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The Yosemite Valley Case/Opinion of the Court

The simple question presented for determination is whether a party, by mere settlement upon lands of the United States, with a declared intention to obtain a title to the same under the pre-emption laws, does thereby acquire such a vested interest in the premises as to deprive Congress of the power to divest it by a grant to another party. If such be the effect of mere settlement, with a view to pre-emption, upon the power of Congress to grant the lands occupied to another party, it must operate equally to deprive Congress of the power to reserve such lands from sale for public uses of the United States, though needed for arsenals, fortifications, lighthouses, hospitals, custom-houses, court-houses, or for any other of the numerous public purposes for which property is used by the government. It would require very clear language in the acts of Congress before any intention thus to place the public lands of the United States beyond its control by mere settlement of a party, with a declared intention to purchase, could be attributed to its legislation.

The question here presented was before this court, and was carefully considered, in the case of Frisbie v. Whitney, reported in the 9th of Wallace. And it was there held that under the pre-emption laws mere occupation and improvement of any portion of the public lands of the United States, with a view to pre-emption, do not confer upon the settler any right in the land occupied, as against the United States, or impair in any respect the power of Congress to dispose of the land in any way it may deem proper; and that the power of regulation and disposition, conferred upon Congress by the Constitution, only ceases when all the preliminary acts prescribed by those laws for the acquisition of the title, including the payment of the price of the land, have been performed by the settler. When these prerequisites have been complied with, the settler for the first time acquires a vested interest in the premises occupied by him, of which he cannot be subsequently deprived. He is then entitled to a certificate of entry from the local land officers, and ultimately to a patent for the land from the United States. Until such payment and entry acts of Congress give to the settler only a privilege of pre-emption in the case the lands are offered for sale in the usual manner; that is, the privilege to purchase them in that event in preference to others. The United States by those acts enter into no contract with the settler, and incur no obligation to any one that the land occupied by him shall ever be put up for sale. They simply declare that in case any of their lands are thrown open for sale the privilege to purchase them in limited quantities, at fixed prices, shall be first given to parties who have settled upon the improved them. The legislation thus adopted for the benefit of settlers was not intended to deprive Congress of the power to make any other disposition of the lands before they are offered for sale, or to appropriate them to any public use.

The decision in Frisbie v. Whitney was pronounced by a unanimous court, and subsequent reflection has satisfied us of its entire soundness. The construction there given to the pre-emption laws is, as there stated, in accordance with the construction uniformly given by that department of the government, to which the administration of the land laws is confided, and by the chief law officers of the government to whom that department has applied for advice on the subject. It is the only construction which preserves a wise control in the government over the public lands, and prevents a general spoliation of them under the pretence of intended settlement and pre-emption. The settler being under no obligation to continue his settlement and acquire the title, would find the doctrine advanced by the defendant, if it could be maintained, that he was possessed by his settlement of an interest beyond the control of the government, a convenient protection for any trespass and waste, in the destruction of timber or removal of ores, which he might think proper to commit during his occupation of the premises.

The argument of the defendant's counsel, and his criticism upon the decision in Frisbie v. Whitney are founded upon a misapprehension of the language used in some previous opinions of this court, and particularly of language used in the opinion in the case of Lytle v. The State of Arkansas. This last case and the language there used did not escape the attention of the court in the consideration of Frisbie v. Whitney. That and other cases, in which the equitable rights of persons claiming under the pre-emption laws had been protected against the legal title acquired by others is disregard of their rights, were cited by counsel and commented upon on the argument, as asserting principles inconsistent with the construction of those laws given by the court. But the court, without examining in the opinion the cases cited in detail, stated that in nearly all of them the party, whose equitable right was protected, had acquired a vested right by action of the land officers, and payment and acceptance of the price of the land, which those officers had disregarded; and that in the other cases the successful party had established his legal right of preference of purchase over others under existing law; and that in these particulars those cases were widely different from that of Frisbie v. Whitney.

But inasmuch as counsel of the defendant, who appeared also as one of the counsel in this last case, again urges upon our attention the case of Lytle v. Arkansas, and contends with much earnestness that it sustains principles in conflict with those expenssed in Frisbie v. Whitney, and also settles the case at bar in favor of the defendant, we are induced to state at some length what that case was, and what it actually decided. In that case a pre-emptioner by the name of Cloyes claimed a right to make an entry of certain lands under the act of Congress of May 29th, 1830. That act gave to every occupant of the public lands prior to its date, who had cultivated any part thereof in the year 1829, a right to enter at the minimum price, by legal subdivisions, any number of acres not exceeding one hundred and sixty, including his improvements, provided the land was not reserved for the use of the United States, or either of the several States. It required, before any entries could be made, that proof of settlement or improvement by the claimant should be made to the satisfaction of the register and receiver of the land district, pursuant to rules prescribed by the Commissioner of the General Land Office. Under rules thus prescribed proof was made of the cultivation and improvement of Cloyes which was satisfactory to the register and receiver, and payment of the price was offered by him. Those officers held that he was entitled to enter one of the fractional sections claimed, the one upon which his improvement was made and not the others, and issued a certificate to him to that effect. The plats of the township where the land was situated not having been furnished by the surveyor-general, as required, the formal entry with the register could not be made, but in lieu thereof, under instructions of the Commissioner of the General Land Office proof identifying the land claimed was allowed to be filed The act of 1830 expired in one year, and the public surveys of the land were not completed until December, 1833, and were not returned to the land office until the beginning of 1834. Cloyes had thus done all that he could do to perfect his right to the title of the United States under a law which opened the land for sale in limited quantities, at specified prices, to its occupants and cultivators.

Subsequently, in July, 1832, Congress passed an act giving to parties entitled to pre-emption under the act of 1830 one year from the time when the township plats should be returned, to enter the lands. Under this act the heirs of Cloyes, he having died, made payment to the receiver for the fractional section to which his pre-emption claim was allowed in 1830, as already stated, and also for the fractional sections to which his claim was rejected, and applied to the register to enter them, but that officer refused to allow the entry. The court held that, so far as the fractional quarter section to which the claim was allowed by the register and receiver in 1830 was concerned, the refusal did not affect the right of the claimant. And it is with respect to the inability of Cloyes to make the entry in 1830 for want of the township plats which the surveyor-general had failed to return, and the refusal of the register to allow the entry subsequently under the act of 1832, that the language cited by counsel was used by the court; namely, that, 'It is a well-established principle that when an individual, in the prosecution of a right, does everything which the law requires him to do, and he fails to attain his right by the misconduct or neglect of a public officer, the law will protect him. In this case the pre-emption right of Cloyes having been proved, and an offer to pay the money for the land claimed by him, under the act of 1830, nothing more could be done by him, and nothing more could be required of him under that act. And subsequently, when he paid the money to the receiver, under subsequent acts, the surveys being returned, he could do nothing more than to offer to enter the land, which the register would not permit him to do. This claim for pre-emption stands before us in a light not less favorable than it would if Cloyes or his representatives had been premitted by the land officers to do what in this respect was offered to be done.'

There is no question about the correctness of the doctrine here announced; it is only a familiar principle which is stated, that where one offers to do everything upon which the acquisition of a right depends, and is prevented by fault of the other side, his right shall not be lost by his failure.

The principle only applies where, by law or contract, the acquisition of a right is made dependent upon the perform ance of certain specified acts. There can be no such thing as the acquisition of a right of pre-emption, that is of a right to be preferred in the purchase of property of the United States, until such property is open for sale. In the case from Arkansas the law of 1830 authorized the entry and sale of the land to the occupants and cultivators; it prescribed certain things to be done to entitle them to purchase; these things were done, or would have been done by Cloyes if the officers of the government, appointed to aid in their performance, had not failed in their duty. The hindrance to the complete performance of everything required of the claimant could not impair his rights. And it was immediately after affirming the validity of his claim, notwithstanding this hindrance, that the court used the language upon which so much stress is placed by the defendant's counsel, to the effect that a claim of pre-emption is not a 'shadowy right,' but when covered by the law is a legal right, subject to be defeated only by a failure to perform the conditions annexed to it. This language was undoubtedly correct as applied to the claim of Cloyes, as then situated, which gave occasion to it, and it is in a general sense correct as applied to every claim of pre-emption. Such claim, it must be remembered, is only a claim to be preferred in the purchase of lands of the United States in limited quantities, at fixed prices, when the lands are offered for sale in the usual manner. When one has acquired this claim by complying with the conditions of the law for its acquisition he has a legal right to be thus preferred, when the sale is made, as against others asserting a similar right under the law, which the court will enforce in proper cases. But the claim of pre-emption, as already said, can never arise when the law does not provide for a sale of the property. Until thus sanctioned by the law the claim, as stated by the court in that case, has no existence as a substantive right.

There is nothing in the case of the defendant which is at all analogous to that of Cloyes. Here the land occupied by the defendant was never offered for sale, but was excluded from any possible sale by appropriation to perpetual public use, resort, and recreation. Nothing was therefore required or could be required of the defendant for the acquisition of the title, and nothing could be, or was done by him to that end.

In the case from Arkansas, the right of Cloyes had been defeated by the failure of the executive officers to perform their duty under the law, he having complied fully with its provisions, except so far as he was prevented by such failure, and having thus acquired a right to the title of the government. In the present case no default on the part of the executive officers is alleged or pretended. The ground of complaint is that the defendant could not acquire the title under the pre-emption laws, because Congress had granted the land to the State and thus withdrawn it from sale. In the one case it is the action of the executive officers which is the ground of complaint; in the other it is the action of Congress.

The court cannot assume, and then found a decree upon the truth of the assumption, that the defendant would have complied with the provisions of the pre-emption laws, had Congress never made the grant. Nor could it make any such assumption, even if it were held that those laws surrendered unconditionally the entire public lands to settlers, instead of allowing to them the privilege of pre-emption provided the lands are offered for sale in the usual manner.

In June, 1832, Congress passed an act granting to the Territory of Arkansas one thousand acres of land contiguous to and adjoining the town of Little Rock, for the erection of a court-house and jail. The grant was not of any specific tract, but only of a specified quantity to be selected by the governor. Previous to the selection by him and previous to the grant, Cloyes had acquired a right, as already stated, to the title of the government. This was a vested right, and the court very properly held that Congress, in making the grant to Arkansas, did not intend to impair vested rights, and that the grant must be so construed as not to interfere with the pre-emption of Cloyes. No other ruling would have been consistent with settled principles. Had the lands in the Yosemite Valley been open for sale, and had Hutchings acquired a right to the title of the United States by complying with all the conditions upon which the acquisition of that title depended before the grant to the State, his position would have some analogy to that of Cloyes. His right to the title would then have been a vested right, and the grant to the State would have been construed so as not to interfere with his pre-emption. But his declarations as to what he would have done had the land not been withdrawn by Congress from the operation of the pre-emption laws, are unavailing for any purpose.

The case of Lytle v. Arkansas is confessedly the strongest case which counsel can cite in support of the anomalous views advanced by him. It is manifest from the statement we have made of the facts of that case, that neither the case itself nor the language used in the opinion of the court, when considered in connection with the facts, give the slightest countenance to those views; but that the decision of the court and the doctrines expressed in the opinion, are in entire harmony with the principles announced in Frisbie v. Whitney. The whole difficulty in the argument of the defendant's counsel arises from his confounding the distinction made in all the cases, whenever necessary for their decision, between the acquisition by the settler of a legal right to the land occupied by him as against the owner, the United States; and the acquisition by him of a legal right as against other parties to be preferred in its purchase, when the United States have determined to sell. It seems to us little less than absurd to say that a settler or any other person by acquiring a right to be preferred in the purchase of property, provided a sale is made by the owner, thereby acquires a right to compel the owner to sell, or such an interest in the property as to deprive the owner of the power to control its disposition.

The act of California, of February, 1868, attempting to grant the premises in controversy to the defendant is, by its own terms, inoperative until ratified by Congress. No such ratification has ever been made, and it is not believed that Congress will ever sanction such a perversion of the trust solemnly accepted by the State.

JUDGMENT AFFIRMED.


text: Talk:The Yosemite Valley Case/Opinion of the Court

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Canal Company v. Hill

APPEAL from the Supreme Court of the District of Columbia; the case being thus:

The Chesapeaks and Ohio Canal Company were the proprietors of a canal which, at its terminus in the Georgetown, D.C., was much higher than the Potomac River, and so furnished by its surplus water a considerable water power. This power the company had for many years been in the habit of leasing out to the proprietors of various mills built not far from the side of the canal. The general form of lease used was that of a grant of the right, for a certain term of years, at a certain rent, and under certain restrictions, to draw from the canal so much water as would pass through an aperture of specified size (stated in square inches) in an iron plate fixed in the side of the canal. From this aperture the water was carried in a trunk, or forebay, to the premises of the lessee and discharged upon his water-wheel. The rent usually charged had been $2.50 or $3 per annum for every square inch contained in the aperture agreed upon.

In January, 1864, one Hill, proposing to build a paper-mill to be run by water from the canal, but not yet having built it, procured from the company a lease, by which they granted and agreed that he should have full right, for the term of twenty years from the first of July, 1864 (with privilege of renewal indefinitely), to draw off from the Chesapeake and Ohio Canal, at Georgetown, to be used at his property at the corner of Potomac and Water Streets (from the level between locks No. 4 and No. 5), so much water as would pass through an aperture of 200 square inches in an iron plate not exceeding half an inch in thickness, to be used solely for propelling the machinery of a paper-mill and appurtenant works; but on certain conditions, viz.: the aperture was to be of such height and length in the clear as to make just 200 square inches (which probably meant, as this court assumed, that it was to be rectangular); its lower edge not to be nearer the canal bottom than two feet; it was to be plain and square through the plate, with no attachment or contrivance to increase the quantity of water to be drawn, and to have a sliding gate in front, so that the water-power granted might be totally or partially stopped, as the provisions of the contract might require. The forebay, or trunk, for conducting the water through the canal-bank, from the aperture, was to be covered or bridged; and said forebay, aperture, and gate were to be so constructed as not to interfere with the navigation of the canal or use of the tow-path; and to be of good and substantial construction, so as not to occasion any leakage; and to be constructed at the cost of the lessee, under the direction and superintendence, and subject to the approval of, the proper officer of the company; and, at like cost and under like superintendence, to be altered from time to time, as might be considered necessary by the company or its proper officer, to prevent or lessen the inconvenience to the navigation of the canal and use of the tow-path. It was also stipulated that the officers and servants of the company should at all times have free access to the lessee's premises to examine and repair the embankments of the canal, and the lessee's fixtures and works connected with drawing off the water, for the purpose of seeing whether the water was wasted by leakage, or whether more water was drawn off than was granted. Hill agreed to pay for the use of the water leased an annual rent of $500 for the first ten years, and $600 for the last ten; and it was made a condition that if the rent should not be paid, or if the other stipulations should not be complied with, or if he should alter or enlarge the forebay, or trunk, or aperture, or apply the water to other uses, without the consent of the company, they might cut off the water until he should make amends or satisfaction. It was also agreed that if the water should at any time be found deficient for the uses of navigation (which was declared to be the primary purpose of the canal), the supply to the mill might be diminished or stopped, as might be requisite for meeting the deficiency.

Having got his lease, Hill went to work and, at a cost of about $40,000, erected his mill; placing it at a distance of 350 or 450 feet away from the canal; a greater distance than were the other mills. This required a long forebay. Such a one he built, of solid masonry, giving to it, however, both less capacity and less pitch than marked those of the other mills, and adopting in his mill a turbine wheel instead of the ordinary overshot. The result of the whole was that he received about half the quantity of water which commonly came to the other mills, through an aperture in the canal of $200 square inches.

In this state of things, Hill agreed with the company, in May and June, 1866, that he should have a lease for such additional quantity of water-power as was required for his mill, upon the usual terms, on payment of a bonus of $5 per inch for such additional quantity. Hereupon the engineer of the company and the superintendent of Hill's mill went to work to ascertain by actual experiment how much additional water was required. Their mode of operation was to raise the slide in the side of the canal through which the water flowed to the mill until a sufficient quantity to propel it flowed through. The mode in which the forebay to Hill's mill had been constructed allowed them no other mode. Accordingly, the head of water being weak, as the gauge was lifted upwards and the water flowed from towards the top of the canal, the operation brought the slide to a point only five inches below the surface of the canal, and no sufficiency of water could be had until an aperture of 700 inches-an aperture therefore of 500 inches more than the one originally agreed on-was made. This aperture was accordingly left, and the water that went through it was used by Hill.

At the next quarter-day the company required him to pay the bonus and quarter's rent upon the additional 500 inches, which he refused to do. They then were about to shut off the water when Hill filed this bill in the court below for an injunction. After answer, the court referred it to Mr. W. R. Hutton, engineer of the company, to report as a commissioner and expert upon certain matters concerning this and the other mills.

Mr. Hutton reported that the other mills discharged about 6 2/3 cubic feet per second for every 100 inches of aperture, while Hill's 200 discharged at only the rate of 6 1/2; though, with allowance for the location of the mill and other circumstances, he ought, through his 200 inches, to have received at least 11 cubic feet per second.

This question, also, was referred to him:

'How many square inches of aperture, situated at the distance of two feet from the bottom of the canal, and of the width of complainant's forebay, would furnish a flow of water equivalent in power and effect to the additional water received by the complainant under his new contract, over and above his original grant?'

Mr. Hutton reported that the additional 500 inches provided for by the contract were the equivalent of but 217 inches drawn two feet from the bottom, and under the conditions of the lease.

The court accordingly made the injunction perpetual, so long as Hill should pay rent on 217 inches.

From that decree it was that the company now appealed

Mr. W. S.C.ox, for the Company, appellant in the case:

The error of the decree is that it makes a new contract for the parties. As to the original contract, the canal company did not stipulate to furnish a certain quantity of water-so many inches of water-but so much water as will pass through an aperture of 200 square inches. It is obvious that the quantity that will pass through such an aperture will vary with different conditions. But the shape and location of the aperture itself were left entirely to the judgment and discretion of the lessee, with the single condition that the lower edge of the aperture be not nearer than two feet to the canal bottom. In this case Hill has the whole benefit of his grant. He could not, with an aperture of 200 square inches, receive water through the forebay constructed by himself under more favorable conditions than at present.

Then, in regard to the new contract. As to this, Hill pretends that in ascertaining the quantity of water, or the size of aperture necessary, the company's officers ought to have enlarged the aperture horizontally, more than perpendicularly, on the principle that the greater pressure at the lower depth would have made a smaller number of additional inches sufficient for a given work than would have to be added perpendicularly. And this is the sole answer to their claim, that he was bound to pay according to the number of inches of aperture. But it was his own act that made the mode of measurement adopted the only one practicable. The forebay was of his own construction. The lease contemplated a construction of the forebay by the lessee, subject only to the approval of the officer of the company. The forebay, of course, was always constructed of such width as to be adapted to the machinery. It would not, for instance, be wider than the mill-wheel, for, as to the excess of width, the stream of water paid for would simply be wasted. Hill had made his forebay of solid stone, and in his lease stipulated that it should not be enlarged without the written consent of the company. It is not pretended that he ever applied for that consent, much less that it was granted. On the contrary, he expected to get the additional water by a vertical addition to the column of water, and his own foreman assisted in making the measurement in that way; nor did he ever dissent from it.

The only hardship in this case is the result of the appellee's own miscalculation. He obtained his water-grant first and then erected his mill, with such machinery that the water leased by him was insufficient to propel it. He then obtained all the water that he needed, on the same terms that were usual in all water leases, and found that those terms were onerous because his peculiar machinery required a more extended grant than usual, and therefore seeks to change the terms of his contract by the authority of the court.

Mr. W. D. Davidge, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Canal Company v. Hill


text: Talk:Canal Company v. Hill

title: Talk:Canal Company v. Hill


text:
Canal Company v. Hill/Opinion of the Court

The large investment of capital made by the appellee in sole reliance on the water-power which the lease secures, with the full knowledge which the appellants had of this reliance and intended investment, renders it necessary that we should look carefully to the substance of the original agreement, of January, 1864, as contradistinguished from its mere form, in order that we may give it a fair and just coustruction, and ascertain the substantial intent of the parties, which is the fundamental rule in the construction of all agreements. It is not to be presumed that they intended to provide for a certain aperture in the canal without respect to the amount of water it would discharge and the purpose which that water was to accomplish. What the appellee sought was water-power to drive the machinery of an expensive mill. The appellants knew this to be his object, and the thing leased or granted was intended to be, and in fact was, water, as the means of creating such power. It was not only water, but a certain quantity of water, namely (in the words of the lease), 'so much water as will pass through an aperture of two hundred square inches,' under certain conditions specified. The parties clearly had in view a fixed quantity of water to be received in a given time. In ascertaining their mutual rights under the lease, it is important to know how much this quantity was. When we know that, we know the substance of the agreement.

Now, in speaking of a certain quantity of water, we always have reference to its cubical contents, its bulk or weight. We mean so many gallons, or hogsheads, or cubic feet of water. We have no reference to surface or sectional measurement. A square foot, or a square inch of water, expresses no quantity at all. But when we speak of the quantity which will pass through a square foot, or square inch of aperture, in a certain time, then our words have meaning. The size and position of the aperture so carefully prescribed in the lease were intended merely as a means of measurement of the real thing granted, namely, that certain quantity of water per second, or per hour, which the parties had in mind, and about which they were dealing. If we can ascertain this, we can easily adjust the mutual rights of the parties. Can it be ascertained from the terms of the lease, aided by the light derived from the evidence in the cause? We think it can. And in making this inquiry we have a right to examine into the state of things existing at the time and the circumstances in which the lease was made. This kind of evidence is especially pertinent when the inquiry is as to the subject-matter of the agreement.

The amount of water which will be discharged through an aperture of a given size will depend upon the form of the aperture, the head under which the water is drawn, and the freedom from obstruction with which it is permitted to flow away.

In this case the lessee is not restricted as to the form of the aperture, except, perhaps, that it shall be rectangular. So that it contains only the content of two hundred square inches he is at liberty to construct it of such relative dimensions as he sees fit. Of course it is his interest to give it the greatest length and the least height consistent with a free flow. Such a form gives the greatest head of water above the aperture and increases the discharge. The right of superintending and directing the construction of the works, reserved to the lessors, cannot be construed to restrict this discretion of the lessee. That right has more particular reference to the manner of the construction, and the solidity and safety of the work, in reference to the structure and uses of the canal. It cannot be allowed to annul the substantial rights of the lessee without becoming repugnant to the grant.

In the next place, as to the head of water under which the leased water is to be drawn, the only restriction imposed upon the lessee in this regard is that the lower edge of the aperture shall not be nearer to the canal bottom than two feet. Of course he is entitled to draw under the entire head of water above this two feet. What that head shall be will depend upon the usual depth or height of water in the canal. It is to be presumed that the parties contracted in reference to that. The lessors do not guarantee any particular head; but any alteration of their canal which would materially and permanently reduce it would abstract from the lessee a portion of the water, which he must be presumed to have stipulated for. The contract was made in reference to the state of things existing at the time it was made.

In the third place, as to the freedom from obstruction with which the water shall be permitted to flow off and be discharged: the lease imposes no restrictions upon the lessee on this point, except that he shall not affix to the aperture any attachments or contrivances for increasing the flow beyond what it would otherwise be. This restriction relates to the well-known law of practical hydraulics that an adjutage or nozzle attached to the outside of an aperture prevents the vein of water from contracting and increases the aggregate discharge. With this exception, however, the lessee is entitled to draw off from the canal as much water as the two-hundred-inch aperture will discharge when it flows free from any obstruction except that which may arise from the ordinary use of the water in milling operations. This is a very important and essential right of the lessee, and one of which the lessors cannot deprive him under any pretence of regulating and directing the mode of constructing his forebay and its appendages. If the water is discharged under a four-feet head (which is about what the evidence shows to be the fact), the practical rules of hydraulics determine exactly how much water will issue in each second of time from a rectangular aperture of two hundred square inches, provided it meets with no obstruction outside, as where it falls out freely into open space. Mr. Hutton, the commissioner, to whom, as an expert, certain important questions in the cause were referred by the court below, says that the other mills discharge about six and two-thirds cubic feet per second for every one hundred inches of aperture. This is probably a little less than the discharge would be in the open air, because there is undoubtedly some obstruction to the flow arising from the passage of the water through the flumes.

This rate of flow would give to the appellee, through his aperture of two hundred square inches, a discharge of thirteen and one-third cubic feet per second. Something like this amount of actual water must be considered as within the intent of the parties to give and receive.

But the fact became developed that, by the faulty construction of the appellee's forebay or flume, arising from its small capacity, its great length, and its want of pitch or slope, he does not get but about one-half of the amount of water which is due to the aperture in the canal, and which he ought to receive. This fact is established beyond a question by the evidence.

Now, certainly, it is not equitable, even if it be in accordance with the strict letter of the lease, that the appellee should be compelled to pay full rent for half the quantity of water, which, according to the real intent of the parties, he stipulated for. True it may be said that it was his own fault, to construct the forebay in the disadvantageous manner which he has done, and that if he wants the full benefit of his lease he should tear it down and reconstruct it differently. This would require a great sacrifice on his part, and would not benefit the appellants. Surely, a court of equity cannot be compelled to consign a party to such a clumsy and ruinous remedy as this. The appellants can sustain no injury by allowing the lessee to take so much water as he supposed he was getting and as they supposed they were granting. This would be in accordance with the substance of the agreement. It would carry out the intent of the parties as gathered from the whole instrument and the state of affairs existing at the time it was made, and would save the lessee from a ruinous expenditure for alterations rendered necessary by his mistake.

It may be said that the location of the appellee's mill at a distance of 350 or 400 feet from the canal was a circumstance which the lessors had a right to take into account, and that by having to conduct the water such a long distance it could not be supposed that the lessee would be able to draw as much water through a given aperture as if his mill had been located nearer. This is true; and whatever is due to that circumstance the appellants are entitled to insist upon. But Mr. Hutton, the commissioner, says in his report that, making all allowance for the particular circumstances and location of the appellee's mill, he still ought to receive at least eleven cubic feet per second through the aperture named in the lease; whereas, in fact, he receives only twenty-three cubic feet through an aperture of seven hundred inches, or at the rate of only about six and a half cubic feet per second for an aperture of two hundred inches.

But if the appellee should receive eleven cubic feet of water per second, to which his lease may justly entitle him, this is not sufficient to drive his mill; and the question then arises as to the additional quantity which he requires, and which, according to the witnesses, is about twelve cubic feet per second. It appears from the case that the appellants agreed to furnish him the additional amount required for his mill on the usual terms; and that the appellee accepted the offer; but, in consequence of the controversy which arose about the measurement of the water and his refusal to comply with their demands, they declined to carry out the agreement. Had the appellants been right in the position they assumed, they would have been justified in making this refusal. But we think that they were not right, and, therefore, that they are bound to carry the agreement into effect, and that the appellee is entitled to receive the additional amount required, at the same rate, and on the same terms at which he was to have the original two hundred square inches. And as eleven cubic feet of water per second are due to the original aperture named, the additional twelve cubic feet per second would require, according to the report of the commissioner, a corresponding aperture of two hundred and seventeen square inches. For this additional amount of aperture the appellee should be charged, making the total amount four hundred and seventeen square inches. But to get the water to which it entitles him, as his forebay and apparatus are at present constructed, he is obliged to have, in reality, at the canal, an aperture of seven hundred square inches. The appellants were willing that he should have this aperture by increasing the height of the original aperture, but insisted that he should pay for seven hundred inches, according to the terms of the lease. Under the peculiar exigencies of the case, obstructed as the flow now is, we think that for the aperture named he should be charged for only four hundred and seventeen square inches. This is precisely the view on which the decree below is based, and we think it is correct. But as the difficulty between the parties originated from the mistake made by the appellee himself in the construction of his forebay and works, he ought not to recover any costs from the appellants, either in this court or the court below.

AFFIRMED, BUT WITHOUT COSTS IN EITHER COURT.

Mr. Justice STRONG, with whom concurred Mr. Justice DAVIS, dissenting:


text: Talk:Canal Company v. Hill/Opinion of the Court


text:
Canal Company v. Hill/Dissent Strong

Mr. Justice STRONG, with whom concurred Mr. Justice DAVIS, dissenting:

I dissent from the judgment given in this case. In my opinion, it practically makes a new contract for the parties; a contract to which they never agreed. It holds that what, at most, was an expectation of results amounts to a binding obligation that they shall follow. To this I cannot agree.

title: Canal Company v. Hill/Dissent Strong


text:
Page:Dictionary of National Biography volume 59.djvu/34

 found to Malevole, a servant, in Moultrie's 'False and True,' Haymarket, 11 Aug. 1798.

Waldron was not only actor and playwright, but also editor and bookseller. In 1789 he brought out an edition of Downes's 'Roscius Anglicanus' with some notes. From 54 Drury Lane he issued in octavo in 1792 'The Literary Museum, or Ancient and Modern Repository,' also published with another title-page as 'The Literary Museum, or a Selection of Scarce Old Tracts,' forming a work of considerable literary and antiquarian interest. He followed this up with the 'Shakspearean Miscellany' (London, 1802, four parts, 4to), a second collection of scarce tracts, chiefly from manuscripts in his possession, with notes by himself and portraits of actors, poems (then unpublished) by Donne and Corbet, and other curious works. Both of these heterogeneous collections are scarce. Waldron also wrote or compiled the lives in the 'Biographical Mirrour' (3 vols. 1795–8), 'Free Reflections on Miscellaneous Papers and Legal Instruments [purporting to be] under the hand and seal of W. Shakespeare in the possession of S. Ireland' (1796, 8vo), 'A Compendious History of the English Stage' (1800, 12mo), 'A Collection of Miscellaneous Poetry' (1802, 4to), and 'The Celebrated Romance intituled Rosalynde. Euphues Golden Legacie' (1802), with notes forming a supplement to the 'Shakspearean Miscellany.' He also contributed a notice of Thomas Davies, the actor and bookseller, to Nichols's 'Literary Anecdotes.'

Waldron died in March 1818, probably at his house in Drury Lane. His portrait as Sir Christopher Hatton in the 'Critic' was painted by Harding and engraved by W. Gardiner in 1788 (, p. 415). His antiquarian compilations constitute his chief claim to recognition, and show a range of reading rare among actors. Such of his dramas as were printed are without originality or value (though Gifford praises Waldron's continuation of the 'Sad Shepherd'), and as an actor he never got beyond what is known as 'utility.'

WALDRON, GEORGE (1690–1730?), topographer and poet, born in 1690, was son of Francis Waldron of London, who was descended from an ancient family in Essex. He appears to have received his early education at Felsted school, and on 7 May 1706 he was matriculated at Queen's College, Oxford. He resided in the Isle of Man, where he acted as commissioner from the British government to watch the trade of the island in the interests of the excise. He died in England prior to 1731, just after he had obtained a new deputation from the British government.

Soon after his death his 'Compleat Works in Verse and Prose' were 'printed for the widow and orphans,' London, 1731, fol. The dedication to William O'Brien, earl of Inchiquin, is signed by Theodosia Waldron. The first contains 'Miscellany Poems,' and the second part consists of 'Tracts, Political and Historical,' including Waldron's principal work, 'A Description of the Isle of Man.' This work, written in 1726, was reprinted at London, 1744, 12mo; another edition appeared in 1780; and it was edited, with an introductory notice and notes by (1802–1884) [q. v.], for the publications of the Manx Society (vol. xi. Douglas, 1865, 8vo). Sir Walter Scott while writing 'Peveril of the Peak' made large use of this work, and transferred long extracts from it to his notes to that romance. Waldron's production he characterised as 'a huge mine, in which I have attempted to discover some specimens of spar, if I cannot find treasure.' Most of the writers on the Isle of Man have given Waldron's legends a prominent place in their works.

Among his other works are:
 * 1) 'A Perswasive Oration to the People of Great Britain to stand up in defence of their Religion and Liberty,' London, 1716, 8vo.
 * 2) 'A Speech made to the Loyal Society, at the Mug-House in Long-Acre; June the 7th, 1716. Being the Day for the Public Thanksgiving, for putting an end to that most unnatural Rebellion,' London, 1716, 4to.
 * 3) 'A Poem, humbly inscrib'd to … George, Prince of Wales,' London, 1717, fol.
 * 4) 'The Regency and Return, a Poem humbly inscribed to … Lord Newport, son and heir to … Richard, Earl of Bradford' [London, 1717?], fol.
 * 5) 'An Ode on the 28th of May, being the Anniversary of his Majesty's happy Nativity' [London], 1723, 8vo.

WALE, CHARLES (1763–1845), general, born on 5 Aug. 1763, was second son of Thomas Wale of Shelford, Cambridgeshire, by Louisa Rudolphina, daughter of


text: Talk:Canal Company v. Hill/Dissent Strong


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Morgan's Assignees v. Shinn

APPEAL from the Supreme Court of the District of Columbia; the case being thus:

The assignees of Morgan, Rhinehart & Co. filed a bill in the court below against one Shinn, to enforce contribution to the repayment of advances made by their assignors for the repairs and expenses of a steamer called the Fairfax; the bill averring that Shinn was owner of one-fourth part of the vessel, and Shinn by his answer denying this averment of his ownership, and asserting a mere interest as mortgagee. The question of fact, and one preliminary to any other question, therefore, was, whether Shinn was in fact such a part owner? The evidence on the two sides of the case seemed thus:

1st. Evidence to support the allegation of ownership.

In September, 1855, Morgan, along with three other persons, named Comstock, Savage, and Kelly (Kelly being a resident of Philadelphia), became joint owners of the vessel by purchase from the government, and she was re-enrolled in their names as joint owners, on or about the 10th of October of that year, and made one of a line running between New York and Washington, called the 'Atlantic Steamship Company.' The shares of Morgan and of Comstock were held for the benefit of Morgan, Rhinehart & Co., a firm composed of Morgan, Comstock, and one Rhinehart. The firm was also the ship's husband, and as such they made advances for repairs and expenses.

On the 2d of October, 1865, Kelly made a bill of sale of one-fourth of the vessel to Shinn; and the bill, at the instance of Shinn, was forthwith recorded. On the 23d of October, the vessel was re-enrolled, Morgan now swearing that Shinn was owner of one-fourth of her. And on the 15th of February, 1866, Comstock having insured the vessel in his own name 'for the benefit of all concerned,' and the vessel having been destroyed by fire, Shinn, along with Morgan and Savage, signing themselves the three 'owners of one-fourth each of the steamer Fairfax,' ratified his act.

Of course, if unexplained, these facts would have been sufficient to prove the allegation of ownership. But there was—

2d. Evidence to disprove the allegation.

It was asserted in the answer that the bill of sale, though absolute in its terms, was in fact a mortgage given to secure Shinn for a sum of money agreed to be lent by him to Kelly. Such was the positive testimony of Shinn himself. The scrivener, also, who prepared the instrument, testified that on or about the day of date of the bill of sale, both parties to it called at his office; that they stated Kelly wished to purchase an interest in a steamer, and that Shinn was willing to advance the necessary money. Some conversation then occurred respecting the security which should be taken by Shinn, and it was suggested by one of the parties that a regular bill of sale should be given to him by Kelly. The bill was accordingly prepared, together with a power of attorney from Kelly to Shinn, empowering him to receive all money due or that might become due to Kelly in the District of Columbia, and to attend to all matters in which Kelly might have an interest or concern. The amount of the consideration was left blank in the bill, for it was not then known how much might be required to be advanced. Shinn took no note from Kelly for the money advanced; though when the amount needed was ascertained, having paid it to Morgan, who was acting in the matter for Kelly, Shinn took Morgan's receipt as for money paid to Kelly.

But, admitting that Shinn might in fact have been but a mortgagee, there remained another question of fact. Did Morgan, Rhinehart & Co., when they advanced money for the vessel, know that Kelly was really the owner, and that Shinn was not? And if they did not so know, then had Shinn in any manner held himself out as owner, or authorized the advances, or had they been made on his credit?

Bearing on these points Morgan, one of the firm, testified that when Shinn paid the money he said 'it was money advanced by him for Kelly to pay Kelly's share of the ship.' Certain letters of Morgan and of Comstock to Kelly were produced, written in November, 1865, and in the spring of 1866, in which they both wrote to Kelly as owners with them of the vessel. One from Comstock to Kelly, dated November 7th, 1865, says:

'The steamer Fairfax is doing wonders, taking everything into consideration. She is called the flag-ship of the line. We are now making preparations to organize the company, and we intend putting the Fairfax in at $50,000. Will this meet your approval?'

One by Morgan to him, March 24th, 1866, after the vessel had been burned, says:

'I must again appeal to you to remit me all the money you can command. I need it badly. We have had to pay all of the accounts against the Fairfax as well as the other boats, and have had but very small return.'

After the steamer was burned, Comstock said she was insured for $15,000, and that none of them, and especially Kelly, would lose anything by the disaster. He also asked Shinn to sign a paper for Kelly respecting the ship, and to act for him by virtue of his power of attorney; and what perhaps seemed even more important, Morgan afterwards made an affidavit stating in effect that Kelly was the owner of one-fourth of the vessel.

The court below dismissed the bill, and from this decree the appeal was taken.

Messrs. J. M. Carlisle and J. D. McPherson, for the appellant:

The court erred in dismissing the bill, whether the defendant, Shinn, was part owner or merely mortgagee.

I. The defendant was owner and not mortgagee.

1. He took an absolute bill of sale.

2. He caused it to be recorded.

3. He joined as part owner in ratifying the act of another part owner who had insured the vessel.

4. In the transaction between him and Kelly no note was given no agreement made for interest.

II. If the defendant was mortgagee—

1. He was a mortgagee in possession; for having derived his interest from a part owner, the possession of the other part owners was his possession.

2. As mortgagee in possession he was liable. 'The weight of our American decisions,' says Kent, 'has been in favor of the position that a mortgagee of a ship out of possession is not liable for repairs or necessaries procured on the order of the master, and not on the particular credit of the mortgagee who was not in the receipt of the freight; though the rule is otherwise when the mortgagee is in possession, and the vessel employed in his service.'

Mr. Justice STRONG delivered the opinion of the court.

title: Morgan's Assignees v. Shinn


text: Talk:Morgan's Assignees v. Shinn

title: Talk:Morgan's Assignees v. Shinn


text:
Morgan's Assignees v. Shinn/Opinion of the Court

We think the averment of the answer that the bill of sale was intended by the parties to be only a security, is sufficiently proved. The testimony of Shinn himself is positive. It is confirmed by that of the scrivener, and the testimony of both is entirely uncontradicted. The fact that a power of attorney was given at the same time with the bill is also significant. Why empower Shinn to collect money which might become due to him in the District of Columbia, and to attend to his interests, if Kelly then parted with all his ownership in the vessel? There is no evidence that he had any other interests in the District, and he was a resident of Philadelphia. It is true the bill of sale was recorded at the instance of Shinn; but that was necessary, whether it was a security or an absolute transfer. It is true also that the vessel was re-enrolled on the 23d of October, 1865 (Morgan having sworn that Shinn was then the owner of one-quarter), but the new enrolment did not negative the fact that Shinn was only a mortgagee. So also, Shinn joined with Savage and Morgan in ratifying the act of Comstock in taking out a policy of insurance on the vessel, but that was not inconsistent with his present assertion that he held the property as a security for a debt. He took no note for the money advanced by him for Kelly. He could not have taken one when the bill was made, for it was then not known how much he might be required to advance. But when the money was advanced, he did take a receipt in Kelly's name. If in truth a debt was created, the fact that a bond or note was not taken does not make the bill of sale any the less a mortgage, though the absence of a bond or a note is to be considered in inquiring whether a debt was intended. Nothing in all this, we think, overcomes the positive evidence that the arrangement was a loan rather than a purchase, and that the bill of sale was intended only as a hypothecation to secure the loan.

It is not questioned that an instrument absolute in its terms may be shown by parol evidence to be only a mortgage. It is true that if trust and confidence have been reposed in it by third parties, with the honest belief that it was indefeasible, and such parties have been misled by its form, they have a right to insist that, as to them, it shall be what upon its face if purports to be. But there is not even an allegation in this case that Morgan, Rhinebart & Co. were misled. Much less is there any proof that Shinn held himself out to them as owner, or that he authorized the advances, or that they were made on his credit. On the contrary, the evidence, so far as it goes, tends strongly to show that the firm knew the real nature of the transaction, and that they believed Kelly remained an owner notwithstanding the bill of sale. There can, indeed, be no pretence that Morgan, Rhinehart & Co., did not know from the beginning that the bill of sale was a mere security for money advanced by Shinn.

If then Shinn was only a mortgagee of an undivided interest in the vessel, as we think he was, he is under no obligation to contribute for repairs which he did not order. A mortgagee out of possession is not liable for repairs. The benefit of repairs enures primarily to the mortgagor. A mortgagee out of possession does not appoint the master, or the ship's agents. They do not act under authority from him, and he is not entitled to the freight earned. Nor does it make any difference though the vessel be registered in his name.

It certainly cannot be maintained that Shinn was in possession, or that he ever authorized the expenditure that was made. And as this is a bill, not by third parties who furnished the supplies, but in right of some joint owners, the ship's husband, against a mortgagee of another joint owner, authority from the mortgagee to contract for the supplies is indispensable to any liability on his part.

DECREE AFFIRMED.


text: Talk:Morgan's Assignees v. Shinn/Opinion of the Court


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United States v. Singer

ERROR to the Circuit Court for the Northern District of Illinois; the case being this:

The 20th section of the act of July 20th, 1868, entitled 'An act imposing taxes on distilled spirits and tobacco, and for other purposes,' enacts:

'That on the receipt of the distiller's first return in each month, the assessor shall inquire and determine whether said distiller has accounted in his returns for the preceding month for all the spirits produced by him; and to determine the quantity of spirits thus to be accounted for, the whole quantity of materials used for the production of spirits shall be ascertained; and forty-five gallons of mash or beer brewed or fermented from grain shall represent not less than one bushel of grain, and seven gallons of mash or beer brewed or fermented from molasses shall represent not less than one gallon of molasses. In case the return of the distiller shall have been less than the quantity thus ascertained, the distiller or other person liable shall be assessed for such deficiency at the rate of fifty cents for every proof gallon, together with the special tax of four dollars for every cask of forty proof gallons, and the collector shall proceed to collect the same as in cases of other assessments for deficiencies; but in no case shall the quantity of spirits returned by the distiller, together with the quantity so assessed, be for a less quantity of spirits than eighty per centum of the producing capacity of the distillery as estamated under the provisions of this act.'

The 15th section of the same act required every distiller to provide a warehouse for the storage of spirits manufactured by him, and declared that such warehouse, when approved by the Commissioner of Internal Revenue, on report of the collector, should be a bonded warehouse of the United States, and should be under the direction and control of the collector of the district, and in charge of the internal revenue storekeeper assigned thereto by the commissioner. The 52d section of the same act enacted that the compensation of these storekeepers should be determined by the commissioner and be paid by the United States. On the 29th of March, 1869, Congress passed a joint resolution, supplying omissions in the enrolment of certain appropriation acts, to which was annexed a proviso that, after the passage of the resolution, the proprietors of all internal revenue bonded warehouses should 'reimburse to the United States the expenses and salary of all storekeepers or other officers in charge of such warehouses,' and that the same should be paid into the treasury and accounted for like other public moneys.

In this state of the statutory law the United States brought suit against Singer and Bickerdike as principals, and certain other persons as sureties, on a distiller's bond which all the said parties had signed, and whereby they covenanted that the principals should 'in all respects, faithfully comply with the provisions of the law in relation to the duties and business of distillers, and pay all penalties incurred or fines imposed upon them for violation of any of the said provisions.'

The government assigned as a breach that the said Singer and Bickerdike, 'during the month of November, 1868, manufactured spirits at their distillery, and made return for that month to the assessor of the first collection district of the State of Illinois, of spirits so manufactured, and the quantity of spirits so returned was less than 80 per cent. of the producing capacity of said distillery, as estimated under the provisions of the internal revenue law, and, that thereupon, the said assessor, to wit, on the 10th day of February, A.D. 1869, proceeded to make an assessment against the said Singer and Bickerdike, for the deficiency in said return, which assessment, amounting to $26,089.60, the said Singer and Bickerdike had refused to pay.'

Plea, that the said Singer and Bickerdike, 'before the commencement of this suit, fully paid and satisfied all assessments lawfully made against them for spirits produced at their said distillery since the date of the said bond.'

The plaintiffs demurred, and thus raised the first point in the case.

By a second count the plaintiffs assigned as another breach of the bond that 'one C. W. Davis, an internal revenue storekeeper, appointed by the Secretary of the Treasury of the United States, and assigned by the Commissioner of Internal Revenue to the distillery warehouse of which said Singer and Bickerdike were proprietors, established by law, in connection with the said distillery, at a salary of $5 per day, had charge, as such storekeeper, of the said warehouse from the 4th to the 25th days, inclusive, of March, A.D. 1869, and became thereby entitled to the sum of $110 for the said services; which said last-named sum had been paid by the United States to the said Davis for his said services, and that it thereupon became the duty of Singer and Bickerdike, as such distillers and proprietors, to reimburse to the United States said sum; yet that though often requested, they had never paid it or any part of it.'

To this count also the defendants demurred.

Judgment was given by the Circuit Court of the United States for the defendants, and this writ of error was brought, the United States assigning as error:

1st. That by the already-quoted 20th section of the act of July 20th, 1868, the defendants, Singer and Bickerdike, were liable to be taxed for a quantity of spirits equal to 80 per cent. of the producing capacity of their distillery, whether the amount actually manufactured equalled that quantity or not.

2d. That by the resolution of March 29th, 1869, the defendants were bound to repay to the United States what the latter had paid to Davis as storekeeper.

Messrs. Edward Roby, and H. S. Monroe, in support of the rulings below:

I. The demurrer admits that Singer and Bickerdike have paid the tax upon every gallon of spirits manufactured by them, and the question thus is, whether under the law they can be compelled to pay a tax upon what they have not manufactured, upon what in fact never had an existence. Now

1. Congress cannot have intended, in this enactment, to enable the government to collect a tax upon property not existing within its jurisdiction, or to compel the citizen to pay a tax upon what he has not produced, and on what perhaps he could not produce. The object was to enable the officers of the government to assess and collect a tax upon what should be actually produced, and upon that alone. And a careful inspection of the first nineteen and the last eighty-nine sections of this law will show that this was the real and only object.

2. If the construction above given to this section is not the true one, then it is void. 1st. Because Congress cannot levy a tax on nothing. 2d. Because the tax it seeks to levy is not and cannot be uniform. 3d. Because a deficiency is not a tax, but is a penalty, and cannot be enforced by an action upon the distiller's bond; and, 4th. Because the legislature attempted the exercise of a judicial power in excess of legislative authority.

1st. Congress cannot levy a tax upon nothing. It is admitted that this tax of $26,089.60 was levied upon nothing; for confessedly the spirits, upon which the assessor sought to impose it, never had an existence. Now a tax cannot exist without a subject. It cannot be imposed except upon person or property. Congress can no more tax nothing than it can create the subject of taxation out of nothing. This is not a tax upon the person. It is not a tax upon property, and it does not come within any legal definition of duty, impost, or excise.

2d. The Constitution requires that taxes shall be uniform. If the construction set up by the government is the true one, this is not and cannot be uniform. The tax on spirits is (say) 50 cents per gallon and $4 per barrel. Had the distiller in this case produced the full amount of 20 per cent. more than the estimated capacity of his distillery, his tax would have been 50 cents a gallon and $6 per barrel. He made say only 50 per cent. of the estimated capacity, and the tax he had to pay is $1 on every gallon and $8 on every barrel of what he actually manufactures. This result inevitably follows, if the imposition is considered as a tax.

3d. This imposition upon a deficiency is a penalty and not a tax within the meaning of the law. Congress, in effect says to the distiller, 'You have a distillery here, with which, by proper care and skill, you ought to make say 2000 gallons of spirits per day. You can certainly make 1600 gallons. If you do not make but 1000 gallons, you shall be punished for your want of skill, and shall pay $300 on account of this 600 gallons you ought to have made, and $4 per barrel besides.' Is it not the same as though Congress had in terms imposed a penalty upon the distriller who should not succeed in making 80 per cent. of what his distillery was, in the opinion of the efficers of the government, capable of producing? If it is a penalty, it cannot be enforced against the distiller in this action. It can only be enforced, if at all, by information or some proper proceeding for its collection.

But can it, as a penalty or a tax, be sustained? Can Congress impose a penalty upon the citizen because he has not the same skill and knowledge that others have? Can it, by legislation, punish the citizen because he is unable to conduct his business with the same success that others do? If so, it has the power to destroy every interest of business in the nation, because it is safe to say that while one man may make large amounts yearly in carrying on his business, nine in the same business may make but little more than a living.

4th. If the section is to receive the construction set up by the government the legislature will exercise judicial power; for the assessor will have power to decide upon the rights of distillers without an opportunity on their part to be heard. The property of the citizen is forfeited and transferred without trial and judgment in the courts.

II. The second question arises upon the demurrer to the second count of the declaration, and is whether the defendants are liable under the bond sued on for the payment of the storekeeper's wages, amounting to $110.

We do not propose to discuss the question as to whether Singer and Bickerdike, in some other form of action, might not be liable for this sum, though it seems to us they would not. Our position, which is sufficient for this case, is that these sureties cannot by any possibility be held liable for it; that they cannot by an ex post facto resolution of Congress, operating upon the condition of this bond executed before the date of this resolution, be held liable under it.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, for the United States, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: United States v. Singer


text: Talk:United States v. Singer

title: Talk:United States v. Singer


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

Two questions are presented by the counsel of the government for our consideration in this case. One relates to the construction which should be given to the twentieth section of the act of July 20th, 1868, imposing taxes on distilled spirits; and the other relates to the liability of the defendants on the bond in suit to reimburse the United States the amount paid by them to the storekeeper placed in charge of the warehouse of the distillers.

Upon the construction which should be given to the twentieth section of the act of July, 1868, there appears to have been some conflict of opinion among different Circuit judges. The real or supposed hardship in particular cases of imposing a tax upon an amount of spirits equal to eighty per cent. of the producing capacity of the distillery, where a less quantity has been in fact manufactured by the distiller, has undoubtedly had much to do in inducing a construction leading to a different result. But the hardship of the operation of particular provisions of a statute has properly no place for consideration where the language is unambiguous and the legislative intent is clear. And reading the section in question by itself there does not appear to us to be any ambiguity in its language, or any doubt as to its meaning. Its meaning is that in no case shall the distiller be assessed for a less amount of spirits than eighty per cent. of the producing capacity of his distillery, and if the spirits actually produced by him exceed this eighty per cent., he shall also be assessed upon the excess.

The other sections of the act, instead of conflicting, agree with this construction. There are running through the act two classes of provisions, one of which looks to the ascertainment of the quantity of spirits distilled, and the other to the ascertainment of the producing capacity of the distillery. Thus the first section has reference to the spirits actually produced, and provides for the tax thereon. The fifteenth section compels every distiller to provide a warehouse, to be situated on and constitute part of his distillery premises, to be used only for the storage of distilled spirits of his own manufacture. The nineteenth section requires the distiller to make daily entries in books, kept for that purpose, of the grain and other materials used in the manufacture of spirits, and to render a sworn account three times each month of the number of gallons produced by him and place in his warehouse. And the twentieth section makes it the duty of the assessor to inquire into and determine whether the distiller has accounted in his returns for all the spirits produced by him. These provisions are intended to secure the ascertainment of the quantity actually manufactured by the distiller. On the other hand, the ninth section provides 'that every distiller, or person intending to engage in the business of distilling, shall previous to the approval of his bond cause to be made, under the direction of the assessor of the district, an accurate plan and description, in triplicate, of the distillery and distilling apparatus, distinctly showing the location of every still, boiler, doubler, worm-tub, and receiving cistern, the course and construction of all fixed pipes used, or to be used in the distillery, and of every branch thereof, and of every cock or joint thereof, and of every valve therein, together with every place, vessel, tub, or utensil, from and to which any such pipe shall lead, or with which it communicates;' and also showing 'the number and location, and cubic contents of every still, mash tub, and fermenting tub, together with the cubic contents of every receiving cistern, and the color of each fixed pipe.' One copy of the plan and description is required to be kept displayed in some conspicuous place in the distillery, one is to be kept by the assessor, and one to be transmitted to the Commissioner of Internal Revenue. Their accuracy is to be verified by the assessor, the draughtsman, and distiller, and no alteration in the distillery can afterwards be made without the consent of the assessor, and any alteration made must be shown on the original, or by a supplemental plan and description, which is to be preserved in the same manner as the original. The tenth section requires a survey to be made by the assessor, with the aid of a skilful and competent person to be designated by the Commissioner of Internal Revenue, of every distillery used, and its true prodecing capacity estimated and determined, and reports of the same to be made in triplicate, one to be furnished to the distiller, one of be retained by the assessor, and one to be transmitted to the Commissioner of Internal Revenue. These several provisions are intended to secure information as to the producing capacity of the distillery; and then we have the concluding clause of the section under consideration, that in no case shall the quantity returned by the distiller, with the quantity assessed as deficit, be less than eighty per cent. of such capacity.

The system thus adopted was designed to prevent the secret production of spirits and consequent evasion of the government tax. And it seems well suited to accomplish this purpose; it at least reduces the limits within which fraud can be practiced to twenty per cent. of the capacity of the distillery. In view of the enormous frauds previously practiced upon the government in rendering accounts, this system cannot be justly charged with unnecessary harshness. Every one is advised in advance of the amount he will be required to pay if he enters into the business of distilling spirits, and every distiller must know the producing capacity of his distillery. If he fail under these circumstances to produce the amount for which by the law he will in any event be taxed if he undertake to distil at all, he is not entitled to much consideration.

It is suggested that as the distiller is required to make a return of the spirits actually manufactured by him under oath, the provision for a return of an amount equal to eighty per cent. of the producing capacity of the distillery cannot be complied with where a less amount has been produced. But we do not perceive any difficulty in this respect, or any difficulty in giving effect to both provisions. The distiller should, as required, return under oath the true amount produced by him, and where this is less than the eighty per cent. he should add the difference, so as to obtain the amount for which the assessment is to be made. He can state in his return both the actual product of his distillery and the deficiency between that and the assessable amount.

The law is not in our judgment subject to any constitutional objection. The tax imposed upon the distiller is in the nature of an excise, and the only limitation upon the power of Congress in the imposition of taxes of this character is that they shall be 'uniform throughout the United States.' The tax here is uniform in its operation; that is, it is assessed equally upon all manufacturers of spirits wherever they are. The law does not establish one rule for one distiller and a different rule for another, but the same rule for all alike.

It follows from these views that the court below erred in overruling the demurrer of the plaintiffs to the third amended plea of the defendants, which raised the question we have considered as to the proper construction of the twentieth section of the act of July, 1868.

Upon the second question presented, which relates to the liability of the defendants on the bond in suit to reimburse the United States the amount paid by them to the storekeeper placed in charge of the warehouse of the distillers, our judgment is with the defendants. The bond in suit was executed in January, 1869. The fifteenth section of the act of Congress of July 20th, 1868, then in force, required every distiller to provide a warehouse for the storage of spirits manufactured by him, and declared that such warehouse, when approved by the Commissioner of Internal Revenue, on report of the collector, should be a bonded warehouse of the United States, and should be under the direction and control of the collector of the district, and in charge of the internal revenue storekeeper assigned thereto by the commissioner. The fifty-second section of the same act enacted that the compensation of these storekeepers should be determined by the commissioner and be paid by the United States. The distillers in this case provided the warehouse directed, and the Commissioner of Internal Revenue assigned a storekeeper to take charge of it at a compensation of five dollars a day, and he remained in charge of the warehouse from the 4th to the 25th of March, 1869, inclusive, for which service he was entitled to one hundred and ten dollars, and was paid that amount by the United States. Subsequently to this, and on the 29th of March, 1869, Congress passed a joint resolution supplying omissions in the enrolment of certain appropriation acts, to which was annexed a proviso that, after the passage of the resolution, the proprietors of all internal revenue bonded warehouses should 'reimburse to the United States the expenses and salary of all storekeepers or other officers in charge of such warehouses,' and that the same should be paid into the treasury and accounted for like other public moneys. The question is whether the official bond of the distillers and their sureties in this case binds them to make reimbursement of this money expended by the United States before the joint resolution was passed. We are clear that this question must be answered in the negative and on two grounds: 1st, because the joint resolution only contemplates, in our judgment, the reimbursement of expenses and salary paid after its passage; and, 2d, because if that be not the true construction of the resolution, the reimbursement to the United States of moneys paid by them to their own officers or agents, in pursuance of a law in existence when the bond was executed, is not a duty so connected with, or naturally belonging to, the business of a distiller as to be within the reasonable contemplation of the parties to the bond at the time of its execution. The official bond of parties undoubtedly covers not merely duties imposed by existing law, but duties belonging to, and naturally connected with their office or business imposed by subsequent law. But the new duties should have some relation to or connection with such office or business, and not be disconnected from and foreign to both. It would be extending the liabilities of obligors on such bonds beyond principle and precedent to hold them responsible for the reimbursement of moneys paid by government to its own officers or agents, because, subsequent to their payment, government declares that such reimbursement shall be made.

This case is distinguished from that of United States v. Powell, decided at the last term. There the moneys were expended by the United States, and one of the bonds in suit was executed, after the passage of the joint resolution.

It follows from these views that the ruling of the court below in sustaining the demurrer of the defendants to the second count of the declaration was correct.

JUDGMENT REVERSED, and the cause REMANDED FOR FURTHER PROCEEDINGS, with leave to the defendants to plead anew to the first count of the declaration.

NOTE.-At the same time, and in a similar way with the preceding case, was adjudged the case of United States v. Van Buskirk, in which the same points arose as in United States v. Singer.


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


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Hedrick v. Hughes

ERROR to the Circuit Court for the District of Missouri.

Messrs. Montgomery Blair and F. A. Dick, for the plaintiff in error; Mr. T. T. Gantt, contra.

Mr. Justice BRADLEY stated the case, and delivered the opinion of the court.

title: Hedrick v. Hughes


text: Talk:Hedrick v. Hughes

title: Talk:Hedrick v. Hughes


text:
Hedrick v. Hughes/Opinion of the Court

This was an action of ejectment brought by the plaintiff in error to recover a certain quarter section of land in Howard County, Missouri. The plaintiff claimed the land under a patent of the United States, granted to one Widdicombe, June 1st, 1868, upon a scrip certificate issued to the State of Kentucky, under the act of July 2d, 1862, donating lands to the several States for the support of agricultural colleges. The defendant, who had been in possession of the land for more than thirty years, and had erected expensive improvements on it, claimed title under a grant from the State of Missouri, made in 1832. The title of the State was derived in the following manner. By the 6th section of the act of Congress, passed March 6th, 1820, entitled, 'An act to authorize the people of the Missouri Territory to form a constitution and State government, &c.,' it was, amongst other things, proposed for the acceptance of the convention, and, if accepted, to be binding on the United States, that 'section sixteen,' in every township, and when such section had been sold, or otherwise disposed of, other lands equivalent thereto, and as contiguous as might be, should be granted to the State for the use of the inhabitants of the township for the use of schools; also, all salt springs, not exceeding twelve in number, and six sections of land contiguous to each, for the use of the State, with other concessions stated in the act. These proposals were accepted by the convention. For the purpose of carrying out this grant as to school lands, an act was passed on the 3d of March, 1823, #fn-s-s * * by which it was enacted that in all cases in which 'section sixteen' had been sold or otherwise disposed of, it should be the duty of the register and receiver of the respective land offices in whose districts such land might be, to select the like quantity of other lands equivalent thereto, from any of the unappropriated lands of the United States in that State, as nearly contiguous to said 'section sixteen' as might be; and a descriptive entry of such selected lands should be made on the books of the register, specifying as well the township in which, as that for the use of which, the selection should be made; and the lands thus selected and located were, by the act, granted to the State, for the use of the inhabitants of the respective townships for the use of schools, instead of the sixteenth section so sold or disposed of.

The defendant insisted that section sixteen, in the township in which the lot in question was situated, had been sold by the United States prior to March 6th, 1820; that the register and receiver of the land district had selected other lands for the use of the township for school purposes under the act of 1823, and had made a descriptive entry thereof in the register's books in pursuance of the act; and that the quarter section in question (which was a part of section seventeen) was one of the tracts so selected, and thereby became the property of the State, and had been sold as such by the school commissioner of the county in 1832; and that a patent had been duly granted by the State in pursuance of such sale, under which the title of the defendant was regularly derived.

All the parts of this defence were duly proved except one. This was the selection and entry of the lot in question by the register and receiver, in lieu of 'section sixteen,' disposed of. The register's book contained no descriptive entry as directed by the act. The leaf that should have contained it (if it was made) being missing; and the original township plat (which would probably have indicated the fact) being also lost.

This hiatus in his case the defendant endeavored to supply by proof aliunde. He adduced the testimony of several witnesses to show that the lot in question had been rented out as school lands for several years prior to 1832, and that in that year it was sold, with other school lands, by Owen Rawlins, the county school commissioner, being the sale upon which the State patent was based. He then produced and offered in evidence from the county archives, kept in the clerk's office, a certain book or record, kept by Rawlins, containing a copy of his commission as school commissioner, and a history of his proceedings in selling the school lands; together with a list, in the handwriting of one Boon, of all the school lands of the county, including the lot in question; which entries were made in 1831-2, and both Rawlins and Boon were shown to have been dead many years. The defendant also produced a book purporting to contain a copy of the original township plats in the register's office (including the township in question), showing the various sections of land, and memoranda written on each section as to the disposition thereof, in which the quarter section in question had the words 'reserved for schools' written upon it. As to the origin of this book James L. McNair testified that it was made by him in 1853; that he was then deputy clerk of Howard County; that he had before that time been clerk in the office of the register whilst his father held that office; that an act of the Missouri legislature directed the county clerk to procure a copy of the township plats in the register's office; and that the witness was employed by Mr. Harding, the then clerk of the county court, and by Judge Todd, then register of the land office, to make the copy; that he made it carefully, and was satisfied that the book produced was a true copy-not, however, a literal copy of any one book then in the register's office, in all particulars. As to entries, the plat-book in the register's office would contain on any particular subdivision of land the letters 'A.,' 'P.,' with a number; on another book would be seen the name corresponding to this number; and, in compiling this copy, the witness would write down the name instead of the number-thus translating it, and condensing two books into one. The letters 'A.,' 'P.' signified that the tract had been applied for and paid for. In respect of reservations for schools, the words, 'reserved for schools,' were written on the original plats in the register's office on the tracts so reserved. The writing on the plat of the township in question was all in the witness's handwriting as he made it in 1853. Herndon, who was for more than twenty-five years clerk of Howard County, corroborated McNair's testimony.

Upon this proof the defendant offered in evidence the said record of Owen Rawlins, and the copy of the plat of the township in question in the book made by McNair; and the court, against the objections of the plaintiff, admitted them in evidence; to which ruling the plaintiff excepted.

This is the first error assigned; and we have no hesitation in saying that the evidence was properly admitted. The book of Rawlins was de facto a county record, preserved as a public monument in the county archives. For the purpose of showing his acts as school commissioner in selling the land in question as school lands, it was undoubted evidence. It was such, not only as a public record, but as the entry of a deceased person made in the course of his official duty, in a matter of public concern, which clearly made it evidence of his public transactions. The list made by Boon was evidently a part of the same record made under Rawlins's direction, and was admissible on the same grounds.

The plat made by McNair was competent secondary evidence of the contents of the original plat which was lost. The fact that it did not correspond in every particular with that original in respect of the memoranda written upon it, did not detract from its admissibility. Those memoranda, and the manner in which they were made, were sufficiently explained.

As to the bearing of this evidence upon the issues of the cause, it is sufficient at this point to say, that in view of the fact that the proper evidence with regard to the action of the register and receiver was entirely lost or destroyed, the fact that the land in question had been publicly treated and disposed of by the county authorities as school lands so near to the time when such lands were set apart for school purposes, had an important bearing on the question whether the register and receiver did, in fact, make the selection of the lot in question. We think that it was proper evidence to go to a jury on such a question. Without other corroborative circumstances, it might have had but slight weight. But on the principle involved in the maxim 'omnia proesumuntur rite esse acta,' as applied to the acts of public officers, we think it was clearly competent.

The bearing of the township plat will be discussed hereafter.

To rebut this defence the plaintiff offered evidence to show that neither the local land office nor the General Land Office at Washington contained any evidence whatever of the alleged selection of the lot in question as school lands, but that the only memorandum with regard to that lot was of the sale to Widdicombe, under which the plaintiff claimed title.

The plaintiff then called upon the court to declare, as law, that the United States did not part with its title to the land in question prior to the issuing of the patent to Widdicombe; and that neither the act of Congress of March 6th, 1820, admitting Missouri into the Union, nor any subsequent act, operated as a grant per se to the State, or to any of the inhabitants thereof, of the lot in question; but that to divest the title of the United States, the lot should have been designated and set apart according to law, in lieu of a similar quantity of the sixteenth section sold or disposed of by the government prior to March 6th, 1820, and that no such designation or setting apart had been shown by the evidence. This was, in substance, asking the court to decide against the validity of the defence. The court refused so to declare, but on the contrary, at the request of the defendant, in substance, declared the law to be, that if, in fact prior to 6th March, 1820, section sixteen had been disposed of and sold by the United States, and if the register and receiver of the proper land office, under the act of 1823, in lieu thereof, did reserve and select the lot in question, and did make a descriptive entry of said reservation and selection, which entry had been lost or destroyed by the loss of the leaf on which it was made, the claim of the plaintiff under the State of Missouri was valid.

To these rulings exceptions were taken.

It is certainly true that neither the act of 1820, nor that of 1823, of themselves, transferred the title of the lot in question from the government to the State of Missouri. The sixteenth section of land having been disposed of, it required a designation of some other lands, in the manner pointed out by the statute, to take its place. Until such designation was made it is evident no title could pass. But such designation and entry were all that the law required to be done. No patent was necessary for the substituted lots any more than for the sixteenth section itself, had that been undisposed of. The things to be done in order to vest title in the State were certain acts of the register and receiver. The essential thing was the selection of the land. The evidence of it, as prescribed by the statute, was the descriptive entry to be made in the register's book. If the essential thing were done the destruction of the evidence would not destroy the title. The primary proof of the act done would, of course, be the record itself. That being lost or destroyed, the acts of the register and receiver could be substantiated by the next best evidence which the case admitted of. The question before us is whether the evidence adduced and received by the court was conducive to prove the fact, and was the next best evidence to be had on the subject.

In our judgment it was both. No record evidence of the fact in question was required except the entry in the register's book. The evidence adduced was, first, the plat of the township so carefully compiled by McNair. This showed that the lot in question was designated as 'reserved for schools.' This designation was copied from the original plat in the register's office. Here then was evidence of the most convincing character that the lot in question had been designated by the register and receiver as school lands. Here was a collateral and contemporaneous record containing evidence of the very fact respecting the existence or non-existence of which the parties and the court were in search. It was not, it is true, the primary proof required by the statute, but it was independent proof of the essential fact in issue, and was sufficient proof to raise the presumption that if those missing leaves could be produced the primary proof would be found thereon. It was not so satisfactory as a literal compared copy of those leaves, but more satisfactory than oral testimony depending on human memory as to their contents. The books are full of cases to the effect that if a judgment record, or other record, be lost, the judgment or other matter may be proved by collateral entries and memoranda. But, secondly, we have the corroborative evidence derived from the acts of the county school commissioner in selling the lands as school lands, as far back as 1832, and the renting of them as such even before that time, and the defendant's possession and claim of title of the land as reserved school lands for more than thirty years, all going to strengthen the other proof and presumptions in the case.

It would be strange, indeed, if men's possessions could be disturbed by the burning of a court-house, or the loss, destruction, or theft of a public record, when evidence, such as was adduced in this case, could be supplied to show that the acts upon which their titles depended had been duly performed by the proper public officers. And courts would be derelict in their duty to the community if they did not sternly rebuke speculative attempts to rob people of their just inheritances under such circumstances. Mere lapse of time and continuance of possession without pretence of title, or under pretence of a void title, cannot, it is true, be set up against the government; but long possession is, nevertheless, a strong weapon of defence in the hands of one who can show reasonable proof that the title of the government has been parted with, and has devolved to him.

As to the sufficiency of the evidence adduced in this case, it is not the part of this court, on a writ of error, to pronounce. That was the province of the court below sitting as a jury. That court determined it to be sufficient, and found the issue for the defendant. We think that the evidence was admissible, that it was pertinent to the issue, and tended to prove that issue on the part of the defendant, and that the law of the case, as declared by the court, was correct.

JUDGMENT AFFIRMED.

title: Hedrick v. Hughes/Opinion of the Court


text: Talk:Hedrick v. Hughes/Opinion of the Court