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Gloucester Ferry Company v. Commonwealth of Pennsylvania/Opinion of the Court

The supreme court of the state, in giving its decision, stated that the single question presented for consideration was whether the company did business within the state of Pennsylvania during the period for which the taxes were imposed; and it held that it did do business there, because it landed and received passengers and freight at its wharf in Philadelphia, observing that its whole income was derived from the transportation of freight and passengers from its wharf at Gloucester to its wharf at Philadelphia, and from its wharf at Philadelphia to its wharf at Gloucester; that at each of these points its main business, namely, the receipt and landing of freight and passengers, was transacted; that for such business it was dependent as much upon the one place as upon the other; that, as it could hold the wharf at Gloucester, which it owned in fee, only by purchase by virtue of the statutory will of the legislature of New Jersey, so it could hold by lease the one in Philadelphia only by the implied consent of the legislature of the commonwealth; and that, therefore, it 'was dependent equally, not only for its business, but its power to do that business, upon both states, and might therefore be taxed by both.' 98 Pa. St. 105, 116.

As to the first reason thus expressed, it may be answered that the business of landing and receiving passengers and freight at the wharf in Philadelphia is a necessary incident to, indeed is a part of, their transportation across the Delaware river from New Jersey. Without it that transportation would be impossible. Transportation implies the taking up of persons or property at some point and putting them down at another. A tax, therefore, upon such receiving and landing of passengers and freight is a tax upon their transportation; that is, upon the commerce between the two states involved in such transportation.

It matters not that the transportation is made in ferry-boats which pass between the states every hour of the day. The means of transportation of persons and freight between the states does not change the character of the business as one of commerce, nor does the time within which the distance between the states may be traversed. Commerce among the states consists of intercourse and traffic between their citizens, and includes the transportation of persons and property, and the navigation of public waters for that purpose, as well as the purchase, sale, and exchange of commodities. The power to regulate that commerce, as well as commerce with foreign nations, vested in congress, is the power to prescribe the rules by which it shall be governed, that is, the conditions upon which it shall be conducted; to determine when it shall be free, and when subject to duties or other exactions. The power also embraces within its control all the instrumentalities by which that commerce may be carried on, and the means by which it may be aided and encouraged. The subjects, therefore, upon which the power may be exerted are of infinite variety. While with reference to some of them, which are local and limited in their nature or sphere of operation, the states may prescribe regulations until congress intervenes and assumes control of them, yet, when they are national in their character, and require uniformity of regulation affecting alike all the states, the power of congress is exclusive. Necessarily that power alone can prescribe regulations which are to govern the whole country. And it needs no argument to show that the commerce with foreign nations and between the states, which consists in the transportation of persons and property between them, is a subject of national character, and requires uniformity of regulation. Congress alone, therefore, can deal with such transportation; its non-action is a declaration that it shall remain free from burdens imposed by state legislation. Otherwise, there would be no protection against conflicting regulations of different states, each legislating in favor of its own citizens and products, and against those of other states. It was from apprehension of such conflicting and discriminating state legislation, and to secure uniformity of regulation, that the power to regulate commerce with foreign nations and among the states was vested in congress. Nor does it make any difference whether such commerce is carried on by individuals or by corporations. Welton v. State of Missouri, 91 U.S. 275; County of Mobile v. Kimball, 102 U.S. 691. As was said in Paul v. Virginia, at the time of the formation of the constitution, a large part of the commerce of the world was carried on by corporations; and the East India Company, the Hudson Bay Company, the Hamburgh Company, the Levant Company, and the Virginia Company were mentioned as among the corporations which, from the extent of their operations, had become celebrated throughout the commercial world. 8 Wall. 168. The grant of power is general in its terms, making no reference to the agencies by which commerce may be carried on. It includes commerce by whomsoever conducted, whether by individuals or by corporations. At the present day nearly all enterprises of a commercial character, requiring for their successful management large expenditures of money, are conducted by corporations. The usual means of transportation on the public waters, where expedition is desired, are vessels propelled by steam; and the ownership of a line of such vessels generally requires an expenditure exceeding the resources of single individuals. Except in rare instances, it is only by associated capital furnished by persons united in corporations that the requisite means are provided for such expenditures.

As the second reason given for the decision below, that the company could not lease its wharf in Philadelphia except by the implied consent of the legislature of the commonwealth, and thus is dependent upon the commonwealth to do its business, and therefore can be taxed there, it may be answered that no foreign or interstate commence can be carried on with the citizens of a state without the use of a wharf, or other place within its limits on which passengers and freight can be landed and received, and the existence of power in a state to impose a tax upon the capital of all corporations engaged in foreign or interstate commerce for the use of such places would be inconsistent with and entirely subversive of the power vested in congress over such commerce. Nearly all the lines of steam-ships and of sailing vessels between the United States and England, France, Germany, and other countries of Europe, and between the United States and South America, are owned by corporations; and if by reason of landing or receiving passengers and freight at wharves, or other places in a state, they can be taxed by the state on their capital stock, on the ground that they are thereby doing business within her limits, the taxes which may be imposed may embarrass, impede, and even destroy such commerce with the citizens of the state. If such a tax can be levied at all, its amount will rest in the discretion of the state. It is idle to say that the interests of the state would prevent oppressive taxation. Those engaged in foreign and interstate commerce are not bound to trust to its moderation in that respect; they require security. And they may rely on the power of congress to prevent any interference by the state until the act of commerce, the transportation of passengers and freight, is completed. The only interference of the state with the landing and receiving of passengers and freight, which is permissible, is confined to such measures as will prevent confusion among the vessels, and collision between them, insure their safety and convenience, and facilitate the discharge or receipt of their passengers and freight, which fall under the general head of port regulations, of which we shall presently speak.

It is true that the property of corporations engaged in foreign or interstate commerce, as well as the property of corporations engaged in other business, is subject to state taxation, provided, always, it be within the jurisdiction of the state. As said by Chief Justice MARSHALL, in McCulloch v. Maryland, 4 Wheat. 429: 'All subjects over which the sovereign power of a state extends are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident.'

In Hays v. Pacific Mail S. S.C.o. 17 How. 596, the defendant, a corporation of New York, owned steam-vessels employed in the transportation of passengers and freight between New York and San Francisco, and between New York and different ports in Oregon, which were registered in New York. The principal office of the company for transacting its business was also in New York, though, for its better management, agencies were established in Panama and in San Francisco. It had a naval dock and ship-yard at Benicia, in California, for furnishing and repairing its steamers. On their arrival at the port of San Francisco, they remained only long enough to land their passengers, mail, and freight, which was usually done in a day, and then proceeded to Benicia, where they remained for repairs and refitting until the commencement of the next voyage, which was generally some 10 or 12 days. It was held that the vessels were not subject to taxation in California, as they were only temporarily there while engaged in lawful trade and commerce that their situs was at their home port, where their owners were liable to be taxed for the capital invested. The court, in giving its decision, said that the ships are 'engaged in the business and commerce of the country, upon the highway of nations, touching at such ports and places as these great interests demand, and which hold out to the owners sufficient inducements by the profits realized or expected to be realized. And so far as respects the ports and harbors within the United States, they are entered, and cargoes discharged or laden on board, independently of any control over them, except as it respects such municipal and sanitary regulations of the local authorities as are not inconsistent with the constitution and laws of the general government, to which belongs the regulation of commerce with foreign nations and between the states. Now, it is quite apparent that if the state of California possessed the authority to impose the tax in question, any other state in the Union, into the ports of which the vessels entered in the prosecution of their trade and business, might also impose a like tax.'

In Morgan v. Parham, 16 Wall. 471, it was held that a vessel registered in New York was not subject to taxation in Alabama, though engaged in commerce as one of a regular line of steamers between Mobile, in that state, and New Orleans, in Louisiana. In rendering the decision it was said: 'It is the opinion of the court that the state of Alabama had no jurisdiction over this vessel for the purpose of taxation, for the reason that it had not become incorporated into the personal property of that state, but was there temporarily only, and that it was engaged in lawful commerce between the states, with its situs at the home port of New York, where it belonged, and where its owner was liable to be taxed for its value,' referring to the case of Hays v. Pacific Mail S. S.C.o. as decisive of the case, and adding: 'The jurisdiction of this court over the present case, as in the case of Hays v. Pacific Mail S. S.C.o., arise from the facts-First, that the property had not become blended with the business and commerce of Alabama, but remained legally of and as in New York; and, secondly, that the vessel was lawfully engaged in the interstate trade over the public waters. It is in law as if the vessel had never before been within the port of Mobile, but, touching there on a single occasion when engaged in the interstate trade, had been subjected to a tax as personal property of that city. Within the authorities it is an interference with the commerce of the country not permitted to the states.'

In St. Louis v. Ferry Co. 11 Wall. 423, the company was incorporated by Illinois to run a ferry from a place opposite St. Louis to that city across the Mississippi. It had its principal place of business in St. Louis, in which its chief officers resided, and there the business meetings of its directors were held. Its engineers and subordinate officers resided in Illinois, where its real estate was situated. Its ferry-boats, when not in use, were laid up in Illinois and forbidden to remain at the wharf in St. Louis. It paid a ferry license to St. Louis and a wharfage tax for the use of its wharf there. In addition to these charges the city authorities assessed a tax on the company for the value of the boats as property within the city, all property within it being taxable under a statute of the state. The court held that the tax was illegally levied, as the boats were not property within the city, and said: 'Where there is jurisdiction neither as to person nor property, the imposition of a tax would be ultra vires and void. If the legislature of a state should enact that the citizens or property of another state or country should be taxed in the same manner as the persons and property within its own limits and subject to its authority, or in any other manner whatsoever, such a law would be as much a nullity as if in conflict with the most explicit constitutional inhibition. Jurisdiction is as necessary to valid legislative as to valid judicial action.'

In Railroad Co. v. Pennsylvania, 15 Wall. 300, sometimes called 'Case of State Tax on Foreign-held Bonds,' which was brought here on a writ of error to the supreme court of the state, this court said that 'the power of taxation, however vast in its character and searching in its extent, is necessarily limited to subjects within the jurisdiction of the state. These subjects are persons, prop rty, and business.' This proposition would seem, as stated by Chief Justice MARSHALL, to be self-evident, and no force of expression could add to its manifest truth.

In the recent case of Com. v. Standard Oil Co. 101 Pa. St. 119, the liability of foreign corporations doing business within that state is elaborately considered by its supreme court. The corporation was doing business there, and it was contended on the part of the commonwealth that the tax should be imposed upon all of the capital stock of the company; while on the other side it was urged that only so much of the stock was intended, by the statute, to be taxed as was represented by property of the company invested and used in the state. In giving its decision the court said that it had been repeatedly decided and was settled law that a tax upon the capital stock of a company is a tax upon its property and assets, (citing to that effect a large number of decisions;) that it was undoubtedly competent for the legislature to lay a franchise or license tax upon foreign corporations for the privilege of doing business within the state, but that the tax in that case was in no sense a license tax; that the state had never granted a license to the Standard Oil Company to do business there, but merely taxed its property-that is, its capital stock-to the extent that it brought such property within its borders in the transaction of its business; that the position of the commonwealth, that a foreign corporation entering the state to do business brought its entire capital, was ingenious but unsound; that it was a fundamental principle that, in order to be taxed, the person must have a domicile in the state, and the thing must have a situs therein; that persons and property in transitu could not be taxed; that the domicile of a corporation was in the state of its origin, and it could not emigrate to another sovereignty; that the domicile of the Standard Oil Company was in Ohio, and when it sent its agents into the state to transact business it no more entered the state in point of fact than any other foreign corporation, firm, or individual who sent an agent there to open an office or branch house, nor brought its capital there constructively; that it would be as reasonable to assume that a business firm in Ohio brought its entire capital there because it sent its agent to establish a branch of its business, as to hold that the Standard Oil Company, by employing certain persons in the state to transact a portion of its business, thereby brought all its property or capital stock within the jurisdiction of the state; that there was neither reason nor authority for such a proposition; that the company was taxable only to the extent that it brought its property within the state; and that its capital stock, as mentioned in the act of the legislature, must be construed to mean so much of the capital stock as was measured by the property actually brought within the state by the company in the transaction of its business. The justice who delivered the opinion of the court added, speaking for himself, that he conceded the power of the commonwealth to exclude foreign corporations altogether from her borders, or to impose a license tax so heavy as to amount to the same thing; but he denied, great and searching as her taxing power is, that she could tax either persons or property not within her jurisdiction. 'A foreign corporation,' he said, 'has no domicile here, and can have none; hence it cannot be said to draw to itself the constructive possession of its property located elsewhere. There are a large number of foreign insurance companies doing business here under license from the state. Some of them have a very large capital. It is usually invested at the domicile of the company. If the position of the commonwealth is correct, she can tax the entire property of the Royal Insurance Company, although the same is located almost wholly in England, or the assets of the New York Mutual, located in New York.'

Under this decision there is no property held by the Gloucester Ferry Company which can be the subject of taxation in Pennsylvania, except the lease of the wharf in that state. Whether that wharf is taxed to the owner or to the lessee it matters not, for no question here is involved in such taxation. It is admitted that it could be taxed by the state according to its appraised value. The ferry-boats of the company are registered at the port of Camden, in New Jersey, and according to the decisions in Hays v. Pacific Mail S. S. Co. and in Morgan v. Parham, they can be taxed only at their home port. According to the decision in the Standard Oil Company Case, and by the general law on the subject, the company has no domicile in Pennsylvania, and its capital stock representing its property is held outside of its limits. It is solely, therefore, for the business of the company in landing and receiving passengers at the wharf in Philadelphia that the tax is laid, and that business, as already said, is an essential part of the transportation between the states of New Jersey and Pennsyivania, which is itself interstate commerce. While it is conceded that the property in a state belonging to a foreign corporation engaged in foreign or interstate commerce may be taxed equally with like property of a domestic corporation engaged in that business, we are clear that a tax or other burden imposed on the property of either corporation because it is used to carry on that commerce, or upon the transportation of persons or property, or for the navigation of the public waters over which the transportation is made, is invalid and void as an interference with, and an obstruction of, the power of congress in the regulation of such commerce. This proposition is supported by many adjudications. Thus, in Gibbons v. Ogden, the earliest and leading case upon the commercial power of congress, it was held that the acts of New York giving to Livingston and Fulton the exclusive right, for a certain number of years, to navigate all the waters within its jurisdiction with vessels propelled by steam were unconstitutional and void. Making the navigation of those waters subject to a license of the grantees of the state, that is, to such a tax or other burden as they might levy, was an obstruction to commerce between the states and in conflict with the laws of congress respecting the coasting trade. 9 Wheat. 1. Although the sole point in judgment was whether the state could regulate commerce on her waters in the face of such legislation by congress, yet the argument of the court was that such attempted control of the navigable waters of the state was an encroachment upon the power of congress, independently of that legislation.

In Steam-ship Co. v. Port Wardens, 6 Wall. 31, it was held that a statute of Louisiana, declaring that the master and wardens of the port of New Orleans should be entitled to demand and receive, in addition to other fees, the sum of five dollars for every vessel arriving at that port, whether called on to perform any service or not, was unconstitutional and void, as imposing a burden upon commerce, both interstate and foreign. The exaction was, in effect, a tax for entering the port; that is, for the navigation of its waters. The control of the navigable waters of the port, and of all public waters constituting channels of communication between the states and foreign countries, is embraced within the commercial power of congress, and equally beyond the interference of the states. It was claimed that the tax was for compensation to the master and wardens for the performance of certain duties required of them, and that the law for its collection stood, therefore, on the same constitutional grounds as the laws authorizing the collection of pilotage; but the court answered that no acts of congress recognize such laws as that of Louisiana as proper and beneficial regulations, while state laws in respect to pilotage ar thus recognized. The court also added that the right to recover pilotage and half-pilotage, prescribed by state legislation, rested not only upon state laws, but upon contract, observing that pilotage was compensation for services performed, and half-pilotage was compensation for services which a pilot had put himself in readiness to perform by labor, risk, and cost, and had offered to perform; while in the case of Louisiana the state law subjected the vessel to the demand of the master and wardens, whether called upon to perform any service or not. The case therefore was simply one of a tax imposed upon the vessel for the navigation of the public waters of the state, and, as such, was a regulation of commerce, and an illegal encroachment upon the power of congress.

In Reading R. Co. v. Pennsylvania, sometimes called the 'Case of the State Freight Tax,' 15 Wall. 232, it was held that the act of the legislature of Pennsylvania requiring railroad companies to pay to the state treasurer, for the use of the commonwealth, a tax on each 2,000 pounds of freight carried, was unconstitutional and void, so far as it affected commodities transported through the state, or from points without the state to points within the state, or from points within the state to points without it, as being a * regulation of interstate commerce. The court said that the imposition of the tax, whether large or small, was a restraint upon the privilege or right to have the subjects of commerce passed freely from one state to another without being obstructed by the intervention of state lines. Its payment was a condition upon which the prosecution of that branch of commerce was made to depend, and its imposition, therefore, was in conflict with the power of congress over the subject.

In Henderson v. Mayor of N. Y. 92 U.S. 259, an act of the state of New York requiring the owner or consignee of a vessel arriving at the port of New York to give a bond for every passenger in a penalty of $300, with two sureties, each a resident and freeholder, conditioned to indemnify the commissioner of immigration, and every county, city, and town in the state, against any expense for the relief or support of the person named in the bond, for four years thereafter, but allowing in commutation of the bond a payment of one dollar and a half for each passenger within 24 hours after his landing, and imposing a penalty of $500 for each passenger if such payment were not made within that time, the penalty to be a lien upon the vessel, was held to be unconstitutional and void. In its decision the court said that the state imposed a tax on the ship-owner for the right to land his passengers, and that it was, in effect, a tax on the passenger himself, since its payment was required as part of his fare. 'The transportation of a passenger from Liverpool to the city of New York,' it added, speaking by Mr. Justice MILLER, 'is one voyage. It is not completed until the passenger is disembarked at the pier in the latter city. A law or a rule emanating from any lawful authority which prescribes terms or conditions on which alone the vessel can discharge its passengers, is a regulation of commerce, and, in case of vessels and passengers coming from foreign ports, is a regulation of commerce with foreign nations.' 92 U.S. 259, 271.

These cases would seem to be decisive of the character of the business which is the subject of taxation in the present case. Receiving and landing passengers and freight is incident to their transportation. Without both there could be no such * thing as their transportation across the river Delaware. The transportation, as to passengers, is not completed until, as said in the Henderson Case, they are disembarked at the pier of the city to which they are carried; and as to freight, until it is landed upon such pier. And all restraints by exactions in the form of taxes upon such transportation, or upon acts necessary to its completion, are so many invasions of t e exclusive power of congress to regulate that portion of commerce between the states. The cases where a tax or toll upon vessels is allowed to meet the expenses incurred in improving the navigation of waters traversed by them, as by the removal of rocks, the construction of dams and locks to increase the depth of water and thus extend the line of navigation, or the construction of canals around falls, rest upon a different principle. The tax in such cases is considered merely as compensation for the additional facilities thus provided in the navigation of the waters. Kellogg v. Union Co. 12 Conn. 7; Thames Bank v. Lovell, 18 Conn. 500; McReynolds v. Smallhouse, 8 Bush, 447.

Upon similar grounds, what are termed harbor dues or port charges, exacted by the state from vessels in its harbors, or from their owners, for other than sanitary purposes, are sustained. We say for other than sanitary purposes, for the power to prescribe regulations to protect the health of the community, and prevent the spread of disease, is incident to all local municipal authority, however much such regulations may interfere with the movements of commerce. But, independently of such measures, the state may prescribe regulations for the government of vessels while in its harbors; it may provide for their anchorage or mooring, so as to prevent confusion and collision; it may designate the wharves at which they shall discharge and receive their passengers and cargoes, and require their removal from the wharves when not thus engaged, so as to make room for other vessels; it may appoint officers to see that the regulations are carried out, and impose penalties for refusing to obey the directions of such officers; and it may impose a tax upon vessels sufficient to meet the expenses attendant upon the execution of the regulations. The authority for establishing * regulations of this character is found in the right and duty of the supreme power of the state to provide for the safety, convenient use, and undisturbed enjoyment of property within its limits; and charges incurred in enforcing the regulations may properly be considered as compensation for the facilities thus furnished to the vessels. Vanderbilt v. Adams, 7 Cow. 351. Should such regulations interfere with the exercise of the commercial power of congress, they may at any time be superseded by its action. It was not intended, however, by the grant to congress to supersede or interfere with the power of the states to establish police regulations for the better protection and enjoyment of property. Sometimes, indeed, as remarked by Mr. COOLEY, the line of distinction between what constitutes an interference with commerce and what is a legitimate police regulation is exceedingly dim and shadowy, and he adds: 'It is not doubted that congress has the power to go beyond the general regulations of commerce which it is accustomed to establish, and to descend to the most minute directions if it shall be deemed advisable, and that, to whatever extent ground shall be covered by those directions, the exercise of state power is excluded. Congress may establish police regulations as well as the states, confining their operations to the subjects over which it is given control by the constitution; but, as the general police power can better be exercised under the provisions of the local authority, and mischiefs are not likely to spring therefrom so long as the power to arrest collision resides in the national congress, the regulations which are made by congress do not often exclude the establishment of others by the state covering very many particulars.' Cooley, Const. Lim. 732.

The power of the states to regulate matters of internal police includes the establishment of ferries as well as the construction of roads and bridges. In Gibbons v. Ogden, Chief Justice MARSHALL said that laws respecting ferries, as well as inspection laws, quarantine laws, health laws, and laws regulating the internal commerce of the states, are component parts of an immense mass of legislation, embracing everything within the limits of a state not surrendered to the general government; but in this language he plainly refers to ferries entirely within the state, and not to ferries transporting passengers and freight between the states and a foreign county; for the power vested in congress, he says, comprehends every species of commercial intercourse between the United States and foreign countries. No sort of trade, he adds, can be carried on between this country and another to which the power does not extend; and what is true of foreign commerce is also true of commerce between states over the waters separating them. Ferries between one of the states and a foreign country cannot be deemed, therefore, beyond the control of congress under the commercial power. They are necessarily governed by its legislation on the importation and exportation of merchandise and the immigration of foreigners,-that is, are subject to its regulation in that respect; and if they are not beyond the control of the commercial power of congress, neither are ferries over waters separating states. Congress has passed various laws respecting such international and interstate ferries, the validity of which is not open to question. It has provided that vessels used exclusively as ferry-boats, carrying passengers, baggage, and merchandise, shall not be required to enter and clear, nor shall their masters be required to present manifests, or to pay entrance or clearance fees, or fees for receiving or certifying manifests; 'but they shall, upon arrival in the United States, be required to report such baggage and merchandise to the proper officer of the customs according to law,' (Rev. St. § 2792;) that the lights for ferry-boats shall be regulated by such rules as the board of supervising inspectors of steam-vessels shall prescribe, (Rev. St. § 4233, rule 7;) that any foreign railroad company or corporation, whose road enters the United States by means of a ferry or tug boat, may own such boat, and that it shall be subject to no other or different restrictions or regulations in such employment than if owned by a citizen of the United States, (Rev. St. § 4370;) that the hull and boilers of every ferry-boat propelled by steam shall be inspected, and provisions of law for the better security of life, which may be applicable to them, shall, by regulations of the supervising inspectors, be required to be complied with before a certificate of inspection be granted; and that they shall not be navigated without a licensed engineer and a licensed pilot. Rev. St. § 4426.

It is true that from the earliest period in the history of the government the states have authorized and regulated ferries, not only over waters entirely within their limits, but over waters separating them; and it may be conceded that in many respects the states can more advantageously manage such interstate ferries than the general government; and that the privilege of keeping a ferry, with a right to take toll for passengers and freight, is a franchise grantable by the state, to be exercised within such limits and under such regulations as may be required for the safety, comfort, and convenience of the public. Still, the fact remains that such a ferry is a means, and a necessary means, of commercial intercourse between the states bordering on their dividing waters, and it must, therefore, be conducted without the imposition by the states of taxes or other burdens upon the commerce between them. Freedom from such imposition does not, of course, imply exemption from reasonable charges, as compensation for the carriage of persons in the way of tolls or fares, or from the ordinary taxation to which other property is subjected, any more than like freedom of transportation on land implies such exemption. Reasonable charges for the use of property, either on water or land, are not an interence with the freedom of transportation between the states, secured under the commer ial power of congress. Packet Co. v. Keokuk, 95 U.S. 80; Packet Co. v. St. Louis, 100 U.S. 423; Vicksburg v. Tobin, Id. 430; Packet Co. v. Catlettsburg, 105 U.S. 559; Parkersburg & O. R. Transp. Co. v. Parkersburg, 107 U.S. 691; S.C.. 2 SUP. CT. REP. 732. That freedom implies exemption from charges other than such as are imposed by way of compensation for the use of the property employed, or for facilities afforded for its use, or as ordinary taxes upon the value of the property. How conflicting legislation of the two states on the subject of ferries on waters dividing them is to be met and treated, is not a question before us for consideration. Pennsylvania has never attempted to exercise its power of establishing and regulating ferries across the Delaware river. Any one, so far as her laws are concerned, is free, as we are informed, to establish such ferries as he may choose. No license fee is exacted from ferry-keepers. She merely exercises the right to designate the places of landing, as she does the places of landing for all vessels engaged in commerce. The question, therefore, respecting the tax in the present case, is not complicated by any action of that state concerning ferries. However great her power, no legislation on her part can impose a tax on that portion of interstate commerce which is involved in the transportation of persons and freight, whatever be the instrumentality by which it is carried on.

It follows that upon the case stated the tax imposed upon the ferry company was illegal and void. The judgment of the supreme court of the state of Pennsylvania must therefore be reversed, and the cause remanded for further proceedings in conformity with this opinion.


text: Talk:Gloucester Ferry Company v. Commonwealth of Pennsylvania/Opinion of the Court

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Lamar v. Micou (114 U.S. 218)

S. P. Nash, for petition.

GRAY, J.

title: Lamar v. Micou (114 U.S. 218)


text: Talk:Lamar v. Micou (114 U.S. 218)

title: Talk:Lamar v. Micou (114 U.S. 218)


text:
Lamar v. Micou (114 U.S. 218)/Opinion of the Court

This is a petition for a rehearing of an appeal from a decree of the circuit court of the United States for the Southern district of New York, upon a bill filed against the executor of a guardian by the administratrix of his ward. Gazaway B. Lamar was appointed in 1855, by a surrogate's court in New York, guardian of the person and property of Martha M. Sims. The bill alleged that at the time of the appointment the ward resided in New York. The answer alleged that at that time she was temporarily residing there, and was then, as well as in 1861, a citizen of Alabama. The hearing of the merits of the case was had in the circuit court upon the pleadings, and upon certain facts stated by the defendant and admitted by the plaintiff, which, so far as they affected the domicile of the ward, were as follows: William W. Sims, the ward's father, died at Savannah, in the state of Georgia, in 1850, leaving two infant daughters and a widow who in 1853 married a citizen of New York, and thenceforth resided with him in that state until 1856, when they removed to Connecticut, and resided there until her death in 1859. The two infants lived with their mother and step-father in New York (where Lamar was appointed in 1855 guardian of both infants) and in Connecticut from her second marriage until her death, and then went to Georgia, and thenceforth resided with their father's mother, and her daughter and only living child, their aunt, at first in Georgia and afterwards in Alabama.

Upon those facts, this court assumed the domicile of William W. Sims to have been in Georgia, and held that the domicile of his children continued to be in that state throughout their residence with their mother and her second husband in New York and Connecticut, and until their return to Georgia upon the death of their mother in 1859, and was thereafter in Georgia or Alabama; that whether the guardian's domicile was in georgia or in New York, he should not, in accounting for his investments, be held to a narrower range of securities than was allowed by the law of the ward's domicile; and that many of his investments were justified by the law of Georgia or of Alabama; and therefore reversed the decree of the circuit court, which had held him to account according to the law of New York for the manner in which he had invested the property. 112 U.S. 452; S.C.. ante, 221.

The questions so passed upon, though hardly touched by either counsel at the first argument, arose upon the facts admitted, were vital to the determination of the rights of the parties, and could not be overlooked by this court. The importance and comparative novelty of some of the questions induced the court to nvite the submission of a full brief in support of the petition for a rehearing. But, upon careful consideration of the petition and brief, the court has seen no ground for changing its opinion, and has not thought it necessary to add anything, beyond what has been suggested by examination of the authorities cited for the petitioner.

In Pritchard v. Norton, 106 U.S. 124, S.C.. 1 SUP. CT. REP. 102, the point decided was that the validity and effect of a bond, executed in New York, to indemnify the obligee therein against his liability upon an appeal-bond executed by him in a suit in Louisiana, was to be governed by the law of Louisiana. The decision was based upon the fundamental rule, or, in the words of Chief Justice MARSHALL, the 'principle of universal law'-'that in every forum a contract is governed by the law with a view to which it was made.' Wayman v. Southard, 10 Wheat. 1, 48. And reference was made to two recent English cases of high authority, in which, by force of that rule, the effect of a contract of affreightment, and of a bottomry bond, given by the master, was held to be governed, not by the law of the place where the contract was made, nor by that of the place where it was to be performed, nor yet by the law of the place in which the suit was brought, but by the law of the country to which the ship belonged. Lloyd v. Guibert, 6 Best & S. 100; S.C.. L. R. 1 Q. B. 115; The Gaetano & Maria, L. R. 7 Prob. Div. 137.

In Lloyd v. Guibert, Mr. Justice WILLES, delivering the judgment of the court of exchequer chamber, said that when 'disputes arise, not as to the terms of the contract, but as to their application to unforeseen questions, which arise incidentally or accidentally in the course of performance, and which the contract does not answer in terms, yet which are within the sphere of the relation established thereby,' 'it is necessary to consider by what general law the parties intended that the transaction should be governed, or, rather, to what general law it is just to presume that they have submitted themselves in the matter.' 6 Best & S. 130; S.C.. L. R. 1 Q. B. 120. And in The Goetano & Maria, Lord Justice BRETT, with whom Lord COLERIDGE and Lord Justice COTTON concurred, pointed out that the matter before the court was 'not the question of the construction of a contract, but of what authority arises out of the fact of a contract having been entered into.' L. R. 7 Prob. Div. 147.

The question in what securities a guardian may lawfully invest, is not one of mere construction of the contract expressed in the guardian's bond, or implied by his acceptance of the guardianship, but rather of what is 'within the sphere of the relation established thereby,' or 'what authority arises out of the fact of a contract having been entered into.' And the very terms of Lamar's bond do not point to the law of New York only, but impose a general obligation to 'discharge the duty of a guardian to the said minor according to law,' as well as to render accounts of the property and of his guardianship to any court having cognizance thereof. See 112 U.S. 455; S.C.. ante, 223.

The view heretofore expressed by this court, that the domicile of the guardian court, that the domicile of the guardian rule, the management and investment of the ward's property are to be governed by the law of the domicile of the ward, although, so far as the remedy is concerned, the accounting must conform to the law of the place in which the liability of the guardian is sought to be enforced, accords with the statements of Bar, as well in the passage quoted by the petitioner as in that referred to in the former opinion; and the only decision of a Scotch court brought to our notice tends in the same direction, although the Scotch commentators treat the question as an open one. Bar, Internat. Law, §§ 87, 106; (Gillespie's translation,) 357, 359, 438, 445, note; Lamb v. Montgomerie, (1858), 20 Scotch Ct. Sess. Cas. (2d series,) 1323; Fras. Parent & Ch. 609.

The cases of Preston v. Melville, 8 Clark & F. 1, and Blackwood v. The Queen, L. R. 8 App. Cas. 82, cited for the petitioner, relate only to the place in which personal property of a deceased person is to be administered, or is subject to probate duty. The petitioner, while admitting that the statement in the former opinion, that domicile of the father was in Georgia, was a natural inference from the facts stated in the record, and that it is probable that the wards never acquired a domicile in any northern state, has now offered affidavits tending to show that the father's domicile, at the time of his death and for six years before, was not in Georgia, but in Florida; and has referred to statutes and decisions in Florida as showing that the law of that state in the matter of investments did not differ from the law of New York. St. Fla. Nov. 20, 1828, § 35; Thomp. Dig. 207, 208; Moore v. Hamilton, 4 Fla. 112, and 7 Fla. 44. But if, against all precedent, this new evidence could be admitted after argument and decision in this court, it would afford no ground for arriving at a different conclusion upon the merits of the case.

If the domicile of the father was in Florida at the time of his death in 1850, then, according to the principles stated in the former opinion, the domicile of his children continued to be in that state until the death of their mother in Connecticut in 1859. In that view of the case the question would be whether they afterwards acquired a domicile in Georgia by taking up their residence there with their paternal grandmother. Although some books speak only of the father, or, in case of his death, the mother as guardian by nature, (1 Bl. Comm. 461; 2 Kent, Comm. 219,) it is clear that the grandfather or grandmother, when the next of kin, is such a guardian. Hargrave's note 66 to Co. Litt. 88b; Reeve, Dom. Rel. 315. See, also, Darden v. Wyatt, 15 Ga. 414. In the present case, the infants, when their mother died and they went to the home of their paternal grandmother, were under 10 years of age; the grandmother, who appears to have been their only surviving grandparent and their next of kin, and whose only living child, an unmarried daughter, resided with her, was the head of the family; and upon the facts agreed it is evident that the removal of the infants after the death of both parents to the home of their grandmother in Georgia was with Lamar's consent. Under these circumstances there can be no doubt that by taking up their residence with her they acquired her domicile in that state in 1859, if their domicile was not already there. And there being no evidence that any of Lamar's investments had diminished in value before that time, it is immaterial whether the previous domicile of the wards was in Florida or in Georgia, inasmuch as the propriety of his investments was thereafter to be governed by the law of Georgia.

The law of any state of the Union, whether depending upon statutes or upon judicial opinions, is a matter of which the courts of the United States are bound to take judicial notice, without plea or proof. Owings v. Hull, 9 Pet. 607; Pennington v. Gibson, 16 How. 65; Covington Draw-bridge Co. v. Shepherd, 20 How. 227. And nothing has now been adduced tending to show that, as applied to the facts admitted by the parties, either the law of Georgia or the law of New York was other than we have held it to be.

The question whether, as matter of fact, Lamar acted with due care and prudence in making his investments, was argued at the former hearing, and no reason is shown for reopening that question.

Rehearing denied.


text: Talk:Lamar v. Micou (114 U.S. 218)/Opinion of the Court


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Page:Stubbs's Calendar or The Fatal Boots.djvu/77

Rh as I returned this officer’s stare, and continued in a loud careless voice) well—at this Sloffemsquiggle there lived a girl, a Miss Waters, the niece of some blackguard apothecary in the neighborhood; but my mother took a fancy to the girl, and had her up to the park, and petted her. We were both young—and—and—the girl fell in love with me, that’s the fact. I was obliged to repel some rather warm advances that she made me; and here, upon my honor as a gentleman, you have all the story about which that silly Dobble made such a noise."

Just as I finished this sentence, I found myself suddenly taken by the nose, and a voice shouting out,

"Mr. Stubbs, you are a ! take this, sir,—and this, for daring to meddle with the name of an innocent lady."

I turned round a well as I could, for the ruffian had pulled me out of my chair, and beheld a great marine monster, six feet high, who was occupied in beating and kicking me, in the most ungentlemanly manner, on my cheeks, my ribs, and between the tails of


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First National Bank of Xenia Ohio v. Stewart

John Little, for plaintiff in error.

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

WOODS, J.


text: Talk:First National Bank of Xenia Ohio v. Stewart


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First National Bank of Xenia Ohio v. Stewart/Opinion of the Court

The only issue in the case was found by the jury for the defendants in error. The judgment should, therefore, be affirmed, unless the court, in the progress of the trial, committed some error to the prejudice of the plaintiff in error. This the latter insists was done.

The first assignment of error relates to the admission in evidence of certain declarations of F. H. McClure, the cashier of the plaintiff in error.

The bill of exceptions states that on the trial the defendants in error offered testimony tending to show that the intestate, Daniel McMillan, was, on April 14, 1876, the owner of 30 shares of the capital stock of the bank standing in his name upon its books, represented by two certificates,-one for 20 and the other for 10 shares; that on the day just mentioned he made his note for the payment, six months after date, to the order of F. A. McClure, of $2,600; that he attached the certificate for 20 shares to this note as security for its payment, and through the medium of the payee, McClure, who was the cashier of the plaintiff in error, the note was discounted by one James K. Hyde; and that the remaining 10 shares were deposited with the plaintiff in error, and held by it for safe-keeping, and not for any other purpose; that on Monday morning, October 23, 1876, McMillan died, and that on the afternoon of that day, McClure, the cashier, having heard of the death of McMillan, sold his 30 shares of stock to E. H. Munger for $4,200, and credited that amount to McMillan on the books of the bank.

The bill of exceptions further stated that the defendants in error introduced evidence tending to show that a few days prior to his death McMillan had paid to the bank the amount due on his note held by Hyde, who had deposited the note with the bank for collection, and that two days after McMillan's death, Hyde, after notice by McClure of the payment of the note, received from the bank its certificate of deposit for the amount due thereon, and the note, with the certificate of stock pledged for its payment, was surrendered by Hyde to the bank, which thus obtained possession of the certificate. Thereupon the defendants in error offered in evidence the following questions and answers contained in the deposition of Hyde: 'Question. What conversation did you have with McClure subsequent to this (subsequent to leaving said note for collection) with reference to that certificate? [20 shares.] Answer. He told me he had full power to transfer it at any time on the books and apply it to the payment of the note. Q. What was said to you by McClure at the time of the payment of the note, in reference to this certificate of 20 shares? A. I desired to purchase it, but there was an understanding that I should hold the certificate of deposit until an administrator was appointed, when an arrangement might be made for its purchase. * *  * Q. What statement did McClure make to you at the time of the payment of the note, as to who was making payment? A. He said the payment was made from money which was sent there by McMillan. He told me the money was left there the Wednesday previous. Q. Was any statement made to you by McClure, with reference to this certificate of stock after McMillan's death, in reference to Mrs. McMillan; if so, what? A. He told me after McMillan's death that she preferred to keep the stock. * *  * Q. How long after the talk on Wednesday after McMillan's death till the other talk in which McClure told you Mrs. McMillan wished to keep the stock? A. Two months, I presume. Q. Where did the latter take place? A. In the bank; they all took place there.'

The ruling of the court in allowing these questions and answers to be read to the jury, notwithstanding the objection of the plaintiff in error, is now assigned for error. Its contention is that it furnished the money to pay McMillan's note for $2,600, held by Hyde, for which the certificate for 20 shares was pledged, and that it thereby, on the delivery of the certificate to it by Hyde, became entitled to the possession thereof as security for the note. The defendants in error insist that the money to take up the note held by Hyde was paid by their intestate, McMillan. The plaintiff in error complains that upon this issue the statements of McClure, its cashier, made several days after the alleged payment of the note by McMillan, were admitted to show such payment, and insists that this was error, on the ground that the declarations of an agent concerning a past transaction cannot be given in evidence to bind this principal.

The rule upon this subject has been thus laid down by this court: 'Whatever an agent does or says, in reference to the business in which he is at the time employed and within the scope of his authority, is done or said by the principal, and may be proved as if the evidence applied personally to the principal.' American Fur Co. v. U.S. 2 Pet. 358. It is because the declaration of an agent is a verbal act and part of the res gestae that it is admissible, and whenever what he did is admitted in evidence, then it is competent to prove what he said about the act while he was doing it. Mechanics' Bank of Alexandria v. Bank of Columbia'', 5 Wheat. 336; Cliquot's Champagne, 3 Wall. 114; Cooley v. Norton, 4 Cush. 93; Hannay v. Stewart, 6 Watts, 487; Garth v. Howard, 8 Bing. 451''.

Applying these principles, we think the testimony objected to was properly admitted. The declarations of McClure were made, so the record states, at the time that he paid Hyde the amount of the note. They were, therefore, clearly a part of the transaction; for Hyde, being the holder of the certificate of stock as collateral security for the note, was entitled to know by whom the payment of the note was made, so as to decide whether to return the certificate to McMillan or turn it over to the bank, or, if it was left with the bank, in what capacity the bank took it, whether for its own security or as agent for McMillan. The declarations of McClure were made to Hyde in explanation of the payment of the money to him, and was therefore admissible as a part of the act of payment. The declarations of McClure, in reference to the purchase by Hyde of the 20 shares of stock, were made at the same time, and as they were offered as tending to show by whom the money to pay the McMillan note was furnished, they were also a part of the transaction, and on that ground admissible.

The plaintiff in error contends that a conversation which took place two months after the payment of the note, between McClure and Hyde, in reference to the purchase by the latter of the 20 shares of stock, was wrongly received in evidence. But it plainly appears from the record that this second conversation was part of a treaty between McClure and Hyde, commenced on the Wednesday after McMillan's death, when the McMillan note was paid for by the purchase of the 20 shares of stock by Hyde. It was offered to show by the declarations of its cashier that the bank did not, when the declarations were made, claim any general or special property in the stock, but in effect admitted it to be the property of the estate of McMillan. The declarations made by an officer or agent of a corporation, in response to timely inquiries, properly addressed to him and relating to matters under his charge, in respect to which he is authorized in the usual course of business to give information, may be given in evidence against the corporation. Bank of Monroe v. Field, 2 Hill, 445; McGenness v. Adriatic Mills, 116 Mass. 177; Morse v. Connecticut River R. Co. 6 Gray, 450; Abb. Tr. Ev. 44.

As cashier, McClure had charge of all the money, securities, and valuable papers of the bank. Wild v. Bank of Passamaquoddy, 3 Mason, 505; Franklin Bank v. Steward, 37 Me. 519. It was his duty to surrender securities pledged for the loans of the bank upon payment of the loans. Fleckner v. U.S. Bank, 8 Wheat. 360. And, although he might not be authorized to dispose of the securities of the bank without the order of the directors, yet it was within the scope of his general authority as cashier to reveive offers for their purchase, and to state whether or not the bank owned securities which a customer wanted to buy. This naturally fell within his duty as the executive officer of the bank and the custodian of its assets. His statement to a person who was in treaty to purchase, that the bank was not the owner of a certain security in his manual possession as cashier, was clearly within the line of his duty, and was therefore binding on the bank. We think there was no error in admitting in evidence the declarations of McClure.

The bill of exceptions further states that the plaintiffs below offered in evidence the following letter: A. HIRLING, Prest. Capital, $120,000. F. A. MCCLURE,  Cash.

(Cut of Bank Building.)

'FIRST NATIONAL BANK, XENIA, O., Oct. 16, 1876.

'D. McMillan, Esq.-DEAR SIR Mr. Mc.'s letter of 14th to      hand, and in reply I inclose the Marshall note canceled. I     have the ctf. in my possession, and have some prospect for     raising some money on same. Will write again soon; nothing     new; all well.

Yours truly,

F. A. MCCLURE.'

The court allowed the letter to go to the jury in spite of the objection of the plaintiff in error. The defendants in error insisted that the letter was admissible because there was evidence, introduced by the plaintiff in error, tending to prove that in August, preceding McMillan's death, one Marshall held a note against him, 'secured by ten shares of said stock, and that McMillan procured the surrender of the stock, giving mortgage security in lieu thereof, he desiring to use said stock in bank.'

The plaintiff in error assigns for error the admission of the letter in evidence, on the ground that it was but a fragment of a correspondence; that there was nothing to show that it was written for the bank; and that it was only a letter from McClure, and not from him as cashier. But there is nothing in the record to indicate that there were any other letters that had passed between the parties. The face of the letter shows that it had reference to the Marshall note, and very probably to the 10 shares of stock which had been pledged by McMillan as security therefor, and of which he had procured the surrender, so that he might use it in bank. The letter was written upon the paper of the bank, and by the person shown to be its cashier, and it appears with reasonable certainty to have referred to the business of the bank. The court was therefore right in not excluding it from the jury.

It further appears by the bill of exceptions that the plaintiff in error offered evidence to prove that for more than a year previous to his death McMillan had been 'hopelessly insolvent,' and had experienced 'great difficulty in procuring means to meet his interest obligations.' The defendants in error objected to this evidence. It was ruled out, and the plaintiff in error now assigns its exclusion as error. The purpose of the evidence was to prove that McMillan had not furnished the money to pay his note for $2,600 held by Hyde. The evidence offered was inadmissible because too remote and conjectured. The law requires an open and visible connection between the principal and evidentiary facts and the deductions from them, and does not permit a decision to be made on remote inferences. U.S. v. Ross, 92 U.S. 281; Carter v. Pryke, Peake, 95; Hollingham v. Head, 4 C. B. (N. S.) 388; Jackson v. Smith, 7 Cow. 717; Baird v. Gillett, 47 N. Y. 186; Thompson v. Bowie, 4 Wall. 463. In the case last cited, where the issue was whether certain promissory notes dated on a particular day were given for money lost at play, testimony was offered to prove that the party giving the notes was on the day of their date intoxicated, and that when intoxicated he had a propensity to game. It was held that the evidence was properly excluded.

The evidence offered in the present case was too weak and vague to contribute to an intelligent decision by the jury of the question in issue, namely, whether McMillan had paid his note. It is common for both solvent and insolvent men to pay some of their debts and to leave some unpaid. Proof of the insolvency of a debtor is no more competent to show non-payment than proof of his solvency is competent to show the payment of his debts. These two kinds of proof stand on the same footing. The latter kind has been held to be incompetent. Hilton v. Scarborough, 5 Gray, 422. The insolvency and pecuniary embarrassment of a person may be shown as evidence that he has not paid all his debts; but they do not tend to show that he has not paid a particular debt. We think the evidence of the insolvency of McMillan was properly excluded.

It further appeared that the plaintiff in error, having given evidence tending to show that it had not received from McMillan the money to pay his note for $2,600 held by Hyde, but that it had paid the note out of its own funds, called as a witness one William McGirvey, who, having testified that during the whole of the year 1876 he was the teller of the defendant bank, and that its books showed no payment of his note by McMillan, was asked by counsel for the plaintiff in error the following question: 'Had you any information, from any source, of any money being received at the bank on or about the Wednesday preceding McMillan's death from McMillan?' Having put the question, counsel for the plaintiff in error stated that they expected the witness to answer it in the negative. The court excluded the question, and its action is assigned for error. The inadmissibility of both the question and the answer, had the answer been given, is obvious. The question called for the information which from any source might be in the possession of the witness, and not for his knowledge. An answer detailing the hearsay statements of others, whether verbal or in writing, made at any time or place, would have been responsive. The objection to the question was well taken, and the court was right in excluding it.

Upon the authorities already cited a negative answer to the question would have been too vague and conjectural to be admitted as evidence. It did not appear but that many payments of money might have been made to the bank without the knowledge of the witness. It was not shown what his duties were, whether to receive or pay out money; it was not shown that he was in the bank on or about the Wednesday when the payment by McMillan was alleged to have been made; it was not shown that if the payment had been made by draft or certificate of deposit sent to the bank in a letter, it would have passed through his hands. On the simple statement that he was teller, and engaged in the discharge of his duties as such during the year 1876, we think that his answer that he had no information of any payment made by McMillan does not rise to the dignity of evidence, and was properly excluded.

The plaintiff in error contends, lastly, that upon the pleadings, and notwithstanding the verdict, it was entitled to judgment. The ground of this contention is that as it was admitted in the pleadings that McMillan was indebted to the bank at the time of his death more than the value of his stock, and as the stock was in the possession of the bank, indorsed by McMillan in blank, the law would make the application of its value to the payment of the indebtedness. The assignment of error is based on section 5328 of the Revised Statutes of Ohio of 1880, which provides that 'when upon the statements in the pleadings one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party.' No motion for judgment, notwithstanding the verdict, appears to have been made in the circuit court. If this court could now consider this assignment of error, we think it does not furnish a ground for the reversal of the judgment.

It was settled by the verdict of that jury that the plaintiff in error did not hold the stock of McMillan as security for his indebtedness. The contention of the plaintiff in error, therefore, comes to this: that a creditor, who has possession of the property of his debtor, as his agent or trustee or bailee, may, without reducing his debt to judgment, and without the process or order of any court, and without the consent and against the will of the debtor, sell or otherwise dispose of the property, and apply its proceeds to the payment of his debt. We do not think the law gives a creditor any such right.

Judgment affirmed.


text: Talk:First National Bank of Xenia Ohio v. Stewart/Opinion of the Court


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United States v. Minor

This is an appeal from a decree of the circuit court for the district of California, dismissing the bill of the United States on demurrer. The object of the bill was to set aside and annul a patent issued by the United States to Minor, on January 5, 1876, for the N. W. 1/4 of section 18, township 6 N., range 2 E. of the Humboldt meridian. The bill as originally filed made, in substance, the following allegations:

That said Minor, on the twenty-third day of October, 1874, filed the declaratory statement in the land-office necessary to give him a right of preemption to the land, alleging that he had made a settlement on it March 20 of that year; and on June 20, 1875, he made the usual affidavit that he had so settled on the land in March of the previous year; that he had improved it, built a house on it, and continued to reside on it from the time of said settlement, and had cultivated about one acre of it. He also made affidavit, as the law required, that he had not so settled upon and improved the land with any agreement or contract with any person by which the title he might acquire would inure to the benefit of the latter. He also made oath that he was not the owner of 320 acres of land in any state or territory in the United States. These affidavits being received by the register and receiver as true, he paid the money necessary to perfect his right, received of them the usual certificate, called a patent certificate, on which there was issued to him at the general land-office in due time the patent which is now assailed.

The bill then charges that all these statements, made under oath before the land-officers, were false and fraudulent; that defendant had never made the settlement nor cultivation nor improvements mentioned; that he had never resided on the land, but during all the time had lived and had his home in a village about 12 miles distant; and that he had not made these proofs of settlement to appropriate the land to his own use, but with intent to sell the same to some person unknown to the plaintiff. It is also charged that defendant produced, in corroboration of his own statement, the affidavit of a witness, one Joseph Ohuitt, who testified to the settlement, improvement, and residence of defendant, all of which was false and fraudulent. It is then alleged that by these false affidavits the land-officers, supposing them to be true, were deceived and misled into allowing said pre-emption claim and issuing said patent, to the great injury of the United States.

A demurrer to this bill having been sustained, plaintiff was allowed to file an amendment, by which it is set out that one Richard Spence entered upon the W. 1/2 of the quarter section in question on the first day of April, 1872, with the intention of pre-empting the same as soon as the lands were surveyed and open to pre-emption, and that on the twenty-second day of October, 1874, the approved plat of said surveys was duly filed in the land-office at Humboldt, and on the third day of December thereafter Spence made his declaratory statement for the W. 1/2 of that quarter section and the W. 1/2 of the S. W. 1/4 of the same section. It is further alleged that Spence, having complied with the terms authorizing his pre-emption by actual residence, improvement, and cultivation, and having commuted his pre-emption right for a homestead right, and perfected his cultivation and improvement by a fiveyears' residence, and paid the fees of the officers, made application on the fifth day of April, 1880, for his patent, to which he was legally entitled, but it was found that Minor's patent covered half his claim, to-wit, the W. 1/2 of the N. W. 1/4 of the section.

The title having passed from the United States to Minor for the entire quarter section, no patent could be issued to Spence, who was, and still is, equitably entitled to a part of it. To this bill, as amended, the circuit court again sustained a demurrer and dismissed it, and from that decree this appeal is taken. The circuit and district judges have certified a division of opinion on eight propositions of law, which they believe to arise out of this demurrer, as follows: (1) Whether the frauds and perjury alleged in the bill as the equitable grounds for vacating the patent in question are frauds extrinsic and collateral to the matter tried and determined in the land-office upon which the patent issued, and constitute such frauds as entitle the complainant to relief in a court of equity. (2) Whether perjury and false testimony in a proceeding before the land-office, such as alleged in the said amended bill, by means of which a patent to a portion of the public land is fraudulently and wrongfully secured, is such a fraud as will require a court of equity to vacate the patent on that ground alone. (3) Whether the decision and determination of the questions involved on false and perjured testimony, as set forth in the said amended bill, and the issue of a patent thereon, are not conclusive as against the United States on a bill filed to vacate the patent so issued. (4) When the United States files a bill to vacate a patent on the ground that it was fraudu lently obtained upon false testimony, as alleged in said amended bill, whether it is necessary to offer in the bill to return the purchase money paid for the land by the patentee. (5) Whether a court of equity will enforce the penalties and forfeitures imposed by section 2262 of the Revised Statutes of the United States for obtaining a patent to land upon false affidavits. (6) Whether the remedy at law provided by said section, and an indictment for perjury, are not the only remedies for the wrong alleged in the amended bill. (7) The bill of complaint, having been originally filed in this case on June 19, 1883, more than seven years and five months after the issue of the patent, whether the claim to vacate the patent on the ground of fraud is stale, and whether the bill ought to be dismissed on that ground. (8) Whether he demurrer to the said amended bill should be sustained.

''Sol. Gen. Phillips'', for appellant.

L. D. Latimer, for appellee.

[Argument of Counsel from page 237 intentionally omitted]

MILLER, J.

title: United States v. Minor


text: Talk:United States v. Minor

title: Talk:United States v. Minor


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United States v. Minor/Opinion of the Court

As regards the last of these questions, it does not present any suc

h welldefined point of law as can be certified to this court for an answer. It merely presents the whole case without showing a distinct point in regard to which the judges were opposed in opinion. U.S. v. Waddell, 112 U.S. 76; S.C.. ante, 35. But, as it must be answered by the action of the court in affirming or reversing the decree, this is immaterial.

With regard to the fourth, fifth, and sixth questions, we have no difficulty in holding that neither the provisions of section 2262 of the Revised Statutes, nor the liability to indictment, nor the actual indictment and conviction, of the defrauding party for perjury in such case as this, in any manner supersedes or debars the United States of the remedy by bill in chancery to vacate the patent obtained by such fraudulent practices. On the contrary, the provision of the section above mentioned, that the person who makes the false oath in the premises shall forfeit any money he may have paid for the land, answers in the negative the fourth question, namely, is the United States bound to offer in the bill, in a case like this, to return the purchase money? The statute decares it is forfeited, and, though the party may lose the land, he also loses his money as a penalty of his perjury.

The seventh question, with regard to laches in bringing the suit, we answer by saying that in the present case there is no such laches shown as will justify the court in dismissing the bill. Waiving for the present the general proposition that time does not run against the government, from the effect of which we see no escape in the short period of seven years and a half, it is pretty clear, on the face of the bill, that the first discovery of the fraud was made when Spence, on applying for his patent under the homestead law, made it known that he had been residing on, improving, and cultivating a part of the land included in Minor's patent during the time Minor swore he was doing the same thing. Of course, lapse of time as a defense to a suit for relief for these frauds did not begin to run until the fraud was discovered.

The first three questions may be considered together. If an individual or a corporation had been induced to part with the title to land, or any other property, by such a fraud as that set out in this bill, there would seem to be no difficulty in recovering it back by appropriate judicial proceedings. If it was a sale and conveyance of land induced by fraudulent misrepresentation of facts which had no existence, on which the grantor relied, and had a right to rely, and which were essential elements of the consideration, there would be no hesitation in a court of equity giving relief; and where the title remained in the possession of the fraudulent grantee, the court would surely annul the whole transaction, and require a reconveyance of the land to the grantor. The case presented to us by the bill is one of unmitigated fraud and imposition, consummated by means of representations on which alone the sale was made, every one of which was false. The law and the rules governing these pre-emption sales required in every instance the settlement and residence for a given time on the land, the actual cultivation of a part of it, and building a house on it. It required that the claimant should do this with a purpose of acquiring real ownership for himself and not for another, nor with a purpose to sell to another. In the case as presented by this bill none of these things were done, though the land-officers were made to believe they were done by the false representation of the defendant. It was a case where all the requirements of the law were set at naught, evaded, and defied by one stupendous falsehood, which included all the requirements on which the right to secure the land rested. There can be no question of the fraud, and its misleading effect on the officers of the government, and, in a transaction between individuals, it makes a clear case for relief.

Is there anything in the circumstance that these misrepresentations were supported by perjury, that the defendant made oath to his falsehoods, and procured a false affidavit of a witness to corroborate himself, which should deprive the injured party of relief? It would seem rather to add to the force of the reasons for such relief that fraud and falsehood were re-enforced by perjury. Is there any reason to be found in the relation of the government to such a case as this, which will deprive it of the same right to relief as an individual would have? On the contrary, there are reasons why the government in this class of cases should not be held to the same diligence in guarding against fraud as a private owner of real estate. The government owns millions and millions of acres of land, which are by law open to pre-emption, homestead, and public and private sale. The right and the title to these lands are to be obtained from the government only in accordance with fixed rules of law. For the more convenient management of the sale of these lands, and the establishment by individuals of the inchoate rights of pre-emption and homestead, and their final perfection in the issuing of a title called a patent, there is established in each land-district an office in which are two officers, and no more, called register and receiver. These districts often include 20,000 square miles or more, in all parts of which the lands of the government subject to sale, pre-emption, and homestead are found. These officers do not, they cannot, visit these lands. They have maps showing the location of the government lands, and their subdivision into townships, sections, and parts of sections, and when a person desires to initiate a claim to any of them, he goes before them and makes the necessary statements, affidavits, and claims, of all which they make memoranda and copies, which are forwarded to the general land-office at Washington. For the truth of these statements they are compelled to rely on the oaths of the parties asserting claims, and such ex parte affidavits as they may produce.

In nine cases out of ten, perhaps in a much larger percentage, the proceedings are wholly ex parte. In the absence of any contesting claimant for a right to purchase or secure the land, the party applying has it all his own way. He makes his own statement, sworn to before those officers, and he produces affidavits. If these affidavits meet the requirements of the law, the claimant succeeds, and what is required is so well known that it is reduced to a formula. It is not possible for the officers of the government, except in a few rare instances, to know anything of the truth or falsehood of these statements. In the cases where there is no contesting claimant there is no adversary proceeding whatever. The United States is passive; it opposes no resistance to the establishment of the claim, and makes no issue on the statement of the claimant. When, therefore, he succeeds by misrepresentation, by fraudulent practices, aided by perjury, there would seem to be more reason why the United States, as the owner of land of which it has been defrauded by these means, should have remedy against that fraud,-all the remedy which the courts can give,-than in the case of a private owner of a few acres of land on whom a like fraud has been practiced.

In a suit brought by Moffat against the United States to set aside a patent for land on the ground of fraud in procuring its issue, this court said: 'It may be admitted, as stated by counsel, that if, upon any state of facts, the patent might have been lawfully issued, the court will presume, as against collateral attack, that the facts existed; but that presumption has no place in a suit by the United States directly assailing the patent and seeking its cancellation for fraud in the conduct of those officers.' 112 U.S. 24; S.C.. ante, 10. The principl is equally applicable when those officers, though wholly innocent, were imposed upon and deceived by the fraud and false swearing of the party to whom the patent was issued.

The learned judge whose opinion prevailed in the circuit court and is found in the record, has been misled by confounding the present case with that of U.S. v. Throckmorton, 98 U.S. 61, and Vance v. Burbank, 101 U.S. 514, and thus applying principles to this which do not belong to it. In Throckmorton's Case, it is true, a part of the relief sought was to set aside a patent for land issued by the United States. But the patent was issued on the confirmation of a Mexican grant after proceedings prescribed by the act of congress on that subject. These proceedings were judicial. They commenced before a board of commissioners. There were pleadings and parties, and the claimant was plaintiff, and the United States was the defendant. Both parties were represented by counsel,-the United States having in all such cases her regular * district attorney to represent her. Witnesses were examined in the usual way, by depositions, subject to cross-examinations, and not by ex parte affidavits. From this tribunal there was a right of appeal to the district court, and from that court to the supreme court of the United States, by either party. There was nothing wanting to make such a proceeding, in the highest sense, a judicial one, and to give to its final judgment or decree all the respect, the verity, the conclusiveness, which belong to such a final decree between the parties. The patent could only issue on this final decree of confirmation of the Spanish or Mexican grant, and was, in effect, but the execution of that decree. It was to such a case as this that the ruling in Throckmorton's Case was applied. The court said in that case, which was a bill to set aside the decree of confirmation: 'The genuineness and validity of the concession from Michelterona, produced by complainant, was the single question pending before the board of commissioners and the district court for four years. It was the thing, and the only thing, that was controverted, and it was essential to the decree. To overrule the demurrer to this bill would be to retry, twenty years after the decision of those tribunals, the very matter which they tried, on the ground of fraud in the document on which the decree was made. If we can do this now some other court may be called on twenty years hence to retry the same matter on another allegation of fraudulent combination in this suit to defeat the ends of justice; and so the number of suits would be without limit and litigation endless about the single question of the validity of this document.'

It needs no other remarks than those we have already made, as to the nature of the proceeding before the land-officers, to show how inappropriate this language is to such a proceeding. Here no one question was in issue. No issue at all was taken. No adversary proceeding was had. No contest was made. The officers, acting on such evidence as the claimant presented, were bound by it and by the law to issue a patent. They had no means of controverting its truth, and the government had no attorney to inquire into it. Surely the doctrine applicable to * the conclusive character of the solemn judgments of courts, with full jurisdiction over the parties and the subject-matter, made after appearance, pleadings, and contest by parties on both sides, cannot be properly applied to the proceedings in the land-office in such cases.

So, also, as regards the case of Vance v. Burbank, 101 U.S. 514, the language of the court in regard to the conclusiveness of the decision of the landoffice must be considered with reference to the case before it. That was not a case by the grantor, the United States, to set aside the patent, but by a party, or the heirs of a party, who had contested the right of the grantee before all the officers of the land department up to the sec etary of the interior, and been defeated, and where the whole question depended on disputed facts, the evidence of which was submitted by the contestants to those officers. In such a case, where there was full hearing, rehearing, and issues made and tried, the observation of the court, 'that the decision of the proper officers of the department is in the nature of a judicial determination of the matter in dispute,' is well founded.

It has been often said by this court that the land-officers are a special tribunal of a quasi judicial character, and their decision on the facts before them is conclusive. And we are not now controverting the principle that where a contest between individuals, for the right to a patent for public lands, has been brought before these officers, and both parties have been represented and had a fair hearing, that those parties are concluded as to all the facts thus in issue by the decision of the officers. But in proceedings like the present, wholly ex parte, no contest, no adversary proceedings, no reason to suspect fraud, but where the patent is the result of nothing but fraud and perjury, it is enough to hold that it conveys the legal title, and it would be going quite too far to say that it cannot be assailed by a proceeding in equity and set aside as void, if the fraud is proved and there are no innocent holders for value. We have steadily held that, though in the absence of fraud the facts were concluded by the action of the land department, a misconstruction of the law, by which alone the successful party obtained a patent, might be corrected in equity; much more when there was fraud and imposition.

If, by the case as made by the bill, Spence's claim had covered all the land patened to Minor, it would present the question whether the United States could bring this suit for Spence's benefit. The government, in that case, would certainly have no interest in the land when recovered, as it must go to Spence without any further compensation. And it may become a grave question, in some future case of this character, how far the officers of the government can be permitted, when it has no interest in the property or in the subject of the litigation, to use its name to set aside its own patent, for which it has received full compensation, for the benefit of a rival claimant. The question, however, does not arise here, for half the land covered by the patent would revert to the United States if it was vacated; and, as between the United States and Minor it was one transaction evidenced by one muniment of title, the question does not arise; certainly not on demurrer to this bill.

The result of these considerations is that the first and second questions are answered in the affirmative; the third, fourth, sixth, and seventh in the negative; and the fifth is immaterial. The decree of the circuit court is reversed, and the case remanded for further proceedings not inconsistent with this opinion.


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


text:
Weaver v. Field

J. D. Rouse and ''Wm. Grant'', for appellants.

R. H. Marr, for appellees.

BLATCHFORD, J.

title: Weaver v. Field


text: Talk:Weaver v. Field

title: Talk:Weaver v. Field


text:
Weaver v. Field/Opinion of the Court

This is a suit in equity brought by Daniel Weaver, in April, 1881, in the circuit court of the United States for the Eastern district of Louisiana, against Spencer Field, Sr., Spencer Field, Jr., and Frederick T. Field. The bill prays that the defendants be decreed in solido to pay to the plaintiff the amount of three promissory notes, made by Spencer Field, Sr., to his own order, and indorsed by him, dated November 1, 1873,-one for $2,000, at one year, one for $1,500, at two years, and one for $1,500, at three years, with interest at the rate of 8 per cent. per annum from maturity; and that certain land covered by a mortgage, of even date with the notes, given by Field, Sr., to one Williams, to secure the payment of the notes to their holder, be sold, and the notes be paid out of the proceeds. The other two Fields are made parties as having successfully become grantees of the land, and assumed, each in the deed to himself, which he executed, the payment of the notes and the mortgage. Weaver having died in July, 1881, the suit was revived in the names of the appellants, as his heirs, in February, 1882.

The bill avers that Weaver is the holder and owner of the notes. The answer of the three defendants, filed in June, 1882, avers that Weaver never was the owner of the notes, and never the holder of them for value or in good faith; that the notes and mortgage were made by Field, Sr., for the sole purpose of enabling him to raise money for his own purposes by the sale, or discount, or other use, of the notes; that the mortgage was made in favor of Williams, or any future holder, in order to facilitate the use of the notes; that Field, Sr., was not indebted to Williams; that Williams gave no consideration for the notes, and was merely the nominal mortgagee, without interest; that the notes were never the property of Williams, nor did he ever have them in his possession with the knowledge or consent of Field, Sr.; that, from the date of the notes, they remained in the possession of Field, Sr., until he used them, and delivered them to one Folger, as security for a loan; that, when such loan was paid, Folger returned the notes to Field, Sr., who retained them in his possession until on or about June 8, 1874, when he deposited them with Weaver, to be used, if practicable, to raise money for the uses and purposes of Field, Sr.; that, after the notes had so been deposited, and while they were in the possession and custody of Weaver, Weaver caused Williams to pledge the notes to him (Weaver) as security for the note of Williams for some $2,000; that Williams had no power to make such pledge, and the same was a mere nullity, for the reason that Williams did not have the notes in his possession, and they did not belong to him, at the time the pledge was made; that the notes, at that time, belonged to Field, Sr., and were in the custody and possession of Weaver, to whom the facts with respect to the ownership and the possession of the notes were necessarily known at the time the pledge was made; that Field, Sr., did not, at any time after the notes were so returned to him by Folger, negotiate them, or issue or deliver them to any person for value; that, by reason of the premises, the notes and mortgage were extinguished and became of no effect; and that Weaver never had, nor have any persons deriving title from him, any right or cause of action against the defendants, or any one of them, on the notes or the mortgage.

There was a replication, and proofs were taken, Field, Sr., and Williams being witnesses for the defendants. The bill was dismissed by a decree which states that the court considered that, by the undisputed evidence of Field, Sr., and Williams, and the circumstances of the case, it was shown that the notes in suit, after being issued and delivered to Folger, were taken up by, and came into the possession and ownership of, the maker, and were thus, under the laws of Louisiana, extinguished by confusion; that Weaver had notice of all this, and that, by the extinguishment of the notes, the mortgage fell.

Without reference to the ground stated by the circuit court as that on which it dismissed the bill, we are of opinion that the dismissal was proper. The matters of fact averred in the answer, as above set forth, are established by the evidence. It is shown that Weaver never acquired any title to the notes as owner, or as holder of them as security for any indebtedness from Field, Sr., to him; and that he received them from Field, Sr., as agent, to raise or advance money on for or to Field, Sr., and failed to do so, and retained them tortiously, and without the assent of Field, Sr. When Weaver first, in February, 1878, took legal proceedings to enforce the mortgage, Field, Sr., in the petition in the suit he brought against Weaver, in March, 1878, more than three years before Weaver died, to restrain Weaver's proceedings, denied that Weaver held or owned the notes, and alleged, in substance, the same facts set up in the answer in the present suit. We have carefully considered the argument on the facts made on the part of the appellants, but do not deem an extended opinion upon them necessary. The property in the hands of the grantees was bound only to the extent it was bound in the hands of the mortgagor, and only to respond to a lawful holder of the notes.

Decree affirmed.

title: Weaver v. Field/Opinion of the Court


text: Talk:Weaver v. Field/Opinion of the Court


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Page:Popular tales from the Norse (1912).djvu/612

 426 was so slippery that he couldn't hold him, and he got back again into the water.

When Ananzi had fried all the fish, he put them into the sacks, and took the sacks on his back, and set off to the mountains. He had not gone very far when he met lion, and lion said to him,—

"Well, brother Ananzi, where have you been? I have not seen you a long time."

Ananzi said, "I have been travelling about."

"But what have you got there?" said the lion.

"Oh! I have got my mother's bones,—she has been dead these forty-eleven years, and they say I must not keep her here, so I am taking her up into the middle of the mountains to bury her."

Then they parted. After he had gone a little way, the Lion said, "I know that Ananzi is a great rogue; I daresay he has got something there that he doesn't want me to see, and I will just follow him;" but he took care not to let Ananzi see him.

Now, when Ananzi got into the wood, he set his sacks down, and took one fish out and began to eat; then a fly came, and Ananzi said, "I cannot eat any more, for there is some one near;" so he tied the sack up, and went on farther into the mountains, where he set his sacks down, and took out two fish which he ate; and no fly came. He said, "There's no one near;" so he took out more fish. But when he had eaten about half-a-dozen, the Lion came up, and said,—

"Well, brother Ananzi, a pretty tale you have told me."

"Oh! brother lion, I am so glad you have come; never mind what tale I have told you, but come and sit down,—it was only my fun."

So lion sat down and began to eat; but before Ananzi had eaten two fish, lion had emptied one of the sacks. Then said Ananzi to himself,—

"Greedy fellow, eating up all my fish."

"What do you say, sir?"


text:
Doe v. Hyde

W. W. Cope, for appellant.

No appearance for appellee.

BLATCHFORD, J.

title: Doe v. Hyde


text: Talk:Doe v. Hyde

title: Talk:Doe v. Hyde