text:
County of Greene v. Daniel County of Pickens/Opinion of the Court

The principal questions in these cases are:--

1. Whether the demurrer to the complaint should have been sustained because it was not averred specially that the coupons sued on were presented to the court of county commissioners for allowance before the suit was brought; and,

2. Whether the bonds from which hte coupons were cut were void because they were not of the same denomination as those specified in the proposition of the railroad company for subscription, submitted to and voted on by the county.

As to the first question. By the Code of Alabama, sect. 826[907], it is provided that the court of county commissioners must, in term-time, audit all claims against their respective counties; that every claim as allowed must be registered in a book kept for that purpose, and that the judge of probate, who is made by law the principal judge of the court (Code, sect. 739[825]), shall give the claimant a warrant on the treasury for the amount allowed. This warrant it is made the duty of the county treasurer to pay on presentation, if he has funds in the treasury to meet it. Code, sect. 3395[920]. No claim can be passed upon or allowed by the court unless it is itemized and sworn to by the claimant, or some person in his behalf having knowledge of the facts. Code, sect. 827. All claims must be presented for allowance within twelve months after they accrue and become payable, or they will be barred, unless the claimant is a minor or lunatic. Sect. 832[909]. 'No suit can be brought against a county until the claim or demand has been presented within the time limited by sect. 832[909] to the court of county commissioners and either disallowed or reduced by such court, and refused by the party.' Code, sect. 2903[2537].

A county in Alabama is a body corporate, capable of suing and being sued. Code, sect. 815[897]. In Shinbone v. Randolph County [56 Ala. 183), which was a suit on coupons cut from railroad bonds, while it was held to have been definitely settled that an action at law did not lie against a county on a contract which had not been presented to the commissioners' court, and by that court disallowed in whole or in part, and that such presentment and disallowance must be averred in the complaint, it was nevertheless said: 'It may be the claims on which this action is founded are not required to be presented to the commissioners' court for allowance. The statute under which the bonds were issued . . . may fix definitely their validity and amount. If that be true,-and as the case is not presented, it is not for us to determine whether it is or not,-if the commissioners' court refuses to levy a tax for their payment, mandamus to compel them is the appropriate remedy for appellant.' p. 185. In Commissioners' Court of Limestone County v. Rather (48 id. 433), it was expressly decided that bonds issued in payment of a subscription to a railroad company, signed by a majority of the court of county commissioners in the presence of the probate judge, who certified to that fact, and for the payment of which it was made the duty of the commissioners' court to levy and assess a special tax each year, were not such claims as need be presented for allowance under this section of the code. In the opinion, the court said: 'The act authorizing their issuance renders it wholly unnecessary that they should be allowed by the court of county commissioners, and they are not required to be registered as claims of a different character, nor are they to be paid by warrants on the county treasurer, but altogether in a different way.' p. 446.

The bonds in the present cases were issued under the act to authorize the several counties, towns, and cities of Alabama to subscribe to the stock of railroads, passed Dec. 31, 1868. Pamph. Acts 1868, 514. This act provided (sect. 1) that railroad companies might, in writing, propose to a county that it subscribe for an amount of the capital stock of the company, to be named in the proposal, at a certain price per share, and pay for it in such bonds of the county 'as should be set forth in said proposal.' This proposal or application was (sect. 2) to be submitted to the commissioners' court of the county, and that court was authorized and required to order an election within sixty days, to enable the qualified electors of the county to determine whether the proposition should be accepted or rejected. At least (sect. 4) thirty days before the election the court was required to give notice of the 'terms and amount of the proposed subscription.' The returns of the election were to be made to the judge of probate (sect. 5), whose duty it was to receive, count, estimate, and publish the vote. If a majority (sect. 6) was found to be in favor of the subscription, the proposition was to be deemed to have been accepted, and the court of county commissioners was required to make the subscription voted in behalf of the county for the amount set forth in the proposal, and deliver the railroad company, in payment of the subscription, bonds of the county, having not less than ten nor more than twenty years to run, with interest coupons attached for semi-annual interest, payable at such times and places as might be agreed upon between the company and the judge of probate. By sects. 7 and 8 it was made the duty of the commissioners' court to levy and see to the collection of such tax, not exceeding one per cent per annum on the taxable value of the property in the county, as should be necessary to meet the interest as it fell due; and by sect. 10 the coupons past due were receivable at par in payment of this tax.

The bonds and coupons in these cases were signed by the judge of probate of the county, as the presiding officer of the commissioners' court; and it seems to us that they are, in legal effect, themselves warrants on the treasurer, given by the judge of probate after an allowance by the court of the claim of the railroad company for the payment of the county subscription, in accordance with the terms of the accepted proposal. The claim was, to all intents and purposes, audited by the court when the bonds were issued. The validity and amount of the liability were then definitely fixed, and warrants on the treasury given, payable at a future day. The treasurer could pay them when due on presentation without further action of the court, if he had funds in his hands applicable to that purpose. In his hands they would be good vouchers for money disbursed from that fund. The provision that the coupons should be received in payment of taxes levied to meet them is entirely inconsistent with any idea of an unliquidated claim which required further auditing.

In the State courts, under the rule as stated in Shinbone v. Randolph County (supra), and other cases, a mandamus would lie without reducing the coupons to judgment, to compel the commissioners' court to levy and collect the taxes necessary to pay what was due. The rule is different, however, in the courts of the United States, where such a writ can only be granted in aid of an existing jurisdiction. There a judgment at law on the coupons is necessary to support such a writ. The mandamus is in the nature of an execution to carry the judgment into effect. Bath County v. Amy, 13 Wall. 244; Graham v. Norton, 15 id. 427. A suit, therefore, to get judgment on the bonds or coupons is part of the necessary machinery which the courts of the United States must use in enforcing the claim, and the jurisdiction of those courts is not to be ousted simply because in the courts of the State a remedy may be afforded in another way.

As to the second question. Sect. 11 of the act under which the bonds were issued provides 'that the bonds. . . shall be of such denomination as the court of county commissioners. . . and said railroad company may agree upon, but not to be for less than one hundred dollars, nor more than one thousand dollars.'

In the proposition of the company to Greene County, it was suggested that the bonds to be issued in payment of the subscription should be 'in the sum of one and five hundred thousand dollars each.' In the records of the court ordering the election, the proposition, as recorded, is that the bonds be 'in the sum of one thousand five hundred dollars each.' The final action of the court was to issue bonds of five hundred dollars.

In the Pickens County case the proposition was that the bonds be in the sum of one thousand dollars each; but after the election, with the consent of the company, it was ordered by the court that one half the amount should be in the sum of two hundred and fifty dollars, and the other half one thousand dollars each; and the bonds actually put out were of these denominations.

As to the Greene County case, it is apparent that there was a clerical mistake, either in the proposal or the record, as to the description of the bonds to be issued, and it is easy to see that the intention was to have bonds of a thousand dollars and five hundred dollars each; but in the Pickens County case the proposition was distinctly that they should be for one thousand dollars. This, however, we consider unimportant, for sect. 11 expressly provides for bonds of such denomination as the commissioners' court and the company should agree on. From this it is clear that the parties were not bound in this particular by the sums specified in the proposal. They were limited by the proposition as accepted in respect to the total amount of the issue, but not the denomination. The bonds as issued were of such denominations as the law allowed the court and the company to agree on, and that, in our opinion, is enough.

The only other assignments of error relate to the sufficiency of the second and third pleas. As to these, it is sufficient to say that we are entirely satisfied with the rulings below. Bonds issued under the authority of a popular election cannot be set aside simply because all that may have been said by interested parties, in public speeches during the canvass which preceded the election, does not turn out to be in every respect true.

Judgment in each case affirmed.


text: Talk:County of Greene v. Daniel County of Pickens/Opinion of the Court

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


text:
Page:Folk-lore - A Quarterly Review. Volume 5, 1894.djvu/65

 Rh admitted. The conclusion, therefore, by Col. Ellis cannot rest on this. But the conclusion itself is disputed by Professor Robertson Smith's well-known theory of the origin of religion in the tribe, and its gradual localisation.

I think I can see that a part of the difference between Col. Ellis and those who have argued for opposite views is perhaps due to a want of harmony in matters of terminology, so fruitful a source of error in our science; but it is clear that this does not account for all the difference. On p. 209, Col. Ellis, in discussing the law of debt, says it "seems to show that the community preceded the family, which one would certainly expect to be the case, when it is remembered that men must have dwelt together in groups long before any such notion as that of kinship had been formed." And in pages previous to this passage Col. Ellis has discussed the beliefs and examined the customs and ritual of the Ewe-speaking people, on the fundamental principle that the oldest cult consists of the worship of local deities, that these disappear, the tribes changing from place to place, and the local deities gradually developing into a tribal worship, and ceasing as local worship. Col. Ellis's theory seems well supported by his evidence, and I should hesitate to oppose it by the result of any researches of my own. But it is diametrically opposite to the central theory of Professor Robertson Smith's researches into Semitic belief, and the importance of the question to folk-lorists is of great magnitude. Local cults seem to me to be a very large element in folk-lore. If their decay commences in primitive times, as the result of their development into primitive tribal belief, how is it that we have them surviving in the latest times as an important element in folk-lore? If it is right to compare the folk-lore of modern civilisation with the beliefs and customs of savages—and, of course, our Society especially has strenuously advanced this right—we must be quite sure of the grounds of our comparison. If Col. Ellis's theory is correct, the local cults in folk-lore


text:
Recknagel v. Murphy

ERROR to the Circuit Court of the United States for the Southern District of New York.

This was a suit brought against Murphy, then collector of customs at the port of New York, by Recknagel & Co., to recover the amount of certain duties which they paid to him under the following protest:--

'NEW YORK, Dec. 27, 1871.

'SIR,-We protest against the assessment of duty at six cents per lb. upon the argols imported by us in the city of New York from Liverpool, and entered for consumption Nov. 14, 1871, because the act of July 14, 1862, sect. 5, as far as it relates to argols or crude tartar, is repealed by the act of July 14, 1870, sect. 22. We pay under duress to get our goods.

'RECKNAGEL & CO.

'COLLECTOR OF CUSTOMS,

'New York City.'

Judgment was rendered for the defendant. The plaintiffs' sued out this writ of error.

The facts are stated in the opinion of the court.

Mr. William J. Stanley and Mr. Stephen G. Clarke for the plaintiffs in error.

Mr. Assistant Attorney-General Smith, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Recknagel v. Murphy


text: Talk:Recknagel v. Murphy

title: Talk:Recknagel v. Murphy


text:
Recknagel v. Murphy/Opinion of the Court

The subject to which the controversy relates is an article known in commerce as argols. Sect. 5 of the act of Congress of July 14, 1862 (12 Stat. 547), imposed upon 'argols or crude tartar' a duty of 'six cents per pound.'

Sect. 22 of the act of July 14, 1870 (16 Stat. 266), exempted 'argols crude' wholly from duty, by putting the article in the free list created by that act.

Both these acts were in force when the importations in question were made.

The controversy between the parties therefore narrows itself down to the question whether the argols of the plaintiffs upon which the duties complained of were exacted and paid were 'argols crude' or not. If crude, they were not dutiable, and the plaintiffs were entitled to recover; otherwise, the defendant was entitled to a verdict in his favor.

The subject was a proper one to be enlightened by evidence and passed upon by the jury. Both were done, and a verdict and judgment for the defendant was the result.

When wine ferments, certain deposits cling to the sides or fall to the bottom of the casks. These deposits are mingled with a variety of impurities, such as glucose, leaves, sticks and particles of dust, silicate and other like things. By washing in cold water, these impurities are removed and the crude tartar is left free from their presence. The effect of the cold water is mechanical. When boiling water is applied sufficiently, crystallization and re-crystallization take place, and the product is the cream of tartar of medicine and commerce. There is refinement in the latter case, but no chemical change is wrought. Argols are used also for making tartaric acid, Rochelle salts, the preparation of tartrate of antimony, and potash called tartar emetic, as a mordant in dyeing, and for other purposes. Argols and crude tartar are synonyms. The phrases are used convertibly by those who deal in the article.

The lexical definition of crude is: 'In its natural state; not cooked or prepared by fire or heat; undressed; not altered, refined, or prepared for use by any artificial process; raw.' See Webster's Dic.

Upon the trial the plaintiffs produced and identified samples of argols of the several importations upon which the duties were paid, and gave proof tending to support their case. The defendant then gave proof tending to maintain the claim of the government. The testimony of the witnesses on both sides is set out at length in the bill of exceptions. That paper then proceeds: 'A large number of witnesses were called by the defendant from the trade and from among the manufactures of cream of tartar, and dealers and others, whose testimony tended to prove that there was an article of commerce and importation unlike the plaintiffs' samples which was in fact 'crude argols;' that the plaintiffs' samples exhibited at the trial were not 'crude argols;' that said samples differed from 'crude argols,' &c. . . . These witnesses also testified uniformly that plaintiffs' samples were refined argols, and in that there was a difference between them and crude argols, &c. . . . Samples of 'crude argols' were exhibited which differed as above stated from those exhibited by the plaintiffs. Also, that there was a difference between crude argols and the lees of wine, and that all these differences were well understood by the trade and by manufacturers.'

The court, after recapitulating with entire fairness the substance of the testimony, said to the jury: 'The only question for you to determine is whether these argols were 'argols crude,' those known to commerce as such or those known to science as such, or whether they were argols that were more or less refined.'

This instruction was clear and accurate, and it covered the entire ground of the controversy. Nothing more was necessary to be said. No amount of verbiage would have improved it. The jury could have no difficulty in applying it intelligently to the facts before them.

They knew from the evidence that if there were no substantial change in the condition of the argols, as they were when they came from the wine cask, they were crude. On the other hand, if there were such change wrought by a process to which the argols were subjected, they lost their identity, and took their place in a new and different category. According to the nomenclature of commerce, they ceased to be crude, and became refined. They could not be both at the same time. The measure of refinement was of no consequence, provided it was sufficient to be material. The elaborate brief submitted for the government shows that, in the customers laws passed from time to time by Congress, exact analogies to the case in hand have constantly occurred and are numerous. It is unnecessary particularly to advert to them.

In cases like this, the law recognizes the authority of those engaged in commerce, and adopts, necessarily and as conclusive, the meaning which they have given to words and phrases employed in their daily business.

It is needless to notice specifically the several assignments of error. They relate to the instruction given, and to several asked by the counsel for the plaintiffs and refused by the court. As regards the former, we have expressed our approval.

If the latter were in conflict with it, they were properly refused for that reason.

Conceding that they were correct, the instruction given was sufficient for the case. Nothing more could, therefore, be required of the court. National Bank v. Burkhardt, 100 U.S. 686.

Judgment affirmed.


text: Talk:Recknagel v. Murphy/Opinion of the Court


text:
The Clara

APPEAL from the Circuit Court of the United States for the Eastern District of New York.

The facts are stated in the opinion of the court.

Mr. Henry J. Scudder for the appellants.

Mr. Robert D. Benedict and Mr. E. L. Owen, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: The Clara


text: Talk:The Clara

title: Talk:The Clara


text:
The Clara/Opinion of the Court

This is an appeal in admiralty. The case grew out of a collision between the schooners 'Clara' and the 'Julia Newell,' on the 25th of February, 1874, inside the Delaware Breakwater. The owners of the latter vessel libelled the former. The libel was dismissed below. Hence this appeal. The facts were found by the Circuit Court pursuant to the act of Congress of April 13, 1876, c. 77 (18 Stat. 315), which in this respect is a re-enactment of the nineteenth section of the Judiciary Act of 1789, c. 20. 1 Stat. 83.

The first-named act limits the power of this court upon appeals in such cases 'to a determination of the questions of law arising upon the record, and to such rulings of the Circuit Court, excepted to at the time, as may be presented by a bill of exceptions.' Here there is no bill of exceptions. As respects the facts, we cannot, under any circumstances, look beyond the findings in the record. The Abbotsford, 98 U.S. 440. The only question before us is as to the correctness of the conclusion of law arrived at by the Circuit Court. That, also, is set forth pursuant to the requirement of the act of 1876, and follows in the record the findings of fact.

The facts as found are as follows:--1st, The collision occurred inside of the Delaware Breakwater, and the 'Newell' was thereby sunk. The 'Newell' was a small vessel of seventy-eight tons burden. In the afternoon of the 23d of February, 1874, she anchored within the breakwater for shelter from an approaching storm. The 'Clara,' being on a voyage from New York to Baltimore, foreseeing the coming storm, bore away and also put into the breakwater for safety. She arrived about five o'clock A.M. on the 25th of February, 1874, and while proceeding to a proper anchorage collided with the 'Newell.' There were then a large number of vessels in the breakwater, and others were constantly arriving.

2d, That at the time the 'Clara' entered the breakwater the night was cold and very dark, the moon having gone down several hours before. That the 'Julia Newell' was improperly lying without a watch on deck. That the storm was increasing, and set in about the time the 'Clara' came to anchor, and was a very severe snow-storm.

3d, If the 'Newell' had had a sufficient watch on deck, the accident might have been prevented.

4th, The 'Clara' was well manned, and had proper lights and a proper lookout.

The conclusion of the court as to the law of the case is thus expressed:--

The failure to keep a watch on the deck of the 'Julia Newell' was the cause of the collision.

Looking at the case in the light of the findings of fact, no fault whatsoever, of omission or commission, is imputable to the 'Clara.' It is true it was her duty, under the circumstances, to enter the breakwater and proceed to her anchorage with the greatest care and circumspection. Culbertson v. Shaw, 18 How. 584.

Whether there was any failure on her part to comply with this requirement is not shown. But the maxim applies, quod non apparet non est. The fact not appearing is presumed not to exist. The libellants brought the case into court and thus assumed the affirmative. The burden of proof rested primarily upon them. If in this or in any other respect there was delinquency on the part of the respondents, it was for the libellants to prove it. As the case is presented to us in the record, the 'Clara' must be held entirely blameless.

Such is not the position of the 'Newell.' The findings as to her put her deeply in the wrong. The night was dark. The moon had gone down. The tempest had begun and was increasing. A large number of vessels were already within the breakwater, and others were constantly arriving.

This condition of things demanded the greatest vigilance on the part of all concerned.

It was necessary to their safety. Life and property were both at stake. The 'Newell' had been at anchor more than twenty-four hours, and the officers in charge of her had ample time for thought and preparation. Yet it is found that amid these perils she was 'lying without a watch on deck,' and if she had had 'a sufficient watch' the collision that ensued 'might have been prevented.'

There is nothing in the record which mitigates in any degree the severe condemnation which such recklessness invokes. Her fault is without excuse.

The rules of law which apply in these cases are well settled.

Where the fault is wholly on one side, the party in fault must bear his own loss, and compensate the other party, if such party have sustained any damage. If neither be in fault, neither is entitled to compensation from the other. If both are in fault, the damages will be divided. 1 Parsons, Shipp. & Adm. 525, 526; The Morning Light, 2 Wall. 550; Union Steamship Co. v. New York & Virginia Steamship Co., 24 How. 307.

The want of a proper watch is a fault of great weight. 1 Parsons, Shipp. & Adm. 576, 577; The Sapphire, 11 Wall. 164; The Indiana, Abb. Adm. 330; The Mary T. Wilde, Taney's Dec. 567; The Ferryboat Lydia, 4 Ben. 523. In a cause of collision, the plaintiff, in order to recover entire damages, must prove both care on his own part and want of it on the part of the defendant. 1 Parsons, Shipp. & Adm. 529 and note 2.

This case falls clearly within the first of the categories above stated.

Decree affirmed.

title: The Clara/Opinion of the Court


text: Talk:The Clara/Opinion of the Court

title: Talk:The Clara/Opinion of the Court


text:
Louisiana v. New Orleans

ERRORto the Supreme Court of the State of Louisiana.

Morris Ranger recovered, May 1, 1874, against the city of New Orleans certain judgments. To enforce the collection of them, he instituted, June 21, 1879, this proceeding, in the name of the State on his relation in the Third District Court of the Parish of Orleans, for a peremptory mandamus to compel the mayor and administrators of the city to levy and collect a special tax sufficient in amount to satisfy the judgments.

The following statement of facts facts signed by the attorneys for the respective parties was filed:--

'1st, That the judgments which are made the basis of this mandamus proceeding were rendered for the amounts-principal, interest, and costs-and at the dates stated in the petition, and had for their basis bonds issued by the city of New Orleans in 1854, to the New Orleans, Jackson, and Great Northern Railroad Company, and New Orleans, Opelousas, and Great Western Railroad Company.

'2d, That writs of fieri facias were issued on said judgments, and after demand made upon the city were returned nulla bona, and that the city has no property liable to seizure and sale.

'3d, That said judgments have never been registered in accordance with the provisions of the act of 1870.

'It is further agreed that this statement of facts is made in lieu of the note of evidence taken at the trial, which has been mislaid.'

The remaining facts and the statute bearing upon the case are set forth in the opinion of the court.

Mr. D. C. Labatt for the plaintiff in error.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Louisiana v. New Orleans


text: Talk:Louisiana v. New Orleans

title: Talk:Louisiana v. New Orleans


text:
Louisiana v. New Orleans/Opinion of the Court

This case comes here from the Supreme Court of Louisiana. On the 1st of May, 1874, the relator recovered in one of the courts of that State against the city of New Orleans, two judgments, amounting in the aggregate to $170,000, besides costs. Upon these judgments executions were issued and returned unsatisfied, after demand upon the officers of the city to point out property belonging to it subject to seizure, to be levied upon to satisfy the same. The relator thereupon presented a petition to the Third District Court of the Parish of Orleans, setting forth these facts and averring that it was the duty of the mayor and administrators of the city to provide for the payment of the judgments by levying and collecting a tax for that purpose; but that they refused to do this; and that he was unable to satisfy the judgments by the ordinary process of execution. He therefore prayed for an order upon the mayor and administrators to show cause why a writ of mandamus should not issue to compel them to levy and collect a tax to satisfy the judgments.

The order to show cause was granted, and upon its return the respondents filed a peremptory exception to the relator's demand, denying that he was entitled to the relief prayed; but the District Court granted the writ. Its judgment was, on appeal to the Supreme Court of the State, reversed and a decree entered dismissing the petition. The case was then brought here.

The city authorities resisted the demand of the relator for the mandamus, on the ground that he had not registered his judgments as required by the provisions of the act No. 5 of 1870. That act divests the courts of the State of authority to allow any summary process or mandamus against the officers of the city of New Orleans to compel the issue and delivery of any order or warrant for the payment of money, or to enforce the payment of money claimed to be due from it to any person or corporation; and requires proceedings for the recovery of money claimed to be owing by the city to be conducted in the ordinary form of action against the corporation, and not against any department, branch, or officer thereof. The act also provides that no writ of execution or fieri facias shall issue against the city, but that a final judgment against it, which has become executory, shall have the effect of fixing the amount of the plaintiff's demand, and that he may cause a certified copy of it, with his petition and the defendant's answer and the clerk's certificate that it has become executory, to be filed in the office of the controller, and that thereupon it shall be the duty of the controller or auditing officer to cause the same to be registered, and to issue a warrant upon the treasurer or disbursing officer of the corporation for the amount due thereon, without any specific appropriation therefor, provided there be sufficient money in the treasury specially designated and set apart for that purpose in the annual budget or detailed statement of items of liability and expenditure pursuant to the existing or a subsequent law.

The act further provides that in case the amount of money designated in the annual budget for the payment of judgments against the city of New Orleans shall have been exhausted, the common council shall have power, if they deem it proper, to appropriate from the money set apart in the budget or annual estimate for contingent expenses, a sufficient sum to pay the same; but if no such appropriation be made, then that all judgments shall be paid in the order in which they shall be filed and registered in the office of the controller of the city from the first money next annually set apart for that purpose.

The Supreme Court of the State, whilst observing that the act might contain provisions which, if invoked, would be considered unconstitutional, held that, so far as it required the registry of judgments before payment, it was valid; that this requirement was a wise and useful provision, tending to restrain and check the reckless levy of taxes, and affording in a compact form a correct knowledge of the city's liabilities; that it was made in the interest of economy and the orderly conduct of the city's affairs, and neither took away any pre-existing right nor rendered less effective any pre-existing remedies, and that the relator was, therefore, premature in his action; that he should first register his judgments, and then, if payment was not made or adequately provided for in the next levy, he might proceed to enforce it.

The relator, on the other hand, assails the constitutionality of the act in question, contending that it impairs the obligation of his contracts with the city, the validity of which by the judgments thereon is not open to question, in that it compels him to do acts, preliminary to the payment of his judgments, not required when the contracts were made, and deprives him of his remedy by mandamus; and cites numerous decisions of this court, and of the State courts, upon the nature and extent of the constitutional inhibition against the impairment of contracts by State legislation. These decisions are familiar to us.

The obligation of a contract, in the constitutional sense, is the means provided by law by which it can be enforced,-by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means impairs the obligation. If it tend to postpone or retard the enforcement of the contract, the obligation of the latter is to that extent weakened. The Latin proverb, qui cito dat bis dat,-he who gives quickly gives twice,-has its counterpart in a maxim equally sound, qui serius solvit, minus solvit,-he who pays too late, pays less. Any authorization of the postponement of payment, or of means by which such postponement may be effected, is in conflict with the constitutional inhibition. If, therefore, we could see that such would be the effect of the provision of the act of the State, No. 5 of 1870, requiring judgments to be registered with the controller before they are paid, we should not hesitate to declare the provision to be invalid. But we are not able to see anything in the requirement which impedes the collection of the relator's judgments, or prevents his resort to other remedies, if their payment be not obtained. The registry is a convenient means of informing the city authorities of the extent of the judgments and that they have become executory, to the end that proper steps may be taken for their payment. It does not impair existing remedies.

We do not know, from anything in the record before us, that there are any other judgments against the city of New Orleans than the two obtained by the relator, or that the city is indebted in any other sum; nor can we say that there are not ample means already in the treasury of the city of their payment, and that, upon their registry, a warrant for the amount will not be at once issued and paid. If the money be already in the treasury appropriated for their payment, or if provision be made for the levy and collection of taxes sufficient to pay them, it cannot be justly said that the relator is delayed in enforcing them by being required to place a certified copy of the judgments with the controller of the city before getting a warrant on its treasury for the amount due him. If such warrant, when obtained, be not paid, or provision be not made for its payment upon the meeting of the city council, the relator can pursue further remedies for the collection of his judgments.

Decree affirmed.


text: Talk:Louisiana v. New Orleans/Opinion of the Court


text:
Solomon v. Arthur

ERROR to the Circuit Court of the United States for the Southern District of New York.

This was an action brought by Solomon Solomon and others, constituting the firm of Solomon Brothers, against Arthur, the collector of the port of New York. The following facts were admitted upon the trial, it being agreed that neither party should offer any evidence.

Plaintiffs are partners in business, and as such imported at the port of New York, in December, 1873, and January, 1874, certain goods manufactured of silk and cotton. The defendant exacted upon them a duty of fifty per cent ad valorem, which rate the plaintiffs paid under protest, the substantial part of which is, that under existing laws the goods are only liable to a duty of thirty-five per cent, because they are provided for at that rate by sect. 22 of the act of March 2, 1861, and sect. 13 of the act of July 14, 1862. This protest was followed by an appeal to the Secretary of the Treasury, who affirmed the decision of the collector. This suit was brought in due time.

The goods were composed of silk and cotton, in varying proportions, the warp being all cotton and the filling partly silk. It is admitted by the plaintiffs, for the purpose of this case, that silk was the component material of chief value. The goods generally are known in trade and commerce as goods made of mixed materials, but each kind thereof is also known by its specific name. If the plaintiffs are entitled to recover, judgment shall be rendered in their favor for the difference between thirty-five and fifty per cent, which amount is $461.75 gold, with $75.40 interest in currency.

Mr. Edward Pierrepont and Mr. William Stanley for the plaintiffs in error.

The jury found a verdict for the defendant pursuant to the instructions of the court, and the plaintiffs sued out this writ.

The duty was exacted under the last clause of sect. 8 of the act of June 30, 1864, which imposes fifty per cent ad valorem 'on all manufactures of silk, or of which silk is the component material of chief value, not otherwise provided for.' 13 Stat. 202, 210.

It is plain that the commercial designation of the goods in question was, 'goods made of mixed materials.' A commercial designation is that 'known in trade and commerce.'

The tariff acts recognize two species of dutiable goods, into one of which silk must enter and be 'the component part of chief value,' and a totally distinct kind of 'mixed goods,' into which silk may or may not enter in part, as the case may be.

We invite attention to the act of Aug. 5, 1861, and the act of March 2, 1861. Sect. 16 of the latter act prescribes: 'On silk ribbons, galloons, braids, fringes, laces, tassels, buttons, button cloths, trimmings, and on silk twist, twist composed of mohair and silk, sewing-silk in the gum or purified, and all other manufactures of silk or of which silk shall be the component material of chief value, not otherwise provided for, thirty per cent ad valorem.' 12 Stat. 186. Sect. 22 describes the other kind, in these words: 'Manufactures, not otherwise provided for, composed of mixed materials in part of cotton, silk, wool or worsted, or flax.' Id. 192. Sect. 2 of the act of August 5, which raises the duty on silk goods to forty per cent, leaves that on 'mixed goods' at thirty per cent. The enumeration of the silk goods on which the duty was raised to forty per cent is precisely the same, word for word, as in the preceding act. Id. 293.

By sect. 13 of the act of July 14, 1862, the duty on 'manufactures composed of mixed materials in part of cotton, silk, wool, or worsted, hemp, jute, or flax,' was raised to thirty-five per cent. Id. 557.

No higher duty than thirty-five per cent had ever been imposed by any statute upon this class of goods. And it is here to be noted that the statute of 1862, which increased the duty on 'manufactures composed of mixed materials,' did not change the duty upon goods of which silk was the component material of chief value.

The attempt is now made to strain the statute of 1864, relating to silk goods, to cover 'manufactures composed of mixed materials,' into which silk may so enter as to form the more costly part.

After enumerating some thirty silk manufactures, the section ends in the words we have first quoted.

The class of goods 'known in trade and commerce as goods made of mixed materials,' which are specifically named in the other statutes, and upon which the duty was in 1861, thirty per cent, and in 1862 thirty-five per cent, is nowhere alluded to in this statute of 1864. Sect. 22 expressly provides 'that the duties upon all goods, wares, and merchandise imported from foreign countries not provided for in this act shall be and remain as they were, according to existing laws prior to the 29th of April 1864' (13 id. 216), and 'that all acts and parts of acts repugnant to the provisions of this act be, and the same are hereby, repealed.'

Thus we find running through the statutes these two classes of manufactures: those into which silk must enter; and the 'mixed manufactures,' into which silk might or might not enter. It is an admitted fact that the goods in question are generally known in trade and commerce as goods made of mixed materials; but inasmuch as 'silk was a component material of chief value,' it is argued by the learned Assistant Attorney-General that these 'mixed goods' must pay a duty of fifty per cent, under the act of 1864, which relates to a totally different kind of goods.

Surely no such construction can fairly be given to the acts, and such ruling would be quite out of harmony with numerous decisions of this court. Arthur v. Zimmerman, 96 U.S. 124; Arthur v. Unkhart, id. 118; Arthur v. Lahey, id. 112; Arthur v. Davies, id. 135; Arthur v. Homer, id. 137; Reiche v. Smythe, 13 Wall. 162; Homer v. The Collector, 1 id. 486, and the long list of earlier cases on commercial designation.

Mr. Assistant Attorney-General Smith, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Solomon v. Arthur


text: Talk:Solomon v. Arthur

title: Talk:Solomon v. Arthur


text:
Solomon v. Arthur/Opinion of the Court

It is obvious that the goods in question came under the designation of the last clause of sect. 8 of the act of June 30, 1864 (13 Stat. 210), which days a duty 'on all manufactures of silk or of which silk is the component part of chief value, not otherwise provided for, fifty per centum ad valorem.' That duty was, therefore, properly assessed, unless the articles imported were 'otherwise provided for.' And that is the question. The plaintiffs insisted then, and insist now that a duty on these goods was 'otherwise provided for' by the acts of March 2, 1861, sect. 22, and July 14, 1862, sect. 13, as 'manufactures composed of mixed materials, in part of cotton, silk, wool or worsted, or flax,' on which a duty of only thirty per cent was laid by the act of 1861, and of five per cent additional by the act of 1862. 12 Stat. 192, 557.

Previous acts were not repealed in toto by the act of June 30, 1864, but it was declared by sect. 22 that 'all acts and parts of acts repugnant to the provisions of this act be, and the same are hereby, repealed,' with a proviso 'that the duties upon all goods, wares, and merchandise imported from foreign countries, not provided for in this act, shall be and remain as they were, according to existing laws prior to 29th April, 1864.'

The act of 1864 contained no separate provision for a duty on goods composed of 'mixed materials,' like that in the acts of 1861 and 1862, on which the plaintiffs rely. They contend, therefore, that those clauses still continued in force, and that the goods imported by them were embraced therein, and were not intended to be embraced in the general clause in the act of 1864, under which the collector exacted the duty in question. The plaintiffs insist that the term 'mixed materials,' or 'goods made of mixed materials,' is a specific and wellknown commercial designation or name, which by usage covers the goods imported by them, and is not a descriptive phrase used merely to designate any class of goods answering to the description; and, therefore, although they may be embraced in the general description of the act of 1864, of goods 'in which silk is the component part of chief value,' such a general description is not sufficient to take them out of their places in the previous acts where they are designated by name. It may be conceded that if the goods in question had a specific name, such as that applied to 'reps,' 'tapestry,' 'galloons,' &c., and had been designated in the acts of 1861 and 1862 by such specific name, the argument of the plaintiffs would be well founded. It would be in accordance with the decision of this court in Movius v. Arthur, 95 U.S. 144. But are the terms relied on a name for goods? Are they not descriptive rather than denominative? We think it is very clear that they are merely descriptive. It may be true, as stated in the agreed case, that 'such goods are generally known in trade and commerce as goods made of mixed materials;' but the case also adds that 'each kind thereof is also known by its specific name.' The fact that certain goods belong to the class of mixed goods, or of goods made of mixed materials, does not stamp them with the name of mixed goods; for the same description is applicable to many other kinds of goods, all having different names. It is not their name: it is merely their description.

Since, therefore, the designation in the act of 1861, of 'manufactures composed of mixed materials, in part of cotton, silk,' &c., is merely descriptive; and since the designation in the act of 1864, of 'manufactures of which silk is the component part of chief value,' is also descriptive; and since the goods in question are confessedly embraced in both descriptions; and since the act of 1864 contains no provision relating to mixed goods, like that in the acts of 1861 and 1862, and lays a duty of fifty per cent ad valorem on goods in which silk is the component part of chief value, 'not otherwise provided for,' which we have construed generally to mean 'not otherwise provided for in this act' (Smythe v. Fiske, 23 Wall. 374),-it seems to be almost a matter of demonstration that this was the duty properly demandable on the goods.

It is observable that the description of 'manufactures made of mixed materials, in part of cotton, silk,' &c., is more general than that of 'manufactures of which silk is the component part of chief value.' Logically, the two phrases standing together in the same act or system of laws would be related as follows: 'Goods made of mixed materials, cotton, silk, &c., shall pay a duty of thirty-five per cent; but if silk is the component part of chief value, they shall pay a duty of fifty per cent.'

It is suggested by the plaintiffs' counsel that a counterpart of the clause in the act of 1864, relating to goods in which silk is the component part of chief value, was contained in the acts of March 2, 1861, and Aug. 5, 1861; and that if this clause in these acts did not apply to the plaintiffs' goods, the like clause in the act of 1864 should not be construed to apply to them; and, to show that the said clause in the acts of 1861 did not apply to the goods, they refer to the fact that, prior to the passing of the act of 1864, the goods now in question were always assessed under the 'mixed materials' clause, and not under the 'component material of chief value' clause. We do not think that this argument can prevail. In the first place, it does not appear by the record what the practice was prior to 1864; and if it did appear as suggested, it is observable that under the act of March 2, 1861, it was a matter of indifference under which clause the goods should be assessed, as the duties were the same under both; and, having commenced to assess the goods in one way under that act, the practice may have been inadvertently continued. We think the practice was at least questionable, if it obtained. At all events, the true construction of the law in its ultimate form is too obvious to admit of a reasonable doubt. The goods are aptly described by the general clause in the act of 1864, and are not otherwise provided for in that act, nor provided for by name in any previous act. It follows that they are subject to duty under the said general clause.

We have been unable to find anything in the clauses referred to, or in their collocation in the various acts, or in the method of grouping or classification observed therein, that would lead us to infer an intention to exclude the goods in question from the operation of said general clause. It is sometimes the case, no doubt, that certain articles are so obviously intended to be included in a particular grouping or classification, as to repel any suggestion that they are meant to be embraced in a different part of the law, though literally applicable to them. But this cannot be said in the case before us. The goods in question have no such inseparable relation to one form of description exclusive of the other; nor are they so clearly intended to be embraced in any particular grouping or classification, as to repel or prevent the application to them of the clause under which they were assessed.

Judgment affirmed.

title: Solomon v. Arthur/Opinion of the Court


text: Talk:Solomon v. Arthur/Opinion of the Court


text:
The Benefactor

APPEAL from the Circuit Court of the United States for the Eastern District of New York.

This is a libel filed in the District Court of the United States for the Eastern District of New York by William H. Mount and others against the steamship 'Benefactor,' to recover damages arising from a collision between that vessel and the schooner 'Susan Wright.'

The District Court found in favor of the libellants, and from its decree the claimants of the 'Benefactor' appealed to the Circuit Court. The latter court found,--

1. That the collision took place a little after ten o'clock in the forenoon of the twenty-sixth day of February, 1875, off Squan Beach, New Jersey, and about three miles distant therefrom.

2. That the weather at and prior to the time of the collision was fine and clear, the wind about west north west, and strong; the steamship was bound from New York to Wilmington, and the schooner bound from Matanzas to New York.

3. That the steamship was observed by those in charge of the schooner when six or seven miles distant therefrom, and from twenty to thirty minutes before the collision. At that time the steamship bore a point or two off the starboard bow of the schooner. The schooner was close-hauled, sailing on a course about north by west, at the rate of about eight miles an hour. The steamship was proceeding on a course about south-southwest at the rate of about ten miles an hour, with her sails set, and the wind free, and making much lee-way.

4. That at this time the courses of the two vessels were such as to cross each other, if continued, and such as to bring the two vessels either together or into close proximity to each other, and the two vessels were proceeding in such directions as to involve risk of collision.

5. That on the windward side of the two vessels, and about three miles distant therefrom, was the New Jersey shore, trending at that point about north by east and south by west, and on the leeward side was the open ocean, without any obstruction to safe navigation. There was nothing to prevent the steamship from seasonably changing her course so as to pass either to windward or to leeward of the schooner and give her a wide berth.

6. That from the time when the steamship was observed, as above stated, she was watched by those in charge of the schooner, and the schooner was kept close-hauled upon her course. The steamship was also kept upon her course, without slacking speed or stopping, until the vessels were only a few lengths apart and a collision was imminent, when the peak of her mainsail was lowered, her engines slowed and stopped, and an effort made to pass to leeward of the schooner, but without success.

7. That after the steamship was within a few lengths of the schooner, and a collision was imminent, the captain of the schooner attempted to avoid the impending collision or lessen its force by porting the helm of the schooner; but, after putting the schooner's wheel only about two spokes to port, he was driven away therefrom by the nearer and dangerous approach of the steamship, which struck the schooner on her starboard quarter, in consequence of which the schooner sank almost immediately, with her valuable cargo.

8. That the schooner kept her course until the steamship was in close proximity and the collision was imminent, and if there was any change in the schooner's course after that, and before the collision actually took place, it was very slight; had no effect in producing the collision, and was made in extremis.

9. That at the time of the collision the schooner was of the value of $17,850, the cargo was of the value of $35,046.58; and both the vessel and cargo, by reason of the collision, became a total loss. The amount of damage sustained by William H. Mount, by reason of loss of and injury to his personal effects by the collision was $1,283.85. The net freight lost by reason of the collision was $1,923.14. The amount of damages sustained by the other libellants, by reason of the loss of and injury to their personal effects by the collision, was $591.15.

The court concluded as matters of law,--

1. Upon the steamship and schooner discovering each other proceeding in such directions as to involve risk of collision, as stated in the foregoing findings of fact, it was the right and duty of the schooner to keep her course, and the duty of the steamship to keep out of the way of the schooner; and the steamship was in fault in failing to perform that duty.

2. It was also the duty of the steamship, under the circumstances stated, to pursue a course which should not needlessly put the schooner in imminent peril; and the steamship was in fault in failing to perform that duty.

3. It was the duty of the steamship, before the time when she did so, to slacken her speed or stop; and the steamship was in fault in failing to perform that duty.

4. If, when a collision had become imminent by reason of the fault of the steamship, any error was committed in extremis by those in charge of the schooner, the schooner is not responsible therefor.

5. The steamship had no right, under the circumstances stated, needlessly to place herself in such close proximity to the schooner that the error of a moment would bring destruction.

6. The collision was occasioned by the fault of the steamship, and the steamship should be condemned therefor.

7. The decree of the District Court was right, and should be affirmed with costs.

The claimants of the 'Benefactor' thereupon appealed here.

Mr. Cornelius Van Santvoord for the appellants.

The court declined to hear counsel for the appellees.

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

title: The Benefactor


text: Talk:The Benefactor

title: Talk:The Benefactor


text:
The Benefactor/Opinion of the Court

Upon the facts as found the judgment below was clearly right. The vessels were on the ocean, and there was nothing to interfere with their navigation. The weather was clear and fine, and the time about ten o'clock in the forenoon. The schooner saw the steamer when six or seven miles away, and from that time steadily kept her course until the collision was imminent. While there is no special finding that the steamer saw the schooner, it would have been a gross fault on her part if she did not; and both in the answer and in the requests for finding presented to the court below it is stated that the schooner was seen when three miles off. From that time until the collision the vessels were sailing on courses which crossed each other, so as to involve a risk of collision. Under these circumstances it was the imperative duty of the steamer to keep out of the way, and of the schooner not to embarrass the steamer by any change of course. The schooner, mindful of her duty, did hold her course, but the steamer did not avoid a collision.

The theory of the steamer seems to have been that, as the schooner was bound for New York, she should have steered more to the eastward than she did, and that the steamer had the right to assume she would do so, and act accordingly. This is clearly wrong. The steamer was bound to govern herself by what the schooner actually did, not by what might have been done. When more than six miles from the steamer, and from twenty to thirty minutes before the collision, the schooner was close-hauled, and on a course which she held steadily all the time. At that distance from the steamer she had the right to choose her own way of getting to her port of destination, and the steamer could not require her to change it. As the responsibility of avoiding the collision was on the steamer, it was a fault in her to get so close that a slight change in the course of the schooner, in the midst of what seemed to be imminent peril, would bring the vessels together. It is clear to us that those on board the steamer were deceived as to the movements of the schooner by the leeway they themselves were making, and that they expected to pass to the windward, when they should have shaped their course to go to the leeward.

The only remaining questions are those which arise on the bill of exceptions. In The Abbotsford (98 U.S. 440), we decided that on an appeal in this class of cases we could only pass on such rulings of the court below as might properly be put into a bill of exceptions on the trial of an action at law, and that the findings of fact sent up with the record were conclusive here. If there are errors in these findings, they can only be corrected at the proper time and in the proper way by the court below. We are no longer required to weigh evidence. On an appeal, the findings have all the effect of the verdict of a jury in actions at law. This must be accepted as our final conclusion as to the effect of the act of 1875 (18 Stat. 315) in this particular.

The bill of exceptions in this case contains all the evidence, and a request made of the court by the appellant to find the facts in a certain way. From this request it appears that the only material controversy about the facts was as to whether the schooner negligently changed her course so as to cross the bows of the steamer and bring on the collision. The court, after considering the evidence, which was to some extent conflicting, found that the did not. This disposed of the case, and is conclusive on us. All the exceptions taken have their foundation in this finding, and relate to questions of law which would have arisen if that had been the other way. As we cannot disturb the finding, we cannot consider the exceptions. It follows that the judgment must be affirmed, and it is consequently

So ordered.

title: The Benefactor/Opinion of the Court


text: Talk:The Benefactor/Opinion of the Court


text:
Hentig v. Page

APPEAL from the Circuit Court of the United States for the District of Kansas.

The facts are stated in the opinion of the court.

Mr. C. A. Sperry for the appellant.

Mr. G. C. Clemens, contra.

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

title: Hentig v. Page


text: Talk:Hentig v. Page

title: Talk:Hentig v. Page


text:
Hentig v. Page/Opinion of the Court

On the twenty-sixth day of October, 1877, Mary A. Smith, administratrix de bonis non of Julia C. Wright, filed her bill in the Circuit Court for the District of Kansas, against Daniel M. Adams and others, to foreclose a mortgage made by Adams and wife on certain lands in Shawnee County, Kansas. On the 3d of September, 1878, the lands covered by the mortgage were sold by the treasurer of the county to the appellant for $64.92, being the full amount of tax, penalty, and charges due on them for the year 1877. At the time of the sale there was delivered to the purchaser a certificate, which set forth the sale, and stated that the would be entitled to a deed for the lands on the 4th of September, 1881, unless they should be redeemed prior to that time, in accordance with the provisions of law. On the 8th of February, 1879, Hentig, the purchaser, leased the premises to C. E. and W. K. Gillan for one year from the 1st of March, 1879, at a rent of $200, and put them in possession. The certificate of tax sale was recorded Nov. 18, 1878, and the taxes of 1879, amounting to $67.80, were paid by Hentig, March 10, 1879.

On the 4th of June, 1879, the court having become satisfied that the property was an inadequate security for the mortgage debt, and that Adams, the debtor, was insolvent, appointed H. J. Page receiver of the rents and profits of the property, and ordered that 'all persons in possession of such premises, whether parties to this cause, tenants under any of them, or persons who have come into possession pending these proceedings,' yield up possession to the receiver on demand. On the 10th of July the receiver reported to the court that he found the Gillans in possession, who refused to surrender, claiming that they held under a lease from Hentig, and had paid $150 of their rent, and that the remainder, being only $50, was not due. The court thereupon issued to the marshal a writ of assistance, directing him to eject from the premises the persons described in the original order appointing the receiver, and to put the latter in possession. On the 12th of July, an order in the suit was entered in the order-book, directing the complainant and receiver to show cause before the district judge, at his chambers, on the 18th, why the writ of assistance should not be revoked, and directing that in the mean time nothing be done under the writ. At the time named the appellant was permitted to file in the suit what was denominated a substituted petition. This petition was addressed to the 'Hon. C. G. Foster, one of the judges of the court,' and set forth the claim of the appellant under the tax title with the lease to the Gillans, and concluded as follows: 'Wherefore your petitioners pray that the said marshal may be enjoined from further proceeding in the execution of such writ, and that upon the hearing said writ may be revoked by an order of this court, and that your petitioner may have such other and further relief as to equity may seem meet. And as in duty bound will eyer pray,' &c. This petition was thereupon heard, and an order entered in the order-book as follows:--

'MARY A. SMITH, Adm'r'x, &c., Compl't,

vs.

DANIEL M. ADAMS et al., Def'ts. * 2055.

'AT CHAMBERS, July 18, 1879.

'Now comes the complainant and receiver, H. J: Page, by G. C.     Clemens, their solicitors, and A. J. Hentig, by Hentig &      Sperry, her solicitors, and thereupon came on to be heard the      matter of the petition of A. J. Hentig to enjoin the marshal      from further proceeding in the execution of the writ of assistance issued      herein to put said receiver into possession of the property      described in the bill of complaint and decree herein, and to      revoke said writ, and was argued by counsel; on consideration      whereof it is now here ordered that said petition be and is      overruled and denied.

'From this order and ruling said A. J. Hentig prays an appeal     to the Supreme Court of the United States, which is allowed,      and the bond in appeal fixed at $300, to act as a      supersedeas.'

On the 22d of July the required bond was given and the appeal perfected. The case has been submitted under the twentieth rule, but the submission was accompanied by a motion of the appellee to dismiss for want of jurisdiction.

We think the motion to dismiss must be granted. The order appealed from is not a final decree in a 'case of equity.' The petition on which the order was made was in reality nothing more than a motion in the original suit by the appellant, with leave of the court, for a recall of the writ of assistance. It certainly is not a bill in equity, for it names no parties defendant and prays no process. It is addressed to one of the judges of the court, and not to the judges or to the court; and the appellees were brought in on a rule to show cause in the pending suit, and not by an original writ. Although the judge in rendering his decision gave as a reason for refusing to grant the petition that the tax certificate alone, before the expiration of the time of redemption, vested no title in the purchaser, the order as made settled no such question. The effect of what was done was simply to leave the writ of assistance in force. The rights of the parties were not changed in any particular. The appellant was still no party to the suit, and she could resist the writ as well after the order as before. She did not by her petition submit herself to the jurisdiction of the court in the cause. Her application was in the nature of a suggestion to the court that the writ had been improvidently issued, and, therefore, should be withdrawn. She has still all the legal and equitable remedies to enforce her original rights that she ever had. If the writ would not justify the marshal in putting her tenants out of possession when it was issued, it will not now. If she could by a suit in equity enjoin the execution of the writ against her tenants before her motion was made, she could afterwards.

It follows that the appeal must be dismissed; and it is

So ordered.

title: Hentig v. Page/Opinion of the Court


text: Talk:Hentig v. Page/Opinion of the Court


text:
Goodyear Dental Vulcanite Company v. Davis

APPEAL from the Circuit Court of the United States for the District of Masschusetts.

This was a bill in equity brought by the Goodyear Dental Vulcanite Company against Charles G. Davis, alleging his infringement of reissued letters-patent No. 1904, dated March 21, 1865, and granted to the complainant, as assignee of John A. Cummings, for an improvement in artificial gums and plates.

The bill was, on a final hearing upon the pleadings and proofs, dismissed. The complainant appealed here.

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

The case was argued by Mr. William Henry Clifford and Mr. Benjamin F. Lee for the appellant, and by Mr. Henry Baldwin, Jr., and Mr. William D. Shipman, for the appellee.

Mr. JUSTICE STRONG delivered the opinion of the court.


text: Dictionary of National Biography, 1885-1900/Grose, Nash


text: Dictionary of National Biography, 1885-1900/Grosse, Alexander


text: Talk:Goodyear Dental Vulcanite Company v. Davis


text: Dictionary of National Biography, 1885-1900/Grosseteste, Robert


text:
Goodyear Dental Vulcanite Company v. Davis/Opinion of the Court

The invention described in the Cummings reissue patent is claimed in the words following: 'The plate of hard rubber or vulcanite, or its equivalent, for holding artificial teeth, or teeth and gums, substantially as described.' The claim cannot be understood without reference to the details given in the specification. In that it is said to consist 'in forming the plate to which the teeth, or teeth and gums, are attached, of hard rubber, or 'vulcanite,' so called,-an elastic material possessing and retaining in use sufficient rigidity for the purpose of mastication, and, at the same time, being pliable enough to yield a little to the motions of the mouth.' The mode of 'forming' the plate is then minutely described. The earlier steps of the process need not be particularly noticed. They relate to the formation of a plaster mould, fitted to the corresponding part of the mouth, with the artificial teeth adhering in the mould in exactly the relative position they are to occupy in the hardrubber plate. The specification then proceeds as follows: 'The teeth are provided with pins projecting therefrom in such a manner that the rubber which is to constitute the plate will close around them, and by means of them hold or secure the teeth permanently in position. The plaster mould, with the teeth adhering therein, as just described, is now filled with soft rubber, a little at a time, pressed in with the finger, or in any other convenient way; and care is to be taken that the rubber is made to completely fit into the cavities and around the protuberances, including the pins, and is filled in to the thickness or depth desired to form the plate.' 'I then' (says the patentee) 'lock the rubber plate in position by shutting the other half of the plaster mould over it, to insure its retaining its exact form while warming, and then heat or bake it in an oven, or in any other suitable way. The soft rubber or gum so inserted into the mould is to be compounded with sulphur, rubber, &c., in the manner prescribed in the patent of Nelson Goodyear, dated May 6, A.D. 1851, for making hard rubber, and is to be subjected to sufficient heat to vulcanize or harden it, substantially as directed in that patent. It is also to be colored in imitation of the natural gums, by mixing it with vermillion, or other suitable coloring matter, while in the soft STATE. AFTER the plate Has been heated sufficiently to harden it, or convert it into hard rubber, or 'vulcanite,' so called, the mould is removed, and the plate is polished ready for use.'

Such is the description, both of the material of which the plate is formed and of the method or process by which it is made.

We had occasion in Smith v. Goodyear Dental Vulcanite Company et al. (93 U.S. 486) to construe this patent, and determine what the invention claimed and patented really was. We held it to be 'a set of artifieial teeth, as a new article of manufacture, consisting of a plate of hard rubber with teeth, or teeth and gums secured thereto in the manner described in the specification, by embedding the teeth and pins in a vulcanizable compound, so that it shall surround them, while it is in a soft state, before it is vulcanized, and so that, when it has been vulcanized, the teeth are firmly and inseparably secured in the vulcanite, and a tight joint is effected between them, the whole constituting but one piece.' We said, 'The invention is a product or manufacture made in a defined manner. It is not a product alone, separated from the process by which it is created.' The process detailed in the description antecedent to the claim, and referred to thereby, is as much a part of the invention as are the materials of which the plate or product is composed. Both are necessary elements of it. Hence, to constitute an infringement of the patent, both the material of which the dental plate is made, or its equivalent, and the process of constructing the plate, or a process equivalent thereto, must be employed. It is, therefore, essential to a correct determination of this case to consider what was the material made by the patentee an element of his invention, and what can be considered an equivalent therefor.

It is impossible to read the specification of the original patent, or that of the reissue, upon which this suit is founded, without the conviction that the patentee had in mind primarily a single substance for his material, and that one of a peculiar character, itself a compound discovered and patented not long before. Thus, in the original, which was loosely drawn, the invention was said to consist 'in forming the plate and gums, to which the teeth are attached, of rubber, or some other elastic material, so indurated as to be rigid enough for the purpose of mastication, and pliable enough to yield a little to the motions of the mouth, and in one piece, the teeth being embedded in the elastic material while the said material is in a soft condition, and then baked, with the gums and plate, so that the teeth, gums, and plate will all be connected, forming, as it were, one piece.' And again, 'the plate and gums are formed of one piece, and of rubber, or of rubber and the compounds commonly employed therewith, or of gutta-percha, or, in fact, of any elastic substance which can be reduced to a soft condition, and then vulcanized, or hardened sufficiently to answer the purpose. The rubber or other material used is first moulded to fit the shape of the mouth, and the gums formed, and while soft and pliable the teeth are embedded in the gums. . . . The teeth, gums, and plate, being thus connected, are then baked until the elastic material becomes suffieiently vulcanized, when the process is completed.' The claim also expressed the same thought. It was 'forming the plate and gums in which the teeth are inserted, in one piece, of hard rubber or vulcanite, i.e. an elastic material which can be hardened sufficiently for mastication, and retain a portion of its elasticity, so as to yield a little to the motion of the mouth, as herein set forth, and for the purposes specified.' Though the specification spoke of rubber, or of rubber and its compounds commonly employed therewith, or of gutta-percha, or of any elastic substance that can be reduced to a soft condition and then vulcanized, or hardened sufficiently to answer the purpose, it is evident that only such substances were intended as are either soft in their natural condition, and capable of vulcanization, or if hard naturally, and reduced to a soft state, were then capable of being vulcanized or hardened by baking. The description implies an exclusion of all substances which have not such capabilities. If not, then gold plates would have been within the patent, if the material only be considered, for gold is elastic when in thin plates. It is capable of being reduced to a soft condition, and it hardens by cooling; but it does not harden by heat or baking, nor is it capable of vulcanization.

If, now, we turn to the specification and claim of the reissued patent (which, of course, cannot be more comprehensive than the original), it will be found that the material is still more distinctly and exclusively pointed out. The material is, so far as possible, restricted to a substance either vulcanized or capable of vulcanization. There the invention is said to consist 'in forming the plate to which the teeth, or teeth and gums, are attached, of hard rubber or vulcanite, so called, an elastic material,' of certain capabilities mentioned. Not an intimation is given that any other substance than hard rubber, or its synonym, vulcanite, would meet the requirements of the invention. Throughout the specification the patentee speaks again and again of his invention as a hard-rubber plate, and he describes minutely the process or mode of making it. After having mentioned the arrangement of the teeth in a mould, he says: 'The plaster mould, with the teeth adhering therein, is now filled with soft rubber, a little at a time, pressed in with the finger, or in any other convenient way,' &c. 'I then lock the rubber plate in position by shutting the other half of the plaster mould over it, to insure its retaining its exact form while warming, and then heat or bake it in an oven, or in any other suitable way. The soft rubber, or gum, so inserted in the mould, is to be compounded with sulphur, rubber, &c., in the manner prescribed in the patent of Nelson Goodyear, dated May 6, A.D. 1851, for making hard rubber, and is to be subjected to sufficient heat to vulcanize or harden it, substantially as directed in that patent.' Thus it appears that, whatever the material used in the construction, a dental plate, according to the patent, was required to undergo a process of vulcanization in the manufacture, and to be made what it is, whether denominated rubber, hard rubber, vulcanite, or other elastic material, by that process. Every substance not capable of vulcanization by that process was, therefore, necessarily excluded from the reach of the patentee's invention. Nothing could more plainly show that a dental plate made of any other material than a compound, vulcanized according to Nelson Goodyear's process, was not intended by the patentee and by the Patent Office to be covered by the patent. By Goodyear's patent caoutchouc, or soft rubber, is converted into hard rubber; that is, vulcanized, by mixing sulphur with it in about the proportions of from four ounces to a half pound of the former to a pound of the rubber, and then heating the compound during a period of from three to six hours, to the temperature of from two hundred and sixty to two hundred and seventy-five degrees of Fahrenheit. The use of that process was made indispensable to the invention, and its product was the material of which the patented plate is constructed. If, when the patent was granted, there were known substances, other than rubber or caoutchouc, gutta-percha, or gums, that could be vulcanized by the Goodyear process, and converted from a soft into a hard, elastic material, any use of that material for a dental plate might have been an equivalent for the Cummings material, and an infringement of his patent.

This construction of the patent is confirmed by the avowed understanding of the patentee, expressed by him, or on his half, when his application for the original patent was pending. We do not mean to be understood as asserting that any correspondence between the applicant for a patent and the Commissioner of Patents can be allowed to enlarge, diminish, or vary the language of a patent afterwards issued. Undoubtedly a patent, like any other written instrument, is to be interpreted by its own terms. But when a patent bears on its face a particular construction, inasmuch as the specification and claim are in the words of the patentee, it is reasonable to hold that such a construction may be confirmed by what the patentee said when he was making his application. The understanding of a party to a contract has always been regarded as of some importance in its interpretation.

In his letter to the commissioner, under date of July 30, 1855, written by his attorney, after striking out all reference to gutta-percha, he said: 'I beg the office not to consider that because gutta-percha has been used heretofore with artificial teeth, Mr. Cummings's invention is, therefore, the mere substitution of one substance for another and a similar one. The vulcanizing process makes all the difference, and changes the article of manufacture entirely.' So in his letter of the same date he amended his specification so as to make it read: 'I do not claim the use of gutta-percha, or of any material which is merely rendered plastic by heat and hardened by cooling, in the manufacture of sets of artificial teeth; but what I do claim as my invention, and desire to have secured to me by letters-patent, is the improvement in the manufacture of sets of mineral or other artificial teeth, which consists in combining them with a rubber plate and gums, which (after the insertion of the teeth) are vulcanized by Goodyear's process, or any other process.'. ..

On a renewed application, Dr. Cummings was informed that the office would not object to the admission of a claim limited to the use of vulcanite or hard rubber. In response to this he amended his claim by inserting the word 'hard' before 'rubber,' and also by striking out the word 'other' before the words 'elastic material,' in the claim as previously made, and substituting therefor the words 'vulcanite, i.e. an,' so as to make it read, 'forming the plate and gums in which the teeth are inserted in one piece of hard rubber, or vulcanite, i.e. an elastic material.' Thus the patent was granted. In view of this there can be no doubt of what Cummings understood he had patented, and that both he and the commissioner regarded the patent to be for a manufacture made exclusively of vulcanites by the detailed process. We think this, to some extent, at least, tends to confirm the conclusions at which we have arrived in interpreting the patent by its own language. Indeed, we have heretofore expressed doubts whether reissued letters-patent can be sustained in any case where they contain claims that have once been formally disclaimed by the patentee, or rejected with his acquiescence, and he has consented to such rejection in order to obtain his letters-patent. Leggett v. Avery, 101 U.S. 256. If these doubts be well founded, and the claim of the reissued letters now before us be, what these complainants insist it is, a claim for the use of any other material than vulcanite, or some substance capable of vulcanization, another question might arise respecting the validity of the reissue.

We have extended our remarks sufficiently upon this branch of the case. It remains to inquire whether the manufacture, by the defendant, of dental plates, out of the material known as celluloid, or solid collodion, is an infringement of the Cummings reissue. We think it is not.

Celluloid is a substance of a comparatively recent discovery. Whether it was known at the time Cummings made his invention, or even at the time when his original patent was granted, we do not care now to inquire. It is sufficient for this case that we consider what it is. It is a compound of vegetable fibre, cellulose, or gun-cotton. Undoubtedly it can be employed for manufacturing dental plates, and as a base for artificial teeth. Such a plate may have the fineness, lightness, and elasticity of a plate made of hard rubber by the Cummings process; but it is a substance very different from hard rubber, and it is incapable of the same manipulation. It is not vulcanite, and neither it nor its ingredients are capable of being vulcanized. It contains no sulphur or rubber. None of its constituents are vulcanizing agents. Camphor does not perform the function of sulphur. Under the action of heat its tendency is to soften the compounded mass rather than to harden it, as sulphur does rubber. When the ingredients of celluloid are compounded the product is hard, unlike caoutchouc, or gums generally, and heat softens rather than hardens it. When employed in manufacturing dental plates, the process is wholly unlike that employed in making hard rubber or vulcanite plates. It is put into a mould, it is true, such as was known and in use before the Cummings invention, but it is put in in a hard state, in its natural condition, and not soft or plastic, and capable of being pressed around the teeth. The mould cannot be closed until heat is applied. When that is applied the jaws of the mould are gradually screwed together as the celluloid softens, and when the jaws come together the plate is completed. The process requires pressure in addition to heat in order to reduce the plate to shape, and compress it around the teeth. There is no heating for hours, as is necessary in the vulcanizing process. The work is done in a few minutes. When allowed to cool, it is the same hard and bony substance it was before its manipulation, and in this respect also it is unlike vulcanite. It is obvious from all this that neither in the nature of the material of which it is made, nor in the process of manufacture, which is an essential part of the Cummings invention, as we have seen, is the celluloid plate substantially the same as one made of hard rubber.

Nor is celluloid an equivalent for hard rubber, for the reasons already suggested, that it is not capable of vulcanization, and that it cannot be made into a plate by the process prescribed by Cummings. It may be conceded the patentee is protected against equivalents for any part of his invention. He would be, whether he had claimed them or not. But when a product arrived at by certain defined stages or processes is patented, only those things can be considered equivalents for the elements of the manufacture which perform the same function in substantially the same way. The same result may be reached by different processes, each of them patentable, and one process is not infringed by the use of any number of its stages less than all of them.

In view of these considerations, we are constrained to rule that a celluloid dental plate is not an infringement of the Commings patent. Celluloid is not an equivalent for the material which the patent makes essential to the invention, and in the use of it for a dental plate, the process which is inseparable from the invention is not, and cannot be, employed.

Decred affirmed.


text: Talk:Goodyear Dental Vulcanite Company v. Davis/Opinion of the Court


text:
Garneau v. Dozier (102 U.S. 230)

APPEAL from the Circuit Court of the United States for the Eastern District of Missouri.

Joseph Garneau brought his bill of complaint against James Dozier and others. It is founded upon two letters-patent, the first being a reissue granted to Hosea Ball on the fourteenth day of June, 1870, and extended for seven years from Sept. 23, 1870. The original letters were granted to Ball Sept. 23, 1856, for an alleged 'new and useful improvement in ovens,' and were surrendered and reissued Oct. 12, 1869, and again June 14, 1870. The second letters set forth in the bill were granted to Mary Ann Elizabeth McKenzie May 1, 1860, also 'for a new and useful improvement in ovens.' They were surrendered and reissued April 19, 1870, reissued again April 20, 1875, numbered 6,397, assigned to Duncan McKenzie March 24, 1874, and extended for seven years from May 1, 1874. By sundry assignments these extended reissues have become the property of the complainant, and it is for the alleged infringement of them that this suit was brought.

The bill was dismissed on a final hearing upon the pleadings and proofs, and Garneau appealed.

The case was argued by Mr. Robert H. Parkinson for the appellant, and by Mr. Edward Boyd for the appellees.

Mr. JUSTICE STRONG delivered the opinion of the court.

title: Garneau v. Dozier (102 U.S. 230)


text: Talk:Garneau v. Dozier (102 U.S. 230)

title: Talk:Garneau v. Dozier (102 U.S. 230)


text:
Garneau v. Dozier (102 U.S. 230)/Opinion of the Court

Among the defences set up in the answer of the defendants is one that strikes at the validity of the reissue of the Ball patent. It is insisted that the reissue is not for the same invention as that for which the original patent was granted, but is 'for more and other matters and things than those of which he was the original and first inventor, and more than were described or included in the specification attached to said original patent granted to him, or shown in the drawing attached thereto, or in the model forming part of the application for said patent.'

It is hardly necessary to say that if the reissue is, in fact, what the answer alleges it to be, if it is not for the same invention as that described or shown in the specification of the original patent, or in the drawings or model accompanying it, and if this clearly appears from a comparison of the two patents, the original and the reissue, then the reissue is invalid. The question is not a new one in this court. It was before us in the recent case of Ball v. Langles (supra, p. 128), in which we held the reissue to be void. We expressed our opinion in that case that in the original specification, drawing, or model of Ball's patent there was no hint of conducting the products of combustion from a fire-chamber under or below an oven directly into or through the baking-chamber, but that what was claimed or exhibited was conducting the heat or other products of combustion into flues leading from the fire-chamber, and exterior to the baking-chamber, towards the chimney, and permitting no access to the interior chamber, or the oven, except through perforations in its side or back walls. By that arrangement the oven was principally heated by radiation from its sides, and not at all by radiation directly from the fire-chamber. But the reissue was for a very different arrangement. It claimed an invention for passing the heat or products of combustion directly from the fire-chamber into the oven, not by any circuitous route, but immediately through apertures in the bottom of the oven, as well as indirectly through perforations in the side flues. This we regarded as radically different from the original invention, as new matter, for which the reissue was unauthorized. We have seen in this case no reason for changing the opinion. The Ball reissue, therefore, is held to be invalid, and its further consideration may be dismissed from the case.

We pass, then, to a consideration of the McKenzie patent, the only one that confers any rights upon the complainant. The original was, as we have seen, granted on the first day of May, 1860. There have been two reissues, the first granted April 19, 1870, and the second April 20, 1875, after an extension had been allowed.

The invention, as described in the patent, consists, first, in the combination in an oven for baking bread and other substances, of the following elements: 'A furnace or fireplace, one or more, a baking-chamber arranged above such furnace or fireplace, and in direct communication therewith, and a rotating reel located within said baking-chamber, and provided with gravitating pans or shelves arranged or hung around the shaft of said reel from rods attached to the end plates or arms thereof,' by which, as the specification declares, the patentee produced a 'continuously baking oven, in which the bread or other substances are subjected to the direct action of the gaseous products of combustion, ascending from the lower portion or bottom of the oven.' Second, 'in an arrangement of flues or openings communicating from the fireplace or fireplaces with the baking-chamber, directly through the floor of the latter;' and, third, 'in certain combinations and arrangements of exit flues. . . for securing a proper circulation of the gaseous products of combustion through the oven or baking-chamber, both when baking and lighting the fire.' Having thus stated generally the nature and object of his invention, the patentee proceeded to describe the construction and arrangements by which the oven is heated. From the back of each furnace or fire-place a flue is constructed extending horizontally to the rear wall of the oven. From the fireplaces and along those flues a series of openings is made through the floor of the oven, communicating with its interior. Between the two furnaces and extending from the front to the rear of the oven, directly under the floor, another flue is constructed communicating with a vertical flue at the rear of the oven, which leads to the chimney. In this latter horizontal flue there are openings into the baking-chamber at its front and rear, which may be closed by valves operated from the front. This flue is the exit-flue by means of which the gaseous products of combustion escape from the oven through the valvular openings. In the centre of the top of the oven there is also a valvular opening, communicating by a horizontal flue with the vertical flue that leads to the chimney, which is also an exit for the products of combustion. Having thus described the arrangements for heating the oven, the specification next proceeds to set forth the arrangements for the reel with its gravitating pans or shelves. These it is unnecessary to notice particularly.

The specification claims five combinations, the first of which only is charged to have been infringed by the defendants. It is as follows: 'The combination of the following elements, to wit, a furnace or fireplace (one or more), a baking-chamber arranged above such furnace or fireplace, and in direct communication therewith, and a rotating reel located within said baking-chamber and provided with gravitating pans or shelves arranged or hung around the shaft of said reel from rods attached to the end plates or arms thereof, substantially as and for the purpose described.'

To determine accurately the extent of the invention secured by this patent, the state of the art at the time when the original patent was granted (May 1, 1860) must be considered. Before that time, ovens were well known, and they had been constructed with a baking-chamber, a fireplace or furnace (one or more) arranged immediately under the chamber, and with a rotating reel located within the chamber, and revolving around a horizontal shaft, the reel provided with gravitating shelves or pans suspended on rods attached to its arms. Some of these ovens were arranged so that a portion of the heated products of combustion should pass into and through the baking-chamber, though indirectly by a circuitous route. Such was the Carrot oven patented in France in 1840, and notably the oven patented to Hosea Ball in 1856. And the Jennison oven, in use in the spring of 1859, and patented Feb. 1, 1859, was constructed so as to admit the products of combustion directly from the fire or furnace into the baking-chamber. It is obvious, therefore, that if the McKenzie patent can be sustained at all, it must receive a very limited construction. The element of the combination which relates to the communication between the furnace or fireplace and the interior of the oven must be restricted to the peculiar structural arrangement by which the products of combustion are admitted into the baking-chamber.

They are admitted, as we have seen, through openings in the arch or top of the furnace, and through the floor of the oven along the flues extending rearward from the furnace to the back part of the oven. But the oven has a floor which separates it from the fire-chamber. The communication with the baking-chamber is by means of flues, short it may be, but admitting the products of combustion into the baking-chamber only at intervals, and always near the side. Manifestly neither such an arrangement, nor anything equivalent to it, is found in the defendants' ovens. In them the bottom of the baking-chamber is not separated by any partition or diaphragm from the fire-chamber or furnace, and there are no flues to conduct the generated heat into the chamber. The charge of infringement is, therefore, not sustained.

Decree affirmed.


text: Talk:Garneau v. Dozier (102 U.S. 230)/Opinion of the Court


text: Heryford v. Davis

title: Heryford v. Davis


text: Talk:Heryford v. Davis

title: Talk:Heryford v. Davis