text:
Wiggins Ferry Co v. City of East St. Louis

ERROR to the Supreme Court of the State of Illinois.

This was an action of debt brought in the city court of East St. Louis, St. Claire county, Illinois, by the city of East St. Louis against a corporation of the State of Illinois, known as the Wiggins Ferry Company, to recover from it license money imposed by an ordinance of the city. The ferry company pleaded nil debit. By consent of parties the cause was submitted to the court on an agreed statement of facts, which was as follows:

Under and by authority of an act of the legislature of Illinois, entitled 'An act to authorize Samuel Wiggins to establish a ferry upon the waters of the Mississippi,' approved March 2, 1819, and amendatory acts, Wiggins and his associates did establish, maintain, and operate a ferry upon and over the Mississippi river, between the city of St. Louis, in the state of Missouri, and the Illinois shore of the river opposite to the city of St. Louis, now within the limits of the city of East St. Louis, from about the time of the passage of the act of 1819, until the organization of the Wiggins Ferry Company in the year 1853, under and by authority of an act of the legislature entitled 'An act to incorporate the Wiggins Ferry Company,' approved February 11, 1853. In the year 1853, under authority of said act of 1853, the successors, heirs, and assigns of Samuel Wiggins, the then owners of the ferry and ferry franchise, and of all the rights, privileges, and immunities granted to Samuel Wiggins and his successors, heirs, and assigns, by proper deeds and assignments conveyed the same to defendant, they having become the stockholders of said ferry company, and from thence hitherto defendant has remained the lawful owner of said ferry, ferry franchise, rights, privileges, and immunities, including the ferry-boats, wharf-boats, wharfs, and landings in use by said ferry, and the rights, privileges, immunities, and franchises granted by said act of 1853, and amendatory acts, and under and by authority of all said grants, franchises, rights privileges, and immunities defendant has maintained and operated said ferry from thence hitherto. The Mississippi river, at the point between the states of Illinois and Missouri, upon and over which the said ferry is established and operated, has, under the laws of the United States, and the rules and regulations established thereunder, by the duly-authorized officers of the United States, been declared to be, and is, a navigable river within the purview of such laws; and under said laws, rules, and regulations, and especially in conformity to the Revised Statutes of the United Statutes, title L, 'Regulation of vessels in domestic commerce,' the defendant for the last 20 years and more has been required to, and has had all its ferry-boats, all of which are more than 20 tons burden, regularly enrolled and annually inspected and licensed, at an annual cost of from $75 to $100 per boat, according to tonnage and number of men employed on each. The defendant over since its organization has paid to the county of St. Clair, as a ferry license, the sum of $300 per annum, under the laws of Illinois and the requirements of the county authorities; and has owned the wharfs and landing used by said ferry in the city of East St. Louis, which is graded and paved at its own expense, and it has never used or employed any wharf or landing belonging to the city of East St. Louis. Defendant ever since its organization has annually listed for taxation, and paid all taxes legally assessed upon all its property; all its personal property, including its boats and franchise, and all its real estate which is situated within the city limits, and including its wharfs and landings, having been taxed by said city of East St. Louis ever since the organization of said city.

The Illinois & St. Louis Ferry Company and the St. Louis & Cahokia Ferry Company own and operate ferries over and across the Mississippi river between the said city of St. Louis and the Illinois shore, but without the limits of the city of East St. Louis, both in active competition with the ferry of defendant, neither of which are or ever have been required to pay any sum whatever for license to either the city of East St. Louis or any other municipal corporation except the county of St. Clair, to which they both pay license fees.

The St. Louis Bridge Company, which owns and operates a bridge over the Mississippi river between said cities St. Louis and East St. Louis, which has been in active competition with defendant ever since said bridge was opened for use in July, 1874, is required to pay no license fee whatever to the city of East St. Louis. On June 1, 1868, the city council of the city of East St. Louis duly passed and published 'Ordinance No. 70,' parts of which are as follows:

'Section 1. No person, firm, company, or corporation shall be engaged in, prosecute, or carry on any trade, business, calling, or profession hereinafter mentioned without first having obtained a license therefor.

'Sec. 10. Keepers of ferries shall pay $50 license for each boat plying between this city and the opposite bank of the river for one year, or $25 for each boat for six months.'

In compliance with the above ordinance defendant paid said city a license fee $50 per annum on each of its ferry boats, its last license thereunder being from May 1, 1874, to May 1, 1875.

On October 7, 1878, said city council passed ordinance No. 317, which is substantially the same as ordinance No. 70, except that it fixes the license fee at $100 per annum for each boat. On May 1, 1875, and from thence hitherto, the defendant, in the operation of its ferry between said cities of St. Louis and East St. Louis, has employed eight ferry-boats, (including two tugs and one transfer-boat,) and since said May 1, 1875, has not taken out any license nor paid any license fee to said city of East St. Louis. Upon the facts here stated, and the laws applicable thereto, the court shall determine the right of plaintiff to demand and the liability of defendant to pay the license fee fixed by said ordinance, or either of them, and render judgment accordingly, and this without regard to the pleadings in the case. The acts of the legislature, and the laws, rules, and regulations of the United States, and the enrollments, inspections, and licenses herein mentioned or referred to, and the charter and ordinances of said city of East St. Louis, or copies thereof, may be used and referred to as a part of the record in this case.

So much of the act of 1819, referred to in the agreed statement of facts, entitled 'An act to authorize Samuel Wiggins to establish a ferry upon the waters of the Mississippi river,' as is pertinent in this case, is as follows:

'Section 1. That Samuel Wiggins, his heirs and assigns, be, and they are hereby, authorized to establish a ferry on the waters of the Mississippi, near the town of Illinois, in this state, and to run the same from lands at the said place that may belong to him.

'Sec. 4. That the ferry established shall be subject to the same taxes as are now, or hereafter may be, imposed on other ferries within this state, and under the same regulations and forfeitures.'

So much of the act of February 11, 1853, 'to incorporate the Wiggins Ferry Company,' as is material to this case, is as follows:

After a preamble, which recited the above-mentioned act of 1819 and acts amendatory thereof, it was enacted:

'Section 1. That [certain persons, naming them,] and their associates, successors, and assigns, are hereby created a body corporate and politic by the name and style of the 'Wiggins Ferry Company,' * * * and the said company shall have full power * * * to purchase, hold, use, and enjoy the ferry franchise granted to Samuel Wiggins, his heirs and assigns, by the act referred to in the preamble of this act, * * * to keep a ferry or ferries at and from any point or points on said land, across the Mississippi river to St. Louis. in the state of Missouri, and use and enjoy all the rights, privileges, franchises, and emoluments recited in the preamble of this act as having been heretofore granted to the said Samuel Wiggins, his heirs and assigns.

'Sec. 7. * * * Provided, that nothing in this act contained shall be construed to create any private right so as to interfere with the powers of any existing municipal corporation, or with the right of the legislature, at any time hereafter, to create municipal corporations within the limits herein specified, and to confer upon said corporations all such powers of police * * * as may be usually or properly confided to a city corporation under the constitution of Illinois.' The authority to pass the ordinance under which the plaintiff claimed license money from the defendant was its charter, passed in 1869, which empowered it 'to regulate, tax, and license ferry-boats.' 1 Priv. Laws Ill. 1869, p. 893.

Upon these facts the court found the issues for the plaintiff, and assessed its damages at $1,600, for which sum it rendered judgment against the defendant.

The case was taken by the appeal of defendant to the appellante court of the fourth district of Illinois, by which the judgment of the city court of East St. Louis was affirmed. The defendant then carried the case, by appeal, to the supreme court of Illinois, by which the judgment of the appellate court was affirmed.

To obtain a reversal of this judgment of the supreme court, the defendant has brought the case to this court by writ or error.

H. P. Buxton, for plaintiff in error.

M. Millard and J. M. Fuels, for defendant in error.

WOODS, J.


text: Talk:Wiggins Ferry Co v. City of East St. Louis

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text:
Wiggins Ferry Co v. City of East St. Louis/Opinion of the Court

The first contention of the plaintiff in error is that the fourth section of the act of 1819, which declared that the Wiggins ferry should be subject to the same taxes as were then or might thereafter be imposed on other ferries within the state, and under the same regulations and forfeitures, and the charter of the Wiggins Ferry Company, which authorized said company to use and enjoy the ferry franchise granted to Samuel Wiggins, and to use and enjoy all the rights, privileges, and emoluments recited in the preamble of the act as having been granted to Wiggins, and his heirs and assigns, constituted a contract between the ferry company and the state, by which the power to tax the ferry company was limited to the imposition of the same taxes as were then or might thereafter be imposed on other ferries within the state; and that the charter of the city of East St. Louis, which authorized the city to regulate, tax, and license ferry-boats, and the ordinance of the city imposing a license tax on the ferry-boats of the company, impaired the obligation of the contract, and was therefore unconstitutional and void.

We are of opinion that the charter of the company cannot be so construed as to exempt it from any taxation which the state might itself see fit to impose, or authorize to be imposed, by the city of East St. Louis.

It is a rule of interpretation that every grant from the sovereign authority is, in case of ambiguity, to be construed strictly against the grantee and in favor of the government. Charles River Bridge v. Warren Bridge, 11 Pet. 420; Mills v. St. Clair Co. 8 How. 569; Attorney General v. Boston, 123 Mass. 460.

This rule has been frequently applied by this court in cases where exemption from taxation was set up by corporations under the provisions of their charters. In ''Phila. & Wil. R. Co. v. Maryland'', 10 How. 376, it was declared that 'the taxing power of a state is never presumed to be relinquished unless the intention to relinquish is declared in clear and unambiguous terms;' and in Jefferson Branch v. Skelly, 1 Black, 436, it was said that 'the language of this court has always been cautious and affirmative of the right of the state to impose taxes, unless it has been relinquished by unmistakable words, clearly indicating the intention of the state to do so.'

So in Railroad Co. v. Commissioners, 103 U.S. 1, the chief justice, speaking for the court, declared: 'Grants of immunity from taxation are never to be presumed. On the contrary, all presumptions are the other way, and unless an exemption is clearly established all property must bear its just share of the burdens of taxation. These principles are elementary and should never be lost sight of in cases of this kind.' To the same effect see Railroad Co. v. Gaines, 97 U.S. 708.

So in Bank v. Tennessee, 104 U.S. 493, this court declared, speaking by Mr. Justice FIELD: 'That statutes imposing restrictions upon the taxing power of a state, except so far as they tend to secure uniformity and equality of assessment, are to be strictly construed is a familiar rule. Against the power nothing is to be taken by inference or presumption. When a doubt arises as to the existence of the restriction it is to be decided in favor of the state.' If any serious doubt could arise concerning the interpretation of section 4 of the act of 1819, which the plaintiff in error contends was incorporated as a provision of its charter, the authorities cited would settle that doubt in favor of the right of the city of East St. Louis to impose the license tax complained of.

But we are of opinion that the meaning of the section is not doubtful. The ferry of Wiggins had only one of its landings in the state of Illinois; the other was in the state of Missouri. The evident purpose of the section was to prevent the ferry, by reason of that circumstance, from escaping the same burdens of taxation as were imposed on ferries entirely within the state, and not to limit the taxing power of the legislature. It declares that the ferry of Wiggins shall be subject to the same taxes which were then or might thereafter be imposed on other ferries within the state, and under the same regulations and forfeitures, but it does not intimate that the state shall not impose on it such other taxes within its constitutional power as to it may seem fit.

The most favorable construction for the plaintiff in error that could be placed upon its charter is that it provided for equality of taxation; that is to say, that the property of the ferry company should be valued and taxed by the same rule as other like property, and that the same exactions and forfeitures only as were imposed on like property, similarly situated, should be imposed on it. It certainly cannot be contended that its ferry on one of the great arteries of commerce, crossing the Mississippi river, and having each of its landings in a city, should only pay the same identical taxes and license fees as a country ferry over an inconsiderable stream. All that could be reasonably claimed under its charter is that it should be subjected to no higher state and municipal taxation and no greater license fees than other like property similarly situated. Giving the charter this construction, the plaintiff in error has no ground for complaint. It is not shown that the state and county taxation bears unequally on the ferry company. The ordinance of the city of East St. Louis makes no discrimination in favor of any other ferry similarly situated which it is authorized to regulate, tax, and license. The same license fee is exacted of all keepers of ferries within the corporate limits as are imposed upon the plaintiff in error.

But the contention of the plaintiff in error seems to be that, under the terms of its charter, it is exempted from the imposition by the city of East St. Louis of any license fee whatever. So far from this being the fact, the charter, by the proviso to section 1, expressly reserved the power of any existing municipal corporation, or any that might be thereafter created within the limits of the ferry company's lands, to exercise all such powers of police as might be properly conferred on a city corporation. The power to license is a police power, although it may also be exercised for the purposes of raising revenue. We cannot say, as a matter of law, that when a municipal corporation is authorized 'to regulate, tax, and license ferry-boats,' the imposition of a license fee of $100 per boat is not within the power to regulate and license, and is consequently not within the police power.

It follows, therefore, that the ordinance of the city of East St. Louis and the charter of the city, by which the ordinance is authorized, do not impair the obligation of any contract between the ferry company and the state.

The next question presented by the assignments of error relates to the power of the state to impose a license fee either directly or through one of its municipal corporations upon the keepers of ferries living in the state, for boats owned by them and used in ferrying passengers and goods from a landing in the state, across a navigable river, to a landing in another state. It is insisted by the plaintiff in error that such an exaction is forbidden by the constitution of the United States, (1) because it is a regulation of commerce between the states and therefore, within the exclusive power of congress; and (2) because it is a duty of tonnage, which the state are forbidden by the constitution to lay without the consent of congress.

In our opinion neither of these contentions is well founded. The levying of a tax upon vessels or other water-craft, or the exaction of a license fee by the state within which the property subject to the exaction has its situs, is not a regulation of commerce within the meaning of the constitution of the United States. Gibbons v. Odgen, 9 Wheat. 1: The Passenger Cases, 7 How. 283; Morgan v. Parham, 16 Wall. 471. In Gibbons v. Ogden it was settled that the clause of the constitution conferring on congress the power to tax, and the clause regulating and restraining taxation, are separate and distinct from the clause granting the power to congress to regulate commerce. In all of the cases just cited the right of a state to tax a ship owned by one of her citizens and having its situs within the state, although used in foreign commerce or in commerce between the states, was distinctly recognized. Thus, in The Passenger Cases, it was said by Mr. Justice McLEAN:

'A state cannot regulate foreign commerce, but it may do many     things which more or less affect it. It may tax a ship or     other vessel used in commerce the same as other property      owned by its citizens. A state may tax the stages in which     the mail is transported, but this does not regulate the      conveyance of the mail any more than taxing a ship regulates      commerce; and yet, in both instances, the tax on the property      in some degree affects its use.'

In the case of ''Transp. Co. v. Wheeling'', 99 U.S. 273, this court sustained a tax levied by the city of Wheeling upon steam-boats used in navigating the Ohio river between that city and Parkersburgh, and the intermediate places on both sides of the river in the states of West Virginia and Ohio, the company whose property the boats were having its principal office in Wheeling.

The exaction of a license fee is an ordinary exercise of the police power by municipal corporations. When, therefore, a state expressly grants to an incorporated city, as in this case, the power 'to license, tax, and regulate ferries,' the latter may impose a license tax on the keepers of ferries, although their boats ply between landings lying in two different states, and the act by which this exaction is authorized will not be held to be a regulation of commerce.

And in the case of Fanning v. Gregoire, 16 How. 534, it was declared by this court, speaking of the charter of Fanning to ferry across the Mississippi river at Dubuque, that the exercise of commercial power by congress did not interfere with the police power of the states in granting ferry licenses.

In the case of Conway v. Taylor's Ex'rs, 1 Black, 603, Mr. Justice SWAYNE, speaking for the court, in reference to a ferry established across the Ohio river, between the states of Ohio and Kentucky, declared that the power to establish and regulate ferries did not belong to congress under the power to regulate commerce, but belonged to the states, and lay within the scope of that immense mass of undelegated powers reserved by the constitution to the states.

The authorities cited settle beyond controversy that the ordinance of the city of East St. Louis, imposing upon the keepers of ferries within its limits, and the act of the legislature by which such ordinance was authorized, do not invade the exclusive power of congress to regulate commerce conferred on it by the constitution.

It is next insisted by plaintiff in error that the license fee exacted by the ordinance of the city of East St. Louis is a tonnage tax, which the states are forbidden to lay without the consent of congress. This contention has no ground to rest on. In the first place, the license fee is levied, not on the ferry-boat, but on the ferry-keeper. The first section of the ordinance declares that no person shall carry on any trade, business, calling, or profession thereinafter mentioned without having first obtained a license therefor, and the ordinance, after having enumerated many other trades and callings, and fixed the license fee for carrying them on, declares, in section 10, that keepers of ferries shall pay $100 license fee for each boat plying between the city and the opposite bank of the river.

The power of the state of Illinois to authorize any city within her limits to impose a license tax on trades or callings generally, especially those which are quasi public, cannot be disputed. Draymen may be compelled to pay a license tax on every dray owned by them, hackmen on every hack, tavern-keepers on their taverns in proportion to the number of the rooms which they keep for the accommodation of guests. We do not think that the constitution of the United States, by the section which prohibits a state from laying a duty of tonnage, protects the keeper of a ferry from a similar tax upon the boats which he employs. Whether a license fee is exacted under the power to regulate or the power to tax is a matter of indifference if the power to do either exists. The license fee exacted is, in effect, laid upon the business of keeping a ferry, for it is not laid upon all boats owned by the ferry-keeper, but only on those plying between the two banks of the river, and is graduated by the number of boats used by him. The exaction of this license fee is identical in kind with the imposition upon a proprietor of hacks and express wagons of a specified sum for every vehicle owned by him and used in carrying passengers or baggage and merchandise from East St. Louis to the city of St. Louis, by way of the bridge connecting those cities.

In the second place, the amount of the license fee is not graduated by the tonnage of the ferry-boats. It is the same whether the boats are of large or small carrying capacity. This, although not a conclusive circumstance, (Steam-ship Co. v. Port Wardens, 6 Wall. 34,) is one of the tests applied to determine whether a tax is a tax on tonnage or not, (The State Tonnage Tax Cases, 12 Wall. 212; Peete v. Morgan, 19 Wall. 581; Cannon v. New Orleans, 20 Wall. 577.) If the same license fee had been exacted of the keeper of a ferry across a navigable stream entirely within the state of Illinois,-Chicago river, for instance,-it would scarcely be contended that it fell within the constitutional prohibition. The fact that in this case the ferry crosses a river which divides two states cannot change the nature of the exaction.

As we have already said, the burden imposed by the ordinance is not measured by the tonnage of the ferry-boats; it is not measured by the number of times they cross the Mississippi river or land at the city of East St. Louis. We are of opinion, therefore, that it is not a duty of tonnage, nor is it in its essence a contribution claimed for the privilege of using a navigable river of the United States, or of arriving or departing from one of its ports, and is therefore not prohibited by the constitution of the United States.

Counsel for plaintiff in error contend that if the power of the city of East St. Louis to exact a license fee of $100 from every ferry-boat is conceded, the city could double or treble the fee at will. It is sufficient to say, in reply to this, that it does not follow from the fact that a power is liable to abuse, that it does not exist. If the power is abused, the remedy is with the legislature.

Lastly, it is contended by the plaintiff in error that the fact that the boats of the ferry company have been enrolled, inspected, and licensed under the laws of the United States, is a protection against the exaction of any license fee by the state or by its authority.

In the case of Gibbons v. Ogden, ubi supra, it was said by the court that inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc., are parts of the immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government. In the subsequent case of Conway v. Taylor, ubi supra, this court, relying as authority on the declaration just cited, held that the fact that Conway had caused his ferry-boat to be enrolled and licensed, under the laws of the United States, at the custom-house in Cincinnati, to carry on the coasting trade, did not authorize him to carry on the business of a ferry between Cincinnati and Newport, Kentucky, in disregard of the rights of Taylor, who had an exclusive license from the authorities of the state of Kentucky to ferry from the Kentucky to the Ohio side of the river.

The power of congress to require vessels to be enrolled and licensed is derived from the provision of the constitution which authorizes it 'to regulate commerce with foreign nations and among the several states.' We have already seen that this court, in Fanning v. Gregoire, ubi supra, has held that this right of congress 'does not interfere with the police powers of a state in granting ferry licenses.' These authorities show that the enrollment and licensing of a vessel under the laws of the United States does not of itself exclude the right of a state to exact a license from her own citizens on account of their ownership and use of such property having its situs within the state.

Counsel have argued other assignments, based on the construction given by the supreme court of Illinois to the constitution and laws of the state. As, in our opinion, all the federal questions presented by the record were rightly decided by that court, it is not our province to consider these assignments. Murdock v. City of Memphis, 20 Wall. 590.

We find no error in the record. The judgment of the supreme court of Illinois must, therefore, be affirmed.


text: Talk:Wiggins Ferry Co v. City of East St. Louis/Opinion of the Court


text:
Omaha Hotel v. Kountze Kountze

John J. Redick, for Omaha Hotel Company.

''Geo. E. Pritchett and J. S. Black'', for Sylvanus Wright.

J. M. Woolworth, for Kountze and others.

BRADLEY, J.

title: Omaha Hotel v. Kountze Kountze


text: Talk:Omaha Hotel v. Kountze Kountze

title: Talk:Omaha Hotel v. Kountze Kountze


text:
Omaha Hotel v. Kountze Kountze/Opinion of the Court

This is an action on an appeal bond given for supersedeas of execution on a decree of foreclosure rendered by the circuit court for the district of Nebraska, and appealed to this court and affirmed; and the question is as to the measure of damages to be recovered on said bond.

The foreclosure suit was brought to raise the amount due on certain bonds of the Omaha Hotel Company out of certain land and premises situated in the city of Omaha, which had been mortgaged by the company to secure the payment thereof. A decree was made on the eighth of May, 1875, by which it was ordered that the mortgaged premises be sold and the proceeds applied to pay the debt, after paying costs of sale and insurance and taxes accruing in the mean time. The defendants appealed, and to obtain supersedeas of execution gave the appeal bond which is the subject of the present controversy. The bond was in the penalty of $50,500, and after reciting the decree and appeal was conditioned as follows:

'Now, the condition of the said obligation is such that if     the said Omaha Hotel Company shall duly prosecute said appeal      to effect, and pay said Jeptha H. Wade, James W. Bosler,      Thomas Wardell, John A. Creighton, administrator of the      estate of Edward Creighton, deceased, Andrew J. Poppleton,      Augustus Kountze, Herman Kountze, and Henry W. Yates, their      executors, administrators, or assigns, for the use and      detention of the property covered by the mortgage in      controversy in this suit, during the pendency of said appeal,      and the costs of the suit, and just damages for delay, and      costs and interest on said appeal, if it fails to make good      its plea, this obligation shall be void; otherwise to remain      in full force and virtue.'

The decree being affirmed and the premises sold, the proceeds were found to be insufficient to satisfy the debt, to the amount of $88,480.85; and for this deficiency a decree was rendered against the Omaha Hotel Company, and an execution issued, which was returned unsatisfied. Thereupon the present suit was brought on the appeal bond, and the plaintiffs by their petition claimed the entire penalty and interest on the facts above stated and on the ground that the company was insolvent; that, pending the appeal, the property had depreciated in value $30,000; and that the use and detention of it was worth $30,000 more. The defendants, in their answer, averred that they had kept the property in good repair at a large expense, had paid all the taxes upon it, and had kept it insured for the benefit of the bondholders to the amount of $100,000; and that instead of depreciating, it was worth much more when the sale was made than it was at the time of the original decree. The jury, by a special verdict, found that the rental value of the property, pending the appeal, with interest to the time of trial, was $44,838,67, and that the expenses paid by the defendants for taxes, insurance, and repairs, with interest thereon, was $26,082,71; that the value of the property in May, 1875, was $92,500, and in April, 1878, $139,000; that in May, 1875, it would have sold at master's sale for $62,000, [whereas it sold in 1878 for $120,000;] that the interest on the decree pending the appeal was $58,870.25; and that the penalty of the bond, with interest from July 11, 1878, to the time of the trial, amounted to $57,750; and that the costs of the original suit unpaid by the defendants was $530. The court rendered judgment in favor of the plaintiffs for $19,735.93, being the difference between the rental value of the property pending the appeal, and the sums expended by the defendants for taxes, insurance, and repairs, allowing interest on both sides; with the addition of the item of $530 costs unpaid by the defendants, and interest from the time of trial to the date of the judgment. Both parties brought writs of error.

The plaintiffs now contend that they ought to have had judgment for the entire penalty of the bond, because-First, the bond expressly provides that the Omaha Hotel Company shall pay for the use and detention of the property pending the appeal, as well as costs and just damages for delay, which greatly exceeds the penalty; secondly, if the bond is to be limited in effect to the terms of the statute prescribing a bond, the damages are still greater than the penalty, its legal effect being to secure, to the extent of the penalty, (1) payment of the whole decree beyond what may be produced by the sale of the property; (2) the interest accruing pending the appeal, which alone exceeds the penalty; (3) the value of the use and detention of the property pending the appeal.

The defendants contend that judgment should have been given for them.

The appeal bond sued on in this case was given under the requirement of section 1000 of the Revised Statutes, which declares that every justice or judge signing a citation or any writ of error shall, except in cases brought up by the United States, etc., take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid. Section 1007 gives the effect of a supersedeas to a writ of error where such a bond as above described is given, and the writ is sued out and filed in proper time. Section 1010 declares that where judgment is affirmed the court shall adjudge to the respondent in error just damages for his delay, and single or double costs at its discretion. Section 1012 declares that appeals from the circuit courts, etc., shall be subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error.

These enactments are substantially a reproduction of like clauses in the judiciary act of 1789, as regards writs of error, and of the act of 1803, as regards appeals. The material words are the clause in the bond which declares 'that the plaintiff in error [or appellant] shall prosecute his writ to effect, and if he fail to make his plea good, he shall answer all damages and costs.' The scope and effect of this phrase, as applied to cases like the present, are the principal point in controversy. The bond sued on has an additional phrase not required by the law, the effect of which will be separately considered.

By the common law a writ of error, without any security, was of itself a supersedeas of execution from the time of its allowance or recognition by the court to which it was directed; and even before, if the defendant in error had notice of it; or, in the common pleas, from the time of its delivery to the clerk of the errors of that court, whose business it was, among other things, to prepare the returns. 1 Tidd, Pr. 530, 1145; Impey, Pr. C. P. 16; Petersd. Abr. tit. 'Error, I, (H a.)' The presentation of the writ issuing from the superior court stopped all further proceedings except such as were incidental to a compliance with its command to certify the record. But, as writs of error came to be sued out for the purpose of delay, various acts of parliament were passed, requiring security in certain cases, in order that the writ might operate as a supersedeas. First, without referring to a statute in the time of Elizabeth, the statute of 3 James I. c. 8, declared that no execution should be stayed or delayed upon or by any writ of error, or supersedeas thereon, for the reversing of any judgment in debt upon a single bond, or a bond with condition for the payment of money only, or in debt for rent, or upon any contract, unless the plaintiff in error, with two sufficient sureties, should first be bound to the plaintiff in the judgment, 'by recognizance, in double the sum recovered by the former judgment, to prosecute the writ of error with effect, and also to satisfy and pay, if the said judgment should be affirmed, or the writ of error non-prossed, all and singular the debts, damages, and costs adjudged upon the former judgment, and all costs and damages to be awarded for the delaying of execution.' This statute was specific as to the cases in which bail in error (as it was called) was required, and it was frequently held that it could not be required in any other cases. 2 Sellon, Pr. 367-374; 2 Tidd, 1150. Subsequently, by the statute of 13 Car. II. c. 2, as enlarged by 16 & 17 Car. II. c. 8, the same recognizance was required to stay execution in all personal actions in which a judgment was rendered upon a verdict, and in most cases double costs were given in case the judgment was affirmed; and in writs of error upon judgment, after verdict in dower and ejectment, it was provided that execution should not be stayed unless the plaintiff in error should be bound to the plaintiff in such reasonable sum as the court below should think fit, with condition that if the judgment should be affirmed, or the writ of error discontinued, in default of the plaintiff in error, or he should be nonsuited therein, that then he should pay such costs, damages, and sum or sums of money as should be awarded upon or after such judgment affirmed, discontinuance, or nonsuit; and to ascertain the sum and damages to be awarded, it was provided that the court should issue a writ of inquiry as well of the mesne profits as of the damages by any waste committed after the first judgment in dower or ejectment, and give judgment therefor and for costs. This was the form in which the law stood for more than a century prior to our revolution, and is believed to have generally prevailed in this country, either by force of the English statutes, or similar statutes adopted by the colonies themselves, down to the time of the passage of the judiciary act by congress in 1789. See 1 Rev. Laws N. Y. (1813,) p. 143, Act of 1801; Acts of New Jersey, Feb. 1, 1799, and Feb. 28, 1820, Elmer's Dig. 159, 169; Act of Maryland, 1713, c. 4, 1 Kilty's Laws; and Alexander's British Statutes in force in Maryland, 16 & 17 Car. II. c. 8. In Virginia, by the act of 1788, it was provided that before granting any appeal from a county to a district court, or issuing any writ of error or supersedeas, the party praying the same should enter into bond with sufficient security, in a penalty to be fixed by the court or judge, with condition to pay the amount of the recovery, and all costs and damages awarded, in case the judgment or sentence should be affirmed; and the damages were fixed at 10 per cent. per annum upon the principal sum and costs recovered in the inferior court; and the same provisions were applied to appeals and writs of error to the court of appeals. By the act of 1794, on appeal from a decree in equity to the high court of chancery, the condition of the appeal bond required was to satisfy and pay the amount recovered in the county court, and all costs, and to perform in all things the decree, if the same should be affirmed. Laws Va. (Ed. 1814,) pp. 115, 87, 448. In Massachusetts, as appears by an early case, (1804,) a supersedeas was granted upon the plaintiff in error giving bond to respond all damages and costs in case the judgment should be affirmed. Bailey v. Baxter, 1 Mass. 156. In Pennsylvania, where the judgment was affirmed upon a writ of error, the execution included the interest from the date of the original judgment. Respublica v. Nicholson, 2 Dall. 256.

It is thus seen that, in the case of money judgments, bail in error was required to secure (1) the amount of the original judgment; (2) the costs and damages occasioned by the delay of execution; and, in the case of dower and ejectment, the only other cases in which bail was required, and where the main thing in controversy was land, bail was required to secure only such costs, damages, and money as should be awarded after affirmance of judgment, for mesne profits and waste pending the appeal.

In relation to money judgments, a long train of decisions in England shows that the damages for delay for which the bail in error were to respond were the interest on the sum recovered below from the day of signing final judgment to the time of affirmance, and costs in the writ of error, and in some cases double costs. In the exchequer chamber, when double costs were recoverable, the court exercised its discretion whether to allow interest or not, it not being allowed as a matter of course; but interest was only allowed where the original demand was one that drew interest, and not in cases of mere tort or unliquidated damages. Tidd, 1182, 1183. In the house of lords, they gave large or small costs in their discretion, according to the nature of the case, and the reasonableness or unreasonableness of litigating the judgment of the court below. Id. 1184.

We have no reason to believe that the rule of damages for delay on a recognizance, or bond in error, was materially different in this country, in 1789, from that which prevailed in England. The statutes being substantially the same, undoubtedly the same rule prevailed in administering them.

On appeals in chancery the practice in England, in case of an appeal from the master of the rolls to the lord chancellor, was for the party appealing to deposit £10, to be paid to the other party if the decree was not materially varied, and he was also required to pay the costs of the appeal; and on appeal from the court of chancery to the house of lords, the appellant was obliged to make a deposit of £20, and give security by recognizance in the sum of £200, to pay such costs to the defendant in the appeal as the court should appoint, in case the decree should be affirmed. Harr. Ch. Pr. (Ed. Newland,) 342, 349. In 1810 these amounts were doubled. Smith, Ch. Pr. 27, 44. If a party wished to file a bill of review, the general rule was, that he must perform the decree before filing his bill.

Such being the rules prevailing on the subject when the act of 1789 was passed, which required the plaintiff in error to give security 'to prosecute the writ of error to effect, and to answer all damages and costs if he failed to make his plea good,' the extremely general terms of the law are noticeable. According to the English law, the terms 'all damages and costs,' would only cover the damages for delay, security for the original judgment being expressly provided for by separate words; but the act of congress does not say 'damages for delay,' but generally 'all damages and costs,' without any specific provision for the original judgment; and the bond is required in all cases, and not merely on error to money judgments and judgments in dower and ejectment; and not merely in cases at law, but in cases of equity also; for the writ of error was the process of review prescribed by the judiciary act both at law and in equity; and when appeals were allowed in the latter by the act of 1803, they were subjected to the same rules and conditions as writs of error. The only guide, or hint of guidance, given by the judiciary act as to what damages were to be awarded on a bond in error, other than what might be deduced by analogy from the English and state laws, is an expression contained in the twenty-third section, where it is said that if, upon a writ of error, the supreme or circuit court shall affirm a judgment or decree, they shall adjudge or decree to the respondent in error just damages for his delay, and single or double costs at their discretion. So that, as the result of the whole, the matter was left very much at large, and subject to the regulation of the courts, and such analogies as existing laws afforded.

By an act passed December 12, 1794, (1 St. 404,) it was declared that the security to be required on signing a citation on a writ of error which shall not be a supersedeas and stay execution, shall be only to such an amount as, in the opinion of the judge taking the same, shall be sufficient to answer all such costs as, upon an affirmance of the judgment or decree, may be adjudged or decree to the defendant in error. The substance of this act is reproduced in the Revised Statutes; but it sheds no light on the question of damages as distinguished from mere costs.

The supreme court at an early day (February term, 1803) adopted the two following rules:

(1) In all cases where a writ of error shall delay the     proceedings on the judgment of the circuit court, and shall      appear to have been sued out merely for delay, damages shall      be awarded at the rate of 10 per centum per annum on the      amount of the judgment.

(2) In such cases where there exists a real controversy, the     damages shall be only at the rate of 6 per centum per annum. In both cases the interest is to be computed as part of the     damages.

The latter rule was changed in 1852, when by an amended rule, still in force, on affirmance of a judgment, interest was directed to be calculated and levied from the date of the judgment below until paid, at the same rate that similar judgments bear interest in the courts of the state where the judgment was rendered. 13 How. v. The other rule was amended in 1871, giving 10 per cent. damages in addition to interest, when the writ of error appears to be sued out merely for delay. 11 Wall. x. And both rules were extended to appeals from decrees in chancery for the payment of money in 1852. ,13 How. v.

These rules may undoubtedly be regarded as prescribing the measure of damages for delay in the cases in which they apply; that is, in the case of money judgments and decrees. But whether the bond in error covered the original debt was not distinctly decided until the case of Catlett v. Brodie, 9 Wheat. 553, came before the court. In that case judgment was rendered for the plaintiff below for a large sum, but the judge who singed the citation took a bond in a small amount to respond the damages and costs. On a motion to dismiss the writ of error for insufficiency of the bond, it was contended for the plaintiff in error that the act meant only to provide for such damages and costs as the court should adjudge for the delay. But the court held that the word 'damages' covered whatever losses the plaintiff might sustain by the judgment not being satisfied and paid after the affirmance; in other words, that the bond in error had the same effect as the recognizance required by the English statutes, and was intended to secure payment of the original judgment, as well as the damages for delay. Hence, the bond should have been taken in an amount sufficient to secure the whole debt; and it was ordered that the writ of error should be dismissed, unless, within 30 days from the rising of the court, the plaintiff in error should give a bond sufficient in amount to secure the whole judgment.

In Stafford v. Union Bank of Louisiana, 16 How. 135, though no decision was made, because the case was not properly before the court, an opinion was delivered by Justice Mc,LEAN, as for the court, that the same rule would apply in case of an appeal from a decree in equity for the sale and foreclosure of certain negroes who had been delivered to a receiver pendente lite; and that the bond should have been to secure the whole mortgage debt. Justice CATRON dissented from this view, holding that where there was a fund in the possession of the court, no security to cover its contingent loss should be required; and that to construe the act as if this were a simple judgment at law would operate most harshly.

In accordance with the suggestion made by the court, application was made for a mandamus to the judge below, to compel him to cause the decree to be carried into execution notwithstanding the appeal. On a rule to show cause the judge returned the facts as above stated, and that he had no power to take further order in the case. But the court, deeming the appeal bond insufficient to operate as a supersedeas, granted the mandamus. 17 How. 275.

Subsequent decisions have undoubtedly modified the rule followed in this case, and, indeed, have overruled it, and are more in accordance with the views expressed by Justice CATRON.

In Roberts v. Cooper, 19 How. 373, which was an action of ejectment for the recovery of mining lands, the plaintiff having recovered the land with only nominal damages, a writ of error was brought by the defendant, who was required to give a bond for only $1,000. The plaintiff applied to this court for an order requiring additional security, producing affidavits to show that the damages which he would sustain by the delay in working the mine, caused by the supersedeas, would exceed $25,000. The court refused the motion; and said that if it were a money demand, on which a sum certain had been given by a judgment, it would have been the duty of the judge to take care that good security was given; but that in ejectment, where only nominal damages are recovered, the court cannot interfere to enlarge the security to recover damages which a plaintiff may recover in an action for mesne profits, or other losses he will sustain by being kept out of possession. The court held that the case was not provided for by any legislation of congress, as had been done in England by the statute of 16 & 17 Car. II. c. 8.

In the Rubber Co. v. Goodyear, 6 Wall. 153, the subject again came before this court on a question as to the amount of security required upon appeal from a personal decree in equity, where a portion of the amount had been secured by a deposit in court. The decree was for over $300,000, and the judge following the usual practice required a bond in double the amount of the decree. The defendants, as security for the claim, had deposited in the court below government bonds to the amount of $200,000. On a motion in this court to reduce the amount of the bond, the court reduced it to $225,000. Chief Justice CHASE, delivering the opinion of the court, said: 'It is not required that the security shall be in any fixed proportion to the decree. What is necessary is that it be sufficient.'

From the amount involved in this case, and the eminence of the counsel engaged in it, it was no doubt carefully considered. After its determination, the court made a general rule as to the amount of indemnity required in supersedeas bonds, which now stands as the twenty-ninth rule of the court. This rule declares that 'such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including just damages for delay and costs and interest on the appeal; but in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages; or where the property is in the custody of the marshal, under admiralty process, as in case of capture or seizure; or where the proceeds thereof, or a bond for the value thereof, is in the custody or control of the court,-indemnity in all such cases is only required in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit, and just damages for delay, and costs and interest on the appeal.'

Since the adoption of this rule, the matter has come up for consideration in several cases. In French v. Shemaker, 12 Wall. 86, where the matter in controversy was the possession of a railroad, the interest of the defendant in which had been pledged as security for $5,000, and which was in the hands of a receiver, upon a decree for the complainant, and an appeal, the bond taken for a supersedeas was in the penalty of $500, and this court, after reciting the rule, held that nothing appeared to show that the bond was insufficient.

In Jerome v. McCarter, 21 Wall. 17, an appeal was taken from a decree of over a million of dollars for the foreclosure and sale of a canal, subject to a prior lien of over a million and a half of dollars. The canal company had become bankrupt, and the assignees in bankruptcy brought the appeal. The appeal bond required of them was $10,000; and motion was made in this court to have the amount of security increased. The court after reviewing the previous cases, and adverting to the twenty-ninth rule, refused the motion, holding that the amount of security in such a case was in the discretion of the judge who took the bond, and that this court would not interfere with that discretion, unless there had been a change of circumstances requiring additional security. The chief justice said: 'This is a suit on a mortgage, and therefore, under this rule, a case in which the judge who signs the citation is called upon to determine what amount of security will be sufficient to secure the amount to be recovered for the use and detention of the property, and the costs of the suit, and just damages for the delay, and costs and interest on the appeal. All this, by the rule, is left to his discretion.' It being contended that the judge had disregarded the established rule, to require security for the interest accruing pending the appeal, which in that case would amount, on the debt due to the complainant and on the prior liens, to more than half a million of dollars, the court held that this is not the requirement of the rule; that the object is to provide indemnity for the loss by the accumulation of interest consequent upon the appeal, not for the payment of the interest; and that, as to this, the judge must determine. It was added that the decree did not interfere with an action at law against the company, if it were not bankrupt, nor with proving the claim in bankruptcy, and obtaining a dividend, since it was bankrupt.

So far as the point decided in this case goes, it determines that on an appeal from a decree for the foreclosure of a mortgage, the appeal bond is not intended as security for either the amount of the decree or the interest accruing pending the appeal, but for such damage as may arise from the delay incident to the appeal; and although it is intimated that this damage may depend upon the use and detention of the mortgaged property, yet that was not the point in judgment.

In Ex parte French, 100 U.S. 1, (an ejectment case,) the bond being amply sufficient to cover the damages, or mesne profits, recovered in the court below, this court refused to interfere, by a mandamus, to compel the court below to proceed to execution. The chief justice said:

'In this view of the case the bonds are sufficient in amount     and form. So far as the money parts of the judgment are     concerned, they are far in excess in each instance of the      amount recovered against the several defendants who seek the      stay; and as to the damages on account of the detention of      the property, we decided in Jerome v. McCarter that the      amount of the bond rested in the discretion of the judge or      justice who signed the citation, or allowed the supersedeas,      and would not be reconsidered here.'

In this case the court did look to see whether the bond was sufficient to cover the mesne profits or damages recovered below; but declined to examine into its sufficiency to secure the mesne profits accruing pending the proceedings in error, leaving that to the discretion of the judge. The case decides nothing as to whether such mesne profits would be recoverable under the bond or not. By the English statute of 16 & 17 Car. II. c. 8, as we have seen, they would be so recoverable; but in Roberts v. Cooper, before cited, it was held that our statute does not provide for the case.

The last case to which we shall refer is that of Sup'rs Wayne Co. v. Kennicott, 103 U.S. 554. There the county had given a mortgage upon its swamp lands to secure an issue of bonds by the Mount Vernon Railroad Company. This mortgage was foreclosed, and the lands were decreed to be sold to raise the amount due, which was ascertained by the decree. The county appealed, and a supersedeas bond of $40,000 was required to be given. The decree being affirmed by this court, a suit was brought on the appeal bond, and judgment was given against the county for the whole penalty. The judgment was brought here by writ of error, and reversed on the ground that no damages had been shown which could be recovered on the bond. The damages set up by the plaintiffs were, (1) the interest on the debt which accrued pending the appeal, which exceeded the penalty of the bond; (2) the balance of the debt which remained unsatisfied after the lands were sold, which largely exceeded the bond. We held that neither of these items could properly be assigned as damages within the meaning of the condition of the appeal bond. In that case, as was observed by the court, no claim was made for the use and detention of the lands pending the appeal, except in the way above stated. The debt was not the debt of Wayne county, and no damage could have resulted from the stay of execution except the delay in the sale, as no personal judgment could have been rendered against the county for the debt, and of course no execution could have been issued against it.

This case does not decide the precise question now before us, because there was no party before the court who was personally liable for the debt, and no claim was made for intermediate rents and profits, or for use and detention of the land.

In view of the authorities, therefore, as far as they go, if the bond in the present case is to be regarded as importing nothing more than the bond prescribed by the statute, it is clear that it did not operate as security for the original decree, nor for the interest which accrued pending the appeal; nor, by consequence, for the balance of these amounts, or either of them, after applying the proceeds of the mortgaged property. The item of $530 costs unpaid by the defendants in the original foreclosure suit, come under the same head, being part of the original decree, to pay which the lands were ordered to be sold. The only ground of recovery upon the bond could be, (1) the depreciation of the property in market value pending the appeal; or (2) its deterioration by waste, or want of repair, or the accumulation of taxes or other burdens; or (3) the use and detention of the property pending the appeal,-that is, the rents and profits; or (4) the nonpayment of the costs of the appeal, which accrued in this court; but the special verdict does not find that these costs were unpaid.

If depreciation in market value can ever be laid as cause of legal damages on a bond in error, (which we greatly doubt,) it cannot be done in this case, because it is found by the special verdict that the property considerably increased in value pending the appeal. Deterioration by waste, etc., is a very different matter; but that is equally out of question in this case, as no deterioration is shown. The defendants paid the taxes and insurance, and kept the property in repair. The principal question for consideration, therefore, is, whether the plaintiffs were entitled to recover the rents and profits, or damages for the use and detention, as it is otherwise called.

We have seen that, even in ejectment, it has at least been questioned by this court whether the bond in error covers rents and profits accruing pending the writ. And yet these is a material difference between the case of ejectment and the suit for the foreclosure of a mortgage. The difference is this: in ejectment the property of the land is in question, and if the plaintiff has the right, he is entitled to immediate possession and to the perception of the rents and profits, which belong to him, and for which the defendant in possession is accountable to him. Every dollar, or dollar's worth, is so much of the plaintiff's property of which he is deprived. And the same is true in dower. But in the case of a mortgage, the land is in the nature of a pledge; and it is only the land itself-the specific thing-which is pledged. The rents and profits are not pledged: they belong to the tenant in possession, whether the mortgagor, or a third person claiming under him. This is not only the common law, but it is the express statute law of Nebraska, which declares that 'in the absence of stipulations to the contrary, the mortgagor retains the legal title and right of possession.' The plaintiff, in this case, was not entitled to possession, nor to the rents and profits. His foreclosure suit did not seek possession, but sought a sale of the specific thing, the land. In such a case, until the litigation is ended, it doth not appear that there must be a sale, or even that the plaintiff is entitled to a sale. The defendant in possession is entitled to redeem the land until a sale is made, and until then he is entitled to the rents and profits, which belong to him, as of right. The taking of the rents and profits prior to the sale does not injure the mortgagee, for the simple reason that they do not belong to him. Waste,-that is, destruction or injury to the land itself,-as before stated, is an injury to the mortgagee. It diminishes the value of the pledge; and for such injury no doubt he might recover on the appeal bond. Other deteriorations, such as occur by want of repairs, accumulation of taxes, fires not covered by reasonable insurance, and the like, probably might also be fairly covered by the bond. But perception of rents and profits is the mortgagor's right until a final determination of the right to sell, and a sale made accordingly.

The mere delay of the sale for the purposes of an appeal does not operate to the legal injury of the mortgagee. It does not suspend execution for the debt; he has no right to such an execution by the decree of foreclosure and sale. It is not a decree against the person, and cannot be enforced by an execution against goods and lands generally. It is simply a decree for the sale of the land mortgaged, in order that the proceeds may be applied to the debt. The amount due is ascertained by the decree, it is true, but only for the purpose of determining the amount of charge on the land. The debt may be prosecuted by a personal action against the debtor, and this may be the defendants in the suit or some other person. The rule of court by which a personal decree may, in some cases, be entered up against the mortgagor for the residue of the debt, after the proceeds arising from the sale of the land have been applied, is a recent rule intended to obviate the necessity of a separate action. It has not changed the essential nature of the decree for foreclosure and sale.

It often happens that the debt is not fully ascertained when a decree for sale and foreclosure is made; as where there are many outstanding bonds which have to be called in and verified. The sale in such cases is frequently made in advance, and the proceeds brought into court for distribution among those who may appear to be entitled thereto; all of which shows that a decree of foreclosure is a very different thing from a personal decree or judgment for the debt.

As it is the specific thing, the land itself, and not the rents and profits, that constitutes the pledge, the delay of sale caused by the appeal, as before said, deprives the mortgagee of no legal right. It may be an incidental disadvantage or inconvenience, but in our judgment it is not a legal damage contemplated by the appeal bond. We are aware that a contrary view has sometimes been taken at the circuit; but upon a full consideration of the subject we have come to the conclusion now expressed. The chances of actual deterioration and waste in certain classes of property are so great that a bond in considerable amount may well be required, and if actual deterioration and waste supervenes, the amount may properly be recovered.

In addition to these general considerations, a careful examination of the twenty-ninth rule will show that in cases like the present it does not, in terms at least, contemplate security for the use and detention of the property pending the appeal. The words are 'indemnity in all such cases [where the property in controversy necessarily follows the event of the suit] is only required in an amount sufficient to secure the sum recovered for the use and detention of the property, and the costs of the suit, and just damages for delay,' etc. 'The sum recovered for use and detention,' here referred to, means the sum recovered in the original judgment or decree, such as damages and mesne profits in ejectment, damages in dower, and replevin, etc., and the phrase 'just damages for delay,' refers to those damages arising from the delay occasioned by the proceedings in error or appeal, which are properly a legal damage to the party delayed. We are thrown back, therefore, to a consideration of the nature of the particular case, to ascertain what those legal damages properly are. The words 'use and detention' do not assist us, as they relate to a cause of recovery in the original judgment.

There is another consideration which relieves the conclusion which we have reached from any supposed hardship or injustice to mortgagees. Courts of equity always have the power, where the debtor is insolvent, and the mortgaged property is an insufficient security for the debt, and there is good cause to believe that it will be wasted or deteriorated in the hands of the mortgagor, as by cutting of timber, suffering dilapidation, etc., to take charge of the property by means of a receiver, and preserve not only the corpus, but the rents and profits for the satisfaction of the debt. When justice requires this course to be pursued, and it is resorted to by the mortgagee, it will give him ample protection. There is no necessity, therefore, in order to protect him from injury, that a party, in order to have the benefit of an appeal, should be obliged to give security to account for the intermediate rents and profits of his own property.

We have devoted so much space to a consideration of the principal question that we must dismiss the other point in a few words. The plaintiffs contend that the bond in terms requires the defendant to respond for the 'use and detention' of the property covered by the mortgage during the pendency of the appeal. As the judge had no authority to require such a condition to be inserted in the bonds, and probably was not aware of its insertion in this case, and as a party ought not to be deprived of his right of appeal upon the terms which the law prescribes, we should be very reluctant to hold that this was a voluntary bond, knowingly entered into beyond the requirements of the statute. We should rather hold that it was drawn by attempting to copy the words of the twenty-ninth rule, instead of following the statute, and inadvertently omitting the connecting words. As an appeal bond, or bond in error, is a formal instrument required by the law and governed by the law, and has, by nearly a century's use, become a formula in legal proceedings, with a fixed and definite meaning, and as the important right of appeal is greatly affected by it, we think that it is not allowable, in practice, by a change in its phraseology, to give to it an effect contrary to what the statute intended. It would be against the policy of the law to allow such deviations and irregularities to creep in. We think the rule followed in some of the states is a sound one, that if the condition of an appeal bond, or bond in error, substantially conforms to the requisitions of the statute, it is sufficient to sustain it, though it contain variations of language; and that if further conditions be superadded, the bond is not, therefore, invalid, so far as it is supported by the statute, but only as to the superadded conditions. See Sanders v. Rives, 3 Stew. (Ala.) 109; Gardener v. Woodyear, 1 Ohio, 170.

We are award, as shown by the citations on the plaintiffs' brief, that official bonds, and bonds given to the government for the purpose of enjoying certain offices or privileges, and perhaps some others subject to like reason, have often been sustained as contracts at common law, voluntarily entered into, where they have not conformed to the statutory requirements, and would have been insufficient and ineffectual for the purposes of a recovery, if those requirements had been applied to them. We do not think that this case fairly belongs to that class of cases. Had the bond now under consideration so entirely departed and varied from the statute that it could not have been sustained with the effect of an ordinary appeal bond, the question would then more properly have arisen, whether, on the one hand, it might not be sustained as a bond at common law, or, on the other, declared utterly void.

Our conclusion is that, as no damage or cause of action appeared by the verdict of the jury, which could authorize a judgment for the plaintiffs, the judgment of the circuit court must be reversed and the cause remanded, with instructions to render judgment for the defendants below.


text: Talk:Omaha Hotel v. Kountze Kountze/Opinion of the Court


text:
Hahn v. United States

H. E. Paine, for appellant.

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

BLATCHFORD, J.

title: Hahn v. United States


text: Talk:Hahn v. United States

title: Talk:Hahn v. United States


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

This case comes before this court on an appeal by the claimant, Emanuel Hahn, from the judgment of the court of claims finding in favor of the United States, and dismissing the petition of the claimant. The following were the material facts found by that court:

'(1) On the thirteenth of June, 1872, the claimant was     appointed surveyor of customs at the port of Troy, New York,      and continued to act as such officer until May 28, 1876. (2)     During that period, from June 13, 1872, to June 22, 1874,      Alonzo B. Cornell was surveyor of customs at the port of New      York to March 31, 1873, and George H. Sharpe from March 31,      1873, to June 22, 1874; Isaac N. Keeler was surveyor of      customs at the port of Albany; and from April 28, 1874, Frank      P. Norton was surveyor of customs at the port of Port      Jefferson; all in the collection district of the city of New      York. (3) There was collected and paid into the treasury of     the United States, from the proceeds of fines, penalties, and      forfeitures incurred at the port of New York, between June      13, 1872, and April 28, 1874, the sum of $839,819.40, and      more, and between April 28 and June 22, 1874, $14,604.11, and      more, after making the deductions required by law; of which      sums, in the distribution made by the secretary of the      treasury, one-fourth part was paid to the collector, naval      officer, and surveyor at the port of New York, as such      officers, and not as informers or seizing officers, and none      thereof was paid to the claimant, which distribution was made      in accordance with the uniform practice of the treasury      department, under the law of March 2, 1867, c. 188, (14 St.      546.) (4) During the same period, between June 13, 1872, and      June 22, 1874, there was paid into the treasury, from fines      incurred at the port of Troy, aforesaid, on persons for not      surrendering licenses of canal-boats, as required by law, the      sum of $1,000, of which, in the distribution thereof by the      secretary of the treasury, one-fourth was paid to the      claimant as informer or seizing officer, and no other share      was allowed to him.'

On these facts the claimant contends that under the provisions of section 1 of the act of March 2, 1867, c. 188, (14 St. at Large, 546,) he was entitled, for the period from June 13, 1872, to April 28, 1874, to share equally with the collector, the naval officer, and two other surveyors in the collection district of the city of New York in the one-fourth part of the said sum of $839,819.40, and thus to recover one-twentienth part of said sum, and for the period from April 28, 1874, to June 22, 1874, to share equally with the collector, the naval officer, and three other surveyors in said collection district, in one-fourth part of said sum of $14,604.11, and thus to recover one twenty-fourth part of said sum.

The statute in question was in these words:

'That from the proceeds of fines, penalties, and forfeitures     incurred under the provisions of the laws relating to the      customs, there shall be deducted such charges and expenses as      are by law in each case authorized to be deducted; and in      addition, in the case of the forfeiture of imported      merchandise of a greater value than $500 on which duties have      not been paid, or in case of a release thereof, upon payment      of its appraised value, or of any fine or composition in      money, there shall also be deducted an amount equivalent to      the duties in coin upon such merchandise, (including the      additional duties, if any,) which shall be credited in the      accounts of the collector as duties received, and the residue      of the proceeds aforesaid shall be paid into the treasury of      the United States, and distributed, under the direction of      the secretary of the treasury, in the manner following,      to-wit: one-half to the United States, one-fourth to the      person giving the information which has led to such seizure,      or to the recovery of the fine or penalty, and if there be no      informer other than the collector, naval officer, or      surveyor, then to the officer making the seizure; and the      remaining one-fourth to be equally divided between the      collector, naval officer, and surveyor, or such of them as      are appointed for the district in which the seizure has been      made, or the fine or penalty incurred, or, if there be only a      collector, then to such collector.'

The findings in this case show (1) that the moneys claimed were the proceeds of fines, penalties, and forfeitures incurred at the port of New York; (2) that the claimant was not the surveyor at the port, but was a surveyor at another port in the same collection district; (3) that the secretary of the treasury actually distributed one-fourth part of the distributable sums to the collector, naval officer, and surveyor at the port of New York, as such officers, and not as informers or seizing officers, and paid no part to the claimant; and (4) that such distribution was made in accordance with the uniform practice of the treasury department, under the said act of 1867. From these findings it is to be understood that it was the uniform practice of the treasury department, under the act of 1867, to distribute one-fourth part of the proceeds of fines, penalties, and forfeitures incurred at the port of New York (such as the proceeds in this case were) to the collector, naval officer, and surveyor at that port as such collector, naval officer, and surveyor; such one-fourth part not including any part of any share which under said statute goes to the informer or to the officer making the seizure. The demand made by the claimant in this case in his petition has no reference to the one-fourth part which the statute awards to the informer or the seizing officer.

The controversy arises over the meaning of these words in the act of 1867: 'The remaining one-fourth to be equally divided between the collector, naval officer, and surveyor, or such of them as are appointed for the district in which the seizure has been made, or the fine or penalty incurred.' It is said in substance, in the opinion of the court of claims in this case, reported in 14 Ct. of Claims R. 305, that the secretary of the treasury, in the practice spoken of, proceeded on the view that the port of New York was the only port of entry in said collection district; that the ports of Albany, Troy, and Port Jefferson, though ports in said collection district and ports of delivery, were not ports of entry; that the statute spoke only of 'the collector, naval officer, and surveyor;' that the words 'or such of them as are appointed for the district in which the seizure has been made, or the fine or penalty incurred,' could not enlarge the meaning of the word 'surveyor' to the plural sense, because it could not so enlarge the meaning of the word 'collector' or the word 'naval officer,' as there was but one of each of them in any district; and that the surveyor intended, in reference to cases like the present, was the surveyor of the port where the fines, penalties, and forfeitures were incurred. The court observed that, as the provisions of the act of 1867 awarding shares of forfeitures had been repealed,-by section 2 of the act of June 22, 1874, c. 391, (18 St. at Large, 186,)-and as congress had not interfered with such construction by the secretary of the treasury while the act was in force, and as the claimant had raised no question in regard to such construction until March, 1874, and had been informed by the treasury department in June, 1874, that it adhered to such construction, and had not complained again until March, 1877, but had permitted moneys to be distributed under such view until he brought this suit in May, 1877, (facts which appear in the findings of the court below,) the construction adopted had become the one which must govern all distributions under the act. The court added that such construction did not appear to it unreasonable, and might well have been reached in the exercise of a sound judgment; and that, regarding the statute as ambiguous, all the circumstances of the case were such as to justify the application of the principle of interpretation sanctioned by this court in U.S. v. Pugh, 99 U.S. 265, that, 'in the case of a doubtful and ambiguous law, the contemporaneous construction of those who have been called upon to carry it into effect is entitled to great respect, (Edwards' Lessee v. Darby, 12 Wheat. 210,)' and where this court refused to interfere with such construction after it had been acted upon for a long time. See, also, U.S. v. Alexander, 12 Wall. 177; Peabody v. Stark, 16 Wall. 240; Smythe v. Fiske, 23 Wall. 382; U.S. v. Moore, 95 U.S. 768.

We are satisfied with the decision of the court of claims, and with the grounds above stated as assigned by it therefor, and its judgment is affirmed.


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


text:
Campbell v. United States (107 U.S. 407)

''Wm. M. Evarts, C. H. Southmayd, and Jos. H. Choate'', for appellants.

Asst. Atty. Gen. Maury, for appellee.

MILLER, J.


text: Talk:Campbell v. United States (107 U.S. 407)


text:
Campbell v. United States (107 U.S. 407)/Opinion of the Court

The fourth section of the act to provide increased revenue from imports to pay interest on the public debt, and for other purposes, approved August 5, 1861, reads as follows:

'That from and after the passage of this act there shall be     allowed, on all articles wholly manufactured of materials      imported, on which duties have been paid, when exported, a      drawback equal in amount to the duty paid on such materials,      and no more, to be ascertained under such regulations as      shall be prescribed by the secretary of the treasury,      provided that 10 per centum on the amount of all drawbacks so      allowed shall be retained for the use of the United States by      the collectors paying such drawbacks respectively.' 12 St. 292.

On the twenty-second of January, 1862, the secretary established such regulations as he deemed appropriate, the first of which is this:

(1) 'To entitle the exporter to such allowance of drawback,     he must, at least six hours previous to the putting or lading      any of the articles intended to be exported by him for      benefit of drawback on board any vessel or other conveyance      for exportation, lodge with the collector of customs for the      district from which such exportation is to be made, an entry      setting forth his intention to export such articles, and the      marks, numbers, and a particular description of the same,      with their quantity and value, and designating the      manufacturer thereof, the place where deposited, the name of      the vessel or other conveyance in or by which, and the port      or place to which, the same is intended to be exported, and      also describing in such entry the material or materials      severally from which he claims the articles to have been manufactured, designating when, where, whence,      by whom, and in what vessel or other conveyance the same was      or were imported, and specifying the quantity and value      thereof used in the manufacture. This entry shall, upon     presentation, be verified by the oath or affirmation of the      proprietor and the foreman of the manufactory in which such      articles were made.'

Other regulations require the collector and the surveyor to make the necessary examination to ascertain if the articles described in this entry be as stated, and to mark and designate them accordingly, and to verify the weight, gauge, measure, or amount, and to superintend the lading for export, etc. All this having been done, and the oath of the exporter and his bond, with condition prescribed by the rules, being given, the collector is to give a certificate of the amount to which the party is entitled as drawback, on which he is to receive the money. The appellants in this case sued in the court of claims for a drawback on account of large amounts of linseed cake made by them out of linseed imported from a foreign country, and which cake they exported to London. Their petition was dismissed by that court, on the ground, as stated in their opinion, that it was not a case of which they had jurisdiction. The court, however, did entertain jurisdiction of the case; an answer was filed on behalf of the United States denying the allegations of the petition, testimony was taken, and a full and elaborate finding of facts was made, and on this the court, as a conclusion of law, find that for want of jurisdiction of the subject-matter the petition is dismissed. This finding of facts shows that in the months of September, October, November, and December, 1870, claimants imported from Calcutta large quantities of linseed, for which they oil and linseed cake, of the latter pounds according to law, which was by them, without intermixture with any other linseed or other material, manufactured into linseed oill and linseed cake, of other of which article there was produced therefrom 5,156,585 pounds. It was for the exportation of part of this latter product that the drawback is claimed in this suit. As, however, this was done by several shipments at different times, and as the finding of facts is precisely the same in the case of each shipment, except as to date, quantity, and the name of the vessel, we give here verbatim the finding as to the first:

'On the nineteenth day of January, 1871, the claimants and     said Ludlow D. Campbell were the owners of and had in their      possession 447,712 pounds of linseed cake, being parcel of      the aforesaid 5,156,585 pounds, and desiring and intending to      export the same from New York to London for the benefit of      the drawback authorized by the fourth section of the 'Act to      provide increased revenue from imports to pay interest on the      public debt, and for other purposes,' approved August 5,      1861, duly presented to and lodged with the collector of      customs for the port of New York, before putting or lading      any of the said cake on board any vessel for exportation, an      entry of said linseed cake for export by the ship Sterling      Castle, which was accompanied with the certificate and oath      required by, and was in all respects in conformity with, the      regulations prescribed by the secretary of the treasury, in      pursuance of the requirement of the fourth section of said      act, and the said claimants and said Ludlow D. Campbell in      all respects conformed to such regulations in respect to      drawback, which allowance had been by said regulations fixed      at 17 cents per 100 pounds, and made payable to the United      States 30 days after clearance of the vessel by which      exportation was made, but the said collector, acting under      instructions from the secretary of the treasury, given on the      fifth day of December, 1870, wholly refused to perform or      cause to be performed in any manner any other act than the      receipt of said entry prescribed by said regulations to be      done, or caused to be done, by a collector of customs under      the said fourth section of said act.

'Thereafter, in the month of January, 1871, the said 447,712     pounds of linseed cake were shipped by the claimants and said      Ludlow D. Campbell on the said ship Sterling Castle, which      vessel, with said linseed cake on board, cleared at the      custom-house at the port of New York, for London, on the      thirtieth day of January, 1871, and said cake was thereupon      exported and carried by said vessel from New York to the port of London,      in England, and there discharged and delivered, and no part      thereof has been at any time relanded in any port or place      within the limits of the United States.'

The argument of counsel for the United States, and the opinion of the court of claims, is that, until the officers of the customs comply with all the regulations of the secretary of the treasury, and the collector issues the drawback certificate, the law imposes upon the United States no obligation to pay anything for such drawback; that the law conferred upon the secretary the right to make the regulations, and the collector the power to make the certificate for payment of drawback, and that the refusal of the collector to perform the duties imposed upon him preliminary to making his certificate, and then refusing the certificate, totally defeats the claim of the party, who, by the law, is guarantied a right to his drawback, and who has complied with all that the law requires of him to secure and enforce it. It would be a curious thing to hold that congress, after clearly defining the right of the importer to receive drawback upon subsequent exportation of the imported article upon which he had paid duty, had empowered the secretary by regulations, which might be proper to secure the government against fraud, to defeat totally the right which congress had granted. If the regulations of themselves worked such a result, no court would hesitate to hold them invalid as being altogether unreasonable. But the regulations in this case are not unreasonable; nor do they interpose any obstacle to the full assertion and adjustment of plaintiffs' right. It is the order of the secretary of the treasury forbidding the collector to proceed under these regulations, or in any other mode, which is the real obstacle. Is that order a defense to this action? Can the secretary, by this order, do what he could not do by regulations repeal or annul the law? Can he thus defeat the law he was appointed to execute, by making regulations, and then, by ordering his officers not to act under them, and not to act at all, place himself above the law and defy it? We think the court of claims has jurisdiction of such a claim: (1) Because it is founded on a law of congress; and (2) because the facts found in this case raise an implied contract that the United States will refund to the importer the amount he paid to the government. The finding of the court is that, by the regulations, this allowance of drawback had been fixed at 17 cents per hundred pounds.

The act of congress having declared that on exportation there shall be allowed a drawback equal in amount to the duty paid on such material, and the secretary having established by a regulation that, as regarded the cake resulting from the manufacture of the linseed into oil and cake, the latter represents, at 17 cents per hundred pounds, the duty on the imported seed so converted into cake, there resulted a contract that when exported the government would refund, repay, pay back, this amount as a drawback to the importer. If this be not so, it is because it is impossible to make a contract when the details of its execution or performance are left to officers who refuse to carry them out. So it is equally clear that this claim is founded on the law allowing drawback. The court of claims makes the mistake of supposing that the claim is founded on the regulations of the secretary of the treasury. This view cannot be sustained. It is the law which gives the right; and the fact that the customs officers refuse to obey these regulations cannot defeat a right which the act of congress gives. The second section of the act of September 20, 1850, granting all the overflowed and swamp lands to the states in which they lie, declares:

'That it shall be the duty of the secretary of the interior,     as soon as may be practicable after the passage of this act,      to make out an accurate list and plats of the lands granted      as aforesaid and transmit the same to the governor of the      state, and, at the request of said governor, cause a patent      to be issued to the state therefor; and on that patent the      fee to the lands shall vest in the state.' 9 St. 519.

This duty was almost wholly neglected by the secretary.

In the case of Railroad Co. v. Smith, 9 Wall. 95, it was insisted that the failure of the secretary to act made these lands subject to a grant for railroad purposes of a date subsequent to the swamp-land act. This proposition was thus answered by this court:

'Must the state lose the land, though clearly swamp land,     because that officer has neglected to do this? The right of     the state did not depend on his action, but on the act of      congress, and though the state might be embarrassed in the      assertion of this right by the delay or failure of the      secretary to ascertain and make out a list of these lands,      the right of the state to them could not be defeated by this      delay.

'Any other rule results in this: that because the secretary     of the interior has failed to discharge his duty in      certifying these lands to the state, they therefore pass      under a grant from which they are excepted beyond doubt, and      this when it can be proved, by testimony capable of producing      the fullest conviction, that they were of the class excluded      from plaintiff's grant,'--

That is, was granted to the state as swamp lands.

And in French v. Fyan, 93 U.S. 173, the court, reaffirming Railroad Co. v. Smith, said:

'There was no means, as this court has decided, to compel him     (the secretary) to act, and if the party claiming under the      state in that case could not be permitted to prove that the      land conveyed to him by the state as swamp land was in fact      such, a total failure of justice would occur, and the entire      grant to the state might be defeated by this neglect or      refusal of the secretary to perform his duty.'

The application of this reasoning to the present case is too clear to need illustration. It is an error to suppose that the officers of customs, including the secretary, are in regard to this law created a special tribunal to ascertain and decide conclusively upon the right to drawback. Their function is entirely ministerial. They are authorized to pass upon no question essential to the claimant's right so as to conclude him in a court of competent jurisdiction. From the moment he presents his sworn entry, they simply ascertain quantities, identify and mark packages, accept bonds and sureties, see that the exported article leaves the port in the ship. These and like duties being discharged, it is the collector's duty, a mere ministerial function, to give the certificate of drawback. The amount of it is fixed at 17 cents per 100 pounds by the regulation; he has nothing to do but to calculate the amount at that rate on the number of pounds shipped. He exercises no judicial or quasi judicial function. He concludes nobody's rights, and has no power to do so. The rights which the law gives cannot be defeated by his refusal to act, nor by his decision that no drawback was due. Neither the act of congress, nor any rule of construction known to us, makes the claimant's right, when the facts on which it depends are clearly established, to turn upon the view which the collector, or the secretary, or both combined, may entertain of the law upon that subject, and much less upon their arbitrary refusal to perform the services which the law imposes on them.

A suggestion is made that the right to enforce the drawback in the court is affected by the fact that it is a gratuity. It has never been supposed that there was a gratuity in all the cases where imports are free of duty. The purpose of the drawback provision is to make duty free, imports which are manufactured here and then returned whence they came or to some other foreign country-articles which are not sold or consumed in the United States. The linseed in this case was bought abroad and imported for the purpose of being manufactured, and the product immediately sent out of the country. The drawback provision was simply a mode of making the linseed so imported and exported without distribution in the country duty free, and we see no gratuity in the case. But if it were a free gift, it is not for the officers of the government to defeat the will of congress on this subject by refusing to execute the law.

We are of opinion that the facts found by the court of claims established the right of appellants to recover a judgment for the exported cake at the rate of 17 cents per 100 pounds; and the case is remanded with directions to enter such a judgment.


text: Talk:Campbell v. United States (107 U.S. 407)/Opinion of the Court


text:
Wood v. United States (107 U.S. 414)

H. E. Paine, for appellant.

Asst. Atty. Gen. Maury, for appellee.

BLATCHFORD, J.

title: Wood v. United States (107 U.S. 414)


text: Talk:Wood v. United States (107 U.S. 414)