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Navistar International Transportation Corp. v. United States EPA/Opinion of the Court

[p283] RYAN, Circuit Judge.

Petitioner, Navistar International Transportation Corporation Click for Enhanced Coverage Linking Searches(Navistar) (formerly International Harvester), seeks review of the decision of the administrator of the Environmental Protection Agency finding petitioner liable for violations of the Clean Air Act. We affirm.

I.
Navistar appeals the decision of the administrator (EPA) finding Navistar liable for violating § 120 of the Clean Air Act, 42 U.S.C. § 7420. Navistar operates a truck assembly facility in Springfield, Ohio. [p284] Within the assembly plant are located ten "painting booths" which are used to paint the various parts which are manufactured or assembled at the plant. Following the painting, the parts are moved by conveyor into drying and baking ovens, with the exception of three painting booths which do not employ ovens. Six of the booths paint only metallic parts while four paint both metallic and other parts. Three of the booths are used to touch up paint which has been scratched or to paint areas that have been missed.

Pursuant to the Clean Air Act, the EPA has set National Ambient Air Quality standards (NAAQS). Each state is responsible for drafting a State Implementation Plan (SIP) to provide for implementation and enforcement of standards such as NAAQS. 42 U.S.C. § 7410(a)(1). The SIPs must be approved by the EPA and meet statutory requirements. A SIP must include "emission limitations, schedules, and time tables for compliance for such limitations, and such other measures as may be necessary to insure attainment." 42 U.S.C. § 7410(a)(2)(B). Emission limitations pursuant to a SIP are enforceable as federal law. 42 U.S.C. § 7410(d). Violators of the emission limitations can be penalized pursuant to 42 U.S.C. § 7420 which allows a penalty equal to the amount of economic benefit gained by delaying compliance with a SIP. "A brief but reasonably specific notice of noncompliance" must be sent to one not in compliance with a SIP. 42 U.S.C. § 7420(b)(3).

The particular regulation at issue here is contained within the Ohio SIP. Section 3745-21-09(U) of the Ohio Administrative Code provides, in pertinent part:

(U) Surface coating of miscellaneous metal parts and products.

 * (1) Except where exempted under paragraph (U)(2) of this rule, no owner or operator of a miscellaneous metal part or product coating line may cause, allow or permit the discharge into the ambient air of any volatile organic compounds from such coating line after the date specified in paragraph (C)(28) for rule 3745-21-04 of the Administrative Code unless the requirements of either paragraph (U)(1)(a) or (U)(1)(b) of this rule are satisfied.

 * (a) The volatile organic compound content of each coating employed in the miscellaneous metal part or product coating line, as determined under paragraph (B) of rule 3745-21-10 of the Administrative Code, does not exceed the least stringent of any of the following limitations which are applicable:

 * (ii) 4.0 pounds per gallon of coating, excluding water, for a zinc rich primer coating;

 * (iii) 3.5 pounds per gallon of coating, excluding water, for an extreme performance coating;

On September 24, 1984, the EPA notified Navistar that it was not in compliance with the Ohio SIP, as its painting lines emitted pollutants beyond the emission limitations. The notice of noncompliance included a transmittal letter which stated the following were included in the notice package: (1) the notice of noncompliance, (2) a technical support document and an instruction manual, and (3) relevant code of federal regulations sections. The package, however, did not contain the technical support document nor the instruction manual. The notice informed Navistar it could either calculate the penalty owed and a payment schedule, or file a petition for reconsideration.

After three extensions, Navistar filed its petition for reconsideration on March 4, 1985. Navistar raised four issues: (1) that two painting lines were not within the definition of "coating lines," (2) that four painting lines were subject to the SIP refinishing exemption, (3) that four painting lines were not subject to regulation as they paint plastic as well as metallic parts, and (4) that the EPA was without jurisdiction due to insufficiency of the notice of noncompliance. A hearing was held before an Administrative Law Judge (ALJ) on March 4 and 5, 1986. The ALJ excluded evidence of technological and economic infeasibility in that it was irrelevant to the issue of liability. He held that the offer of proof on [p285]  economic infeasability evidence could be retained as proof on the penalty phase of the hearing.

The ALJ found Navistar in violation of the Ohio SIP (§ 3745-21-09)(U) of the Ohio Administrative Code). Navistar appealed to the administrator, who affirmed the ALJ's decision through the EPA's chief judicial officer. Navistar then sought review in this court.

A. Sufficiency of Notice
Before addressing the merits of Navistar's arguments regarding the proper interpretation of the Ohio SIP, it is necessary to discuss whether the notice of noncompliance sent to Navistar was defective to such a degree as to render the EPA without jurisdiction in this case. Section 66.12, describing the contents of a notice of noncompliance, states:

(a) Each notice of noncompliance shall be in writing and shall include:

(1) A specific reference to each applicable legal requirement of which the source is in violation;

(2) A brief statement of the factual basis for the finding of violation, together with a reference to any supporting materials and a statement of when and where they may be inspected.

(3) Instructions on calculating the amount of the penalty owed and the schedule for payments. Such instructions shall include (i) a statement of the date from which penalties should be calculated and (ii) a copy of the Technical Support Document and the Manual;

(4) Notice of the right to petition for a hearing to challenge the finding of noncompliance or to claim an exemption; and

(5) Notice that the penalty continues to accrue during the pendency of any hearings granted under this part or Part 67.

(b) Each notice of noncompliance shall be transmitted to the source owner or operator either by personal service or by registered or certified mail, return receipt requested.

40 C.F.R. § 66.12.

It is undisputed that the notice of noncompliance sent to Navistar did not contain the technical support document nor the instruction manual as required by 40 C.F.R. § 66.12(a)(3). Navistar argues that the omission of the material required by § 66.12(a)(3)(ii) renders the notice defective and leaves the EPA without jurisdiction in this case.

Several grounds require this court to reject Navistar's jurisdictional argument. First, § 66.12 provides no consequences for failure of the notice to comply with its requirements. Second, jurisdiction to assess noncompliance penalties is conferred upon the EPA pursuant to 42 U.S.C. § 7420. 42 U.S.C. § 7420(b)(3) requires only that a "reasonably specific notice of noncompliance" be sent.

Regulations under subsection (a) of this section shall-

. . ..

(3) require the States, or in the event the States fail to do so, the Administrator, to give a brief but reasonably specific notice of noncompliance under this section to each person referred to in subsection (a)(2)(A) of this section with respect to each source owned or operated by such person which is not in compliance as provided in such subsection, not later than July 1, 1979, or thirty days after the discovery of such noncompliance, whichever is later;. ..

42 U.S.C. § 7420(b)(3).

The notice sent to petitioner notified it of each painting activity that was in violation of the SIP. It notified petitioner of its rights under the statute and of a right to a hearing. The only documents missing had to do with penalty calculations which would not be relevant at the liability hearing pursuant to 40 C.F.R. § 66.41-43 but would be relevant only later at the penalty hearing pursuant to 40 C.F.R. § 66.51-54. Thus, the notice complied with the "brief but reasonably specific" requirement of 42 U.S.C. § 7420(b)(3).

[p286] Finally, Brock v. Pierce County, 476 U.S. 253, 90 L. Ed. 2d 248, 106 S.C.t. 1834 (1986), instructs that failure to follow all procedural requirements does not automatically render an agency without jurisdiction to proceed. In Brock, a statute required that the agency must make a final determination within 120 days after receiving the complaint. Although this requirement was in mandatory language, no consequences for failure to comply were listed. The Court found that the failure of the agency to meet the 120-day requirement did not divest it of the power to seek penalties under the statute. The Court stated:

"We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake."

Id. at 255. Therefore, the failure of the notice of noncompliance to contain the instruction manual or the technical support document does not prevent the EPA from proceeding with the liability hearing.

B. Standard of Review
Our standard of review in cases involving conflicting interpretations of an administrative regulation is to give considerable deference to the administrative agency's interpretation. University of Cincinnati v. Heckler, 733 F.2d 1171 (6th Cir. 1984). "An administrative agency's interpretation of its own regulation is accorded considerable deference on judicial review unless it is inconsistent with the terms of the regulation. . . ." Id. at 1173-74.

Navistar argues that this court may subject administrative regulations to de novo review given the Supreme Court's decision in INS v. Cardoza-Fonseca, 480 U.S. 421, 94 L. Ed. 2d 434, 107 S.C.t. 1207 (1987). Cardoza-Fonseca, however, is limited in its scope and does not justify de novo review of the regulations at issue in the instant case. The Cardoza-Fonseca case, resolving conflicting interpretations of a statute enacted under the Immigration and Naturalization Act, involved the question whether the standards for withholding of deportation and granting asylum were identical. The Court held that the agency interpretation of a statute is a matter of construction for the Court where the agency interpretation is contrary to clear congressional intent, and the agency itself has given the statute inconsistent interpretations. Cardoza-Fonseca, 94 L. Ed. 2d at 457-58.

We note first that this case involves an agency's interpretation of a regulation and not a statute.

When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.

. . ..

When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order.

"Since this involves an interpretation of an administrative regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. . . . The ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock Co., 325 U.S. 410, 413-14, 89 L. Ed. 1700, 1702, 65 S.C.t. 1215 (1945). Udall v. Tallman, 380 U.S. 1, 13 L. Ed. 2d 616, 85 S.C.t. 792 (1965).

Second, Navistar has not shown that the EPA has been inconsistent in its interpretation of the Ohio SIP. Finally, the EPA's interpretation of the Ohio SIP is in keeping with congressional intent, as more fully discussed in section C below.

C. SIP Provisions Violated
Navistar raises three arguments regarding the EPA's interpretation of the Ohio SIP. First, Navistar argues that two of its painting lines are not within the definition of "coating lines" for purposes of the SIP, because the painting lines do not have ovens for drying or baking. Significantly, [p287]  the two painting lines emit more pollutants than allowed by the emission limitations under Ohio Administrative Code § 3745-21.09(a), which limits emissions from "coating lines."

Coating line is defined in the Ohio SIP as follows:

"'Coating line' means a series of one or more coating applicators, flash--off areas and ovens wherein a surface coating is applied, dried and/or cured."

Ohio Administrative Code § 3745-21-01(D)(8). Navistar argues that the definition requires that a coating line contain at least one applicator, one flash--off area, and one oven. If Navistar's interpretation is correct, the two painting lines are not "coating lines" for purposes of the Ohio SIP, because they do not have ovens. The ALJ found the definition ambiguous, in that it could be read to mean one or more applicators, or one or more flash--off areas, or one or more ovens, or any of the combination of the above. "The definition can result," the ALJ stated, "in a series of one." While we would not be inclined to read the sentence that way, we cannot say, as a matter of law, that the sentence is so crystal clear as to allow only the meaning given it by Navistar. Neither can we ignore the ALJ's finding that the Environmental Protection Agency received numerous inquiries from industry sources inquiring "whether or not ovens were required in order to come within the definition."

The ALJ's more compelling reason for finding the meaning of "coating line" ambiguous is the fact that Ohio Administrative Code § 3745-21-09(U)(1) regulates emissions resulting from the application of surface coatings described in both (U)(1)(a)(iii) "Zinc rich primer" coatings, and (U)(1)(a)(iii), "extreme performance" coatings. (Text quoted supra.) "Zinc rich primer" coatings, (ii), are not dried by ovens, but at in-plant temperatures, while "extreme performance" coatings, (iii), are oven dried. The definition of "coating lines" applies to both, however. This suggests, as the ALJ held, that the listing of component elements in the definition of a coating line, should be read in the disjunctive not the conjunctive. We agree that the language defining "coating lines," is ambiguous.

A court may go beyond the express language of a statute or regulation to determine the intent of the draftsman if the language is ambiguous or if It would work against the purpose of the statutory goal. See Int'l T & T Corp. v. General T & E Corp., 518 F.2d 913, 917-18 (9th Cir. 1975). When that is done in this case, the intent of the regulation and the goals of the Clean Air Act provide further support for the agency's interpretation.

The ALJ heard testimony from the draftsman of the relevant portion of the Ohio SIP. The draftsman, Mr. Juris, testified that "coating lines" was meant to include painting booths without ovens. Furthermore, one of the fundamental purposes of the Clean Air Act is to maintain air quality standards by requiring emission reductions of organic compounds from major sources. The two painting lines at issue emitted 315 tons of compounds in 1985, nearly 200 tons above the allowable level. It would be an anomalous result to interpret the regulation so as to exclude coating lines without ovens when they contribute so greatly to the undesired pollutants in the air that are to be reduced by the regulations.

Mindful "that an agency's . . . interpretation of its own regulation is accorded considerable deference," University of Cincinnati, 733 F.2d at 1173, we find the ALJ's interpretation to be consistent with the terms of the regulation.

Second, Navistar argues that three of its painting lines are subject to the refinishing exemption of the Ohio SIP. Section 3745-21-09(U)(2)(c) of the Ohio Administrative Code exempts "application of a refinishing coating to motor vehicles." The ALJ found that the petitioner's processes do not involve refinishing.

[p288] Navistar's "refinishing lines" are used to correct paint defects on newly manufactured trucks prior to releasing them for sale. The EPA argues that the refinishing exemption does not apply to newly manufactured trucks but to body shops in the motor vehicle aftermarket.

Again, the intent behind the regulation supports the EPA's interpretation as evidenced by the testimony of the draftsman who stated that the refinishing exemption applies only to the motor vehicle aftermarket. In addition, the EPA has consistently interpreted the refinishing exemption to apply only to the aftermarket as evidenced by a 1981 letter to Navistar indicating that the exemption was not applicable to Navistar's operations. "Ordinarily we defer to an agency's consistent interpretation of its own regulations unless 'plainly erroneous or inconsistent with the regulations.'" Patton v. National Mines Corp., 825 F.2d 1035, 1038 (6th Cir. 1987) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 89 L. Ed. 1700, 65 S.C.t. 1215 (1945)).

Navistar responds that the regulations applicable to surface coating of automobiles and light duty trucks specifically exempt aftermarket body shops whereas the regulations applicable to surface coating of heavy duty trucks contain no such specific exclusion. The difference in language evidences an intent that the exemption governing surface coating of heavy duty trucks is not to be limited to the aftermarket, according to Navistar. However, because of the deference owed to an agency's interpretation of its own regulations, and because that interpretation is not inconsistent with the terms of the regulation, University of Cincinnati v. Heckler, supra, it must be upheld.

Finally, Navistar argues that four of its lines are used to paint metal and nonmetal parts. The emissions limitations of the SIP apply to "miscellaneous metal part or product coating lines." Section 3745-20-09(U)(1). One painting line uses five percent of its paint on non-metal parts; the other three painting lines use thirty-one percent of their paint on non-metal parts. Emissions from these processes should be excluded from regulation, according to Navistar.

The EPA argues that "coating lines" are regulated by the SIP, and that petitioner's concession that the coating lines are used, in part, to paint metallic parts renders them subject to regulation.

The EPA's interpretation is consistent with the plain language of the SIP. Further, it is in keeping with the goal of the Clean Air Act to reduce emission of organic compounds from operations such as those employed by Navistar. Again, the deference due the agency's own interpretation requires this court to affirm the administrator's decision as to this issue.

D. Evidence of Technological and Economic Infeasibility
Prior to the hearing before the ALJ, the EPA filed a motion in limine to exclude from the liability hearing evidence by Navistar of the technological and economic infeasibility of compliance with the SIP. The ALJ excluded the evidence from the liability hearing. He found, and the parties had earlier agreed, that the hearing before the ALJ was only to determine whether petitioner was liable for not being in compliance with the Ohio SIP. 40 C.F.R. § 66.41-43. A second hearing would be held to determine what the penalty for noncompliance would be. 40 C.F.R. § 66.41-54. The ALJ ruled that the evidence of infeasibility "may be retained in the record as an offer of proof on the issue of liability for a penalty (second stage of hearing)."

Technological and economic infeasibility arguments were first raised in Union Electric Co. v. EPA, 427 U.S. 246, 49 L. Ed. 2d 474, 96 S.C.t. 2518 (1976), by a petitioner who was challenging the SIP itself as opposed to that petitioner's compliance with the SIP. In that context, the Court held that technological and economic infeasibility arguments were not to be heard. The Court found that such a requirement would thwart the goals of and legislative intent behind the Clean Air Act. Id. at 269. The Court specifically left [p289]  open the question of whether due process requires the claims of technological and economic infeasibility be heard at some time. Id. at 269, n.19.

This court spoke to the due process issue in United States v. Ford Motor Co., 814 F.2d 1099 (6th Cir. 1987). In Ford, the company had challenged a SIP provision on infeasibility grounds in state court. This court held that a state court judgment does not preclude federal enforcement of the SIP. The company then argued that due process is violated by such a holding in that the state forum is the only forum in which to raise the infeasibility claims. This court stated:

Ford's contention can best be answered by noting that the Clean Air Act envisions situations where standards currently economically or technologically infeasible will nonetheless be enforced. See Union Electric Co. v. EPA, 427 U.S. 246, 258-59, 96 S.C.t. 2518, 2526, 49 L. Ed. 2d 474 (1976); National Steel Corporation Great Lakes Steel Division v. Gorsuch, 700 F.2d 314, 324-25 (6th Cir. 1983). Congress has the authority to demand that "existing sources of pollutants either should meet the standard of the law or be closed down. . . .", regardless of whether such standards are currently feasible. S.Rep. No. 91-1196, p. 2-3 (1970), quoted in Union Electric Co., supra, 427 U.S. at 259, 96 S.C.t. at 2526.

In addition, we note that meaningful opportunities for raising claims of technological and economic infeasibility have been provided by the Act.

. . ..

Technical infeasibility coupled with good faith efforts can be considered by the district court as a factor mitigating against the imposition of monetary penalties in the enforcement action.

Ford Motor Co., 814 F.2d at 1103-04. See also, United States v. Wheeling-Pittsburgh Steel Corp., 818 F.2d 1077, 1087 (3rd Cir. 1987).

Given Congress' intent to obtain compliance or require that facilities be shut down, regardless of feasibility, and given that due process concerns are satisfied by allowing infeasibility arguments at the penalty stage, we affirm the ALJ's decision to exclude evidence of technological and economic infeasibility at the liability hearing. As the evidence was retained in the record for purposes of the penalty hearing, any due process requirements were met.

III.
For the reasons stated above, the administrator's decision finding Navistar in violation of the Ohio SIP is AFFIRMED.


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131–154] Zeus hates the boastful tongue:

He with hurled fire down flung

One who in haste had mounted high,

And that same hour from topmost tower

Upraised the exulting cry.

Swung rudely to the hard repellent earth

Amidst his furious mirth

He fell, who then with flaring brand

Held in his fiery hand

Came breathing madness at the gate

In eager blasts of hate.

And doubtful swayed the varying fight

Through the turmoil of the night,

As turning now on these and now on those

Ares hurtled ’midst our foes,

Self-harnessed helper on our right.

Seven matched with seven. at each gate one,

Their captains, when the day was done,

Left for our Zeus who turned the scale,

The brazen tribute in full tale:—

All save the horror-burdened pair,

Dire children of despair,

Who from one sire, one mother, drawing breath,

Each with conquering lance in rest

Against a true-born brother’s breast,

Found equal lots in death.

But with blithe greeting to glad Thebè came

She of the glorious name,

Victory,—smiling on our chariot throng

With eyes that waken song.

Then let those battle-memories cease,

Silenced by thoughts of peace.

With holy dances of delight

Lasting through the livelong night

Visit we every shrine, in solemn round,

Led by him who shakes the ground,

Our Bacchus, Thebè’s child of light.


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 * POEMS. 12mo. MINE AND THINE. 12mo. LYRICS OF LIFE. 12mo.
 * align=center|HOUGHTON MIFFLIN COMPANY
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 * align=center|HOUGHTON MIFFLIN COMPANY
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Portal:Agriculture

Landwirtschaft

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User:Jakro64

Jakro64
Jakro64 is Jan S. Krogh, a Norwegian man (b. 1964) who since 1991 has been living in Lithuania. Geography is one of his strong sides. You will find more about him here.

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Texts on the subject of angling or fishing.

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Godfrey v. Terry/Dissent Waite

MR. CHIEF JUSTICE WAITE, with whom concurred MR. JUSTICE STRONG and MR. JUSTICE BRADLEY, dissenting.

I concur in the judgment of reversal, but do not think that the bill should be dismissed. In my opinion, the suspension of specie payments in 1860 was not a failure of the bank, within the meaning of that term as used in the charter; and there is, to my mind, no satisfactory evidence fixing the date of the actual failure earlier than March 1, 1865.

title: Godfrey v. Terry/Dissent Waite


text:
Author:Herbert Martin James Loewe

Works

 * Kitab el Ansab of Samani

title: Author:Herbert Martin James Loewe


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Page:Book of the Riviera.djvu/293

 Rh and halt at Monaco on his way to Lyons, where he hoped to have an interview with the King of France, and to obtain from him a charge in his army. When Bartholomew arrived at Monaco, Lucien invited him to breakfast and gave to his nephew the place of honour at the table. Bartholomew could not eat, and when pressed to do so by his uncle complained that he had lost his appetite. Lucien then placed one of his children on Doria's knee; but the young man trembled so that the child had to be taken from him. On rising from table Bartholomew asked the prince to give him some instructions as to his course.

At this time Andrew Doria's fleet put into the harbour of Monaco, and the admiral sent to Bartholomew a laconic epistle, "What thou hast to do, do quickly." Lucien bade his nephew accompany him into a cabinet at the end of the gallery. As the prince entered, the major-domo came up and informed him that Andrew Doria's galleys had arrived in the port, and handed to Bartholomew the sealed letter bidding him be speedy in executing what he had undertaken.

When the major-domo withdrew, none were in the cabinet save the prince, who seated himself, a black slave, and Bartholomew, who stood by the window. All at once the tramp of feet sounded in the gallery, and an assassin rushed in, followed by others holding daggers and shouting, "Ammaza! kill! kill!" In a few minutes Lucien was despatched, and then the murderers, surrounding Bartholomew, marched forth, descended to the port, and were received on board the galley of Andrew Doria.

Hercules I. (1589-1604) met with a violent death from some of his own subjects. He used his sovereign power

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Keith v. Clark/Dissent Waite

MR. CHIEF JUSTICE WAITE.

I am unable to give my assent to the judgment which has just been announced, and while concurring in much of what is said in the opinion of the majority of my brethren, am compelled to differ upon a single point, which, as I think, controls the decision of the case.

It is a conceded fact that the notes on which the suit is brought were issued by the bank while the State was in rebellion against the government of the United States. The bank, although organized for the transaction of a general banking business, was also the fiscal agent of the State. It was established in the name and for the benefit of the State, and the faith and credit of the State were pledged to give indemnity for all losses arising from any deficiency in the funds specifically appropriated as capital. The State was the only stockholder, and entitled to all the profits realized from the business.

It is an historical fact that the banks of the insurgent States, and especially those owned by the States, were used extensively in furtherance of the rebellion, and that all or nearly all their available funds were converted in one way or another into Confederate securities. None of the banks owned by the States survived the rebellion, and few were able to make any considerable showing of valuable assets.

At the close of the war, Congress saw fit to propose for adoption the fourteenth constitutional amendment, in which it was provided that 'neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States,. . . but all such debts, obligations, and claims shall be held illegal and void.' This was done June 16, 1866 (14 Stat. 328), and the adoption of this and other amendments by the late insurgent States was afterwards made a condition to their admission to representation in Congress. Id. 429.

On the 26th of June, 1865, before this amendment was proposed, the people of Tennessee in convention assembled ordained that 'all laws, ordinances, and resolutions of the usurped State governments, passed on or after the sixth day of May, 1861, providing for the issuance of State bonds, also all notes of the Bank of Tennessee, or any of its branches, issued after the sixth day of May, 1861, and all debts created or contracted in the name of the State by said authority, are unconstitutional, null, and void, and no legislature shall hereafter have power to pass any act authorizing the payment of said bonds or debts, or providing for the redemption of said notes.' This goes somewhat beyond the requirements of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]], but to the extent it is a declaration that the debts of the insurgent State government contracted in aid of the rebellion should not be paid is certainly valid. On the 26th of July, 1866, Congress gave it that effect in the resolution admitting the State 'to her relations to the Union.' Id. 364.

Every law is presumed to be constitutional. We cannot declare a State law, and especially when in the form of a constitution, repugnant to the Constitution of the United States, unless it is manifestly so. We ought not reverse the judgment of a State court upon a question of Federal law, unless it is clearly wrong. The decisions of the highest court of a State are always entitled to respect in this tribunal, and should not be overruled under our constitutional power of review, except for imperative reasons.

If facts could exist that would support a law or a State constitution, we must presume they did exist when the law was passed or the constitution adopted, and that the action of the legislature or the people was intended to apply to them.

If the bills of the Bank of Tennessee were in fact issued in aid of the rebellion, they are void as obligations of the State. So the Constitution of the United States as amended provides, and so this court has decided in every case, where the question was raised, that has come here since the war closed. As I construe the ordinance of Tennessee, it is an authoritative declaration, in an appropriate form, by the people of the State, who were cognizant of the facts, that all the issues of the bank after May 6, 1861, were in furtherance of the rebellion. In this way the people, in effect, prohibited the tax-collectors and officers of the State from receiving such issues in payment of public dues. This drove the bill-holder to his suit under the act of March 21, 1873, for the recovery of his money. To this suit the State voluntarily submitted, for the purpose of having the validity of these obligations judicially determined, and in such a suit as, I think, the constitutional ordinance, taken in connection with known historical facts, is entitled at least to the weight of prima facie evidence that the declaration it impliedly makes is true. It is evidence that may be rebutted, but, until rebutted, sufficient to justify an officer in refusing to receive the bills as the obligations of the loyal people in payment of dues to the loyal government. If this were an application for a mandamus to compel the officer to receive the bills, and his answer was that the bills had been issued in aid of the rebellion, and he was prohibited by the Constitution of the State from receiving them, I cannot but think his answer would be deemed sufficient until overcome by proof. But the statutory remedy which is now being used is only a substitute for that by mandamus; and when the defendant, who is a tax-collector, sets up the Constitution of his State as his defence, and shows that the obligations sued upon were incurred while the State was engaged in rebellion against the United States, I think he, at least, puts upon the holder the burden of showing that they were not incurred in aid of the rebellion. The authoritative declarations of the people of a State, made in an appropriate manner under the forms of law, ought to be presumed to be true.

Suppose this were a suit upon a bond of the State issued during the rebellion, would it be insisted that we should reverse the judgment of the State court because it decided upon the faith of the constitutional ordinance that no recovery could be had without proof that the bond was issued for lawful purposes, and not in aid of the Confederacy? Clearly not, I think; and if not, why apply a different rule to suits upon these bills as State obligations incurred during the same time, and capable of being used for the same purposes. This is thought by some of my brethren to require the plaintiff in such an action to prove a negative before he can recover, but in my judgment it only requires him to overcome a prima facie case that has been made against him. If a State Constitution is not to be presumed to rest on facts which will support it, rather than such as will not, it seems to me nothing can be presumed. If the bills of this bank put out after May 6, 1861, were issued in aid of the rebellion; the constitutional ordinance in question, so far as it relates to them, is valid, and can stand; but if not, it is invalid, because prohibited by the Constitution of the United States, as impairing the obligation of contracts. Certainly, therefore, the presumption is that they were issued in aid of the rebellion, and until this presumption is overcome there ought to be, as I think, no recovery.

title: Keith v. Clark/Dissent Waite


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Keith v. Clark/Dissent Bradley

MR. JUSTICE BRADLEY.

The question in this case is so fundamental in its character, that I cannot suffer the opinion of the majority to be read without expressing my earnest dissent from it.

The bank-notes issued by the Bank of Tennessee, which are claimed to be legal tender for taxes, in this case, were issued during the late civil war. Of course, whether they were new bills or old, whilst they were in the possession of the bank they were of no value. Being the obligations of the bank itself, they had no force or value until they were issued and put in circulation,-any more than the note or bond of an individual has value, whilst it is in his possession. In this respect they were totally different from the notes and obligations of others held by the bank. The latter had value when in the bank's possession, and were property. The bills in question were not property. When the bank issued them, then, and only then, they became property, by becoming obligations of the bank.

The issue of these bills, therefore, was the creation of new obligations on the part of the bank; just as much so as if the bank had made its bonds and issued them. And everybody who took them knew this. The thing was not done in a corner. It was known that these bills were of the 'new issue,' or the 'Torbet issue,' of the bank.

These bills, being thus new obligations of the bank, were issued for the purpose of raising funds for the bank or its owners. They were not given away. They were promises to pay, delivered to various parties for the sake of the consideration received therefor; and that consideration was sought for and received by the bank for the purpose of being used,-for the purpose, in other words, of furnishing the bank, and thereby of furnishing its owners, with revenue for carrying on its and their operations and business.

Now, it appears on the record that this bank belongs to the State of Tennessee, and has no private stockholders. The first section of the charter, passed by the legislature in 1838, is in these words: 'A bank shall be, and is hereby, established in the name and for the benefit of the State, to be known under the name and style of 'The Bank of Tennessee;' and the faith and credit of the State are hereby pledged for the support of the said bank, and to supply any deficiency in the funds hereinafter specifically pledged, and to give indemnity for all losses arising from such deficiency.'

The second section shows how the capital of the bank was constituted:--

'The capital of said bank shall be five millions of dollars, to be raised and constituted as follows: The whole of the common-school fund,. . . as well as the proceeds of the Ocoee lands, shall constitute a part of the capital of the Bank of Tennessee; the surplus revenue on deposit with the State. . . shall also constitute a part of the stock of said bank; and, in addition,. . . a sum shall be raised in specie, or funds convertible into specie at par value, on the faith of the State, sufficient to make the whole capital five millions of dollars,' &c.

The sixth and seventh sections provided for the appointment of the directors of the bank, by the nomination of the governor and confirmation of the General Assembly.

The bank thus became the fiscal agent of the State. All its funds and property, all its resources of every kind, belong to the State, subject to the payment of its debts. The State, it is true, according to the decision in Curran v. The State of Arkansas, has no constitutional authority to appropriate the capital of the bank to the prejudice of its debts; and it is not to be presumed that any lawful government of the State will do so. If it does, there are generally means, under the provisions of the Constitution, for preventing such a result.

The State, then, being the proprietor of the bank, and the latter being the fiscal agent of the State, it follows that the business operations of the bank inure entirely to the benefit of the State. The property and resources which were obtained by the issue of the bills in question were obtained for the benefit of the State. The bills were issued in the interest and for the benefit of the State.

In pursuance of the idea that the bank was the property of the State, and that the faith of the State was pledged for its obligations, it was provided, by the twelfth section, 'that the bills or notes of the said corporation, originally made payable, or which shall have become payable, on demand, in gold or silver coin, shall be receivable at the treasury of this State, and by all tax-collectors and other public officers, in all payments for taxes and other moneys due to the State.'

The question in this case is, whether the State government as reconstructed after the late rebellion, is absolutely and irretrievably bound by the twelfth section to accept for taxes and other public dues the bills issued by the bank when under the control of the insurgent government during the war.

If by the operation of general public law, or of any thing contained in the Constitution of the United States, the reconstructed and lawful government is so bound, it is more than the insurgents themselves ever expected, and more than the loyal people of the State supposed, when in 1865 they met together in convention, and adopted those ordinances and regulations which the changed condition of things required. They then declared that 'all laws, ordinances, and resolutions of the usurped State governments, passed on or after the sixth day of May, 1861, providing for the issuance of State bonds, also all notes of the Bank of Tennessee, or any of its branches, issued on or after the sixth day of May, 1861, and all debts created or contracted in the name of the State by such authority, are unconstitutional, null, and void.'

In favor of the proposition that the lawful State government, reorganized after the rebellion, is bound to recognize the bills in question, it is contended that the State of Tennessee has always remained the same State; and that unless it be shown affirmatively that its acts and proceedings were intended to aid in the prosecution of the rebellion, they are all valid and binding on the reconstructed State.

The latter proposition I deny. The State can only act by its constituted authorities,-in other words, by its government; and if that government is a usurping and illegal government, the State itself and the legal government, which takes the place of the usurping government, are not bound by its acts.

In the case before us, the actual government of the State, for the time being, standing behind the direction of the bank, and creating that direction, exercised complete control over the operations of the bank. When the State government was in want of money, or other resources, for its immediate purposes, the bank, in obedience to its will, issued its obligations, and procured what was wanted.

The process by which this was done was equivalent, in the substance of the transaction, to the government issuing its own obligations, and thereby filling its treasury.

In the exigencies of the war, the then government of Tennessee was in need of every possible resource that could be compelled into contribution. It cannot reasonably be doubted that the very object of this extraordinary new issue of bank circulation was intended for the purpose of enabling the government to carry on its operations. The fact that the bills themselves commanded only a fraction of their par value is proof that they were not issued in the regular course of business, but that the proceeds received therefor were destined for other uses than legitimate banking.

But in my view of the case, it is not necessary to invoke any presumptions of this sort, to deny to these bills the quality of legal tender in the payment of taxes imposed by the lawful government of the State. The original contract contained in the charter of the bank, to the effect that its circulation should be receivable in payment of taxes, was based on the consideration that the State, as proprietor of the bank, received the benefit of the circulation, and was pledged for its redemption. Hence it followed, by an almost necessary implication, that it should honor that circulation so far as to take it for cash, when offered in payment of its own taxes. It never could have been the intent or implication that if a usurping government should at any time obtain the control of the State and its finances, including this very fiscal agency, the issues of the bank made during the period of such usurpation should be honored in the same manner.

Now if the position of the majority of the court is correct, that there never was any usurpation of the State government in Tennessee during the late civil war, and that the State had all the time a lawful government of its own ( for that is what the argument amounts to), then I concede that the conclusion reached is unavoidable. If this be true, then I do not see why all the obligations issued by the State during the war, whether in the shape of bonds, or certificates of indebtedness or otherwise, are not equally obligatory as these bills. How is it to be proved which of them was issued for carrying on the war, and which were not? Upon the assumption made, they are all prima facie valid. But this, of course, is only a collateral consideration.

I deny the assumption that the governments of the insurgent States were lawful governments. I believe, and hold, that they were usurping governments. I understand this to have been the opinion of this court in Texas v. White, 7 Wall. 700. The very argument in that case is, that whilst the State as a community of people remained a State rightfully belonging to the United States, the government of the State had passed into relations entirely abnormal to the conditions of its constitutional existence. 'When the war closed,' says Mr. Chief Justice Chase, speaking for the court, 'there was no government in the State except that which had been organized for the purpose of waging war against the United States. That government immediately disappeared. The chief functionaries left the State. Many of the subordinate officers followed their example. Legal responsibilities were annulled or greatly impaired.' Again he says: 'There being then no government in Texas in constitutional relations with the Union, it became the duty of the United States to provided for the restoration of such government.' Again, in speaking of the power and duty of Congress to guarantee to each State a republican government, and the necessary right which follows therefrom to decide what government is established in each State, the Chief Justice makes the following quotation from the opinion of Mr. Chief Justice Taney in the case of Luther v. Borden (7 How. 1), who says: 'Under the fourth article of the Constitution, it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State, before it can determine whether it is republican or not.'

Mr. Chief Justice Chase proceeds to say, 'This is the language of the late Chief Justice, speaking for this court, in a case from Rhode Island, arising from the organization of opposing governments in that State. And we think that the principle sanctioned by it may be applied with even more propriety to the case of a State deprived of all rightful government, by revolutionary violence; though necessarily limited to cases where the rightful government is thus subverted, or in imminent danger of being overthrown by an opposing government, set up by force within the State.'

The actual course of things taken in the seceding States, so fully detailed by the Chief Justice in Texas v. White, are demonstrative, it seems to me, of the position which I have assumed. The several State governments existing or newly organized at the times when the ordinances of secession were respectively adopted, assumed all the branches of sovereignty belonging to the Federal government. The right to declare war, raise armies, make treaties, establish post-offices and postroads, impose duties on imports and exports, and every other power of the government of the United States, were usurped by the said State governments, either singly, or in concert and confederacy with the others. They assumed to sever the connection between their respective communities and the government of the United States, and to exercise the just powers belonging to that government. That such governments should be denominated legal State governments in this country, where the Constitution of the United States is and ought to be the supreme law of the land, seems to be most remarkable. The proposition assumes that the connection between the States and the general government is a mere bargain or compact, which, if broken,-though unlawfully broken,-still leaves the States in rightful possession of all their pristine autonomy and authority as States.

I do not so read the constitution of government, under which we live. Our government is a mixed government, partly state, partly national. The people of the United States, as one great political community, have willed that a certain portion of the government, including all foreign intercourse, and the public relations of the nation, and all matters of a general and national character, which are specified in the Constitution, should be deposited in and exercised by a national government; and that all matters of merely local interest should be deposited in and exercised by the State governments. This division of governmental powers is fundamental and organic. It is not merely a bargain between States. It is part of our fundamental political organization. Any State attempting to violate this constitution of things not only breaks the fundamental law, but, if it establishes a government in conformity with its views, that government is a usurping government,-a revolutionary government,-as much so as would be an independent government set up by any particular county in a State. If the city of New York should set up a separate government independent of the government of the State, it would be a usurping and revolutionary government. It might succeed, and make itself independent, and then there would be a successful revolution. But if it did not succeed, if it were put down, every one would call it a usurping and unlawful government whilst it lasted, and none of its acts would be binding on the lawful government.

I do not mean to say that States are mere counties or provinces. But I do mean to say, that the political relation of the people of the several States to the Constitution and government of the United States is such, that if a State government attempt to sever that relation, and if it actually sever it by assuming and exercising the functions of the Federal government, it becomes a usurping government.

We have always held, it is true, that, in the interests of order and for the promotion of justice, the courts ought to regard as valid all those acts of the State governments which were received and observed as laws for the government of the people in their relations with each other, so far as it can be done without recognizing and confirming what was actually done in aid of the rebellion. This is required by every consideration of justice and propriety. But this is only what is always conceded to the acts and laws of any actual government, however invalid.

The action of all the States, after the rebellion was over, shows that they did not consider the insurrectionary governments as legal governments, nor the laws by them enacted as having any binding force or validity proprio vigore. In every case, it is believed, ordinances or laws were passed either adopting the laws passed during the insurrection, with certain exceptions duly specified, or declaring them all to be invalid, with the exception of such as it was deemed proper to retain. This was done in Tennessee. It was done in all the other States.

The proceedings and acts of Congress and the Executive after the war was at an end, having in view the reconstruction of the insurgent States, are all based on the same idea; viz., that the governments of those States when in rebellion were usurping governments, and that their acts were void. The various pardons and proclamations of amnesty, and acts of rehabilitation to citizenship, passed by Congress, all look in the same direction.

In England, at the close of the Commonwealth, and the restoration of Charles II., no act passed during that whole period of twenty years, from 1640 to 1660, was ever received or admitted as law. Not one of them is found in the statute-book. Some laws which were of great public concern, and actual improvements in the legislative code, were re-enacted, and became laws under Charles II.

It is said that the national obligations of the English government, created during the period in question, were recognized by the restored government. But it is well known that this was a matter of compromise and concession. General Monk held the reins in his own hands as commander of the army, and refused to surrender them until all proper measures for insuring the public tranquillity and satisfaction were agreed to. The royalists were glad to get back into power on these terms. As to the public relations of the kingdom, it would have been arrant folly not to have adopted what had been done. Besides the fact that these relations came under the operation of general public law, in which other nations were deeply concerned,-one cardinal rule of which is, that every nation in its relations with other nations is bound by the acts of its actual government, whether legal or de facto, it was the clear interest of the English nation to stand to the public negotiations of Cromwell; for no English sovereign had ever wielded the sceptre of public affairs with greater ability and energy.

There is nothing, therefore, in this historical instance to support the opinion of the court.

It is undoubtedly true that, when revolutions in governments occur, the new governments do often, as matter of policy, and to prevent individual distress among the citizens, assume the obligations of the governments to which they succeed. But this is done from motives of public policy only, and is not submitted to as a matter of absolute right. Such was clearly the relation of the lawful State governments to the obligations of the usurping governments, at the close of the civil war in this country. They could assume them or not, as they saw fit. In the case before us, the obligation in question was expressly repudiated. And it seems to me that, in addition to the express repudiation of the Convention of 1865, that part of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]] of the Constitution of the United States which prohibits the United States or any State to assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, applies to the case.

Whether the community of people constituting the several States remained States during the insurrection is of no consequence to the argument. The question is, whether the State governments were or were not legal governments, and whether the obligations by them assumed are binding upon the lawful government of the State.

That the acts of secession were void, of course no one denies. The civil war was carried on by the United States government to demonstrate their nullity. But neither has that any thing to do with the question as to the validity of the State governments which waged war against the United States, except to make it more certain and indubitable that they were usurping governments.

It seems to me that the attempt to fasten upon the lawful government of Tennessee an obligation to receive as cash bills that were issued under the authority of the usurping government of that State whilst it was engaged in a deadly war against the government of the United States, is calculated to introduce evils of great magnitude; that it will ultimately lead to the recognition of the war debts of the seceding States, notwithstanding the prohibition of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]] of the Constitution. But this I would regard as a far less evil than the establishment of doctrines at war, as I think, with the true principles of our national government, as well as with the established rules of public law.

title: Keith v. Clark/Dissent Bradley


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Keith v. Clark/Dissent Harlan

MR. JUSTICE HARLAN.

I dissent altogether from so much of the opinion of the court as declares that the State of Tennessee, as represented by its existing government, is bound to receive, in payment of taxes levied under its authority, the notes of the Bank of Tennessee, issued after May 6, 1861, and during the period when that State was dominated by a revolutionary organization which usurped the functions of the lawful State government.

It is claimed that the obligation of the existing government of Tennessee to receive these bank-notes for taxes arises out of the twelfth section of the bank's charter, granted in 1838, which provides 'that the bills or notes of the said corporation, originally made payable, or which shall have become payable, on demand, in gold or silver coin, shall be receivable at the treasury of this State, and by all tax-collectors and other public officers, in all payments for taxes and other moneys due to the State.'

The purposes for which the bank was organized, and the relations created between it and the State by its charter, are thus stated in Furman v. Nichol, 8 Wall. 44.

'The State of Tennessee, through its legislature, in 1838, thought proper to create a bank 'in its name and for its benefit.' It was essentially a State institution. The State owned the capital and received the profits, appointed its directors, and pledged its faith and credit for its support.'

It was because the State, though directors of its appointment, had the absolute control of the operations of the bank, owning its capital and enjoying its profits, that it made the agreement contained in the twelfth section of the charter. That agreement unquestionably constituted, as between the State and the holders of the bank's notes, a contract, the obligation of which the State was forbidden by the Federal Constitution to impair. Such was the decision of this court in Furman v. Nichol (supra), as to all bills issued by the bank prior to May 6, 1861. In that case, while expressly waiving any decision of the question as to the liability of the State for bills issued between May 6, 1861, and the date of the restoration of its lawful government, we held that the guaranty contained in the twelfth section of the charter 'was, until withdrawn by the State, a contract between the State and every note-holder of the bank,' obliging the State to receive for taxes any notes issued prior to May 6, 1861. But it is to be observed that the State which made this contract with note-holders was the State which was represented by the lawful government thereof. The notes which it agreed to receive for taxes were necessarily only those issued by the authority, or under the orders, of directors appointed by that lawful government. It was not an agreement to receive notes issued under the orders of usurping directors, or by directors appointed by, or exercising their functions under, any revolutionary government, which, by violence, should displace the lawful government of the State. Upon the temporary overthrow of the latter government, on the 6th of May, 1861, all the State institutions, including the Bank of Tennessee, were seized by the usurping government, and were thereafter, and until the legal authorities resumed, or were reinstated in the exercise of, their functions, controlled and managed by the usurping government for its own benefit and maintenance. The notes in question were issued under the orders of directors who repudiated all responsibility to the government which made the contract embodied in the twelfth section of the bank charter. If the issue of such notes imposed obligations upon any State government, it was upon the insurgent State government, whose official agents had directed them to be issued. In the very nature of things, and so long as the duty exists to discourage revolution, by maintaining lawfully constituted authority, no obligation could arise against the State government which had been wrongfully displaced, and whose right to control and manage the bank, by directors of its appointment, was not only denied and repudiated, but was forcibly, and for some time successfully, resisted. And this view does no injustice to citizens of Tennessee who received the notes of the bank in the ordinary course of business. They were aware of the fact that these notes were issued under revolutionary authority. They did not take them upon the credit of the lawful government, or upon any faith they had in its restoration. They took them upon the credit of the usurping State government, under whose authority and for whose benefit they were issued, and which government, at that time, was regarded by the mass of the people of Tennessee as established upon a firm and enduring foundation.

But it is said that this court has frequently deciced that the ordinary acts and transactions of the Confederate State governments, which had no direct connection with the support of the insurrection against the authority of the Union, were to be deemed as valid as if they had been the acts and transactions of legitimate legislatures. The argument upon this branch of the case necessarily rests upon the assumption that the notes of the bank issued, under usurping authority, after May 6, 1861, were not issued, or do not appear to have been issued, for the purpose of aiding the insurrection or in hostility to the Union. This assumption, however, cannot be successfully maintained without excluding from consideration well-known historical facts. The government of the Confederate States of America had its origin in the purpose to dissolve the Union formed by the Federal Constitution, and to overthrow the national authority in the States declared to be in insurrection. The revolutionary governments of the insurrectionary States had their origin in, and were formed for, a like purpose. The existence of the former depended upon the existence of the latter. All moneys, therefore, raised by the revolutionary State government, for its support and maintenance, may be deemed, in every substantial legal sense, as having been raised for the support and maintenance of the Confederate government in its efforts to overturn the government of the United States. But in the view which I take of this case, and of the principles which must govern its decision, it is immaterial whether the notes were or were not issued in direct aid of the rebellion. They were the obligations of an institution controlled and managed by a revolutionary usurping government, in its name, for its benefit, and to prevent the restoration of the lawful State government. It was that revolutionary government which undertook to withdraw the State of Tennessee from its allegiance to the Federal government and make it one of the Confederate States. When, therefore, the people of Tennessee, who recognized the authority of the United States, assembled by their delegates in convention, in January, 1865, it was quite natural, and, in my judgment, not in violation of the Federal Constitution, that they should declare, by an amendment of the State Constitution, that 'all laws, ordinances, and resolutions of the usurped State governments passed on or after the 6th May, 1861, providing for the issuance of State bonds, also all notes of the Bank of Tennessee, or any of its branches, issued on or after the 6th May, 1861, and all debts created or contracted in the name of the State by said authority, are unconstitutional, null, and void; and no legislature shall hereafter have power to pass any act authorizing the payment of said bonds or debts, or providing for the redemption of said notes.' And this amendment of the State Constitution was duly ratified by a popular vote in that State on 22d February, 1865.

After carefully examining the former decisions of this court, and regarding the special facts and circumstances of each case heretofore decided, I do not perceive that any thing declared by us is at all inconsistent with the position that it was competent for the lawful government of Tennessee, when restored to the exercise of its just authority, to refuse to meet the obligations of the usurping State government, or to recognize the notes which had been illegally issued in the name of a State banking institution by the directions, and for the benefit, of the revolutionary organization which had violently displaced the regular and lawful State government. There may be some difficulty in defining precisely what acts of the usurping State government the restored State government should have recognized as valid and binding. It may be true that there were some of them which should, upon grounds of public policy, have been recognized by the lawful government as valid and binding. It may be that, in the absence of any declaration to the contrary by the latter, the courts should recognize certain acts of the revolutionary government as prima facie valid. But I am unwilling to give my assent to the doctrine that the Constitution of the United States imposed upon the lawful government of Tennessee an obligation, which this court must enforce, to cripple its own revenue, by receiving for its taxes bank-notes issued and used, under the authority of the usurping government, for the double purpose of maintaining itself and of defeating the restoration of that lawful government to its proper relations in the Union. Lawful government should not be required to pay the expenses incurred in effecting and maintaining its overthrow. Tennessee, as one of the United States, cannot be under a constitutional duty to recognize the governmental obligations of those who, by revolution, and in violation of the Federal Constitution, overthrew the legitimate State government, not because of its administration of the internal affairs of that State, but solely because of its adherence to the Federal Union, and its refusal to acknowledge the authority of the Confederate government. If the insurrectionary State government had, during the recent war, urged the people in insurrection to take the notes of the Bank of Tennessee at par, upon the ground that the lawful State government, if restored, would be required by the courts of the United States, whose government they were endeavoring to overturn, to receive them in payment of taxes, and if the insurgents had believed such to be the law of the land, the treasury of the Confederate State government would have had more money than it did have to carry on the work of revolution.

Upon these grounds, which I will not further elaborate, I feel obliged to dissent from the conclusions reached by the court.

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234 to get possession of and outrage the wives and daughters of his subjects. At last some, whose wives had been dishonoured by him, conspired, took him and flung him over the rocks into the sea.

Louis (1662-1701), Prince of Monaco, became enamoured of the celebrated Hortense Mancini, Duchess of Mazarin, exiled from France for her intrigues. He followed her to Rome, and thence to London, where he and Charles II. were rivals for her favour. Saint Evremond did all in his power to separate her from the prince and constitute her a prime favourite of the King, in place of the Duchess of Portsmouth. A rivalry in prodigality ensued between little Monaco and the King of Great Britain. It was the fable of the frog and the ox enacted. In an access of jealousy Charles withdrew a pension of £4,000 he had accorded to the duchess, whereupon Louis sent her an order for that same amount, payable for life out of his treasury, accompanying it with a copy of verses. That the money was paid regularly is more than doubtful.

This Louis was married to Charlotte de Gramont, who was one of "les grandes amoureuses" of the reign of Louis XIV. She intrigued with the king. She entertained a passion for her ambitious cousin de Lauzun. Her many love adventures furnished Saint Simon with a good deal of not very edifying matter for his Mémoires. Whilst Charlotte revelled in Paris, Louis sulked at Monaco. As news reached him of Charlotte having made a fresh conquest, he had a gibbet erected on the confines of his tiny principality, and the happy man in effigy hung from it; and as Charlotte's caprices and conquests were numerous, the frontier of Monaco was soon marked out at intervals by a score of gallows,

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 Rh from which dangled dummy men, all dressed in Court costume.

"Not merely," says Mme. de Sévigné, "is this measure retrospective, but folk amuse themselves by informing the prince of what is now going on. The consequence is that the gibbets have to be put closer together, and more than half of the courtiers are now dangling in effigy along the frontiers of Monaco. I can assure you that I have had many a laugh over this, and others as well. The king himself laughs at it. This frenzy of hangings passes all belief."

At the beginning of the seventeenth century, the Spaniards had profited by the minority of Honore II. to put a garrison into Monaco, under the pretext of alliance. Speedily they took advantage of this to behave as masters of the place. Prince Honoré, to escape from their domination, signed a secret treaty with Louis XIII. in 1641, by virtue of which his sovereign independence was guaranteed and a garrison of 500 French soldiers was assured him after the expulsion of the Spaniards. But it was precisely this last thing that was most difficult to achieve. Honoré succeeded by subtlety. He ordered the arrest of thirty of the inhabitants of Monaco, lusty men, and cast them into prison; then invited the Spanish garrison to a grand banquet at the palace, and made them as drunk as fiddlers. When they were almost incapable of defence, he opened the prison, told the men he had locked up that they were to massacre the Spanish garrison, and put daggers into their hands. The Spaniards, however, were not so drunk that they could not defend their lives; they were, however, nearly all slaughtered; and the gates were thrown open to some French soldiers who had been waiting at Antibes

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236 to replace the Spaniards. This took place in November, 1641. In consequence of this, all the estates of Honoré in Italy were confiscated, but Louis XIII. indemnified Honoré for this by granting to him the Seigneurie of Les Baux in Provence and the Duchy of Valentinois. Antoine, who died in 1731, was the last direct male of the house. He left a daughter, Louise Hippolyte, who married Jacques Frangois de Matignon, Comte de Torrigny. She survived her father but eleven months. Her son Honoré III. (1731-1795) lived at the time of the outbreak of the French Revolution. The new ideas excited effervescence in little Monaco, Roquebrune, and Mentone, which belonged at the time to the principality, and they demanded elective councils. Honoré was compelled to yield, whereupon the Councils suppressed all feudal rights. Then, when he was frightened and ran away, the three towns declared the House of Grimaldi deposed. Nice had been united to France, and Monaco demanded the same favour, which was granted February 14th, 1793. Honoré was arrested on September 28th, in the same year, and detained till Thermidor 9th. He died in 1795. By the treaty of Paris, 1814, Monaco was restored to Honoré IV., his son, but on the return of Napoleon from Elba, the principality was occupied by an English force. By the treaty of November 2Oth, 1815, it was transferred to Sardinia; but this lasted only till 1816, when Honoré V. regained his principality. His son Florestan I. (1841-56) abolished monopoly in bread, allowed free trade, and founded a college at Mentone. The revolution of 1848 was disastrous to the Prince. Mentone and Roquebrune severed their connexion with Monaco and were annexed to Sardinia. Charles III. (1856-89) succeeded his father, Florestan.

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Rh He it was who conceived the idea of repairing his losses by the establishment of gaming tables at Monaco.

The princes had coined gold, silver, and copper money from 1505, with the legend, "Christus regnat, Christus imperat. Christus vincit." This legend became inappropriate thenceforth, in Monaco. In 1856 Charles III. started the gambling tables in a building adjoining the palace, afterwards occupied by the guard of honour. But the venture was not a success. Monaco was out of the way, hardly accessible from the land, where the Corniche Road ran high above, on the summit of the cliffs by La Turbie, so that it could be reached conveniently only by sea. The gambling concession passed through various hands, till, owing to the closing of the Casino at Homburg, M. Blanc thought of Monaco. In 1863 he went there, on March 31st, entered the bureau of the then concessioners, Lefebre and Co., and said, "You want to sell this affair; I am disposed to take it. Reflect. I shall return here at 3.30 p.m. I leave at 4 p.m. by the steamboat, and I want to have this matter settled before I go back to Nice." The company sold it to Blanc for 1,700,000 francs. On April 1st, All Fools' Day, 1863, Blanc formed La Société anonyme des Bains de Mer et Cercle des Étrangers à Monaco, for fifty years, with a capital of fifteen millions, represented by 30,000 shares of 500 francs each. One of the first to take shares in this gambling society was Pope Leo XIII., at the time only cardinal. Blanc was a little man, with moustache already white, aged fifty-seven, when he came to feather his nest, and that of the Prince of Monaco, at Monte Carlo. He married his daughter to Prince Roland

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text:
Sordello

Dedication
TO J. MILSAND, OF DIJON.

Dear Friend,—Let the next poem be introduced by your name, therefore remembered along with one of the deepest of my affections, and so repay all trouble it ever cost me. I wrote it twenty-five years ago for only a few, counting even in these on somewhat more care about its subject than they really had. My own faults of expression were many; but with care for a man or book such would be surmounted, and without it what avails the faultlessness of either? I blame nobody, least of all myself, who did my best then and since; for I lately gave time and pains to turn my work into what the many might—instead of what the few must,—like: but after all, I imagined another thing at first, and therefore leave as I find it. The historical decoration was purposely of no more importance than a background requires; and my stress lay on the incidents in the development of a soul: little else is worth study. I, at least, always thought so—you, with many known and unknown to me, think so—others may one day think so; and whether my attempt remain for them or not, I trust, though away and past it, to continue ever yours, R. B.

London, June 9, 1863.

Contents

 * Book the First
 * Book the Second
 * Book the Third
 * Book the Fourth
 * Book the Fifth
 * Book the Sixth

title: Sordello


text: United States Statutes at Large/Volume 1/3rd Congress/1st Session/Chapter 57


text:
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238 Bonaparte, grandson of Lucien, Prince of Caninio, the brother of the Emperor Napoleon I. Blanc died in 1881. In 1882 it was resolved to double the capital of this "bathing establishment." The fifteen million was raised to thirty million, divided up into 60,000 shares of 500 francs each, Blanc's heirs retaining about 52,000 shares in their own hands. As the original concession was for fifty years, and would expire in 1913, it was deemed advisable to approach the Prince of Monaco for an extension, and this was granted, as the shareholders complained, "on very hard terms." It was signed on January 16th, 1898, and by this agreement the company received a fresh concession for fifty years.

So profitable an affair is this Circle des Étrangers and Société des Bains de Mer, that the ordinary 5OO-franc shares rose at once to 4,770 francs. An old Italian proverb was to this effect: That may be rendered, "I am Monaco, a mere rock; I have naught of my own, I take no goods of others; yet I must live."

This proverb is now as inappropriate as the legend on the coins; for Monaco lives and thrives on the plunder of those who go there to empty their money on the tables. Les Spélunges, a rocky promontory, full of holes and cracks, like a petrified sponge, on which formerly shepherds pastured their goats, has become the

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Rh world-famed Monte Carlo; and La Condamine, once the flower-garden that supplied the House of Rimmel with perfumes, is now occupied by houses of those who live more or less directly on the tables. Charles III., who made the concession, has not left a very savoury recollection behind him. Whilst his father was reigning prince, he tired of being only heir apparent, and stirred up a revolt against his father; but the National Guard arrested him, and he was conducted to Genoa, where he was set at liberty. His son, Albert Honoré Charles, the present Prince, married Lady Mary Victoria, daughter of the Duke of Hamilton and Brandon, on September 21st, 1869, and by her had a son, born in 1870. But they apparently got tired of each other, for the Pope was approached by Lady Mary, with the full consent of the Prince, to get the marriage annulled. Now the Church of Rome holds very strict views as to the indissoluble nature of marriage. Even the successor of S. Peter protests his inability to pronounce a divorce. But, he can annul a marriage on various grounds; and to help this out, all sorts of bars to legitimate marriage have been devised, as consanguinity within seven degrees of relationship, affinity, spiritual relationship through sponsorship at the font, or legal relationship through guardianship, beside many others, by means of some of which, with a little greasing of palms, hardly a legitimate union cannot be annulled. Accordingly, on January 3rd, 1880, after eleven years of married life, the Pope declared the marriage to have been void, on the plea put forward by Lady Mary that she had been over-persuaded to marry the Prince, by her mother, But the Papal Court laid down that although

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