was shipped through Dubuque without being delivered to or handled by that company, and without payment of the charges which it claimed as entitled to under the contract; and the present suit was brought in a District Court of the State of Iowa by one Richmond, who had succeeded to the rights of the elevator company, to enforce the contract.

The defence was that the contract as now sued on was repugnant to what is called 'the commercial power of Congress' (the power given to Congress by the Constitution 'to regulate commerce among the several States'), as that power had been exercised in two several acts now to be spoken of: one was 'An act to facilitate commercial, postal, and military communication among the several States,' passed June 15th, 1866, the preamble and part of the first section of which were as follows:

'Whereas, the Constitution of the United States confers on Congress, in express terms, the power to regulate commerce among the several States, to establish post-roads, and to raise and support armies; therefore,

'Be it enacted, That every railroad company in the United States, whose road is operated by steam, its successors and assigns, be, and is hereby, authorized to carry upon and over its road, boats, bridges, and ferries, all passengers, troops, government supplies, mails, freight, and property on their way from any State to another State, and to receive compensation therefor, and to connect with roads of other States, so as to form continuous lines for the transporation of the same to the place of destination.'

The other was 'An act to authorize the construction of certain bridges, and to establish them as post-roads,' passed July 25th, 1866, and authorizing any person or corporation, with the consent of the two States named, to construct and maintain a bridge across the Mississippi, between Dubuque in Iowa and Dunleith in Illinois; 'and to lay on and over said bridge railway tracks for the more perfect connection of any railroads that are or shall be constructed to the said river at or opposite said point, and when constructed all trains of all roads terminating at said river at or opposite said point, shall be allowed to cross said bridge for reasonable compensation to be made to the owners of said bridge,' under certain conditions which the act provided.

The District Court denied the force of the defence set up as abovementioned, and gave a judgment in favor of the elevator company for a part of the money claimed.

The case coming for review to the Supreme Court, that court also denied the validity of the defence, and adjudged that the Constitution and the acts of Congress relied on by the railroad company did not in any manner affect the validity or force and effect of either of the contracts.

To review this judgment the defendants sued out a writ of error from this court under the twenty-fifth section of the Judiciary Act, and contended here, as in the court below, that the contract sued on was repugnant to the commercial power of Congress as exercised in the passage of the two acts referred to, and in contravention of the public policy established thereby.

Mr. J. F. Wilson, for the plaintiff in error; Messrs. Platt Smith and J. M. Griffith, contra.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:


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Railroad Company v. Richmond (86 U.S. 584)/Opinion of the Court

There is no question about the power of the Dubuque and Sioux City Railroad Company to make the contract in controversy with the elevator company; and if there were any, it would not be one within our province, upon the present appeal, to decide. The railroad company was obliged to discharge the grain it carried in its cars at the terminus of its road; and in securing the use of an elevator it provided the least expensive and the most expeditious mode for that purpose. The period for which the contract should be made, like other contracts for service, was one which rested in the discretion of the companies. No rule of law limited the period of its continuance. The occurrence of subsequent events, rendering it of more or less value to either of the parties, could not affect its validity or justify any violation of its provisions.

The plaintiffs in error contend-we quote their own language 'that the contract sued on in this action is repugnant to the commercial power of Congress, as exercised in the passage of the acts of June 15th, 1866, and July 25th, 1866, and in contravention of the public policy established thereby.' The act of Congress of June 15th, 1866, authorized every railroad company in the United States, whose road was operated by steam, and its successors and assigns, to carry upon and over its road, boats, bridges, and ferries, all passengers, troops, government supplies, mails, freight, and property, on their way from one State to another State, and to receive compensation therefor, and to connect with roads of other States so far as to form continuous lines for the transportation of the same to their place of destination. The act of July 25th, 1866, authorized the construction of certain bridges over the Mississippi River, and among others a bridge connecting Dubuque with Dunleith, in the State of Illinois, and provided that the bridges, when constructed, should be free for the crossing of all trains of railroads terminating on either side of the river, for reasonable compensation.

These acts were passed under the power vested in Congress to regulate commerce among the several States, and were designed to remove trammels upon transportation between different States, which had previously existed, and to prevent the creation of such trammels in future, and to facilitate railway transportation by authorizing the construction of bridges over the navigable waters of the Mississippi. But they were intended to reach trammels interposed by State enactments or by existing laws of Congress. They were not intended, even if it were competent for Congress to authorize any such proceeding, to invade the domain of private contracts, and annul all such as had been made on the basis of existing legislation and existing means of interstate communication. Contracts valid when made, continue valid, and capable of enforcement, so long, at least, as peace lasts between the governments of the contracting parties, notwithstanding a change in the conditions of business which originally led to their creation.

The power to regulate commerce among the several States was vested in Congress in order to secure equality and freedom in commercial intercourse against discriminating State legislation; it was never intended that the power should be exercised so as to interfere with private contracts not designed at the time they were made to create impediments to such intercourse.

The argument of the plaintiffs in error would lead to the abrogation of all contracts of the Iowa Railroad Company which might prove from subsequent events to be more onerous than contracts made after such events had happened. A contract, for example, for the supply of coal for the engines of the company, made upon terms which were at the time reasonable, might be felt to be very hard and oppressive if, before its termination, the discovery of new fields of coal in the vicinity of the road should reduce the market price of the article one-half. To assert that the enforcement of a contract of this kind would be repugnant to the commercial power of Congress, because the espenses of transportation would be less if the contract were annulled, would not be more extraordinary than the position assumed by the appellant in the present case, and would be equally entitled to consideration.

When counsel speaks of the public policy established by the acts of Congress mentioned, he must mean nothing more than that the acts were intended to facilitate commercial intercourse among the States. Undoubtedly such was the case, and it is of great public interest that such intercourse should be free and untrammelled. But if comparisons may be made with respect to a subject of this nature, we should say that the observance of good faith between parties, and the upholding of private contracts, and enforcing their obligations, are matters of higher moment and importance to the public welfare, and far more reaching in their consequences.

DECREE AFFIRMED.


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United States v. Cook (86 U.S. 591)

ON certificate of division in opinion between the judges of the Circuit Court for the Eastern District of Wisconsin.

The Menomonee Indians by agreement and treaty, negotiated on the 8th and 17th February, 1831, set apart and ceded to the United States certain of their lands in Wisconsin as a home for such of the New York Indians as might remove to and settle upon them. As the lands were intended for a home for the New York Indians, it was provided that the President should prescribe the time for the removal of the Indians to and settlement upon them, and, at the expiration of the time, apportion the lands among the actual settlers in such manner as he should deem equitable and just. If within the time prescribed they refused to accept the provisions of the treaty made for their benefit, or, having accepted, refused to remove from New York and settle on the lands, then the lands were to be and remain the property of the United States. It was also distinctly understood that the lands ceded were to be held by the tribes of New York Indians, under such tenure as the Menomonees held their lands, subject to such regulations and alterations of tenure as Congress and the President might direct. For this cession the United States paid the Menomonees $20,000.

On the 3d of February, 1838, the first Christian and Orchard parties of the Oneida Indians, to whom a part of the Menomonee cession had been apportioned, ceded to the United States all the lands set apart to them, except a tract containing one hundred acres for each individual, or in all about 65,000 acres, which they reserved to themselves, to be held as other Indian lands are held. Of this tract some three or four thousand acres have been occupied and cultivated as farming lands by individuals of the tribe in severalty with the consent of the tribe. Many of the Indians, including most of the young men, do not cultivate any of the lands as their own. A small number of the tribe cut timber from a part of the reservation not occupied in severalty, and made it into saw-logs, which they removed and sold to a certain George Cook. The United States brought this action of replevin against the said Cook to recover possession of these logs, and upon trial in the Circuit Court the facts here stated were established by the testimony; and, in adition, evidence was offered tending to prove that timber on the reservation had been cut and sold by the Indians of the tribe continually since 1838, with the tacit consent of the officers of the tribe.

Upon this state of facts the counsel of the United States asked the court to instruct the jury that the action could be brought and maintained. Upon the question of giving this instruction the judges were divided in opinion, and it was certified to this court for decision.

Mr. S. F. Phillips, Solicitor-General, for the United States; no opposing counsel.

The CHIEF JUSTICE delivered the opinion of the court.

title: United States v. Cook (86 U.S. 591)


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United States v. Cook (86 U.S. 591)/Opinion of the Court

We think the action was properly brought, and that it may be maintained.

The right of the Indians in the land from which the logs were taken was that of occupancy alone. They had no power of alienation except to the United States. The fee was in the United States, subject only to this right of occupancy. This is the title by which other Indians hold their lands. It was so decided by this court as early as 1823, in Johnson v. McIntosh. The authority of that case has never been doubted. The right of the Indians to their occupancy is as sacred as that of the United States to the fee, but it is only a right of occupancy. The possession, when abandoned by the Indians, attaches itself to the fee without further grant.

This right of use and occupancy by the Indians is unlimited. They may exercise it at their discretion. If the lands in a state of nature are not in a condition for profitable use, they may be made so. If desired for the purposes of agriculture, they may be cleared of their timber to such an extent as may be reasonable under the circumstances. The timber taken off by the Indians in such clearing may be sold by them. But to justify any cutting of the timber, except for use upon the premises, as timber or its product, it must be done in good faith for the improvement of the land. The improvement must be the principal thing, and the cutting of the timber the incident only. Any cutting beyond this would be waste and unauthorized.

The timber while standing is a part of the realty, and it can only be sold as the land could be. The land cannot be sold by the Indians, and consequently the timber, until rightfully severed, cannot be. It can be rightfully severed for the purpose of improving the land, or the better adapting it to convenient occupation, but for no other purpose. When rightfully severed it is no longer a part of the land, and there is no restriction upon its sale. Its severance under such circumstances is, in effect, only a legitimate use of the land. In theory, at least, the land is better and more valuable with the timber off than with it on. It has been improved by the removal. If the timber should be severed for the purposes of sale alone-in other words, if the cutting of the timber was the principal thing and not the incident then the cutting would be wrongful, and the timber, when cut, become the absolute property of the United States.

These are familiar principles in this country and well settled, as applicable to tenants for life and remainder-men. But a tenant for life has all the rights of occupancy in the lands of a remainder-man. The Indians have the same rights in the lands of their reservations. What a tenant for life may do upon the lands of a remainder-man the Indians may do upon their reservations, but no more.

In this case it is not pretended that the timber from which the saw-logs were made was cut for the purpose of improving the land. It was not taken from any portion of the land which was occupied, or, so far as appears, intended to be occupied for any purpose inconsistent with the continued presence of the timber. It was cut for sale and nothing else. Under such circumstances, when cut, it became the property of the United States absolutely, discharged of any rights of the Indians therein. The cutting was waste, and in accordance with well-settled principles, the owner of the fee may seize the timber cut, arrest it by replevin, or proceed in trover for its conversion.

The Indians having only a right of occupancy in the lands, the presumption is against their authority to cut and sell the timber. Every purchaser from them is charged with notice of this presumption. To maintain his title under his purchase it is incumbent on the purchaser to show that the timber was rightfully severed from the land.

That the United States may maintain an action for cutting and carrying away timber from the public lands was decided in Cotton v. United States. The principles recognized in that case are decisive of the right to maintain this action.

The answer of the court, therefore, to the question propounded by the Circuit Court, is

IN THE AFFIRMATIVE.


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United States v. Innerarity

APPEAL from the District Court for Louisiana.

An act of Congress, passed June 22d, 1860, provided for the adjustment of land claims in Louisiana, emanating from foreign governments prior to the cession of the region to the United States. The act was temporary in its nature, and, having expired, was revived for three years by an act of March 2d, 1867. This new act having also expired, a revivor was again made for three years by an act of June 10th, 1872. Under the second of these acts, Eloise Innerarity and others, alleging that they were the sole heirs of James Innerarity, deceased, on the 1st of March, 1870, filed their bill in the court below, averring that they as such sole heirs were entitled to a judicial recognition of a Spanish patent of 20,000 arpents of land in the present parish of East Baton Rouge, Louisiana, made to one Ramos, and that after the issuing of the patent the land became the property of their ancestor.

To this petition there was a general demurrer filed.

Subsequently, on the 27th of November, 1871, a supplemental petition was filed, alleging that since the filing of the original petition the petitioners had discovered that the true right to the lands claimed and to such confirmation existed, not in themselves, as they had heretofore averred and had sufficient reasons to believe, but in other persons, to wit, the heirs of John Watkins.

To this supplemental petition the United States demurred, for the reason that the time within which by the act of 1860 and the act of 1867, petitions for the confirmation of titles thereunder could be brought, had expired at the time of filing the supplemental petition, and that no new parties could be substituted thereafter; and that the heirs of Innerarity, in and by their supplemental petition, judicially confessed that they had not, and had not at the time of filing their original petition, any right to the lands claimed therein.

This demurrer was overruled, and a decree was made in favor of the representatives of John Watkins for a portion of the land.

From this decree the United States took this appeal.

Mr. C. H. Hill, Assistant Attorney-General, for the United States:

Suits of this kind are matters of strict right, and entirely dependent upon the statutes authorizing them to be brought, and parties must bring themselves clearly within those acts.

There is nothing in the petition to show any connection or joint interest between the heirs of Innerarity, who first filed the petition, and the other parties in whose behalf the supplemental petition was filed. And allowing an amendment at the time the supplemental petition was filed, bringing in new parties, was really extending, as to them, the time within which an action could be brought, beyond the period mentioned in the act of 1867, and ought not to have been allowed.

As to the heirs of Innerarity, the supplemental petition admits that they have no title to the property, and the decree entered was only in favor of the heirs of Watkins.

Messrs. R. H. and J. L. Bradford, contra:

The court should give a liberal construction of the liberal statute of 1860 as revived. It is an act of indemnity. The objection of Mr. Attorney-General is purely technical. The merits of our case are not denied. The case relates, of course, to very ancient transactions, which the interests of the government and the necessities of aged claimants make it desirable to bring to a conclusion. If dismissed now our case must come up here again at multiplied costs, under the new act of 10th of June, 1872. Such delay, circuity, and expense should be avoided by affirming the decree below.

Mr. Justice HUNT delivered the opinion of the court.

title: United States v. Innerarity


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United States v. Innerarity/Opinion of the Court

It appears that the allegations of the petition were made in ignorance of the facts, and that Innerarity really had no claim in law or in equity to the land described. This necessarily disposes of the case as to his heirs.

The attempt to set up a claim under this petition or a supplemental petition by Innerarity's heirs in favor of the heirs of John Watkins, cannot be sustained. It does not appear that Watkins derived title from Innerarity, or that Innerarity ever had any title. The case is simply this: Innerarity's heirs have filed their petition in time, but have no title. Watkins's heirs have a title, but have not filed a petition for its allowance. Watkins's title cannot be interposed by the present petitioners. Such practice is unknown. If a suit be commenced by A. to recover land or money, he failing on the merits, cannot bring into his suit a new plaintiff, especially one whose action, if then commenced, would be barred by the statute of limitations. If otherwise, the same suit can be continued indefinitely, constantly making new plaintiffs, until some one shall be found who has a meritorious claim. It would be a practical abrogation of the limitation of the statute. The act of 1867 has been further extended, and the heirs of Watkins must make an original application in their own names. We understand the case of United States v. Patterson to be a decisive authority against the present claim.

DECREE REVERSED, and the case remitted to the District Court of Louisiana, with directions to

DISMISS THE PETITION.


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United States v. Jonas

ERROR to the Circuit Court for the District of Louisiana.

An act of May 29th, 1830, authorized 'the appointment of a Solicitor of the Treasury,' prescribed his duties, &c.; and enacted, among other things, that—

'The said solicitor shall have charge of all lands and other property which have been or shall be assigned, set off, or conveyed to the United States in payment of debts;. . . and to sell and dispose of lands assigned or set off to the United States in payment of debts.'

An act of March 3d, 1863, entitled 'An act to prevent and punish frauds on the revenue, to provide for the more certain and speedy collection of claims in favor of the United States, and for other purposes,' in its ninth section, enacts:

'That for the purpose of realizing as much as may properly be done, from unproductive lands and other property of the United States, acquired under judicial proceedings or otherwise, in the collection of debts, the Solicitor of the Treasury be, and he is hereby authorized, with the approval of the Secretary of the Treasury, to rent for a period not exceeding three years, or sell any such lands, or other property, at public sale, after advertising the time, place, and conditions of such sale for three months preceding the same, in some newspaper published in the vicinity thereof, in such manner and upon such terms as may in his judgment be most advantageous to the public interests.'

These acts being in force, the Solicitor of the Treasury put up for sale at auction certain land, with houses upon it, in New Orleans, which a debtor of the United States had conveyed to it in payment of debt. The land was bid off by George Jonas for $30,000. A deed was tendered to him. The deed purported to be made between

'E. C. Banfield, Solicitor of the Treasury of the United States, duly appointed and qualified as such, and herein acting in such capacity for and on behalf of the United States of America, party hereto of the first part, and George Jonas, of the city of New Orleans, State of Louisiana, party hereto of the second part.'

It properly recited that the land had been transferred and set over to the United States in payment of a debt due to it. It further recited that 'under the provisions of section nine of an act of the Congress of the United States of America, entitled 'An act to prevent and punish frauds upon the revenue, to provide for the more certain and speedy collection of claims in favor of the United States, and for other purposes,' approved March 3d, 1863,' and after due and legal notice on certain days and in certain newspapers (all particularly specified), the land had been exposed to sale at public auction, at the St. Charles Auction Exchange, and that Jonas had bought it.

It concluded:

'In witness whereof the said E. C. Banfield, Solicitor of the Treasury, as aforesaid, hath hereunto set his hand and caused his seal of office to be affixed the day and year first above mentioned.' And E. C. Banfield, Solicitor of the Treasury, signed it. But there was nothing in, on, or about, with or apart from the deed, to show that the sale was made with the approval of the Secretary of the Treasury. This deed Jonas refused to accept. The land was thereupon again put up for sale 'on account and at the risk of the said George Jonas,' and sold for $21,500; and the United States sued Jonas in the court below for $8500, the difference between the sums bid at the sales.

The point of the controversy was whether the consent and approval of the Secretary of the Treasury is necessary to authorize the sale and conveyance of property acquired by the United States under judicial proceedings, or otherwise, in the collection of debts.

The government contended, and asked the court so to charge, that the law did not require 'a tender to defendant, as a part of the proof of title, of the written approval or consent of the Secretary of the Treasury to said sale or transfer of said property, in any form, in order to convey a complete title.' This the court declined to do, and charged 'that unless the deed of conveyance of the property executed by the solicitor, tendered by the United States to Jonas, at the time when it was tendered to him, bore upon its face, or by means of papers connected therewith, written proof, certain and patent to the defendant, that the Secretary of the Treasury had, in accordance with section nine of the act of March 3d, 1863, approved and authorized the sale of the property at auction by the Solicitor of the Treasury, then that no such deed was tendered as would convey to him a complete and undoubted title,' and that he 'could not be compelled to pay the loss in price resulting from the second sale.' The United States excepted; and judgment having gone for the defendant the government brought the case here.

The question, therefore, for decision was, whether the approval of the Secretary of the Treasury was necessary to the sale or transfer of the property in question, and if so, whether it was incumbent on the plaintiffs to produce this approval when the deed was tendered, in order to put the defendant in fault so as to subject him to suit.

Mr. C. H. Hill, Assistant Attorney-General, for the United States:

1. Had the act of 1863 not been enacted, the sale to Jonas would have been clearly binding on him, and the deed offered to him clearly good. Then the question is, whether the act of 1863 was intended to qualify and limit the powers originally given by the act of 1830, or whether rather it was intended to confer additional powers upon the Solicitor of the Treasury?

Repeals by implication of acts are not favored, and yet if the act of 1863 has the force which the defendant contends it has, it must have repealed in a manner only implied, a large part of the act of 1830.

The two statutes may be reconciled by confining the act of 1863 to unproductive property only, which may be done by construing the words 'and other property' as ejusdem qeneris with the property first mentioned, namely, unproductive land; that is to say, property of an uncertain value, which it is best should be sold at public auction; and leaving the powers of the Solicitor of the Treasury, under the act of 1830, to dispose generally of the property of the United States, unaffected by the later statute.

If the power conferred by the act of 1830 to sell this land remains unimpaired, then the recital in the deed that it was done under the act of 1863 cannot affect the validity of the sale, if the Solicitor of the Treasury had power to make it; nor would the fact that it was sold by auction; for the act of 1830 is silent as to the mode of sale.

If, however, the act of 1863 repeals the act of 1830, or qualifies it, the Solicitor of the Treasury has no longer power to sell any of the property of the United States by private sale. This restriction would cripple his power to an extent that it can be well conceived would often be very detrimental to the public.

2. But if this sale, in order to be sustained, must have been made in conformity with the act of 1863, then the court will presume the approval of the Secretary of the Treasury. It is not necessary that his approval should appear either in the conveyance or be matter of record in any respect.

The Solicitor of the Treasury is a public officer performing public duties, and it is a very maxim of the law that where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favor of their due execution. In these cases the rule is 'Omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium.'

The approval of the Secretary of the Treasury is not a muniment of title, but is a matter collateral to the title, with which the grantee of the property had nothing to do. The deed of conveyance of the Solicitor of the Treasury transferred the title. The question whether the secretary had approved it, is a matter between the government and the solicitor, and not a thing essential in order to make title.

Mr. P. Phillips, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: United States v. Jonas


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United States v. Jonas/Opinion of the Court

It is quite apparent that the law will not compel the purchaser in this case to comply with the terms of sale and accept the deed offered, unless the Solicitor of the Treasury, who made the sale and executed the deed, has undoubted authority to do both these things. The officer was created by act of Congress of 29th of May, 1830, and among the duties assigned to him by the first section is the charge of property conveyed to the United States in payment of debts, with power to sell and dispose of the same. It may be that it was the intention of Congress that the important powers thus conferred should be exercised independently of the Secretary of the Treasury, although it is clearly the policy of the law to hold the head of the department responsible for the proper administration of the governmental functions which pertain to it. It is, however, not necessary to consider the point, because the act of the 3d of March, 1863, to 'prevent frauds on the revenue and provide for the certain and speedy collection of claims in favor of the United States,' has not only in terms placed the Solicitor of the Treasury in subordination to the secretary in the matter of selling the property of the United States taken in payment of debts, but has deprived him of the power of selling at private sale at all-a power liable to abuse, and which the interests of the government require should not be confided of any one. In the ninth section of this act the solicitor is authorized to sell, with the approval of the secretary, and not then except at public sale, on three months' notice of the time, place, and terms of sale, advertised in some newspaper published in the vicinity of the property. It is clear that this latter act was intended to qualify and limit the powers given by the act of 1830. It covers the whole subject of the disposition of lands acquired for debts due the government, and embraces new and salutary provisions in relation to their sale, and shows clearly that Congress, instead of conferring additional powers, intended to limit those already conferred.

Such being the case, the latter act must operate as a repeal pro tanto of the act of 1830.

It is urged that the two acts can be reconciled if the latter one is confined to unproductive property, but neither the letter nor spirit of this act would warrant any such interpretation. It is true the sale or lease for a limited period of unproductive lands is provided for, but the same provisions apply to other property obtained by the government in payment of debts due it. Indeed, no good reason can be assigned why the disposition of unproductive lands should be subject to the approval of the secretary, and other property, which, in this case, consisted of valuable real estate in the city of New Orleans, with buildings on it, be left to the sole lisposal of a subordinate officer. All property of whatever kind obtained in the way pointed out is embraced within the scope of the statute. If the Congress of 1830 intended that the Solicitor of the Treasury should be the sole judge of the propriety of selling the property of the United States taken in payment of debts, the Congress of 1863 thought proper to abandon that policy, and to declare that in no case should there be a sale without the approval of the Secretary of the Treasury. It went further and said that all sales should be at public auction, and gave the power to lease for a limited time, but whether the property were leased or sold, the secretary should be first consulted and his consent obtained, and all persons given a fair and equal opportunity of buying. The system thus inaugurated did away with the objections to private sales, and made the Secretary of the Treasury responsible, as he should be, for the proper administration of this branch of the public service.

The next point to be considered is, whether the defendant was obliged to comply with the terms of sale on tender of the deed. This deed was executed by E. C. Banfield, and recites that, acting in the capacity of Solicitor of the Treasury, under the ninth section of the act of 1863, he had caused the property to be exposed at public sale, but it does not contain any recital that the secretary authorized the sale, nor was any evidence offered to the defendant in connection with the deed that this authority had been obtained.

It is manifest, if any effect is to be given the act invoked by the solicitor as the basis of his authority, that he could not proceed at all without the approval of his superior. The legislation of Congress would be wholly ineffectual to prevent the evils which it was designed to remedy, if this approval should not be treated as a substantial requirement, a thing essential to give validity to the sale. The question is one of power, and the power is given to sell when the secretary thinks it advisable to do so. His approval is a condition precedent, without which the solicitor has no authority whatever to act.

It is said, however, if this be so, that the court will presume this approval, and that it is not necessary that it should appear either in the conveyance or in any other mode. It would defeat the obvious purpose of Congress, which is to be considered in the construction of a statute, to dispense with proof of this approval. One of the main objects of the statute was to subject the action of the solicitor to the control of the secretary in a matter of great public concern, in which he had heretofore acted without control. This change of the system contemplated a change in the mode of proceeding on the part of the solicitor. If this were not so, there would be no security that the solicitor would not continue to sell property as he had been accustomed to sell it. Indeed, the very sale in question is defended on the ground that the power conferred by the act of 1830 remains unimpaired by the act of 1863, and the action of the solicitor in this case furnishes a potent argument against the rule of presumption contended for. As the important power of selling the property of the United States acquired in payment of debts can only be exercised by the solicitor with the approval of the secretary, there would seem to be the best of reasons for requiring some written evidence of this approval, not only for the security of the purchaser, but for the protection of the government.

The defendant, therefore, is not in default, because there is nothing in the record to show that this consent of the secretary had been obtained.

If the authority to make the sale had been delegated to the solicitor alone, and its exercise confided to his discretion, his acts would carry with them prim a facie evidence that they were within the scope of his authority. But where the power is divided there must be joint action before any presumption can arise.

JUDGMENT AFFIRMED.


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Holladay v. Daily

ERROR to the Supreme Court of the Territory of Colorado; the case being thus:

The statute of the Territory just named regulating the subject of dower, enacts that 'a widow shall be endowed of the third part of all the lands whereof her husband shall die seized of an estate of inheritance.'

This statute being in force, and Ben Holladay being, as it seemed, owner in fee of a piece of land there, he and his wife executed a power of attorney to one Hughes to sell it. The power ran thus:

'Know all men, &c., that we, Ben Holladay and N. A. Holladay, his wife, have constituted and appointed B. M. Hughes our true and lawful attorney in fact, for us and in our names to sell and convey all or any lots of ground in said Territory, the title to which is now vested in said Ben Holladay; and the said Ben Holladay and N. A. Holladay, his wife, do hereby authorize said, Hughes to proceed to sell said property on such terms as he may consider best for their interest. And it is provided that in case of the death of either of the said parties making this power of attorney, no further power shall be necessary to our said attorney in fact and agent, to enable him to complete conveyances for property then sold, or to proceed to sell the same or any part thereof thereafter; but he shall proceed, notwithstanding, to sell and convey said property until the same is all disposed of by him. Hereby ratifying and confirming all that the said Hughes may do and perform in the premises under this power of attorney to him given, we have hereunto set our hands and seals this 13th February, A.D. 1866.

'BEN HOLLADAY, [SEAL.]

'N. A. HOLLADAY, [SEAL.]'In September of the year in which the power was executed Hughes made a conveyance of some of the land meant to be conveyed. The deed began thus:

'This indenture, made this 27th day of September, A.D. 1866, between Ben Holladay, of the city and State of New York, by B. M. Hughes, his duly authorized attorney in fact, party of the first part, and Richard Whitsitt, of the city of Denver, Territory of Colorado, party of the second part, witnesseth, &c.:

'That the said party of the first part, for and in consideration of the sum of $30,000, &c., has granted, bargained, sold, and conveyed,' &c.

[Here followed a description of the premises. The deed ended thus:]

'And the said party of the first part, the aforesaid pieces, parcels, or lots of land unto the said party of the second part, his heirs and assigns, against the claim or claims of all and every person whatsoever, doth and will warrant and forever defend by these presents.

'In witness whereof the said party of the first part has hereunto set his hand and seal the day and year first above written.

'BEN HOLLADAY, [SEAL.]

'By his attorney in fact:

'B. M. HUGHES, [SEAL.]'

The possession of the land passed from Whitsitt on one Daily; and in December, 1870, Ben Holladay, alleging that he had never received any of the consideration-money recited in the deed, sued Daily to recover possession of the land.

The only question was the sufficiency in law of the power of attorney from Ben Holladay and wife to Hughes, and the deed thereunder made from Holladay by Hughes, his attorney in fact, to Whitsitt, to pass the title of the said Holladay in the land to the said Whitsitt.

The court below gave judgment for the defendant, and the plaintiff the case here on error.

Mr. G. H. Williams, for the plaintiff in error:

Hughes was invested with a special power to sell and convey certain lands in the joint names of Ben Holladay and N. A. Holladay, his wife. All the expressions in the power of attorney are full and clear to this effect. Provision is even made for the death of one of the donors of the power, in which event alone the power is to be exercised in the name of the survivor, clearly implying that before that event it is to be exercised in their joint names. Hughes violated the spirit and letter of his warrant of attorney. The power which he exercised to sell the land of another was never created.

It is impossible to say that the deed was made in substantial compliance with the warrant of attorney.

The deed is not so much a departure from the mode prescribed or exercising a power, as the exercise of a power different from the one conferred. The power was to make a deed in the name of two persons. The power exercised was the making of a deed in the name of one person. This was not a legal and valid compliance with the authority granted. An attorney acting under a written authority cannot substitute what in his judgment is substance for the forms required in the execution of the power.

Nor can it be said that the legal title was in Holladay, and, therefore, that it was only necessary to execute a deed in his name. If Holladay owned the property, he had a perfect right to say upon what terms and with what forms it should be sold and conveyed. If he had provided in the power that the deed made under it should have three witnesses, the deed would not be valid with two. He gave Hughes no authority to execute the deed in question. No inquiry can legally be made into Holladay's motives or reasons for requiring a joint deed in order to convey the property. Does the power of attorney require it? If so, and it was not done, that is the end of controversy.

Mr. P. Phillips, with whom was Mr. J. W. Denvers, contra, citing Dolton v. Cain and Dodge v. Hopkins.

Mr. Justice FIELD delivered the opinion of the court.

title: Holladay v. Daily


text: Talk:Holladay v. Daily

title: Talk:Holladay v. Daily


text:
Holladay v. Daily/Opinion of the Court

In February, 1866, Ben Holladay and his wife gave to one Hughes a power of attorney to sell and convey certain real property, situated in Denver City, in the Territory of Colorado, the title to which was stated in the power to be in Holladay. In September following Hughes sold and conveyed in the name of Holladay alone, and as his attorney, the premises in controversy. The question presented is whether the deed thus executed in the individual name of Holladay, and not in the joint names of himself and wife, was sufficient to pass his title.

In most of the States a married woman cannot, in the absence of statutory authority, execute, either alone or in connection with her husband, a valid power of attorney to convey her interest in real property. She can pass her interest only by uniting personally in a conveyance with her husband, and acknowledging upon a separate examination apart from him, before a public officer, that she executes the conveyance freely, without any fear of him, or compulsion from him. The private examination is required to protect her from the coercion or undue influence of her husband, and her acknowledgment is therefore considered as an essential preliminary to the validity of any transfer by her. The private examination is in its nature personal; it is a matter in which she cannot be represented by another. A privy acknowledgment by attorney, as observed by Bishop, would seem to involve a contradiction, and certainly would in a great degree defeat the object which her personal examination was intended to secure.

Whether any statute exists in Colorado which authorizes a married woman to convey her interest in real property by attorney we are not informed. Counsel, whose attention was called on the argument to the matter, were not aware that any such statute exists.

Assuming, however, that such statute does exist, or that, without any such statute, the authority of a married woman to convey, in connection with her husband, which is conferred, implies a power to appoint an attorney for that purpose-and there are adjudged cases which proceed upon that theory-we do not see any objection to the validity of the deed actually executed in the name of Holladay alone, or to its operation in passing the title. The wife of Holladay evidently joined in the power upon the supposition that she might, in case of surviving her husband, have a right of dower in the real property of which he was seized during her coverture, and that the release of such right might be required for an advantageous sale of the property. But in fact she could not in any event have had a right of dower in his real property in Colorado after its sale by him, although she did not unite in the sale. By a statute of that Territory the right of dower of the widow attaches only to lands of which the husband dies seized. Her joint execution with him, whether in person or by attorney, of the deed of the premises in controversy, would not therefore have imparted any greater interest, present or prospective, than his separate conveyance.

Undoubtedly it is a rule that a special power of attorney is to be strictly construed, so as to sanction only such acts as are clearly within its terms; but it is also a rule of equal potency that the object of the parties is always to be kept in view, and where the language used will permit, that construction should be adopted which will carry out, instead of defeating, the purpose of the appointment. Here the object, and the sole object, of the power was to enable the attorney to pass the title freed from any possible claim of the wife; and under the law of Colorado that result could be accomplished by the deed of the husband alone as fully without as with her signature.

A power of attorney created by two or more persons possessing distinct interests in real property may, of course, be so limited as to prevent a sale of the interest of either separately; but in the absence of qualifying terms, or other circumstances, thus restraining the authority of the attorney, a power to sell and convey real property, given by several parties, in general terms, as in the present case, is a power to sell and convey the interest of each, either jointly with the interests of the others, or by a separate instrument. The cases are numerous where a power given by several has been held invalid as to some of the parties, and yet sufficient to authorize a transfer of the title of the others. The decision of those cases has proceeded on the doctrine stated, that where a power is given by several the interest of each in the property, to which the power refers, may be separately transferred.

It is proper to state that in sustaining the deed executed in the present case we confine ourselves to its operation in passing the existing title of Holladay. It contains a covenant of general warranty, and we express no opinion on the question whether the power authorized the attorney to make any such covenant for his principal.

JUDGMENT AFFIRMED.

title: Holladay v. Daily/Opinion of the Court


text: Talk:Holladay v. Daily/Opinion of the Court


text:
Packet Company v. Sickles (86 U.S. 611)

ERROR to the Supreme Court of the District of Columbia.

This suit was part of a litigation of twenty-five years' standing, which was now in this court for the fourth time.

The controversy arose out of the use by the defendants below of an improvement in the steam-engine known as the Sickles cut-off, an apparatus for lifting and tripping the valves of steam-engines, and also an improved water reservoir and plunger, for which F. E. Sickles, one of the plaintiffs, had, on the 20th May, 1842, received a patent.

All the trials in the court below previous to the one under review had been founded on a special count, the substantial allegations of which were that after an experiment to ascertain the saving in fuel due to the use of the patented invention, the defendants would pay to the plaintiffs three-fourths of the value of said saving of fuel during the existence of the patent, if the vessel on which it was to be used should last so long. Very large savings were proved to the satisfaction of juries, and several heavy verdicts and judgments rendered, which were reversed on different grounds in this court. The last of these reversals was in the present case, and is reported in 5th Wallace, 580.

It was there held that this special contract, on which the case had always been previously tried, was void under the statute of frauds, because it was not to be performed within one year and was not in writing. This was in 1867, and the case being remanded, the plaintiffs, by leave of the court, filed, on 4th March, 1868, the following amendment to the declaration:

'The plaintiffs sue the defendants for money payable to the plaintiffs, for the use of a certain apparatus patented by one F. E. Sickles on the 20th day of May, 1842, for lifting and tripping the valves of steam-engines, and also an improved water reservoir and plunger.

'And the plaintiffs sue the defendant for money received by the defendant for the plaintiffs; and the plaintiffs claim $25,000.'

To this the defendants, on the 1st day of March, 1871, three years afterwards, without leave of the court, filed a plea of non-assumpsit, and two pleas of the statute of limitations. On motion of the plaintiffs the two latter pleas were stricken from the files, on the ground that not having been filed within time, according to the rules of the court, the court would, in furtherance of the ends of justice, refuse to permit them to stand as part of the issue to be tried.

The defendants excepted; but whether their exception exhibited to this court in the full, clear, and regular way in which, according to immemorial practice, it was proper to exhibit it, the action of the court below, which they wanted to bring here, was not so clear. The bill of exceptions, signed by the judge and sealed, ran in this way; the rule of court which it was said that the defendant had violated, not being incorporated into the exception, but appearing (just as it appears on the page of this volume) in a footnote on the page in the printed transcript; leaving it open, of course, to a question who put it on the record or transcript, though not the least question of that sort was made, at any time, in this case.

'Deposition of Thomas Worthington was read, and it was shown to the court that a copy of the amended declaration was served on the attorney of the defendant, but without the notice to plead required by the rule of court No. 15, and was as follows: [The exception then set out the amended declaration in the words already above given.] Nor was any rule to plead, laid in the cause after the amended declaration. Therefore the court ordered that the second and third pleas be stricken out; to which ruling the defendant excepts and prays the court to sign, seal, and cause to be enrolled this its first bill of exceptions, which is done accordingly, this 2d of March, 1871.'

These pleas of the statute being struck out, the case was tried on the plea of non-assumpsit.

The plaintiff, under objection by the defendant, proved his special contract, how much fuel had been saved by the use of his apparatus, and how long the defendant used it. The defendant excepted to this proof.

The defendant gave evidence to show every sale made during the existence of the patent, of the license to use the patent on board of different boats; and that the patent fee charged to licensees under said sales, which were numerous, ranged from $250 to $1500, but, on no occasion, exceeded the latter sum; and further, that the owners of the patent did not keep the patent-right off the market, but, on the contrary, availed of all opportunities offered of disposing of licenses to use the patent.

The defendant, in substance, asked the court to charge,

'That the measure of damages was the established rate for the license to use their invention, as ascertained by the sales made by plaintiff of such license to others.'

The court refused thus to charge, and charged thus:

'In estimating the amount which the plaintiff is entitled to recover, the jury will take into consideration the value of the use of this machine, as far as the proof enables them to ascertain its value from the sale of the machine itself, from the license of its use, from the capacity of the machine to economize the expenditure of fuel, in the expression of the power of the engine, and from any other testimony that they may find developed in the case bearing upon the value of its use; the conclusion of value not to be confined to the price of the patent when sold, the license for its use, or the value of its economies, but to be a deduction from all, under the rule of equity and justice between parties dealing with each other in contract, and where it is expected that both are to derive advantages from their dealings.'To the refusal and to the charge exceptions were taken.

The jury found a verdict of $11,333 with interest, from the day when the suit was brought, December 11th, 1855, to the day when the verdict was rendered, March 15th, 1871.

The case was now here on exceptions; errors among others being assigned:

In striking out the pleas of the statute of limitations.

In admitting evidence to show the saving qualities of the Sickles apparatus, as compared with others, whose merits were not shown.

In refusing to instruct the jury as requested that, in an action for the use of a patented machine, the measure of damages is the license fee or what others pay for the same use about the same time.

And in charging the jury in respect of damages as it did.

Messrs. T. J. D. Fuller and W. D. Davidge, for the plaintiff in error; Messrs. J. H. Bradley and E. N. Dickerson, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Packet Company v. Sickles (86 U.S. 611)


text: Talk:Packet Company v. Sickles (86 U.S. 611)


text:
Packet Company v. Sickles (86 U.S. 611)/Opinion of the Court

The ruling of the court below, in striking out the two pleas of the statute of limitations, is the ground of the first exception and of one of the assignment of errors.

The rule of that court is not made a part of the bill of exceptions. What purports to be a rule on the general subject of notice to plead is put at the bottom of the page in a note, a mode of making up records on writs of error which is quite novel. What these rules are cannot be judicially noticed by this court, and we are much embarrassed as to the effect of the reference to those rules in the bill of exceptions. The right to plead the statute of limitations, like any other defence, does not depend on the pleasure or discretion of the court. And if the action of the court was rested solely on that ground we should have no hesitation in reversing it. But there are other considerations to be weighed. The right of a court to prescribe rules to regulate the time and manner of filing pleas is beyond question, if they are reasonable, and such rules are indispensable to the dispatch of business and the orderly administration of justice.

When in a bill of exceptions the court places its action on such rules, with the construction of which, and the course of practice under them, it must be familiar, it would seem that the party assigning error on such rulings should be bound to exhibit in his bill of exceptions so much of the rule or rules as affects the question. No little weight is added to these views by the fact that the defendants did not file their pleas until three years after the filing of the amended declaration, to which they were answers, and until the day before the case was tried by the jury. In addition to this, while it may be true that the amended declaration, as a general rule, is to be taken as the commencement of the suit, in reference to the defence of the statute, it may be doubted whether in this particular case, where, after years of fierce litigation, only a common count is added, which is intended to cover the same subject-matter, justice will be promoted by allowing this plea, which can only be valid by reason of the time elapsed pending the litigation. On the whole we do not think, as the case appears before us, that the exception is well taken.

The case went to trial on the plea of non-assumpsit to the amended declaration. Evidence was admitted, to which defendants excepted, proving the special contract, the value of the saving in fuel made by the use of the patented improvement, and the length of time it was in use by defendants. Evidence was also given by defendants that the plaintiffs had sold a great many licenses for the use of the patent on steamboats, that the patent fees were numerous, and ranged from $250 to $1500 for the use of the patent during its existence, and that though they had produced evidence of all the sales made of licenses for the use of the patent on steamboats during its existence, the fee in no case exceeded the latter sum. Notwithstanding this testimony, which seems to have been uncontradicted, the verdict of the jury and the judgment of the court was for $11,333, with interest from the date of the commencement of the suit.

The defendants in various forms prayed the court to instruct the jury that the measure of damages was the established rate for the license to use their invention, as ascertained by the sales made by plaintiffs of such license to others. If this was the true rule of estimating the damage the bill of exceptions shows that a sufficient number of such licenses, and the prices at which they were granted, were in evidence to enable the jury to apply the principle to the case before them.

And we are of opinion that this was the sound rule, and that in refusing the prayers for instruction based on it, as well as in admitting evidence of the saving of fuel and its value as affecting the amount of the verdict, the court below was in error. And the same error is to be found in the charge of the court to the jury on that subject.

In the case of Seymour v. McCormick, this court, on full consideration, and without dissent, laid down the proposition that in suits at law for infringement of patents, where the sale of licenses by the patentee had been sufficient to establish a price for such licenses, that price should be taken as the measure of his damages against the infringer. The rule thus declared has remained the established criterion of damages in cases to which it was applicable ever since.

'In cases where there is no established patent or license fee in the case,' says the court in the Suffolk Company v. Hayden, 'or even an approximation to it, general evidence must necessarily be resorted to.'

In the case of Seymour v. McCormick, a charge very similar to the one given in the present case was held erroneous and the principles we have stated established.

The rule in suits in equity, of ascertaining by a reference to a master the profits which the defendant has made by the use of the plaintiff's invention, stands on a different principle. It is that of converting the infringer into a trustee for the patentee as regards the profits thus made; and the adjustment of these profits is subject to all the equitable considerations which are necessary to do complete justice between the parties, many of which would be inappropriate in a trial by jury. With these corrective powers in the hands of the chancellor, the rule of assuming profits as the groundwork for estimating the compensation due from the infringer to the patentee has produced results calculated to suggest distrust of its universal application even in courts of equity.

Certainly any unnecessary relaxation of the rule we have laid down in cases at law, where the patentee has been in the habit of selling his invention or license to use it, so that a fair deduction can be made as to the value which he and those using it have established for it, does not commend itself to our judgment, nor is it encouraged by our experience.

If such be the proper rule in case of the infringer who uses the invention without license and against the consent of the owner, it should not be harsher against the party who uses it with consent of the owner, express or implied, but without any agreement as to the rate of compensation. In such case nothing can be more reasonable than that the price fixed by the patentee for the use of his invention, in his dealings with others, and submitted to by them before using it, should govern.

The case was tried in the court below upon an entirely different theory, against the steady remonstrance and exceptions of the defendants.

With the special contract eliminated from the case, it seems to us to be a very simple one. The defendants have used, or are charged with using, the invention of plaintiffs, with their consent, until the expiration of the patent. If this is proven to the satisfaction of the jury, the plaintiffs have furnished the rule which must measure their compensation, in the prices at which they have sold the same privilege to others, and they must be bound by it.


text: Talk:Packet Company v. Sickles (86 U.S. 611)/Opinion of the Court