text:
Gordon v. United States (74 U.S. 188)/Opinion of the Court

The case of Ferreira was the first to bring before us these claims, under the treaty with Spain in 1819. This was in 1857, more than thirty years after the date of the treaty. In the opinion of the Chief Justice in that case, will be found a concise history of the previous legislation of Congress on this subject. That case was brought here by way of appeal as from the judgment of the District Court of Florida. And this court was importuned to give some utterance by which the Secretary of the Treasury might be justified in a departure from the rule adopted on the subject, with regard to the allowance of interest. In the argument of the case the Attorney-General said, stating the matters as historical facts:

'The first of these claims was presented to the Sectetary of the Treasury for payment in the year 1825, and others have been constantly and successively presented from that time to the present. The number of claims thus presented was about two hundred, and the amount paid has exceeded one million of dollars. But from the first, and in every case where interest has been allowed by the Florida judge, the principal only was paid, and the interest disallowed by the Secretary of the Treasury. For the last twenty-five years this has been the unvaried and uniform course of decision and action by every successive Secretary of the Treasury who has acted on the subject, sustained by the official opinions of several attorney-generals, without the express dissent of any one of them officially declared.'

But notwithstanding the persistent importunity of the parties who brought forward those stale claims, to obtain some dictum or hint of an opinion that interest for more than thirty years should be paid, this court refused to take jurisdiction and pronounce any opinion on the subject.

Since that time it appears that the treasury has been thought to labor under the very unusual disease of a plethora, and the Attorney-General, unwilling to 'follow in the footsteps of his predecessors,' has discovered a mode of relief for its depletion by allowing forty years' interest to these claimants as a reward for their laches in not pursuing them in proper time.

As respects the effect of the repealing statute of March 2, 1861, the whole argument urged on behalf of the appellants is founded on a false assumption. It is asserted that this is a case of arbitrament and award, and was binding as such on the government, and that the repeal of the resolution of Congress could not affect or invalidate rights vested by the award previously made under it. But the Secretary of War was not an arbitrator. An arbitrator is defined as 'a private extraordinary judge chosen by the parties who have a matter in dispute, invested with power to decide the same.' The Secretary of War acted ministerially. The resolution conferred no judicial power upon him. In order to clothe a person with the authority of an arbitrator, the parties must agree to be bound by the decision of the person chosen to determine the matter in controversy. The resolution under which the secretary assumed to act did not authorize him to make a final adjustment of the matter embraced in it. It did not bind the appellant to an acceptance of the amount reported by the secretary, or that he would cease to clamor for more, after being a fifth time paid the amount of damages awarded to and accepted by him.

The joint resolution of June 1st, 1860, was the fourth resolution which had been passed for the adjustment of the claim of the legal representatives of George Fisher against the United States, for injuries done to his property by the United States troops in 1813. In pursuance of the first three of these resolutions, five different allowances were made in favor of, and paid to the appellant, amounting in all to sixty-six thousand eight hundred and three dollars and thirty-three cents. If the finding of the Secretary of War, under the joint resolution of June 1st, 1860, was final and conclusive, so also must have been the finding and allowance of the second auditor of the treasury, under the joint resolution of April 12th, 1848. Yet the appellant insisted that he was not concluded by the finding of the second auditor. He claimed and received after this allowance four additional allowances.

An arbitrament and award which concludes one party only is certainly an anomaly in the law. The various acts and resolutions of Congress in this case emanated from a desire to do justice, and to obtain the proper information as a basis of action, and were not intended to be submissions to the arbitrament of the accounting officer. They were designed as instructions to the officer by which to adjust the accounts, Congress reserving to itself the power to approve, reject, or rescind, or to otherwise act in the premises as the exigencies of the case might require. In other words, these references only require the officer to act in a ministerial, not a judicial capacity.

The joint resolution of June 1st, 1860, gave the appellant a tribunal, before which his claims might be investigated. The repeal of that resolution only deprived him of that tribunal. It was competent for Congress to abolish the tribunal it created for the adjustment of the appellant's claims, or it might have committed them to some other authority. In either event the claimant's right would not have been violated, only his remedy for the enforcement of those rights would have been taken away or changed. The power that created this tribunal might rightfully destroy it, unless some rights had accrued which were the result of the creation of such tribunal, and inseparable from it. Here no such rights had resulted from the passage of this resolution. The appellant was left where that resolution found him. His right to importune Congress for more was not at all impaired by its repeal.

JUDGMENT AFFIRMED.


text: Talk:Gordon v. United States (74 U.S. 188)/Opinion of the Court

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


text:
The Grace Girdler (74 U.S. 196)

APPEAL from the Circuit Court for the Southern District of New York, in a case of collision, the question being one largely of fact; and the case being submitted.

Messrs. Carlisle and C. N. Black, for the appellants; Mr. O'Donohue, contra.

Mr. Justice SWAYNE stated the case and delivered the opinion of the court.

title: The Grace Girdler (74 U.S. 196)


text: Talk:The Grace Girdler (74 U.S. 196)

title: Talk:The Grace Girdler (74 U.S. 196)


text:
The Grace Girdler (74 U.S. 196)/Opinion of the Court

This is a case of collision. It occurred on the East River, in the afternoon of the 5th of August, 1863, between the yacht Ariel and the schooner Grace Girdler. Both vessels were beating down the river to the bay. The yacht had made her long tack, and had gone about near the New York shore, and was standing upon her short tack across the river. The schooner had done the same things, and was standing in the same direction. In going about she had passed to the windward of the yacht, and held that position in her short tack. The yacht was to the leeward, and a very little way in advance. As she was beginning to make headway, the approach of a steam ferry-boat coming up the river compelled her suddenly to luff three or four points in order to get out of the way. This threw her unexpectedly in the way of the schooner, and was the proximate cause of the collision. The vessels came together, and the yacht was sunk and lost. The locality of the collision was opposite to the foot of Stanton or Grand Street, in the city of New York, and about one-third of the way across the river.

So far both sides agree as to the facts, but no further. Here begins the stress of the case, and the antagonisms in the testimony of the parties gather around it.

The libellants allege that the schooner was wholly in fault. They say that she ought not to have been so near the yacht; that she ought to have seen the danger to the yacht from the approach of the ferry-boat, and seeing it, ought immediately to have luffed, to get more to the windward; and that if she had done so, the accident would not have occurred. They insist that the schooner, being so nearly in the track of the yacht, and in such close proximity, it was her duty to exercise the greatest vigilance, and to omit no precaution against danger.

The respondents insist that there was no fault on the part of the schooner; that when the yacht suddenly came into her path to avoid the ferry-boat, the schooner, if not in stays, had so little headway on that she was powerless to change her course, or to do anything else to prevent the two vessels from coming in contact. In behalf of the schooner there is testimony to the effect that the yacht, having escaped the ferry-boat by luffing, should have luffed still more to avoid the schooner, and that if she had performed this simple and obvious duty, the collision could not have occurred.

The schooner was thoroughly manned. The captain was an experienced seaman. A regular Hurlgate pilot was at the helm.

A pleasure-party was on board the yacht. Lockwood, the captain, was the superintendent of an oil warehouse. He had served as a seaman during a voyage to California in 1849. He had no other nautical experience. Slavin was the sailing-master. He was twenty-two years of age, and had some experience as a sailor. He 'had been, off and on, five or six years, sailing-master of those small vessels about New York,' and 'had been on the Ariel six or seven weeks at that time.' Before he went upon the yacht he had been at work for Lockwood in an oil factory. Lockwood, in his deposition, says, 'All on board were gents but Slavin and an extra hand.' The testimony of the extra hand has not been taken, and it is not shown who he was, what were his qualifications, or in what capacity he served. It does not appear that any one was charged with the duty of a look-out. Lockwood, the captain, was at the helm. He says:

'The schooner made a longer tack than I, and followed on nearly in our track-a little to the southward. Before I got across the steam ferry-boat Cayuga crossed track on my bow. I luffed a little up to avoid a collision with her, and as I was filling away again, the Grace Girdler came up behind and struck me astern. Her jib-boom went into my mainsail. We had got about first, and she was about one hundred feet behind us when she got about. I did not pay any particular attention to her, as I was watching the ferry-boat. When I got clear of the latter, then I saw the Grace Girdler coming down upon us. Mr. Slavin, the sailing-master, hailed her three times, but received no answer. She was not further than this room from us when I saw she was coming down on to us. When I saw she was coming I put my helm hard up, expecting she would go off to the windward of me. I also let go my main sheet, to let my vessel run off before the wind; but she hit me before she (the yacht) run off. . . . She could have cleared me by coming up into the wind. . . . The ferry-boat was from fifty to seventy-five feet from me. She was bound to Williamsburg, and crossed my bow, and I came within fifteen or twenty feet of hitting her, notwithstanding I luffed. . . . I did not suppose it necessary to act to avoid the ferry-boat till she got near us. I luffed three or four points, and continued that long enough to let her run by.'

From this testimony it appears that no very great vigilance was exercised on the yacht to supply the place of a look-out, and that the judgment formed by the captain as to the danger involved in the approach of the steamer was by no means accurate.

The chief fault attributed to the schooner is, that she did not luff into the wind and avoid the yacht by passing to the windward. It is not denied that the schooner was to the windward after running out her long tack and coming about, nor that she would have avoided the yacht if the yacht had not thrown herself in the way of the schooner to avoid the ferry-boat.

Horton, the pilot of the schooner, had been a Hurlgate pilot for sixteen years. He says:

'After we went about, we drawed away our jibs, let up anything forward; saw the yacht to the leeward, about fifty yards on our lee quarter, dead to the lee quarter. She kept hauling up and nearing us all the while, and we was motionless at the time, and I told them on the yacht to slack the main sheet, but they paid no attention to me, and came right up to our lee bow in contact with our jib-boom, which hooked his mainsail. We had not got under headway at the time of the collision. Our jibs had not filled. We could not have done anything in our condition to avoid it. The helm was to the leeward, in the leebecket dover. When we got around so that the jibs took, I put my helm down.'

This testimony, if credible, vindicates the schooner and fastens the blame upon the yacht. Perhaps the reason why the warning of the pilot was not heeded was, that the officers of the yacht had not recovered from the perturbation produced by their narrow escape from the ferry-boat, and that there was no look-out to give notice of the dangerous proximity of the schooner, induced by the new position which the yacht had been compelled to assume. The statement of the pilot is fully sustained by the captain and several of the crew of the schooner who were examined. They all aver that she had so little headway that nothing could be done on her part to avert the collision.

The sailing-master and gentlemen on the yacht sustain more or less fully the facts stated by Captain Lockwood. As usual, those on board on each side acquit their own and condemn the other vessel. The statement of Lockwood is also sustained by McQueen, the pilot of the Cayuga, and by Goodby, the pilot of the Peck Slip ferry-boats. They saw the collision-inculpate the schooner and exculpate the yacht.

On the other hand, Captain Barber, of the schooner Jenny Lind, who was near at hand and saw everything that occurred, exonerates the schooner and casts the entire responsibility upon the yacht. Such also is the effect of the testimony of Gilbert, a pilot on the Hunter's Point line of boats. He too was a spectator. Captain Barber says:

'I have followed the water eighteen years, and now am master of a vessel. Know the Grace Girdler. I live in Westerly. My vessel belongs to Stonington. I was on the schooner Jenny Lind the day of the collision. We went about somewhere near the coal-yard of the Penn Coal Company at Williamsburg. After we went about we were in the wake of the yacht and the Grace Girdler. All three of us were standing toward New York side. As I was walking back and forth on my deck, I saw the yacht a little ahead of the Grace Girdler. As the latter came up with the yacht she kept off a little to go under her lee to elear her quarter. The yacht was a little ahead and tacked first, and the Grace Girdler rounded her and came up to the windward. The yacht made headway. The schooner payed off some, and her jib was shaking all the time until they went clear. I don't see as the Grace Girdler could do anything to prevent this collision, as her head sails were shaking and her gaff topsails and mainsail full. The schooner's fore sheets were all slacked up and she payed off and hooked into the yacht. The schooner had no command of herself. The yacht was not ahead at all after I saw them. I did not see the yacht sink. Saw the schooner sag off on to her. The yacht ought to have gone around the schooner's stern or started a sheet and gone off on the other hand.'

No one had a better opportunity of seeing and understanding all that occurred than this witness, and there is none whose testimony we deem entitled to more weight. There is no impeaching testimony. The witnesses upon each vessel must have known the condition of things and what occurred there. Unless we impute perjury, which we see no reason to do, they are entitled to credence as to this class of facts. As to what occurred upon the other vessel they are liable to be mistaken, and their testimony is entitled to less weight than the testimony of witnesses who were present.

In respect to the yacht, we pass by the inquiries whether she was properly manned, whether she had a sufficient lookout and whether by due vigilance and good seamanship she might not at her leisure have given the ferry-boat a safe berth, and thus have avoided the necessity of placing herself, as it were by a leap, across the bows of the schooner. These points have not been pressed upon our attention by the learned counsel for the appellants, and in the view which we take of the case their solution is not necessary to its proper determination. The testimony of those on board of the yacht proves clearly that all was done in the emergency that was practicable and proper. If there was any omission, under the circumstances it was an error and not a fault. In the eye of the law the former does not rise to the grade of the latter, and is always venial. For the purposes of this case we hold that the yacht was blameless. But she suddenly thrust herself before the schooner, and took the latter by surprise. If the testimony of the pilot, captain, and crew of the schooner be true, it is indisputable, as is insisted by the appellants, that she had then so little headway as to be impotent to do anything to prevent the impending catastrophe. Her helm was kept where it should have been to have the greatest effect in turning her head more to the windward. Her jib might have been lowered, to give greater effect to the wind upon the sails in the after-part of the vessel; but if, as the proof is, it was shaking at the time, this could have had no effect, and would have been useless. This testimony shows that the schooner, as to this part of the case, was also free from fault. The superadded testimony of Barber and Gilbert leave no room for doubt in our minds upon the subject. The loss of the yacht was not produced by a blow from the schooner, but by the jib-boom of the schooner running through her mainsail, and turning her so far upon her side that she filled with water. As soon as her jib-stay was cut loose from the anchor of the schooner, she sunk.

But it is insisted that the schooner is blamable for not having provided in advance for the contingencies of the approach of the ferry-boat to the yacht, and the sudden transit of the latter to the windward. To this there are two answers.

First. The schooner came about near the New York shore, under the stern of the yacht, and was passing to the windward of her. Lockwood expected the schooner to pass on that side. The witnesses on both sides agree that she was there when the yacht luffed and changed her course three or four points in the same direction to escape the ferry-boat. It is not denied by any one that but for this there would have been ample room between them for both to pass in safety. There is no proof that it was in the power of the schooner to put herself any further to the windward than she was. We suppose it will not be insisted that the schooner was bound to stop before running out her long tack, or to make it longer.

Secondly. The case made against the schooner is contained in the fourth article of the libel. The charges set forth are confined to omissions at the time of the collision or immediately preceding it. Neither in the pleadings nor proofs is fault charged at any other time. It is nowhere charged or proved that it was the duty of the schooner to have foreseen the contingencies which caused the collision, or to have made any provision against them. The record before us is a blank as to that subject.

It is not intended to impugn anything said by this court in the case of Whitridge et al. v. Dill et al. as to the rules which should govern a vessel behind another and pursuing the same course. This case is plainly distinguishable from it in several particulars. It is sufficient to mention one of them. In that case there was no sudden change by the leading vessel to a course across the bows of the one behind her. That is the controlling fact in the case under consideration.

The appellants have invoked the aid of the act of Congress of April 29, 1864, 'fixing rules and regulations for preventing collisions on the water.' The 17th article does, as suggested, provide 'that every vessel overtaking another vessel shall keep out of the way of the said last-mentioned vessel.' But the 18th article provides, subject to certain qualifications, that the other vessel shall keep her course; while the 19th and 20th provide that due regard shall be had to the circumstances which may render a departure from the rules prescribed necessary in order to avoid immediate danger, and that nothing in the act shall warrant the neglect of any proper precaution, or excuse the fault of bad seamanship, under any circumstances that may occur.

It would be a strange result if the statute should make an innocent vessel liable for an inevitable accident.

In order to recover full indemnity it is necessary that the suffering vessel should be without fault. Generally the burden of proof rests upon the libellants. Where fault is shown on the part of the damaging vessel, it is incumbent on her to show that such fault had in no degree the relation of cause and effect to the accident.

Inevitable accident is where a vessel is pursuing a lawful avocation in a lawful manner, using the proper precautions against danger, and an accident occurs. The highest degree of caution that can be used is not required. It is enough that it is reasonable under the circumstances-such as is usual in similar cases, and has been found by long experience to be sufficient to answer the end in view-the safety of life and property. Where there is a reasonable doubt as to which party is to blame, the loss must be sustained by the party on whom it has fallen.

The case of The Thornley, though unlike this case in its facts, has one point of resemblance which renders it worthy of attention. That vessel, while 'forging' her way through the Nore Sands, was hailed by the Mentor, a vessel at anchor near them, to come to anchor. She could not then do so without danger of destruction. Very soon after she passed the Sands a collision occurred. She alleged that it was an inevitable accident. It was objected (1) that she should have anchored instead of passing the Sands, and (2) that she should have anchored as soon as she passed them. The Trinity Masters said: 'We consider the collision accidental. She could not let go her anchor until clear of the Sands; if in this case she had let go her anchor, immediately on being clear, the collision would still have occurred.' Dr. Lushington took that view of the case, and pronounced against the claim of the libellants. His judgment proceeded upon the ground that the Thornley was powerless to prevent the accident. The point that she should have anchored before attempting to pass the Sands was not noticed.

There is another feature of the case before us, to which it is proper to refer. The District Court acquitted the schooner and dismissed the libel. The libellants appealed to the Circuit Court. That court affirmed the decree. The case is now here by a second appeal. This court ought not to reverse upon a mere difference of opinion as to the weight and effect of conflicting testimony. To warrant a reversal it must be clear that the lower courts have committed an error, and that a wrong has been done to the appellants. This is not a case of that character. If it were now before us for decision the first time, although our minds are not entirely free from doubt, we could not come to any other conclusion than the one we have announced.

DECREE AFFIRMED.

Mr. Justice DAVIS (with whom concurred the CHIEF JUSTICE and Mr. Justice CLIFFORD), dissenting:

I dissent from the opinion in this case. I think the rules of navigation require that a vessel coming up behind on the same course as the vessel before her, is bound to keep out of the way, and I cannot agree that the collision was the result of inevitable accident, as it occurred in the daytime, on smooth water, and in fair weather.


text: Talk:The Grace Girdler (74 U.S. 196)/Opinion of the Court


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United States Code/Title 42/Chapter 85/Section 7410

§ 7410. State implementation plans for national primary and secondary ambient air quality standards CAA § 110

(a) Adoption of plan by State; submission to Administrator; content of plan; revision; new sources; indirect source review program; supplemental or intermittent control systems

 * (1) Each State shall, after reasonable notice and public hearings, adopt and submit to the Administrator, within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof) under section 7409 of this title for any air pollutant, a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region (or portion thereof) within such State. In addition, such State shall adopt and submit to the Administrator (either as a part of a plan submitted under the preceding sentence or separately) within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national ambient air quality secondary standard (or revision thereof), a plan which provides for implementation, maintenance, and enforcement of such secondary standard in each air quality control region (or portion thereof) within such State. Unless a separate public hearing is provided, each State shall consider its plan implementing such secondary standard at the hearing required by the first sentence of this paragraph.
 * (2) Each implementation plan submitted by a State under this chapter shall be adopted by the State after reasonable notice and public hearing. Each such plan shall—
 * (A) include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of this chapter;
 * (B) provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to—
 * (i) monitor, compile, and analyze data on ambient air quality, and
 * (ii) upon request, make such data available to the Administrator;
 * (C) include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achieved, including a permit program as required in parts C and D of this subchapter;
 * (D) contain adequate provisions—
 * (i) prohibiting, consistent with the provisions of this subchapter, any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will—
 * (I) contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard, or
 * (II) interfere with measures required to be included in the applicable implementation plan for any other State under part C of this subchapter to prevent significant deterioration of air quality or to protect visibility,
 * (ii) insuring compliance with the applicable requirements of sections 7426 and 7415 of this title (relating to interstate and international pollution abatement);
 * (E) provide
 * (i) necessary assurances that the State (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the State or general purpose local governments for such purpose) will have adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of Federal or State law from carrying out such implementation plan or portion thereof),
 * (ii) requirements that the State comply with the requirements respecting State boards under section 7428 of this title, and
 * (iii) necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the State has responsibility for ensuring adequate implementation of such plan provision;
 * (F) require, as may be prescribed by the Administrator—
 * (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources,
 * (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and
 * (iii) correlation of such reports by the State agency with any emission limitations or standards established pursuant to this chapter, which reports shall be available at reasonable times for public inspection;
 * (G) provide for authority comparable to that in section 7603 of this title and adequate contingency plans to implement such authority;
 * (H) provide for revision of such plan—
 * (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and
 * (ii) except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the plan is substantially inadequate to attain the national ambient air quality standard which it implements or to otherwise comply with any additional requirements established under this chapter;
 * (I) in the case of a plan or plan revision for an area designated as a nonattainment area, meet the applicable requirements of part D of this subchapter (relating to nonattainment areas);
 * (J) meet the applicable requirements of section 7421 of this title (relating to consultation), section 7427 of this title (relating to public notification), and part C of this subchapter (relating to prevention of significant deterioration of air quality and visibility protection);
 * (K) provide for—
 * (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a national ambient air quality standard, and
 * (ii) the submission, upon request, of data related to such air quality modeling to the Administrator;
 * (L) require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this chapter, a fee sufficient to cover—
 * (i) the reasonable costs of reviewing and acting upon any application for such a permit, and
 * (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action),
 * until such fee requirement is superseded with respect to such sources by the Administrator’s approval of a fee program under subchapter V of this chapter; and
 * (M) provide for consultation and participation by local political subdivisions affected by the plan.
 * (3)
 * (A) Repealed. Pub. L. 101–549, title I, § 101(d)(1), Nov. 15, 1990, 104 Stat. 2409.
 * (B) As soon as practicable, the Administrator shall, consistent with the purposes of this chapter and the Energy Supply and Environmental Coordination Act of 1974 [15 U.S.C. 791 et seq.], review each State’s applicable implementation plans and report to the State on whether such plans can be revised in relation to fuel burning stationary sources (or persons supplying fuel to such sources) without interfering with the attainment and maintenance of any national ambient air quality standard within the period permitted in this section. If the Administrator determines that any such plan can be revised, he shall notify the State that a plan revision may be submitted by the State. Any plan revision which is submitted by the State shall, after public notice and opportunity for public hearing, be approved by the Administrator if the revision relates only to fuel burning stationary sources (or persons supplying fuel to such sources), and the plan as revised complies with paragraph (2) of this subsection. The Administrator shall approve or disapprove any revision no later than three months after its submission.
 * (C) Neither the State, in the case of a plan (or portion thereof) approved under this subsection, nor the Administrator, in the case of a plan (or portion thereof) promulgated under subsection (c) of this section, shall be required to revise an applicable implementation plan because one or more exemptions under section 7418 of this title (relating to Federal facilities), enforcement orders under section 7413 (d) [1] of this title, suspensions under subsection (f) or (g) of this section (relating to temporary energy or economic authority), orders under section 7419 of this title (relating to primary nonferrous smelters), or extensions of compliance in decrees entered under section 7413 (e) [1] of this title (relating to iron- and steel-producing operations) have been granted, if such plan would have met the requirements of this section if no such exemptions, orders, or extensions had been granted.
 * (4) Repealed. Pub. L. 101–549, title I, § 101(d)(2), Nov. 15, 1990, 104 Stat. 2409.
 * (5)
 * (A)
 * (i) Any State may include in a State implementation plan, but the Administrator may not require as a condition of approval of such plan under this section, any indirect source review program. The Administrator may approve and enforce, as part of an applicable implementation plan, an indirect source review program which the State chooses to adopt and submit as part of its plan.
 * (ii) Except as provided in subparagraph (B), no plan promulgated by the Administrator shall include any indirect source review program for any air quality control region, or portion thereof.
 * (iii) Any State may revise an applicable implementation plan approved under this subsection to suspend or revoke any such program included in such plan, provided that such plan meets the requirements of this section.
 * (B) The Administrator shall have the authority to promulgate, implement and enforce regulations under subsection (c) of this section respecting indirect source review programs which apply only to federally assisted highways, airports, and other major federally assisted indirect sources and federally owned or operated indirect sources.
 * (C) For purposes of this paragraph, the term “indirect source” means a facility, building, structure, installation, real property, road, or highway which attracts, or may attract, mobile sources of pollution. Such term includes parking lots, parking garages, and other facilities subject to any measure for management of parking supply (within the meaning of subsection (c)(2)(D)(ii) of this section), including regulation of existing off-street parking but such term does not include new or existing on-street parking. Direct emissions sources or facilities at, within, or associated with, any indirect source shall not be deemed indirect sources for the purpose of this paragraph.
 * (D) For purposes of this paragraph the term “indirect source review program” means the facility-by-facility review of indirect sources of air pollution, including such measures as are necessary to assure, or assist in assuring, that a new or modified indirect source will not attract mobile sources of air pollution, the emissions from which would cause or contribute to air pollution concentrations—
 * (i) exceeding any national primary ambient air quality standard for a mobile source-related air pollutant after the primary standard attainment date, or
 * (ii) preventing maintenance of any such standard after such date.
 * (E) For purposes of this paragraph and paragraph (2)(B), the term “transportation control measure” does not include any measure which is an “indirect source review program”.
 * (6) No State plan shall be treated as meeting the requirements of this section unless such plan provides that in the case of any source which uses a supplemental, or intermittent control system for purposes of meeting the requirements of an order under section 7413 (d) [1] of this title or section 7419 of this title (relating to primary nonferrous smelter orders), the owner or operator of such source may not temporarily reduce the pay of any employee by reason of the use of such supplemental or intermittent or other dispersion dependent control system.

(b) Extension of period for submission of plans
The Administrator may, wherever he determines necessary, extend the period for submission of any plan or portion thereof which implements a national secondary ambient air quality standard for a period not to exceed 18 months from the date otherwise required for submission of such plan.

==(c) Preparation and publication by Administrator of proposed regulations setting forth implementation plan; transportation regulations study and report; parking surcharge; suspension authority; plan implementation==
 * (1) The Administrator shall promulgate a Federal implementation plan at any time within 2 years after the Administrator—
 * (A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under subsection (k)(1)(A) of this section, or
 * (B) disapproves a State implementation plan submission in whole or in part,

unless the State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such Federal implementation plan.
 * (2)
 * (A) Repealed. Pub. L. 101–549, title I, § 101(d)(3)(A), Nov. 15, 1990, 104 Stat. 2409.
 * (B) No parking surcharge regulation may be required by the Administrator under paragraph (1) of this subsection as a part of an applicable implementation plan. All parking surcharge regulations previously required by the Administrator shall be void upon June 22, 1974. This subparagraph shall not prevent the Administrator from approving parking surcharges if they are adopted and submitted by a State as part of an applicable implementation plan. The Administrator may not condition approval of any implementation plan submitted by a State on such plan’s including a parking surcharge regulation.
 * (C) Repealed. Pub. L. 101–549, title I, § 101(d)(3)(B), Nov. 15, 1990, 104 Stat. 2409.
 * (D) For purposes of this paragraph—
 * (i) The term “parking surcharge regulation” means a regulation imposing or requiring the imposition of any tax, surcharge, fee, or other charge on parking spaces, or any other area used for the temporary storage of motor vehicles.
 * (ii) The term “management of parking supply” shall include any requirement providing that any new facility containing a given number of parking spaces shall receive a permit or other prior approval, issuance of which is to be conditioned on air quality considerations.
 * (iii) The term “preferential bus/carpool lane” shall include any requirement for the setting aside of one or more lanes of a street or highway on a permanent or temporary basis for the exclusive use of buses or carpools, or both.
 * (E) No standard, plan, or requirement, relating to management of parking supply or preferential bus/carpool lanes shall be promulgated after June 22, 1974, by the Administrator pursuant to this section, unless such promulgation has been subjected to at least one public hearing which has been held in the area affected and for which reasonable notice has been given in such area. If substantial changes are made following public hearings, one or more additional hearings shall be held in such area after such notice.
 * (3) Upon application of the chief executive officer of any general purpose unit of local government, if the Administrator determines that such unit has adequate authority under State or local law, the Administrator may delegate to such unit the authority to implement and enforce within the jurisdiction of such unit any part of a plan promulgated under this subsection. Nothing in this paragraph shall prevent the Administrator from implementing or enforcing any applicable provision of a plan promulgated under this subsection.
 * (4) Repealed. Pub. L. 101–549, title I, § 101(d)(3)(C), Nov. 15, 1990, 104 Stat. 2409.
 * (5)
 * (A) Any measure in an applicable implementation plan which requires a toll or other charge for the use of a bridge located entirely within one city shall be eliminated from such plan by the Administrator upon application by the Governor of the State, which application shall include a certification by the Governor that he will revise such plan in accordance with subparagraph (B).
 * (B) In the case of any applicable implementation plan with respect to which a measure has been eliminated under subparagraph (A), such plan shall, not later than one year after August 7, 1977, be revised to include comprehensive measures to:
 * (i) establish, expand, or improve public transportation measures to meet basic transportation needs, as expeditiously as is practicable; and
 * (ii) implement transportation control measures necessary to attain and maintain national ambient air quality standards,

and such revised plan shall, for the purpose of implementing such comprehensive public transportation measures, include requirements to use (insofar as is necessary) Federal grants, State or local funds, or any combination of such grants and funds as may be consistent with the terms of the legislation providing such grants and funds. Such measures shall, as a substitute for the tolls or charges eliminated under subparagraph (A), provide for emissions reductions equivalent to the reductions which may reasonably be expected to be achieved through the use of the tolls or charges eliminated.
 * (C) Any revision of an implementation plan for purposes of meeting the requirements of subparagraph (B) shall be submitted in coordination with any plan revision required under part D of this subchapter.

'''(d), (e) Repealed. Pub. L. 101–549, title I, § 101(d)(4), (5), Nov. 15, 1990, 104 Stat. 2409'''

(f) National or regional energy emergencies; determination by President

 * (1) Upon application by the owner or operator of a fuel burning stationary source, and after notice and opportunity for public hearing, the Governor of the State in which such source is located may petition the President to determine that a national or regional energy emergency exists of such severity that—
 * (A) a temporary suspension of any part of the applicable implementation plan or of any requirement under section 7651j of this title (concerning excess emissions penalties or offsets) may be necessary, and
 * (B) other means of responding to the energy emergency may be inadequate.
 * Such determination shall not be delegable by the President to any other person. If the President determines that a national or regional energy emergency of such severity exists, a temporary emergency suspension of any part of an applicable implementation plan or of any requirement under section 7651j of this title (concerning excess emissions penalties or offsets) adopted by the State may be issued by the Governor of any State covered by the President’s determination under the condition specified in paragraph (2) and may take effect immediately.
 * (2) A temporary emergency suspension under this subsection shall be issued to a source only if the Governor of such State finds that—
 * (A) there exists in the vicinity of such source a temporary energy emergency involving high levels of unemployment or loss of necessary energy supplies for residential dwellings; and
 * (B) such unemployment or loss can be totally or partially alleviated by such emergency suspension.

Not more than one such suspension may be issued for any source on the basis of the same set of circumstances or on the basis of the same emergency.
 * (3) A temporary emergency suspension issued by a Governor under this subsection shall remain in effect for a maximum of four months or such lesser period as may be specified in a disapproval order of the Administrator, if any. The Administrator may disapprove such suspension if he determines that it does not meet the requirements of paragraph (2).
 * (4) This subsection shall not apply in the case of a plan provision or requirement promulgated by the Administrator under subsection (c) of this section, but in any such case the President may grant a temporary emergency suspension for a four month period of any such provision or requirement if he makes the determinations and findings specified in paragraphs (1) and (2).
 * (5) The Governor may include in any temporary emergency suspension issued under this subsection a provision delaying for a period identical to the period of such suspension any compliance schedule (or increment of progress) to which such source is subject under section 1857c–10 [2] of this title, as in effect before August 7, 1977, or section 7413 (d) [2] of this title, upon a finding that such source is unable to comply with such schedule (or increment) solely because of the conditions on the basis of which a suspension was issued under this subsection.

(g) Governor’s authority to issue temporary emergency suspensions

 * (1) In the case of any State which has adopted and submitted to the Administrator a proposed plan revision which the State determines—
 * (A) meets the requirements of this section, and
 * (B) is necessary
 * (i) to prevent the closing for one year or more of any source of air pollution, and
 * (ii) to prevent substantial increases in unemployment which would result from such closing, and
 * which the Administrator has not approved or disapproved under this section within 12 months of submission of the proposed plan revision, the Governor may issue a temporary emergency suspension of the part of the applicable implementation plan for such State which is proposed to be revised with respect to such source. The determination under subparagraph (B) may not be made with respect to a source which would close without regard to whether or not the proposed plan revision is approved.
 * (2) A temporary emergency suspension issued by a Governor under this subsection shall remain in effect for a maximum of four months or such lesser period as may be specified in a disapproval order of the Administrator. The Administrator may disapprove such suspension if he determines that it does not meet the requirements of this subsection.
 * (3) The Governor may include in any temporary emergency suspension issued under this subsection a provision delaying for a period identical to the period of such suspension any compliance schedule (or increment of progress) to which such source is subject under section 1857c–10 of this title as in effect before August 7, 1977, or under section 7413 (d) of this title upon a finding that such source is unable to comply with such schedule (or increment) solely because of the conditions on the basis of which a suspension was issued under this subsection.

(h) Publication of comprehensive document for each State setting forth requirements of applicable implementation plan
(1) Not later than 5 years after November 15, 1990, and every 3 years thereafter, the Administrator shall assemble and publish a comprehensive document for each State setting forth all requirements of the applicable implementation plan for such State and shall publish notice in the Federal Register of the availability of such documents. (2) The Administrator may promulgate such regulations as may be reasonably necessary to carry out the purpose of this subsection.

(i) Modification of requirements prohibited
Except for a primary nonferrous smelter order under section 7419 of this title, a suspension under subsection (f) or (g) of this section (relating to emergency suspensions), an exemption under section 7418 of this title (relating to certain Federal facilities), an order under section 7413 (d) of this title (relating to compliance orders), a plan promulgation under subsection (c) of this section, or a plan revision under subsection (a)(3) of this section; no order, suspension, plan revision, or other action modifying any requirement of an applicable implementation plan may be taken with respect to any stationary source by the State or by the Administrator.

(j) Technological systems of continuous emission reduction on new or modified stationary sources; compliance with performance standards
As a condition for issuance of any permit required under this subchapter, the owner or operator of each new or modified stationary source which is required to obtain such a permit must show to the satisfaction of the permitting authority that the technological system of continuous emission reduction which is to be used at such source will enable it to comply with the standards of performance which are to apply to such source and that the construction or modification and operation of such source will be in compliance with all other requirements of this chapter.

(k) Environmental Protection Agency action on plan submissions

 * (1) Completeness of plan submissions
 * (A) Completeness criteria
 * Within 9 months after November 15, 1990, the Administrator shall promulgate minimum criteria that any plan submission must meet before the Administrator is required to act on such submission under this subsection. The criteria shall be limited to the information necessary to enable the Administrator to determine whether the plan submission complies with the provisions of this chapter.
 * (B) Completeness finding
 * Within 60 days of the Administrator’s receipt of a plan or plan revision, but no later than 6 months after the date, if any, by which a State is required to submit the plan or revision, the Administrator shall determine whether the minimum criteria established pursuant to subparagraph (A) have been met. Any plan or plan revision that a State submits to the Administrator, and that has not been determined by the Administrator (by the date 6 months after receipt of the submission) to have failed to meet the minimum criteria established pursuant to subparagraph (A), shall on that date be deemed by operation of law to meet such minimum criteria.
 * (C) Effect of finding of incompleteness
 * Where the Administrator determines that a plan submission (or part thereof) does not meet the minimum criteria established pursuant to subparagraph (A), the State shall be treated as not having made the submission (or, in the Administrator’s discretion, part thereof).
 * (2) Deadline for action
 * Within 12 months of a determination by the Administrator (or a determination deemed by operation of law) under paragraph (1) that a State has submitted a plan or plan revision (or, in the Administrator’s discretion, part thereof) that meets the minimum criteria established pursuant to paragraph (1), if applicable (or, if those criteria are not applicable, within 12 months of submission of the plan or revision), the Administrator shall act on the submission in accordance with paragraph (3).
 * (3) Full and partial approval and disapproval
 * In the case of any submittal on which the Administrator is required to act under paragraph (2), the Administrator shall approve such submittal as a whole if it meets all of the applicable requirements of this chapter. If a portion of the plan revision meets all the applicable requirements of this chapter, the Administrator may approve the plan revision in part and disapprove the plan revision in part. The plan revision shall not be treated as meeting the requirements of this chapter until the Administrator approves the entire plan revision as complying with the applicable requirements of this chapter.
 * (4) Conditional approval
 * The Administrator may approve a plan revision based on a commitment of the State to adopt specific enforceable measures by a date certain, but not later than 1 year after the date of approval of the plan revision. Any such conditional approval shall be treated as a disapproval if the State fails to comply with such commitment.
 * (5) Calls for plan revisions
 * Whenever the Administrator finds that the applicable implementation plan for any area is substantially inadequate to attain or maintain the relevant national ambient air quality standard, to mitigate adequately the interstate pollutant transport described in section 7506a of this title or section 7511c of this title, or to otherwise comply with any requirement of this chapter, the Administrator shall require the State to revise the plan as necessary to correct such inadequacies. The Administrator shall notify the State of the inadequacies, and may establish reasonable deadlines (not to exceed 18 months after the date of such notice) for the submission of such plan revisions. Such findings and notice shall be public. Any finding under this paragraph shall, to the extent the Administrator deems appropriate, subject the State to the requirements of this chapter to which the State was subject when it developed and submitted the plan for which such finding was made, except that the Administrator may adjust any dates applicable under such requirements as appropriate (except that the Administrator may not adjust any attainment date prescribed under part D of this subchapter, unless such date has elapsed).
 * (6) Corrections
 * Whenever the Administrator determines that the Administrator’s action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public.

(l) Plan revisions
Each revision to an implementation plan submitted by a State under this chapter shall be adopted by such State after reasonable notice and public hearing. The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 7501 of this title), or any other applicable requirement of this chapter.

(m) Sanctions
The Administrator may apply any of the sanctions listed in section 7509(b) of this title at any time (or at any time after) the Administrator makes a finding, disapproval, or determination under paragraphs (1) through (4), respectively, of section 7509 (a) of this title in relation to any plan or plan item (as that term is defined by the Administrator) required under this chapter, with respect to any portion of the State the Administrator determines reasonable and appropriate, for the purpose of ensuring that the requirements of this chapter relating to such plan or plan item are met. The Administrator shall, by rule, establish criteria for exercising his authority under the previous sentence with respect to any deficiency referred to in section 7509 (a) of this title to ensure that, during the 24-month period following the finding, disapproval, or determination referred to in section 7509 (a) of this title, such sanctions are not applied on a statewide basis where one or more political subdivisions covered by the applicable implementation plan are principally responsible for such deficiency.

(n) Savings clauses

 * (1) Existing plan provisions
 * Any provision of any applicable implementation plan that was approved or promulgated by the Administrator pursuant to this section as in effect before November 15, 1990, shall remain in effect as part of such applicable implementation plan, except to the extent that a revision to such provision is approved or promulgated by the Administrator pursuant to this chapter.
 * (2) Attainment dates
 * For any area not designated nonattainment, any plan or plan revision submitted or required to be submitted by a State—
 * (A) in response to the promulgation or revision of a national primary ambient air quality standard in effect on November 15, 1990, or
 * (B) in response to a finding of substantial inadequacy under subsection (a)(2) of this section (as in effect immediately before November 15, 1990),
 * shall provide for attainment of the national primary ambient air quality standards within 3 years of November 15, 1990, or within 5 years of issuance of such finding of substantial inadequacy, whichever is later.
 * (3) Retention of construction moratorium in certain areas
 * In the case of an area to which, immediately before November 15, 1990, the prohibition on construction or modification of major stationary sources prescribed in subsection (a)(2)(I) of this section (as in effect immediately before November 15, 1990) applied by virtue of a finding of the Administrator that the State containing such area had not submitted an implementation plan meeting the requirements of section 7502 (b)(6) of this title (relating to establishment of a permit program) (as in effect immediately before November 15, 1990) or 7502(a)(1) of this title (to the extent such requirements relate to provision for attainment of the primary national ambient air quality standard for sulfur oxides by December 31, 1982) as in effect immediately before November 15, 1990, no major stationary source of the relevant air pollutant or pollutants shall be constructed or modified in such area until the Administrator finds that the plan for such area meets the applicable requirements of section 7502 (c)(5) of this title (relating to permit programs) or subpart 5 of part D of this subchapter (relating to attainment of the primary national ambient air quality standard for sulfur dioxide), respectively.

(o) Indian tribes
If an Indian tribe submits an implementation plan to the Administrator pursuant to section 7601 (d) of this title, the plan shall be reviewed in accordance with the provisions for review set forth in this section for State plans, except as otherwise provided by regulation promulgated pursuant to section 7601 (d)(2) of this title. When such plan becomes effective in accordance with the regulations promulgated under section 7601 (d) of this title, the plan shall become applicable to all areas (except as expressly provided otherwise in the plan) located within the exterior boundaries of the reservation, notwithstanding the issuance of any patent and including rights-of-way running through the reservation.

(p) Reports
Any State shall submit, according to such schedule as the Administrator may prescribe, such reports as the Administrator may require relating to emission reductions, vehicle miles traveled, congestion levels, and any other information the Administrator may deem necessary to assess the development effectiveness, need for revision, or implementation of any plan or plan revision required under this chapter.


text:
Brown v. Pierce

ERROR to the Supreme Court of Nebraska Territory.

Brown filed his bill in September, 1860, in the court below against three persons, Pierce, Morton, and Weston, alleging that in the spring of 1857, he settled upon and improved a tract of land near Omaha; that he erected a house on the tract and continued to occupy it until August 10th, 1857, when he entered the tract under the pre-emption laws of the United States; that Pierce claimed the land by virtue of the laws of an organization known as the Omaha Claim Club; that this organization, consisting of very numerous armed men, sought to, and did to a great extent, control the disposition of the public lands in the vicinity of Omaha in 1857, in defiance of the laws of the United States; that it frequently resorted to personal violence in enforcing its decrees; that the fact was notorious in Omaha, and that he, Brown, was fully advised in the premises; that as soon as he had acquired title to the land, Pierce, together with several other members of the club, came to his house and demanded of him a deed of the land, threatening to take his life by hanging him, or putting him in the Missouri River, if he did not comply with the demand; that the club had posted handbills calling the members together to take action against him; and that knowing all this, and in great fear of his life, he did, on the 10th of August, 1857, convey the land by deed to Pierce; that he, Brown, received no consideration whatever, for the conveyance; that from the date of his settlement upon said land, until the time of filing the bill, he had continued to keep possession either actually or constructively; that Morton claimed an interest in the premises by virtue of a judgment lien, and that Weston also made some claim.

The prayer was, that the deed might be declared void, and Pierce be decreed to reconvey, and for general relief.

The bill was taken pro confesso as to all the defendants, except Morton, who answered.

This answer, stating that he, Morton, was not a resident of the Territory, and had no knowledge or information about the facts alleged in the bill, but on the contrary was an utter stranger to them, and therefore could not answer as to any belief concerning them,-set forth that on the 28th August, 1857, Pierce was 'the owner and in possession of, and otherwise well seized and entitled to, as of a good and indefeasible estate of inheritance in fee simple,' the tract in controversy; that being so, and representing himself to be so, and having need of money in business, he applied to him, Morton, to borrow the same, and that he, Morton, being induced by reason of the representation, and also by the possession, and believing that he, Pierce, was the owner, he was thereby induced to lend, and did lend to him $6000, on the personal security of him, Pierce; that before the filing of this bill by Brown, he, Morton, had obtained judgment against Pierce for $3400, part of the loan yet unpaid; that this judgment was a lien on the lands; and that as he, Morton, was informed and believed, if he could not obtain his money from this land, he would be wholly defrauded out of it.

The answer further stated that the defendant was informed and believed that Brown, the complainant, entered upon the lands as the tenant of Pierce, and that the suit by the complainant was being prosecuted in violation of the just rights of Pierce, as well as of him, Morton.

There was no replication. Proofs were taken by the complainant, and they showed to the entire satisfaction of the court that all the matters alleged in the bill and not denied by the auswers, were true. There thus seemed no doubt as to the truth of all the facts set out in the bill.

The court below declared Brown's deed void, and decreed a reconveyance from Pierce to him, and that neither Morton nor Weston had any lien on the premises. Morton now brought the case here for review.

Messrs. Carlisle and Woolworth, for the appellant, Morton.

1. No replication having been filed, the cause, as between Brown and Morton, was heard on bill and answer, and it comes here for hearing in the same way. The answer is in such a case to be taken as true. The bill does not state a title in the complainant otherwise than vaguely. The answer avers a good title in Pierce when Morton lent his money.

2. No sufficient case of duress is presented. The club may have been called together, but there is no evidence that they ever came together or would have come together. Conceding, for argument's sake only, that the deed was given under what the law deems duress, still the answer shows a valid lien, perfected by judgment. All the proceedings were had before this bill was filed, and in entire ignorance, on Morton's part, of Brown's claims. Morton is in the same position as a bon a fide purchaser, without notice, would be.

3. Upon its own circumstances, Morton's lien is entitled to protection against Brown's equities. The deed was made August 10th, 1857. The first word of complaint was uttered when the bill was filed, which was September 7th, 1860, three years afterwards. During this period Morton lent his money to Pierce, upon the credit which this land gave him, sued out and levied his attachment, prosecuted his suit, and recovered his judgment; and during all this time, and during all these proceedings, he was kept in entire ignorance of Brown's claims. No reason is shown for this silence and delay. The deed, never more than voidable, must be deemed affirmed by this silence.

Messrs. Redick and Briggs, contra:

1. The title alleged by the answer to have been in Pierce, must, on the facts and the loose allegations of the answer, be assumed to be the one derived from the deed sought to be set aside.

2. Sufficient duress is shown. Brown was under no obligation to wait, before he made the deed, until he had been actually thrown into the river and had come up for the last time; or, if hanging had been the mode of punishment adopted, should he have waited until the rope began to draw about his neck. He did as any prudent man of ordinary courage would have done under the circumstances.

3. The fact that the legal title was standing in Pierce's name at the time of the judgment is unimportant. The general lien of a judgment creditor upon the lands of his debtor, is subject to all equities which existed against the lands in favor of third persons, at the time of the recovery of the judgment. Morton claims only as a judgment creditor, and his lien, if any, is general, not specific. It is not proved that he cannot make the amount of his judgment out of other property of the debtor, as it is not shown that execution has been issued and returned unsatisfied. It was his duty to first exhaust his legal remedies.

Morton lent his money to Pierce in August, 1857, about the time the deed was by Pierce coerced from Brown, and the case shows that Brown was then in the actual possession of the land and has been ever since. Morton stands charged with notice.

Reply: As to the notice. The answer (which, as we have said, being without replication, is to be taken as true), says that Brown entered as Pierce's tenant, and was prosecuting the suit in fraud of his rights. The relation was one then of landlord and tenant.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Brown v. Pierce


text: Talk:Brown v. Pierce

title: Talk:Brown v. Pierce


text:
Page:The Confidence Man.djvu/229

Rh if in this boat, which is a human grain-bin for the time, any sly, smooth, philandering rat be dodging now, pin him, thou high rat-catcher, against this rail."

"A noble burst! shows you at heart a trump. And when a card's that, little matters it whether it be spade or diamond. You are good wine that, to be still better, only needs a shaking up. Come, let's agree that we'll to New Orleans, and there embark for London—I staying with my friends nigh Primrose-hill, and you putting up at the Piazza, Covent Garden—Piazza, Covent Garden; for tell me—since you will not be a disciple to the full tell me, was not that humor, of Diogenes, which led him to live, a merry-andrew, in the flower-market, better than that of the less wise Athenian, which made him a skulking scare-crow in pine-barrens? An injudicious gentleman, Lord Timon."

"Your hand!" seizing it. "Bless me, how cordial a squeeze. It is agreed we shall be brothers, then?"

"As much so as a brace of misanthropes can be," with another and terrific squeeze. "I had thought that the moderns had degenerated beneath the capacity of misanthropy. Rejoiced, though but in one instance, and that disguised, to be undeceived."

The other stared in blank amaze.

"Won't do. You are Diogenes, Diogenes in disguise. I say—Diogenes masquerading as a cosmopolitan."

With ruefully altered mien, the stranger still stood mute awhile. At length, in a pained tone, spoke: "How hard the lot of that pleader who, in his zeal conceding too

title: Page:The Confidence Man.djvu/229


text:
Brown v. Pierce/Opinion of the Court

Representations of the complainant were, that on the tenth of August, 1857, he acquired a complete title to the premises described in the bill of complaint, under the pre-emption laws of the United States, and that thereafter, on the same day, he was compelled, through threats of personal violence and fear of his life, to convey the same, without any consideration, to the principal respondent. Framed on that theory, the bill of complaint alleged that the first-named respondent was at that time a member of an unlawful association in that Territory, called the Omaha Claim Club, and that he, accompanied by three or four other persons belonging to that association, came to his house a few days before he perfected his right of pre-emption to the land in question, and told the complainant that if he entered the land under his pre-emption claim, he must agree to deed the same to him, and added, that unless he did so, he, the said respondent and his associates, would take his life; and the complainant further alleged, that the same respondent, accompanied, as before, by certain other members of that association, came again to his house on the day he perfected his pre-emption claim, and repeated those threats of personal violence, and did other acts to intimidate him, and induce him to believe that they would carry out their threats if he refused to execute the deed as required.

Based upon those allegations, the charge is that the complainant was put in duress by those threats and acts of intimidation, and that he signed and executed the deed, and conveyed the land by means of those threats and certain acts of intimidation, and through fear of his life, and without any consideration; and he prayed the court that the conveyance might be decreed to be inoperative and void, and that the grantee might be required to reconvey the same to the complainant.

Two other persons were made respondents, as claiming some interest in the land in controversy. Pierce, the principal respondent, and Weston, one of the other respondents, were non-residents, and were served by publication pursuant to the rules of the court and the law of the jurisdiction. They never appeared, and failing to plead, answer, or demur, and due proof of publication in the manner prescribed by law having been filed in court, a decree was rendered as to them, that the bill of complaint be taken as confessed.

Morton, the other respondent, appeared and filed an answer, in which he alleged that the principal respondent, on the twenty-eighth of August, 1857, and for a long time before, was the owner in fee of the premises; that he was informed, and believed, that the complainant entered upon the land as the tenant of the principal respondent, and that he was prosecuting this suit in violation of the just rights of all the respondents; that the principal respondent wanting to borrow money, he, the respondent before the court, loaned him a large sum, and accepted bills of exchange for the payment of the same, drawn to the order of the borrower of the money, and which were indorsed by the drawer; that the bills of exchange not having been paid when they became due, he brought suit against the drawer and indorser, and recovered judgment against him for three thousand one hundred dollars; that the judgment so recovered is in full force and unsatisfied, and that the same is a lien on the premises described in the bill of complaint.

No answer, from any knowledge possessed by the respondent, is made to the allegation that the complainant acquired a complete title to the land under the pre-emption laws of the United States, nor to the charge contained in the bill of complaint, that the deed was procured by threats of personal violence amounting to actual duress. On the contrary, the answer alleged that the respondent before the court was an utter stranger to all those matters and things, and that he could not answer concerning the same, because he had no information or belief upon the subject.

Authorities are not wanting to the effect, that all matters well alleged in the bill of complaint, which the answer neither denies nor avoids, are admitted; but the better opinion is the other way, as the sixty-first rule adopted by this court provides that if no exception thereto shall be filed within the period therein prescribed, the answer shall be deemed and taken to be sufficient.

Material allegations in the bill of complaint ought to be answered and admitted, or denied, if the facts are within the knowledge of the respondent; and if not, be ought to state what his belief is upon the subject, if he has any, and if he has none, and cannot form any, he ought to say so, and call on the complainant for proof of the alleged facts, or waive that branch of the controversy; but the clear weight of authority is, that a mere statement by the respondent in his answer, as in this case, that he has no knowledge that the fact is as stated, without any answer as to his belief concerning it, is not such an admission as is to be received as full evidence of the fact.

Such an answer does not make it necessary for the complainant to introduce more than one witness to overcome the defence, and the well-known omissions and defects of such an answer may have some tendency to prove the allegations of the bill of complaint, but they are not such an admission of the same as will constitute a sufficient foundation for a decree upon the merits.

Proper remedy for a complainant, in such a case, is to except to the answer for insufficiency within the period prescribed by the sixty-first rule; but if he does not avail himself of that right, the answer is deemed sufficient to prevent the bill from being taken pro confesso, as it may be if no answer is filed.

Attention is called to the fact, that no replication was filed to the answer; but the suggestion comes too late, as the respondent proceeded to final hearing in the court below without interposing any such objection.

Mere formal defects in the proceedings, not objected to in the court of original jurisdiction, cannot be assigned in an appellate tribunal as error to reverse either a judgment at law or decree in equity.

Legal effect of a replication is, that it puts in issue all the matters well alleged in the answer, and the rule is, that if none be filed, the answer will be taken as true, and no evidence can be given by the complainant to contradict anything which is therein well alleged.

Undenied as the answer is by any replication, it must have its fair scope as an admission; but the court is not authorized to supply anything not expressed in it, beyond what is reasonably implied from the language employed. Proofs were taken by the complainant, and they show, to the entire satisfaction of the court, that all the matters alleged in the bill of complaint, and not denied in the answer, are true, and the conclusion of the court below was, that the complainant acquired a complete title to the land under his pre-emption claim, and that the deed from him to the principal respondent was procured in the manner and by the means alleged in the bill of complaint.

Nothing is exhibited in the record to support any different conclusion, or to warrant any different decree, unless it be found in one or the other of the first two defences set up in the answer.

First defence is, that the principal respondent, on the twenty-eighth of August, 1857, and long before that time, was the owner in fee of the premises; but neither that part of the answer, nor any other, denied that the complainant acquired a complete title to the land, as alleged in the bill of complaint, nor set up any defence in avoidance of those allegations, nor made any attempt to present any defence against the direct charge, that the deed under which the respondent claimed title was procured from the complainant through threats of personal violence and by means of duress. Indefinite as the allegation of title is, the answer must be construed as referring to the title under the deed in controversy, as it is not pretended that the respondent ever had any other, and, if viewed in that light, it is in no respect inconsistent with the conclusion adopted by the Supreme Court of the Territory.

Such an indefinite allegation cannot be considered as presenting any sufficient answer, either to the alleged title of the complainant or to the charge made in the bill of complaint.

Briefly stated, the second defence set up in the answer is, that the respondent was informed and believed that the complainant entered upon the land as a tenant, but the time when the supposed entry was made is not alleged, nor are the circumstances attending the entry set forth, nor is any reason assigned why the allegations were not made more definite, nor is there any fact or circumstance alleged which shows or tends to show that there was any prior owner to the land, except the United States, nor that the respondent ever pretended to have any other title to the same than that derived from the complainant.

Viewed in any light, those allegations must be regarded as evasive and insufficient; and they are not helped by the omission of the complainant to file the general replication. Those parts of the answer being laid out of the case as insufficient to constitute a defence, the conclusion is inevitable that the title to the land was in the complainant as alleged, and that he parted with it through threats of personal violence and by duress, and without any consideration.

Argument to show that a deed or other written obligation or contract, procured by means of duress, is inoperative and void, is hardly required, as the proposition is not denied by the respondent. Actual violence is not necessary to constitute duress, even at common law, as understood in the parent country, because consent is the very essence of a contract, and, if there be compulsion, there is no actual consent, and moral compulsion, such as that produced by threats to take life or to inflict great bodily harm, as well as that produced by imprisonment, is everywhere regarded as sufficient, in law, to destroy free agency, without which there can be no contract, because, in that state of the case, there is no consent.

Duress, in its more extended sense, means that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient, in severity or in apprehension, to overcome the mind and will of a person of ordinary firmness.

Text-writers usually divide the subject into two classes, namely, duress per minas and duress of imprisonment, and that classification was uniformly adopted in the early history of the common law, and is generally preserved in the decisions of the English courts to the present time.

Where there is an arrest for an improper purpose, without just cause, or where there is an arrest for a just cause, but without lawful authority, or for a just cause, but for an unlawful purpose, even though under proper process, it may be construed as duress of imprisonment; and if the person arrested execute a contract or pay money for his release, he may avoid the contract as one procured by duress, or may recover back the money in an action for money had and received.

Second class, duress per minas, as defined at common law, is where the party enters into a contract (1) For fear of loss of life; (2) For fear of loss of limb; (3) For fear of mayhem; (4) For fear of imprisonment; and many modern decisions of the courts of that country still restrict the operations of the rule within those limits.

They deny that contracts procured by menace of a mere battery to the person, or of trespass to lands, or loss of goods, can be avoided on that account, and the reason assigned for this qualification of the rule is, that such threats are held not to be of a nature to overcome the mind and will of a firm and prudent man, because it is said that if such an injury is inflicted, sufficient and adequate redress may be obtained in a suit at law.

Cases to the same effect may be found also in the reports of decisions in this country, and some of our text-writers have adopted the rule, that it is only where the threats uttered excite fear of death, or of great bodily harm, or unlawful imprisonment, that a contract, so procured, can be avoided, because, as such courts and authors say, the person threatened with slight injury to the person, or with loss of property, ought to have sufficient resolution to resist such a threat, and to rely upon the law for his remedy.

On the other hand, there are many American decisions, of high authority, which adopt a more liberal rule, and hold that contracts procured by threats of battery to the person, or the destruction of property, may be avoided on the ground of duress, because in such a case there is nothing but the form of a contract, without the substance.

But the case under consideration presents no question for decision which requires the court to determine which class of those cases is correct, as they all agree in the rule that a contract procured through fear of loss of life, produced by the threats of the other party to the contract, wants the essential element of consent, and that it may be avoided for duress, which is sufficient to dispose of the present controversy.

Next question which arises in the case is, whether the judgment set up by the appellant creates a superior equity in his favor over that alleged and proved by the appellee.

Before proceeding to examine this question, it will be useful to advert briefly to the material facts exhibited in the record.

Title was acquired by the complainant under the preemption laws of the United States, and on the same day the principal respondent, through threats to take his life, if he refused, compelled him to convey the same to that respondent, and the record shows that the respondent before the court, within the same month, loaned the money to the grantee in that deed, for which he recovered judgment, although the grantor was then in possession of the land, and has remained in possession of the same to the present time.

The judgment is founded upon the bills of exchange received for that loan. Judgments were not liens at common law, but several of the States had passed laws to that effect before the judicial system of the United States was organized, and the decisions of this court have established the doctrine that Congress, in adopting the processes of the States, also adopted the modes of process prevailing at that date in the courts of the several States, in respect to the lien of judgments within the limits of their respective jurisdictions.

Different regulations, however, prevailed in different States, and in some neither a judgment nor a decree for the payment of money, except in cases of attachment or mesne process, created any preference in favor of the creditor until the execution was issued, and had been levied on the land. Where the lien is recognized, it confers a right to levy on the land to the exclusion of other adverse interests acquired subsequently to the judgment; but the lien constitutes no property or right in the land itself.

Such judgments and decrees were made liens by the process acts in the Federal districts where they have that effect under the State laws, and Congress has since provided that they shall cease to have that operation in the same manner, and at the same periods, in the respective Federal districts, as like processes do when issued from the State courts. Federal judgments and decrees are liens, therefore, in all cases, and to the same extent, as similar judgments and decrees are, when rendered in the courts of the State.

Express decision of this court is, that the lien of a judgment constitutes no property in the land, that it is merely a general lien securing a preference over subsequently acquired interests in the property, but the settled rule in chancery is, that a general lien is controlled in such courts so as to protect the rights of those who were previously entitled to an equitable interest in the lands, or in the proceeds thereof.

Specific liens stand upon a different footing, but it is well settled that a judgment creates only a general lien, and that the judgment creditor acquires thereby no higher or better right to the property or assets of the debtor, than the debtor himself had when the judgment was rendered, unless he can show some fraud or collusion to impair his rights.

Correct statement of the rule is, that the lien of a judgment creates a preference over subsequently acquired rights, but in equity it does not attach to the mere legal title to the land, as existing in the defendant at its rendition, to the exclusion of a prior equitable title in a third person.

Guided by these considerations, the Court of Chancery will protect the equitable rights of third persons against the legal lien, and will limit that lien to the actual interest which the judgment debtor had in the estate at the time the judgment was rendered.

Objection is also made, that the affidavit showing that the defendants were non-residents, was not in due form, and that the order of notice, and the publication of the same, were insufficient to give the court jurisdiction; but the proposition is not supported by the record, and must be overruled.

DECREE AFFIRMED.

title: Brown v. Pierce/Opinion of the Court


text: Talk:Brown v. Pierce/Opinion of the Court


text:
Silver v. Ladd (74 U.S. 219)

ERROR to the Supreme Court of Oregon.

An act of Congress of 27th September, 1850, providing for the survey and for making donations to settlers of public lands in Oregon,-commonly called the Donation Act,-provides by a part (here quoted verbatim) of its fourth section as follows:

'There shall be, and hereby is, granted to every white settler or occupant of the public lands, American half-breed Indians included, above the age of eighteen years, being a citizen of the United States, or having made a declaration according to law of his intention to become a citizen, or who shall make such declaration on or before the first day of December, 1851, now residing in said Territory, or who shall become a resident on or before the first day of December, 1850, and who shall have resided upon and cultivated the same for four consecutive years, and shall otherwise conform to the provisions of this act, the quantity of one-half section, or 320 acres of land, if a single man, and if a married man the quantity of one section, or 640 acres; one-half to himself and the other half to his wife, to be held in her own right, and the surveyor-general shall designate the part enuring to the husband and that to the wife, and enter the same on the records of his office.'

The fifth section of the same act is thus:

'That to all white MALE citizens of the United States, or persons who shall have made a declaration of intention to become such, above the age of 21 years, emigrating to and settling in said Territory, between 1 December, 1850, and 1 December, 1853, and to all white MALE American citizens not hereinbefore provided for, becoming 21 years of age in said Territory, and settling there between the times last aforesaid, who shall in other respects comply with the foregoing section and the provisions of this law, there shall be, and hereby is granted, the quantity of one-quarter section, or 160 acres of land, if a single man, or if married, or if he shall become married within one year from the time of arriving in said Territory, or within one year after becoming 21 years of age as aforesaid, then the quantity of one-half section, or 320 acres, one-half to the husband and the other half to the wife, in her own right, to be designated by the surveyor-general as aforesaid,' &c.

With these provisions in force, Elizabeth Thomas, an aged widow, went with her son, an unmarried man, to Oregon Territory, and settled there. They leved in the same house. It stood upon the line dividing two parcels of land; the line running through the centre of the building. Cultivation was made on both tracts, one being claimed by the mother, the other by the son. On the 17th of May, 1861, the register and receiver of the proper land office issued a donation certificate, declaring Mrs. Thomas to have made the proof which entitled her to a patent for the tract which she claimed. The son received also a certificate for the adjoining tract, which he claimed. There was no dispute about that tract.

Mr. Thomas had been a widow for more than twenty years when the settlement was made under which she received the certificate. The certificate granted to Mrs. Thomas was subsequently, June 25, 1862, set aside by the Commissioner of the Land Office, on the ground that she was not the head of a family. On appeal to the Secretary of the Interior, the action of the commissioner was affirmed, on the ground that she was not a settler on the land. In January, 1865 (Mrs. Thomas being now dead, and the land in possession of one Silver, legal representative of her son, and only heir, Fenice Caruthers, who died soon after her), the United States sold the land and granted a patent for part of it to one Ladd, and for the residue to a certain Knott. These brought ejectment against Silver in the Circuit Court of the United States upon the patent. Silver thereupon filed a bill in one of the courts of Oregon against them, setting forth the title of Mrs. Thomas, of her son, and of himself, representing that the patents were clouds on the true title, and praying an injunction against the suit at law. The prayer asked further:

'That the said patents may each be declared to be fraudulent, and as being procured by misrepresentation and fraud, and in favor of the rights of plaintiff, and that they be, and each of them, declared cancelled and set aside, and declared fraudulent and void, and that the claims of said defendants, and each of them, be adjudged fraudulent and void, and without authority of law, and that the title of the said premises be adjudged to be in the estate of Fenice Caruthers, deceased, and that the same be quieted, and that the possession thereof be decreed to the plaintiff.'

The court in which the bill was filed dismissed it; and on appeal to the Supreme Court of Oregon the decree was affirmed; that court holding that the donation certificate was void, because Mrs. Thomas, having been an unmarried female, was not such a person as could take lands under the Donation Act. The question here now was the correctness of the affirmance.

Mr. J. S. Smith, for the plaintiff in error:

The grounds taken by the Commissioner of the Land Office and by the Secretary of the Interior seem to be without force. We reply to the argument of the Supreme Court of Oregon.

The word man is to be read in a generic sense, and as meaning person. There is probably not an essay or work of any considerable length published in the English language, alluding to the human race, that does not employ the word constantly in this way. The words 'he' and 'man' are used also frequently in acts of Congress to denote both males and females, especially in many prohibitory and penal sections. So, the naturalization laws-like this act a voluntary concession of favors-use the words 'he,' 'him,' and 'man,' constantly to denote and include both men and women.

The expression 'single man,' in this act, points to the quantity of land rather than the classification of persons.

The qualifications mentioned in section 4 are repeated in section 5, with the addition of the word 'male,' and with a further limitation of persons, by leaving out 'American half-breed Indians.' The age limit is also changed from 18 to 21 years. It is difficult to avoid the conclusion that the difference in phraseology of the two sections was intentional, and the word 'male' was inserted in section 5 and omitted in section 4 for a purpose. To make a word which in common use has both a generic and specific meaning, assume its specific meaning when such meaning is not favored by its position in the context, and is repugnant to the manner in which the legislature have employed other words, would make Congress guilty of discriminating in language without a difference in meaning, and is opposed to the general spirit of the act. Everywhere, through all its parts, the act shows a liberal design and disposition toward making provision for women.

If our view is right, the patent must be cancelled as void. An idea seems to obtain that there is some magic about a patent of the United States which precludes investigation of its validity. But from the beginning, our State courts have entertained a bill to avoid a patent in favor of previously acquired rights, upon precisely the same principles that it would lie to avoid the deed of a private individual, and the United States Supreme Court has taken the same course without exception. The only debatable ground has been to what extent and upon what grounds a patent can be attacked in a court of law.

Messrs. Ashton, Coffey, and Lander, contra:

1. If the word 'man,' as used in section 4, is a generic term, and includes woman as well as man, then it must be a generic term when qualified in the same sentence by the adjective single, as well as when qualified by the adjective married. It cannot have two meanings in the same act, the same section, the same sentence. If by the word man, man alone is meant, the section and sentence have force and meaning; if both are included, the meaning of the clause is destroyed. It would read thus:

'There shall be, and hereby is, granted to every white settler or occupant of the public lands, American half-breed Indians included, &c. If a single man (or woman), and if a married man, (or woman), or if he (or she) shall become married within one year from the 1st of December, 1850, the quantity of one section, or six hundred and forty acres, one half to himself (or herself) and the other half to his wife, to be held by her in her own right.'

This reading is absurd on its face.

2. The state of the Territory of Oregon at the time this law was passed, and the condition of its laws with reference to land, forbid the construction set up by the appellant. Oregon, by treaty, was open to the joint occupation of the subjects of Great Britain and the United States. Under the treaties, citizens of the United States, as is well known, had braved the dangers and endured the privations of an overland journey across the continent, and settled among tribes of Indians which were both hostile and treacherous. Without government or protection, they created a provisional government, and enacted a land law suitable to their wants, and proper to the condition of the country, where a man had to defend as well as to labor upon the land which he claimed and allotted to himself. Under such circumstances, the words 'any person,' in the provisional land law, could hardly be intended to include a single woman. This court, in Stark v. Starrs, goes far to sustain the doctrine that Congress had this land law in view when they passed the act of 27th of September, 1850. The construction put upon the act by the Supreme Court of Oregon, whose judgment it is now sought to reverse, is, in effect, an interpretation of a State law by the courts of the State itself.

3. Confessedly Mrs. Thomas was an old woman when she went to Oregon, how old don't clearly appear, but certainly aged. She could not have made the cultivation required. In fact she lived in her son's hourse; he made the settlement, if any was made, but confessedly it was not on this tract. He, not she, was the head of a family. The objections of the commissioner and secretary are, therefore, not without force, though less conclusive than those of the Supreme Court of Oregon.

Mr. Justice MILLER delivered the opinion of the court.

title: Silver v. Ladd (74 U.S. 219)


text: Talk:Silver v. Ladd (74 U.S. 219)

title: Talk:Silver v. Ladd (74 U.S. 219)