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Keith v. Clark/Opinion of the Court

The plaintiff in error, who was plaintiff below, sued the defendant for the sum of $40, which he had paid in lawful money under protest for taxes due the State of Tennessee, after he had tendered to the defendant that sum in the circulating notes of the Bank of Tennessee, which defendant refused to receive.

The suit was commenced before a justice of the peace, taken by appeal to the Common-Law Chancery Court of Madison County, and from there to the Supreme Court of Tennessee, and by writ of error from this court it is now before us for review.

In all the trials in the State courts, judgment was rendered against the plaintiff. The jurisdiction of this court is denied again, though it was affirmed in the analogous cases of Woodruff v. Trapnall, 10 How. 190, and Furman v. Nichol, 8 Wall. 44.

As the same facts are involved in the question of jurisdiction and the issue on the merits, it may be as well to state them.

They appear in a bill of exceptions taken at the trial on the first appeal, which was a trial de novo before a jury. The defendant was a collector of taxes, to whom plaintiff had tendered $40 of the bills of the Bank of Tennessee, which, with other lawful money tendered at the same time, was the amount due. The offer of plaintiff was founded on the twelfth section of the charter of the bank, enacted in 1838 by the legislature of the State, which reads thus:--

'Be it enacted that the bills or notes of the said corporation originally made payable, or which shall have become payable on demand, in gold or silver coin, shall be receivable at the treasury of this State, and by all tax-collectors and other public officers, in all payments for taxes or other moneys due to the State.'

It was proved that the bills were issued subsequently to May 6, 1861, and were known as the 'Torbet or new issue,' and were worth in the brokers' market about twenty-five cents on the dollar.

The court charged the jury that if the notes tendered were issued subsequently to May 6, 1861, and during the existence of the State government established at that date in hostility to the government of the United States, then defendant was not legally bound to receive them in payment of plaintiff's taxes. And the reason given for this was, that while the Constitution of the United States protected the contract or the section of the charter we have cited from repudiation by State legislation as to notes issued prior to the act of secession of May 6, 1861, it conferred no such protection as to notes issued while the State was an insurrectionary government; and that consequently the provisions of sect. 6 of the schedule to the constitutional amendment of 1865, which declared that all the notes of the bank issued after the date above mentioned were null and void, and forbade any legislature to pass laws for their redemption, was a valid exercise of State authority. On this instruction the jury found a verdict for the defendant.

In the Supreme Court the judgment rendered on this verdict was affirmed, without any opinion or other evidence of the grounds on which it was so affirmed.

There can be no question that the charge of the trial judge to the jury decided against the plaintiff in error a question which gives this court jurisdiction; and this is admitted by counsel, who ask us to dismiss the writ of error.

The ground assumed in support of the motion is, that we ought to presume that the Supreme Court did not decide the question which the court below did, but affirmed the judgment, on the ground that, by the laws of Tennessee, no suit could be brought against the State or against the collector of taxes, and that the justice of the peace who first tried the case, and the court to which the appeal was taken, had no jurisdiction. It would follow, say counsel, that as this was a question of State law, it could not be reviewed in this court.

The answers to this are several and very obvious.

1. Where an appellate court decides a case on the ground that the inferior court had no jurisdiction, it in some mode indicates that it was not a decision on the merits, to prevent the judgment being used as a bar in some court which might have jurisdiction. Barney v. Baltimore City, 6 Wall. 280; House et al. v. Mullen, 22 id. 42; Kendig v. Dean, supra, p. 423.

2. In Tennessee v. Sneed (96 U.S. 69), this court decided that the courts of Tennessee did have the jurisdiction which this suggestion denies them; and we will not presume, without very strong reason for it, that the Supreme Court of Tennessee disagreed with this court on that point.

3. There is not the slightest evidence in the record, nor any reason to be drawn from it, to believe that the court decided any such question. It nowhere appears that it was raised. Nothing like it is found in the bill of exceptions. There is no plea to the jurisdiction, or motion to dismiss for want of it.

And we are bound by every fair rule of sound construction to hold that the Supreme Court, in affirming the judgment of the court below, did it on the only ground on which that court acted, or which was raised by the record.

That question was, whether the twelfth section of the charter of the bank constituted a contract which brought the issues of the bank after the 6th of May, 1861, within the protective clause of the Constitution of the United States against impairing the obligation of contracts by State laws. Of that question this court has jurisdiction, and we proceed to its consideration.

In Furman v. Nichol (supra), the twelfth section of the charter of the bank-the same now under consideration-was held to constitute a contract between every holder of the circulating notes of the bank and the State of Tennessee, that the State would receive the notes in payment of taxes at their par value. And it was held that the same provision of the State Constitution of 1865, which is relied on here, was void, as impairing the obligation of that contract.

The case of Woodruff v. Trapnall (supra) was referred to as being perfect in its analogy, both in the character of the bank and its relation to the State, and the contract to receive its notes in payment of taxes. In Furman v. Nichol, however (which is the identical case before us, except that in the former case the notes were issued prior to May 6, 1861), the court, out of abundant caution, said, that it did not consider or decide any thing as to the effect of the civil war on that contract, or to notes issued subsequently to that date. We are invited now to examine that point, and to hold that as to all such notes the twelfth section creates no valid contract.

In entering upon this inquiry we start with the proposition, that unless there is something in the relation of the State of Tennessee and the bank, after the date mentioned, to the government of the United States, or something in the circumstances under which the notes now sued on were issued, that will repel the presumption of a contract under the twelfth section, or will take the contract out of the operation of the protecting clause of the Federal Constitution; this court has established already that there was a valid contract to receive them for taxes, and that the law which forbade this to be done is unconstitutional and void.

Those who assert the exception of these notes from the general proposition are not very well agreed as to the reasons on which it shall rest, and we must confess that, as they are presented to us, they are somewhat vague and shadowy. They may all, however, as far as we understand them, be classed under three principal heads.

1. The first is to us an entirely new proposition, urged with much earnestness by the counsel who argued the case orally for the defendant.

It is, in substance, that what was called the State of Tennessee prior to the 6th of May, 1861, became, by the ordinance of secession passed on that day, subdivided into two distinct political entities, each of which was a State of Tennessee. One of them was loyal to the Federal government, the other was engaged in rebellion against it. One State was composed of the minority who did not favor secession, the other of the majority who did. That these two States of Tennessee engaged in a public war against each other, to which all the legal relations, rights, and obligations of a public war attached. That the government of the United States was the ally of the loyal State of Tennessee, and the confederated rebel States were the allies of the disloyal State of Tennessee. That the loyal State of Tennessee, with the aid of her ally, conquered and subjugated the disloyal State of Tennessee, and by right of conquest imposed upon the latter such measure of punishment and such system of law as it chose, and that by the law of conquest it had the right to do this. That one of the laws so imposed by the conquering State of Tennessee on the conquered State of Tennessee was this one, declaring that the issues of the bank during the temporary control of affairs by the rebellious State was to be held void; and that, as conqueror and by right to conquest, the loyal State had power to enact this as a valid law.

It is a sufficient answer to this fanciful theory that the division of the State into two States never had any actual existence; that, as we shall show hereafter, there has never been but one political society in existence as an organized State of Tennessee, from the day of its admission to the Union in 1796 to the present time. That it is a mere chimera to assert that one State of Tennessee conquered by force of arms another State of Tennessee, and imposed laws upon it; and, finally, that the logical legerdemain by which the State goes into rebellion, and makes, while thus situated, contracts for the support of the government in its ordinary and usual functions, which are necessary to the existence of social life, and then, by reason of being conquered, repudiates these contracts, is as hard to understand as similar physical performances on the stage.

2. The second proposition is a modification of this, and deserves more serious attention. It is, as we understand it, that each of the eleven States who passed ordinances of secession and joined the so-called Confederate States so far succeeded in their attempt to separate themselves from the Federal government, that during the period in which the rebellion maintained its organization those States were in fact no longer a part of the Union, or, if so, the individual States, by reason of their rebellious attitude, were mere usurping powers, all of whose acts of legislation or administration are void, except as they are ratified by positive laws enacted since the restoration, or are recognized as valid on the principles of comity or sufference.

We cannot agree to this doctrine. It is opposed by the inherent powers which attach to every organized political society possessed of the right of self-government; it is opposed to the recognized principles of public international law; and it is opposed to the well-considered decisions of this court.

'Nations or States,' says Vattel, 'are bodies politic, societies of men united together for the promotion of their mutual safety and advantage by the joint efforts of their combined strength. Such a society has her affairs and her interests. She deliberates and takes resolutions in common, thus becoming a moral person who possesses an understanding and a will peculiar to herself, and is susceptible of obligations and rights.' Law of Nations, sect. 1.

Cicero and subsequent public jurists define a State to be a body political or society of men united together for the purpose of promoting their mutual safety and advantage by their combined strength. Wheaton, International Law, sect. 17. Such a body or society, when once organized as a State by an established government, must remain so until it is destroyed. This may be done by disintegration of its parts, by its absorption into and identification with some other State or nation, or by the absolute and total dissolution of the ties which bind the society together. We know of no other way in which it can cease to be a State. No change of its internal polity, no modification of its organization or system of government, nor any change in its external relations short of entire absorption in another State, can deprive it of existence or destroy its identity. Id., sect. 22.

Let us illustrate this by two remarkable periods in the history of England and France.

After the revolution in England, which dethroned and decapitated Charles I., and installed Cromwell as supreme, whom his successors called a usurper; after the name of the government was changed from the Kingdom of England to the Commonwealth of England; and when, after all this, the son of the beheaded monarch came to his own, treaties made in the interregnum were held valid, the judgments of the courts were respected, and the obligations assumed by the government were never disputed.

So of France. Her bloody revolution, which came near dissolving the bonds of society itself, her revolutionary directory, her consul, her Emperor Napoleon, and all their official acts, have been recognized by the nation, by the other nations of Europe, and by the legitimate monarchy when restored, as the acts of France, and binding on her people.

The political society which in 1796 became a State of the Union, by the name of the State of Tennessee, is the same which is now represented as one of those States in the Congress of the United States. Not only is it the same body politic now, but it has always been the same. There has been perpetual succession and perpetual identity. There has from that time always been a State of Tennessee, and the same State of Tennessee. Its executive, its legislative, its judicial departments have continued without interruption and in regular order. It has changed, modified, and reconstructed its organic law, or State Constitution, more than once. It has done this before the rebellion, during the rebellion, and since the rebellion. And it was always done by the collective authority and in the name of the same body of people constituting the political society known as the State of Tennessee.

This political body has not only been all this time a State, and the same State, but it has always been one of the United States,-a State of the Union. Under the Constitution of the United States, by virtue of which Tennessee was born into the family of States, she had no lawful power to depart from that Union. The effort which she made to do so, if it had been successful, would have been so in spite of the Constitution, by reason of that force which in many other instances establishes for itself a status, which must be recognized as a fact, without reference to any question of right, and which in this case would have been, to the extent of its success, a destruction of that Constitution. Failing to do this, the State remained a State of the Union. She never escaped the obligations of that Constitution, though for a while she may have evaded their enforcement.

In Texas v. White (7 Wall. 700), the first and important question was, whether Texas was then one of the United States, and as such capable of sustaining an original suit in this court by reason of her being such State. And this was at a time when Congress had not permitted her, after the rebellion, to have representatives in either house of that body.

Mr. Chief Justice Chase, in delivering the judgment of the court on this question, says: 'The ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens, of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation. Our conclusion, therefore, is, that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred.'

In White v. Hart (13 id. 646), Mr. Justice Swayne, after a full consideration of the subject, states the result in this forcible language: 'At no time were the rebellious States out of the pale of the Union. . . . Their constitutional duties and obligations were unaffected, and remained the same.' And he shows by reference to the formula used in the several reconstruction acts, as compared with those for the original admission of new States into the Union, that in regard to the States in rebellion there was a simple recognition of their restored right to representation in Congress, and no readmission into the Union.

These cases, and especially that of Texas v. White, have been repeatedly cited in this court with approval, and the doctrine they assert must be considered as established in this forum at least.

If the State of Tennessee has through all these transactions been the same State, and has been also a State of the Union, and subject to the obligations of the Constitution of the Union, it would seem to follow that the contract which she made in 1838 to take for her taxes all the issues of the bank of her own creation, and of which she was sole stockholder and owner, was a contract which bound her during the rebellion, and which the Constitution protected then and now, as well as before. Mr. Wheaton says: 'As to public debts,-whether due to or from the State,-a mere change in the form of the government, or in the person of the ruler, does not affect their obligation. The essential power of the State, that which constitutes it an independent community, remains the same: its accidental form only is changed. The debts being contracted in the name of the State, by its authorized agents, for its public use, the nation continues liable for them, notwithstanding the change in its internal constitution. The new government succeeds to the fiscal rights, and is bound to fulfil the fiscal obligations, of the former government.' International Law, sect. 30. And the citations which he gives from Grotius and Puffendorf sustain him fully.

We are gratified to know that the Supreme Court of the State of Tennessee has twice affirmed the principles just laid down in reference to the class of bank-notes now in question. In a suit brought by the State of Tennessee, against this very bank of Tennessee, to wind up its affairs and distribute its assets, that court, in April, 1875, decreed, among other things, 'that the acts by which it was attempted to declare the State independent, and to dissolve her connection with the Union, had no effect in changing the character of the bank, but that it had the same powers, after as before those acts, to carry on a legitimate business, and that the receiving of deposits was a part of such legitimate business.' 'That the notes of the bank issued since May 6, 1861, held by Atchison and Duncan, and set out in their answer, are legal and subsisting debts of the bank, entitled to payment at their face value, and to the same priority of payment out of the assets of the bank as the notes issued before May 6, 1861.'

At a further hearing of the same case, in January, 1877, that court reaffirmed the same doctrine, and also held that the notes were not subject to the Statute of Limitations, and were not bound by it. State of Tennessee v. The Bank of Tennessee, not reported. This decision was in direct conflict with schedule 6 of the constitutional amendment of 1865, which declared all issues of the bank after May 6, 1861, void, and it necessarily held that the schedule was itself void as a violation of the Federal Constitution.

3. The third proposition on which the judgment of the courts of Tennessee is supported is, that the notes on which the action is brought were issued in aid of the rebellion, to support the insurrection against the lawful authority of the United States, and are therefore void for all purposes.

The principle stated in this proposition, if the facts of the case come within it, is one which has repeatedly been discussed by this court. The decisions establish the doctrine that no promise or contract, the consideration of which was something done or to be done by the promisee, the purpose of which was to aid the war of the rebellion or give aid and comfort to the enemies of the United States in the prosecution of that war, is a valid promise or contract, by reason of the turpitude of its consideration.

In Texas v. White (supra), the suit was for the recovery of certain bonds of the United States which, previously to the war, had been issued and delivered to the State of Texas. During the rebellion the legislature of that State had placed these bonds in the hands of a military commission, and they were delivered by that committee to White and Childs, to pay for supplies to aid the military operations against the government. This court held that while the State was still a State of the Union, and her acts of ordinary legislation were valid, it was otherwise in regard to this transaction. As this is the earliest assertion of the doctrine in this court, and this branch of the opinion received the assent of all the members of the court but one, and has been repeatedly cited since with approval, we reproduce a single sentence from it: 'It may be said,' says the court, 'perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens, such, for example, as acts sanctioning and protecting marraige and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, personal and real, and providing remedies for injuries to person and estate, and other similar acts which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual though unlawful government; and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid.'

In Hanauer v. Doane (12 Wall. 342), it was held that due-bills, given in purchase of supplies by a purchasing agent of the Confederate States, were void, though in the hands of a third party; and in support of the judgment Mr. Justice Bradley said: 'We have already decided, in the case of Texas v. White, that a contract made in aid of the late rebellion, or in furtherance and support thereof, is void. The same doctrine is laid down in most of the circuits, and in many of the State courts, and must be regarded as the settled law of the land.'

The latest expression of the court on the subject was by Mr. Justice Field, without dissent, in Williams v. Bruffy (96 U.S. 176), in which the whole doctrine is thus tersely stated: 'While thus holding that there was no validity in any legislation of the Confederate States which this court can recognize, it is proper to observe, that the legislation of these States stands on very different grounds. The same general form of government, the same general laws for the administration of justice and the protection of private rights, which had existed in the State prior to the rebellion, remained during its continuance and afterwards. As far as the acts of the States did not impair, or tend to impair, the supremacy of the national authority, or the just rights of the citizens under the Constitution, they are, in general, to be treated as valid and binding.' See Horn v. Lockhart et al., 17 Wall. 570; Sprott v. United States, 20 id. 459.

There is, however, in the case before us nothing to warrant the conclusion that these notes were issued for the purpose of aiding the rebellion, or in violation of the laws or the Constitution of the United States. There is no plea of that kind in the record. No such question was submitted to the jury which tried the case. The sole matter stated in defence, either by facts found in the bill of exceptions, or in the decree of the court, is that the bills were issued after May 6, 1861, while the State was in insurrection, and therefore come within the amended Constitution of 1865, declaring them void. The provision of the State Constitution does not go upon the ground that the State bonds and bank-notes, which it declared to be invalid, were issued in aid of the rebellion, but that they were issued by a usurping government,-a reason which we have already demonstrated to be unsound. Not only is there nothing in the Constitution or laws of Tennessee to prove that these notes were issued in support of the rebellion, but there is nothing known to us in public history which leads to this conclusion. The opinion of the Supreme Court, which we have already cited, states that the bank was engaged in a legitimate business at this time, receiving deposits, and otherwise performing the functions of a bank; and though, as is abundantly evident, willing enough to repudiate these notes as receivable for taxes, that court held them to be valid issues of the bank, in the teeth of the ordinance declaring them void.

It is said, however, that considering the revolutionary character of the State government at that time, we must presume that these notes were issued to support the rebellion.

But while we have the Supreme Court of Tennessee holding that the bank during this time was engaged in a legitimate banking business, we have no evidence whatever that these notes were issued under any new law of the rebel State government, or by any interference of its officers, or that they were in any manner used to support the State government. If this were so, it would still remain that the State government was necessary to the good order of society, and that in its proper functions it was right that it should be supported.

We cannot infer, then, that these notes were issued in violation of any Federal authority.

On the other hand, if the fact be so, nothing can be easier than to plead it and prove it. Whenever such a plea is presented, we can, if it comes to us, pass intelligently on its validity. If issue is taken, the facts can be embodied in a bill of exceptions or some other form, and we can say whether those facts render the contract void. To undertake to assume the facts which are necessary to their invalidity on this record is to give to conjecture the place of proof, and to rest a judgment of the utmost importance on the existence of facts not found in the record, nor proved by any evidence of which this court can take judicial notice. We shall, when the matter is presented properly to us, be free to determine, on all the considerations applicable to the case, whether the notes that may be then in controversy are protected by the provision of the Constitution or not. And that is the only question of which, in a case like the present, we would have jurisdiction.

The judgment of the Supreme Court of Tennessee will, therefore, be reversed, and the case remanded to that court for further proceedings in accordance with this opinion; and it is

So ordered.

MR. CHIEF JUSTICE WAITE, MR. JUSTICE BRADLEY, and MR. JUSTICE HARLAN dissented.

title: Keith v. Clark/Opinion of the Court


text: Talk:Keith v. Clark/Opinion of the Court

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


text:
Spofford v. Kirk

APPEAL from the Supreme Court of the District of Columbia.

James B. Kirk employed Hosmer & Co. to prosecute his claim for $12,000 against the United States, for supplies furnished to the army during the war of the rebellion, and for damages sustained by reason of the military occupation of his property. Before the allowance of the claim, he drew upon that firm the following orders:--

'CULPEPER COURT-HOUSE, VA.,

'Jan. 14, 1873.

'Messrs. Hosmer & Co., of Washington City, D. C., will please pay to J. S. Wharton, or order, six hundred ($600) dollars out of whatever moneys may be coming into your hands for me, for supplies furnished and damages sustained by the United States army during the war.

'JAMES B. KIRK.'

'CULPEPER COURT-HOUSE, VA.,

'Jan. 14, 1873.

'Messrs. Hosmer & Co., of Washington City, D. C., will please pay to E. R. Taylor, or order, six hundred ($600) dollars out of whatever moneys may be coming into your hands for me, for supplies furnished and damages sustained by the United States army during the war.

'JAMES B. KIRK.'

Which were thereupon severally accepted by the drawees, by writing across the face of the first, as follows:--'WASHINGTON, Jan. 24, 1873.

'Accepted: payment to be made out of any moneys received by us from the United States on the claim of said James B. Kirk, and remaining in our hands, after deduction and payment of attorney's fees in the case.

'HOSMER & CO.'

And of the second, as follows:--

'Accepted: payment to be made out of any moneys received by us from the United States on the claim of said James B. Kirk, and remaining after deduction and payment of our attorney's fees in the case, and also our acceptance of a similar order for the same amount in favor of Dr. J. S. Wharton.

'HOSMER & CO.

'Jan. 25, 1873.'

The orders bearing said acceptances, and indorsed by the respective payees, were, in February, 1873, offered for sale to Ainsworth R. Spofford, who, on the written assurance of the drawees that Kirk had been allowed by the government something over $9,000, became the assignee or holder of both for value and in entire good faith.

Upon the issue of the treasury warrant for the sum awarded to Kirk, Spofford made demand upon Hosmer & Co. for the payment of the orders. Kirk having refused to indorse the warrant or to admit the validity of the orders, Spofford filed this bill to enforce compliance with said orders and acceptances, and to enjoin Hosmer & Co. from surrendering and Kirk from receiving said warrant.

The court below dismissed the bill, whereupon Spofford appealed here.

Mr. T. A. Lambert for the appellant.

As the orders furnish no evidence of a purpose on the part of Kirk to assign his claim against the United States, they were not drawn in derogation of the act of Feb. 26, 1853, and are not affected by it.

They were designed to clothe the respective payees with the badge of absolute ownership of the amount thereby severally appropriated to them or their assigns, 'out of whatever moneys might be coming into the hands of the drawees for the drawer, for supplies furnished and damages sustained by the United States army during the war.' The fund thus designated had but a potential existence, and was wholly unaffected by the orders, until it actually or constructively reached the hands of the drawees. From the moment, however, it came to their possession, they, by reason of their previous acceptance, became clothed with a trust to administer it agreeably to the directions contained in the orders. In other words, the orders, when drawn and accepted, created in equity an absolute and irrevocable appropriation of their contents when collected by the drawees from the drawer's claim against the government, and the sums named were held by Hosmer & Co. in trust for the payees or their assignees. Story, Eq. Jur., sects. 1040-1047; Mandeville v. Welch, 5 Wheat. 227; Tiernan et al. v. Jackson, 5 Pet. 580; Croser v. Craig, 1 Wash. 424; Mnemony et al., Assignees, v. Ferrers, 3 Johns. (N. Y.) 71; Weston v. Barker, 12 id. 276; Morton v. Nailor, 1 Hill (N. Y.), 585; Burn v. Carvalho, 4 Myl. & Cr. 702, 703; Row v. Dawson, 1 Ves. 331; L'Estrange v. L'Estrange, 13 Beav. 284; 2 Spence, Eq. Jur. 855, 860, 861, 907.

The accepted orders constitute a contract which a court of equity will enforce by way of specific performance, and their operation upon the fund attached as soon as the drawees became possessed of the treasury warrant. 2 Spence, Eq. Jur. 852, 854, 865, 866, 896; Story, Eq. Jur., sects. 783, 1040 b, 1040 c, 1044, 1055; Wright v. Wright, 1 Ves. 411; Beckley v. Newland, 2 P. W. 182; Sydney v. Sydney, 3 id. 276; Legard v. Hodges, 1 Ves. Jr. 478.

Mr. L. L. Lewis, contra.

1. The orders drawn by Kirk created no lien on the fund subsequently appropriated by Congress for the payment of his claim, and a court of equity was, therefore, without jurisdiction in the case. Trist v. Child, 21 Wall. 441.

2. So far from being contracts to be specifically executed, they were absolutely null and void by the act of Feb. 26, 1853, 10 Stat. 170.

3. If they were valid for any purpose, the complainant had a plain, adequate, and complete remedy at law.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Spofford v. Kirk


text: Talk:Spofford v. Kirk

title: Talk:Spofford v. Kirk


text:
Spofford v. Kirk/Opinion of the Court

Whether the orders, drawn as they were upon a designated fund, made payable to order, and accepted by the drawees, are held by the indorsee free from any equities existing between the payees and the drawer, though the indorsee purchased them without any notice of such equities, is a question which the case does not require us to consider. It has been ably and elaborately argued by the counsel for the appellant, and if the orders could have any legal effect, we might be compelled to answer it. But there is a primary question which must be met and determined before we reach the one principally argued. It is, whether the orders are operative for any purpose. The complainants' case rests upon the assumption that, coupled with the acceptance of the drawees, they created an equitable lien upon the debt due from the United States to the drawer. If they did not, it is plain that the court below had no jurisdiction in equity to grant the relief asked for by the bill. The complainant's only remedy was at law. If they did, it must be because the orders and acceptances amounted to an equitable assignment, pro tanto, of the claim of the drawer against the government. The ingenious argument for the appellant is that the orders clothed the respective payees with absolute ownership of the several sums mentioned therein, out of whatever moneys might be coming into the hands of the drawees from the United States for the drawer; and it is said that the fund thus specified was unaffected by the orders, and had only a potential existence in the drawees' hands until it was received by them, but that from the moment of possession they assumed a trust to administer the fund in accordance with the directions given by the orders, having previously accepted them.

Another formal statement of the argument is, that the orders drawn by Kirk upon Hosmer & Co., and accepted by them, created in equity an absolute and irrevocable appropriation of their contents, when collected by the drawees from the drawer's claim against the government, and that when collected the sums named in the orders were held by the drawees in trust for the payees or their assignees. There is no substantial variance in the argument stated in these several forms. However stated, the equitable effect of the orders and acceptances, independent of any statutory prohibition, if they had any effect when they were drawn, was to transfer a portion of the drawer's claim against the United States to the payees. After the orders were given and accepted, the drawer could not in a court of equity insist that he was entitled to the entire amount which might subsequently be allowed for his claim. If, instead of two orders, he had given one for the entire sum which might be awarded to him by the government, there can be no doubt that it would have divested his whole interest, and vested it in equity in the person in whose favor the order was drawn. In other words, it would have been an equitable assignment of the claim. How, then, can it be that an order drawn upon the fund, or payable out of it, if accepted, is not a partial assignment? There is nothing in Story's Equity Jurisprudence, sects. 1040 to 1047 inclusive, nor in any of the cases cited by the appellant, inconsistent with our holding that such an order is in equity a partial assignment.

We are brought, then, to the inquiry whether such an assignment of a claim against the United States, made before the claim has been allowed, and before a warrant has been issued for its payment, has any validity, either in law or in equity. The act of Congress approved Feb. 26, 1853 (10 Stat. 170), entitled 'An Act to prevent frauds upon the treasury of the United States,' re-enacted in sect. 3477 of the Revised Statutes, declares that all transfers and assignments thereafter made of any claim upon the United States, or any part or share thereof or interest therein, whether absolute or conditional, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or any part or share thereof, shall be absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. It would seem to be impossible to use language more comprehensive than this. It embraces alike legal and equitable assignments. It includes powers of attorney, orders, or other authorities for receiving payment of any such claim, or any part or share thereof. It strikes at every derivative interest, in whatever form acquired, and incapacitates every claimant upon the government from creating an interest in the claim in any other than himself.

In United States v. Gillis (95 U.S. 407), we had occasion to examine this act. We then concluded that it embraced every claim against the United States, however arising, of whatever nature, and wherever and whenever presented. We had not, however, before us the precise question which is here presented. That was the case of a suit by the assignee of a claim in the Court of Claims. We held he could have no standing there. We held also that such an assignee could not prosecute the claim in any court, or before the Treasury Department, against the government. We were not called upon to decide whether such assignments were invalid as between the assignor and the assignee. But if after the claim in this case was allowed, and a warrant for its payment was issued in the claimant's name, as it must have been, he had gone to the treasury for his money, it is clear that no assignment he might have made, or order he might have given, before the allowance would have stood in the way of his receiving the whole sum allowed. The United States must have treated as a nullity any rights to the claim asserted by others. It is hard to see how a transfer of a debt can be of no force as between the transferee and the debtor, and yet effective as between the creditor and his assignee to transmit an ownership of the debt, or create a lien upon it. Yet if that might be,-and we do not propose now to affirm or deny it, the question remains, whether the act of Congress was not intended to render all claims against the government inalienable alike in law and in equity, for every purpose, and between all parties. The intention of Congress must be discovered in the act itself. It was entitled 'An act, to prevent frauds upon the treasury of the United States.' It may be assumed, therefore, that such was its purpose. What the frauds were against which it was intended to set up a guard, and how they might be perpetrated, nothing in the statute informs us. We can only infer from its provisions what the frauds and mischiefs had been, or were apprehended, which led to its enactment. One, probably, was the possible presentation of a single claim by more than a single claimant, the original and his assignee, thus raising the danger of paying the claim twice, or rendering necessary the investigation of the validity of an alleged assignment. Another and greater danger was the possible combination of interests and influences in the prosecution of claims which might have no real foundation, of which the facts of the present case afford an illustration. Within our knowledge there have been claims against the government, interests in which have been assigned to numerous persons, and thus an influence in support of the claims has been brought into being which would not have existed had assignments been impossible. We do not say that the passage of the act was induced by these considerations. It is enough that frauds or wrongs upon the treasury were possible in either of these ways, and it may be that Congress intended to close the door against both. However that may be, the language of the act is too sweeping and positive to justify us in giving it a limited construction. We cannot say, when the statute declares all transfers and assignments of the whole of a claim, or any part or interest therein, and all orders, powers of attorney, or other authority for receiving payment of the claim, or any part thereof, shall be absolutely null and void, that they are only partially null and void, that they are valid and effective as between the parties thereto, and only invalid when set up against the government.

It follows that, in our opinion, the accepted orders under which the appellant claims gave him no interest in the claim of the drawer against the United States, and no lien upon the fund arising out of the claim. His bill was, therefore, rightly dismissed.

Decree affirmed.

MR. JUSTICE FIELD did not sit in this case.

title: Spofford v. Kirk/Opinion of the Court


text: Talk:Spofford v. Kirk/Opinion of the Court


text:
Missouri Kansas and Texas Railway Company v. Kansas Pacific Railway Company

ERROR to the Supreme Court of the State of Kansas.

The facts are sufficiently stated in the opinion of the court.

Mr. T. C. Sears and Mr. Wheeler H. Peckham for the plaintiff in error.

Mr. John P. Usher and Mr. Henry Beard, contra.

MR. JUSTICE FIELD delivered the opinion of the court.


text: Talk:Missouri Kansas and Texas Railway Company v. Kansas Pacific Railway Company


text:
Missouri Kansas and Texas Railway Company v. Kansas Pacific Railway Company/Opinion of the Court

This case involves a determination of the title to about ninety thousand acres of land situated in the State of Kansas, claimed by the two railway corporations which are parties to the suit, under grants from the United States. The plaintiff in the court below, the defendant in error here, the Kansas Pacific Railway Company, was originally known as the Leavenworth, Pawnee, and Western Railroad Company, and is thus designated in the act of Congress of 1862. Subsequently, in 1864, the name was changed to that of the Union Pacific Railroad Company, Eastern Division; and it was afterwards so called in the legislation of Congress until some time in 1869, when it received its present name. 13 Stat. 361; 14 id. 79, 355; 15 id. 348.

The defendant in the court below, the plaintiff in error here, the Missouri, Kansas, and Texas Railway Company, claims the lands under a grant from the United States to the State of Kansas, and by patent from the latter. Both grants were made to aid in the construction of railroads the lines of which were not definitely fixed. In neither of them was there any designation of the lands granted other than that they were to constitute the odd sections within certain specified distances on each side of the roads when located. It becomes essential, therefore, for a proper determination of the rights of the two companies, to consider the terms of their respective grants, and ascertain the time when the title to the lands claimed passed from the government.

The plaintiff, the Kansas Pacific Railway Company, claims under the act passed on the 1st of July, 1862, in aid of the construction of a railroad and a telegraph line from the Missouri River to the Pacific Ocean, and the several acts amendatory thereof or supplementary thereto. That act granted to the company organized under its provisions, for every mile of road, five sections of public land, designated by odd numbers, on each side of the line of the road, within the limit of ten miles, which were not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim had not attached at the time the line was definitely fixed. It also provided that whenever the company had completed forty consecutive miles of any portion of its road or telegraph line ready for the service contemplated, the President of the United States should appoint three commissioners to examine the same, and report whether the road and the telegraph line were completed and equipped as required by the act, and upon a favorable report, patents were to issue for the adjacent lands.

The company was required to file in the Department of the Interior its assent to the act within one year after its passage, and to designate the general route of its road as near as might be, and file a map of the same in that department within two years. The Secretary of the Interior was then to withdraw the lands within fifteen miles of the designated route from pre-emption, private entry, and sale; and when any portion of the route was finally located, he was to cause the lands granted to be surveyed and set off as fast as necessary for the purposes mentioned. The President was to designate the initial point of the road, which was to be in the Territory of Nebraska, on the one hundredth meridian west from Greenwich, at which point the eastern branches were to unite. The act contemplated several branches, one of which was to be constructed by the Leavenworth, Pawnee, and Western Railroad Company, the name of which was, as already stated, afterwards changed to that of the Kansas Pacific Railway Company. It authorized this company, which was incorporated by the State of Kansas, to construct a railroad and a telegraph line from the Missouri River at the mouth of the Kansas River, on the south side thereof, so as to connect with the Pacific Railroad of Missouri at the initial point named, upon the same conditions in all respects as were provided for the construction of the main road and line. In case the general route of the main road was located so as to require a departure northwardly from the proposed line of the Kansas road before it reached the meridian of longitude mentioned, the location of the Kansas road was to be made to conform to it. The route in Kansas, west of the meridian of Fort Riley to the point mentioned on the one hundredth meridian of longitude, was to be made subject to the approval of the President of the United States, and to be determined by him on actual survey.

Under this act, the plaintiff, on the 17th of July, 1862, filed a map showing the general route of its road; and lands within the limit of fifteen miles on each side of it were accordingly withdrawn from sale. This route extended along the Kansas River, from its mouth to the Republican River, and thence along the left bank of the latter to the one hundredth meridian.

On the 2d of July, 1864, Congress passed an amendatory act, enlarging its grant of land to the Union Pacific Railroad Company, and the companies authorized to connect with its road, and the limits within which the lands were to be reserved; and extending for one year the time for designating the general routes of their respective roads, and providing for the issue to the companies of patents for the lands whenever twenty consecutive miles of their respective roads were found upon the report of the commissioners to be completed. It also authorized the plaintiff to construct its road and telegraph line so as to connect with the Union Pacific road at a point west of its initial point, in case it deemed such westward connection more practicable or desirable. Under this amendatory act the plaintiff filed a map designating the general route of its road west of Fort Riley up the Republican River; but this route was never approved by the President, as required by the original act of 1862; and no withdrawal of lands along this proposed route was made, other than that of July, 1862; and of the lands then withdrawn west of Fort Riley only such are claimed by the plaintiff as were included in the subsequent withdrawal under the act of 1866.

On the 3d of July, 1866, Congress passed a special act authorizing the plaintiff to designate the general route of its road, and to file a map thereof, at any time before the 1st of December, 1866, and providing that after the filing of this map the lands along its entire line, so far as it was designated, should be reversed from sale by the Secretary of the Interior. It also declared that the commpany should connect its lines of road and telegraph with the Union Pacific road, at a point not more than fifty miles westwardly from the medridian of Denver, in Colorado. Under this act the plaintiff, on the 11th of July, 1866, filed a map in the Department of the Interior, designating as the general route of its road a line from Fort Riley to the western line of the State, by way of the Smoky Hill River, instead of the Republican River; and on the 26th of the same month the lands upon this route were withdrawn from sale, by order of the Secretary of the Interior. The lands thus withdrawn embrace those in controversy in this case. Previously to this the road of the company had been completed as far as Fort Riley; and by the 14th of December following (1866), twenty miles west of Fort Riley, and on the Smoky Hill route, were also completed. Upon the presentation of an affidavit of this fact, the President appointed commissioners to examine and report upon the road. Before they made their examination, a section of five additional miles of the road had been completed, and they were directed to include it in their examination. On the 17th of January, 1867, they reported to the Secretary of the Interior that the twenty-five miles were ready for service, and were completed and equipped as a first-class road. On the 22d of that month, the Secretary informed the President of the report, and recommended its acceptance, and the issue of patents for the lands due the company on account of this completed portion of the road; and on the same day the President approved the report, and directed that patents be issued as recommended by the Secretary.

Upon this order and the legislation we have stated, and the proceedings had under it, the plaintiff bases its right to the lands in controversy, and a consequent affirmance of the decision of the court below.

Briefly stated, the case of the plaintiff is this: In 1862, Congress granted to it certain lands consisting of odd sections along a railroad to be afterwards constructed; in 1864, Congress enlarged the grant, and by subsequent legislation authorized the route of the road to be designated at any time before December, 1866; when designated, lands within a limit sufficiently extended to embrace the granted sections were to be reserved from sale; and when certain portions of the road were from time to time completed, and were accepted by the President as a first-class road, patents for the sections were to be issued to the company. The plaintiff designated the route of its road in July, 1866, and the lands in controversy were, on the 26th of that month, reserved from sale. By the 14th of December following, it had completed twenty miles of its road, and by the 16th of January, 1867, five additional miles. Commissioners were appointed by the President to examine and report as to the completion and equipment of the road; and upon their favorable report this section of twenty-five miles was accepted by him, and a patent for the lands was ordered to be issued. The plaintiff, therefore, claims that it acquired a title to the lands, and has a right to the evidence of it. And this claim is clearly well founded, unless there be something impairing its validity in the legislation and proceedings under which the defendant asserts title to the lands.

As between the United States and the plaintiff, the right of the latter to a patent became perfect on the approval by the President of the report of the commissioners. The act of July 1, 1862, passed to the company a present interest in the lands to be designated within the limits there specified. Its language is, 'that there be and is hereby granted' to it the odd sections mentioned,-words which import a grant in praesenti and not one in futuro, of the promise of a grant. Similar terms in other acts of Congress granting lands have uniformly received this interpretation, unless accompanied with clauses restraining their operation. They were so interpreted in Schulenberg v. Harriman, after full consideration of previous adjudications on their import; and the ruling there was followed in Leavenworth, Lawrence, & Galveston Railroad Co. v. United States, 92 U.S. 733. It is true that the route of the road, in this case as in those cases, to aid in the construction of which the act was passed, was to be afterwards designated; and until designated the title could not attach to any specific tracts. The grant was of sections to be afterwards located, and their location depended upon the route to be established; when that was settled, the location became certain, and the title that was previously imperfect acquired precision and attached to the lands.

It is always to be borne in mind in construing a congressional grant, that the act by which it is made is a law as well as a conveyance, and that such effect must be given to it as will carry out the intent of Congress. That intent should not be defeated by applying to the grant the rules of the common law, which are properly applicable only to transfers between private parties. To the validity of such transfers it may be admitted that there must exist a present power of identification of the land; and that where no such power exists, instruments, with words of present grant, are operative, if at all, only as contracts to convey. But the rules of the common law must yield in this, as in all other cases, to the legislative will.

As to the intent of Congress in the grant to the plaintiff there can be no reasonable doubt. It was to aid in the construction of the road by a gift of lands along its route, without reservation of rights, except such as were specifically mentioned, the location of the route being left within certain general limits to the action of the plaintiff. When the location was made and the sections granted ascertained, the title of the plaintiff took effect by relation as of the date of the act, except as to the reservations mentioned; the act having the same operation upon the sections as if they had been specifically described in it. It is true that the act of 1864 enlarged the grant of 1862; but this was done, not by words of a new and an additional grant, but by a change of words in the original act, substituting for those there used words of larger import. This mode was evidently adopted that the grant might be treated as if thus made originally; and therefore, as against the United States, the title of the plaintiff to the enlarged quantity, with the exceptions stated, must be considered as taking effect equally with the title to the less quantity as of the date of the first act. United States v. Burlington & Missouri Railroad Co., 4 Dill. 305.

The construction thus given to the grant in this case is, of course, applicable to all similar congressional grants, and there is a vast number of them; and it will tend, we think, to prevent controversies between the grantees and those claiming under them respecting the title to the lands covered by their several grants, and put an end to struggles to encroach upon the rights of others by securing an earlier location. Our judgment is that the title of the plaintiff, attaching to the lands in controversy by a location of the route of the road, being followed by a construction of the road, took effect by relation as of the date of the act of 1862, so as to cut off all intervening claimants except in the cases where reservations were specially made in that act, and the amendatory act of 1864. Such reservations operated as limitations upon the grant. The limitation upon the grant in the act of July, 1862, extended to lands sold, reserved, or otherwise disposed of by the United States, or to which a pre-emption or homestead claim had attached, and to mineral lands. The amendatory act of July, 1864, declared that neither that nor the original act should defeat or impair any pre-emption, homestead, swamp land, or other lawful claim, or include reservations or mineral lands other than those of iron or coal.

As the sections mentioned could only be known when the route of the road was established, which might not be for years, the government did not intend to withhold the lands in the mean time from occupation and sale, and thus retard the settlement of the country, nor to exclude the lands from appropriation to public uses. And the object of the reservation was to protect the acquisition of rights in this way to lands falling within the limits of the grant, and to exclude from its operation lands specially reserved, and lands of a special character, such as mineral lands other than those of iron or coal, the sale of which was seldom permitted anywhere, and swamp lands. The grant made was in the nature of a float, and the reservations excluded only specific tracts to which certain interests had attached before the grant had become definite, or which had been specially withheld from sale for public uses, and tracts having a peculiar character, such as swamp lands, or mineral lands the sale of which was then against the general policy of the government. It was not within its language or purpose to except from its operation any portion of the designated lands for the purpose of aiding in the construction of other roads.

The claim of title to the lands in controversy made by the defendant in the court below, the plaintiff in error here, the Missouri, Kansas, and Texas Railway Company, arises in this wise: On the 3d of March, 1863, Congress passed an act granting lands to the State of Kansas to aid in the construction of certain railroads, one of which was to extend from the city of Atchison via Topeka, the capital of the State, to its western line in the direction of Fort Union and Santa F e, New Mexico, with a branch down the Neosho Valley to a point where the Leavenworth and Lawrence road entered it. In accepting the act in February, 1864, the legislature of Kansas enacted that if Congress, before the 4th of March, 1866, should consent that the Neosho Valley branch of the road be extended so as to intersect the Union Pacific road, eastern division, at or near Fort Riley, and should make a grant of lands for such extension of like amount with that granted per mile for the construction of the main road, then the Atchison, Topeka, and Santa F e Railroad Company should proceed to construct such branch. The act thus suggested Congress did not pass; but on the 1st of July, 1864, it did pass an act making an additional grant of land for the construction of a railroad and a telegraph line from Emporia, via Council Grove, to a point near Fort Riley, on the branch of the Union Pacific Railroad. The grant was subject to all the provisions, restrictions, limitations, and conditions in regard to the selection and location of the lands, and otherwise, of the act of March 3, 1863, 13 Stat. 339. Afterwards, the Atchison, Topeka, and Santa F e Railroad Company, with the assent of the State, transferred all its interest in the grant to the defendant in this case, the Missouri, Kansas, and Texas Railway Company,-a company which was originally known as the Union Pacific Railroad Company, Southern Branch, and is so designated in the act of July 26, 1866, which we shall presently consider. This act of 1864 was never accepted by the State of Kansas. No route of a road between the points designated in it was ever located by the company, nor was any map of a proposed route ever filed in the Department of the Interior. Nothing, indeed, was done by the State or company under the act until after the grant it offered had been superseded by the acceptance of the greater and more valuable grant made by the subsequent act of July 26, 1866, which covered the same lands. 14 Stat. 289. This last act granted to the State of Kansas, for the purpose of aiding the company to construct and operate a railroad from Fort Riley, or near that military reservation, down the valley of the Neosho River, to the southern line of the State, five alternate sections of land per mile on each side of the road, with a clause that in case it should appear, among other things, when the line of the road was definitely fixed, that any section or part of a section granted had been reserved by the United States for any purpose whatever, then an equal amount of land was to be selected from the public lands nearest the section, and with a proviso excepting from the operation of the act all lands previously reserved to the United States by act of Congress or other competent authority, for the purpose of aiding in any object of internal improvement.

The grant thus made was accepted by the company in August, 1866, and its acceptance was filed in the Department of the Interior. In September following, the line of the proposed road was surveyed, and a map of its route prepared; in November, 1866, it was filed in the office of the Secretary of State of Kansas, and in December following in the office of the Secretary of the Interior. In March, 1867, the adjacent lands were withdrawn from sale to meet the grant, and in June, 1870, the road of the company was completed to the southern line of the State, and soon afterwards was accepted as a first-class road by the governor of the State and by the President.

Upon the principle already announced, in considering the time when the grant to the plaintiff took effect, the title of the defendant to the lands thus set apart to it, had there been no previous disposition or reservation of them, would have become perfect, and by relation have vested from the date of the act. But so far as the lands were identical with those covered by the previous grant to the plaintiff by the acts of 1862 and 1864, the title could not attach, as it had already passed from the government.

The rights of the contesting corporations to the disputed tracts are determined by the dates of their respective grants, and not by the dates of the location of the routes of their respective roads, although in this case the location of the route of the plaintiff's road was earlier than that of the defendant's road. This consideration disposes of the case, and requires the affirmance of the decree of the Supreme Court of Kansas, without reference to the reservations contained in the grant to the defendant.

Decree affirmed.


text: Talk:Missouri Kansas and Texas Railway Company v. Kansas Pacific Railway Company/Opinion of the Court


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Patterson v. Kentucky

ERROR to the Court of Appeals of the State of Kentucky.

The facts are stated in the opinion of the court.

''Mr. Matt. H. Carpenter'' for the plaintiff in error.

Mr. Albert Pike, contra.

Mr. JUSTICE HARLAN delivered the opinion of the court.

title: Patterson v. Kentucky


text: Talk:Patterson v. Kentucky

title: Talk:Patterson v. Kentucky


text:
Patterson v. Kentucky/Opinion of the Court

Whether the final judgment of the Court of Appeals of Kentucky denies to plaintiff in error any right secured to her by the Constitution and laws of the United States, is the sole question presented in this case for our determination.

That court affirmed the judgment of an inferior State court in which, upon indictment and trial, a fine of $250 was imposed upon plaintiff in error for a violation of certain provisions of a Kentucky statute, approved Feb. 21, 1874, regulating the inspection and gauging of oils and fluids, the product of coal, petroleum, or other bituminous substances. The statute provides that such oils and fluids, by whatever name called and wherever manufactured, which may or can be used for illuminating purposes, shall be inspected by an authorized State officer, before being used, sold, or offered for sale. Such as ignite or permanently burn at a temperature of 130° Fahrenheit and upwards are recognized by the statute as standard oils, while those which ignite or permanently burn at a less temperature are condemned as unsafe for illuminating purposes. Inspectors are required to brand casks and barrels with the words 'standard oil,' or with the words 'unsafe for illuminating purposes,' as inspection may show to be proper. The statute imposes a penalty upon all who sell or offer for sale, within the State, such oils and fluids as have been condemned, the casks or barrels containing which have been branded with the words indicating such condemnation.

The specific offence charged in the indictment was that the plaintiff in error had sold, within the State, to one Davis an oil known as the Aurora oil, the casks containing which had been previously branded by an authorized inspector with the words 'unsafe for illuminating purposes.' That particular oil is the same for which, in 1867, letters-patent were granted to Henry C. Dewitt, of whom the plaintiff in error is the assignee, by assignment duly recorded as required by the laws of the United States. Upon the trial of the case it was agreed that the Aurora oil could not, by any chemical combination described in the patent, be made to conform to the standard or test required by the Kentucky statute as a prerequisite to the right, within that State, to sell, or to offer for sale, illuminating oils of the kind designated.

The plaintiff in error, as assignee of the patentee, in asserting the right to sell the Aurora oil in any part of the United States, claims that no State could, consistently with the Federal Constitution and the laws of Congress, prevent or obstruct the exercise of that right, either by express words of prohibition, or by regulations which prescribed tests to which the patented article could not be made to conform.

The Court of Appeals of Kentucky held this construction of the Constitution and the laws of the United States to be inadmissible, and in that opinion we concur.

Congress is given power to promote the progress of science and the useful arts. To that end it may, by all necessary and proper laws, secure to inventors, for limited times, the exclusive right to their inventions. That power has been exerted in the various statutes prescribing the terms and conditions upon which letters-patent may be obtained. It is true that letters-patent, pursuing the words of the statute, do, in terms, grant to the inventor, his heirs and assigns, the exclusive right to make, use, and vend to others his invention or discovery, throughout the United States and the Territories thereof. But, obviously, this right is not granted or secured, without reference to the general powers which the several States of the Union unquestionably possess over their purely domestic affairs, whether of internal commerce or of police. 'In the American constitutional system,' says Mr. Cooley, 'the power to establish the ordinary regulations of police has been left with the individual States, and cannot be assumed by the national government.' Cooley, Const. Lim. 574. While it is confessedly difficult to mark the precise boundaries of that power, or to indicate, by any general rule, the exact limitations which the States must observe in its exercise, the existence of such a power in the States has been uniformly recognized in this court. Gibbons v. Ogden, 9 Wheat. 1; License Cases, 5 How. 504; Gilman v. Philadelphia, 3 Wall. 713; Henderson et al. v. Mayor of the City of New York et al., 92 U.S. 259; Railroad Company v. Husen, 95 id. 465; Beer Company v. Massachusetts, supra, p. 25. It is embraced in what Mr. Chief Justice Marshall, in Gibbons v. Ogden, calls that 'immense mass of legislation' which can be most advantageously exercised by the States, and over which the national authorities cannot assume supervision or control. 'If the power only extends to a just regulation of rights, with a view to the due protection and enjoyment of all, and does not deprive any one of that which is justly and properly his own, it is obvious that its possession by the State, and its exercise for the regulation of the property and actions of its citizens, cannot well constitute an invasion of national jurisdiction or afford a basis for an appeal to the protection of the national authorities.' Cooley, Const. Lim. 574. By the settled doctrines of this court the police power extends, at least, to the protection of the lives, the health, and the property of the community against the injurious exercise by any citizen of his own rights. State legislation, strictly and legitimately for police purposes, does not, in the sense of the Constitution, necessarily intrench upon any authority which has been confided, expressly or by implication, to the national government. The Kentucky statute under examination manifestly belongs to that class of legislation. It is, in the best sense, a mere police regulation, deemed essential for the protection of the lives and property of citizens. It expresses in the most solemn form the deliberate judgment of the State that burning fluids which ignite or permanently burn at less than a prescribed temperature are unsafe for illuminating purposes. Whether the policy thus pursued by the State is wise or unwise, it is not the province of the national authorities to determine. That belongs to each State, under its own sense of duty, and in view of the provisions of its own Constitution. Its action, in those respects, is beyond the corrective power of this court. That the statute of 1874 is a police regulation within the meaning of the authorities is clear from our decision in United States v. Dewitt, 9 Wall. 41. By the internal revenue act of March 2, 1867, a penalty was imposed upon any person who should mix for sale naphtha and illuminating oils, or who should knowingly sell or keep for sale, or offer for sale, such mixture, or who should sell or offer for sale oil made from petroleum for illuminating purposes, inflammable at less temperature or fire-test than 110° Fahrenheit. We held that to be simply a police regulation, relating exclusively to the internal trade of the States; that, although emanating from Congress, it could have by its own force no constitutional peration within State limits, and was without effect, except where the legislative authority of Congress excluded, territorially, all State legislation, as, for example, in the District of Columbia.

The Kentucky statute being, then, an ordinary police regulation for the government of those engaged in the internal commerce of that State, the only remaining question is, whether, under the operation of the Federal Constitution and the laws of Congress, it is without effect in cases where the oil, although condemned by the State as unsafe for illuminating purposes, has been made and prepared for sale in accordance with a discovery for which letter-patents had been granted. We are of opinion that the right conferred upon the patentee and his assigns to use and vend the corporeal thing or article, brought into existence by the application of the patented discovery, must be exercised in subordination to the police regulations which the State established by the statute of 1874. It is not to be supposed that Congress intended to authorize or regulate the sale, within a State, of tangible personal property which that State declares to be unfit and unsafe for use, and by statute has prohibited from being sold or offered for sale within her limits. It was held by Chief Justice Shaw to be a settled principle, 'growing out of the nature of well-ordered society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community.' Commonwealth v. Alger, 7 Cush. (Mass.) 53. In recognition of this fundamental principle, we have frequently decided that the police power of the States was not surrendered when the Constitution conferred upon Congress the general power to regulate commerce with foreign nations and between the several States. Hence the States may, by police regulations, protect their people against the introduction within their respective limits of infected merchandise. 'A bale of goods upon which the duties have or have not been paid, laden with infection, may be seized under health laws, and if it cannot be purged of its poison, may be committed to the flames.' Gilman v. Philadelphia, supra. So may the States, by like regulations, exclude from their midst not only convicts, paupers, idiots, lunatics, and persons likely to become a public charge, but animals having contagious diseases. Railroad Company v. Husen, supra. This court has never hesitated, by the most rigid rules of construction, to guard the commercial power of Congress against encroachment in the form or under the guise of State regulation, established for the purpose and with the effect of destroying or impairing rights secured by the Constitution. It has, nevertheless, with marked distinctness and uniformity, recognized the necessity, growing out of the fundamental conditions of civil society, of upholding State police regulations which were enacted in good faith, and had appropriate and direct connection with that protection to life, health, and property, which each State owes to her citizens. These considerations, gathered from the former decisions of this court, would seem to justify the conclusion that the right which the patentee or his assignee possesses in the property created by the application of a patented discovery must be enjoyed subject to the complete and salutary power with which the States have never parted, of so defining and regulating the sale and use of property within their respective limits as to afford protection to the many against the injurious conduct of the few. The right of property in the physical substance, which is the fruit of the discovery, is altogether distinct from the right in the discovery itself, just as the property in the instruments or plate by which copies of a map are multiplied is distinct from the copyright of the map itself. Stephens v. Cady, 14 How. 528; Stevens v. Gladding et al., 17 id. 447. The right to sell the Aurora oil was not derived from the letters-patent, but it existed and could have been exercised before they were issued, unless it was prohibited by valid local legislation. All which they primarily secure is the exclusive right in the discovery. That is an incorporeal right, or, in the language of Lord Mansfield in Miller v. Taylor (4 Burr. 2303), 'a property in notion,' having 'no corporeal tangible substance.' Its enjoyment may be secured and protected by national authority against all interference; but the use of the tangible property which comes into existence by the application of the discovery is not beyond the control of State legislation, simply because the patentee acquires a monopoly in his discovery.

An instructive case upon the precise point under consideration is Jordan v. The Overseers of Dayton, 4 Onio, 295. Jordan was sued in debt, to recover certain penalties for practising medicine in violation of an Ohio statute regulating the practice of physic and surgery. His defence rested, in part, upon the ground that the medicine administered by him was that for which letters-patent had issued to his assignor, granting to the latter the exclusive right of making, constructing, using, and vending to others to be used, the medicine in question, which was described in the letters-patent as a new and useful improvement, and as being a mode of preparing, mixing, compounding, administering, and using that medicine. The contention of Jordan was that the State government could not restrict or control the beneficial or lucrative use of the invention, and that, as assignee of the patentee, he was entitled to administer the patented medicine without obtaining a license to practise physic or surgery as required by the State statute. The Supreme Court of Ohio said: 'This leads us to consider the nature and extent of such rights as accrue from letters-patent for useful discoveries. Although the inventor had at all times the right to enjoy the fruits of his own ingenuity, in every lawful form of which its use was susceptible, yet, before the enactment of the statute, he had not the power of preventing others from participating in that enjoyment to the same extent with himself; so that, however the world might derive benefit from his labors, no profit ensued to himself. The ingenious man was therefore led either to abandon pursuits of this nature, or to conceal his results from the world. The end of the statute was to encourage useful inventions, and to hold forth, as inducements to the inventor, the exclusive use of his inventions for a limited period. The sole operation of the statute is to enable him to prevent others from using the products of his labors except with his consent. But his own right of using is not enlarged or affected. There remains in him, as in every other citizen, the power to manage his property, or give direction to his labors, at his pleasure, subject only to the paramount claims of society, which requires that his enjoyment may be modified by the exigencies of the community to which he belongs, and regulated by laws which render it subservient to the general welfare, if held subject to State control. If the State should pass a law for the purpose of destroying a right created by the Constitution, this court will do its duty; but an attempt by the legislature, in good faith, to regulate the conduct of a portion of its citizens, in a matter strictly pertaining to its internal economy, we cannot but regard as a legitimate exercise of power, although such law may sometimes indirectly affect the enjoyment of rights flowing from the Federal government.' Some light is thrown upon the question by Vanini et al. v. Paine et al., 1 Harr. (Del.) 65. In that case it appears that Yates and McIntyre were assignees of Vanini, the inventor and patentee of a mode of drawing lotteries, and making schemes for lotteries on the combination and permutation principle. Other brokers issued a scheme for drawing a lottery under a certain act for the benefit of a school, adopting the plan of Vanini's patent. Yates & McIntyre filed their bill for injunction upon the ground, partly, that the defendants were proceeding in violation of the patent-rights secured to Vanini. The Court of Errors and Appeals of Delaware said: 'At the times Yates & McIntyre made contracts for the lottery privileges set forth in the bill, we had, in force, and act of assembly prohibiting lotteries, the preamble of which declares that they are pernicious and destructive to frugality and industry, and introductive of idleness and immorality, and against the common good and general welfare. It therefore cannot be admitted that the plaintiffs have a right to use an invention for drawing lotteries in this State, merely because they have a patent for it under the United States. A person might with as much propriety claim a right to commit murder with an instrument, because he held a patent for it as a new and useful invention.'

In Livingston v. Van Ingen (9 Johns. (N. Y.) 507), Chancellor Kent said that 'the national power will be fully satisfied if the property created by patent be, for the given time, enjoyed and used exclusively, so far as, under the laws of the several States, the property shall be deemed for toleration. There is no need of giving this power any broader construction in order to attain the end for which it was granted, which was to reward the beneficent efforts of genius, and to encourage the useful arts.' That case, so far as it related to the validity, under the commercial clause of the Constitution, of certain statutes of New York, is not now recognized as authority. It is, perhaps, also true that the language just quoted was not absolutely necessary to the decision of that case. But as an expression of opinion by an eminent jurist as to the nature and extent of the rights secured by the Federal Constitution to inventors, it is entitled to great weight.

Without further elaboration, we deem it only necessary to say that the Kentucky statute does not, in our judgment, contravene the provisions of the Federal Constitution, or of any statute passed in pursuance thereof. Its enforcement causes no necessary conflict with national authority, and interferes with no right secured by Federal legislation, to the patentee or his assigns.

We perceive no error in the judgment, and it is

Affirmed.

MR. JUSTICE HUNT did not sit in this case, nor take any part in deciding it.


text: Talk:Patterson v. Kentucky/Opinion of the Court


text:
Coleman v. Tennessee

ERROR to the Supreme Court of the State of Tennessee.

The facts are stated in the opinion of the court.

Mr. Henry S. Foote and Mr. Leonidas C. Houk for the plaintiff in error.

Mr. J. B. Heiskell, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Coleman v. Tennessee


text: Talk:Coleman v. Tennessee

title: Talk:Coleman v. Tennessee