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Cromwell v. County of Sac/Opinion of the Court

This was an action on four bonds of the county of Sac, in the State of Iowa, each for $1,000, and four coupons for interest, attached to them, each for $100. The bonds were issued in 1860, and were made payable to bearer, in the city of New York, in the years 1868, 1869, 1870, and 1871, respectively, with annual interest at the rate of ten per cent a year.

To defeat this action, the defendant relied upon the estoppel of a judgment rendered in favor of the county in a prior action brought by one Samuel C. Smith upon certain earlier maturing coupons on the same bonds, accompanied with proof that the plaintiff Cromwell was at the time the owner of the coupons in that action, and that the action was prosecuted for his sole use and benefit.

The questions presented for our determination relate to the operation of this judgment as an estoppel against the prosecution of the present action, and the admissibility of the evidence to connect the present plaintiff with the former action as a real party in interest.

In considering the operation of this judgment, it should be borne in mind, as stated by counsel, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. Thus, for example, a judgment rendered upon a promissory note is conclusive as to the validity of the instrument and the amount due upon it, although it be subsequently alleged that perfect defences actually existed, of which no proof was offered, such as forgery, want of consideration, or payment. If such defences were not presented in the action, and established by competent evidence, the subsequent allegation of their existence is of no legal consequence. The judgment is as conclusive, so far as future proceedings at law are concerned, as though the defences never existed. The language, therefore, which is so often used, that a judgment estops not only as to every ground of recovery or defence actually presented in the action, but also as to every ground which might have been presented, is strictly accurate, when applied to the demand or claim in controversy. Such demand or claim, having passed into judgment, cannot again be brought into litigation between the parties in proceedings at law upon any ground whatever.

But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.

The difference in the operation of a judgment in the two classes of cases mentioned is seen through all the leading adjudications upon the doctrine of estoppel. Thus, in the case of Outram v. Morewood, 3 East, 346, the defendants were held estopped from averring title to a mine, in an action of trespass for digging out coal from it, because, in a previous action for a similar trespass, they had set up the same title, and it had been determined against them. In commenting upon a decision cited in that case, Lord Ellenborough, in his elaborate opinion, said: 'It is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. The recovery of itself in an action of trespass is only a bar to the future recovery of damages for the same injury; but the estoppel precludes parties and privies from contending to the contrary of that point or matter of fact, which, having been once distinctly put in issue by them, or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them.' And in the case of Gardner v. Buckbee, 3 Cowen, 120, it was held by the Supreme Court of New York that a verdict and judgment in the Marine Court of the city of New York, upon one of two notes given upon a sale of a vessel, that the sale was fraudulent, the vessel being at the time unseaworthy, were conclusive upon the question of the character of the sale in an action upon the other note between the same parties in the Court of Common Pleas. The rule laid down in the celebrated opinion in the case of the Du hess of Kingston was cited, and followed: 'That the judgment of a court of concurrent jurisdiction directly upon the point is as a plea a bar, or as evidence conclusive between the same parties upon the same matter directly in question in another court.'

These cases, usually cited in support of the doctrine that the determination of a question directly involved in one action is conclusive as to that question in a second suit between the same parties upon a different cause of action, negative the proposition that the estoppel can extend beyond the point actually litigated and determined. The argument in these cases, that a particular point was necessarily involved in the finding in the original action, proceeded upon the theory that, if not thus involved, the judgment would be inoperative as an estoppel. In the case of Miles v. Caldwell, reported in the 2d of Wallace, a judgment in ejectment in Missouri, where actions of that kind stand, with respect to the operation of a recovery therein, as a bar or estoppel, in the same position as other actions, was held by this court conclusive, in a subsequent suit in equity between the parties respecting the title, upon the question of the satisfaction of the mortgage under which the plaintiff claimed title to the premises in the ejectment, and the question as to the fraudulent character of the mortgage under which the defendant claimed, because these questions had been submitted to the jury in that action, and had been passed upon by them. The court held, after full consideration, that in cases of tort, equally as in those arising upon contract, where the form of the issue was so vague as not to show the questions of fact submitted to the jury, it was competent to prove by parol testimony what question or questions of fact were thus submitted and necessarily passed upon by them; and by inevitable implication also held that, in the absence of proof in such cases, the verdict and judgment were inconclusive, except as to the particular trespass alleged, whatever possible questions might have been raised and determined.

But it is not necessary to take this doctrine as a matter of inference from these cases. The precise point has been adjudged in numerous instances. It was so adjudged by this court in the case of The Washington, Alexandria, & Georgetown Steam Packet Co. v. Sickles, reported in the 24th of Howard. In that case, an action was brought upon a special parol contract for the use of Sickles's cut-off for saving fuel in the working of steam-engines, by which the plaintiffs, who had a patent for the cut-off, were to attach one of their machines to the engine of the defendants' boat, and were to receive for its use three-fourths of the saving of fuel thus produced, the payments to be made from time to time when demanded. To ascertain the saving of fuel an experiment was to be made in a specified manner, and the result taken as the rate of saving during the continuance of the contract. The plaintiffs in their declaration averred that the experiment had been made, at the rate of saving ascertained, and that the cut-off had been used on the boat until the commencement of the suit. In a prior action against the same defendant for an instalment due, where the declaration set forth the same contract in two counts, the first of which was similar to the counts in the second action, and also the common counts, the plaintiffs had obtained verdict and judgment; and it was insisted that the defendant was estopped by the verdict and judgment produced from proving that there was no such contract as that declared upon, or that no saving of fuel had been obtained, or that the experiment was not made pursuant to the contract, or that the verdict was rendered upon all the issues, and not upon the first count specially. The Circuit Court assented to these views, and excluded the testimony offered by the defendants to prove those facts. But this court reversed the decision, and held that the defendants were not thus estopped.

'The record produced by the pla ntiffs,' said the court, 'showed that the first suit was brought apparently upon the same contract as the second, and that the existence and validity of that contract might have been litigated. But the verdict might have been rendered upon the entire declaration, and without special reference to the first count. It was competent to the defendants to show the state of facts that existed at the trial, with a view to ascertain what was the matter decided upon by the verdict of the jury. It may have been that there was no contest in reference to the fairness of the experiment, or to its sufficiency to ascertain the premium to be paid for the use of the machine at the first trial, or it may have been that the plaintiffs abandoned their special counts and recovered their verdict upon the general counts. The judgment rendered in that suit, while it remains in force, and for the purpose of maintaining its validity, is conclusive of all the facts properly pleaded by the plaintiffs; but when it is presented as testimony in another suit, the inquiry is competent whether the same issue has been tried and settled by it.'

It is not believed that there are any cases going to the extent that because in the prior action a different question from that actually determined might have arisen and been litigated, therefore e such possible question is to be considered as excluded from consideration in a second action between the same parties on a different demand, although loose remarks looking in that direction may be found in some opinions. On principle, a point not in litigation in one action cannot be received as conclusively settled in any subsequent action upon a different cause, because it might have been determined in the first action

Various considerations, other than the actual merits, may govern a party in bringing forward grounds of recovery or defence in one action, which may not exist in another action upon a different demand, such as the smallness of the amount or the value of the property in controversy, the difficulty of obtaining the necessary evidence, the expense of the litigation, and his own situation at the time. A party acting upon considerations like these ought not to be precluded from contesting in a subsequent action other demands arising out of the same transaction. A judgment by default only admits for the purpose of the action the legality of the demand or claim in suit: it does not make the allegations of the declaration or complaint evidence in an action upon a different claim. The declaration may contain different statements of the cause of action in different counts. It could hardly be pretended that a judgment by default in such a case would make the several statements evidence in any other proceeding. Boyleau v. Rutlin, 2 Exch. 665, 681; Hughes v. Alexander, 5 Duer, 493.

The case of Howlett v. Tarte, 10 C. B. N. S. 813, supports this view. That was an action for rent, under a building agreement. The defendant pleaded a subsequent agreement, changing the tenancy into one from year to year, and its determination by notice to quit before the time for which the rent sued for was alleged to have accrued. The plaintiff replied that he had recovered a judgment in a former action against the defendant for rent under the same agreement, which had accrued after the alleged determination of the tenancy, in which action the defendant did not set up the defence pleaded in the second action. On demurrer, the replication, after full argument, was held bad. In deciding the case, Mr. Justice Willes said: 'It is quite right that a defendant should be estopped from setting up in the same action a defence which he might have pleaded, but has chosen to let the proper time go by. But nobody ever heard of a defendant being precluded from setting up a defence in a second action because he did not avail himself of the opportunity of setting it up in the first action. . . . I think we should do wrong to favor the introduction of this new device into the law.' Mr. Justic Byles said: 'It is plain that there is no authority for saying that the defendant is precluded from setting up this defence.' Mr. Justice Keating said: 'This is an attempt on the part of the plaintiff to extend the doctrine of estoppel far beyond what any of the authorities warrant.'

The language of the Vice-Chancellor, in the case of Henderson v. Henderson, 3 Hare, 100, 115, is sometimes cited as expressing a different opinion; but, upon examining the facts of that case, it will appear that the language used in no respect conflicts with the doctrine we have stated. In that case, a bill had been filed in the Supreme Court of Newfoundland, by the next of kin of an intestate, against A. and others, for an account of an estate and of certain partnership transactions. A decree was rendered against A., upon which the next of kin brought actions in England. A. then filed a bill there against the next of kin and personal representative of the intestate, stating that the intestate's estate was indebted to him, and alleging various errors and irregularities in the proceedings in the Supreme Court of the island, and praying that the estate of the intestate might be administered, the partnership accounts taken, and the amount of the debt due to him ascertained and paid. A demurrer to the bill was allowed for want of equity, on the ground that the whole of the matters were in question between the parties, and might properly have been the subject of adjudication in the suit before that court. It was with reference to the necessity of having the subject of particular litigation, as a whole, at once before the court, and not by piecemeal, that the Vice-Chancellor said:--

'In trying this question, I believe I state the rule of court correctly, that when a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction, the court requires the parties to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in controversy, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of the case. The plea of res adjudicata applies, except in special cases, not only to the points upon which the court was required by the parties to form an opinion, and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.'

There is nothing in this language, applied to the facts of the case, which gives support to the doctrine that, whenever in one action a party might have brought forward a particular ground of recovery or defence, and neglected to do so, he is, in a subsequent suit between the same parties upon a different cause of action, precluded from availing himself of such ground.

If, now, we consider the main question presented for our determination by the light of the views thus expressed and the authorities cited, its solution will not be difficult. It appears from the findings in the original action of Smith, that the county of Sac, by a vote of its people, authorized the issue of bonds to the amount of $10,000, for the erection of a court-house; that bonds to that amount were issued by the county judge, and delivered to one Meserey, with whom he had made a contract for the erection of the court-house; that immediately upon receipt of the bonds the contractor gave one of them as a gratuity to the county judge; and that the court-house was never constructed by the contractor, or by any other person pursuant to the contract. It also appears that the plaintiff had become, before their maturity, the holder of twenty-five coupons, which had been attached to the bonds; but there was no finding that he had ever given any value for them. The court below held, upon these findings, that the bonds were void as against the county, and gave judgment accordingly. The case coming here on writ of error, this court held that the facts disclosed by the findings were sufficient evidence of fraud and illegality in the inception of the bonds to call upon the holder to show that he had given value for the coupons; and, not having done so, the judgment was affirmed. Reading the record of the lower court by the opinion and judgment of this court, it must be considered that the matters adjudged in that case were these: that the bonds were void as against the county in the hands of parties who did not acquire them before maturity and give value for them, and that the plaintiff, not having proved that he gave such value, was not entitled to recover upon the coupons. Whatever illegality or fraud there was in the issue and delivery to the contractor of the bonds affected equally the coupons for interest attached to them. The finding and judgment upon the invalidity of the bonds, as against the county, must be held to estop the plaintiff here from averring to the contrary. But as the bonds were negotiable instruments, and their issue was authorized by a vote of the county, and they recite on their face a compliance with the law providing for their issue, they would be held as valid obligations against the county in the hands of a bona fide holder taking them for value before maturity, according to repeated decisions of this court upon the character of such obligations. If, therefore, the plaintiff received the bond and coupons in suit before maturity for value, as he offered to prove, he should have been permitted to show that fact. There was nothing adjudged in the former action in the finding that the plaintiff had not made such proof in that case which can preclude the present plaintiff from making such proof here. The fact that a party may not have shown that he gave value for one bond or coupon is not even presumptive, much less conclusive, evidence that he may not have given value for another and different bond or coupon. The exclusion of the evidence offered by the plaintiff was erroneous, and for the ruling of the court in that respect the judgment must be reversed and a new trial had.

Upon the second question presented, we think the court below ruled correctly. Evidence showing that the action of Smith was brought for the sole use and benefit of the present plaintiff was, in our judgment, admissible. The finding that Smith was the holder and owner of the coupons in suit went only to this extent, that he held the legal title to them, which was sufficient for the purpose of the action, and was not inconsistent with an equitable and beneficial interest in another.

Judgment reversed, and cause remanded for a new trial.


text: Talk:Cromwell v. County of Sac/Opinion of the Court

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Johnson v. Harmon

APPEAL from the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Argued by Mr. A. G. Riddle for the appellant.

The court declined to hear Mr. M. Thompson for the appellee.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Johnson v. Harmon


text: Talk:Johnson v. Harmon

title: Talk:Johnson v. Harmon


text:
Johnson v. Harmon/Opinion of the Court

This was a bill in equity, involving, amongst other questions, the validity of a trust deed given by the complainant (the appellee here) to secure certain notes. The complainant charges in his bill that he was so intoxicated when he executed the deed and notes as to be incapable of understanding what he was doing. The court below, after considerable testimony had been tak n, directed an issue to try the question whether the complainant, at the time of the execution of the deed of trust and notes, was capable of executing a valid deed or contract. The issue so directed was tried, and resulted in a verdict for the complainant; namely, that he was not capable of executing a valid deed or contract. The defendants took a bill of exceptions to the charge given by the judge who tried the issue, which was allowed, and signed by him. The cause afterwards came on to be heard upon the exceptions, and they were overruled. Subsequently a final hearing was had upon the pleadings, evidence, and verdict, and a decree was rendered for the complainant, directing the trust deed and notes in question to be vacated and set aside. From that decree this appeal was taken, and the only errors assigned are to the charge given by the judge to the jury on the trial of the feigned issue.

This is totally inadmissible. A bill of exceptions cannot be taken on the trial of a feigned issue directed by a court of equity, or, if taken, can only be used on a motion for a new trial made to said court. 2 Dan. Ch. Pr. (3d Am. ed.) 1106; Armstrong v. Armstrong, 3 Myl. & K. 52; Ex parte Story, 12 Pet. 343. See the cases on new trials on feigned issues collected in 3 Graham & Waterman on New Trials, 1553, &c. The issue is directed to be tried for the purpose of informing the conscience of the Chancellor, and aiding him to come to a proper conclusion. If he thinks the trial has not been a fair one, or for any other reason desires a new trial, it is in his discretion to order it. But he may proceed with the cause though dissatisfied with the verdict, and make a decree contrary thereto, if in his judgment the law and the evidence so requires. A decree in equity, therefore, when appealed from, does not stand or fall according to the legality or illegality of the proceedings on the trial of a feigned issue in the cause; for the verdict may or may not have been the ground of the decree. It is the duty of the court of first instance to decide (as was done here) upon the whole case, pleadings, evidence, and verdict, giving to the latter so much effect as it is worth. An appeal from the decree must be decided in the same way, namely, upon the whole case, and cannot be made to turn on the correctness or incorrectness of the judge's rulings at the trial of the feigned issue.

Decree affirmed.

title: Johnson v. Harmon/Opinion of the Court


text: Talk:Johnson v. Harmon/Opinion of the Court


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Beall v. White

APPEAL from the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Mr. Walter D. Davidge, for the appellants.

Mr. Enoch Totten, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Beall v. White


text: Talk:Beall v. White

title: Talk:Beall v. White


text:
Beall v. White/Opinion of the Court

Landlords leasing real property in this District have a tacit lien upon such of the personal chattels of the tenant upon the premises as are subject to execution for debt, commencing with the tenancy, and continuing for three months after the rent is due, and until the termination of any action for such rent brought within said three months. 14 Stat. 404; Fowler v. Rapley, 15 Wall. 328; Webb v. Sharp, 13 id. 14.

Sufficient appears to show that the executors of Alpheus Middleton, deceased, and Benjamin Beall, the owner of the other undivided half, on the 5th of March, 1867, leased the hotel at the corner of Pennsylvania Avenue and Sixth Street West, then known as the Clarendon Hotel, to George W. Bunker and William H. Crosby, for the term of five years from the first day of April next ensuing, at the yearly rent of $4,000, payable in monthly instalments the last day of each month, with the proviso, that if the rent, or any part thereof, shall be in arrear and unpaid for the space of thirty days, the tenancy, upon notice thereof being given in writing to the lessees, shall cease and determine, and the same shall be and become a tenancy at will, determinable as prescribed in the act of Congress.

Covenants were also contained in the lease by both parties. On the part of the lessees, for the payment of rent during the term and in the mode prescribed; that they would not let or sublet the demised premises without the written consent of the lessors; and for the peaceful surrender of the premises at the end of the term or additional term. Reciprocal covenants were also made by the lessors for quiet enjoyment, for the renewal of the lease for another term of five years, if the lessees made written application for the same within the period therein specified.

Under that instrument the lessees entered into possession of the premises, purchased necessary furniture, and commenced the business of hotel-keeping, the name of the house being changed to Bunker's Avenue Hotel. At the date of the lease, Thomas M. Plowman was a silent partner with the lessees in the business; and it appears that Crosby, on the 2d of October in the following year, sold and assigned his interest in the lease and furniture to Bunker and Plowman, his copartners.

Negotiations took place for the enlargement of the hotel; and, in December following, an adjoining tenement belonging to Benjamin Beall, in his own right, was leased to Bunker & Plowman, at the yearly rent of $1,300, payable monthly, the same having previously been altered and remodelled for the purpose at great expense, and was then fitted up with the necessary furniture.

Five days after the commencement of the lease, to wit, April 6, in the same year, the lessees gave a deed of trust upon all the furniture then in the hotel to Orestes B. Dodge, trustee, to secure two notes of even date with the deed, each for $1,250, payable in nine and twelve months. When William H. Crosby sold and assigned his interest, Bunker & Plowman on the same day, to wit, Oct. 2, in the same year, gave a deed of trust to Samuel L. Phillips, trustee, upon all the furniture then in the hotel and all additions to the same, and all furniture to be placed in the Beall tenement, then being remodelled, and also upon the demised term and any further term the grantors may obtain in the Beall property, to secure two notes of even date, each for the sum of $3,500, payable in six and twelve months, in favor of William H. Crosb, for his interest in the lease and furniture.

Bunker & Plowman, on the 17th of April following, conveyed all their leasehold interest in the tenements, then called the St. James Hotel, together with all the furniture therein, to Samuel L. Phillips, trustee, to secure a continuing credit given by Beall & Baker to the grantors, in the amount of $5,000, to continue for two years. On the 20th of December in the same year the same grantors gave another deed of trust to Elias E. White, trustee, to secure a further indebtedness to Beall & Baker, in the sum of $3,044.77, as appears by the answer.

Two of the notes secured by the deeds of trust, each payable in twelve months, are claimed by the Freedman's Savings and Trust Company, one being secured in the first trust-deed and the other in the second, both notes having been taken by the bank when overdue. Mention should also be made that the same grantors, on the 10th of April, two years later, assigned their leasehold interest and all the furniture in the hotel to John Spicer, and, late in the same month, put him in possession, the original lessors refusing to recognize him as tenant. Rent was subsequently paid, but was received and receipted as due from Bunker & Plowman.

Suits in attachment on two of the notes were brought for rent, on the 29th of August in the same year, and two other similar suits were instituted for similar causes, near the close of the year, in which chattels upon the premises, including both tenements, were seized, and judgments of condemnation were duly rendered.

Enough appears to show that Bunker & Plowman were indebted to Beall & Baker, under the deeds of trust executed for their benefit, in the sum of $10,000, and that it was at their instance that the trustees proceeded to enforce the deeds; that the property was sold by the trustees, under the several deeds of trust, with the consent of Spicer; and that the trustees then filed their bill of interpleader against Beall and Beall & Baker, and the Freedman's Savings and Trust Company, for the distribution of the fund.

Process was served, and the respondents appeared and filed an answer. Proofs were taken, the parties heard, and the court entered a decree that the deeds of trust are entitled to priority of satisfaction out of the fund in the hands of the complainants as against the rents to the landlord. Such being the final decree in the Court of Appeal, Beall & Baker, by special leave, appealed to this court, and assign for error the decree of the court below, adjudging that the deeds of trust are entitled to priority of payment as against the lien of the landlord.

Priority in favor of the first deed of trust cannot be claimed, unless the proposition of appellees can be sustained, that the first tenancy ended when William H. Crosby, with the consent of the lessors, sold and assigned his interest in the lease and furniture to Bunker & Plowman, or when the latter in turn assigned their leasehold interest in the demised premises and the furniture in the hotel to John Spicer. Suppose the original tenancy was unaffected by those events, it follows that the claim in favor of the first deed of trust is unfounded, as the record shows that the tenancy commenced before the deed was executed, and the recitals in the deeds showed that the chattels were upon the premises.

Without more, these remarks are sufficient to show that the court below erred in that regard, if the original contract of lease continued in force unaffected by the described assignments. Grant that, and it follows that the decree under review is also erroneous in respect to the claim made in favor of the other deed of trust, for the same reason, that the tenancy commenced eighteen months before the deed was executed. Nor can the appellees derive any benefit from the fact that the deed purports also to convey chattels to be acquired in the future and placed in the hotel. Liens of the kind, arising under the act of Congress, attach at the commencement of the tenancy, or whenever personal chattels, owned by the tenant and subject to execution for debt, are brought on to the premises. Statutory liens have, without possession, the same operation and efficacy that existed in common-law liens where the possession was delivered. Personal chattels on the premises, sold in the ordinary course of trade, without knowledge of the lien, are not subject to its operation, or, in other words, the lien in respect to such sales, where the goods are removed from the premises, is displaced, and the purchaser takes a perfect title to the property discharged of the lien. Webb v. Marshall, 13 Wall. 15; Grant v. Whitwell, 9 Iowa, 153; Doane v. Garretson, 24 id. 351; Marr v. Sheffner, 2 East, 523; Burton v. Smith, 13 Pet. 483; Fowler v. Rapley, 15 Wall. 336.

Beyond question, the remarks made are sufficient to show that the lien of the landlord, so far as respects the chattels on the premises, is entitled to priority over the deeds of trust, unless the proposition of the appellees, that the statutory lien was displaced by one or both of the subsequent assignments by the lessees.

Before examining that question, it is proper to consider to what extent, if at all, the rights of the parties are affected by the terms of the second deed of trust, which purports to convey property subsequently acquired by the grantors and placed on the demised premises. Courts of equity will, in certain cases, give effect to a mortgage of property to be acquired subsequently, where no rule of law is infringed and the rights of third persons are not prejudiced. Pennock v. Coe, 23 How. 12.

Grants or conveyances of the kind may, in certain cases, be valid, subject to those conditions, or, to speak more accurately, the law will permit the grant or conveyance to take effect upon the property when it is brought into existence and belongs to the grantor, in fulfilment of an express agreement, if founded on a good consideration, and it appears that no rule of law is infringed and the rights of third persons are not prejudiced. Story, Eq. Jur. (9th ed.) § 1040; Dunham v. Railway Company, 1 Wall. 254; United States v. New Orleans Railroad, 12 id. 362.

Decided cases may be found where the rule, as stated in the preceding citations, is greatly qualified, and others where it is expressly denied, if applied in the ordinary business transactions. Otis v. Sill, 9 Barb. 111; Mogg v. Baker, 3 M. & W. 198; Winslow v. Insurance Company, 4 Met. 316; Jones v. Richardson, 10 id. 481; Lunt v. Thornton, 1 Man., Gr. & Sc. 385.

Were it necessary to reconcile the decisions upon the subject, the effort would be involved in difficulty; but it is not necessary to make the attempt in this case, as the court is unhesitatingly of the opinion that the deeds of trust in that regard present no legal obstacle to the claim of the appellants.

Repeated decisions have settled the rule that the lien of the landlord attaches at the commencement of the tenancy, or whenever personal chattels, owned by the tenant and subject to execution for debt, are placed on the demised premises. Fowler v. Rapley, 15 Wall. 328; Webb v. Sharp, 13 id. 14.

Decided cases everywhere admit that rule; and yet the second deed of trust in question provided that the grantee should take not only all the chattels on the premises at the date of the instrument, but also all such as the tenants might have on the premises in substitution, renewal, or addition to those contained therein, and all they might have during the continuance of the term in and about the addition which was then erecting to the hotel, and which was not leased to the tenants in possession under the lease until the month of December, 1868, as appears both by the bill of complaint and the answer. Suffice it to say that the terms of the deed of trust are in that regard utterly inconsistent with the statutory rights of the landlord, and must give place to the superior claim of the appellants.

Concede all that, and still it is insisted by the appellees that the statutory lien for rent has been lost, because it was not seasonably enforced; and they assign two reasons for the conclusion: 1. That the first term ended and the second began when William H. Crosby retired and Plowman was substituted in his place, with the consent of the lessors. 2. That the second term ended when Bunker & Plowman in their turn left the premises, and that the third term commenced when Spicer, with the approbation of the lessors, entered into possession of the hotel and became its proprietor.

Changes of the kind were made; and the appellees submit the proposition that each one of the same effected by operation of law a surrender of the previous term, and created both a new tenancy and a new term. Two things which are unlike should be separately considered; and for that reason the alleged surrenders of the term will be separately examined.

Both the pleadings and evidence show that Plowman, though not named in the original lease, was, in fact, a silent partner, and that he was interested in the contract; and the evidence also shows that the arrangement that Crosby should retire and that Plowman should take his place was a matter which the parties adjusted between themselves, doubtless with the consent of the senior partner named in the lease. All three were originally interested, each having a third interest; and the reasonable inference from the evidence is, that the other two, when Crosby retired, became joint owners of the entire interest conveyed by the lease. Evidence to show that the lessors, other than Benjamin Beall, were ever consulted is entirely wanting; and there is neither fact nor circumstance in the case to show that the parties, or any one of them, ever for a moment supposed that the term was surrendered, or that a new term was created by the transaction. Whitney v. Myers, 1 Duer, 266.

No new writings were executed, nor was any change made in the management of the property, except that one party interested retired, and another, who had an equal interest in the adventure, joined with the senior partner in conducting the business, and contributed his proportion of the means to pay the past and accruing rent. 1 Washb. Real Prop. (4th ed.) 549.

Rent was subsequently paid by the tenant in possession; but there is no evidence in the case which has the least tendency to show that there was any surrender in fact of the term, or that any one of the parties ever had any such intention. Lyon v. Reed, 13 M. & W. 285. Indeed, it is not even suggested that there was any surrender in fact.

What the appellees suggest is, that these acts of the parties, proved, constitute a surrender by operation of law, even though such was not their intention. Such a conclusion may, in certain cases, arise by operation of law, as where the owner of a particular estate has been a party to some act, the validity of which he is by law afterwards estopped from disputing, and which would not be valid if his particular estate continued to exist.

Text-writers agree that a surrender is the yielding up the estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties. It is either in express words, by which the lessee manifests his intention of yielding up his interest in the premises, or by operation of law, when the parties without express surrender do some act which implies that they have both agreed to consider the surrender as made. Taylor on Land. & Ten. (6th ed.) 392; Woodfall on Land. & Ten. (9th ed.) 267.

Decided cases to the same effect are very numerous, and they show that the evidence in this case is not sufficient to warrant the conclusion that there was any surrender of the term when Crosby retired and Plowman took his place. Schieffelen v. Carpenter, 15 Wend. 404; Field v. Mills, 33 N. J. 259; Boardman v. Wilson, Law Rep. 4 C. B. 57; Bedford v. Terhune, 30 N. Y. 458.

Attempt is next made to maintain the propo ition that the term under the original lease terminated when Bunker and Plowman assigned or agreed to assign all their interest in the lease and furniture of the hotel to John Spicer, as alleged in the answer.

Satisfactory proof is exhibited that they agreed to make the assignment, and it is certain that he went into possession of the premises as proprietor; and the theory of the appellees is, that Benjamin Beall assented to the transfer of the lease and the personal chattels, and that he agreed to accept the assignee as tenant of the demised premises. Testimony to that effect was given by several witnesses examined by the appellees, as exhibited in the record.

Opposed to that is the testimony of Benjamin Beall, who was called and examined in behalf of the appellants. He testifies that he never consented to the substitution. Instead of that, his testimony is that he peremptorily refused to recognize Spicer as tenant when he called upon him and made request to that effect; that the interview was before any assignment had been completed with the tenants in possession, and that he then informed Spicer that he would give him the benefit of an extension of the lease.

Full proof is also exhibited in the record that the owners of the hotel and furniture, on the 28th of April, 1871, gave written notice to the lessees in possession that they would, on the following day, take possession of the furniture and fixtures of the hotel, and that the marshal had been directed to attach the same. From that notice it also appears that they referred to a statement in a morning paper, that the hotel had changed hands, and stated that the change was not authorized by them, and that they would not sanction any such arrangement.

Nothing is wanted to show that the lessees knew that the acting lessor would not consent to any surrender of the term. Rent, it is admitted, was subsequently paid to him by Spicer; but the evidence shows that he receipted for it to the lessees who made the assignment, but without his consent. Amory v. Kannoffsky, 117 Mass. 354.

Taken as a whole, the evidence satisfies the court that there was no actual surrender of the term, and that the acts of the lessors, when properly understood, do not tend to prove the theory of the appellees, that there was any surrender by operation of law, within the meaning of that phrase as expounded by the decided cases. Phen e v. Popplewall, 12 C. B. N. S. 334.

Evidence to support such a theory, so far as respects all of the owners of the property and furniture, except one, is entirely wanting, as no application was ever made to any other one of the owners to give their consent to the arrangement, nor was any evidence introduced to show that they had knowledge that any thing of the kind was proposed.

Sufficient appears to show not only that Beall knew what the proposal was, but that he also knew what the parties, as between themselves, carried into effect. Much conflict exists in the evidence as to whether he consented to it or not; but, in view of the written notice given to the lessees before the change of proprietors was carried into effect, the better opinion is, that the change was made without having secured his consent.

Decree reversed, and cause remanded with directions to enter a decree, adjudging that the liens of the landlord have priority over the deeds of trust.

title: Beall v. White/Opinion of the Court


text: Talk:Beall v. White/Opinion of the Court


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McCready v. Virginia

ERROR to the Supreme Court of Appeals of the State of Virginia.

McCready, a citizen of Maryland, was indicted, convicted, and fined $500, in the Circuit Court of Gloucester County, Va., for planting oysters in Ware River, a stream in which the tide ebbs and flows, in violation of sect. 22 of the act of the assembly of Virginia approved April 18, 1874, c. 214, p. 243, Sess. Acts 1874. That section is as follows:--

'If any person other than a citizen of this State shall take or catch oysters or any shell-fish in any manner, or plant oysters i the waters thereof, or in the rivers Potomac or Pocomoke, he shall forfeit $500, and the vessel, tackle, and appurtenances.'

The Supreme Court of Appeals of the State affirmed the judgment below; whereupon the defendant sued out this writ of error.

Mr. Robert Ould for the plaintiff in error.

I. The legislation of Virginia is in violation of the second section of the fourth article of the Federal Constitution, which declares that 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.'

1. Both at common law and under the statute, Virginia holds the beds of its navigable waters in trust for the common benefit of all its people or citizens.

2. Such beds being so held, the rights of the citizens of Virginia, which spring from citizenship, inure, by force of the Federal Constitution, to the benefit of the citizens of other States, even against a limitation in the State statute. Such limitation is void, because in derogation of Virginia's compact found in the supreme law. The Constitution, acting upon the grant in the State law in favor of the citizens of Virginia, and securing the same benefit to citizens of other States, nullifies the restriction in that law.

3. The State can fully and effectually regulate the use of its fisheries, and apply its police power to their management; but all such regulations must be in subordination to the Federal Constitution, and should apply to its own citizens as well as to those of other States.

4. The law as to shell-fish, so far as the right to use or appropriate them is concerned, is the same as that which applies to floating fish.

5. The right to plant oysters is distinct from the right to take or catch, and even if the constitutional provision does not secure the latter, it does secure the former, to the citizens of other States, as no abstraction of any property held by the State is involved therein.

6. The State holds its different kinds of property in different rights. It has its private property, which it can control as fully as the private citizen can his. It also has its public property, which its citizens and those of other States can use and enjoy but not appropriate, such as its public buildings and grounds. It also holds a third class of property, such as its floating and embedded fish, as to which there can be no use or enjoyment except in appropriation; and when the right of user by appropriation is given by the State to its own citizens, the Federal Constitution secures the same right to the citizens of the other States.

7. The constitutional provision applies to tangible property as well as to incorporal privileges, where the right to use or appropriate tangible property held by the State is conferred upon all its citizens.

8. If the right of planting oysters, when it is given to the citizens of a State, is not secured to the citizens of other States, by the word 'privilege' in the Federal Constitution, any punishment for planting them is excluded by the word 'immunity.'

The authorities for these positions are: Paul v. Virginia, 8 Wall. 180; Ward v. Maryland, 12 id. 418; Slaughter-House Cases, 16 id. 36; Moody v. Arnold, 1 Halst. 1; Martin v. Waddell, 16 Pet. 410; Smith v. State of Maryland, 18 How. 71; Den v. Jersey County, 15 id. 432; Pollard's Lessee v. Hagan, 3 id. 212; Somerset v. Fogwell, 5 Barn. & Cress. 883; Bagot v. Orr, 2 Bos. & Pull. 472; Watson v. Sampson, 8 Cush. 347; Lakeman v. Burnham, 7 Gray, 437; Peck v. Lockwood, 5 Day, 22; Preble v. Brown, 47 Me. 286; Smith v. Levinus, 8 N. Y. 472; Home v. Richards, 4 Cal. 441; 2 Black. Com. 39; Chapman v. Miller, 2 Speers, 783; Wiley v. Parmer, 14 Ala. 647; Crandall v. State, 10 Conn. 343; Compbell v. Morris, 3 Harr. & McH. 553, 554; Commonwealth v. Milton, 12 B. Mon. 219; Cooley's Story, sects. 1930, 1934, 1937.

II. The legislation is in conflict with the third clause of the eighth section of the first article of the Federal Constitution, which confers on Congress the power 'to regulate commerce with foreign nations and among the several States.'

The law of Virginia applies as well to oysters brought from a sister State as to those bought in Virginia and planted there. As to such foreign oysters, at least, it is in conflict with existing commercial regulations, and also with the laws of the United States relating to the coast trade. Those laws give to all citizens of the United States the same rights of traffic and intercourse. A statute which prevents a citizen of Maryland from devoting property to such uses in Virginia as any Virginian can devote similar property to is a regulation of commerce, whether the property be brought from Maryland or purchased in Virginia. A citizen of Virginia can purchase a cargo of oysters in Maryland or in Virginia and plant them in the waters of Virginia. A citizen of Maryland, if he purchases a cargo of oysters in Maryland or in Virginia, cannot plant them in the waters of Virginia. Here is not only inequality, but an interference with the exclusive commercial authority of Congress. Cooley's Story on the Const., vol. ii. pp. 2-23; Welton v. The State of Missouri, 91 U.S. 275.

Mr. R. T. Daniel, Attorney-General of Virginia, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: McCready v. Virginia


text: Talk:McCready v. Virginia

title: Talk:McCready v. Virginia


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McCready v. Virginia/Opinion of the Court

The precise question to be determined in this case is, whether the State of Virginia can prohibit the citizens of other States from planting oysters in Ware River, a stream in that State where the tide ebbs and flows, when its own citizens have that privilege.

The principle has long been settled in this court, that each State owns the beds of all tide-waters within its jurisdiction, unless they have been granted away. Pollard's Lessee v. Hagan, 3 How. 212; Smith v. Maryland, 18 How. 74; Mumford v. Wardwell, 6 Wall. 436; Weber v. Harbor Commissioners, 18 id. 66. In like manner, the States own the tide-waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the State represents its people, and the ownership is that of the people in their united sovereignty. Martin v. Waddell, 16 Pet. 410. The title thus held is subject to the paramount right of navigation, the regulation of which, in respect to foreign and inter-state commerce, has been granted to the United States. There has been, however, no such grant of power over the fisheries. These remain under the exclusive control of the State, which has consequently the right, in its discretion, to appropriate its tide-waters and their beds to be used by its people as a common for taking and cultivating fish, so far as it may be done without obstructing navigation. Such an appropriation is in effect nothing more than a regulation of the use by the people of their common property. The right which the people of the State thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is, in fact, a property right, and not a mere privilege or immunity of citizenship.

By art. 4, sect. 2, of the Constitution, the citizens of each State are 'entitled to all privileges and immunities of citizens in the several States.' Mr. Justice Washington, in Corfield v. Coryell, 4 Wash. C. C. 380, thought that this provision extended only to such privileges and immunities as are 'in their nature fundamental; which belong of right to the citizens of all free governments.' And Mr. Justice Curtis, in Scott v. Sandford, 19 How. 580, described them as such 'as belonged to general citizenship.' But usually, when this provision of the Constitution has been under consideration, the courts have manifested the disposition, which this court did in Conner v. Elliott, 18 How. 593, not to attempt to define the words, but 'rather to leave their meaning to be deter ined in each case upon a view of the particular rights asserted or denied therein.' This clearly is the safer course to pursue, when, to use the language of Mr. Justice Curtis, in Conner v. Elliott, 'we are dealing with so broad a provision, involving matters not only of great delicacy and importance, but which are of such a character that any merely abstract definition could scarcely be correct, and a failure to make it so would certainly produce mischief.'

Following, then, this salutary rule, and looking only to the particular right which is here asserted, we think we may safely hold that the citizens of one State are not invested by this clause of the Constitution with any interest in the common property of the citizens of another State. If Virginia had by law provided for the sale of its once vast public domain, and a division of the proceeds among its own people, no one, we venture to say, would contend that the citizens of other States had a constitutional right to the enjoyment of this privilege of Virginia citizenship. Neither if, instead of selling, the State had appropriated the same property to be used as a common by its people for the purposes of agriculture, could the citizens of other States avail themselves of such a privilege. And the reason is obvious: the right thus granted is not a privilege or immunity of general but of special citizenship. It does not 'belong of right to the citizens of all free governments,' but only to the citizens of Virginia, on account of the peculiar circumstances in which they are placed. They, and they alone, owned the property to be sold or used, and they alone had the power to dispose of it as they saw fit. They owned it, not by virtue of citizenship merely, but of citizenship and domicile united; that is to say, by virtue of a citizenship confined to that particular locality.

The planting of oysters in the soil covered by water owned in common by the people of the State is not different in principle from that of planting corn upon dry land held in the same way. Both are for the purposes of cultivation and profit; and if the State, in the regulation of its public domain, can grant to its own citizens the exclusive use of dry lands, we see no reason why it may not do the same thing in respect to such as are covered by water. And as all concede that a State may grant to one of its citizens the exclusive use of a part of the common property, the conclusion would seem to follow, that it might by appropriate legislation confine the use of the whole to its own people alone.

Neither do we think this case is at all affected by the clause of the Constitution which confers power on Congress to regulate commerce. Art. 1, sect. 8. There is here no question of transportation or exchange of commodities, but only of cultivation and production. Commerce has nothing to do with land while producing, but only with the product after it has become the subject of trade. Virginia, owning land under water adapted to the propagation and improvement of oysters, has seen fit to grant the exclusive use of it for that purpose to the citizens of the State. In this way the people of Virginia may be enabled to produce what the people of the other States cannot; but that is because they own property which the others do not. Their productions do not spring from commerce, but commerce to some extent from them.

We are unable to agree with the counsel for the plaintiff in error in his argument, that the right of planting may be enforced as a privilege of inter-state citizenship, even though that of taking cannot. Planting means, in 'oysterman's phraseology,' as counsel say, 'depositing with the intent that the oysters shall remain until they are fattened.' The object is, therefore, to make use of the soil and the water above it for the improvement and growth of that which is planted. It is this use, as has already been seen, that the State has the right, by reason of its ownership, to prohibit.

Judgment affirmed.


text: Talk:McCready v. Virginia/Opinion of the Court


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Chorp Nning v. United States

APPEAL from the Court of Claims.

Mr. Joseph Casey for the appellant.

Mr. Solicitor-General Phillips, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Chorp Nning v. United States


text: Talk:Chorp Nning v. United States

title: Talk:Chorp Nning v. United States


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Chorp Nning v. United States/Opinion of the Court

The appellant rests his claim upon the act of Congress of March 3, 1857, 11 Stat. 521, and the resolution of Congress of July 15, 1870, 16 Stat. 673.

Under the act of 1857, Postmaster-General Brown, on the 25th of May and the 30th of June, 1857, awarded to the claimant three several sums of $30,000, $49,842, and $29,590.95, which were paid to him. He received them under protest.

Thereafter he filed his petition in the Court of Claims, averring that he was entitled to further compensation and damages under the act.

The Court of Claims held that the action of the Postmaster-General, and the payment and receipt of the sums awarded, were final and conclusive between the parties, and the petition was dismissed. Chorpenning v. United States, 3 Ct. of Cl. 140. The claimant appealed to this court. While the appeal was pending, Congress passed the resolution of July 15, 1870. Under that resolution Postmaster-General Cresswell found there was due to the claimant the further sum of $443,010.70. Before any thing further was done, Congress, by a resolution of the 9th of February, 1871, 16 Stat. 702, repealed the resolution of the 15th of July, 1870, under which the last adjustment was made, and by the act of March 3, 1871, 16 Stat. 519, directed that no part of the money thereby appropriated for the use of the Post-office Department should 'be applied to the payment of what is known as the Chorpenning claim.'

Upon analyzing the resolution of 1870, it is found to contain the following provisions: 1. The Postmaster-General was anthorized to 'investigate and adjust' anew the claims of George Chorpenning under the first section of the act of 1857, 'on the basis of compensation allowed by said act for regular mail service.' 2. 'And the claim growing out of the curtailment and annulment of his contract on route No. 12,801, on the basis of his agreement with the Postmaster-General for the service, to be settled as provided for the services named in said act.' 3. 'And the right of appeal from the proceedings of the Postmaster-General to the Court of Claims' was 'reserved and allowed to the said claimant.'

The act of 1857 became defunct by what occurred under it in that year. It was in no wise revived by the resolution of 1870. It was only referred to by that resolution for the rules and basis upon which the new adjustment authorized was to proceed.

The question before us is as to the effect of the repealing resolution of 1871. In considering that subject, the act of 1857 may be laid out of view, and will not be further adverted to.

The resolution relied upon by the appellant was wholly unilateral. It contained no stipulation of payment, express or implied. Congress, for its own reasons, simply directed an examination and adjustment. It gave no promise and came under no obligation to the other party, and asked and received none from him. The government and the claimant stood, and continued to stand, wholly independent of each other. The government could at any time before payment recall what it had done, and the claimant was at liberty up to the same period to refuse concurrence, and assert aliunde his legal rights, if any he had. Prior to that time there could be no vested right and no commitment of either party, not subject to the exercise thereafter of such discretion, affirmative or negative, as might be deemed proper. The case presents the same legal aspect as if it were between individuals. If a merchant should direct his clerk or other agent to 'investigate and adjust the claim' of a third party upon a prescribed basis, and the adjustment was made accordingly, can it be doubted that the merchant might thereafter, because he had come to the conclusion that the claim was tainted with fraud or had been already fully pa d, or for any other reason, or as a matter of choice, without assigning any reason, decline to recognize what had been done as of any validity, and withdraw the authority under which the proceeding had been taken?

The reason of the right would be that there was no binding mutuality of assent, no consideration, and hence no legal obligation resting upon either party. The duty devolved upon the Postmaster-General was wholly ministerial, and in no sense judicial, or that of an arbitrator. The record discloses no element of an arbitrament. The adjustment, having been made under a special law, renders it in no wise different as regards the point we are considering from those made daily by the accounting officers of the government, under the general law conferring their powers and prescribing their duties. The idea that the government is finally concluded by the results at which they may arrive would be regarded as a novelty within and without the several departments.

The implication from the repeal of the resolution of 1870, and the prohibition in the act of 1871, is clear that Congress did not intend that any thing more should be paid to the claimant without further authority from that body. United States v. Babbitt, 1 Black, 55. This case is not distinguishable in principle from Gordon v. United States, 7 Wall. 188. Aside from the views we have expressed, that adjudication is conclusive as authority against the appellant.

Our attention has been called by the counsel on both sides to the clause of the resolution giving the claimant the right of appeal from the findings of the Postmaster-General to the Court of Claims. The view which we take of the case renders it unnecessary to consider that point, and we express no opinion upon the subject.

Judgment affirmed.


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


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United States v. Martin

APPEAL from the Court of Claims.

This was a petition filed by Martin against the United States. The court below found the following facts:--

1. In the year 1866 or 1867 the claimant was employed by the foreman of the steam-heating and gas works at the Naval Academy, at Annapolis, to work for the defendants at $2.50 a day, with the understanding that during the season of steaming, which was from the 1st of October to the 1st of June, his time of labor was to be twelve hours a day. During the seasons of steam-heating he was fireman at the steam-boilers, and at other times he was employed in assisting in repairing pipes, digging, and shovelling, or in ordinary labor and work.

2. In July, 1868, upon the passage of the act constituting eight hours as a day's work for all laborers employed on behalf of the government, called the 'Eight-Hour Law,' 15 Stat. 77, the claimant and other laborers at said academy spoke about that law to the foreman, who put on an additional man in the gas-works (where the claimant was not employed), and reduced the time of labor of the men in said gas-works to eight hours a day. Soon afterward, the men told him they would rather have half a dollar a day additional than to have the eight hours' work. Admiral Porter, then superintendent of the academy, was informed of what the men said, and he told the foreman that he would not give more pay, and that if any one would not work the full hours, he would put some one in his place. The claimant was present and heard this conversation. Nothing more was said or done in the matter, and the claimant went on with his work, laboring the number of hours per day as before, according to the original understanding.

3. From the 25th of June, 1868, when the eight-hour law passed, to the 19th of May, 1869, when the President's proclamation in relation to said act was issued, 16 Stat. 1127, the claimant worked two hundred and thirty-one calendar days, twelve hours each day, and ninety-seven calendar days, eight hours each day. From said 19th of May, 1869, to the time of his final discharge, Oct. 15, 1872, he worked seven hundred and fifty-two and a half c lendar days, twelve hours each day, and four hundred and thirty nine and a half calendar days, eight hours each day.

4. For all of said labor the claimant was paid at the rate of $2.50 per calendar day, except that, for reasons which do not appear in evidence, he was paid at the rate of $2.25 per day for seventy-four days of twelve hours each, in March, April, and May, 1870, and for twenty-six days of eight hours each, in June, 1870. Payments at said rates were made to him at the end of each month during his time of service, and were received by him without protest or objection.

5. While the claimant was so employed, the pay of ordinary laborers at the academy was $1.75 a day; and the firemen were paid $2.50 a day, because the time was longer and the work harder. The wages of firemen in the works of the gas company, a private corporation, at Annapolis, has since the war been $2 a day of twelve hours' labor, and they had more work to do than the claimant had while similarly employed by the defendants.

6. In the year 1873, the claimant made a formal application, in writing, to the Fourth Auditor of the Treasury, for arrears of pay, claimed as due him under the second section of the act of May 18, 1872, 17 Stat. 134, between the 25th of June, 1868, and the 19th of May, 1869, on account of his said employment. The auditor thereupon stated the account, and allowed the claimant $205.63, which was admitted by the Second Comptroller; and that amount was paid to the claimant, who receipted for the same, in writing, in full of the account.

The court below dismissed the petition, but, on a subsequent day of the term, made an order vacating the judgment, and directing, for the purpose of an appeal, a pro forma judgment to be entered in favor of the claimant in the sum of $1,019.49.

The United States thereupon appealed.

Mr. Assistant Attorney-General Smith for the United States.

Mr. Charles E. Hovey, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: United States v. Martin


text: Talk:United States v. Martin

title: Talk:United States v. Martin


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United States v. Martin/Opinion of the Court

On the 25th of June, 1868, Congress passed an act (15 Stat. 77), declaring 'that eight hours shall constitute a day's work for all laborers, workmen, and mechanics now employed, or who may hereafter be employed, by or on behalf of the government of the United States.' Rev. Stat. sect. 3738.

This was a direction by Congress to the officers and agents of the United States, establishing the principle to be observed in the labor of those engaged in its service. It prescribed the length of time which should amount to a day's work, when no special agreement was made upon the subject. There are several things which the act does not regulate, which it may be worth while to notice.

First, It does not establish the price to be paid for a day's work. Skilled labor necessarily commands a higher price than mere manual labor, and whether wages are high or low depends chiefly upon the inquiry whether those having labor to bestow are more numerous than those who desire the service of the laborer. The English statute-books are full of assizes of bread and ale, commencing as early as the reign of Henry II., and regulations of labor, and many such are to be found in the statutes of the serveral States. It is stated by Adam Smith, as the law in his day, that in Sheffield no master cutler or weaver or hatter could have more than two apprentices at a time, and so lately as the 8th Geo.III., an act, which remained unrepealed until 1825, was passed, prohibiting, under severe penalties, all master tailors in London, or within five miles of it, from giving, or their workmen from accepting, more than two shillings sevenpence halfpenny a day, except in the case of general mourning. Smith's Wealth of Nations, 125 (6th Oxford ed. of 1869). A different theory is now almost universally adopted. Principals, so far as the law can give the power, are entitled to employ as many workmen, and of whatever degree of skill, and at whatever price, they think fit, and, except in some special cases, as of children or or hans, the hours of labor and the price to be paid are left to the determination of the parties interested. The statute of the United States does not interfere with this principle. It does not specify any sum which shall be paid for the labor of eight hours, nor that the price shall be more when the hours are greater, or less when the hours are fewer. It is silent as to every thing except the direction to its officers that eight hours shall constitute a day's work for a laborer.

Second, The statute does not provide that the employer and the laborer may not agree with each other as to what time shall constitute a day's work. There are some branches of labor, connected with furnaces, foundries, steam or gas works, where the labor and the exposure of eight hours a day would soon exhaust the strength of a laborer, and render him permanently an invalid. The government officer is not prohibited from knowing these facts, nor from agreeing, when it is proper, that a less number of hours than eight shall be accepted as a day's work. Nor does the statute intend that, where out-of-door labor in the long days of summer may be offered for twelve hours at an uniform price, the officer may not so contract with a consenting laborer.

We regard the statute chiefly as in the nature of a direction from a principal to his agent, that eight hours is deemed to be a proper length of time for a day's labor, and that his contracts shall be based upon that theory. It is a matter between the principal and his agent, in which a third party has no interest. The proclamation of the President and the act of 1872 are in harmony with this view of the statute.

We are of the opinion, therefore, that contracts fixing or giving a different length of time as the day's work are legal and binding upon the parties making them.

In the case before us, the claimant continued his work, after understanding that eight hours would not be accepted as a day's labor, but that he must work twelve hours, as he had done before. He received his pay of $2.50 a day for the work of twelve hours a day, as a calendar day's work during the period in question, without protest or objection. At that time ordinary laborers under the same government received but $1.75 per day at the same place, and those engaged in the same department with the claimant in a private establishment, at the same place, received but $2 for a day's work of twelve hours, and the finding adds, 'they had more work to do than the claimant had while similarly employed.' The claimant's contract was a voluntary and a reasonable one, by which he must now be bound.

In 1873, the claimant applied for the same arrears of pay as are here in question, and received from the auditor an award of $205.63. That amount was paid to the claimant, and he receipted in writing in full for the account. This has often been held in this court to be a bar to any further claim. United States v. Justice, 14 Wall. 535; United States v. Child, 12 Id. 232.

Judgment reversed, and cause remanded with directions to dismiss the petition.


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


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Gould v. Day

ERROR to the Circuit Court of the United States for the Eastern District of Michigan.

The action was on the case against Gould, the defendant in the court below, for selling lands, situated in the State of Michigan, under a power of attorney from the person appearing to be the owner on the public record of deeds, knowing at the time that the property belonged to the plaintiff. The declaration avers that the several parties who bought at the sales thus made was purchasers for a valuable consideration, in good faith, without notice of the rights of the plaintiff, and that the property has thus been lost to him.

The lands were originally derived from the United States, under a grant to aid in the construction of a railroad in Michigan. In April, 1865, Charles J. Anthony, of the city of New York, the then owner, conveyed them to his brother-in-law, Cyrus F. Jackson, who was ig orant of the fact that the deed had been made and recorded. In June following, Jackson, at the request of Anthony, conveyed them to Anna D. Anna D. Anthony, his wife, and, on Sept. 2, 1867, Anthony and wife conveyed them to the plaintiff, Henry Day, in settlement of a claim of the latter, amounting to $38,000. All the conveyances, except the one from Jackson to Mrs. Anthony, were, within a few months after their execution, placed on record in the proper offices of registry where the lands are situated. The one to her appears to have been mislaid; at any rate, it was not recorded until January, 1871. The plaintiff was not aware, when he took the deed to himself, of any defect in the record of the title.

Some time in the spring of 1869, about a year and a half after the plaintiff's purchase, Jackson, who claimed that Anthony, Day, and others were indebted to him for services to the amount of $781, discovered, in what way does not appear, that of the land conveyed to him by Anthony in 1865 two sections in Gratiot County were left standing in his name on the public records, and he undertook to make his claim out of these sections.

With this object in view, he wrote to a friend on the subject in Owosso, Mich., near which the lands are situated, and that friend gave the letter to a lawyer of the place, the defendant, Amos Gould, to answer. Gould accordingly wrote to Jackson, under date of May 22, 1869, stating that he himself was a large owner of railroad lands in his own right, and was prepared to trace out the title to any of them; that, if desired, he would take measures to find out all the lands to which Jackson had any title, and sell them, if an opportunity offered. A correspondence then followed between Jackson and Gould, lasting for some weeks. In that correspondence Jackson did not pretend that he in fact owned any lands in Michigan, but stated that he understood that Anthony, for whom and others he had been engaged in locating railroad lands in that State, had, in making deeds of the lands, left two sections standing on the records in his name; that he had been requested to convey these sections to the plaintiff, Day, but had refused to do so unless Day would see his claim paid. Through all his letters, the only wish expressed was to recover his claim; when that was paid, he was willing to execute any deeds desired. On the other hand, Gould, who, in looking up the title to the sections named, had discovered that the deed of Anthony, which conveyed the sections to Jackson, also embraced several thousand acres of other lands, and that the deed of Jackson to Mrs. Anthony had not been placed on record, wrote to Jackson, that, in order to aid him and protect his interest, it would be best for him and his wife to execute a power of attorney, which he enclosed, to sell the two sections mentioned, and added, that there might be other land similarly situated in other counties, and, in order to take charge of whatever there might chance to be, he had made the power broad enough to cover it all. He at the same time advised Jackson to make no answer to any letters received from Day or others on the subject, until information of what they contained was communicated to him, and his advice taken as to the reply. The power of attorney, bearing date June 14, 1869, and authorizing Gould to sell the two sections, and all other lands of Jackson situated in the State, was accordingly executed, and returned to Gould; and he immediately proceeded to sell not only the two sections, but other large tracts. Shortly after the receipt of the instrument, he disposed of 5,642 acres for the sum of $8,495, of which 5,522 acres were sold to his son-in-law. The first sale, on June 21, was of 1,280 acres, for $1,920; the second, June 26, was of 120 acres, for $1,200; either of which produced more than sufficed to satisfy the claim of Jackson, which, as already stated, amounted only to $781, and the expenses incurred for its collection.

In a subsequent communication to Jackson, marked 'confidential,' made after he first sale, the fact that a sale had been made was concealed, and an opinion expressed, that in a few months the claim could be made, but of that he could not speak with certainty until he had perfected his examination; he, however, advised Jackson to send all letters received on the subject of the lands to him, and not to answer any of them until properly instructed, and, if asked about the lands, to say that he owned them, and had bought and paid for them.

Repeated efforts were subsequently made to obtain from Gould a list of the lands sold, and a statement of the amount received; but nothing could be heard from him beyond the fact that he had disposed of all the lands in Michigan he could find to which Jackson appeared to have the title. He declined to give any information as to the property sold beyond this general statement, and he rendered no account of the proceeds received. When informed by Jackson of the anxiety of Anthony and Day, he wrote to Jackson, saying: 'You and I should have nothing to say to Mr. Anthony or Mr. Day, except that you have sold the lands, and have no more to do with the matter. We can do ourselves no good by talking too much with the other side.'

The want of success attending the efforts to ascertain the sales made, and the pressure brought by Day upon Jackson for a conveyance of the lands, led to the exposure of the correspondence with Gould, and ultimately to the institution of the present action.

A considerable portion of the lands conveyed by Anthony and wife was, in October, 1867, sold for taxes assessed in 1866, and bid in by the State. On May 9, 1868, Day, the plaintiff, bought the State bids, and on Feb. 11, 1869, the Auditor-General made quitclaim deeds of the land to him. Of these deeds there were seven; but, one of them being for land sold and conveyed in 1862, the court told the jury that the plaintiff had not shown any title to the land it covered. So this deed may be put entirely aside. There then remained six tax-deeds made by the Auditor-General to the plaintiff of his own land; and these deeds the defendant Gould offered for the purpose of showing that the plaintiff could not recover, because in June and July, 1869, he acquired title to the lands by said tax-deeds, and that hence a conveyance of them by Gould, as attorney of Jackson, to other parties could not injure him.

In other words, the position of the defendant was that the tax-deeds gave the plaintiff a new and paramount title, which extinguished all his previous titles, and that Gould's conveyance of Jackson's title of record could therefore do the plaintiff no harm.

To show the value of some of the lands sold by the defendant under the power of Jackson, a witness by the name of Alexander W. Heather was introduced upon the part of the plaintiff as an expert in the business of examining pine-timber lands, and making estimates of the quantity of timber thereon, and of the value of such lands in the region where these were situated. He testified that he had examined certain of the lands in question in 1861, and gave evidence tending to show that he found that the timber had been cut off subsequently to the sale of them by the defendant under the power of an attorney from Jackson. Witness was then asked this question: 'From the stumps, could you form a judgment of the timber that had been there?'

This question was objected to by the defendant as incompetent; but the objection was overruled, and the witness answered: 'I judge from what stumps I saw that there had been about fifteen millions of feet cut off the lands altogether.'

To this ruling of the court exception was taken.

The court was requested by the defendant's counsel to charge the jury, among other things, as follows: That if they found that the deed from Anthony to Jackson put in evidence by the plaintiff was made and recorded without the knowledge of Jackson, and never delivered to him, then no title to the land described therein passed to him, and the plaintiff obtained no title thereto by virtue of is deed from Anna Anthony.

That the tax-deeds put in evidence were prima facie evidence that the title to the lands therein described was in the plaintiff at the time when the defendant, as attorney for Jackson, attempted to convey the same, and therefore, as to such lands, the plaintiff could not recover against the defendant, as he had not been injured by such attempted conveyance as attorney for Jackson.

The court refused to thus charge the jury, and the defendant excepted. But upon the first of these requests the court instructed the jury as follows:--

That if they should find that Jackson acted upon the deed made to him by conveying the lands afterwards to Mrs. Anthony, that then the delivery was of no consequence. He thereby affirmed the conveyance to himself, and neither he nor Gould, the attorney under him, could question it. It also charged that his acting upon the title, by assuming to convey the same, or rather to authorize the conveyance of the same by a power of attorney to Gould, was a ratification of it, and the want of delivery was of no importance in the case. The title was as perfect as if the delivery had been made at the commencement.

The jury found for the plaintiff, and assessed his damages at $33,020.65; and they found specially, upon certain questions of the defendant propounded to them in writing, as follows:--

"1st, Was the deed from C. J. Anthony and wife, to Cyrus F. Jackson, ever delivered to said Jackson, or to any one for him?' They answered, 'We find no actual delivery.'

"2d, Did said Jackson have any knowledge, previous to the execution of said deed, that it was to be executed?' They answered, 'No.'

"3d, Did he, after its execution, in any way accept it?' They answered, 'Yes.'

"4th, Did the defendant, when he executed the conveyance as attorney for Jackson, have any knowledge or belief that the plaintiff had any title to lands thus conveyed, or any valid claim thereto?' They answered, 'Yes.'

"5th, Did the defendant, when he executed the conveyance as attorney for Jackson, believe that said Jackson had the legal title to the lands so conveyed?' They answered, 'No."

They also answered 'yes' to the following question of the plaintiff:--

"Did not the defendant, at the time he sold the lands in question, have knowledge of such facts as brought to him notice that plaintiff claimed these lands, and which, if followed in good faith, would have led him to a knowledge of plaintiff's full title."

Judgment being entered upon the verdict, the defendant brought the case here on writ of error.

Mr. C. I. Walker for the plaintiff in error.

Mr. Henry Day for the defendant in error.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

title: Gould v. Day


text: Talk:Gould v. Day

title: Talk:Gould v. Day


text:
Gould v. Day/Opinion of the Court

The whole conduct of Gould, as disclosed by his letters, indicated a fraudulent purpose. It might justly be termed larcenous, if larceny could be applied to a fraudulent sale of another's lands, and the retention of the proceeds. He knew that Jackson was not the owner of the lands which were sold in his name. The jury have found as a fact, that, when he made the conveyances, he did not believe that Jackson had any title. He was aware, therefore, all the time, that he was defrauding the true owner, whoever he might be, by the use of the power of attorney. The jury have also found that he had knowledge of facts which informed him that the plaintiff claimed the lands, and which, if followed in good faith, would have disclosed the plaintiff's full title; and that he then knew or believed that the plaintiff had the title, or a valid claim, to the lands. From the outset, he was made acquainted with the fact that whatever title remained on the records in the name of Jackson was there by accident or mistake, and that all Jackson asked was that the property thus situated might be subjected to the payment of his claim. Learning the true condition of things, that the deed to Mrs. Anthony had never been recorded, he concealed the fact from Jac son, advised him to set up a false claim of title, obtained from him, under pretence of aiding him and protecting his interests, a power of attorney to sell any lands in the State, and then proceeded at once to dispose of not merely the two sections which Jackson had originally desired to subject to the payment of his claim, but immense tracts of other lands. After this, he refused to give any account of the sales made, and, with the exception of paying the claim of Jackson, he put all the proceeds into his own pocket, amounting to several thousand dollars. As said by counsel, fraud and guilty knowledge are written all through his letters.

Now, when called to account for his acts, he sets up as a defence,--

1st, That Jackson never acquired the title to the lands, sold under the power, by the deed from Anthony in 1865, inasmuch as he was not aware of the execution of that deed at the time, and, consequently, there was no formal delivery of it to him; and,

2d, If he did thus acquire the title, the plaintiff was not injured by the sales, because he had previously purchased the lands at tax sales, and thus obtained a superior title to the property.

If these defences could be sustained, they would only show that the defendant is not liable in this action, not because he was guiltless of fraud, but because the fraud committed injuriously affected only other parties. His conduct would not then stand in any better light. But the defences are not tenable.

It is true that Jackson was ignorant of the fact that Anthony had made a deed of the lands to him in 1865, until he was called upon to reconvey them; but, when informed of the fact, he immediately acted upon the assumed validity and operation of the instrument, and executed the desired conveyance. Now, while it is law that a delivery of a deed is essential to pass an estate, and there can be no delivery without a surrender of the instrument or the right to retain it, such delivery will be presumed, in the absence of direct evidence, from the concurrent acts of the parties recognizing a transfer of the title. The question here is not whether the delivery took place at the date of the deed, but whether it took place at all. The acts of the grantor and grantee the one in asking a reconveyance and the other in making it-were satisfactory evidence that at that time the delivery had been made, and they justified the finding of the jury that the deed had been accepted by Jackson. Jackson v. Cleveland, 15 Mich. 94.

As to the tax sales, they were made in 1867 for unpaid taxes of 1866; and, for want of other purchasers, the lands were bid in by the State. The sales were made after the plaintiff had purchased the lands; but in May, 1868, before the time of redemption had expired, he bought the State bids, and in February, 1869, received quitclaim deeds from the auditor-general of the State. These deeds were produced by the defendant to show that at the time of his sales in June and July following, under the power of attorney of Jackson, the plaintiff possessed a superior title, which was not affected by those sales, and thus that the fraud which the defendant committed injured only the purchaser who trusted him, and did not injure the plaintiff. The answer to this position is obvious: the plaintiff, by his purchase of the State bids, practically redeemed the property from the tax sales, and therefore acquired no new or additional title by the tax-deeds. Whatever operation the deeds had under these circumstances, it was only as evidence that the taxes were satisfied, the lien of the State discharged, and the estate restored from the sale. By the law of Michigan, taxes upon real property constitute a lien upon it, which continues through all its transfers, until the taxes are paid, or the sale of the property for their payment has become absolute. Whoever subsequently purchases the property is presumed to know of the taxes existing at the time, as they are a matter of public record; and the law informs him that he must see that they a e paid, or suffer a possible loss of his estate. Whether in the present case the plaintiff stood in any such relation to his vendor as to make it obligatory upon the latter to pay the taxes previously assessed we are not informed; nor is it material. The State looked only to the property, and did not concern itself as to the relations between the former and present owners. If, therefore, the plaintiff did not wish to see his interest sacrificed, his only course was to pay the taxes before the sale, or to redeem the land from the sale afterwards. By the purchase of the bids before the sale became absolute, he practically effected a redemption. He thus united in himself the ownership of the State's lien and the title to the lands. This union of conflicting interests operated to merge the lesser interest in the greater, the lien in the title. One cannot have a lien upon his own property, except where equity interposes, and, to prevent a failure of justice, keeps the lien outstanding; and here there was no interference of equity, and no occasion for its interference. The rule of law took effect at once, and the State lien was eo instante merged in the plaintiff's general title. The operation of the purchase was not unlike that which would have followed from the purchase by the plaintiff of a mortgage upon the premises executed by his vendor; the transfer of the mortgage would be equivalent in its effect to a satisfaction of the demand secured, and a release of the security. So, here, the transfer of the bid to the owner of the property sold was in law equivalent to a payment of the taxes and a discharge of the lien. Any subsequent deed in the one case from the mortgagee, or in the other from the State, could have no operation as conveyances of any interest to the grantee. It is certain that the plaintiff, in buying the State bids, and subsequently taking the State deeds, never supposed that he was thereby impairing or destroying his original title. There was at the time no defect in that title, and there was no adverse interest claimed in the lands; and he was not aware that the conveyance to his grantors had not been recorded. Smith v. Lewis, 20 Wis. 354. The only title which a stranger could have obtained by the tax-deeds, he had already acquired by his purchase from the previous owners.

The court below, therefore, did not err in refusing the instruction asked, that the tax-deeds were prima facie evidence that the title to the lands embraced in them was in the plaintiff, when the defendant, as attorney for Jackson, attempted to convey the lands to others; and that, therefore, as to such lands, the plaintiff was not injured by the conveyances made. Whatever prima facie evidence of such title the deeds might have been by themselves, was overcome by the fact that the grantee was, at the time of the tax sales, the owner of the property, and, as such, had practically redeemed it from the sales. A tax-deed executed after redemption from the sale, or, what is in legal effect the same thing, after the lien of the tax has been transferred to the owner of the property before the sale has become absolute, confers no title.

The objection to the testimony of the witness Heather, in answer to the question whether he could form a judgment of the quantity of timber which had been on certain pine-timber lands from the stumps that remained, is untenable; for it was not taken in the court below. The question was there objected to, not the answer. The question only inquired as to the witness's ability to judge from an existing fact what a previous fact might have been, and in itself was unobjectionable. If his answer went beyond the question, it was to that the objection of counsel should have been directed, by a motion to exclude it as not responsive, or otherwise improper, or as incompetent testimony.

Judgment affirmed.

title: Gould v. Day/Opinion of the Court


text: Talk:Gould v. Day/Opinion of the Court

title: Talk:Gould v. Day/Opinion of the Court


text:
People v. Commissioners of Taxes and Assessments

ERROR to the Court of Appeals of the State of New York.

he relator, the Gallatin National Bank of the city of New York, was, prior to 1864, a State bank, incorporated under the general banking laws of New York. It surrendered that charter, and was reorganized as a national bank, under the act of Congress of June 3, 1864, 13 Stat. 99, known as the National Banking Act, and c. 97 of the laws of 1865 of New York, known as the 'Enabling Act,' with a capital of $1,500,000, divided into thirty thousand shares of $50 each.

The bank has reserved from profits $300,000. It also holds, on deposit with the treasurer, bonds of the United States of the par value of $591,000, on which the premium, estimated at twenty per cent, would be $118,200; so that the bank has, in addition to its capital, a surplus of $418,200.

The commissioners of taxes and assessments of the city of New York having signified their intention to tax this surplus, the president of the bank made a statement of its condition. Its capital and surplus were shown to be $1,918,200, which, on a division, would make each share $63.60. As those bonds were liable to daily and almost hourly fluctuation, and so might slightly exceed the estimate, he made affidavit that the value of each share did not exceed $64.

Thereupon the commissioners, deducting $5 per share as the proportion of the assessed value of the bank's real estate, took $59 as the valuation of each share, and imposed the tax accordingly. The relator, to test the validity of such assessment, sued out of the Supreme Court of the State a writ of certiorari, which, upon a hearing, was quashed; and it thereupon appealed to the Court of Appeals, where the judgment below was affirmed. It then brought the case here.

The statutes bearing upon the question at issue are set forth in the opinion of the court.

Mr. Daniel D. Lord for the appellant.

The surrender by the Gallatin Bank of its original charter, and its reorganization under the National Bank Law, in conformity with the Enabling Act of New York, formed a contract with the State, limiting, for taxable purposes, the assessment of the shares of the bank to their par value. This contract is as much protected by art. 10 of the Constitution of the United States as are contracts between individuals. ''Prov. Bank v. Billings'', 4 Pet. 514; Gordon v. Tax Court, 3 How. 133; Piqua Bank v. Knoop, 16 id. 369; Ohio Life Insurance & Trust Co. v. De Bolt, 16 id. 416; Jefferson Bank v. Skelly, 1 Black, 436; Home of the Friendless v. Rouse, 8 Wall. 430; ''Wash. University v. Rouse'', id. 439.

Mr. Hugh L. Cole, contra.

MR. JUSTICE HUNT delivered the opinion of the court.


text: Talk:People v. Commissioners of Taxes and Assessments


text:
People v. Commissioners of Taxes and Assessments/Opinion of the Court

The relators complain that their shares of stock in the Gallatin National Bank are assessed at too large a sum. They appeal from the judgment of the Court of Appeals sustaining the determination of the commissioners of taxes, which fixed the taxable value of such shares at $59 each, whereas the par or nominal value of such shares is $50 each.

Many grave questions were discussed by the council upon the argument, to which we do not think it necessary to refer. We place our judgment upon a single ground.

The laws of the State of New York provide that shares of stock like those we refer to shall be assessed 'on the value' of the shares, and at 'their full and true value, as they (the assessors) would appraise the same in payment of a just debt due from a solvent debtor,' deducting the proportional value of the real estate owned by the bank. 2 Stat. N. Y. 1866, p. 1647, c. 71; 1 R. S. N. Y. 393, sect. 17.

The assessors were justified, under this authority, in fixing the value as we have stated. The appraisement included the reserve fund, which is as much a part of the property of the bank, and goes to fix the value of shares, equally as if it were not called by that name, but remained as a part of the specie, bills discounted, or other funds of the bank, undistinguished from the general mass.

The forty-first section of the act of Congress of June, 1864, provides that the States may tax the shares of national banks, subject to two restrictions: 1st, That this taxation shall not be 'at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State;' and, 2d, 'that the tax so imposed. . . shall not exceed the rate imposed upon the shares of any of the banks organized under the authority of the State where such association is located.' 13 Stat. 112. In Hepburn v. The School Directors, this court decided that, in making assessment of bank shares by this authority, it was competent to assess them at an amount above their par value. 23 Wall. 480.

But the relators insist that, by the act of the legislature of the State of New York, passed March 9, 1865, it was enacted that the shares of a bank could not be assessed at an amount greater than the par value thereof, and that such statute created a contract with the banks organized under the same, which could not be altered by a subsequent legislature. Hence it is argued that the act of 1866, authorizing such shares to be assessed at a rate which may exceed their par value, is a law impairing the obligation of a contract, and is void.

The section of the statute of 1865 referred to is as follows, viz.:--

'SECT. 10. All the shares in any of the said banking associations, organized under this act, or the act of Congress,. . . held by any person or body corporate, shall be included in the valuation of the personal property of such person or body corporate or corporation, in the assessment of taxes in the town or ward where such banking association is located, and not elsewhere, whether the holder thereof reside in such town or ward, or not; but not at a greater rate than is assessed upon other moneyed capital in the hands of individuals of this State: Provided, that the tax so imposed upon such shares shall not exceed the par value thereof; and provided further, that the real estate of such associations shall be subject to State, county, or municipal taxes, to the same extent, according to its value, as other real estate is taxed.' Had this been a valid statute, we might have been called upon to discuss the point raised. But it was held in Van Allen v. The Assessors, 3 Wall. 573, that this statute was fatally defective, in that it did not contain a proviso that the tax thereby authorized to be imposed should not exceed the rate imposed upon banks organized under the authority of the State. The system of taxation devised by the statute of 1865 was adjudged to be illegal and void. The clause now laid hold of by the relators was simply a proviso or qualification of that system. It necessarily fell with it. When the main idea was thrown out of existence, the subordinate parts, which were adjuncts of and dependent upon the main theory, ceased to exist. There never was, legally speaking, any such proviso or enactment as the relators claim the benefit of. Of course, there could be no such thing as a violation of contract contained in a proviso which never existed. Warren v. The Mayor, 2 Gray, 98, 99; Sedgwick on Statutes, 413, 414 (ed. of 1874).

Judgment affirmed.


text: Talk:People v. Commissioners of Taxes and Assessments/Opinion of the Court