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Memphis Gas-Light Company v. Taxing District of Shelby County, Tennessee/Opinion of the Court

This is a writ of error to the supreme court of Tennessee. The question presented is whether the statute of the state under which the defendant assessed a license tax of $250 against plaintiff in error is void, because it violates the contract found in the charter of the company. This charter was enacted November 20, 1851, and, after giving the name of the new corporation and the names of the corporators, it refers for the rights, privileges, powers, and restrictions of the company to the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth sections of an act incorporating the Nashville Gas-light Company, passed November 21, 1849, and declares that those sections, not inconsistent with the first section of this act, shall shall apply to the Memphis Gas-light Company as fully and completely as though the same were fully set forth and incorporated. For any contract of exemption from taxation we must therefore look to the provisions of those sections in the charter of the Nashville Company. These sections contain the usual powers necessary for the successful conduct of the business of the company, its organization, its shares of stock, mode of payment, laying pipes in the street, and the like, and after a careful examination of them we are unable to see anything whatever which expresses a contract for any limitation of the power of the legislature to tax the company or its property. Such was the opinion of the supreme court of Tennessee, delivered on rendering the judgment to which this writ of error is taken. And though this court is bound for itself to inquire in every such case as this whether there existed a contract which might be be impaired, on which subject the court has very recently, at the present term, collated the authorities in the case of Louisville & N. R. Co. v. Palmes, ante, 193, we are unable to discover any reason for dissenting from the opinion of the supreme court of Tennessee on that point.

The section of the charter on which plaintiff's counsel mainly rely as showing a contract is the fifth section, which reads as follows:

'Sec. 5. The said company shall have the privilege of     erecting, establishing, and constructing gas-works, and      manufacturing and vending gas in the city of Nashville, by      means of public works, for a term of fifty years from and      after the date of this act. A reasonable price per thousand     feet for gas shall be charged in the case of private      individuals, to be regulated by the prices in other      south-western cities; and for public lights, such sum as may      be agreed upon by the company and the public authorities of      Nashville: provided, said company shall never charge more      than one cent for every cubic foot of gas used, as may be      indicated by the gas-meter, or computed by the ordinary rules      in such cases; nor shall they ever charge the corporation of      the city of Nashville more per cubic foot than they shall be      getting at the same time from the majority of the inhabitants      of the city using such gas.'

The argument of counsel is that if no express contract against taxation can be found here it must be implied, because to permit the state to tax this company by a license tax for the privilege granted by its charter is to destroy that privilege. But the answer is that the company took their charter subject to the same right of taxation in the state that applies to all other privileges and to all other property. If they wished or intended to have an exemption of any kind from taxation, or felt that it was necessary to the profitable working of their business, they should have required a provision to that effect in their charter. The constitution of the United States does not profess in all cases to protect property from unjust or oppressive taxation by the states. That is left to the state constitutions and state laws.

In the case of the Erie R. Co. v. Pennsylvania, 21 Wall. 492, it was said:

'This court has in the most emphatic terms and on every occasion declared that the language in which the surrender (of     the right of taxation) is made must be clear and      unmistakable. The covenant or enactment must distinctly     express that there shall be no other or further taxation. A     state cannot strip herself of this most essential power by      doubtful words. It cannot by ambiguous language be deprived     of this highest attribute of sovereignty. The principle has     been distinctly laid down in each of the cases referred to. It has never been departed from.'

See, also, Providence Bank v. Billings, 4 Pet. 514; Herrick v. Randolph, 13 Vt. 531; North Missouri R. Co. v. Maguire, 20 Wall. 40; Delaware R. R. Tax, 18 Wall. 206.

There is in this case no language which attempts to exempt plaintiff from taxation, nor is there even the most remote implication of such exemption.

The judgment of the supreme court of Tennessee is affirmed.


text: Talk:Memphis Gas-Light Company v. Taxing District of Shelby County, Tennessee/Opinion of the Court

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


text:
Gilfillan v. Union Canal Company of Pennsylvania

J. Duval Rodney, for plaintiff in error.

Thomas Hart, Jr., for defendant in error.

WAITE, C. J.


text: Talk:Gilfillan v. Union Canal Company of Pennsylvania


text:
Gilfillan v. Union Canal Company of Pennsylvania/Opinion of the Court

The Union Canal Company of Pennsylvania, a corporation of the state of Pennsylvania, issued, in 1853, a series of bonds for the payment of money, amounting in the aggregate to $2,500,000, with coupons for semi-annual interest attached. These bonds and coupons were secured by a mortgage to trustees on the property of the company. Prior to 1862 the company became pecuniarily embarrassed, and a plan was devised by parties in interest for the settlement of its affairs and liabilities, by which the entire indebtedness, whether secured or unsecured, was to be converted into a funded debt, secured by mortgage, on which interest was to be paid only 'out of and from the clear net income and profits of the business of the corporation,' but the right of voting at elections and meetings of the corporation was to be given to bondholders as well as stockholders. On the tenth of April, 1862, the legislature of Pennsylvania passed a statute, the purpose of which was to give authority for such an agreement between the company and its creditors. The statute provided in express terms that the agreement, if entered into, should only be binding on such of the holders of the bonds of 1853 'as shall signify their assent in writing thereto; and in case any such bondholder shall fail to file with the president of such corporation his or her refusal, in writing, to concur in the said agreement within three months from the date thereof, such bondholder shall be taken to have assented to the same.' Ample provision was made for notice to the bondholders to appear and express in writing their assents or dissents, and for the preservation of all the original rights of such as dissented.

Pursuant to this legislative authority, the contemplated agreement was entered into between the corporation, with the assent of its stockholders and the creditors. The notice required by the statute was given, and bondholders to the amount of only $85,000 out of the $2,500,000 filed in writing their refusal to concur. All the rest either assented in writing or failed to signify their dissent. At the time the agreement was made, Gilfillan, the plaintiff in error, owned $4,200 of the bonds of 1853, and the coupons thereon from November 1, 1857. He had actual notice of the agreement and the proceedings for its execution, but he neither signified his assent thereto in writing nor filed with the president of the company his refusal to concur. Between the time of making the agreement and the commencement of this suit there was not 'any clear net income and profits of the business' of the company. This suit was brought against the company by Gilfillan on his coupons running from November 1, 1857, to May 1, 1877, inclusive. At the trial a case was stated which presented for determination the single question whether the agreement of settlement barred the action. The supreme court of the state decided that it did, and gave judgment accordingly. To reverse that judgment this writ of error was brought.

The precise point we have to decide is whether the statute which made the failure of a bondholder to signify his refusal to concur in the agreement of settlement within the specified time equivalent to an express assent in writing, impaired the obligation of his bond Mortgages of the kind of that executed by this company are of a peculiar character, and each bondholder under then enters by fair implication into certain contract relations with his associates. Such bondholders are not, like stockholders in a corporation, necessarily bound, in the absence of fraud or undue influence, by the will of the majority, when expressed in the way provided by law, but they occupy, to some extent, an analogous position towards each other. The mortgage, with the issue and distribution of bonds under it, creates a trust, of which the selected mortgagee, or his duly-constituted successor, is the trustee, and the bondholders primarily, and the stock holders ultimately, the beneficiaries. It not unfrequently happens that compromises and adjustments of conflicting interests become necessary in the course of the administration of such trusts. As in the present case, a very large majority of the bondholders sometimes think it is for their own interests as well as of that of their associates to surrender a part of their rights and accept others instead, and they prepare and submit for execution an agreement, the object of which is to carry their plan into effect. No majority, however large, can compel a minority, small though it be, to enter into such the agreement against their will; and, under the constitution of the United States, it is probable that no statute of a state, passed after the bonds were issued, subjecting the minority to the provisions of the agreement without their consent, would be valid. But it seems to us a proper exercise of legislative power to require a minority to act whenever such an arrangement is proposed, and to provide that all shall be bound who do not, in some direct way, within a reasonable time after notice, signify their refusal to concur. To sustain such legislation it is only necessary to invoke the principle enforced in statutes of limitations which make neglect to sue within a specified time conclusive evidence of the abandonment of a cause of action. As was said in Terry v. Anderson, 95 U.S. 634, where the limitation was of actions upon certain legal obligations that embarrassed the entire community at the close of the late civil war, 'the obligation of old contracts could not' in this way 'be impaired, but their prompt enforcement could be insisted upon or their abandonment claimed.'

As to statutes of limitations, it has always been held that shortening the time within which actions on existing contracts must be brought impairs no obligation of the contract, if a reasonable time is given to bring a suit before the bar attaches. In Terry v. Anderson, supra, it was said:

'In all such cases the question is one of reasonableness, and     we have, therefore, only to consider whether the time allowed      in this statute is, under all the circumstances, reasonable. * *  * In      judging of that we must place ourselves in the position of      the legislators, and must measure the time of limitation in      the midst of the circumstances which surrounded them as      nearly as possible; for what is reasonable in a particular      case depends upon its particular facts.'

What was said there seems to us equally applicable to the present case. There 'the business interests of the entire people of the state had been overwhelmed by a calamity common to all. Society demanded that extraordinary efforts be made to get rid of old embarrassments, and permit a reorganization on the basis of the new order of things.' Here a canal company, incumbered with a large bonded and floating debt, was bankrupt. The payment of its debts in the ordinary way was impossible. It is fair to infer from the case stated that the interest on the mortgage debt had been in arrear for years, and the floating debt which was unsecured amounted to at least $500,000, or one-fifth of the amount of the mortgage. In this condition of things, undoubtedly, the bondholders might have foreclosed their mortgage and thus secured the proceeds of a sale of the mortgaged property, but to a very large majority this seemed unadvisable, and the reason is apparent. The property they had as security was a canal and its appurtenances. Purchasers of such property at advantageous prices were not easily found. Unless the bondholders themselves bought, a large sacrifice must almost necessarily be made, and but a small sum realized for distribution. If the bondholders did buy, it might be necessary for them to operate the canal and assume corresponding liabilities. The experience of the company in the past gave no encouragement of success in such an undertaking, and so a majority of the bondholders came to the conclusion that if they could be permitted to take part to some extent in the control of the business it was better to let the property remain in the hands of the company without a foreclosure, and to demand their interest only as it could be paid out of profits actually realized.

The question now is not whether this scheme was or was not a wise one. A majority of the bondholders thought it was, while some did not. Unless all, or nearly all, agreed, nothing could well be done. Hence application was made to the legislature, not to require all bondholders to adopt the plan and become bound by it, but to indicate whether they would or would not. If any said they would not, then it would be necessary for those who favored the scheme to determine whether, in view of such a dissent, they would go on and leave the dissenters at liberty to assert their rights. That would, of course, depend in a large degree upon the number of those who dissented and the amount of bonds they held. Prompt action was also important. In view of this, three months was fixed as the time within which the election must be made. There is no complaint of the length of time given, and if there was it could make no difference in this case, because Gilfillan had actual notice, and three months was certainly time enough for him to determine in his own mind whether an assent or dissent was most for his interest. So that the only question really presented to us is whether it was unreasonable to provide that a failure to dissent should be taken as an assent. What the majority wanted to know was how many would not come into the scheme, and the way the assent or dissent should be signified was a matter of but little importance, provided it was understood by the bondholders. The legislature, in the exercise of its discretion, saw fit to provide that every bondholder should be taken to have elected to become bound by the agreement, unless he filed in writing with the president of the company his refusal to concur. This was the way the vote was to be taken, and the will of the bondholders ascertained. All who did not vote against were to be counted in favor of the plan. This being understood no holder can complain, if it was within the power of the legislature to require him to act at all. If he does not wish to abandon his old rights and accept the new, all he has to do is to say so in writing to the president of the company. Inaction will be taken as conclusive evidence of abandonment, just as the failure to bring suit within the time allowed by a statute of limitation is evidence of the abandonment of an existing cause of action.

The same principle was applied in Vance v. Vance, 108 U.S. --, [2 SUP. CT. REP. 854,] where it was held that an article in the constitution of Louisiana, adopted in 1868, which provided that existing secret mortgages and privileges should cease to have effect against third persons after the first of January, 1870, unless before that time recorded, did not impair the obligation of a contract between an infant and her natural tutor. Mr. Justice MILLER, in delivering the opinion of the court, after stating that the strong current of modern legislation and judicial opinion was against the enforcement of secret liens on property, said:

'We think that the law, in requiring the owner of this tacit     mortgage for the protection of innocent persons dealing with      the obligor to do this much to secure his own right, and      protect those in ignorance of those rights, did not impair      the obligation of the contract, since it gave ample time and      opportunity to do what was required, and what was eminently      just to everybody.'

And in Jackson v. Lamphire, 3 Pet. 290, it was said:

'It is within the undoubted power of state legislatures to     pass recording acts, by which the elder grantee shall be      postponed to a younger, if the prior deed is not recorded      within the limited time; and the power is the same whether      the deed is dated before or after the recording act.'

We conclude, therefore, that it is within the just scope of legislative power to require bondholders, interested in common with others in a trust security, to signify their assent to or dissent from a plan proposed by proper persons for the compromise and adjustment of matters of difference affecting their common interests, and that the statute involved in this suit is of that character and valid.

Judgment affirmed.


text: Talk:Gilfillan v. Union Canal Company of Pennsylvania/Opinion of the Court


text:
Fay v. Cordesman

''Robt. H. Parkinson'', for appellants.

E. E. Wood and E. Boyd, for appellees.

BLATCHFORD, J.

title: Fay v. Cordesman


text: Talk:Fay v. Cordesman

title: Talk:Fay v. Cordesman


text:
Fay v. Cordesman/Opinion of the Court

This suit in equity of three several letters patent. The first is reissue No. 1,527, granted to John Richards, August 25, 1863, for a 'guide and support for scroll-saws,' the original patent, No. 35,390, having been patented to him, May 27, 1862, for an 'improved guide and support for scroll-saws.' The specification of the reissue is as follows, including what is inside of brackets and what is outside of brackets, omitting what is in italics:

'To all whom it may concern: Be it known that I, John     Richards, of Columbus, in the county of Franklin, and state      of Ohio, have invented a new and useful [method of guiding      and supporting] combined guide, guard and support for      scroll-saws; and I do hereby declare that the following is a      full, clear, and exact description of [one practical means of      carrying out my invention] the same, reference being had to      the accompanying drawings forming part of this specification,      in which [Figure] Fig. 1 is a perspective view of a portion     of [a] the table and [a] the saw-blade [of a 'scroll      saw-mill,' with my invention applied to the same.] and my      improved upper combined guide, guard and support. [Figure]     Fig. 2, a longitudinal section of the same connected to the     suspended stud of the building. [Figure] Fig. 3 is a     horizontal section [through the guide and support.] in the      line [through the guide and support.] in the line letters of      reference [where used] in [different] the several figures      indicate corresponding parts. [It has long been a x x, of Fig. 2. [The same] Similar which will work successfully while     [different] the several figures indicate corresponding parts. [It has long been a desideratum to obtain a scroll sawmill     which will work successfully while the upper end of the saw      blade is left free from a sash or upper straining device; and      this has never been attained until the development] The      nature of my invention [which] under this patent consists      [1st, in working the saw at a point above the table in a      groove which as steel, polished iron, or glass, or any other      known and suitable metal or substance, the upper end of the      saw being disconnected from any upper suspender or sash, but      supported and guided at its back edges and at its sides or      broad faces, and its lower end connected to any mechanical      device that will produce the desired motion in saw. It     consists second in  an adjustable guide and support whereby      different thicknesses of scroll or web saw may be used at      will. It consists, 3d, in attaching the anti-friction guide     and support to an adjustable device which constitutes a guard      to hold down the stuff being sawed, and also insures a      support of the saw at the point near where the sawing is      performed as well as above this point. My principle of     operating a scroll or web saw must not be confounded of the      saw at the point near where the sawing is performed as well      as above this point. My principle of operating a scroll or     web saw must not be confounded with the 'muley saw,' as in      the 'muley saw' it is common to employ guides attached to the      saw, such guides running in or upon bearings independant of      the saw-plate, whereas with the web or scroll saw worked      according to my discovery, the back of the blade or plate is      supported upon a hardened steel or other durable      anti-friction surface, and is guided laterally by sim ilar      surfaces, so that the saw is supported and guided without any      means of tension so that the saw is supported and guided      without any means of tension being employed. Furthermore,     'muley' saws are supported at each end by cross-heads and      only in the center by lateral guides; and a saw must be      employed that is strong enough in its cross-section to stand      the work. Now with my plan, I support the saw down saw-mills,     and enables me to use small, which is a new thing in this      class of saw-mills, and enables me to use small, light      saw-blades. Previously to my discovery of running the upper     end of the web or scroll saw in frictional contact with an      upper guide it was deemed an impracticable thing, and it is      now only by practical demonstration and long use that      saw-mill men are convinced rapidly wear out the guide.

The non-destruction or web saws will not cut through and of     time, although the pressure upon of the guide in a short      period of time, although the pressure upon it is immense, is      due to the fact of the guide being of hardened steel or other      smooth, hard material, over which the saw-plate glides with      but little frictional wear.] in the guide and back supporting      bars or plates in connection with the sliding guard, the same      constituting a combined guide, guard and enable others      skilled in the art to make upper portions of a scroll-saw      blade. To enable others skilled in the art to make and use my      invention, I will proceed to describe [one practical means in      which I have embodied it with great sucess; but, in doing so,      I do not wish to be understood as limiting myself to these      mechanical devices in themselves, as the principle may be      embodied in various other means and still not depart from the      discovery embodied in machinery that I desire to patent.] its      construction and operation with reference to the drawings.      [Not using] I do not use a sash [or] nor other means of      straining the saw S, [I] but fasten the lower end of the      [blade] same to the upper end of a stock or slide, S', of [a]      the pitman, by a set-screw, S2, or [I upper end of a stock or      slide, S', of blade to a device which will properly operate      the saw. The] in any other similar manner, and have its top     or upper [end of the saw] portion disconnected above the      table [T,] T. [I leave entirely disconnected, but in order to      stead or guide and support this free end during the saw      operation I attach a grooved steel guide to a] ''The said upper      portion of the saw is supported and guided by means of the      two parallel bars a a, and the angular plate b. The bars have      a lateral adjustment to accommodate saws of different      thicknesses, their purpose being to keep the saw in a true      vertical line, and to keep it from twisting, while the office      of the back plate, b b', is to support the saw against the      strain of the stuff on the teeth, when the work is being      shoved against it. The guides a a and back plate b b' are all     made of hardened steel, to prevent friction and wear. This     device a a b b' is fastened to the lower end of the sliding      strip or guard piece'' A, [other device which will answer as a      firm support to the guide, and as a guard to keep down the      lumber being sawed. The device A is attached to a] which is     fitted in a groove of a suspended stud [or timber] B, of the      building, [and is better if made adjustable by means of a      slot and clamp-bolt, such as designated by the letters e c d;      but other known means for adjusting this device a back plate, b, and two side plates shown, is formed of three parts, to-wit, firmly to the former, as shown. The a, a, which latter are bolted or screwed firmly to the former, as shown. The slots s through which the bolts f f pass are large enough to allow the plates a a a slight lateral adjustment whenever it is desired to use a saw with a greater or a guide of hard anti-friction surface, would be attained if a groove was formed or a guide of hard anti-friction surface, would be attained if a groove was formed in a thick steel plate, or other hard substance, except the advantage of accommodating saws of various thicknesses. I believe I am the first to use the grooved anti-friction guide, as well as the first to have the groove variable in width, and therefore I do not confine myself to adjustable guides and supports. The office of the back part of the groove or guide is to support the saw against the strain of the timber on the teeth when the work is being shoved against it, while the office of the lateral portions of the groove or guide is to keep the saw in a true vertical line and prevent it from twisting. The office of the guard A, which extends down nearly to the top of the table, is to hold down or prevent flying up of the 'stuff' or timber being sawed, and and at the same time bring the supporting guide to the saw right down to the place where the sawing is being performed, and thus insure the most perfect operation as well as an effectual supporting and guiding of the saw.] ''and confined accordingly, as the thickness of stuff being sawed required, by means of a clamping screw-bolt, c, and hand-nut, d. The bolt passes loosely through an oblong slot, e, of the guardstrip, but fastens firmly in the stud B, B, as shown. This guard rests in close contact, or nearly so, with the stuff being sawed, and keeps the same firmly down upon the table, while the device a a and b b' guides and supports the saw, as above stated. It will be seen that screw-bolts, f f, confine the plate b and bars to the strip or guard A, and that the holes or slots through the bars a areelongated so as to allow the guide-bars a a chance to move nearer together or further apart, to admit different thicknesses of saw-blade. It will also be seen that the guides, by being attached to the strip, are adjusted with it up and down, the said up and down adjustment being allowed by the slot e%2D of the strip; and thus the angular part b' of the plate b aids also in holding down the stuff, it having a vertical kerf, g, cut in it, to admit the saw-blade, and the quide and supporting plates or bars are always in proper position''. This [guard by its] arrangement also obviates the [heretofore] necessity of leaving the upper end of the saw-blade above the table unsupported and unguided, as it allows of the work or [timber] stuff being freely turned while the sawing is progressing, a clear open space between the guard and the table being left. [In the drawing I have shown the lower end of the guide forming an angle; this is to give a larger guard surface. This angular portion has a kerf, g, cut in it to admit the saw-plate to the back of the guide. I, however, do not limit myself to this form of guide.] ''The plate b might be made without the angular part b', but not answer so good good a purpose. I do not claim operating a scroll-saw without straining, nor do I claim the application of lateral guides to saws; neither do I claim an adjustable guard to prevent the stuff rising with the saw''.'

Reading, in the foregoing, what is outside of brackets, including what is in italic, and omitting what is inside of brackets, gives the text of the original specification. The original patent contained one claim, as follows:

'The guide bars a a, and the back plate b, in connection with     the sliding guard-strip A, the same constituting a combined      guide, guard and support for the top of a scroll-saw, and      operating substantially as herein described.'

The reissue contains five claims,

'(1) Running the upper portion

'(1) Running the upper portion a groove of an anti-friction     guide and support, substantially as and for the purpose      described. (2) Operating purpose described. (2) Operating     practically an unstrained web or scroll saw, by combining      with such saw-mills an upper anti-friction guide, which      supports the back of the saw-blade, and faces, substantially      as set forth. (3) faces, substantially as set forth. (3) The     use of anti-friction guides as a substitute for straining      devices, in the guide to be raised and lowered to suit the      thickness of the stuff, substantially as set forth. (4) An     anti-friction guide which is adjustable so as to accommodate      different thicknesses of saw-blades, and to compensate for      wear, in combination with the upper portion of a web-saw      blade, substantially as set forth. (5) The combination of the     anti-friction saw support and guide, or the equivalent      thereof, with an adjustableguard, or its equivalent, substantially as and for the      purpose set forth.'

Infringement of only claims 4 and 5 of the reissue is alleged. It is apparent, in reading the specification of the original patent and that of the reissue, that Richards contemplated the use of his improvements only in connection with a saw-blade, the upper end of which was free from any suspender or sash, and the lower end of which was so connected with mechanism as to obtain the desired motion in the saw. Claim 4 of the reissue, claims, as an element in the combination covered by that claim, 'the upper portion of a web-saw blade.'

The saw-blade shown in the drawings, and the only saw-blade which can have an upper portion capable of being free or disconnected, in the sense in which those words are used, is a reciprocating saw-blade, actuated from below, and alternately pushed and pulled.

The specification of the reissue states that Richards' saw is supported and guided 'without any means of tension being employed.'

The defendants use a band-saw, which is an endless saw, passing over wheels, and running constantly in one direction, towards the table on which the stuff lies, and having a tension over the peripheries of the wheels. For this reason, the defendants do not need nor do they have any guard which performs the function of the guard embraced as an element in the combination covered by claim 5 of the reissue, of holding down the stuff against the upward lifting action of the saw, because the saw is constantly passing downward. There is, therefore, no infringement of either claim 4 or claim 5.

The second patent sued on is No. 78,880, granted to J. A. Fay & Co., June 16, 1868, for an 'improvement in guides for band-saws,' on the invention of John Lemman. The specification says:

'Figure 1 is a front elevation of one of my improved guides;     Figure 2 is a side elevation of the same; Figure 3 is an      elevation of the auti-friction roller b, removed from the      guide; and Figure 4 is a partial plan, showing the Figure 3      is an elevation of the anti-friction roller b, removed from      the guide; and Figure 4 is a partial plan, showing the parts. In operating endless saws, guides. Similar letters of     reference in the different figures indicate corresponding      high speed at which these saws guides are needed both above and and below the wood. As is well known,     the high speed at which these saws are driven, and the small      amount of surface presented to the guide from the edge of the      saw-plate, cause fixed guides to wear away very fast, even if      made of hardened steel or glass, particularly when heavy      sawing is done, and the strain of the feed falls on the saw. Rolling guides, while they have partially overcome the     difficulty of friction and wear on the back of the saw,      cannot be constructed to give a proper lateral support to the      saw, as will hereafter be alluded to. The object of the     invention here illustrated is to obviate these several      difficulties, and give important advantages in operating saws      of this kind. Its nature consists in a combination of     anti-friction rollers and fixed guides, points to wear; the      fixed guides as a lateral support, and so constructed as to      accomodate saws of different widths, as hereinafter      explained. To enable others skilled in the art to make and     use my invention, I will proceed to describe its mode of      construction and the manner of operating the same, with the      aid of the drawings. a is a frame or support for the guides. It is cored out to receive the wheel b, with room for lateral     adjustment. On the top is a cylindrical extension, h,     intended to be connected to a bar, on which the whole      structure is adjusted up and down, to suit the thickness of      the wood being sawed. b is an anti-friction wheel of hardened     steel or other suitable material, mounted on an axis, f, as      shown in Fig. 3, and by red lines in Fig. 1. This axis has      conical bearings formed in the piece g, which allows of      compensation for wear, and by loosening the screws § s, the      wheel b and bearings g g can be adjusted laterally, so as to      bring different points of the periphery of wheel b in contact      with the saw. c 1     from turning and in a true line. These guides are so arranged     that two or more of them can be used and the others removed      or adjusted to receive a narrow saw, as shown in Fig.4. The     holes through which the screws d d pass are slotted, as shown      by red lines, Fig. 1. E is a section of a band-saw,      sufficiently wide to allow of all the plates, c c c, being      used. The wheel b is so arranged as to barely pass through     the plate m, and come in contact with the saw E. Oil-holes      are formed at i i, Fig. 1, communicating with the bearings of      axis f, as shown in Fig. 1. The operation will be readily      understood. Having thus explained the nature and objects of my invention, I do not     claim the use of an anti-friction roller applied to the back      of the saw; neither do I claim the fixed lateral guides.'

'The combination of the roller b with fixed lateral guides, c     c c, one or more, arranged and operating substantially in the      manner and for the purposes

This patent stands on very narrow ground. Anti-friction rollers narrow ground. Anti-friction rollers applied to the back of the saw are disclaimed and were old. Fixed lateral guides for he faces of the saw are disclaimed and were old. The text of the specification limits the invention to a combination of an anti-friction wheel to support the back or thin edge of the saw, presenting different points to wear, presenting different points to wear, with fixed guides to support laterally the faces of the saw, the fixed guides being so constructed as to widths. The anti-friction wheel, widths. The anti-friction wheel, by means of its conical bearings, can be advanced nearer, as it wears, to the back edge of the saw; and the wheel and its bearings are capable as to bring different points of the as to bring different points of the periphery of the wheel in contract with the back edge of the saw. to is manifestly that described to is manifestly that described in the Richards patent. The only point of invention dwelt on in the Lemman specification is the which, though it is to be an antifriction which, though it is to be an antifriction made of hardened steel or other suitable material, will still wear material, will still wear away on the surface presented to the edge of the saw; and the lateral adjustment enables different points of the periphery of the wheel to be brought into cintact with the saw, so as to present different points entire width of a periphery of a wheel may be utilized. The defendants have used a wheel which has two grooves in it, in one of which the saw runs and in either of which it can run. The wheel can be adjusted laterally, so as to bring the one or the other of the two grooves into use. But there is no adjustment to bring different points of the periphery of a smooth-faced wheel into use. In view of the state of the art and of the limitations of the specification there has been no infringement. Merely adjusting a wheel laterally, so as to give it different positions at different times, was a thing well known to mechanics; and running the the back edge of a saw in a groove in a roller existed in the prior Closterman device.

The third patent sued on is No. 120,949, granted to J. A. Fay & Co., November 14, 1871, for an 'improvement in band-sawing machines,' on the invention of William H. Doane and William P. McKee. Claims 1, 2, 3, and 4 of this patent are alleged to have been infringed, there being seven claims. The specification, so far as it is material to be cited, says:

'The first part of our invention relates to an improved form     of supporting frame and of he upper and lower with their      inclosed arbors, are made with their inclosed arbors, are      made easily accessible and removable for inspection and      repair, and relatively adjustable, so as to be brought into      exact line, and otherwise so regulated as to insure      hereinafter explained. * *  * Figure 1 is a perspective view      of a machine Figure 1 is a perspective view of a machine      embodying our improvements. Figure 2 is a vertical section of     the machine Figure 5 is a plan of the lower arbor-bearing. 5     is a plan of the lower arbor-bearing. The frame which     supports the operative parts of our machine consists of a      single casting of the peculiar form here represented; that is      to say, a base, A, the main column or standard A1,      (supporting the upper arbor-bearing and saw, guide,) a      shorter column or pedestal A%2D, a shorter column or pedestal      A * §§, which latter supports and is surmounted by the bench or      table B, on which the between the columns A1 and A%2D leaves      exposed a seat, which extends leaves exposed a seat, which      extends below the center of the lower arbor and is entirely      open upward, which seat forms an accessible and convenient      place for the attachment, inspection, and regulation, and,      when necessary, the ready detachment, of the lower      arborbearing, which bearing is constructed as follows: Bolted      or otherwise securely pillow-block, C, having vertical      flanges c c 1      bolts D D1, which, entering orifices in the box or bearing E      E1 of the lower in the box or bearing E E1 of the lower      fastening for the said bearing. A set-screw, G, tapped in the     bottom of G, tapped in the bottom of the the box E E1,      enables its adjustment and retention to horizontality, or      such and retention to horizontality, or such desired. Other     set-screws, H H1, passing desired. Other set-screws, H H1,     passing c c 1, near their rear end, enable the adjustment ''c      c      retention of said box to a common vertical plane with the      upper arbor. The end of the lower arbor most remote from the     pulley I carries the driving-pulley J. It will be seen that,      on the loosening of four screws, the entire lower arbor and      journal-box may from the machine, without detaching from the      machine, without detaching part of the standard A1 is curved      part of the standard A1 is curved forward, as represented,      and has a slot, a, to hold and guide to vertical path a step      or saddle, K, to which is pivoted a the upper arbor-bearing L      L1. The saddle K the upper arbor-bearing LL1. The saddle K     has a horizontal extension, k, which a nut, t, that rests on      a spring or cushion, O, in the bottom of the slot a. The      screw M being turned to the right or left elevates or      depresses the upper arbor-bearing, and, in so doing, causes      the proper tension to be imparted to the saw. Another screw,     N, that is tapped in the lug l, bears against the face of the      saddle K, and enables the regulation, or angular adjustment,      in a vertical plane, of the upper arbor-bearing. The     above-described capacity for angular adjustment of the      band-pulley arbors in their common plane enables the operator      to confine the path of the saw nicely nicely to the middle of      the pulley, or to shift it more or less towards the front      front or back portions of their peripherise, so as to cause      all parts to be equally worn. The spring O, while co-acting     with the screw M to preserve the proper tension of the saw,      also imparts an elastic and yielding quality to the tension. * *  * While preferring the described relative positions of      the pivot-screws D D1, and laterally adjusting screws H H1,      we do not confine ourselves thereto, as the pivot screws may      be situated near the rear and the adjusting screws near the      front portion of the box.'''

'(1) The frame A A1 A%2D, in combination combination with the     lower arbor-bearing, said frame being constructed as herein      described with a depression, A', permitting the ready removal      of he arbor, as as explained. (2) The arrangement of frame A     A1 A%2D A", and of the horizontally and vertically adjustable      arborbearing C D D1 E E1 G H A. (3) The arrangement of step or saddle K and its contained box or bearing L L1. (4) in      combination with the upper arbor L1 the lower arbor-bearing      E, adjustable both vertically and horizontally, as shown and      described and for the purpose set forth. (5) In combination      with the lower arbor, the upper arbor-bearing, adjustable in      a vertical plane by means of the screw M, nut T, and spring      O, as and for the purpose designated. (6) The combination of      the slotted standard A1 a, saddle K k, arborbearing L L1 l,      nut T, screws M N, and spring or cushion O, as shown and      described, for the purpose set forth.'

As to claim 1, it is for a combination of the three-sided frame A A' A%2D, with the lower arbor-bearing, when the frame is constrcuted with a depression, A'", intervening between the columns A' and A%2D, which leaves exposed a seat which is entirely open upward, so as to give convenient access to the lower arbor-bearing, to attach, inspect, and regulate it, and also detach it, with its journal-box, by lifting the arbor and journal-box bodily upward without removing the pulley from the arbor. In the defendants' machine the seat is not entirely open upward, and there is a hole hole through the body of the frame to receive the lower arbor-bearing, and the arbor-bearing cannot be removed without detaching the pulley from the arbor. This claims is not infringed.

As to claim 2, it is for the arrangement and combination of the three-sided frame A A' A%2D and the depression A'" with the horizontally and vertically adjustable arbor-bearing, consisting of the pillowblock or pedestal C, the two co-axial horizontal bolts, D D', the box or bearing E E * §, the vertical set-screw G which adjusts the box E E * § to horizontality, the horizontal set-screw H which adjusts the box E E * § to a common vertical plane with the upper arbor, and the base A which carries the pillow-block or pedestal C. All these features in combination are made necessary in claim 2. It claims a combination of the frame and depression of claim 1 with the special construction of arbor-bearing set forth. The defendants do not have the frame and depression of claim 1, as already shown, and thus to not have that element of the combination covered by claim 2. Moreover, the co-axial bolts D D * § are a necessary feature of the peculiar arbor-bearing of the patent, and no such bolts are found in the defendants' machine; and, if it has any any means of adjusting the lower arbor-bearing, either horizontally or vertically, in the sense in which such adjustment is described in the patent, it has not the same means or equivalent means to what is found in the patent.

As to claim 3, it is for the arrangement of the step or saddle, K, with the upper arbor-bearing, L L * §, contained in it. What is the arrangement of the step or saddle, K, in connection with the arborbearing? The saddle moves through vertical slide-ways and it has pivoted to it a lug, l, which depends rigidly from the arbor-bearing. A screw, N, tapped into the lug, l, bears against the face of the saddle, so as to allow of the adjustment in a vertical plane of the upper arbor-bearing. The saddle has also a horizontal extension, k, which bears on the point of a screw, M, occupying a nut, T, which rests on a spring or cushion, O, in the bottom of the slot. By turning the screw, M, to the right or the left the upper arbor-bearing is elevated or depressed, and thus more or less tension is given to the saw. The spring, O, gives an elastic character to the tension. The effect of the arrangement or combination is to the tension. The effect of the arrangement or combination is to give an elastic vertical adjustment with the lug, l, and the extension, k, is to adjust the arbor-bearing up and sown and sidewise, and at the same time give an elastic tension to the saw. The spring carries the weight of the saddle. There can be no operative arrangement of the saddle with the arbor-bearing which does not include the lug, l, the screw, N, the extension, k, the screw M, the nut T, and the spring O. These are all elements in the arrangement or combination covered by claim 3. The spring is essential in the patent, as a part of claim 2. The defendants have a rigid saddle, and no spring. The fact that the spring is an element in claims 5 and 6 does not prevent its being an element in claim 3.

There being no infringements of of claims 2 and 3 there is none of claim 4.

The claims of the patents sued on in this case are claims for combinations. In such a claim, if the patentee specifies any element as entering into the combination, either directly by the language of the claim, or by such a reference to the descriptive part of the specification as carries such element into the claim, he makes such element material to the combination, and the court cannot declare it to be immaterial. It is his province to make his own claim and his privilege to restrict it. If it be a claim to a combination, and be restricted to specified elements, all must be regarded as material, leaving open only the question whether an omitted part is supplied by an equivalent device or instrumentality. Water-meter Co. v. Desper, 101 U.S. 332, 337; Gage v. Herring, 107 U.S. 640, 648; [S.C.. 2 Sup Cr. Rep. 819.]

The circuit court decreed a dismissal of the bill, and, the plaintiff having appealed, the decree is affirmed.

title: Fay v. Cordesman/Opinion of the Court


text: Talk:Fay v. Cordesman/Opinion of the Court


text:
Feibelman v. Packard (109 U.S. 421)

This action was originally brought by Nathan Feibelman, since deceased, and revived by his administrator, the plaintiff in error, by petition filed April 24, 1873, in the fourth district court for the parish of Orleans, in the state of Louisiana. Its object was to recover damages for unlawfully seizing and taking forcible possession of a stock of merchandise alleged by the plaintiff to have been his property and in his possession. The defendant Packard was alleged to be the marshal of the United States for the district of Louisiana, and the seizure and taking of the property is stated to have been under a claim of authority based upon a writ or warrant issued by the judge of the district court of the United States for the district of Louisiana in certain proceedings in bankruptcy instituted in that court by D. Valentine & Co. as creditors against E. Dreyfus & Co., but it is averred that the writ did not justify the acts complained of. The other defendants below were sureties on the official bond of Packard as marshal, and by an amendment to the original petition it is alleged 'that all the acts charged and complained of in said original petition by which the petitioners suffered the damages therein set forth were done by said Packard in his capacity of marshal aforesaid, and are breaches of the conditions of said bond, and give unto your petitioner this right of action on said bond against said marshal and his sureties.' On April 7, 1865, the defendants filed in the state court their petition for the removal of the cause to the circuit court of the United States for that district, accompanied by a sufficient bond, conditioned according to law, upon the ground that the suit arose under a law of the United States, but the application was denied; and thereafter, on April 22, 1875, they filed in the circuit court a petition for a writ of certiorari to remove the same into that court, which was granted. Thereafter the cause proceeded to final judgment in favor of the defendants in that court.

John Ray, for plaintiff in error.

J. R. Beckwith, for defendant in error.

MATTHEWS, J.

title: Feibelman v. Packard (109 U.S. 421)


text: Talk:Feibelman v. Packard (109 U.S. 421)


text:
Feibelman v. Packard (109 U.S. 421)/Opinion of the Court

The action of the circuit court in the removal of the cause from the state court is assigned for error, and is first to be considered. The suit was pending in the state court, but was not at issue, when the removal act of March 3, 1875, took effect, and the right of removal is regulated by its provisions. The ground of the removal was that the suit, being one of a civil nature at law, in which the matter in dispute, exclusive of costs, exceeded $500 in value, arose under the constitution and laws of the United States. It is clear that the circuit court did not err in directing the removal of the suit from the state court; for, if we look at the nature of the plaintiff's cause of action and the grounds of the defense, as set forth in his petition, it is apparent that the suit arose under a law of the United States. The action, as we have seen, was founded on the official bond of Packard as marshal of the United States for that district, his sureties being joined as co-defendants, and the acts complained of as illegal and injurious being charged to be breaches of its condition. The bond was required to be given by section 783, Rev. St., and section 784 expressly gives the right of action as follows:

'In the case of a breach of the condition of a marshal's     bond, any person thereby injured may institute, in his own      name and for his sole use, a suit on said bond and thereupon      recover such damages as shall be legally assessed, with costs      of suit, for which execution may issue for him in due form. If such party fails to recover in the suit, judgment shall be     rendered and execution may issue against him for costs in      favor of the defendant; and the United States shall in no      case be liable for the same.'

Section 785 and 786 contain provisions regulating the suit, the latter prescribing the limitation of six years after the cause of action has accrued, after which no such suit shall be maintained, with the usual saving in behalf of persons under disabilities.

The counsel for plaintiff in error assumes in argument that the suit was to recover damages for alleged trespasses. It was plainly upon the bond itself, and therefore arose directly under the provisions of an act of congress. Gwin v. Breedlove, 2 How. 29; Gwin v. Barton, 6 How. 7.

In McKee v. Rains, 10 Wall. 22, the removal of which was held to be unlawful, was made under the supposed authority of the act of March 3, 1863, and that of April 9, 1866. After the removal of the cause it was put at issue by the filing, on the part of the defendants, of an answer and an amended answer. In these answers it was alleged that in a proceeding in bankruptcy against Dreyfus & Co., duly commenced in the district court for that district by David Valentine & Co. as creditors, an order was made directing 'that the marshal take provisional possession of all the property of the said defendants, real and personal, belonging to the said firm of E. Dreyfus & Co., or the individual members thereof, and particularly the merchandise pretended to have been transferred to Moses Feibelman, atDelta, Louisiana, and all of the books of account, bankbooks, and papers of or relating to the business of said firm of E. Dreyfus & Co., and hold the same subject to the further orders of this court;' that a writ was issued in pursuance of that order to the defendant Packard, commanding him to execute said order, which is the writ mentioned in the plaintiff's petition; that, in obedience to the command of the said writ, the said marshal did take into his possession and custody the goods and property therein described and referred to, and none other; and that the said goods and property so taken and held are the same as those mentioned in the plaintiff's petition, the same having come into the possession of the plaintiff in pursuance of a fraudulent conspiracy between the plaintiff and Moses Feibelman and the members of the firm of E. Dreyfus & Co., the bankrupts, the object of which was to prevent the same from coming into the possession of the assignee in bankruptcy of said bankrupts, and so to cheat and defraud their creditors, the said goods and property being, when so seized, the property of said bankrupts, and not of the said Moses Feibelman, nor of the plaintiff, neither of whom were entitled to the possession of the same.

The plaintiff moved to strike from the answer the foregoing defense, which motion was overruled. This ruling of the court is assigned for error. The ground on which this assignment of error is predicated is, that by the law of Louisiana a person in possession of personal property as owner, claiming title, cannot be disturbed in that possession by a seizure under judicial process running against another person; that a transfer in fraud of creditors cannot be attacked by a seizure by the marshal or sheriff, under an execution against the debtor, of the property in the hands of a third possessor; and that, consequently, in this suit, in which it was admitted that the goods had been taken out of the possession of the plaintiff, it was not competent to set up as a defense actual title in the bankrupts.

In support of this proposition, we are referred by counsel to various sections of the Revised Civil Code of Louisiana, and to numerous decisions thereon by the supreme court of that state; and the statement is made that the decision of this court in Hozey v. Buchanan, 16 Pet. 215, which, it is admitted, is not reconcilable with the conclusion insisted upon, was made without the point having been mentioned or considered as to the law of Louisiana, under which the case arose. But it is entirely immaterial, in our view of the case, what the law of Louisiana upon the point is, for the reason that that law has no application to it. The question relates, not to any law of that state, but to a law of the United States, and is, whether under the bankrupt act of 1867 the district court of the United States, sitting in bankruptcy, has jurisdiction to order the seizure and detention of goods, the property of the bankrupt, although in possession of another under claim of title, and whether, in a subsequent action against the officer for obedience to such an order, he may justify the seizure by proof that the title to the property was at the time in the bankrupt. This was the very point decided by this court in Sharpe v. Doyle, 102 U.S. 686, a reference to which makes it unnecessary to repeat the grounds of the conclusion, that in such a case the defense here allowed, if established, should prevail.

All the other exceptions taken during the trial were directed to the admission of testimony in support of this defense, and are disposed of when the defense itself is adjudged to be valid.

There is, therefore, no error in the record, and the judgment is affirmed.


text: Talk:Feibelman v. Packard (109 U.S. 421)/Opinion of the Court


text:
Smith v. McNeal

'Defendants do not claim under, but adversely to, and deny the validity of plaintiffs' claim of title under the aforesaid acts of congress; and the validity of plaintiffs' claim of title under the aforesaid acts of congress is the only question in controversy between the plaintiffs and defendants.'

The defendants pleaded the seven-years' limitation prescribed by the statute of Tennessee, to which the plaintiffs pleaded the following replication:

'Now come the plaintiffs, by attorneys, and as to defendants' plea herein pleaded say, that on the thirty-first of December, 1873, and within seven years from the time the plaintiffs' cause of action accrued, the plaintiffs brought suit against defendants in this court to recover possession of the same premises whereof plaintiffs here now seek to recover possession; and the said suit was commenced upon the same cause of action that the plaintiffs' now writ and action are founded; that the said action, so commenced as aforesaid, was duly prosecuted by plaintiffs until the first of September, 1877, upon which day a judgment (which said judgment remaining of record in this court is referred to) was therein rendered by said circuit court upon a ground not concluding their said right of action. The record of said former suit remains in this court, and plaintiffs here make profert of the same; all of which plaintiffs are willing to certify.'

The defendants demurred to this replication on two grounds: First, because it appeared, by the judgment referred to and made a part of the replication, that said judgment was upon the merits; and, second, because it appeared from the record of said former suit that the court in which it was brought had no jurisdiction thereof, and said suit was dismissed for want of jurisdiction. The cause was heard upon this demurrer, which the court sustained, and entered judgment dismissing plaintiffs' suit. To reverse that judgment this writ of error is prosecuted.

D. E. Myers, W. M. Sneed, S. P. Walker, S. Shellabarger, and J. M. Wilson, for plaintiffs in error.

P. Phillips and W. Hallett Phillips, for defendants in error.

WOODS, J.

title: Smith v. McNeal


text: Talk:Smith v. McNeal

title: Talk:Smith v. McNeal


text:
Smith v. McNeal/Opinion of the Court

The question presented by the record is the sufficiency of the plaintiffs' replication to the defendants' plea of the seven-years' statute of limitation. The limitation relied on by defendants is that prescribed by article 2765 of the Code of Tennessee, which is as follows:

'No person, or any one claiming under him, shall have any     action, either at law or in equity, for any lands, etc., but      within seven years after the right of action has accrued.'

The plaintiffs in error contend that their present action is saved from the bar of this statute by the provision of article 2755 of the Code, which is as follows:

'If the action is commenced within the time limited, but the     judgment or decree is rendered against the plaintiff upon any      ground not concluding his right of action, or when the      judgment or decree is rendered in favor of the plaintiff and      is arrested or reversed on appeal, the plaintiff or his      representatives or privies may commence a new action within      one year after the reversal in arrest.'

The question of law upon which the parties are at issue is whether the judgment rendered February 24, 1877, by which the suit begun December 31, 1873, was dismissed, the dismissal being on the ground that the court had no jurisdiction of the cause of action set out in the declaration, falls within the saving of this section as being rendered on a ground not concluding the plaintiffs' right of action. It is well settled that the judgment of a court dismissing a suit for want of jurisdiction does not conclude the plaintiffs' right of action.

In Walden v. Bodley, 14 Pet. 156, it was said by this court:

'A decree dismissing a bill generally may be set up in bar of     a second bill having the same object in view, but when the      bill has been dismissed on the ground that the court had no      jurisdiction, which shows that the merits were not heard, the      dismissal is not a bar to the second suit.'

So in the case of Hughes v. U.S. 4 Wall. 232, this court declared:

'In order that a judgment may constitute a bar to another     suit it must be rendered in a proceeding between the same      parties or their privies, and the point of controversy must      be the same in both cases, and must be determined on its      merits. If the first suit was dismissed for defect of     pleadings or parties, or a misconception of the form of      proceeding, or the want of jurisdiction, or was disposed of      on any ground which did not go to the merits of the action,      the judgment rendered will prove no bar to another suit.' See      also, Greenl. Ev. §§ 529, 530, and cases there cited.

These cases would seem to settle the question against defendants in error, for they decide that the dismissal of a suit for want of jurisdiction is upon a ground not concluding the right of action. Defendants in error, however, contend that the bringing of a suit in a court having no jurisdiction thereof was gross negligence, and that the current of authority is against extending the terms of the statute to let in one guilty of it. Cases might be supposed, perhaps, where the want of jurisdiction in the court was so clear that the bringing of a suit therein would show such gross negligence and indifference as to cut the party off from the benefit of the saving statute, as if an action of ejectment should be brought in a court of admiralty, or a bill in equity should be filed before a justice of the peace. But the suit between these parties, which was begun December 31, 1873, is far from being such a case. There is nothing in the record to show that it was dismissed for any inherent want of jurisdiction in the court in which it was brought. We think that on December 31, 1873, when said first suit was brought, the circuit courts of the United States, under the second section of the act of congress of March 3, 1833, entitled 'An act further to provide for the collection of duties on imports,' (4 St. 632,) had jurisdiction of a suit brought to recover lands purchased at a sale for taxes made under authority of the act of June 7, 1862, for the collection of taxes in insurrectionary districts, where the title so derived was disputed by defendants. The defect was in the declaration, which, although it averred that plaintiffs claimed title under the revenue laws of the United States, did not aver that their title in that respect was disputed by defendants. Had such an averment been made, the jurisdiction of the court would have appeared on the face of the declaration. Ex parte Smith, 94 U.S. 455. The first suit was therefore dismissed, because the declaration did not state the jurisdictional facts upon which the right of the court to entertain the suit was brought. In other words, the case was dismissed for a defect in pleading. In the present suit the defect of the declaration in the first suit is supplied. We are of opinion, therefore, that the plaintiffs in error are entitled to the benefit of article 2755 of the Code of Tennessee, for their judgment in the first suit was not upon any ground concluding their right of action, nor have they been guilty of such negligence or carelessness in the bringing of their first suit as should exclude them from the benefit of the said article. In support of the proposition that plaintiffs in error have not been guilty of such negligence as should exclude them from the benefit of article 2755, the case of Cole v. Mayor, etc., 5 Cold. (Tenn.) 639, is much in point. See, also, Memphis & C. R. Co. v. Pillow, 9 Heisk. (Tenn.) 248; Weathersly v. Weathersly, 31 Miss. 662; Woods v. Houghton, 1 Gray, 580; Coffin v. Cuttle, 16 Pick. 386; Givens v. Robbins, 11 Ala. 156, Skillington v. Allison, 2 Hawks, (N. C.) 347; Lansdale v. Cox, 7 J. J. Marsh. 394; Phelps v. Wood, 9 Vt. 404; Spear v. Newell, 13 Vt. 288; Mathews v. Philips, 2 Salk. 425; Kinsey v. Hayward, 1 Ld. Raym. 434.

The judgment of the circuit court must be reversed, and the cause remanded to the circuit court for further proceedings in conformity with this opinion.

title: Smith v. McNeal/Opinion of the Court


text: Talk:Smith v. McNeal/Opinion of the Court


text:
Bailey v. United States

By a decree passed March 25, 1868, in the district court of the United States for the southern district of New York, certain sums of money were ascertained to be due on account of the illegal capture of the British steamer Labuan and her cargo by a cruiser of the United States. On the sixth day of February, 1869, William Bailey, William Leetham, James Leetham, and Elizabeth Leetham, British subjects, executed and delivered a power of attorney-in which they described themselves as then or late owners of said steamer-constituting one A. E. Godeffroy, of New York, their attorney, with authority to receive from the government of the United States, and from all and every person or persons whom it might concern to pay or satisfy the same, all moneys then or which might thereafter become due and payable to them with reference to said vessel Labuan; upon receipt thereof, to execute acquittances, releases, and discharges for the same; and, upon non-payment thereof, to collect said moneys by such necessary actions, suits, or expedients as their attorney deemed proper.

By an act of congress approved July 7, 1870, it was, among other things, provided 'that there be paid, out of any money in the treasury not otherwise appropriated, to William Bailey, William Leetham, and John Leetham, of England, or their legal representatives, owners of the British steamer Labuan, $131,221.30, with interest from June 2, 1862, to the time of payment, and five thousand dollars without interest.' The act declares that such sums are due under the before-mentioned decree of March 25, 1868. At the date of this act the owners, in different proportions, of the Labuan were William Bailey, William Leetham, and the executors and executrix of John Leetham, who were William Leetham, James Leetham, and Elizabeth Leetham.

An account between the United States and said owners, based upon the said act of July 7, 1870, having been examined, adjusted, admitted, and certified by the proper officers of the treasury, a warrant was made, upon which a draft was issued on the treasurer of the United States for the sum of $200,070.34, payable 'to Wm. Bailey, Wm. Leetham, and John Leetham, of England, or their legal representatives, or order.' This draft was delivered to Godeffroy, with this indorsement thereon: 'Pay on the indorsement of A. E. Godeffroy, atty. in fact. R. W. TAYLOR, Comptroller.' The draft having been indorsed in the names of the payees, by himself as their attorney in fact, Godeffroy received the proceeds, but has never paid to the parties named in the act of congress, or to any one for them, any part of the sum collected by him from the United States. The treasury department refused, although requested by appellants or their agents, to make further payment. Thereupon this action was brought in the court of claims to recover the amount specified in the act of congress. Judgment was rendered for the United States, and the present appeal questions the correctness of that judgment.

Nathaniel Wilson and J. Hubley Ashton, for appellants.

[Argument of Counsel from pages 433-435 intentionally omitted]

''Sol. Gen. Phillips'', for appellee.

HARLAN, J.

It is contended, on behalf of appellants, that the power of attorney executed in 1869 to Godeffroy-upon the authority of which alone was payment made to him-was, under the laws of the United States, absolutely null and void; consequently, no payment under it could bind the claimants or discharge the government from its obligation to pay the sums specified in the act of 1870. This presents the controlling question on the present appeal. Its determination depends upon the construction to be given to the act of July 29, 1846, (9 St. 41,) entitled 'An act in relation to the payment of claims,' and to the first and seventh sections of the act of February 26, 1853, (10 St. 170,) entitled 'An act to prevent frauds upon the treasury of the United States.'

The act of 1846 related to claims against the United States allowed by a resolution or act of congress. That statute directed that they should not be paid to any other person than the claimant, his executor or administrator, unless upon the production to the proper disbursing officer of a warrant of attorney executed 'after the enactment of the resolution or act allowing the claim.' The first section of the act of 1853 declares that 'all transfers and assignments hereafter made of any claim upon the United States, or any part of or share thereof, or interest thereon, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, or orders, or other authorities for receiving payment of any such claim, or any part or share thereof, shall be absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses, after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof.' That act further provides (section 7) that its provisions and those of the act of 1846 shall 'apply and extend to all claims against the United States, whether allowed by special acts of congress, or arising under general laws or treaties, or in any other manner whatever.' These enactments have been under examination in several cases heretofore decided in this court, some of which are now relied on to support the proposition that officers of the treasury were forbidden, by statute, from recognizing Godeffroy, under any circumstances, as agent of claimants, with authority, as between them and the government, to receive the warrant and draft when issued. But we do not understand that any of these cases involved the precise question now presented for determination.

In U.S. v. Gillis, 95 U.S. 414, it was ruled that a claim against the United States could not be assigned so as to enable the assignee to bring suit against the government in his own name in the court of claims. In Spofford v. Kirk, 97 U.S. 484, the question was as to the validity of certain orders drawn by a claimant before the allowance of his claim, upon the attorneys having it in charge, directing the latter to pay certain sums out of the proceeds when collected, and which orders, being accepted by the attorneys, were purchased by Spofford in good faith and for value. Upon the treasury warrant being issued, the claimant refused to admit the validity either of the orders he had given or the acceptances made by his attorneys. Thereupon Spofford sought, by suit against the claimant and his attorneys, to enforce a compliance with the orders and acceptances, of which he had become assignee and holder. The court adjudged that the transfer or assigment to Spofford was, under the act of 1853.-carried into the Revised Statutes, § 3477,-a nullity as between him and the claimant. No question arose in that case as to what would have been the effect upon the rights of the claimant had the officers of the government recognized the assignment to Spofford. In Erwin v. U.S. 97 U.S. 392, it was ruled that the act of 1853 applied to cases of voluntary assignments of demands against the government, and did not embrace cases where the title is transferred by operation of law. 'The passing of claims to heirs, devisees, or assignees in bankruptcy,' said the court, 'are not within the evil at which the statute aimed.'

But what was said in Goodman v. Niblack, 102 U.S. 559, seems to be more directly in point. That was the case of a voluntary assignment by a debtor of his property for the benefit of creditors, including his rights, credits, effects, and estate of every description. The assignment embraced a claim of the assignor arising under a contract with the United States. It was adjudged in the court of original jurisdiction that, as to that claim, the assignment was rendered invalid by the act of 1853. But the language of this court, speaking by Mr. Justice MILLER, was:

title: Bailey v. United States


text: Talk:Bailey v. United States

title: Talk:Bailey v. United States


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

'It is understood that the circuit court sustained the     demurrer under the pressure of the strong language of the      opinion in Spofford v. Kirk. We do not think, however, that     the circumstances of the present case bring it within the one      then under consideration, or the principles there laid down. That was a case of the transfer or assignment of a part of a     disputed claim, then in controversy, and it was clearly      within all the mischiefs designed to be remedied by the      statute. Those mischiefs, as laid down in that opinion, and     in the others referred to, are mainly two: (1) The danger      that the rights of the government might be embarrassed by      having to deal with several persons instead of one, and by      the introduction of a party who was a stranger to the      original transaction; (2) that by a transfer of such a claim      against the government to one or more persons not originally      interested in it, the way might be conveniently opened to      such improper influences in prosecuting the claim before the      departments, the courts, or the congress, as desperate cases,      where the reward is contingent on success, so often suggest.'

'But these considerations,' the court proceeded to say, 'as well as a careful examination of the statute, leave no doubt that its sole purpose was to protect the government and not the parties to the assignment.'

These cases show that the statutes in question are not to be interpreted according to the literal acceptation of the words used. They show that there may be assignments or transfers of claims against the government which are not forbidden.

In the case before us no question arises as to the transfer or assignment of a claim against the government. The question is whether payment to one, who has been authorized to receive it, by the power of attorney executed before the allowance of the claim by the act of congress, was good as between the government and the claimant, where, at the time of payment, such power of attorney was unrevoked. If, in respect of transfers or assignments of claims, the purpose of the statute, as ruled in Goodman v. Niblack, was to protect the government, not the claimant in his dealings with the government, it is difficult to perceive upon what ground it could be held that the statutory inhibition upon powers of attorney in advance of the allowance of the claim and the issuing of the warrant, can be used to compel a second payment after the amount thereof has been paid to the person authorized by the claimant to receive it. A mere power of attorney given before the warrant is issued-so long, at least, as it is unexecuted-may undoubtedly be treated by the claimant as absolutely null and void in any contest between him and his attorney in fact. And it may be so regarded by the officers of the government whose duty it is to adjust the claim and issue a warrant for its amount. But if those officers chose to make payment to the person whom the claimant, by formal power of attorney, has accredited to them, as authorized to receive payment, the claimant cannot be permitted to make his own disregard of the statute the basis for impeaching the settlement had with his agent. To hold otherwise would be inconsistent with the ruling heretofore made-and with which, upon consideration, we are entirely satisfied-that the purpose of congress, by the enactments in question, was to protect the government against frauds upon the part of claimants and those who might become interested with them in the prosecution of claims, whether before congress or the several departments.

The title of the act of 1853 suggests this purpose. It is to prevent frauds upon the treasury. An effectual means to that end was to authorize the officers of the government to disregard any assignment or transfer of a claim, or any power of attorney to collect it, unless made or executed after the allowance of the claim, the ascertainment of the amount due thereon, and the issuing of the warrant for the payment thereof. Other sections of the statute-those forbidding officers of the government and members of congress from prosecuting or becoming interested in claims against the government, and those punishing the bribery or undue influencing of such officers or members-sustain the view that what was in the mind of congress was to protect the government in the matter of claims against it. But if the protection of claimants was at all in the mind of congress when passing the acts of 1846 and 1853, it is quite certain that the courts should not, to the injury of the government, extend that protection to those who elected not to avail themselves of the provisions of those statutes. Here it is not denied that the power of attorney executed in 1869 embraces and was intended to embrace the claims arising out of the decree of 1868, from whatever source the money in satisfaction of it might be derived. Nor is it pretended that such power of attorney had been revoked prior to the adjustment and payment of the claims in question.

It seems to us-looking at the mischiefs intended to be remedied by these statutes and giving the words of congress a reasonable interpretation-that the officers of the treasury were at liberty, as between the government and the claimants, to recognize the unrevoked authority which the latter had given to Godeffroy, without restriction as to time, to receive from any one whom it might concern to pay all sums of money due or to become due and payable on account of the seizure of the vessel Labuna.

The judgment must therefore be affirmed. It is so ordered.


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


text:
Jackson v. Roby Roby

John D. Pope, for Jackson.

Amos Steck, for Roby and Rankin.

FIELD, J.

title: Jackson v. Roby Roby


text: Talk:Jackson v. Roby Roby

title: Talk:Jackson v. Roby Roby


text:
Jackson v. Roby Roby/Opinion of the Court

Previous to the legislation of congress in 1866, mining claims upon the public lands of the United States were held under rules framed by miners themselves in different localities. These rules prescribed the extent of ground which miners could severally appropriate for mining, and the conditions upon which such ground could be acquired and held. They bore a general similarity in different districts, varying only according to the extent and character of the mines. They all agreed in one particular,-in recognizing discovery and appropriation as the source of title, and development by working as the condition of continued possession. The first discoverer could derive no benefit from his discovery unless he followed it up by work for the development of his claim; and what that work should be, the nature and extent of it, how soon it should commence after the discovery, and when its suspension should be deemed an abandonment of the claim, were specifically declared. The act of congress of 1866 gave the sanction of law to these rules of miners, so far as they were not in conflict with the laws of the United States. 14 St. c. 262, § 1. Subsequent legislation specified with greater particularity the modes of location and appropriation and extent of each mining claim, recognizing, however, the essential features of the rules framed by miners, and, among others, that which required work on the claim for its development as a condition of its continued ownership. The act of 1872-and its provisions are re-enacted in the Revised Statutes-declares that on each claim subsequently located, until a patent for it is issued, there shall be annually expended for labor or improvements $100, and on claims previously located, an annual expenditure of $10 for each 100 feet in length along the vein; and provides that when such claims are held in common, the expenditure may be upon any one of them. And it declares that upon a failure to comply with these conditions the claim shall be opened for relocation in the same manner as if no location of the same had ever been made, provided the original locators, their assigns or representatives have not resumed work upon it after failure and before relocation. 17 St. c. 152, § 5.

The act also points out various steps which must be followed by a party who seeks to obtain a patent for his mining claim. Among other things he must file an application in the proper land-office, under oath, showing a compliance with the law, together with a plat and the field-notes of his claim or claims made under the direction of the surveyor general of the United States, showing its or their boundaries. He must also at the time, or within 60 days thereafter, file with the register a certificate of the surveyor general that $500 worth of labor has been expended or improvements to that amount have been made upon the claim by himself or grantors. If within 60 days thereafter an adverse claim is filed, accompanied by the oath of the party making it, showing its nature, boundaries, and extent, proceedings are to be stayed until the controversy has been settled by the decision of a court of competent jurisdiction, or the adverse claim is waived. And it is made the duty of the adverse claimant, within 30 days afterwards, to commence legal proceedings to determine the question of the right of possession.

In this case it appears that the defendants claimed the premises in controversy as their mining ground, and made application for a patent. The premises are situated on Blue river, in the county of Summit, in the state of Colorado, and embrace 23.48 acres. The plaintiff asserted an adverse right to them as part of what is called in the record 'The Thomas Klak Claim,' and brought the present action to determine his right of possession. In his complaint he alleges that on the ninth of August, 1876, he was the owner of the Klak claim, and ever since has been such owner, and entitled to its possession; that he worked the same as a placer mining claim in connection with other claims adjacent and contiguous to it; that the defendants sometime in 1880 entered upon a part of said claim-that portion now in controversy-and have ever since wrongfully withheld its possesion from him. He avers that the premises are worth $50,000; that the action is brought in support of his adverse claim; and he asks judgment for possession of the premises. The defendants, besides denying the allegations of the plaintiff, set up a a right to a portion of the premises by location and occupation under the mining rules of the district, and to the remainder by purchase from the original locators.

On the trial the plaintiff produced and gave in evidence a certificate of location of the Klak claim made by his grantors in 1869, and also showed that they were owners of claims in what is called Lomax Gulch, adjoining and contiguous to the Klak claim, and began to work such adjoining claims in 1872, and continued the work until and during 1880; that in prosecuting the work they used a flume which extended over the premises in controversy a distance of 150 feet, by means of which the tailings from the Lomax gulch that is, the waste material-were carried and deposited on the premises, so that at the end they covered a greater portion of them-more than one-third thereof. From them the plaintiff traced his title. With the exception of the extension of the flume over the premises, and their use as a place of deposit for the waste material from the adjoining claims, it was not shown that either he or his grantors ever did any work upon them, or ever had possession of them. He insisted, however, that this extension of the flume and use of the premises were sufficient to give him the right of possession under that clause of the statute which provides that where several mining claims are held in common the labor or expenditure required may be made on any one of them. The court below held, and so instructed the jury, that these facts were insufficient to establish any possession or right of possession in him, and that, therefore, he was not entitled to a verdict. The defendants proved the location in July, 1880, of a portion of the premises in controversy, then vacant and unoccupied, and a purchase of the remainder from previous locators; but they gave no evidence that any work on the claim was done by themselves or their grantors; and the court held that they had not established a title for the consideration of the jury, who were directed so to find. The jury brought in a verdict that neither party had proven title to the property. The effect of this verdict was to leave the defendants, who had applied for a patent, without any right to it, so far as the premises in controversy were concerned, and to leave the plaintiff in no better situation.

The contention of the plaintiff was made upon a singular misapprehension of the meaning of the act of congress, where work or expenditure on one of several claims held in common is allowed, in place of the required expenditure on the claims separately. In such case the work or expenditure must be for the purpose of developing all the claims. It does not mean that all the expenditure upon one claim-which has no reference to the development of the others-will answer. As was said in Smelting Co. v. Kent:

'Labor and improvements, within the meaning of the statute,     are deemed to have been had on a mining claim, whether it      consists of one location or several, when the labor is      performed or the improvements are made for its development,      that is, to facilitate the extraction of the metals it may      contain,-though in fact such labor and improvements may be on      ground which originally constituted only one of the      locations, as in sinking a shaft, or be at a distance from the claim itself, as where the labor is performed for      the turning of a stream or the introduction of water, or      where the improvement consists of the construction of a flume      to carry off the debris or waste material.' 104 U.S. 655.

It often happens that for the development of a mine upon which several claims have been located, expenditures are required exceeding the value of a single claim, and yet without such expenditures the claim could not be successfully worked. In such cases it has always been the practice for the owners of different locations to combine, and to work them as one general claim; and expenditures which may be necessary for the development of all the claims may then be made on one of them. The law does not apply to cases where several claims are held in common, and all the expenditures made are for the development of one of them, without reference to the development of the others. In other words, the law permits a general system to be adopted for adjoining claims held in common, and in such case the expenditures required may be made or the labor be performed upon any one of them.

The language as to the construction of a flume to carry off the debris or waste material, at the conclusion of the citation above, has reference to such a structure as may be used to carry off the common debris of several claims, not to a flume used merely to remove the debris of one claim. Here no work was done for the general improvement of all the claims. The deposit of the debris from the Lomax gulch on the premises in controversy, so far from tending to develop them, imposed obstacles in the way of their development, by covering them up with refuse matter. There having been no work done by either claimant, plaintiff or defendants, on the premises in controversy, the court properly instructed the jury to find against both.

Judgment affirmed.


text: Talk:Jackson v. Roby Roby/Opinion of the Court


text:
Cunningham v. Macon and Brunswick Railroad Company

A. G. Magrath and W. W. Montgomery, for appellant.

Joseph H. Choate and Clifford Anderson, for appellees.

MILLER, J.


text: Talk:Cunningham v. Macon and Brunswick Railroad Company