text:
Thomson v. Pacific Railroad

ON certificate of division in opinion between the judges of the Circuit Court for the District of Kansas. The case was this:

The Union Pacific Railway Company, Eastern Division, was originally incorporated in 1855, by the legislature of the Territory of Kansas, as the Leavenworth, Pawnee, and Western Railroad Company, with authority to construct the road from the west bank of the Missouri to the western boundary of the Territory. Subsequently, in 1862, under an act of the State of Kansas, it assumed its present name, with authority to unite or consolidate with any other company or companies organized, or to be organized, under the laws of the United States, or of any State or Territory.

Some months later, the Union Pacific Railroad Company was incorporated by Congress, with power (conferred by the original act of 1862 and various amendatory acts) to construct a railroad and telegraph westward through the territory of the United States, from the hundredth meridian east of Greenwich, to connect with the Central Pacific Railway Company, incorporated by the State of California, and so to form, in connection with eastern roads, a continuous line from ocean to ocean. Several other railroad companies, already incorporated by Missouri and Iowa, as well as the company just mentioned, chartered by Kansas, were authorized to construct roads through the National territory, so as to join the Union Pacific road on the hundredth meridian; and to all these roads large grants of land were made, and large subsidies engaged on the security of a second mortgage, upon the condition of paying, at maturity, the bonds advanced by way of subsidy, and of rendering certain services to the government in the tiansmission of messages, and in the transportation of mails, troops, munitions, and other property, at reasonable rates of compensation.

But neither by the original act, nor by any amendment, did Congress undertake to incorporate any railroad company, or authorize the construction of any railroad within the limits of any State, without the consent of the State concerned. And this was as true of the Union Pacific Railway Company, Eastern Division, as of any other of the roads aided by Congress. Whatever was done by Congress in reference to this last named road, was done not merely with the consent, but upon the solicitation of the State of Kansas. The corporation, however, remained a State corporation, though entitled to certain benefits, and subject to certain duties under the legislation of Congress.

In this state of things, and the legislature of Kansas having passed a law laying certain taxes upon the property of the company, one Thomson and numerous other persons filed a bill in the Circuit Court of the United States for the District of Kansas, against the Union Pacific Railway Company, Eastern Division, and three persons, whom the bill named, treasurers, respectively, of Douglass, Wyandotte, and Jefferson counties, in the State of Kansas. The bill stated that the complainants were stockholders in the railway company; that under an act of the legislature of Kansas certain taxes had been imposed on the railroad and telegraph property of the company, which the treasurers of the counties named were proceeding to collect; that the property of the company was mortgaged to the United States; that the company was bound to perform certain duties, and ultimately to pay five per cent. of its net earnings to the United States; that the company would be greatly hindered and embarrassed in the performance of its obligations and duties to the United States, if the taxes imposed should be collected; and that, to some extent, taxes of the same description had been already paid by the company, to the prejudice of the just rights of the complainants and of the securities of the United States. Upon this case the complainants prayed an injunction to restrain the company from paying, and the other defendants from collecting, the taxes assessed; and a temporary injunction was allowed by the district judge.

The answer of the company admitted the allegations of the bill. The answers of the three county treasurers admitted the assessment of the taxes under the laws of Kansas, but denied that such taxes had been imposed with any view to impede or embarrass the railway company, and insisted that the property of the company only bore its due proportion of the taxes levied upon all property in the State of Kansas, and that no discrimination was made against the company in the matter of taxation.

To these answers no replication was put in; but an agreed statement of facts was filed, which recited sundry resolutions of the Kansas legislature, urging upon Congress legislation in aid of the railway company; and admitted that the property of the company was liable, under the laws of Kansas, to be taxed for State, county, and municipal purposes; that the taxes complained of had been assessed in conformity with the statutes of the State; that the company had executed a first mortgage prior in lien to the debt to the United States, and that a table of earnings and expenditures for 1867-8, appended to the agreed statement, was correct.

Upon these pleadings and this agreed statement the question arose, whether the property of the railway company described in the bill was subject to the tax which the statutes of Kansas authorized to be levied on all other property, not specially exempted, for State, county, and municipal purposes. And upon this question the judges of the Circuit Court were divided in opinion, and certified it for decision here.

Mr. Hoar, Attorney-General, and Mr. Usher, for the complainant:

The question is of the gravest importance, not so much to the complainants, in this case, as to the railroad companies organized and deriving their powers under the acts of Congress providing for the construction of the Union Pacific Railroad and its branches, and the States, Territories, and municipalities through which those roads pass, and that shall hereafter be formed or created along their course.

These roads have their eastern termini one hundred and fifty miles east of the geographical centre of the United States, and every part of them will be subject to local laws, and the capriciousness of those who shall make and execute those laws, unless, by the law of their being they are exempt from such control.

This property is exempt for two reasons:

1st. A minor one. Because by the sixteenth section of the charter of the company the State has the right to purchase the road at the end of fifty years. The section is as follows:

'Said company shall keep a fair record of the whole expense of constructing said road, and at the end of fifty years the State or States through which the said road shall pass shall be at liberty to purchase said road by paying to said company the amount at which it shall be valued by persons to be mutually chosen by the State and by said company.'The State has, therefore, an interest in the road-a special property-and by its fundamental law cannot tax it.

2d. A greater reason. The history of this road is matter of public knowledge. It is one and a part of a system of roads constructed under the direction and authority of Congress for the use and purposes of the United States, in the exercise of its powers to 'provide for the common defence and general welfare of the United States, to regulate commerce among the several States, to establish post-offices and post-roads, to raise and support armies, and to suppress insurrections and invasions.'

For many years the necessity of a Pacific railroad was pressed upon Congress through conventions and petitions; but upon the breaking out of war its necessity to the government as a means for the preservation of its authority over all its territory upon the Pacific coast became so apparent, that provision was made for building the road, at a time when the expenditures of the government were more than a million of dollars per day for carrying on the war. When, two years afterward, it was found that the work had languished because of the inadequacy of government assistance, additional aid was given by Congress to secure the speedy construction of the work; and this, though the nation was then daily expending larger sums in carrying on the war, and though its debt had increased by hundreds of millions. It is a military, postal, and commercial road, and came out of the throes of the rebellion. It was designed to promote the unity and indivisibility of our people. It was to stretch forth the hands of the Great Valley until they clasped in peace and unity the hands of Oregon and California, to bind and cement in indissoluble bonds a dissolving Union; to carry the mails 'safely' and 'speedily' to the people inhabiting half of the National domain; to transmit telegraphic despatches to all these people with the rapidity of thought; to send troops and munitions of war to protect the defenceless men, women, and children of the frontier. against Indian barbarities; to enable the landless to have homes of their own; to develop and convert to the National uses the stores of gold and silver, and other valuable minerals imbedded in the mountains, and inaccessible but by these and other roads; to enable the government to suppress insurrections and repel invasions, should any occur, in all the country west of the mountains, and that the people might be brought into easy, cheap, and frequent communication with each other, whereby they should live together in lasting harmony and peace. Such was its history and well-known design; a work which, more than any other ever undertaken by the government, tends to consolidate peace, and to maintain the dignity, and reflect the glory of the nation. How in the face of all this history and all this design, can it be held that the action of Congress was a purposeless use of the lands and credit of the United States, for the benefit of divers corporations beyond the control of Congress? and that the United States was to be placed in the relation to them of a simple contract creditor, confined to such remedies as the laws of the numerous States and Territories traversed by the road and its branches afford?

Will it be said that because Congress, in devising the means by which it should execute the powers conferred by the Constitution, has profited of corporations created in part by Congress for the purpose, and in part by other authority, and because the normal condition of these corporations was such as would make them liable to taxation-the fact that Congress has created the one and adopted the others to its use-does not affect the right of the State to tax and subvert all this property, and so put an end to the scheme devised by Congress for the use and preservation of the government?

The answer is plain. The Congress of the United States, in the exercise of its constitutional power, has adapted this artificial body to its use, has made it its agent, has clothed it with new and additional powers to enable it to execute the lawful will of Congress, and the State cannot in any manner retard, impede, burden, or control the operations of this agent, the company, in the discharge of its duties and obligations to the Federal government.

If it was necessary, the wisdom of the laws under consideration could be easily vindicated; but it is enough to say that Congress intended to and did provide for the execution of certain of its delegated powers. And this has been done in the mode and way which Congress deemed most appropriate; one in which the greatest economy could be practised, and the greatest benefit secured to the public, with the least expenditure of the public money.

Consider the effect of these Kansas tax laws upon this property. If sold by virtue of them for non-payment of taxes, the purchaser is to have a deed in fee simple of the premises or parcel of land that he purchased, not a deed that constitutes him a corporation, or that establishes any relation between him and the company, or the United States. But how is it possible for the State to invest him with a fee simple title?

And what becomes of the personalty-the 'rolling stock,' as it is called? That is to be seized by the sheriff and sold; and being personalty, and necessarily in the possession of the sheriff, it shall come to pass that the locomotive and train transporting the mail, troops, and war material of the United States over this road through Kansas, destined for New Mexico, Colorado, or elsewhere beyond to protect the inhabitants or suppress an insurrection, shall be seized by the Kansas sheriff for the non-payment of taxes.

The case of McCulloch v. Maryland seems to decide this one. This court, there holding that Congress under the Constitution has absolute and exclusive power to determine whether an act of legislation is or is not necessary for carrying into effect one or more of its enumerated powers, proceeds to say that acts passed by it to these ends cannot be controlled by State law. It says further:

'The power to create is the power to preserve. The power to tax is the power to destroy, and a power to destroy, wielded by a different hand, is incompatible with a power to create and preserve. ..... The sovereignty of a State extends to everything which exists by its own authority, or is introduced by its own authority, but it does not extend to those means which are employed by Congress to carry into execution powers conferred on that body.'

And, again:

'We find on just theory a total failure of the original right to tax the means employed by the government of the Union for the execution of its plans. This right never existed, and the question whether it has been surrendered cannot arise. . . .. If the States may tax one instrument employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail, the mint, patent rights, the papers of the custom-house, and all the means employed by the government. This was not intended by the American people.'

It was not the intention of Congress to bargain with a corporation in Kansas for the use of their road and telegraph. They did not mean to take a lease for years and enforce their rights therein by action. On the contrary, it was an ordinary act of legislation to secure a political end of government. Congress intended to create an agent and to compel its active employment by means of law and powers reserved in transporting mails, troops, munitions of war, and necessary information.

A brief was also submitted against the right of the States to tax, by Mr. J. H. Storr, of counsel for the Central Pacific Railroad of California, and of the Western Pacific Railroad Company.

Mr. Banks, for the defendants; a brief of Mr. Thatcher being filed.

The CHIEF JUSTICE delivered the opinion of the court.

title: Thomson v. Pacific Railroad


text: Talk:Thomson v. Pacific Railroad

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

title: Talk:Thomson v. Pacific Railroad


text:
Thomson v. Pacific Railroad/Opinion of the Court

In this case the court has no concern with any of the connected roads which form, or are destined to form, links in the great chain of transcontinental railway. We have only to consider the liabilities and rights of the Union Pacific Railroad Company in respect to taxation under State legislation. Argument has been heard on behalf of some of the connected corporations, only because of their interest in the question, by reason of their similar situation and circumstances in reference to like legislation.

The counsel for the complainants have justly said that the question certified here for decision is one of very grave importance.

It was suggested, rather than argued, by one of them, that the property of the State is exempt by the State constitution from taxation; and that the State, having reserved to itself in the charter the right to purchase the road at the end of fifty years at a valuation then to be made, upon two years' notice to the company, has, therefore, a property in the road which cannot be taxed. But it is too plain for argument that the interest thus reserved is too remote and too contingent to be regarded as within the meaning of the exemption.

The main argument for the complainants, however, is that the road, being constructed under the direction and authority of Congress, for the uses and purposes of the United States, and being a part of a system of roads thus constructed, is therefore exempt from taxation under State authority. It is to be observed that this exemption is not claimed under any act of Congress. It is not asserted that any act declaring such exemption has ever received the sanction of the National legislature. But it is earnestly insisted that the right of exemption arises from the relations of the road to the General Government. It is urged that the aids granted by Congress to the road were granted in the exercise of its constitutional powers to regulate commerce, to establish post-offices and post-roads, to raise and support armies, and to suppress insurrection and invasion; and that by the legislation which supplied aid, required security, imposed duties, and finally exacted, upon a certain contingency, a percentage of income, the road was adopted as an instrument of the government, and as such was not subject to taxation by the State.

The case of McCulloch v. Maryland is much relied on in support of this position. But we apprehend that the reasoning of the court in that case will hardly warrant the conclusion which counsel deduce from it in this. In that case the main questions were, Whether the incorporation of the Bank of the United States, with power to establish branches, was an act of legislation within the constitutional powers of Congress, and, whether the bank and its branches, as actually established, were exempt from taxation by State legislation. Both questions were resolved in the affirmative. In deciding the first the court did not hold, as counsel suppose, that Congress, under the Constitution, has absolute and exclusive power to determine whether an act of legislation is or is not necessary and proper as a means for carrying into effect one or more of its enumerated powers. It defined the words 'necessary and proper' as equivalent in meaning to the words 'appropriate, plainly adapted, not prohibited, but consistent with the letter and spirit of the Constitution,' and held that the incorporation of a bank with branches was a necessary and proper means to the effectual exercise of granted power within the definition thus given. It held further that Congress was, within this limit, the exclusive judge as to the means best adapted to the end proposed, and that its choice of any means of the defined character was restricted only by its own discretion. But the question whether the particular means adopted was within the general grant of incidental powers was determined by the court. A great part of the argument was directed to the proposition that the incorporation of a bank was an exercise of incidental power within the true meaning of the terms 'necessary and proper,' as explained by the court-an argument which would have been quite superfluous if that question was to be determined finally by the legislative and not by the judicial department of the government.

We do not doubt, however, that upon the principles settled by that judgment, Congress may, in the exercise of powers incidental to the express powers mentioned by counsel, make or authorize contracts with individuals or corporations for services to the government; may grant aids, by money or land, in preparation for, and in the performance of, such services; may make any stipulation and conditions in relation to such aids not contrary to the Constitution; and may exempt, in its discretion, the agencies employed in such services from any State taxation which will really prevent or impede the performance of them.

But can the right of this road to exemption from such taxation be maintained in the absence of any legislation by Congress to that effect?

It is unquestionably true that the court, in determining the second general question, already stated, did hold that the Bank of the United States, with its branches, was exempt from taxation by the State of Maryland, although no express exemption was found in the charter. But it must be remembered that the Bank of the United States was a corporation created by the United States; and, as an agent in the execution of the constitutional powers of the government, was endowed by the act of creation with all its faculties, powers, and functions. It did not owe its existence, or any of its qualities, to State legislation. And its exemption from taxation was put upon this ground. Nor was the exemption itself without important limitations. It was declared not to extend to the real property of the bank within the State; nor to interests held by citizens of the State in the institution.

In like manner other means and operations of the government have been held to be exempt from State taxation: as bonds issued for money borrowed; certificates of indebtedness issued for money or supplies; bills of credit issued for circulation. There are other instances in which exemption, to the extent it is established in McCulloch v. Maryland, might have been held to arise from the simple creation and organization of corporations under acts of Congress, as in the case of the National banking associations; but in which Congress thought fit to prescribe the extent to which State taxation may be applied. In all these cases, as in the case of the Bank of the United States, exemption from liability to taxation was maintained upon the same ground. The State tax held to be repugnant to the Constitution was imposed directly upon an operation or an instrument of the government. That such taxes cannot be imposed on the operations of the government, is a proposition which needs no argument to support it. And the same reasoning will apply to instruments of the government, created by itself for public and constitutional ends. But we are not aware of any case in which the real estate, or other property of a corporation not organized under an act of Congress, has been held to be exempt, in the absence of express legislation to that effect, to just contribution, in common with other property, to the general expenditure for the common benefit, because of the employment of the corporation in the service of the government.

It is true that some of the reasoning in the case of McCulloch v. Maryland seems to favor the broader doctrine. But the decision itself is limited to the case of the bank, as a corporation created by a law of the United States, and responsible, in the use of its franchises, to the government of the United States.

And even in respect to corporations organized under the legislation of Congress, we have already held, at this term, that the implied limitation upon State taxation, derived from the express permission to tax shares in the National banking associations, is to be so construed as not to embarrass the imposition or collection of State taxes to the extent of the permission fairly and liberally interpreted.

We do not think ourselves warranted, therefore, in extending the exemption established by the case of McCulloch v. Maryland beyond its terms. We cannot apply it to the case of a corporation deriving its existence from State law, exercising its franchise under State law, and holding its property within State jurisdiction and under State protection.

We do not doubt the propriety or the necessity, under the Constitution, of maintaining the supremacy of the General Government within its constitutional sphere. We fully recognize the soundness of the doctrine, that no State has a 'right to tax the means employed by the government of the Union for the execution of its powers.' But we think there is a clear distinction between the means employed by the government and the property of agents employed by the government. Taxation of the agency is taxation of the means; taxation of the property of the agent is not always, or generally, taxation of the means.

No one questions that the power to tax all property, business, and persons, within their respective limits, is original in the States and has never been surrendered. It cannot be so used, indeed, as to defeat or hinder the operations of the National government; but it will be safe to conclude, in general, in reference to persons and State corporations employed in government service, that when Congress has not interposed to protect their property from State taxation, such taxation is not obnoxious to that objection.

We perceive no limits to the principle of exemption which the complainants seek to establish. It would remove from the reach of State taxation all the property of every agent of the government. Every corporation engaged in the transportation of mails, or of government property of any description, by land or water, or in supplying materials for the use of the government, or in performing any service of whatever kind, might claim the benefit of the exemption. The amount of property now held by such corporations, and having relations more or less direct to the National government and its service, is very great. And this amount is continually increasing; so that it may admit of question whether the whole income of the property which will remain liable to State taxation, if the principle contended for is admitted and applied in its fullest extent, may not ultimately be found inadequate to the support of the State governments.

The nature of the claims to exemption which would be set up, is well illustrated by that which is advanced in behalf of the complainants in the case before us. The very ground of claim is in the bounties of the General Government. The allegation is, that the government has advanced large sums to aid in construction of the road; has contented itself with the security of a second mortgage; has made large grants of land upon no condition of benefit to itself, except that the company will perform certain services for full compensation, independently of those grants; and will admit the government to a very limited and wholly contingent interest in remote net income. And because of these advances and these grants, and this fully compensated employment, it is claimed that this State corporation, owing its being to State law, and indebted for these benefits to the consent and active interposition of the State legislature, has a constitutional right to hold its property exempt from State taxation; and this without any legislation on the part of Congress which indicates that such exemption is deemed essential to the full performance of its obligations to the government.

We are unable to find in the Constitution any warrant for the exemption from State taxation claimed in behalf of the complainants; and must, therefore, answer the question certified to us

IN THE AFFIRMATIVE.


text: Talk:Thomson v. Pacific Railroad/Opinion of the Court


text: Talk:United States v. Smith (18 U.S. 153)/Opinion of the Court


text:
Merryman v. Bourne

ERROR to the Circuit Court for the District of California.

Merryman brought ejectment, in April, 1860, against Bourne and several others for a parcel of land situated within the corporate limits of the city of San Francisco, as defined by her charter of 1851. The case was tried by the court without a jury, by stipulation of parties in writing. The facts found by the court, and its conclusions of law, were as follows:1st. That on the 15th day of April, 1847, there was duly issued by Edwin Bryant, then alcalde of the town of San Francisco, to S. E. Woodworth, one of the defendants, in due form, a grant in fee of a one hundred vara lot, within the corporate limits of said town, which embraced the premises described in the complaint in this action, and which grant was registered and recorded in a proper book of records deposited in the office, or custody, or control of the recorder of the county of San Francisco, on or before the 3d day of April, A.D. 1850.

2d. That soon after this grant was issued the said S. E. Woodworth entered into possession of the said lot, and inclosed the same with a fence, and so continued in possession for some months then next ensuing.

3d. That subsequently the fence, having either fallen down or been removed by trespassers, one Fulton, claiming under a grant issued by one Colton, a justice of the peace, for said lot, entered on a portion of the lot; and thereupon Woodworth, in the year 1850, brought an action of ejectment against Fulton in the Court of First Instance, at San Francisco, to recover the possession of the premises, in which action judgment was rendered in favor of Woodworth, on which a writ of restitution issued, by virtue of which Woodworth was restored to the possession, after which Fulton appealed to the Supreme Court of the State of California, by which court the judgment was reversed and the cause remanded; whereupon a final judgment was afterwards rendered in the lower court in favor of Fulton, and by virtue of process issued thereon Fulton was restored to his possession, and he and those claiming under him continued in possession until they were ejected as hereinafter stated.

4th. That in January, 1852, the said S. E. Woodworth, by a good and sufficient deed of bargain and sale, conveyed the said one hundred vara lot, including the premises in controversy, to F. A. Woodworth, now deceased, who, in the years 1853 and 1854, instituted in the District Court of the 4th judicial district in San Francisco, actions of ejectment against some of the parties in possession of the premises claiming under Fulton, and recovered judgments on which writs of restitution were issued and served, by virtue of which F. A. Woodworth was restored to the possession of the premises occupied by the defendants in said writs, and the remaining persons in possession of said premises under said Fulton, and who were not included in said ejectment suits, on being threatened with suits by said F. A. Woodworth to recover the possession of the premises held by them, and with a view to avoid expensive litigation, acknowledged the said Woodworth's title and took leases from him; at the expiration of which leases they surrendered the possession to him, Woodworth; and the possession of said Woodworth, so obtained under writs of restitution and by surrender, was fairly and honestly acquired, without force, fraud, or surprise.

5th. That on the 12th December, 1849, Colton, justice of the peace, already mentioned, issued a grant to one Atwill for the said one hundred vara lot, and on the 11th February, 1850, Atwill conveyed to the said Fulton whatever title he acquired by the grant in and to the premises in controversy; and the plaintiff, before and at the time of the institution of this suit, had acquired and held by regular mesne conveyances all the title of Fulton.

6th. That at the time of the commencement of this action the said F. A. Woodworth, and the other defendants under a license from him, were in possession of the premises in controversy.

And as conclusions of law from the facts aforesaid, the court found:

1st. That the grant from Colton, the justice of the peace, to Atwill was void, and conveyed no title to the premises; and that the judgment in the suit of Woodworth v. Fulton was in no respect an affirmance of the validity of the title of Fulton, but only a disaffirmance of the validity of the title of Woodworth, the plaintiff in that suit, as the title was then set up and held by him.

2d. That as against the defendants in this suit, peaceably in possession of the premises in controversy, the plaintiff must recover on the strength of his own title; that the title set up by him was invalid, and the judgment aforesaid did not estop the defendants to deny the validity of said plaintiff's title.

3d. That the judgment aforesaid was a decision that the defendant Woodworth's title, as then held by him, was invalid, but it did not estop him to set up any title to said premises acquired since the said judgment.

4th. That by virtue of an act of the legislature of the State of California, entitled 'An act concerning the city of San Francisco, and to ratify and confirm certain ordinances of the common council of said city,' approved March 11th, 1858, and by virtue of the ordinances referred to in said act, and of the 5th section of the act of Congress entitled 'An act to expedite the settlement of titles to lands in the State of California,' approved July 1st, 1864, all the title of the United States, and of the city of San Francisco, in and to the premises in controversy, became and was vested in F. A. Woodworth, and by virtue thereof the defendant, S. E. Woodworth, as executor of the said F. A. Woodworth, deceased, was entitled to the possession of the premises described in the complaint and every part thereof.

Judgment was accordingly rendered for the defendants, and the plaintiffs brought the case to this court on writ of error.

Mr. Cushing (who filed a brief of Messrs. Turner, Patterson, Jarboe, and Harrison), for the plaintiff in error:

The decision by the Supreme Court of California in the case of Woodworth v. Fulton, was a final judgment, involving and determining the invalidity of the grant which is relied upon as a defence to this action. That determination was (and is) not only the law of that case but the law of that piece of property.

The defendant, Woodworth, and all claiming under him, as against Fulton and the plaintiff (here), who is in privity with him, are barred from asserting that title. The same evidence which Woodworth relied upon in Woodworth v. Fulton, i. e., the alcalde grant, is now relied on as a defence to this action. The facts in Woodworth v. Fulton, as to Woodworth's title and right of possession, are the same as in this case, and the decision in that case was upon the law of the alcalde grant. It will not be pretended that while Fulton and his tenants and privies were in possession, under the writ of restitution and judgment in Woodworth v. Fulton, they were trespassers on the said premises, or that a judgment for mesne profits could have been recovered against them? The law after a solemn determination placed them there, and they were therefore rightfully there. When did that right cease? Never by any act of theirs.

In California the action of ejectment, as at common law, was never used. There it is 'an action for the recovery of real property; or of an estate or interest therein; or for the determination in any form of such right or interest.'

The facts found as to the mode in which F. A. Woodworth obtained possession of part of the premises from Fulton's tenants his threats and compromises-show a tampering with them; and, having entered under our tenants, he himself becomes our tenant, and is estopped from asserting that the plaintiff is not entitled to possession.

Conceding that, by the later decisions of California, an alcalde grant, such as was here set up, may be valid, those decisions cannot affect the prior unreversed case of Woodworth v. Fulton, in which it was held otherwise.

So far as the act of Congress of July 1st, 1864, is relied on, it is enough to say, that it was passed more than four years after the institution of this suit. Of course, it cannot be considered.

Mr. G. H. Williams, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Merryman v. Bourne


text: Talk:Merryman v. Bourne

title: Talk:Merryman v. Bourne


text:
Merryman v. Bourne/Opinion of the Court

This case is brought before us by a writ of error to the Circuit Court of the United States for the District of California.

The plaintiff in error was the plaintiff in the court below. The suit was ejectment, brought to recover the premises described in the plaintiff's declaration. They are situated in the city of San Francisco. The parties stipulated in writing that the cause should be tried by the court without a jury, and it was tried accordingly. The court found the facts specially, pursuant to the statute which governs the practice in such cases, and they are set forth in the record. Judgment was given for the defendants, and the plaintiff thereupon sued out this writ of error. So far as the facts of the case are concerned the findings of the court are conclusive between the parties. The only questions open for our consideration are questions of law, arising upon the facts as thus presented in the record.

Three grounds are relied upon for the reversal of the judgment.

Two of them are substantially the same, and will be considered together.

It is insisted that the rights of the parties, touching the premises in controversy, were settled in favor of the plaintiff in error, in the case of Woodworth v. Fulton, reported in 1st California Reports, 295.

This is an error. Woodworth prosecuted the action. The premises were the same with those involved in the present suit. The Supreme Court of the State decided two points, and none other: (1.) That the alcalde grant to S. E. Woodworth was void for want of the requisite authority in the officer who made it-the court holding that an alcalde was incompetent to give any title; (2.) That if a recovery could be had in an action of ejectment, upon mere prior possession, no sufficient possession was shown on the part of the plaintiff. Nothing was decided or said by the court as to the title of the defendant.

In California a judgment in ejectment has the same conclusiveness as a judgment in any common law action, and in determining its effect the same principles are applied which control the result of the like inquiry in other cases. A defeated plaintiff may bring a new action upon an after-acquired title with the same effect as a stranger in whom such title might have been vested, and the former judgment will no more bar one than the other.

It appears by the finding of facts that F. A. Woodworth did bring a new action against a part of those in possession. He recovered and ousted the defendants by writs of restitution. The other parties in possession thereupon surrendered and attorned to him. He thus acquired possession of the entire premises, and he, or those claiming under him, held it when this suit was instituted.

The cases in which the judgments were recovered are not before us. Who the defendants were, and what title was developed by the plaintiff, we do not know. For all the purposes of this case the judgments must be held to have been properly rendered, and to be valid. They cannot be collaterally questioned in this proceeding.

It is insisted also that Woodworth obtained possession of a part of the premises by tampering with the tenants of Fulton, under whom the plaintiffs in error claim, and thus became such tenant himself, and hence is estopped from denying the validity of the alleged Fulton title.

The language of the finding upon this subject is as follows: 'And the remaining persons in possession of said premises under said Fulton, and who were not included in said ejectment suits, on being threatened with suits by said F. A. Woodworth to recover possession of the premises held by them and with a view to avoid expensive litigation, acknowledged said Woodworth's title, and took leases from him, at the expiration of which leases they surrendered the possession to the said Woodworth, and the possession of said Woodworth so obtained under said writs of restitution, and by surrender, was fairly and honestly acquired, without force, fraud, or surprise.'

How many such parties were in possession, what portion of the premises their possession embraced, and whether their possession under Fulton was as vendees, lessees, or otherwise, does not appear.

If they were grantees in fee the principle relied upon has no application. It is one of the incidents of subinfeudation, and was brought into the common law from the feudal system. It does not reach the relation of vendor and such a vendee. The latter holds adversely to all the world, and has the same right to deny the title of his vendor as the title of any other party.

Error is not to be presumed. It must be affirmatively shown. Doubts are to be resolved in favor of the judgment rather than against it. But if the parties were the tenants of Fulton, the fact would not avail the plaintiff in error. The principle sought to be applied is subject to several well-settled qualifications. It may be shown that the landlord's title has ceased by expiration or transfer. If the tenant be evicted, he may take a new lease from the party evicting him. It has been held, that if threatened with suit upon a paramount title, the threat, under such circumstances, is equivalent to eviction. He may, thereupon, submit in good faith, and attorn to the party holding a valid title, to avoid litigation. In such case it is incumbent upon him, and those who have profited by his submission, to show the existence and superiority of the title in question.

Upon the disavowal of the landlord's title the relation of landlord and tenant ceases, and, as between them, the tenant becomes a trespasser. The statute of limitations begins to run, and the landlord may sue at once to recover possession. He need not wait for the end of the leasehold term.

In the case under consideration, Woodworth had recovered upon the adverse title against a part of those in possession, and threatened suit against the others. They yielded, to avoid the inevitable adverse consequences of a contest. This they had a right to do. The court found that the possession was obtained by Woodworth 'fairly and honestly,' 'without force, fraud, or surprise.' This is conclusive as to the integrity and validity of the transaction, and brings the case within the authorities referred to. The relation of landlord and tenant between Fulton and those parties, if it subsisted before, was thus extinguished.

Woodworth claimed title under an alcalde grant of the 15th of April, 1847. Fulton, under a grant from a justice of the peace, of the 21st of December, 1849. It is not claimed that the latter grant is of any validity.

Emanating, at the time it bears date, from such a source, it is as if it came from any other person unauthorized to give it, and did not carry with it even color of title. It is utterly void. It may, therefore, be laid out of view, as an element in the case of no moment.

The conquest of California by the arms of the United States is regarded as having become complete on the 7th of July, 1846. On that day the government of the United States succeeded to the rights and authority of the government of Mexico. The dominion of the latter sovereignty was then finally displaced, and succeeded by that of the former. Before that time, the pueblo or village of San Francisco existed, and under the laws of the country was entitled to the territory within certain prescribed limits, known as pueblo lands. It had also an ayuntamiento or town council, and an alcalde. The alcalde was the chief executive officer of the pueblo, and, as such, had authority to make grants of the pueblo lands.

The exercise of this function was subject to the authority lodged in the ayuntamiento, and to the still higher authority of the departmental governor and assembly. In the case of Woodworth v. Fulton, it was held by the Supreme Court of the State that, from the time of the conquest, these pueblo lands, so far as they had not been granted to individuals, became a part of the public domain of the United States, and, as such, subject to the exclusive control and disposition of Congress. This doctrine was subsequently overruled in the case of Cohas v. Raisin. It was there held that the conquest had no such effect, but that the lands continued to be the public property of the municipality, as before the war; and that the laws of Mexico relating to the subject continued in force until changed by the legislative authority of the State. It was further held that an alcalde grant, made after the conquest, was to be presumed valid, and was competent to convey title. These doctrines are now firmly established as a part of the rules of property of the State.

But it is insisted, in behalf of the plaintiffs in error, that these adjudications cannot affect the prior unreversed judgment in the case of Woodworth v. Fulton, in which the rulings were otherwise. Conceding this to be so, the result of this case must still be against the plaintiff in error. The common council of San Francisco, by an ordinance of the 20th of June, 1855, known as the Van Ness ordinance, relinquished all her rights in the pueblo lands of the city to the parties respectively within the category of Woodworth, and to those claiming under them by competent mesne conveyances. This ordinance was confirmed by an act of the legislature of the State of the 11th of March, 1858.

This gave to Woodworth, and those claiming under him, a new and after-acquired title, upon which, according to the later adjudications referred to, he was entitled to recover, and to an action upon which the prior judgment in Woodworth v. Fulton was not and could not be a bar. The act of Congress of July 1st, 1864, was a further confirmation of the Woodworth title, and operated in the same manner as the ordinance of the city council and the act of the legislature before mentioned.

It is said that the act of Congress was passed after the institution of this suit, and cannot, therefore, be considered. To this there are two answers. It is by no means clear that the act was necessary to the completeness and validity of the title in question. The later adjudications referred to, made before the passage of the act, held by necessary implication that it was not. But if it were necessary, we have no difficulty in holding that it took effect by relation, as of the time when the act of the legislature confirming the ordinance of the council was passed.

We think the facts found by the court below fully sustain the judgment given, and it is

AFFIRMED.

title: Merryman v. Bourne/Opinion of the Court


text: Talk:Merryman v. Bourne/Opinion of the Court


text:
Ex Parte Morris and Johnson

THIS was a petition presented by Mr. P. Phillips, in behalf of Morris and Johnson, for a writ of mandamus against Richard Busteed, judge of the District Court of the United States for the Middle District of Alabama.

Mr. Justice SWAYNE stated the facts, and delivered the opinion of the court.

title: Ex Parte Morris and Johnson


text: Talk:Ex Parte Morris and Johnson

title: Talk:Ex Parte Morris and Johnson


text:
Ex Parte Morris and Johnson/Opinion of the Court

The United States filed an information in the District Court for the Middle District of Alabama, against certain bales of cotton, which it was alleged were liable to seizure and confiscation, and had come into the possession of the petitioners. The court entered a personal decree against them for the value of the cotton. They brought the case here by appeal. This court reversed the judgment and remanded the cause, with directions to the District Court 'to cause restitution to be made to the appellants of whatever they have been compelled to pay under that decree.' A mandate to this effect was sent to the District Court. Nothing effectual has been done under it. The petition, which is the foundation of this proceeding, was filed in this court. The district judge waived the issuing of a rule to show cause, and submitted a return by which the following facts appear.

After the rendition of the decree the judge made an order directing the money, when collected, to be distributed as therein prescribed. Five per cent. was to be paid to F. Q. Smith, the attorney of the United States; one per cent. to John Hardy, the marshal; one per cent. to E. C. F. Blake, the clerk of the court; and one-half of the entire amount, less costs and charges, to E. R. McCrosky, the informer. The other half was to be held in the registry of the court, subject to the order of the Secretary of the Treasury. A ''fi. fa.'' was issued on the decree, and the full amount collected from the petitioners. The mandate of this court was presented to the District Court, and proceedings instituted to enforce the order of restitution. Written answers were filed by the parties who were brought before the court.

McCrosky, the informer, was beyond the limits of the State of Alabama. He did not appear or answer. The district attorney admitted that he had received the amount adjudged to him; but insisted that he had a right to hold it. In his oral examination before the court it was proposed to show by his testimony that he had received a large part of the money paid to the informer. This was objected to by his counsel, and the objection was sustained by the court.

The clerk answered that he had received nothing under the order.

The marshal answered that after paying Smith and McCrosky, he had deposited the residue, less the costs of the case, in the First National Bank of Selma, pursuant to instructions from the Interior Department. That bank has since failed, and is now in the hands of a receiver. The receiver's answer is in the case, but requires no particular notice.

Under these circumstances the district judge was at a loss how to execute the mandate heretofore sent to him, and submits himself to this court for further instructions.

The duty of the District Court is simple and obvious, and its power ample. The mandate of this court must be obeyed as far as practicable. All the distributees within reach of the territorial jurisdiction of the court, except the United States, must be required by the proper order to refund what they have received. If they fail to do so, they should be dealt with promptly, by attachment, for contempt. This will in no wise interfere with any other remedy to which the petitioners may be entitled, except that they cannot be paid twice.

If Smith, the district attorney, received from McCrosky any part of the fund ordered to be paid to the latter, the rights of the petitioners followed the money into his hands, and he is liable for it. #fn-s-s *  *  He should have been required to disclose the facts touching that subject, and if they were as the petitioner sought to show, he should have been required to restore the money so received, as well as that which was paid to him under the order of distribution.

McCrosky being beyond the reach of the court, no order can be made in relation to him. He will be amenable to a suit at law wherever he may be found.

The circumstances of the marshal's deposit should be inquired into. If the money in question was deposited in the Bank of Selma, pursuant to instructions from the proper authority, he is exonerated. In that event, the proper certificate should be given by the court to the petitioners, and they must be left to seek redress in the appropriate manner. The court has no authority to order the United States to refund.

A writ of mandamus will be sent to the District Court, directing it to proceed to execute the mandate of this court

IN COMFORMITY TO THIS OPINION.


text: Talk:Ex Parte Morris and Johnson/Opinion of the Court


text:
United States v. Ayres

THIS case was an appeal from the Court of Claims, and the matter here reported presents the case of two motions, made at two different times, for the defendant in error to dismiss it; made the first time under one state of facts, and the second time under another and new state; and also a motion on the other side, under the new state of facts, for a special action by this court hereinafter stated. The case in its whole history was thus:

One Ayres brought suit against the United States in the Court of Claims, and obtained a judgment for the amount claimed by him. An appeal was taken by the government and was now pending here. While the appeal was thus pending, the counsel for the United States made a motion in that court for a new trial. This motion for the new trial was made under an act of June 25th, 1868, in these words:

'That said Court of Claims, at any time, while any suit or claim is pending before or on appeal from said court, or within two years next after the final disposition of any such suit or claim, may, on motion, on behalf of the United States, grant a new trial on any such suit or claim, and stay the payment of any judgment therein, upon such evidence (although the same may be cumulative or other) as shall reasonably satisfy said court that any fraud, wrong, or injustice in the premises has been done to the United States. But until an order is made staying the payment of the judgment, the same shall be payable, and paid as now provided by law.'

While the motion for a new trial was thus pending in the court below, and before any action upon it by that court, Mr. Hughes, in this court, for the defendant in error, Ayres, moved to dismiss the appeal, insisting on the part of the claimant that the two proceedings, the one of appeal, and the other of motion for a new trial, were inconsistent, and not in accordance with a reasonable interpretation of the act; that the counsel of the United States was bound to elect which of the two remedies he would adopt, and having, in this instance, elected the motion for a new trial, the appeal should be dismissed.

Mr. J. S. Hale, special counsel for the United States, opposed the motion, contending that the act allowed both proceedings at the same time.

And now, in this condition of the case,

Mr. Justice NELSON delivered the first opinion of the court in the matter.

title: United States v. Ayres


text: Talk:United States v. Ayres

title: Talk:United States v. Ayres


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

'We shall not now undertake to give a construction of the several provisions of this section, which are new and anomalous, but shall leave that until cases of actual inconsistency or conflict may arise between the two modes of proceeding. So far as the present question is concerned, there is no great difficulty. The act expressly provides that the motion for a new trial may be made in the court below while the appeal from the judgment there is pending in this court. So far the section is clear; and, although it may be regarded as giving to the government a considerable advantage in the litigation, the power to give it by Congress, cannot, we suppose, be doubted.'

The motion to dismiss was accordingly DENIED.

Soon after this action by this court, the Court of Claims granted the new trial which the government had asked for, and stayed payment of the judgment until the final hearing of the cause or the further hearing of the court.

Mr. Hughes now came forward again, asking, for the claimant, to have the appeal dismissed, the ground now assigned being that a new trial had been actually granted Mr. Hale, opposing this motion in the form asked, presented on the other hand, for the government, a motion asking that the record in the cause pending here might be remitted to the court below for further proceedings in that court, reserving all questions that might arise in the judgment brought up by the appeal, or for such other order as the court might deem proper.

And now, on this new state of things, after argument at the bar and advisement,

Mr. Justice NELSON delivered the opinion of the court.

The case stands thus: the petitioner has obtained a judgment in the court below against the government, from which an appeal has been taken, and is pending in this court. A new trial has since been granted by the court below, and the payment of the judgment stayed. The act of Congress furnishes no solution to this anomaly.

We are of opinion the granting of the motion to dismiss the appeal, on the ground that the court has granted a new trial in the cause under the act of Congress, will furnish the best solution of the embarrassments in which the parties find themselves involved. It is quite apparent that the counsel for the government is desirous to retain the appeal notwithstanding the order for a new trial, under an impression that for some unknown or unanticipated occurrence in the proceedings in the court below, the new trial might fall through, and never take place; and, for the like reason, the counsel for the petitioner desires to have the appeal terminated, so as not to be available to his adversary. But, it is quite clear, that the order granting the new trial has the effect of vacating the former judgment, and to render it null and void, and the parties are left in the same situation as if no trial had ever taken place in the cause. This is the legal effect of the new trial by a court competent to grant it. There is no reason, therefore, for continuing any longer the case on our docket. The motion to dismiss the appeal is

GRANTED.


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


text:
Worthy v. The Commissioners

ON motion to dismiss, the case was this:

Section 3 of the 14th amendment to the Constitution ordains that no person shall hold office under any State, who having previously taken an oath as an executive officer of any State to support the Constitution of the United States, has engaged in rebellion against the same, or given aid and comfort to the enemies thereof; and a statute of North Carolina enacts that no one disqualified under that amendment should hold office in North Carolina.

These provisions being in force, it appeared that Worthy, the plaintiff in error, having received a majority of the votes cast at an election of sheriff, held in Moore County, North Carolina, presented his bond to the defendants in error, who were commissioners of the county, and offered to qualify under the law of the State. A majority of the commissioners refused to receive his bond or permit him to qualify as sheriff, on the ground that he had been sheriff of the county before the rebellion; that the office of sheriff was an executive office; that Worthy, as former sheriff, had taken an oath to support the Constitution and had afterwards aided in the rebellion, and that he was thus disabled from holding the office by the already mentioned 14th amendment, and was, moreover, prohibited, because of that disability, be an act of the legislature of North Carolina, from qualifying under that act, and from holding office in that State.

Werthy thereupon filed his petition in one of the State courts of North Carolina, for a mandamus against the commissioners. His petition set forth that the laws of North Carolina created the office of sheriff; that if provided a particular mode of election; that by such mode he was duly elected; that it was necessary to give a certain bond, and that he was ready to give the bond, and was therefore entitled. But he did not claim or set up in any way any title, right, privilege, or exemption, under any clause of the Constitution, or under any statute or treaty of the United States, or commission held under them.

The decision of the county commissioners, rejecting him, was affirmed by the judgment of the Supreme Court of the State, and thereupon he took this writ of error, conceiving the case to fall within the 25th section of the Judiciary Act, which gives this court a right to review the judgments of the highest State courts, in certain cases, including those—

Where the validity of a statute or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, is drawn in question, and the decision is in favor of such their validity; or

'Where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission.'

Mr. Boyce now moved to dismiss the writ for want of jurisdiction, on the ground that the plaintiff in error had not set up below any claim under the Constitution, laws, or authority of the United States, but on the contrary had claimed exclusively under the law of North Carolina.

Mr. Scheffer, contra:

The 1st section of the 14th amendment of the Constitution of the United States, declares that, 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.'

The Supreme Court of North Carolina has decided that a sheriff is an executive officer, and that the right to hold office by a person formerly a sheriff, and afterwards engaged in rebellion, is taken away by the 3d section of the 14th amendment. This is an assault upon an immunity and privilege granted to us by the 1st section of that same amendment. We have a right to know how far the guaranty of the 1st section extends; to complain at Washington that it has been insufficiently administered at Raleigh. Cases involving rights that are protected by the Constitution, come within the appellate jurisdiction of the Supreme Court, no matter whence the rights may spring.

The CHIEF JUSTICE delivered the opinion of the court.

title: Worthy v. The Commissioners


text: Talk:Worthy v. The Commissioners

title: Talk:Worthy v. The Commissioners


text:
Worthy v. The Commissioners/Opinion of the Court

It is manifest that this court has no jurisdiction of the present cause. There was no decision by the Supreme Court of North Carolina against the validity of any treaty or act of Congress, or authority exercised under the United States; nor in favor of the validity of a statute of, or authority exercised under a State, and alleged to be repugnant to the Constitution, treaties, or laws of the United States.

It is true that, in the brief of the counsel for the plaintiff, it is urged that the right of the plaintiff is protected by the 1st section of the 14th amendment; but this right does not appear to have been set up, or specially claimed in the State court; and this is essential to jurisdiction here.

We have no authority, therefore, to examine the question presented by the record; but must allow the motion of the defendants in error, and dismiss the cause for

WANT OF JURISDICTION.


text: Talk:Worthy v. The Commissioners/Opinion of the Court


text:
United States v. Merrill

APPEAL from the Court of Claims.

Mr. Talbot, for the United States; Mr. Chipman, contra.

Mr. Justice CLIFFORD stated the case and delivered the opinion of the court.

title: United States v. Merrill


text: Talk:United States v. Merrill

title: Talk:United States v. Merrill


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

Congress provided, by the fourth section of the act of the third of March, 1865, that all officers of volunteers now in commission, below the rank of brigadier-general, who shall continue in the military service to the close of the war, shall be entitled to receive, upon being mustered out of said service, three months' pay proper.

Subsequent to the passage of that act, to wit, on the thirteenth of July, 1866, Congress passed another act upon the same subject, in which it is enacted that the fourth section of the prior act shall be so construed as to entitle all officers of volunteers to the three months' pay proper provided for therein, who were in service on the day when that act was passed, and whose resignations were presented and accepted, and who were mustered out at their own request, or otherwise honorably discharged from the service, after the ninth of April of that year.

Prior to the month of August, 1861, the appellee was an officer in the regular army of the United States, and on the twenty-third of that month he was commissioned as a colonel of the second regiment of Missouri cavalry, which was a volunteer organization. He remained in such service until the fourteenth of December, 1865, when he was honorably discharged from the volunteer service, and resumed his duty and rank in the regular army.

None of those facts are controverted, and the appellee, by virtue of the premises, claimed that he was entitled to receive the sum of three hundred and thirty dollars for the three months' pay proper as such military officer, because he was in service on the day when the first-named act was passed, notwithstanding the fact that at the time he was discharged from the volunteer organization in which he was commissioned as colonel, he resumed his duty and rank and became entitled to his pay and emoluments as an officer in the regular army.

Although he was never mustered out of the military service of the United States, still he claimed three months' pay proper by virtue of his discharge from the volunteer organization, and accordingly applied to the proper officer of the department for the payment of the amount so claimed to be due, as provided in those acts of Congress; but the application was rejected because he was still in the military service under existing laws.

Payment being refused by the proper officers of the department, he filed his petition in the Court of Claims, setting forth the foregoing facts, and insisted that when he ceased to be an officer of volunteers in the manner prescribed by law he ceased to be in the military service as an officer of such volunteer organization, and that an honorable discharge from such volunteer service as much entitled him to the three months' pay proper as if he had been discharged altogether from the military service of the United States.

His theory of the law is that it bestowed a gratuity upon officers of volunteers, and that it makes no difference that he found himself immediately transferred to another branch of the military service by virtue of a commission in the regular army which he held before he was commissioned as colonel of volunteers and throughout the entire period of that service; but it is not possible to concur in that proposition, as it seems much more reasonable to suppose that the object which Congress had in view was to provide for the loss to which the volunteer officers, when discharged from the military service, were exposed for the want of employment before they would be able to resume, to any considerable extent, their accustomed avocations in civil life. Most of the officers of that class left civil occupations to engage, for a period of uncertain duration, in the military service of the country, and the obvious purpose of that provision was that when they came to be discharged they should not be left without any compensation during the period which, in all probability, would elapse before they would be able to establish themselves in remunerative business pursuits.

Grant that the allowance was intended as a gratuity, still it does not follow that it was intended as double pay, or to embrace any officer who was to remain in the regular service. Read separately from the amendatory provision the fourth section of the first-named act describes three conditions, all of which must concur in order to establish the right to that allowance: (1.) That the claimant was an officer of volunteers in commission at the date of that act. (2.) That he continued in the military service to the close of the war. (3.) That he was honorably mustered out of the said service prior to the application, which means unquestionably that he was honorably mustered out of the military service of the United States.

Continuance in the service to the close of the war was essential under that provision; but the subsequent act provides that the applicant shall be deemed to be entitled to the allowance if his resignation was presented and accepted, and he was mustered out at his own request, or was otherwise honorably discharged from the service, after the month of April of that year.

The word service, as used in that act, means, beyond question, the military service of the United States, and it is equally clear that no such officer is entitled to that allowance unless it is shown that he was mustered out of the military service of the United States, or was otherwise honorably discharged from that service subsequent to the time specified in the amendatory act.

By the finding in the court below it appears that the appellee was honorably discharged from the volunteer service; but the same finding shows that he, at the same time, resumed his duty and rank in the regular army, which is totally inconsistent with the condition prescribed in the act of Congress, that he must have been mustered out of the military service of the United States. He was honorably discharged from the volunteer organization, but that discharge did not terminate his connection with the military service of the country under his antecedent commission. On the contrary, he became thereby entitled to the pay and emoluments due to his rank as an officer in the regular army the moment his connection ceased with the volunteer organization.

None of the reasons which induced Congress to make the provision under consideration exist in the case of the appellee, as he has never been out of public employment for a moment since he accepted his commission in the regular army, and has no occasion to desire to re-engage in business pursuits.

DECREE REVERSED, and the cause remanded, with directions to

DISMISS THE PETITION.


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


text: Irvine v. Irvine

title: Irvine v. Irvine


text: Talk:Irvine v. Irvine

title: Talk:Irvine v. Irvine


text:
Irvine v. Irvine/Opinion of the Court

ERROR to the Circuit Court for the District of Minnesota. The case was thus:

Benjamin Irvine brought ejectment against his brother John Irvine, to recover from the said John possession of certain lots. He put in evidence a patent (founded on a preemption certificate) from the United States to him, dated 8th October, 1849, and embracing the lots in controversy. The patent recited full payment by the said Benjamin, 'according to the provisions of an act of Congress of the 24th of April, 1820.'

The defendant then offered in evidence a deed of conveyance from the plaintiff to him, dated 8th May, 1849, of the same premises as were described in the patent. To this evidence the plaintiff objected, because the deed, having been executed before the patent was issued, did not convey the estate which the plaintiff acquired by the patent.

[To understand the ground of the plaintiff's objection here, and particularly his first request, hereafter mentioned, for instructions to the jury, it is necessary to state that the 12th section of an act of Congress, of September 4th, 1841, referring to pre-emptive rights conferred upon actual settlers (and which apparently re-enacted one of May 29th, 1830, which had been modified by one of January 23d, 1832 ), thus prescribed:

'That prior to any entries being made under and by virtue of the provisions of this act, proof of the settlement and improvement thereby required shall be made to the satisfaction of the register and receiver of the land district in which such lands may lie,. . . and all assignments and transfers of right hereby secured prior to the issuing of the issuing of the patent shall be null and void.'

The court overruled the objection of the plaintiff, and admitted the deed offered; the plaintiff's counsel excepting.

The defendant having further put in evidence, under objection from the plaintiff's counsel, the certificate of the register of the contents of the records of his office, rested his case.

The plaintiff was then himself examined as a witness, and stated that when he executed the deed of May 8th, 1849, he was under 21 years of age, and that he was really forced by his brother, the defendant, who was 16 years his senior, to execute the instrument. There was no doubt as to the plaintiff's infancy at the time when he executed this deed. It appeared that the plaintiff had made pre-emption of the land; that he paid for it on the 21st of February, 1849, and took an informal receipt for it of that date, which was subsequently replaced by a formal duplicate, but of what date did not appear.

The plaintiff then rested, and the defendant put in evidence certain evidence, which tended to show that he had employed the plaintiff as his agent to enter the land for him, and that he, the plaintiff, had paid for it with money of the defendant intrusted to him for that purpose, entering it in his own name, and promising to convey it to the defendant.

He also put in evidence a written lease, dated 8th day of May, 1854, from him, defendant, John Irvine, to the plaintiff himself and two other persons doing business as a firm, of a certain warehouse, situated on a parcel of the land described in the patent, and in the deed of the 8th May, 1849, but not on any part of the premises described in the declaration. There was also evidence of the plaintiff's having been in the neighborhood of the property when valuable improvements were put on a portion of it, though not the part for which this suit was brought; and also some other evidence set up to show affirmance.

The defendant then rested.

Upon the case already stated, and with the statute of September 4th, 1841, presented to the court, the plaintiff requested the court to give to the jury the instructions as hereinafter numbered, to wit:

1st. That the deed in evidence from the plaintiff to the defendant, dated 8th May, 1849, did not pass the estate acquired subsequently under the patent from the government to the plaintiff, even assuming the majority of the plaintiff at the time of its execution.

But the court declined so to instruct the jury.

2d. If the jury find that the said deed was executed by the plaintiff while under age (and the evidence is uncontroverted on this point), the said deed is void.

But the court declined so to instruct the jury.

4th. A deed of land executed by an infant may be avoided by the infant after he becomes of age, at any time within the period of the statute of limitations, which in this State is twenty years; that is, he may in such case in this State avoid his deed at any time within twenty years after he becomes of age.

And the court instructed the jury that such was the law, unless the infant had previously ratified the deed.

5th. Such avoidance may be by another deed of same land to another grantee after the infant becomes of age, or it may be by suit, or by other similar unequivocal act.

And the court so instructed the jury.

6th. In case of sale or deed of real estate by an infant, there must be some act of affirmance by him after he becomes of age, as solemn in character as the original act itself; otherwise the deed may be avoided by him at any time before the statute of limitations bars him. Mere acquiescence, however long, if short of the statute of limitations, is not sufficient. The act of confirmation must be of such solemn and undoubted nature as to establish a clear intention to confirm the deed after a full knowledge that it was avoidable.

The court declined to instruct the jury that the act of affirmance must be as solemn in character as the original deed itself; but stated that mere acquiescence was not of itself sufficient evidence of affirmance, and that the ratification or affirmance must be of a clear and unequivocal character, showing the intention of the infant to confirm his deed.

7th. There is no evidence whatever of any affirmance of confirmation of the deed in this case by the plaintiff after he became of age, of the nature and character required. The evidence in this case shows no affirmance of this deed by the plaintiff after he became of age.

But the court declined so to instruct the jury.

8th. No agency or trust binding on the plaintiff has been shown to have been created or to have existed between the plaintiff and defendant during the infancy of the former. No contract is binding on the infant made during his infancy except for necessaries.

The court instructed the jury that the latter portion of this request was true, and that although an agency or trust could not be created binding upon the infant, still if there was subsequent ratification by the infant of acts done during his infancy he would be bound by them.

9th. Even had the plaintiff been of full age when the defendant gave him the money to enter the land, as the defendant testifies, and directed him, as the defendant testifies, to enter the land for defendant, and the said plaintiff had entered the land in his own name, still the defendant could not have compelled in law or equity the plaintiff to convey the property to said defendant.

The court declined to so instruct the jury upon the ground that it was admitted by the defendant that the plaintiff was not of full age when the money to enter land was given him, and consequently that this request had no application to the case in hand.

10th. No trust has been shown in this case between the parties to this suit by which the defendant could have enforced a conveyance of the land from the plaintiff to him.

The court declined to instruct the jury as above as above requested, but said that there had been evidence on the part of the defendant going to show that the plaintiff was employed to enter the land in question, and although an infant, as he afterwards affirmed, his acts would be bound by it.

11th. Even if the plaintiff had entered the land as agent of the defendant, and had entered it in his own name contrary to instructions of his principal, yet if the defendant afterwards approved of such entry, such approval was a ratification of said entry.

The court instructed the jury that this might be true, but that the evidence showed that the infant had conveyed the land after entry by him, and that it was for the jury to say whether he had ratified his deed.

12th. No acts of affirmance by the plaintiff have any bearing in this case, except they relate to the property described in the declaration, and all evidence on this point, except as to the lots described in the declaration, must be excluded and disregarded by the jury.

But the court declined so to instruct the jury.

To these refusals and instructions the plaintiff excepted.

The court then further instructed the jury as to the 4th, 5th, and 6th of the said instructions so prayed by the plaintiff as aforesaid:

The question here is not whether there has been an avoidance. The defence is that the deed has been ratified by the plaintiff. I am of the opinion that the ratification should be, if not equally solemn, of a clear and unequivocal character, showing the intention of the party to confirm the deed. An avoidance may be by a deed to a third party, or, as held in this courtry, in other ways. But the deed from the plaintiff to the defendant was not void; it was simply voidable, and passed the title absolutely, until by some adequate act he affirmed it. The question is, Has it been disaffirmed or ratified by the plaintiff since he came of age? All the facts in proof, such as leasing part of the property, remaining in the vicinity a long time without asserting his claim while valuable improvements were being put on the property, are to be considered by the jury in deciding whether there has been a ratification by the plaintiff; but mere acquiescence does not amount to a ratification. The authorities are somewhat conflicting as to what is necessary to constitute an avoidance. Lord Lyndhurst was of opinion that a deed was necessary to avoid a deed given while under age. I think that this doctrine is perhaps sound, and ought to have been held in this country; but it has been held in this country that an infant may avoid his deed by going upon the land, or by bringing suit, &c. And with the foregoing qualification the 6th instruction asked by the plaintiff's counsel is correct, with the exception that the counsel has reversed the application of the law in his proposition. The act of avoidance and not the ratification is what the law requires to be equally solemn with the conveyance.

To which instructions, in so far as they differed from, or changed or qualified the instructions prayed for by the plaintiff, the plaintiff excepted.

And the court further instructed the jury that there had been evidence on the part of the defendant going to show that the plaintiff was employed as an agent to enter the land in question, and although an infant, if he afterwards affirmed his agency, he would be bound by the terms of such agency. To which instruction the plaintiff's counsel excepted.

Verdict and judgment having gone for the defendant, the plaintiff brought the case here on error.

The court erred in admitting the deed from plaintiff to defendant of 8th May, 1849. It could not convey the estate and title subsequently acquired by the plaintiff under the patent. If it be regarded as an attempt to convey or assign the right secured to the plaintiff by his pre-emption of this land it was void under the 12th section of the act of Congress of September 4th, 1841, by virtue of which the preemption was made. If thus void as coming within the prohibition of this section 12, the covenants in it would be inoperative for any purpose. A deed void in its granting part cannot certainly be operative as a conveyance by virtue of its covenants.

The only view in which the lease and other similar evidence could have been offered, was that it tended to prove the confirmation of the deed of the 8th May, 1849, by the plaintiff after he became of age. But it is no evidence of such confirmation, because-

1st. It does not affect the property described in the declaration.

2d. In the case of sale or deed of real estate by an infant, the sale is void, and the act of affirmance by him after he becomes of age must be as solemn in character as the original act itself.

The learned counsel then took up each of the requests to the court, and each of the instructions refused; observing, in conclusion, that the whole case resolved itself into two questions.

'1. Was the deed of 8th May, 1849, void, by reason of its contravening the 12th section of the act of Congress, of September 4th, 1841; OR, ineffectual to pass the subsequently acquired title and estate of the plaintiff under the patent of 8th October, 1849?

'2. If the deed was merely voidable, by reason of the infancy of the grantor, did he, after he came of age, affirm the deed?'And he conceived that he had shown that the first question should be answered in the affirmative, and the second in the negative.

No opposing counsel.

Mr. Justice STRONG delivered the opinion of the court.

Though the exceptions found in this record are numerous, the questions which they present are few. If the answers given to the requests of the plaintiff for instructions to the jury were correct, it is certain that the objections made by him to the admission of evidence were unfounded. Those objections were all based upon the assumption that the evidence offered was immaterial and irrelevant to the issue. Whether the assumption was well grounded will be seen when we consider the law of the case as expounded in the charge to the jury.

The plaintiff submitted twelve propositions, which he asked should be given to the jury as instructions. The first was in substance that the deed of May 8th, 1849, from the plaintiff to the defendant, did not pass the estate acquired by the plaintiff under the patent from the United States made subsequently, to wit, on the 8th October, A.D. 1849, and that it would not have passed the estate had the plaintiff attained his majority before the deed was made. It is a general rule, that when one makes a deed of land, covenanting therein that he is the owner, and subsequently acquires and outstanding and adverse title, his new acquisition enures to the benefit of his grantee, on the principle of estoppel. As the deed of the plaintiff in this case contained an assertion that he was well seized in fee, and had good right to sell and convey in fee, it would not be difficult, were it necessary, to show that in taking the patent he was in law acting for his grantee. But it is not necessary to rely upon that principle. The evidence in the case was, that prior to his deed to the defendant, to wit, on the 21st of February, 1849, he had bought the land from the government, and had paid all the purchase-money. The patent subsequently given to him was, therefore, not a new acquisition of title. It was only a confirmation of the right which he had acquired before the deed was made.

But it is argued, on behalf of the plaintiff, that the deed was inoperative, because it was forbidden by the 12th section of the act of Congress of September 4th, 1841, which granted pre-emption rights, and enacted that any grant or conveyance made before the entry of the land shall be null and void, except in the hands of bon a fide purchasers for a valuable consideration. To this it may be answered, that neither that act nor the acts of May 29th, 1830, and January 23d, 1832, have any application to the present case. They relate to pre-emptive rights conferred upon actual settlers. The plaintiff did not enter the land in dispute under either of these, and no act of Congress deprived him of the power to sell and convey after he had made an entry and paid all the purchase-money, though before he had received his patent. The court could not then have affirmed the proposition which the plaintiff submitted.

His second point was that the deed was void because made by the plaintiff during his minority. This the court refused to affirm. Whatever may have been the doubts once entertained, it has long been settled that the deed of an infant, being an executed contract, is only voidable at his election; that it is not void. It operates to transmit the title. And there are some cases, of which the present, in one aspect of it, may possibly have been one, in which such a deed is held to be not even voidable. They are those in which the infant, by making the conveyance, does only what the law would have compelled him to do. Whether this was such a deed need not be considered, for conceding that it was not, clearly it was not void.

The third proposition of the plaintiff does not appear in the record.

The fourth and fifth were affirmed, and the sixth was answered correctly.

The minority of the plaintiff at the time when he made his deed to the defendant was an admitted fact, and this suit was an attempt to avoid the deed. The evidence disclosed nothing that could amount to an avoidance of the deed before the suit was brought; nothing which the law recognizes as an act of avoidance. The struggle at the trial was over the question, whether the plaintiff had not confirmed the deed after he came of age? He contended, and he asked the court so to instruct the jury, that an act of affirmance must be of as solemn a character as the deed itself. This instruction the court declined in terms, stating, however, that mere acquiesence, however long, if short of the statutory period of limitations, is not sufficient, and that an act of confirmation, if not equally solemn with the deed, must be of such a solemn and undoubted nature, of such a clear and unequivocal character, as to establish a clear intention to confirm the deed after a full knowledge that it was voidable. Certainly this was all that the plaintiff had a right to demand. There is a well-recognized distinction between the nature of those acts which are necessary to avoid an infant's deed, and the character of those that are sufficient to confirm it. The authorities frequently assert that such a deed cannot be avoided except by some act equally solemn with the deed itself. Some assert that it cannot be done by anything short of an entry; and this whether the deed operates by livery of seisin, or transmits the title by virtue of the statute of uses. Others hold that it may be avoided, without a previous entry, by another deed made to a different grantee. But all the authorities recognize the doctrine, that acts which would be insufficient to avoid such a deed may amount to an affirmance of it. While generally it has been held that mere acquiescence, though long continued, will not suffice; yet even that, in connection with other circumstances, may establish a ratification. And, where an infant had sold land, and after coming of age saw the purchaser making large expenditures in valuable improvements upon the land sold, and said nothing in disaffirmance for four years (facts very like those appearing in this case,) it was held that the circumstances were not such as to excuse this long silence, and there being evidence that after he had reached twenty-one years of age he has said that he had sold the land, had been paid for it, and was satisfied, and had authorized an offer of purchase it, it was ruled, as a legal conclusion, that he had confirmed his deed. So in Wallace's Lessee v. Servis, it was adjudged that an infant's acquiescence in his deed for four years after he came of age, in view of extensive improvements made upon the property, amounted to a confirmation.

There is reason for this distinction between the effect of acts in avoidance and that of acts of confirmation. We have seen that an infant's deed is not void; it passes the title of the land to his grantee. Now, if the deed be avoided the ownership of the land is retransferred. The seisin is changed. There is fintness in a rule that title to land shall not pass by acts less solemn than a deed; that its ownership shall not be divested by anything inferior to that which conferred it. On the other hand a confirmation passes no title; it effects no change of property; it disturbs no seisin. It is therefore itself an act of a character less solemn than is the act of avoiding a deed, and it may well be effected in a less formal manner.

By the seventh proposition the court was asked to instruct the jury that there was no evidence of any confirmation of the deed by the plaintiff after he came of age, and that the evidence showed no affirmance. Whether the evidence showed an affirmance or not was a question for the jury and not for the court, if there was any tending to show it; and that there was is beyond doubt. Had there been nothing more than the lease of a part of the land conveyed, a lease made by the defendant to the plaintiff, with others, on the 8th of May, 1854, it would have been impossible for the court to have withheld from the jury the inquiry whether the plaintiff had not confirmed his deed, or to have declared there was no evidence of confirmation. True the lease was not for the particular parts of the land conveyed by the deed which are the subjects of the present suit, but it was still very significant. The defendant held the part demised by the same title by which he claims the lots now in dispute, to wit, under the plaintiff's deed. He held by no other right. If the deed was effective to assure to him the premises demised, it was equally so to protect him in the ownership of the lots, for it conveyed the whole property, the lots and the demised premises. When, therefore, the plaintiff signed and sealed the lease, he acknowledged by a solemn act that the defendant rightfully held under the deed. It might well have been inferred from this that he intended to assent to the conveyance he had made. There was other evidence of ratification, but this suffices to show that the plaintiff's proposition was inadmissible.

The eighth and tenth points relate to some evidence that had been given, tending to show an employment of the plaintiff by the defendant to enter the land for him, and that the plaintiff paid for it with the defendant's money, furnished to him for that purpose. The court was asked to instruct the jury that no trust or agency had been shown which could have been enforced. We do not perceive how the court could rightfully have affirmed what was asked. An infant may undoubtedly be a trustee, and be compelled to execute his trust. Especially, if after he came of age, he affirms the trust, and ratifies the acts which he did in accordance with the trust, will it be out of his power to deny that any trust ever existed. But we need not discuss this subject; it is of small importance of the case. It is enough that, in our opinion, it was not for the court to deny that there had been a resulting trust, and had they denied it the plaintiff would have gained nothing. The controlling question, the one submitted to the jury, was whether he had conveyed his interest, whatever it might have been, to the defendant, and whether he had confirmed his conveyance after he attained his majority.

The ninth request for instruction presented an abstract question not raised by anything in the case. The court did well to decline answering it. Certainly it should not have been affirmed.

The eleventh proposition was affirmed, and the twelfth was correctly answered, as we have shown in our remarks upon the seventh.

We have thus reviewed the entire record and have found no error. If anything has been left unnoticed it is because we consider it unimportant. The plaintiff has himself well summed up the case by stating that there are but two questions presented by it: 'First, was the deed of May 8th, 1849, void by reason of its contravening the act of Congress of September 4th, 1841, or ineffectual to pass the subsequently acquired title and estate of the plaintiff under the patent of October 8th, 1849? Second, if the deed was merely voidable by reason of the infancy of the grantor, did he, after he came of age, affirm it?' The first we have answered in the negative, and the second was properly submitted to the jury.

AFFIRMED, WITH COSTS.

title: Irvine v. Irvine/Opinion of the Court


text: Talk:Irvine v. Irvine/Opinion of the Court


text:
The Corsica

APPEAL from the Circuit Court for the Southern District of New York, affirming a decree of the District Court of said district; in which latter court Samuel Schuyler, owner of the steamer America, had libelled the steam-propeller Corsica, one of the steamers of the Cunard line, for damages which his vessel had suffered by being, as he alleged, run into by the Corsica, in the harbor of New York. The collision occurred on the 9th of September, 1865, about midday; the weather having been clear, and the vessels for some time previously in plain sight of each other. The libelled vessel, the Corsica, laid the blame of the disaster wholly on the other steamer. The District Court decreed for the libellant; the Circuit Court affirmed that decree, condemning the Corsica in $33,000 damages and costs. Whereupon the owners of the Corsica appealed to this court.

Mr. D. D. Lord, for the appellant; Mr. Van Sandvoord, contra.

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

title: The Corsica


text: Talk:The Corsica

title: Talk:The Corsica