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United States v. Britton/Opinion of the Court

In passing upon the questions certified to us by the circuit court, it will be convenient to follow the order in which they have been argued by counsel, rather than that in which the questions are presented by the certificate of division.

The section of the Revised Statutes upon which the indictment is based, creates and describes certain offenses, and expressly denominates them misdemeanors. In the case of U.S. v. Mills, 7 Pet. 138, it was said by this court that 'the general rule is that in indictments for misdemeanors created by statute, it is sufficient to charge the offense in the words of the statute. There is not that technical nicety required as to form which seems to have been adopted and sanctioned by long practice in cases of felony and with respect to some crimes where particular words must be used, and no other words, however synonymous they may seem, can be substituted. But in all cases the offense must be set forth with clearness, and all necessary certainty to apprise the accused of the crime with which he stands charged.'

In the case of U.S. v. Simmons, 96 U.S. 362, it was said by this court, speaking by Mr. Justice HARLAN, that 'when an offense is plainly statutory, it is, 'as a general rule, sufficient in the indictment to charge the defendant with acts coming within the statutory description in the substantial words of the statute, without any further expansion of the matter;' but to this rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised in the indictment with reasonable certainty of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution against him.'

So in the case of U.S. v. Carll, 105 U.S. 611, it was said by Mr. Justice GRAY, speaking for the court, that 'in an indictment upon a statute it is not sufficient to set forth the offense in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished; and the fact that the statute in question, read in the light of the common law and of other statutes in the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent.'

In the case of U.S. v. Pond, 2 Curt. 265, the rule was thus stated by Mr. Justice CURTIS:

'It must be remembered that this is an indictment for a     misdemeanor created by the statute, and that in general it is      sufficient to describe such an offense in the words of the      statute, *  *  * unless they embrace cases which it was not the      intention of the legislature to include within the law. If     they do, the indictment should show that this is not one of      the cases thus excluded.'

Applying the rules thus laid down to the counts of the indictment, we are to consider whether they sufficiently state an offense under section 5209 of the Revised Statutes.

To describe the offense charged in the first 36 counts of the indictment, section 5209 requires the following averments:

(1) That the accused was the president or other officer of a     national banking association, which was carrying on a banking      business.

(2) That being such president or other officer, he made in a     book, report, or statement of the association, describing it,      a false entry, describing it.

(3) That such false entry was made with intent to injure or     defraud the association, or to deceive any agent, describing      him, appointed to examine the affairs of the association.

(4) Averments of time and place.

An examination of the counts under consideration shows that they contain all these averments pleaded with clearness and reasonable certainty. They must, therefore, be held sufficient, unless some of the objections made to them by counsel for defendant are well taken.

It is urged that these counts are defective because they do not contain an averment that the false entry was made 'in an account of, and in the due course of, business of the bank.' Neither of these averments is required by the statute. It is alleged that the false entry was made in a book belonging to and in use by the association in transacting its banking business, and known and designated as 'Profit and Loss, No. 6.' To hold this insufficient would carry refinement in criminal pleading to an impracticable extent. The counts point out to the defendant and the court, with certainty and precision, the book used by the association in which the false entry was made, and this is all that is necessary under the statute.

It is next objected that the false entries as set out in the counts do not of themselves have any significance, and are unintelligible without explanation. This is mere assumption. Conceding that the entries may be unintelligible to persons not skilled as accountants, it does not follow that they are so to the agent appointed by the comptroller, who, it is alleged, was the person whom the entries were intended to deceive. But, if the entries needed explanation, it was perfectly competent for the pleader to explain them by innuendo. Rex v. Gripe, 1 Ld. Raym. 256; Rex v. Aylett, 1 Term R. 63; Rex v. Taylor, 1 Camp. 404; Reg. v. Virrier, 12 Adol. & E. 317; Mix v. Woodward, 12 Conn. 262; Van Vechten v. Hopkins, 5 Johns. 211. This he has done by averring what the entries purported to show, and did in substance indicate and declare. Having explained the entries, he avers them to be false. To hold this insufficient would be to decide that the making of false entries in the books of a banking association, in the usual method of book-keeping, and which were intelligible to all accountants, could not be punished under the statute because not intelligible to persons generally, or to persons not skilled in book-keeping.

It is next objected that the counts under consideration are argumentative and repugnant, because they do not allege that interest was due to the association from the individuals named in the alleged false entries. This objection is not well founded. Whether interest was due or not is quite immaterial. The charge is that a false entry was made on the books of the association which purported that a certain sum was, on a day named, received from a person named, on account of interest then and there due from him to the association; that the said sum was not then and there received on account of interest due, and was not received on any account from any sources whatever. The falsity of the entry does not consist in the fact that there was no interest due from the person named, but in the fact that money, which the entries declared had been received from him on account of interest due, had not been received from him on that or any other account. It was, therefore, entirely unnecessary to aver that no such interest was due, and the want of such averment does not render the counts argumentative or repugnant.

It is further objected to these counts that a false entry to the credit of profit and loss alone could not deceive a bank examiner, and therefore that the counts are repugnant. This is also mere assumption. But if the false entry is calculated to deceive, the making of it in the books of the association, with intent to deceive, is all that is necessary to bring the act within the meaning of the statute. It is perfectly apparent that any false entry in any account book of a bank used in transacting its banking business is calculated to deceive. The fact that its falsity may be exposed by an examination of other books of account, does not render it any the less a false entry made with intent to deceive. The circumstance that the attempt to deceive by making a false entry was not an adroit and skillful one, does not relieve the act of its criminal character.

It is further contended that the counts under consideration are insufficient, because it is not alleged that at the time the false entries were made an agent had been appointed to examine the affairs of the association. This objection is based on the theory that the statute was designed to punish only those officers of a banking association who made false entries in its books with intent to deceive examiners appointed before the false entries were made. We do not think the statute will bear this construction.

The appointment of agents to examine the affairs of national banking associations is provided for by section 5240 of the Revised Statutes, which declares:

'The comptroller of the currency, with the approval of the     secretary of the treasury, shall, as often as shall be deemed      necessary or proper, appoint a suitable person or persons to      make an examination of the affairs of every banking      association, who shall have power to make a thorough      examination into all the affairs of the association.' It appears from this section that the appointment of these agents is not permanent, but occasional and temporary, and that the appointments are made as often as shall be deemed necessary and proper. It is, therefore, apparent that the statute which punishes false entries, made with intent to deceive such agents, refers to any entries made with that intent, whether before or after the appointment of the agent.

There is nothing impossible in the averment that false entries have been made with intent to deceive an agent to be appointed after they are made. The agents are often purposely appointed without notice to the association. The fact that the comptroller of the currency has information that the officers of an association are making false entries in its books may be the occasion for appointing an agent to examine its affairs. To hold that the officers of the association would only be punishable for false entries made after an agent had been appointed, would rob the law of a large part of its salutary effect. Its purpose is clear to punish all false entries in the books of the bank, no matter when made, if made with intent to defraud the association or deceive the examiner. We think that in respect to the point under consideration the indictment is sufficient.

We are of opinion that none of the objections raised to the first 35 counts are well taken. They are refined and unsubstantial, and not sustained by the rules of criminal pleading in cases of misdemeanor, or by the fair construction of the statute on which the indictment is based. These counts embody the language of the statute; they charge every element of the offense created by the statute with sufficient certainty, and give the defendant clear notice of the charge he is called on to defend. They are, therefore, sufficient. U.S. v. Cook, 17 Wall. 168, and cases already cited.

The thirty-sixth count differs from the first 35 in charging the intent with which the offense was committed. The intent is charged to be 'to injure and defraud the said association, and certain persons to the grand jurors unknown.' This follows the language of the statute.

Clearly it is possible to injure and defraud the association or its stockholders or other persons by false entries in its account of profit and loss. The charge is not repugnant or impossible. We are of opinion, therefore, that the first 36 counts of the indictment, being those which charge false entries in the books of the association, sufficiently state an offense under section 5209. It follows that count 117, which is in all respects similar to count 1, and count 118, which is in all respects similar to count 36, are good and sufficient.

We shall next consider count numbered 77 and the similar counts. That portion of the section on which they are based makes it an offense for the president or other officer of a banking association to embezzle, abstract, or willfully misapply the moneys of the association with intent to injure or defraud the association, or any company or person.

The seventy-seventh count of the indictment charged that the defendant being president of the association, paid to a certain person unknown the sum of $2,400 of the moneys of the association in the purchase of 40 shares of its capital stock, which stock, so purchased, was held by the defendant in trust for the use of the association, and the same was not purchased to prevent loss on any debt theretofore contracted with the association in good faith, and that so the defendant did willfully misapply the moneys of the association with intent to injure and defraud the association and certain persons to the grand jurors unknown. The question is propounded to us whether this count sufficiently describes an offense under section 5209 of the Revised Statutes. The purchase of its own stock by the association, except to secure a debt due it, is forbidden by law. Is a purchase for the use of a banking association of its own stock by its president, when not necessary to secure a debt due the association, a willful misapplication of its funds, punishable by section 5209? We think the willful misapplication made an offense by this statute means a misapplication for the use, benefit, or gain of the party charged, or of some company or person other than the association. Therefore, to constitute the offense of willful misapplication, there must be a conversion to his own use or the use of some one else of the moneys and funds of the association by the party charged. This essential element of the offense is not averred in the counts under consideration, but is negatived by the averment that the shares purchased by the defendant was held by him in trust for the use of the association, and there is no averment of a conversion by the defendant to his own use or the use of any other person of the funds used in the purchase of the shares. The counts, therefore, charge maladministration of the affairs of the bank, rather than criminal misapplication of its funds.

If we hold these counts to be good, then every official act of any officer, clerk, or agent of a banking association, by which its funds are applied in a way not authorized by law, would be punishable under section 5209.

For instance, section 5200 of the Revised Statutes declares that 'the total liabilities to any association of any person, * *  * for money borrowed, *  *  * shall at no time exceed one-tenth part of the capital stock of the association actually paid in.' Section 5201 provides that no association shall make any loan or discount on the security of the shares of its own capital stock, unless such security shall be necessary to prevent loss on a previously-contracted debt. If the counts under consideration are sustained, then every president, director, cashier, teller, clerk, or agent of a banking association, who has any part in lending the money of the association contrary to the provisions of these sections, is guilty of a criminal misapplication of its funds. So, by section 5137 of the Revised Statutes, the purposes for which a banking association may purchase and hold real estate are limited, and specifically pointed out. If the directors of a banking association should authorize the purchase of a piece of real estate for its use, but not for purposes authorized by the statute, even though with intent to injure some corporate body or natural person, it could hardly be claimed that the directors who made the order, and the other officers or agents of the association who, with a like intent, had any hand in making the purchase or in paying out the money of the bank therefor, would be liable to indictment and imprisonment under section 5209.

The act charged by the counts under consideration are precisely of the same character as those just mentioned. They are acts of maladministration of the affairs of the association by its officers. The penalty for such acts is prescribed by section 5239, which declares:

'If the directors of any national banking association shall     knowingly violate, or knowingly permit any of the officers,      agents, or servants of the association to violate, any of the      provisions of this title, ['National Banks,'] all the rights,      privileges, and franchises of the association shall be hereby      forfeited. * *  * And in case of such violation, every      director who participated in or assented to the same shall be      held liable in his personal and individual capacity for all      damages which the association, its shareholders, or any other      person shall have sustained in consequence of such      violation.'

We are, therefore, of opinion that the willful misapplication of the moneys and funds of the banking association, which is made an offense by section 5209, means something different from the acts of official maladministration referred to in section 5239, and it must be a willful misapplication for the use or benefit of the party charged, or of some person or company other than the association, with intent to injure and defraud the association or some other body corporate, or some natural person.

As the counts under consideration, namely, count 77, and the similar counts down to and including count 96, do not show that the willful misapplication therein alleged was made by the defendant for his own use, benefit, or advantage, but for the use of the association, we are of opinion that they do not allege an offense under section 5209, and are, therefore, insufficient and bad. The counts are, in our opinion, bad also for repugnancy. They aver that the defendant purchased the shares of the association and held them in trust for the association. This charge, without further averments, is clearly repugnant. It is true that it is possible for an officer of a banking association, with intent to defraud it, to misappropriate its funds in the purchase for its use of its own stock. But the count which avers such an act should also make other averments to show that the application was not merely a use of the money for the benefit of the association forbidden by law, but a criminal misapplication, by which it was possible that the association could be defrauded.

For the reasons assigned, the counts next following, numbered from 97 to 116, inclusive, which are similar to count 77, except that they severally fail to aver that the act therein charged was done with intent to injure and defraud, must be held to be insufficient. The counts last mentioned, as well as the counts numbered from 56 to 76, inclusive, are bad for the further reason that they fail to aver any intent to injure and defraud mentioned in section 5209. The intent to injure and defraud is an essential ingredient to every offense specified in the section, and the failure to aver the intent is a fatal defect in the counts in which it occurs.

We shall next consider court numbered 37 and the counts which are similar to it. These counts simply charge that the defendant, being president of the association, willfully misapplied its moneys and funds by buying therewith certain shares of its stock, with intent to injure and defraud the association and certain persons to the grand jurors unknown.

The words 'willfully misapplied' are, so far as we know, new in statutes creating offenses, and they are not used in describing any offense at common law. They have no settled technical meaning like the word 'embezzle,' as used in the statutes, or the words 'steal, take, and carry away,' as used at common law. They do not, therefore, of themselves fully and clearly set forth every element of the offense charged. It would not be sufficient simply to aver that the defendant 'willfully misapplied' the funds of the association. This is well settled by the authorities we have already cited. There must be averments to show how the application was made and that it was an unlawful one. These averments the pleader has in these counts attempted to make by charging that the defendant paid out the funds of the association in the purchase of its own stock. But this is not necessarily an unlawful use of the funds of the association. It is not every purchase of its own shares by an association that is forbidden. The very section (5201) and sentence of the statute which declares that no banking association shall be a purchaser of its own shares, contains the exception 'unless such purchase shall be necessary to prevent loss upon a debt previously contracted in good faith.' This exception should have been negatived in these counts. The rule of pleading, as laid down by Mr. Chitty, is that 'when a statute contains provisos and exceptions in distinct clauses it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the provisos it contains. On the contrary, if the exceptions themselves are stated in the enacting clause it will be necessary to negative them in order that the description of the crime may in all respects correspond with the statute.' 1 Chit. Crim. Law, 283, 284.

Thus, where a statute declared that if one on the Sabbath day 'shall exercise any secular labor, business, or employment, except such only as works of necessity and charity, he shall be punished,' etc., a negative of the exception was held indispensable. State v. Barker, 18 Vt. 195. See, also, Com. v. Maxwell, 2 Pick. 139; 1 East, 167; Spieres v. Parker, 1 Term R. 141; Gill v. Scrivens, 7 Term R. 27; 1 Bish. Crim. Proc. § 636.

The failure of the counts under consideration to aver that the purchase of the shares of the association was not necessary to prevent loss upon a debt previously contracted in good faith is a fatal defect. These counts merely charge that the defendant willfully misapplied the funds of the association, and then aver a use of the funds, which, from all that appears to the contrary, was a perfectly-lawful application of them. The result is that no offense is described in the counts numbered fron 37 to 56, inclusive, and that they are, therefore, insufficient and bad. It also follows that counts numbered fron 57 to 76, inclusive, which are similar to the series just mentioned, except that they contain no charge of intent to injure and defraud, are also bad.

What we have said disposes of all the questions propounded to us which it is necessary that we should answer. We answer the first, second, seventh, and ninth questions in the affirmative, and the fifth, sixth, and eighth questions in the negative. From these answers it appears that all the counts from the thirty-seventh to the one hundred and eighteenth, inclusive, are insufficient and bad. We therefore decline to answer the third and fourth questions, which relate to the same counts. U.S. v. Buzzo, 18 Wall. 125.


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

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Page:A Thousand-Mile Walk To The Gulf.djvu/23

Rh It was not, therefore, a new species of adventure upon which Mr. Muir embarked when he started on his Southern foot-tour. It was only a new response to the lure of those favorite studies which he had already pursued over uncounted miles of virgin Western forests and prairies. Indeed, had it not been for the accidental injury to his right eye in the month of March, 1867, he probably would have started somewhat earlier than he did. In a letter written to Indianapolis friends on the day after the accident, he refers mournfully to the interruption of a long-cherished plan. “For weeks,” he writes, “I have daily consulted maps in locating a route through the Southern States, the West Indies, South America, and Europe—a botanical journey studied for years. And so my mind has long been in a glow with visions of the glories of a tropical flora; but, alas, I am half blind. My right eye, trained to minute analysis, is lost and I have scarce heart to open the other. Had this journey been accomplished, the stock of varied beauty acquired would have


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United States v. Curtis

Asst. Atty. Gen. Maury, for the United States.

Chester H. Krum, for Curtis.

HARLAN, J.

title: United States v. Curtis


text: Talk:United States v. Curtis

title: Talk:United States v. Curtis


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United States v. Curtis/Opinion of the Court

This case comes before us on a certificate of division as to certain questions of law arising in a criminal prosecution against Edward P. Curtis, based upon sections 5211 and 5392 of the Revised Statutes of the United States. The first of those sections provides that every national banking association 'shall make to the comptroller of the currency not less than five reports during each year, according to the form which may be prescribed by him, verified by the oath or affirmation of the president or cashier of such association, and attested by the signature of at least three of the directors. Each such report shall exhibit in detail, and under appropriate heads, the resources and liabilities of the association at the close of business on any past day by him specified; and shall be transmitted to the comptroller within five days after the receipt of a request or requisition therefor from him, and in the same form in which it is made to the comptroller shall be published in a newspaper where such association is established,' etc.

Section 5392 provides that 'every person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall be punished by a fine of not more than $2,000, and by imprisonment at hard labor not more than five years; and shall, moreover, thereafter be incapable of giving testimony in any court of the United States until such time as the judgment against him is reversed.'

The willfully false declarations or statements which the defendant is charged to have made are contained in several written reports transmitted to the comptroller of currency by the National Bank of the State of Missouri, in St. Louis, in pursuance of section 5211, and to the truth of which declarations or statements Curtis, as cashier of that bank, made oath before a notary public within and for the county of St. Louis, in that state. These declarations or statements relate to the condition of the bank as to loans, discounts, checks, cash items, overdrafts, individual deposits subject to checks, surplus fund, currency on deposit, and money due from that association to other national banks. The indictment contains five counts, which, as respects any matter now to be determined, do not substantially differ, except as to the several dates when the alleged oaths were taken. Those dates were July 18 and October 10, 1876, and January 15, January 26, and April 5, 1877.

The controlling question is as to the authority of the notary to administer the oaths, upon the falsity of which the indictment is laid.

It is fundamental in the law of criminal procedure that an oath before one who has no legal authority to administer oaths of a public nature, or before one who, although authorized to administer some kind of oaths, but not the one which is brought in question, cannot amount to perjury at common law, or subject the party taking it to prosecution for the statutory offense of willfully false swearing. 1 Hawkins, P. C., book 1, cc. 69, 321, § 4, p. 430, (8th Ed. by Curwood;) Roscoe, Crim. Ev. (7th Amer. Ed.) 817; 2 Whart. Crim. Law, § 1256; 2 Archb. Crim. Pr. & Pl. (8th Ed.) 1722. If, therefore, Curtis, at the time the several oaths alleged to be false were taken, was not authorized by the laws of the United States to take them before a notary public, he cannot be proceeded against under section 5392. The statute, in conformity with an established rule of criminal law, expressly declares that the oath must be taken before some 'competent tribunal, officer, or person.' This does not necessarily mean that the tribunal by which the oath is administered shall have been created by the government which required it to be taken, nor that the officer who administers it shall be an officer of that government. But the statute does mean that the oath must be permitted or required, by at least the laws of the United States, and be administered by some tribunal, officer, or person authorized by such laws to administer oaths in respect of the particular matters to which it relates. So that the underlying question is whether the notary public, whose commission is from the state, was, at the respective dates of the oaths taken by Curtis, authorized by the laws of the United States to administer such oaths.

This question we are constrained to answer in the negative. We are not aware of any act of congress which gave such authority to notaries public in the different states at the several dates given in the indictment. The assistant attorney general insists that such authority may be found in section 1778 of the Revised Statutes, which declares:

'In all cases in which, under the laws of the United States,     oaths or acknowledgments may now be taken or made before any      justice of the peace of any state or territory, or in the      District of Columbia, they may also be taken or made by or      before any notary public duly appointed in any state,      district, or territory, or any of the commissioners of the      circuit courts, and, when certified under the hand and      official seal of such notary or commissioner, shall have the      same force and effect as if taken or made by or before such      justice of the peace.'

The authority of the notary to administer these oaths to Curtis cannot be derived from that section, unless, at the dates in question, they could, under the laws of the United States, have been taken before justices of the peace in Missouri. But the latter officers had no such authority by any federal statute to which our attention has been called, or which we are able to find. Section 1778, so far as notaries public are concerned, embodies the substance of similar provisions in the acts of September 16, 1850, (9 St. 458,) July 29, 1854, (10 St. p. 315, § 1,) and June 22, 1874, (18 St. p. 186, § 20.) But nothing in these acts, even if they remained in force after the adoption of the Revised Statutes, supports the authority exercised by the notary public who administered these oaths to defendant.

Counsel for the United States further insists that a proper construction of section 1778 will authorize a notary public in any state to administer oaths to officers of national banking associations, when making reports to the comptroller of the currency, if justices of the peace may lawfully do so in this district. But in our judgment no such interpretation of that provision is admissible. What congress intended, by that section, was to give notaries public in their respective states the same authority, in the administration of oaths, as are given, under the laws of the United States, to justices of the peace in the same states; and to notaries public in this district the same authority, in administering oaths, which, under the laws of the United States, might be exercised by justices of the peace in this district. We have seen, however, that justices of the peace, in the several states, had not been given such authority by any provision in the Revised Statutes, or by any act of congress prior to their adoption. Nor can any support for the indictment be derived from the act of August 15, 1876, (19 St. 206,) which declares 'that notaries public of the several states, territories, and the District of Columbia, be, and they are hereby, authorized to take depositions, and do all other acts in relation to taking testimony to be used in the courts of the United States, take acknowledgments and affidavits, in the same manner and with the same effect as commissioners of the United States circuit courts may now lawfully take or do.'

The power of commissioners of the circuit courts did not, at the passage of that act, extend to the taking of oaths to reports by officers of national banks. They could take affidavits when required or allowed in any civil cause in a circuit or district court; Rev. St. § 945; Act of February 20, 1812, (2 St. p. 679, § 1;) Act of March 1, 1817, (3 St. 350;) or administer oaths where, in the same state, under the laws of the United States, oaths, in like cases, could be administered by justices of the peace; Rev. St. § 1778; or they could take evidence, affidavits, and proof of debts in proceedings in bankruptcy; Rev. St. §§ 5003, 5076; Acts of March 2, 1867, (14 St. 527,) July 27, 1868, (15 St. p. 228, § 3,) and June 22, 1874, (18 St. p. 186, § 20.) But the authority of commissioners did not extend to such oaths as were administered to Curtis.

Our attention is called by counsel for the government to U.S. v. Bailey, 9 Pet. 238. That case, it is claimed, furnishes ample ground for an implication that the notary public who administered the oath in this case was fully empowered to do so. We do not so interpret that decision. That was an indictment for false swearing. It was based upon an act of congress which provided that if any person shall swear or affirm falsely touching the expenditure of public money, or in support of any claim against the United States, he should, upon conviction, suffer as for willful, corrupt perjury. The alleged false oath was administered before a justice of the peace for the commonwealth of Kentucky. It was admitted that there was no statute of the United States expressly empowering a justice of the peace to administer the oath taken by Bailey. But the authority of that officer was sustained upon the ground that the secretary of the treasury had previously, and as incident to his duty and authority under an act of congress, established a regulation permitting affidavits in support of claims against the United States to be made before justices of the peace. Except for that regulation the court, it is manifest, would not have sustained the indictment in Bailey's Case.

The conclusion, therefore, is not to be avoided, and it will accordingly be certified to the court below, that the alleged false oaths of the defendant were not taken before an officer competent, at the time, under the laws, of the United States, to administer them. The absence of such authority in notaries public seems to have been recognized by congress when it passed the act of February 26, 1881, (21 St. 352,) declaring 'that the oath or affirmation required by section 5211 of the Revised Statutes, verifying the returns made by national banks to the comptroller of the currency, when taken before a notary public properly authorized and commissioned by the state in which such notary resides and the bank is located, or any other officer having an official seal, authorized in such state to administer oaths, shall be a sufficient verification, as contemplated by said section 5211: provided, that the officer administering the oath is not an officer of the bank.'

What has been said renders it unnecessary to consider any other question of law certified by the judges of the circuit court.


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


text:
First Nat Bank v. Stewart

John Little, for plaintiff in error.

''Geo. Hoadly, E. M. Johnson, and Edwd. Colston'', for defendants in error.

FIELD, J.

title: First Nat Bank v. Stewart


text: Talk:First Nat Bank v. Stewart

title: Talk:First Nat Bank v. Stewart


text:
First Nat Bank v. Stewart/Opinion of the Court

Section 5201 of the Revised Statutes declares that 'no association shall make any loan or discount on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares, unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith, and stock so purchased or acquired shall, within six months from the time of its purchase, be sold or disposed of at public or private sale; or, in default thereof, a receiver may be appointed to close up the business of the association.' While this section in terms prohibits a banking association from making a loan upon the security of shares of its own stock, it imposes no penalty, either upon the bank or borrower, if a loan upon such security be made. If, therefore, the prohibition can be urged against the validity of the transaction by any one except the government, it can only be done before the contract is executed, while the security is still subsisting in the hands of the bank. It can then, if at all, be invoked to restrain or defeat the enforcement of the security. When the contract has been executed, the security sold, and the proceeds applied to the payment of the debt, the courts will not interfere with the matter. Both bank and borrower are in such case equally the subjects of legal censure, and they will be left by the courts where they have placed themselves. There is another view of this case. The deceased authorized the bank, in a certain contingency, to sell his shares. Supposing it was unlawful for the bank to take those shares as security for a loan, it was not unlawful to authorize the bank to sell them when the contingency occurred. The shares being sold pursuant to the authority, the proceeds would be in the bank as his property. Ths administrators, indeed, affirm the validity of that sale by suing for the proceeds. As against the deceased, however, the money loaned was an offset to the proceeds. In either view the administrators cannot recover.

The judgment of the court, therefore, must be reversed and the cause remanded for a new trial; and it is so ordered.


text: Talk:First Nat Bank v. Stewart/Opinion of the Court


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Escanaba Lake Michigan Transp Company v. City of Chicago

Homer Cook, A. T. Britton, and J. H. McGowan, for appellant.

Frederick S. Winston, Jr., for appellee.

FIELD, J.


text: Talk:Escanaba Lake Michigan Transp Company v. City of Chicago


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Escanaba Lake Michigan Transp Company v. City of Chicago/Opinion of the Court

The Escanaba & Lake Michigan Transportation Company, a corporation created under the laws of Michigan, is the owner of three steam-vessels engaged in the carrying trade between ports and places in different states on Lake Michigan and the navigable waters connecting with it. The vessels are enrolled and licensed for the coasting trade, and are principally employed in carrying iron ore from the port of Escanaba, in Michigan, to the docks of the Union Iron & Steel Company on the south fork of the south branch of the Chicago river, in the city of Chicago. In their course up the river and its south branch and fork to the docks, they are required to pass through draws of several bridges constructed over the stream by the city of Chicago, and it is of obstructions caused by the closing of the draws, under an ordinance of the city, for a designated hour of the morning and evening during week-days, and by a limitation of the time to 10 minutes during which a draw may be left open for the passage of a vessel, and by some of the piers in the south branch and fork, and the bridges resting on them, that the corporation complains; and to enjoin the city from closing the draws for the morning and evening hours designated, and enforcing the 10 minutes limitation, and to compel the removal of the objectionable piers and bridges, the present bill is filed.

The river and its branches are entirely within the state of Illinois, and all of it, and nearly all of both branches that is navigable, are within the limits of the city of Chicago. The river, from the junction of its two branches to the lake, is about three-fourths of a mile in length. The branches flow in opposite directions and meet at its head, nearly at right angles with it. Originally the width of the river and its branches seldom exceeded 150 feet; of the branches and fork it was often less than 100 feet; but it has been greatly enlarged by the city for the convenience of its commerce.

The city fronts on Lake Michigan, and the mouth of the Chicago river is near its center. The river and its branches divide the city into three sections: one lying north of the main river and east of its north branch, which may be called its northern division; one lying between the north and south branches, which may be called its western division; and one lying south of the main river and east of the south branch, which may be called its southern division. Along the river and its branches the city has grown up into magnificent propertions, having a population of 600,000 souls. Running back from them on both sides are avenues and streets lined with blocks of edifices, public and private, with stores and warehouses, and the immense variety of buildings suited for the residence and the business of this vast population. These avenues and streets are connected by a great number of bridges, over which there is a constant passage of foot passengers and of vehicles of all kinds. A slight impediment to the movement causes the stoppage of a crowd of passengers and a long line of vehicles.

The main business of the city, where the principal stores, warehouses, offices, and public buildings are situated, is in the southern division of the city; and a large number of the persons who do business there reside in the northern or the western division, or in the suburbs.

While this is the condition of business in the city on the land, the river and its branches are crowded with vessels of all kinds, sailing craft and steamers, boats, barges, and tugs, moving backwards and forwards, and loading and unloading. Along the banks there are docks, warehouses, elevators, and all the appliances for shipping and reshipping goods. To these vessels the unrestricted navigation of the river and its branches is of the utmost importance; while to those who are compelled to cross the river and its branches the bridges are a necessity. The object of wise legislation is to give facilities to both, with the least obstruction to either. This the city of Chicago has endeavored to do.

The state of Illinois, within which, as already mentioned, the river and its branches lie, has vested in the authorities of the city jurisdiction over bridges within its limits, their construction, repair, and use, and empowered them to deepen, widen, and change the channel of the stream, and to make regulations in regard to the times at which the bridges shall be kept open for the passage of vessels.

Acting upon the power thus conferred, the authorities have endeavored to meet the wants of commerce with other states and the necessities of the population of the city residing or doing business in different sections. For this purpose they have prescribed as follows: That 'between the hours of 6 and 7 o'clock in the morning, and half past 5 and half past 6 o'clock in the evening, Sundays excepted, it shall be unlawful to open any bridge within the city of Chicago;' and that 'during the hours between 7 o'clock in the morning and half past 5 o'clock in the evening, it shall be unlawful to keep open any bridge within the city of Chicago for the purpose of permitting vessels or other crafts to pass through the same, for a longer period at any one time than 10 minutes, at the expiration of which period it shall be the duty of the bridge-tender or other person in charge of the bridge to display the proper signal, and immediately close the same, and keep it closed for fully 10 minutes for such persons, teams, or vehicles as may be waiting to pass over, if so much time shall be required; when the said bridge shall again be opened (if necessary for vessels to pass) for a like period, and so on alternately (if necessary) during the hours last aforesaid; and in every instance where any such bridge shall be open for the passage of any vessel, vessels, or other craft, and closed before the expiration of 10 minutes from the time of opening, said bridge shall then, in every such case, remain closed for fully 10 minutes, if necessary, in order to allow all persons, teams, and vehicles in waiting to pass over said bridge.'

The first of these requirements was called for to accommodate clerks, apprentices, and laboring men seeking to cross the bridges, at the hours named, in going to and returning from their places of labor. Any unusual delay in the morning would derange their business for the day, and subject them to a corresponding loss of wages. At the hours specified there is three times, so the record shows, the usual number of pedestrians going and returning that there is during other hours of the day.

The limitation of 10 minutes for the passage of the draws by vessels seem to have been eminently wise and proper for the protection of the interests of all parties. Ten minutes is ample time for any vessel to pass the draw of a bridge, and the allowance of more time would subject foot-passengers, teams, and other vehicles to great inconvenience and delays. It is to this 10 minutes limitation, and to the assignment of the morning and evening hour to pedestrians and vehicles, that the complainant principally objects. He insists that the navigation of the river and its branches should not be thus delayed; that the rights of commerce by vessels are paramount to the rights of commerce by any other way. But in this view the complainant is in error. The rights of each class are to be enjoyed without invasion of the equal rights of others. Some concession must be made on every side for the convenience and the harmonious pursuits of different occupations. Independently of any constitutional restrictions, nothing would seem more just and reasonable, or better designed to meet the wants of the population of an immense city, consistently with the interests of commerce, than the 10 minutes rule, and the assignment of the morning and evening hours which the city ordinance has prescribed.

The power vested in the general government to regulate interstate and foreign commerce involves the control of the waters of the United States which are navigable in fact, so far as it may be necessary to insure their free navigation, when by themselves or their connection with other waters they form a continuous channel for commerce among the states or with foreign countries. The Daniel Ball, 10 Wall. 557. Such is the case with the Chicago river and its branches. The common-law test of the navigability of waters, that they are subject to the ebb and flow of the tide, grew out of the fact that in England there are no waters navigable in fact, or to any great extent, which are not also affected by the tide. That test has long since been discarded in this country. Vessels larger than any which existed in England when that test was established, now navigate rivers and inland lakes for more than a thousand miles beyond the reach of any tide. That test only becomes important when considering the rights of riparian owners to the bed of the stream, as in some states it governs in that matter.

The Chicago river and its branches must, therefore, be deemed navigable waters of the United States, over which congress, under its commercial power, may exercise control to the extent necessary to protect, preserve, and improve their free navigation. But the states have full power to regulate within their limits matters of internal police, including in that general designation whatever will promote the peace, comfort, convenience, and prosperity of their people. This power embraces the construction of roads, canals, and bridges, and the establishment of ferries, and it can generally be exercised more wisely by the states than by a distant authority. They are the first to see the importance of such means of internal communication, and are more deeply concerned than others in their wise management. Illinois is more immediately affected by the bridges over the Chicago river and its branches than any other state, and is more directly concerned for the prosperity of the city of Chicago, for the convenience and comfort of its inhabitants, and the growth of its commerce. And nowhere could the power to control the bridges in that city, their construction, form, and strength, and the size of their draws, and the manner and times of using them, be better vested than with the state, or the authorities of the city upon whom it has devolved that duty. When its power is exercised so as to unneces, sarily obstruct the navigation of the river or its branches, congress may interfere and remove the obstruction. If the power of the state and that of the federal government come in conflict, the latter must control and the former yield. This necessarily follows from the position given by the constitution to legislation in pursuance of it, as the supreme law of the land. But until congress acts on the subject, the power of the state over bridges across its navigable streams is plenary. This doctrine has been recognized from the earliest period, and approved in repeated cases, the most notable of which are Wilson v. Blackbird Creek Co. 2 Pet. 245, which was decided in 1829, and Gilman v. City of Philadelphia, 3 Wall. 713, which was decided in 1865. In the first of these cases, an act of Delaware incorporated the Blackbird Creek Company, and authorized it to construct a dam over one of the small navigable rivers of the state, which obstructed the navigation of the stream. A sloop, licensed and enrolled according to the navigation laws of the United States, broke and injured the dam, and thereupon an action was brought for damages by the company. The owners of the sloop set up that the river was a public and common navigable creek 'in the nature of a highway,' in which the tides had always flowed and reflowed, and in which there was and of right ought to be a common and public way for all the citizens of the state of Delaware and of the United States, with sloops and other vessels to navigate at all times of the year at their free will and pleasure; that the company had wrongfull erected the dam across the navigable creek and thereby obstructed the same; and that they had broken the dam in order to pass along the creek with their sloop. To this plea the company demurred, and the demurrer was sustained by the court of appeals of Delaware and by this court. The decision here was based entirely upon the absence of any legislation of congress upon the subject. Said Chief Justice MARSHALL, speaking for the court:

'The measure authorized by this act (of Delaware) stops a     navigable creek, and must be supposed to abridge the rights      of those who have been accustomed to use it. But this     abridgment, unless it comes in conflict with the constitution      or a law of the United States, is an affair between the      government of Delaware and its citizens, of which this court      can take no cognizance. The counsel for the complainants in     error insist that it comes in conflict with the power of the      United States to regulate commerce with foreign nations and      among the several states. If congress had passed any act in     execution of the power to regulate commerce, the object of      which was to control state legislation over those small      navigable creeks into which the tide flows, and which abound      throughout the lower country of the middle and southern      states, we should not feel much difficulty in saying that a      state law, coming in contact with such act, would be void. But congress has passed no such act. The repugnancy of the     law of the Delaware with the constitution is placed entirely      upon its repugnancy with the power of congress to regulate      commerce with foreign nations and among the several states,-a power which has not been so exercised as to affect      the question.'

The second case mentioned, that of Gilman v. City of Philadelphia, is equally emphatic and decisive. The complaint there was by a citizen of New Hampshire, who owned valuable coal wharves on the Schuylkill river at Philadelphia, just above Chestnut street, in that city. In 1857 the legislature of the state authorized the city of Philadelphia to erect a permanent bridge over the river at that street. The city being about to begin the structure, which was to be without a draw, Gilman filed a bill to prevent its erection, alleging that it would be an unlawful obstruction of the navigation of the river, and an illegal interference with his rights, and a public nuisance, producing to him special damage, and that it was not competent for the legislature of Pennsylvania to sanction such a structure; and he claimed that he was entitled to be protected by an injunction to stay the progress of the work, and to a decree of abatement, if it should be proceeded with to completion. It appeared that the river was tide-water, and navigable to the wharves of the complainant for vessels drawing from 18 to 20 feet of water, and that for many years commerce to them had been carried on in all kinds of vessels. The bridge, which was to be constructed below them, was to be only 30 feet high; hence would not permit the passage of vessels with masts. The city justified its proposed action by the act of the legislature, alleging that the bridge was a necessity for public convenience, a large population residing on both sides of the river. The circuit court dismissed the bill, and this court affirmed the decree, holding that as the river was wholly within her limits, the state had not exceeded the bounds of her authority, and that until the dormant power of the constitution was awakened and made effective by appropriate legislation, the reserved power of the state was plenary, and its exercise in good faith could not be made the subject of review by the court. In its opinion, after observing 'that it must not be forgotten that bridges, which are connecting parts of turnpikes, streets, and railroads, are means of commercial transportation as well as navigable waters, and that the commerce which passed over a bridge may be much greater than would ever be transported on the water obstructed,' the court said, speaking by Mr. Justice SWAYNE:

'It is for the municipal power to weigh the considerations     which belong to the subject and to decide which shall be      preferred, and how far either shall be made subservient to      the other. The states have always exercised this power, and,     from the nature and objects of the two systems of government,      they must always continue to exercise it, subject, however,      in all cases, to the paramount authority of congress,      whenever the power of the state shall be exerted within the      sphere of the commercial power which belongs to the nation.'      3 Wall. 729.

These decisions have been cited, approved, and followed in many cases, notably in that of Pound v. Turck, decided in 1877. 95 U.S. 459. There, a statute of Wisconsin authorized the erection of one or more dams across the Chippewa river, which was a small navigable stream lying wholly within the limits of the state, but emptying its waters into the Mississippi; and also the building and maintaining of booms on the river with sufficient piers to stop and hold floating logs. The dams and booms were to be so built as not to obstruct the running of lumber-rafts on the river. Certain parties were damaged by delay in a lumber-raft and from its breaking, caused by the obstructions in the river, and their assignees in bankruptcy brought an action against those who had placed the obstructions there and recovered. The case being brought here, this court was of opinion that the somewhat confused instructions of the circuit court must have led the jury to understand that if the structures of the defendant were a material obstruction to the general navigation of the river, the statute of the state afforded no defense, although the structures were built in strict conformity with its provisions. The circuit court evidently acted upon the theory that the state possessed no power to pass the statute because of its supposed conflict with the commercial power of congress. This court, thus construing the instructions of that court, held that they were erroneous; that the case was within the decisions of the Blackbird Creek Case Gilman v. City of Philadelphia, and that it was competent for the legislature of the state to impose such regulations and limitations upon the erection of obstructions like dams and booms in navigable streams wholly within its limits, as might best accommodate the interests of all concerned, until congress should interfere and by appropriate legislation control the matter.

The doctrine declared in these several decisions is in accordance with the more general doctrine now firmly established, that the commercial power of congress is exclusive of state authority only when the subjects upon which it is exercised are national in their character, and admit and require uniformity of regulation affecting alike all the states. Upon such subjects only that authority can act which can speak for the whole country. Its non-action is, therefore, a declaration that they shall remain free from all regulation. Welton v. State, 91 U.S. 275; Henderson v. Mayor of New York, 92 U.S. 259; County of Mobile v. Kimball, 102 U.S. 691.

On the other hand, where the subjects on which the power may be exercised are local in their nature or operation, or constitute mere aids to commerce, the authority of the state may be exerted for their regulation and management until congress interferes and supersedes it. As said in the County of Mobile v. Kimball:

'The uniformity of commercial regulations, which the grant to     congress was designed to secure against conflicting state      provisions, was necessarily intended only for cases where      such uniformity is practicable. Where, from the nature of the     subject or the sphere of its operation, the case is local and      limited, special regulations, adapted to the immediate      locality, could only have been contemplated. State action     upon such subjects can constitute no interference with the      commercial power of congress, for when that acts the state      authority is superseded. Inaction of congress upon these     subjects of a local nature or operation, unlike its inaction      upon matters affecting all the states and requiring      uniformity of regulation, is not to be taken as a declaration      that nothing shall be done in respect to them, but is rather      to be deemed a declaration that for the time being and until      it sees fit to act they may be regulated by state authority.'      102 U.S. 699.

Bridges over navigable streams, which are entirely within the limits of a state, are of the latter class. The local authority can better appreciate their necessity, and can better direct the manner in which they shall be used and regulated, than a government at a distance. It is, therefore, a matter of good sense and practical wisdom to leave their control and management with the states, congress having the power at all times to interfere and supersede their authority whenever they act arbitrarily and to the injury of commerce.

It is, however, contended here that congress has interfered, and by its legislation expressed its opinion as to the navigation of Chicago river and its branches; that it has done so by acts recognizing the ordinance of 1787, and by appropriations for the improvement of the harbor of Chicago.

The ordinance of 1787, for the government of the territory of the United States north-west of the Ohio river, contained in its fourth article a clause declaring that 'the navigable waters leadings into the Mississippi and St. Lawrence, and the carrying places between them, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor.'

The ordinance was passed July 13, 1787, one year and nearly eight months before the constitution took effect; and although it appears to have been treated afterwards as in force in the territory, except as modified by congress; and by the act of May 7, 1800, creating the territory of Indiana, and by the act of February 3, 1809, creating the territory of Illinois, the rights and privileges granted by the ordinance are expressly secured to the inhabitants of those territories; and although the act of April 18, 1818, enabling the people of Illinois territory to form a constitution and state government, and the act of August 26th, following, admitting the state into the Union, refer to the principles of the ordinance according to which the constition was to be formed,-its provisions could not control the authority and powers of the state after her admission. Whatever the limitation upon her powers as a government while in a territorial condition, whether from the ordinance of 1787 or the legislation of congress, it ceased to have any operative force, except as voluntarily adopted by her after she became a state of the Union. On her admission she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original states. She was admitted, and could be admitted, only on the same footing with them. The language of the act of admission is, 'on an equal footing with the original states in all respects whatever.' 3 St. 536. Equality of constitutional right and power is the condition of all the states of the Union, old and new. Illinois, therefore, as was well observed by counsel, could afterwards exercise the same power over rivers within her limits that Delaware exercised over Blackbird creek, and Pennsylvania over the Schuylkill river. Pollard's Lessee v. Hagan, 3 How. 212; Permoli v. First Municipality, 3 How. 589; Strader v. Graham, 10 How. 82.

But, aside from these considerations, we do not see that the clause of the ordinance upon which reliance is placed materially affects the question before us. That clause contains two provisions: one, that the navigable waters leading into the Mississippi and the St. Lawrence shall be common highways to the inhabitants; and the other, that they shall be forever free to them, without any tax, impost, or duty therefor. The navigation of the Illinois river is free, so far as we are informed, from any tax, impost, or duty, and its character as a common highway is not affected by the fact that it is crossed by bridges. All highways, whether by land or water, are subject to such crossings as the public necessities and convenience may require, and their character as such is not changed, if the crossings are allowed under reasonable conditions, and not so as to needlessly obstruct the use of the highways. In the sense in which the terms are used by publicists and statesmen, free navigation is consistent with ferries and bridges across a river for the transit of persons and merchandise as the necessities and convenience of the community may require.

In Palmer v. Com'rs of Cuyahoga Co. we have a case in point. There application was made to the circuit court of the United States in Ohio for an injunction to restrain the erection of a draw-bridge over a river in that state on the ground that it would obstruct the navigation of the stream and injure the property of the plaintiff. The application was founded on the provision of the fourth article of the ordinance mentioned. The court, which was presided over by Mr. Justice McLEAN, then having a seat on this bench, refused the injunction, observing that—

'This provision does not prevent a state from improving the     navigableness of these waters, by removing obstructions, or      by dams and locks, so increasing the depth of the water as to      extend the line of navigation. Nor does the ordinance     prohibit the construction of any work on the river which the      state may consider important to commercial intercourse. A dam     may be thrown over the river, provided a lock is so      constructed as to permit boats to pass with little or no      delay, and without charge. A temporary delay, such as passing     a lock, could not be considered as an obstruction prohibited      by the ordinance.'

'A draw-bridge across a navigable water is not an     obstruction. As this would not be a work connected with the     navigation of the river, no toll, it is supposed, could be      charged for the passage of boats. But the obstruction would     be only momentary, to raise the draw; and as such a work may      be very important in a general intercourse of a community, no      doubt is entertained as to the power of the state to make the      bridge.' 3 McLean, 226.

The same observations may be made of the subsequent legislation of congress declaring that navigable rivers within the territories of the United States shall be deemed public highways. 1 St. p. 468, § 9; 2 St. p. 279, § 6.

As to the appropriations by congress, no money has been expended on the improvements of the Chicago river above the first bridge from the lake, known as Rush-street bridge. No bridge, therefore, interferes with the navigation of any portion of the river which has been thus improved. But, if it were otherwise, it is not perceived how the improvement of the navigability of the stream can affect the ordinary means of crossing it by ferries and bridges. The free navigation of a stream does not require an abandonment of those means. To render the action of the state invalid in constructing or authorizing the construction of bridges over one of its navigable streams, the general government must directly interfere so as to supersede its authority and annual what it has done in the matter.

It appears from the testimony in the record that the money appropriated by congress has been expended almost exclusively upon what is known as the outer harbor of Chicago, a part of the lake surrounded by breakwaters. The fact that formerly a light-house was erected where now Rush-street bridge stands in no respect affects the question. A ferry was then used there, and before the construction of the bridge the site as a light-house was abandoned. The existing light-house is below all the bridges. The improvements on the river above the first bridge do not represent any expenditure of the government.

From any view of this case, we see no error in the action of the court below, and its decree must accordingly be affirmed; and it is so ordered.


text: Talk:Escanaba Lake Michigan Transp Company v. City of Chicago/Opinion of the Court


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Parkersburg Ohio River Transp Company v. City of Parkersburg

C. W. Moulton, for appellant.

C. C. Cole and ''Wm. A. Cook'', for appellee.

BRADLEY, J.


text: Talk:Parkersburg Ohio River Transp Company v. City of Parkersburg