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 352 "Is it an ugly goat? why, it's the grandest horse bride ever rode on," answered Tatterhood; and in a trice the goat became a horse, and that the finest the Prince had ever set eyes on.

Then they rode on again a bit, but the Prince was just as woeful as before, and couldn't get a word out. So Tatterhood asked him again why he didn't talk, and when the Prince answered, he didn't know what to talk about, she said,—

"You can at least ask me why I ride with this ugly spoon in my fist."

"Why do you ride with that ugly spoon?" asked the Prince.

"Is it an ugly spoon? why, it's the loveliest silver wand bride ever bore," said Tatterhood; and in a trice it became a silver wand, so dazzling bright, the sunbeams glistened from it.

So they rode on another bit, but the Prince was just as sorrowful, and said never a word. In a little while Tatterhood asked him again why he didn't talk, and bade him ask why she wore that ugly gray hood on her head.

"Why do you wear that ugly gray hood on your head?" asked the Prince.

"Is it an ugly hood? why, it's the brightest golden crown bride ever wore," answered Tatterhood, and it became a crown on the spot.

Now they rode on a long while again, and the Prince was so woeful, that he sat without sound or speech, just as before. So his bride asked him again why he didn't talk, and bade him ask now why her face was so ugly and ashen-gray?


text: Talk:Soon Hing v. Crowley/Opinion of the Court

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


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94 They both declared that such a state of things was antichristian.

While we were thus agreeing, what should my tongue stumble upon but a word in praise of Gambetta's moderation. The old soldier's countenance was instantly suffused with blood; with the palms of his hands he beat the table like a naughty child.

"Comment, monsieur?" he shouted. "Comment? Gambetta moderate? Will you dare to justify these words?" But the priest had not forgotten the tenor of our talk. And suddenly, in the height of his fury, the old soldier found a warning look directed on his face; the absurdity of his behaviour was brought home to him in a flash; and the storm came to an abrupt end, without another word. It was only in the morning, over our coffee (Friday, September 27th), that this couple found out I was a heretic. I suppose I had misled them by some admiring expressions as to the monastic life around us; and it was only by a


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United States v. Indianapolis & St. Louis Railroad Company

''Sol. Gen. Phillips'', for appellant.

John T. Dye, for appellee.

HARLAN, J.


text: Talk:United States v. Indianapolis & St. Louis Railroad Company


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United States v. Indianapolis & St. Louis Railroad Company/Opinion of the Court

This suit was bourght to foreclose certain mortgages given to secure bonds issued by the Indianapolis & St. Louis Railroad Company. A final decree of foreclosure having been passed, the mortgaged property was sold, and the sale was confirmed by the court. The United States intervened by petition, and asked that certain sums, alleged to be due to the government on account of taxes, be first paid out of the proceeds.

It appeared that certain interest coupons of the bonds of the company were payable and were paid on the first days of September and November, 1870, and that certain other interest coupons of the same company were payable on the first day of January, 1872, and were then paid out of its earnings made prior to that date and during the year 1871. The court below held: (1) That the act of July 14, 1870, (16 St. 269, c. 255, § 15,) did not impose an internal revenue tax on interest coupons of the bonds of the railroad company payable and paid during the last five months of that year; (2) that the law did not impose an internal revenue tax on interest coupons of such bonds payable and paid on the first day of January, 1872. The United States acquiesces in the judgment in respect to the first of these claims, but contends that the act of July 14, 1870, imposed a tax upon interest coupons that were paid out of the corporation earnings for 1871, although such payment was not due nor made until January 1, 1872. This question depends upon the construction of section 15 of the act of 1870, which provides 'that there shall be levied and collected, for and during the year 1871, a tax of two and one-half per centum on the amount of all interest or coupons paid on bonds or other evidence of debt issued and payable in one or more years after date, by any of the corporations in this section hereinafter enumerated, [railroad corporations being among the number,] and on the amount of all dividends of earnings, income, or gains hereafter declared, * *  * whenever and wherever the same shall be payable, *  *  * and on all undivided profits of any such corporation which have accrued and been earned and added to any surplus, contingent, or other fund,' etc.

In construing this section in Railroad Co. v. U.S. 101 U.S. 550, the court said: 'The interest in this case was neither payable nor paid in 1871, and, as the tax is not leviable or collectible until the interest is payable, we see no way in which the company can be charged on this account. The tax is not on the interest as it accrues, but when it is paid. No provision is made for a pro rata distribution of the burden over the time the interest is accumulating; and as the tax can only be levied for and during the year 1871, we think, if the interest is in good faith not payable in that year, the tax is not demandable, either in whole or in part.' This decision covers the present case. The claim of the United States is not for a tax on dividends or gains, but is distinctly for a tax on interest accruing on the bonds of the railroad company, and which was not payable nor paid until after the year 1871, for and during which the act directed it to be levied and collected. We do not perceive that the liability of the corporation for tax on this interest, as such, is affected by the circumstance that the interest was paid out of the earnings made in the previous year.

Judgment affirmed.


text: Talk:United States v. Indianapolis & St. Louis Railroad Company/Opinion of the Court


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Fisk

This is an application on the part of Clinton B. Fisk for a writ of habeas corpus, to be directed to the marshal of the Southern district of New York, in whose custody the petitioner is held under an order of the circuit court for that district. The history of the case which resulted in this order, so far as it is necessary to the decision of the matter before us, may be briefly stated as follows: Francis B. Fogg brought suit in the supreme court of the state of New York against Fisk to recover the sum of $63,250, on the allegation of false and fraudulent representations made by Fisk in the sale of certain mining stocks. In the progress of the suit, and before the trial, the plaintiff obtained from the court the following order: 'Ordered, that the defendant, Clinton B. Fisk, be examined and his testimony and deposition taken as a party before trial, pursuant to sections 870, 871, 872, 873, etc., of the Code of Civil Procedure, and that for such purpose he personally be and attend before the undersigned, a justice of this court, at the chambers thereof, to be held in the new county court-house, in the said city of New York, on the thirty-first day of January, 1883, at 11 o'clock in the forenoon of that day.' A motion to vacate this order was overruled, and the judgment finally affirmed by the court of appeals. Thereupon the defendant appeared before the court and submitted to a partial examination, answering some questions and objecting to others, until, pending one of the adjournments of the examination, he procured an order removing the case to the circuit court of the United States. In that court an order was made to continue the examination before a master, to whom the matter was referred. The defendant refusing to be sworn and declining to be examined, he was brought before the circuit court on an application for attachment for a contempt in refusing to obey the order.

Without disposing of this motion, the circuit court made another order, to-wit: 'It is hereby ordered and adjudged that the motion to punish the said defendant for such contempt stand adjourned to the next motion day of this court, to-wit, on the twenty-eighth day of March, 1884. It is further ordered that the defendant Clinton B. Fisk, be, and he is hereby, directed and required to attend personally on the fourteenth day of March, 1884, before the Honorable ADDISON BROWN, one of the judges of this court, at a stated term thereof, at his chambers in the post-office building, in said city of New York, at eleven o'clock in the forenoon of that day; then and there, and on such other days as may be designated, to be examined, and his testimony and deposition taken, and continued as a party before trial, pursuant to section 870 et seq. of the Code of Civil Procedure, and for the purposes mentioned in said order of January 12, 1883, and February 12, 1884, heretofore made in this action.' The defendant appeared before the court in pursuance of this order, and, stating that he was advised by counsel that the court had no jurisdiction to require him to answer in this manner to the questions propounded to him by the counsel for plaintiff, he refused to do so. For this, on further proceeding, he was held by the court to be in contempt, and fined $500, and committed to the custody of the marshal until it was paid. It is to be relieved of this imprisonment that he prays here the writ of habeas corpus.

Wheeler H. Peckham, for petitioner.

John R. Dos Passos, for respondent.

[Argument of Counsel from pages 715-718 intentionally omitted]

Mr. Justice Miller delivered the opinion of the court. He stated the facts as above recited, and continued:

title: Fisk


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Fisk/Opinion of the Court

The jurisdiction of this court is always challenged in cases of this general character, and often successfully. There can be no doubt of the proposition that the exercise of the power of punishment for contempt of their orders by courts of general jurisdiction is not subject to review by writ of error, or appeal to this court. Nor is there, in the system of federal jurisprudence, any relief against such orders, when the court has authority to make them, except through the court making the order, or possibly by the exercise of the pardoning power. This principle has been uniformly held to be necessary to the protection of the court from insults and oppressions while in the ordinary exercise of its duties, and to enable it to enforce its judgments, and orders necessary to the due administration of law, and the protection of the rights of suitors. When, however, a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make, the order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void. It is well settled now, in the jurisprudence of this court, that when the proceeding for contempt in such a case results in imprisonment, this court will, by its writ of habeas corpus, discharge the prisoner. It follows, necessarily, that on a suggestion by the prisoner that, for the reason mentioned, the order under which he is held is void, this court will, in the language of the statute, make 'inquiry into the cause of the restraint of liberty.' Section 752, Rev. St.

That the case as made by the petitioner comes, for the purposes of this inquiry, within the jurisdiction of this court, under the principles above mentioned, is established by the analogous cases. Ex parte Rowland, 104 U.S. 604; Ex parte Lange, 18 Wall. 163. But did the court transcend its jurisdiction in fining the petitioner for contempt? Or, rather, did it have the power to make the order requiring him to submit to the preliminary examination? For, if it had that power, it clearly could enforce obedience to the order by fine and imprisonment if necessary. The record of the entire proceeding in this branch of the case, both in the state court and the circuit court, is before us, and we are thus enabled to form an intelligent opinion on the question presented.

The power of the court to continue the examination of the defendant, after the removal of the case into the court of the United States, is asserted on two grounds: (1) That the order for his examination, having been made by the supreme court of New York, under its rightful jurisdiction, while the case was pending in it, is still a valid order, partially executed, which accompanies the case into the circuit court, and that in that court it cannot be reconsidered, but must be enforced. (2) That if this be not a sound proposition, the circuit court made an independent order of its own for the examination of the defendant, which order is justified by the principle that the Code of Civil Procedure of New York, under which both orders were made, is a part of the law governing the courts of the United States sitting within that state.

We will inquire into the latter proposition first, for the points to be considered in it lie at the foundation of the other also. The general doctrine that remedies, whose foundations are statutes of the state, are binding upon the courts of the United States within its limits, is undoubted. This well-known rule of the federal courts, founded on the act of 1789, (1 St. 92; Rev. St. § 721,) that the laws of the several states, except when the constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, was enlarged in 1872 by the provision found in section 914 of the Revision. This enacts that 'the practice, pleadings, and forms and modes of proceeding in civil cases, other than equity and admiralty causes, in the circuit and district courts, shall conform as near as may be to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, anything in the rules of courts to the contrary notwithstanding.' In addition to this, it has been often decided in this court that in actions at law in the courts of the United States the rules of evidence and the law of evidence generally of the states prevail in those courts. The matter in question here occurred in the court below in regard to a common-law action. It was in regard to a method of procuring and using evidence, and it was a proceeding in a civil cause other than equity or admiralty. We entertain no doubt of the decision of the court of appeals of New York that it was a proceeding authorized by the statutes of New York, under which, in a New York court, defendant was bound to answer. The case, as thus stated, is a strong one for the enforcement of this law in the courts of the United States. Ex parte Boyd, 105 U.S. 647. But the act of 1789, which made the laws of the states rules of decision, made an exception when it was 'otherwise provided by the constitution, treaties, or statutes of the United States.' the act of 1872 evidently contemplates the same exception by requiring the courts to conform to state practice as near as may be. No doubt it would be implied, as to any act of congress adopting state practice in general terms, that it should not be inconsistent with any express statute of the United States on the same subject.

There are numerous acts of congress prescribing modes of procedure in the circuit and district courts of the United States at variance with laws of the states in which the courts are held. Among these are the modes of impaneling jurors, their qualifications, the number of challenges allowed to each party. Two chapters of the Revised Statutes, (17 and 18,) embracing sections 858 to 1042, inclusive, are devoted to the subjects of evidence and procedure alone. The case before us is eminently one of evidence and procedure. The object of the orders is to procure evidence to be used on the trial of the case, and this object is effected by a proceeding peculiar to the courts of New York, resting alone on a statute of that state. There can be no doubt that if the proceeding here authorized is in conflict with any law of the United States, it is of no force in the courts of the United States. We think it may be added further, in the same direction, that if congress has legislated on this subject and prescribed a definite rule for the government of its own courts, it is to that extent exclusive of any legislation of the states in the same matter. A striking illustration of this effect of an act of congress in prescribing rules of evidence is to be found in section 858 of the Revised Statutes, originally enacted in an appropriation bill in 1864, and the amendment to it passed in 1865. It now reads: 'In the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried: provided, that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court.' This act of congress, when passed, made competent witnesses in the courts of the United States many millions of colored persons who were not competent by the laws of the states in which they lived, and probably as many more persons, as parties to suits, or interested in the issues to be tried, who were excluded by the laws of the states. It has never been doubted that this statute is valid in all the courts of the United States, not only as to the introduction of persons of color and parties to suits; but, in the qualification made by the proviso where its language differs from provisions somewhat similar in state statutes, the act of congress, critically construed, has always been held to govern the court. Monongahela Bank v. Jacobus, 109 U.S. 275; S.C.. 3 SUP. CT. REP. 219; Potter v. Bank, 102 U.S. 163; Page v. Burnstine, Id. 664; King v. Worthington, 104 U.S. 44.

Coming to consider whether congress has enacted any laws bearing on the question before us, we find the following sections of the Revised Statutes, in chapter 17, on evidence, which we here quote together:

'Sec. 861. The mode of proof, in the trial of actions at common law, shall be by oral testimony and examination of witnesses in open court, except as hereinafter provided.'

'Sec. 863. The testimony of any witness may be taken in any civil cause, pending in a district or circuit court, by deposition de bene esse, when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient or infirm.' The remainder of this section, and sections 864 and 865, are directory as to the officer before whom the deposition may be taken, the notice to the opposite party, and the manner of taking, testifying, and returning the deposition to the court.

'Sec. 866. In any case where it is necessary, in order to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatum to take depositions according to common usage; and any circuit court, upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be take in perpetuam rei memoriam, if they relate to any matter that may be cognizable in any court of the United States.'

Section 867 authorizes the courts of the United States, in their discretion, and according to the practice in the state courts, to admit evidence so taken; and sections 868, 869, and 870 prescribe the manner of taking such depositions, and of the use of the subpoena duces tecum, and how it may be obtained. No one can examine these provisions for procuring testimony to be used in the courts of the United States and have any reasonable doubt that, so far as they apply, they were intended to provide a system to govern the practice, in that respect, in those courts. They are, in the first place, too complete, too far-reaching, and too minute to admit of any other conclusion. But we have not only this inference from the character of the legislation, but it is enforced by the express language of the law in providing a defined mode of proof in those courts, and in specifying the only exceptions to that mode which shall be admitted. This mode is 'by oral testimony and examination of witnesses in open court, except as hereinafter provided.' Of course the mode of producing testimony under the New York Code, which was applied to petitioner, is not oral testimony and examination of a witness in open court, within the meaning of this act of congress. This obviously means the production of the witness before the court at the time of the trial, and his oral examination then; and it does not mean proof by reading depositions, though those depositions may have been taken before a judge of the court, or even in open court, at some other time than during the trial. They would not, in such case, be oral testimony. The exceptions to this section, which all relate to depositions, also show that proof by deposition cannot be within the rule, but belongs exclusive y to the exceptions.

We come now to inquire if the testimony sought to be obtained from petitioner by this mode comes within the exception referred to in section 861. These exceptions relate to cases where it is admissible to take depositions de bene esse, under section 863, or in perpetuam rei memoriam and under a dedimus potestatum under section 866. In the first of these, the circumstances which authorize depositions to be taken in advance for use on the trial are mentioned with great particularity. They all have relation to conditions of the witness; to residence more than a hundred miles from the court, or bound on a sea voyage, or as going out of the United States or out of the district, or more than a hundred miles from the place of trial before the time of trial, or an ancient or infirm witness. None of these things are suggested in regard to petitioner, nor were they thought of as a foundation of the order of the state court or of the circuit court. The statute of New York, under which both courts acted, makes no such requirements as a condition to the examination of the party. It is a right which, if the judge may possibly refuse to grant, he is in that matter governed by none of the conditions on which the deposition may be taken under the act of congress. Nor does the case come within the principle or profess to be grounded on the power conferred by section 866, which is another exception to the rule established by section 861. It is not according to common usage to call a party in advance of the trial at law and subject him to all the skill of opposing counsel to extract something which he may then use or not, as it suits his purpose. This is a very special usage, dependent wholly upon the New York statute. Nor is it in any manner made to appear that this examination 'was necessary in order to prevent a delay or failure of justice in any of the courts of the United States,' nor is any such proposition the foundation of the court's action.

These are the exceptions which the statute provides to its positive rule that the mode of trial in actions at law shall be by oral testimony and examination of witnesses in open court. They are the only exceptions thereinafter provided. Does the rule admit of others? Can its language be so construed? On the contrary, its purpose is clear to provide a mode of proof in trials at law to the exclusion of all other modes of proof; and because the rigidity of the rule may, in some cases, work a hardship, it makes exceptions of such cases as it recognizes to be entitled to another rule, and it provides that rule for those cases. Under one or the other all cases must come. Every action at law in a court of the United States must be governed by the rule, or by the exceptions which the statute provides. There is no place for exceptions made by state statutes. The court is not at liberty to adopt them, or to require a party to conform to them. It has no power to subject a party to such an examination as this. Not only is no such power conferred, but it is prohibited by the plain language and the equally plain purpose of the acts of congress, and especially the chapter on Evidence of the Revision. The New York statute would, if in force, repeal or supersede the act of congress. It does not require much deliberation to see that if the acts of congress forbid the use of this kind of testimony in the courts of the United States, no order for taking it made in the state court while the case was pending in that court, with a view to its use on a trial there, can change the law of evidence in the federal court. Without deciding now, for the question is not before us, whether the testimony actually given under that order and transmitted with the record of the case to the circuit court can be used when the trial takes place, we are well satisfied that the latter court cannot enforce the unexecuted order of the state court to procure evidence which, by the act of congress, is forbidden to be introduced on the trial, if it should be so taken.

The provision of section 4 of the act of March 3, 1875, (18 St. 470,) declares orders of the state court, in a case afterwards removed, to be in force until dissolved or modified by the circuit court. This fully recognizes the power of the latter court over such orders. And it was not intended to enact that an order made in the state court, which affected or might affect the mode of trial yet to be had, could change or modify the express directions of an act of congress on that subject. Nor does the language of the court in Duncan v. Gegan, 101 U.S. 810, go so far. When it is there said that 'the circuit court has no more power over what was done before the removal than the state court would have had if the suit had remained,' it is in effect affirmed that it has, at least, that much power. There can be no doubt that, on a proper showing before the state court, it could have discharged the order for this examination, or suspended its further execution. In acting on such a motion as this it would have been governed by the laws of the state of New York. In deciding whether it would continue the execution of this order, or decline to execute it further, the circuit court was governed by the federal law. If the law governing the circuit court gave it no power to make or continue this examination, but, in fact, forbid it, then it could not enforce the order.

The petitioner having removed his case into the circuit court has a right to have its further progress governed by the law of the latter court, and not by that of the court from which it was removed; and if one of the advantages of this removal was an escape from this examination, he has a right to that benefit if his case was rightfully removed. This precise point is decided, and in regard to this very question of the differing rules of evidence prevailing in the state and federal courts, in King v. Worthington, 104 U.S. 44. In that case, after it had been once heard on appeal in the supreme court of Illinois, it was removed into the circuit court of the United States. The supreme court had reversed the judgment of the inferior court, because, among other things, the evidence of witnesses had been received whom that court held to be incompetent. On the trial in the circuit court they were held to be competent and admitted to testify, notwithstanding the decision of the supreme court of the state, on the ground that section 858 of the Revised Statutes of the United States, already copied in this opinion, made them competent, and although it differed in that respect from the statute of Illinois on the same subject, it must prevail in the circuit court. It was strongly urged here that this was error, and as to that case the decision of the Illinois court, made while it was rightfully before it, should control. But this court held otherwise, and said: 'The federal court was bound to deal with the case according to the rules of practice and evidence prescribed by the acts of congress. If the case is properly removed, the party removing it is entitled to any advantage which the practice and jurisprudence of the federal courts give him.' The circuit court was therefore without authority to make the orders for the examination of petitioner in this case, and equally without authority to enforce these orders by process for contempt. Its order fining him for contempt and committing him to the custody of the marshal was without jurisdiction and void, and the prisoner is entitled to his release. It is supposed that the announcement of the judgment of the court that he is entitled to the writ will render its issue unnecessary. If it shall prove otherwise, the writ will be issued on application to the clerk.

title: Fisk/Opinion of the Court


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Cooper Manufacturing Company of Mount Vernon Ohio v. Ferguson

Section 10 of article 15 of the constitution of the state of Colorado, adopted in 1876, and still in force, provides as follows: corporation shall do any business in this state without having one or more known places of business, and an authorized agent or agents in the same upon whom process may be served.' To carry into effect this clause of the constitution, the legislature of Colorado, in the year 1877, in an act entitled: 'An act to provide for the formation of corporations,' enacted as follows:

'Sec. 23. Foreign corporations shall, before they are authorized or permitted to do any business in this state, make and file a certificate, signed by the president and secretary of such corporation, duly acknowledged, with the secretary of state, and in the office of the recorder of deeds of the county in which such business is carried on, designating the principal place where the business of such corporation shall be carried on in this state, and an authorized agent or agents in this state residing at its principal place of business upon whom process may be served; and such corporation shall be subjected to all the liabilities, restrictions, and duties which are or may be imposed upon corporations of like character organized under the general laws of this state, and shall have no other or greater powers.'

Section 26 of the same act provided that a failure to comply with the provisions of section 23 should render the officers, agents, and stockholders of the corporation individually liable on all its contracts made while the corporation was so in default.

These provisions of the organic and statute law of the state being in force, the plaintiff in error, which was a corporation organized and existing under the laws of the state of Ohio, and having its principal place of business at Mount Vernon, Ohio, on February 22, 1880, at the county of Larimer, in the state of Colorado, entered into a contract in writing of that date with the defendants, who were citizens of Colorado, by which it was agreed that the plaintiff should sell to the defendants, and deliver to them on the cars at Mount Vernon, in the state of Ohio, a steam engine and other machinery, in consideration whereof, the defendants were to pay the plaintiff the price stipulated in the contract for such machinery.

This suit was brought by the plaintiff on August 10, 1880, to recover of the defendants damages for their breach of the contract. The defendants, among other defenses, pleaded-First, that when the contract was entered into, the plaintiff had not made and filed the certificate required by section 23 of the act of 1877; second, that at the time of making the contract the plaintiff did not have a known place of business in the state of Colorado, and did not have an authorized agent or agents in the state upon whom process might be served. The plaintiff demurred to both these answers, because they did not state facts sufficient to constitute a defense to the action. Upon the hearing of the demurrer the judges of the circuit court were divided in opinion, and the presiding judge being of opinion that the demurrer should be overruled, it was overruled accordingly, and the plaintiff electing to stand by its demurrer, judgment was entered against it dismissing its suit, and for costs. By the present writ of error the plaintiff brings that judgment under review.

The certificate of division of opinion recites the facts above set forth, and states the question upon which the judges differed to be: 'Whether the tenth section of article sixteen' (fifteen) 'of the constitution of the state of Colorado, and the twenty-third section of an act of the general assembly of the state of Colorado, passed in the year A. D. 1877, entitled an 'Act to provide for the formation of corporations,' were, or either of them was, under all the circumstances stated, and the various acts passed by the legislature of the state of Colorado, a bar in this action.'

Walter H. Smith, for plaintiff in error.

''Thos. M. Robinson'', for defendant in error.

[Argument of Counsel from pages 730-732 intentionally omitted]

WOODS, J.


text: Talk:Cooper Manufacturing Company of Mount Vernon Ohio v. Ferguson


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Cooper Manufacturing Company of Mount Vernon Ohio v. Ferguson/Opinion of the Court

The right of the people of a state to prescribe generally by its constitution and laws the terms upon which a foreign corporatio shall be allowed to carry on its business in the state, has been settled by this court. Bank of Augusta v. Earle, 13 Pet. 519; Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 Wall. 410. The plaintiff in error does not deny this right, but insists that, upon a proper construction of section 10 of article 15 of the constitution of Colorado, and of section 23 of the act of 1877, its * contract with the defendants was valid, and that its suit should have been maintained. As the clause in the constitution and the act of the legislature relate to the same subject, like statutes in pari materia, they are to be construed together. Eskridge v. State, 25 Ala. 30. The act was passed by the first legislature that assembled after the adoption of the constitution, and has been allowed to remain upon the statute book to the present time. It must therefore be considered as a contemporary interpretation, entitled to much weight. Stuart v. Laird, 1 Cranch, 299; Martin v. Hunter, 1 Wheat. 304; Cohens v. Virginia, 6 Wheat, 264; Adams v. Storey, 1 Paine, 90. It must be conceded that if the contract on which the suit was brought was made in violation of a law of the state, it cannot be enforced in any court sitting in the state charged with the interpretation and enforcement of its laws. U.S. Bank v. Owens, 2 Pet. 527; Groves v. Slaughter, 15 Pet. 449; Harris v. Runnels, 12 How. 79; Brown v. Tarkington, 3 Wall. 377; Davidson v. Lanier, 4 Wall. 447; Hanauer v. Doane, 12 Wall. 342; Wheeler v. Russell, 17 Mass. 258; Law v. Hodson, 11 East, 300; Little v. Poole, 9 Barn. & C. 192; Thorne v. ''Travelers' Ins. Co. 80 Pa. St. 15; Allen v. Hawks'', 13 Pick. 82; Roche v. Ladd, 1 Allen, 441; In re Comstock, 3 Sawy, 218.

So far as appears by the record, the plaintiff had no principal place of business, nor any place of business whatever, in the state of Colorado, and the making of the contract set out in the complaint was the only business ever done by it, or that it ever purposed to do, in that state. The question, therefore, is whether, upon a true construction of the constitution and statute, the making of the contract which the plaintiff seeks to enforce, was, under the circumstances stated, forbidden. The contention of the defendant in error is that the prohibition against the doing of any business in the state by a foreign corporation, except upon the prescribed condition, includes the doing of any single and isolated act of business whatever. Thus broadly stated, it is clear that the interpretation of the defendants cannot be sustained. In a case involving the construction of the statute, the supreme court of Colorado held that a foreign corporation might, without complying with the provisions of the statute, maintain an action in the courts of the state to recover damages for trespass to its real estate. The court said: 'The prohibition extends to doing business before compliance with the terms of the statute. We do not think this an abridgment of the right of a foreign corporation to sue. It extends only to the exercise of the powers by which it may be said ordinarily to transact or carry on its business. To what extent the exercise of these powers is affected we do not decide.' Utley v. Clark-Gardner Lode Min. Co. 4 Colo. 369. So it is clear that the statute cannot be construed to impose upon a foreign corporation limitations of its right to make contracts in the state for carrying on commerce between the states, for that would make the act an invasion of the exclusive right of congress to regulate commerce among the several states. Paul v. Virginia, 8 Wall. 168. The prohibition against doing any business cannot, therefore, be literally interpreted.

Reasonably construed, the constitution and statute of Colorado forbid, not the doing of a single act of business in the state, but the carryi g on of business by a foreign corporation without the filing of the certificate and the appointment of an agent, as required by the statute. The constitution requires the foreign corporation to have one or more known places of business in the state before doing any business therein. This implies a purpose, at least, to do more than one act of business; for a corporation that has done but a single act of business, and purposes to do no more, cannot have one or more known places of business in the state. To have known places of business it must be carrying on or intending to carry on business. The statute passed to carry the provision of the constitution into effect makes this plain, for the certificate which it requires to be filed by a foreign corporation must designate the principal place in the state where the business of the corporation is to be carried on. The meaning of the phrase 'to carry on,' when applied to business, is well settled. In Worcester's Dictionary the definition is: 'To prosecute, to help forward, to continue; as to carry on business.' The definition given to the same phrase in Webster's Dictionary is: 'To continue, as to carry on a design; to manage or prosecute, as to carry on husbandry or trade.' The making in Colorado of the one contract sued on in this case, by which one party agreed to build and deliver in Ohio certain machinery and the other party to pay for it, did not constitute a carrying on of business in Colorado.

The obvious construction, therefore, of the constitution and the statute is that no foreign corporation shall begin any business in the state, with the purpose of pursuing or carrying it on, until it has filed a certificate designating the principal place where the business of the corporation is to be carried on in the state, and naming an authorized agent, residing at such principal place of business, on whom process may be served. To require such a certificate as a prerequisite to the doing of a single act of business, when there was no purpose to do any other business or have a place of business in the state, would be unreasonable and incongruous.

The case of Potter v. Bank of Ithaca, 5 Hill, 490, tends to support this conclusion. The charter of the bank provided that its operations of discount and deposit should be carried on in the village of Ithaca, and not elsewhere. The cashier discounted a note in the city of New York, for the purpose of securing a demand due the bank, and the fact that the note was discounted in New York city was set up as a defense to a suit on the note. In giving judgment for the bank, NELSON, C. J., said the statute 'obviously relates to the regular and customary business operations of the bank, and does not apply to a single transaction like the one in question.' A similar ruling was made in Suydam v. Morris Canal & Banking Co. 6 Hill. 217. See, also, Graham v. Hendricks, 22 La. Ann. 523.

We base the conclusion that the demurrer to the defendant's answer should have been sustained, upon the interpretation we have given to the constitution and statute, and do not find it necessary to decide whether their provisions invade the exclusive right of congress to regulate commerce among the several states. We have examined all the cases cited by the defendants to support their interpretation. In none of them was the statute construed similar in its language or provisions to the constitution or statute under consideration, and the cases can have no controlling weight in the present controversy.

We are of opinion that there was error in the judgmen of the circuit court. The judgment must therefore be reversed, and the cause remanded for further proceedings, in conformity with this opinion; and it is so ordered.

MATTHEWS, J., concurring.

Mr. Justice BLATCHFORD and myself concur in the judgment of the court announced in this case, but on different grounds from those stated in the opinion. Whatever power may be conceded to a state to prescribe conditions on which foreign corporations may transact business within its limits, it cannot be admitted to extend so far as to prohibit or regulate commerce among the states; for that would be to invade the jurisdiction which, by the terms of the constitution of the United States, is conferred exclusively upon congress.

In the present case, the construction claimed for the constitution of Colorado, and the statute of that state passed in execution of it, cannot be extended to prevent the plaintiff in error, a corporation of another state, from transacting any business in Colorado which, of itself, is commerce. The transaction in question was clearly of that character. It was the making of a contract in Colorado to manufacture certain machinery in Ohio, to be there delivered for transportation to the purchasers in Colorado. That was commerce; and to prohibit it, except upon conditions, is to regulate commerce between Colorado and Ohio, which is within the exclusive province of congress. It is quite competent, no doubt, for Colorado to prohibit a foreign corporation from acquiring a domicile in that state, and to prohibit it from carrying on within that state its business of manufacturing machinery. But it cannot prohibit it from selling in Colorado, by contracts made there, its machinery manufactered elsewhere, for that would be to regulate commerce among the states. In Paul v. Virginia, 8 Wall. 168, the issuing of a policy of insurance was expressly held not to be a transaction of commerce, and therefore not excluded from the control of state laws; and the decision in that case is predicated upon that distinction. It is, therefore, not inconsistent with these views. It is, therefore, not inconsistent


text: Talk:Cooper Manufacturing Company of Mount Vernon Ohio v. Ferguson/Opinion of the Court


text:
Carter v. Burr

H. O. Claughton, for appellant. R. Ross Perry and W. D. Davidge, for appellee.

WAITE, C. J.

title: Carter v. Burr


text: Talk:Carter v. Burr

title: Talk:Carter v. Burr


text:
Carter v. Burr/Opinion of the Court

The following facts are either conceded by both parties or fully established by the evidence:

On the twenty-ninth of May, 1873, Joseph Daniels bought of John E. Carter certain parts of lots 1 and 24, in square 514, of the city of Washington, for which he paid $4,000 cash in hand, and gave his three promissory notes for $4,000 each, payable respectively in one, two, and three years from date, with interest at the rate of 8 per cent. per annum. The notes were secured on the property by a deed of trust to Dorsey E. W. Carter, trustee. When the first note fell due, in 1874, Daniels was unable to meet it, and John E. Carter, who then held it, pressed him for payment. On the seventh of July, 1874, he entered into a contract with Seth A. Terry, by which he assigned to Terry his interest in what were known as the 'Eight-hour Law Cases' and the 'Twenty per Cent. Cases,' for the consideration of $10,000, of which $5,000 was paid in hand, and the remaining $5,000 was to be paid by taking up, on or before the first day of September then next, certain notes of Daniels secured by a deed of trust of his homestead. The notes, when taken up, were to be held by erry for three years from the date of the contract, if the 'Eight-hour Law' and 'Twenty per Cent.' cases were not paid before that time. If the cases were paid within the three years, the notes were to be given up to Daniels, but if not so paid, Terry was authorized to enforce their collection by a sale of the property covered by the deed of trust. Among the notes to be taken up by Terry under this contract was that given to John E. Carter, payable one year after date, and secured with the other two notes by the deed of trust to Dorsey E. W. Carter. In order to comply with the contract, Terry was under the necessity of borrowing $3,000 from C. C. Burr, to secure which he agreed to pledge the Carter note as collateral when he took it up.

On the sixth of May, 1874, John E. Carter left the Daniels note with the Farmers' & Mechanics' National Bank of Georgetown, for collection when it fell due. The note remained in that bank until August 29, 1874, when it was returned to Carter unpaid. Burr did not have the money on the first of September which he had agreed to loan Perry, but he expected to receive it soon. Perry, therefore, arranged with the Second National Bank of Washington to advance the $3,000 for a few days, and about the first of September he went to the store of Dorsey E. W. Carter, where John E. Carter then was, and, with money of his own, paid to John E. Carter all that was due on the note except $3,000. He told Carter if he would call at the Second National Bank in the course of the day, the bank would pay him that sum. Carter then gave Terry the note uncanceled and indorsed in blank. The note shows only one indorsement of payment, and that is as follows: 'Interest on the within paid to September 29, 1874.' Terry, after he got the note from Carter, took it to the Second National Bank and left it there, the bank agreeing to pay Carter the $3,000 when he called. Carter did call in the course of the day and got his money. A few days afterwards Burr went to the bank, paid the sum which had been advanced to Carter, and took the note away. No entries of the transaction were made on the books of the bank; but Terry paid the interest on the advance made by the bank from the time the money was given to Carter until it was repaid by Burr. Terry had not paid his debt to Burr when the decree below was rendered.

After the first note had got in this way into the possession of Burr, Dorsey E. W. Carter obtained from John E. Carter the second Daniels note under circumstances which, in the opinion of the court below, postponed his lien under the trust deed to that of Nathaniel Carusi, who had previously bought the third note from John E. Carter. The court, at special term, found that the note held by Mrs. Burr had been paid and canceled; and, after finding the amount due Dorsey E. W. Carter and Carusi, respectively, on the second and third notes, ordered a sale of the property under the trust deed, and an application of the proceeds-First, to the payment of the amount due Carusi; and, second, of that due to Dorsey E. W. Carter. From this decree Mrs. Burr appealed to the general term. Pending that appeal, the property was sold under the decree of the court in special term to Dorsey E. W. Carter for $8,990. This sale was confirmed in special term, with the consent of all the parties, on the twenty-sixth of November, 1878.

The appeal of Mrs. Burr came on for hearing at the general term, and on the twenty-third of December, 1880, a decree was entered reversing the decree of the special term so far as it ordered the payment of the proceeds of the sale to Dorsey E. W. Carter, after satisfying the amount due on the note held oy Nathaniel Carusi, in preference to Mrs. Burr; and directing that Mrs. Burr be 'admitted to participate to the amount of $2,748.47 in the fund' arising from the sale to Dorsey E. W. Carter. The court further found that after the decree at special term, the fund in court had been distributed, and that Dorsey E. W. Carter had received the money which o right belonged to Mrs. Burr. It therefore ordered Carter to pay the amount belonging to Mrs. Burr, with interest from the date of the decree. From this decree in favor of Mrs. Burr, Carter took the present appeal. None of the parties to the suit are parties to the appeal except Mrs. Burr, as administratrix of the estate of her deceased husband, and Dorsey E. W. Carter.

As the case comes to us, the only question to be determined is whether what was done by John E. Carter and Terry, when Terry got possession of the note now held by Mrs. Burr, was a payment of the note by Daniels to Carter, through Terry, as the agent of Daniels, or a sale and transfer of the note by Carter to Terry. As to some of the facts connected with this transaction, there is a great conflict of testimony; but in respect to those which are to our minds controlling, there is but little, if any, dispute.

As between Terry and Daniels, it is clear the note was not paid. By the express terms of their agreement Terry was to 'take up' the note from Carter and hold it until he was paid either by the 'Eight-hour Law' and 'Twenty per Cent.' cases, or otherwise. If not paid in three years the security could be enforced. The real point of difference is as to the understanding which Carter had of the transaction. Did he take the money supposing the note was thereby paid and canceled, or did he transfer the note to Terry to be held by him until paid by Daniels? Upon full consideration of the evidence we think it was the intention of Carter to transfer the note. He got his money from or through Terry, and not from Daniels, the maker of the note. He had been pressing Daniels for payment, but without success. The note remained at the bank, where it had been deposited for collection, until within two days of the time when, under the arrangement between Terry and Daniels, it was to be taken up by Terry. Carter then went and got it into his own possession. When Terry came to take it up he had not money enough to pay for it in full. He paid what he had, which reduced the amount required to just the sum Burr had agreed to loan him. When this payment was made, Carter gave him the note indorsed in blank, without cancellation in whole or in part, on the understanding that if Carter called in a short time at the bank he would get the remaining $3,000. He did so call and got his money. Under these circumstances we do not doubt that Carter at the time fully understood the arrangement which had been made between Terry and Daniels, and took the money from Terry with the knowledge that Terry was to hold it until paid to him by Daniels. From the fact, too, that he gave the note to Terry, indorsed in blank, and uncanceled, before the $3,000 was paid, we are satisfied he must have known that Terry was expecting to raise the money upon the note itself in order to meet the balance which was due to him. The established facts on this branch of the case are entirely inconsistent with the idea that the note was understood by any of the parties to have been canceled by the payment which Terry made, or caused to be made, to Carter, and it nowhere appears from anything in the case that Carter either demanded or received any release or postponement of the lien which pertained to this note.

We do not understand that any question of distribution as between the appellant and appellees arises upon the record. The special term gave Carusi, the holder of the third note, a priority over Dorsey E. W. Carter on account of the peculiar circumstances under which Carusi bought his note from John E. Carter. That question is not brought up by this appeal, as neither Carusi nor his representatives have been made parties. As to the distribution between Dorsey E. W. Carter and Mrs. Burr, the counsel for the appellant admits in his brief that the pro rata rule was followed by the general term, and no preference given to Mrs. Burr as the holder of the note first falling due. This certainly is all that Carter can ask.

The decree at the general term is affirmed.

title: Carter v. Burr/Opinion of the Court


text: Talk:Carter v. Burr/Opinion of the Court


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Page:Travels with a Donkey In The Cevennes.djvu/113

Rh point-blank question that the truth came out. I had been tolerantly used, both by simple Father Apollinaris and astute Father Michael; and the good Irish deacon, when he heard of my religious weakness, had only patted me upon the shoulder and said, "You must be a Catholic and come to heaven." But I was now among a different sect of orthodox. These two men were bitter and upright and narrow, like the worst of Scotsmen, and indeed, upon my heart, I fancy they were worse. The priest snorted aloud like a battle-horse. "Et vous prétendez mourir dans ceile espèce de croyance?" he demanded; and there is no type used by mortal printers large enough to qualify his accent. I humbly indicated that I had no design of changing. But he could not away with such a monstrous attitude. "No, no," he cried; "you must change. You have come here, God has led you here, and you must embrace the opportunity." I made a slip in policy; I appealed to the family


text:
Gregory v. Hartley

''Chas. O. Whedon'', for plaintiffs in error.

Walter J. Lamb and E. E. Brown, for defendants in error.

WAITE, C. J.

title: Gregory v. Hartley


text: Talk:Gregory v. Hartley

title: Talk:Gregory v. Hartley


text:
Gregory v. Hartley/Opinion of the Court

This is a writ of error to reverse a judgment of the supreme court of Nebraska, on the single ground that the supreme court decided that the district court of Lancaster county had jurisdiction to proceed with the suit after a petition for the removal thereof to the circuit court of the United States had been made and filed in the district court. The transcript, which has been returned with the writ, is evidently very imperfect, and it purports to contain only a part of the record below. It is not authenticated by the clerk as a full transcript, and it shows on its face that much which is important to a correct understanding of the case has been omitted. From what has been returned, however, it sufficiently appears that the suit was originally brought in the district court of Lancaster county, by Milo F. Kellogg against Luke Lavender, James E. Phillpot, John S. Gregory, E. Mary Gregory, Thomas J. Cantlon, R. F. Parshall, and perhaps some others, to enforce the specific performance of a contract in writing, entered into on the thirtieth of July, 1872, between the plaintiff Kellogg and the defendant Lavender for the sale by Lavender to Kellogg of certain lots in Lincoln, Nebraska. The price to be paid was $2,500. Of this amount $500 was paid in hand, and for the remaining $2,000 Kellogg executed two notes of $1,000 each, payable to the order of Lavender: one on the first day of May, 1873, and the other on the first day of May, 1874, with interest at the rate of 12 per cent. per annum. At what time the suit was begun nowhere appea s, but an amended petition was filed on the twenty-second of November, 1879, making Joseph W. Hartley, Reuben R. Tingley, and many others, parties. To this petition Hartley filed an answer and cross-petition on the second of December, 1879, Tingley an answer on the first of December, 1879, and Parshall an answer and cross-petition at some time before May 17, 1880. The answer and cross-petition of Hartley are found in the record, and from them it appears that he claimed and sought to enforce a lien on the property as security for the payment of money he advanced Kellogg to aid in paying the note due to Lavender in May, 1873. The answer of Tingley and the answer and cross-petition of Parshall are not copied into the transcript. On the seventeenth of May, 1880, the two Gregorys, Lavender, Cantlon, and Phillpot filed demurrers to the answers and cross-petitions of Hartley and Parshall, and to the answer of Tingley, on the ground that they did not state facts sufficient to constitute a cause of action or a defense. These demurrers were heard and overruled by the court on the seventeenth of August, 1880, and 30 days given the demurring defendants to answer.

At the time of the filing of the amended petition the legal title to the property was in E. Mary Gregory, the wife of J. S. Gregory, Lavender having conveyed it to Phillpot and Cantlon after he made his contract with Kellogg, and they having afterwards sold and conveyed it to Mrs. Gregory. On the twenty-eighth of November, 1879, Mrs. Gregory settled all matters in dispute with Kellogg, and he assigned to her his contract with Lavender. After this settlement, on the twenty-second of September, 1880, Mrs. Gregory filed her answer to the amended petition, in which she set up her title to the property and her adjustment of the controversy with Kellogg. On the twenty-seventh of September, 1880, Lavender, Phillpot, and Cantlon filed their answer to the cross-petition of Hartley. On the fifth of November, 1880, leave was given Parshall and Tingley to file amended answers in 40 days, and on the thirteenth of December, 1880, Parshall did file his answer and cross-petition, claiming to be the owner of Kellogg's note to Lavender falling due in 1874, and asking to enforce a lien on the property for its payment. At the same time Tingley filed his answer and cross-petition, in which he claimed an interest in the note due in 1874, and prayed affirmative relief in his own behalf. On the third of March, 1881, Lavender, Phillpot, Cantlon, and Mrs. Gregory, with leave of the court, filed a reply to the answer and cross-petition of Parshall. On the twenty-third of March, 1882, leave was granted Tingley to amend his pleadings, and to Mrs. Gregory to file an amended answer in 30 days. Mrs. Gregory did file her amended answer to the cross-petition of Hartley on the seventeenth of April, 1882, and, on the fifteenth of June thereafter, the Gregorys, Lavender, Cantlon, Phillpot, and Kellogg presented their petition for the removal of the cause to the circuit court of the United States. That petition, so far as it is material to the question now under consideration, is as follows:

'Your petitioners now show to this court that the plaintiff herein, Milo F. Kellogg, is a citizen of the state of Missouri; defendant Thos. J. Cantlon is a citizen of the state of Colorado * defendant Reville F. Parshall is a citizen of the state of Wisconsin; defendant J. W. Hartley is a citizen of the state of Ohio; and that defendants E. Mary Gregory, James E. Phillpot, J. S. Gregory, and Luke Lavender are citizens of the state of Nebraska; and that said Thos. J. Cantlon and Reville E. Parshall were non-residents of the state of Nebraska at the commencement of this action. That none of the other defendants in said cause have made any appearance or set up any claims of interest in the cause or controversy, and that the defendants named herein are the only ones appearing to have any interest therein. Your petitioners further represent that no final earing or trial of said cause has been had, but said cause is now pending for trial in this court.'

Upon the presentation of this petition the district court refused to surrender its jurisdiction, and the petitioners excepted. On the eleventh of November, 1882, a decree was entered sustaining the several claims of Hartley and Tingley, and establishing liens in their favor on the property in dispute. From this decree the Gregorys, Phillpot, Cantlon and Lavender appealed to the supreme court of the state, and assigned for error the refusal of the district court to surrender its jurisdiction on the presentation of the petition for removal. The supreme court sustained the action of the district court, and to review that decision this writ of error was brought.

To our minds it is very clear that there was no error in the rulings of the courts below upon the federal question involved, which alone can be considered by us. The district court was not bound to surrender its jurisdiction until a case was made which on the face of the record showed that the petitioners were in law entitled to a removal. The mere filing of a petition is not enough, unless, when taken in connection with the rest of the record, it shows on its face that the petitioner has, under the statute, the right to take the suit to another tribunal. Railroad Co. v. Koontz, 104 U.S. 14.

The act of 1875, c. 137, (18 St. 470,) which governs this case, provides that the petition for removal must be filed at or before the term at which the cause could be first tried, and before the trial. This has been construed to mean the first term at which the cause is in law triable,-the first term in which the cause would stand for trial if the parties had taken the usual steps as to pleadings and other preparations. Babbitt v. Clark, 103 U.S. 606; Pullman Palace Car Co. v. Speck, 113 U.S. 87; S.C.., ante, 374. It has also been decided that there cannot be a removal after a hearing on a demurrer to a complaint because it does not state facts sufficient to constitute a cause of action. Alley v. Nott, 111 U.S. 472; S.C.. 4 SUP. CT. REP. 495; Scharff v. Levy, 112 U.S. 711; S.C.., ante, 360. Either one of these rules is fatal to the present case. If we treat the suit as originally one to enforce the liens of Hartley and Tingley upon the property as security for the payment of the amounts due them respectively, it was begun when their respective answers and cross-petitions claiming affirmative relief were filed, and this was certainly not later than December 13, 1880, or a year and a half before the petition for removal was presented. Five terms of the court had passed, at either one of which the case would have been triable if the parties had taken the usual steps as to pleadings and preparations. In fact, more than a year had elapsed from the time the issues had actually been made up on the pleadings of some of the parties.

Then, again, the answers and cross-petitions of the claimants of these several liens are to be treated as their petitions for relief upon their respective causes of action. The answer and cross-petition of Hartley, the original answer of Tingley, and the original answer and cross-petition of Parshall, were all demurred to on the seventeenth of May, 1880, and the demurrers overruled, nearly two years before the petition for removal was filed. After the hearing on the demurrers it was too late, under our decisions, to ask for a removal.

Without considering any of the other objections to the removal which might be urged, the judgment is affirmed.

title: Gregory v. Hartley/Opinion of the Court


text: Talk:Gregory v. Hartley/Opinion of the Court


text:
United States v. Steever

''Sol. Gen. Phillips'', for appellant.

James Fullerton, for appellee.

GRAY, J.

title: United States v. Steever


text: Talk:United States v. Steever

title: Talk:United States v. Steever


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

This is an appeal from a decree of the court of claims in favor of the appellee in a suit brought by him under the act of August 8, 1882, c. 480, to recover the amount necessary to make up his lawful share of the prize money awarded for the capture of the rebel ram Albemarle. The facts of the case, as appearing in the findings and judgment of the court of claims, are as follows:

The rebel iron-clad ram Albemarle was captured and sunk at Plymouth, in the Roanoke river, in the state of North Carolina, on the night of October 27, 1864, by the United States Picket Launch No. 1, an armed torpedo launch propelled by steam, attached to a division of the North Atlantic blockading squadron, and commanded by Lieut. William B. Cushing, of the United States navy, and having on board six inferior officers (of whom the petitioner, a third assistant engineer, was one) and eight men. Lieut. Cushing had been, by order of the secretary of the navy, detached from the command of the United States ship Monticello, and directed to report for duty to Rear Admiral Porter, commanding that squadron; and had been assigned by the admiral to the command of this launch. It does not appear that the launch had any books. The Albemarle was afterwards raised by the United States forces, and appropriated to the use of the United States, and was twice appraised by duly-appointed boards of naval officers: the first time, before she was so appropriated, at the sum of $79,944, which was forthwith deposited by the secretary of the navy with the assistant treasurer of the United States at Washington; and the second time, under the act of April 1, 1872, c. 76, (17 St. 649,) at the sum of $282,856.90, which, less the sum already deposited, was likewise so deposited, pursuant to the act of January 8, 1873, c. 18, (17 St. 405.)

Upon successive prize proceedings in 1865 and 1873, in the district court of the United States for the District of Columbia, the Albemarle was condemned as prize of war, and it was adjudged and decreed that she was of superior force to the launch, and that her appraised value, deducting costs, and amounting to $273,135.09, be paid to the captors as follows: One-twentieth part to the admiral commanding the squadron at the time of the capture, one-hundredth part to the fleet captain, and one-fiftieth part to the officer ommanding the division to which the launch was attached, and the remainder distributed to the other persons doing duty on board the launch, in proportion to their respective rates of pay the service. In all the prize proceedings there was no appearance by or in behalf of any of the captors except Cushing. Before either of those decrees was made, three of the officers of the launch were promoted: Lieut. Cushing, in February, 1865, to the rank of lieutenant commander; and Acting Master's Mates William L. Howarth and Thomas S. Gay, in March, 1865, the one to the grade of acting master, and the other to the grade of acting ensign; and each promotion to date from October 27, 1864. The money so ordered to be distributed, amounted, after deducting the shares paid to the commander of the squadron, the fleet captain, and the division commander, to the sum of $251,284.29, which was distributed by the officers of the treasury department among all the officers and crew of the launch, or their legal representatives, in proportion to the respective rates of pay to which they were by law entitled on the day of the capture, except that Cushing, Howarth, and Gay were, by order of the secretary of the navy, paid in proportion to the rates of pay of the grades to which, after the capture, they had been promoted as aforesaid.

By the act of August 8, 1882, c. 480, congress referred the claims of the captors of the Albemarle to the court of claims, 'with jurisdiction and authority to hear and determine the same, and all defenses thereto which are or may be open to the United States, and to render judgment thereon, with the right of appeal as in other cases;' and if the court should find that any of the captors had not received their full and just share of the prize money awarded for the capture of the Albemarle, according to the proportions provided in the prize laws in force at the time of the capture, and that they were entitled to claim and recover the same, then to render judgment in favor of them, or their legal representatives, for such sums as, added to the amount already paid, should make up their lawful shares; and provided that no suit should be brought under the provisions of this act after one year from the date of its passage; and that any judgment rendered by the court of claims should be paid by the secretary of the treasury out of any money in the treasury applicable to the payment of prize to captors, and, failing such money, out of any money in the treasury not otherwise appropriated. 22 St. 738.

Within the time limited by this act all the officers and men of the launch, or their legal representatives, except Cushing, Howarth, and Gay, brought suits under it in the court of claims, which held that, according to the prize laws in force at the time of the capture, Lieut. Cushing was not entitled to prize money in proportion to his rate of pay, but only as commander of a single ship to one-tenth of the prize money, and had, therefore, received $30,927.84 more than he was by law entitled to; and that Howarth and Gay were entitled to prize money only in proportion to their rate of pay as acting master's mates on the day of the capture, and not according to the pay of the grades to which they had since been promoted, and had, therefore, received, Howarth $18,979.02, and Gay $11,801.52, more than they were respectively entitled to; and that by the amount of these three sums, or $61,708.38, the other 12 captors had received less than they were entitled to; and gave judgment for each of them, or their representatives, accordingly. 19 Ct. Cl. 51.

The name, rank, and pay of the officers and crew on board the launch at the time of the capture, the amount which each one, or his representatives, had received under the prize proceedings, the amount which each should have received in the opinion of the court of claims, and the amount now due to each according to the judgment of that court, were as shown in the following table:

NAME AND RANK. PAY. PRIZE COURT OF  DUE.

PROCEEDINGS. CLAIMS.

William B. Cushing, lieutenant $1,875  $56,056 27  $25,128 43    ........

Francis H. Swan, acting ass't paymaster 1,300  31,102 50    45,793 80. $14,691

William Stotesbury, third ass't engineer 1,000  23,925 00    35,226 00.. 11,301

Charles L. Steever, third ass't engineer 1,000  23,925 00    35,226 00.. 11,301

Wm. L. Howarth, acting master's mate 480  35,887 50  16,908 48    ........

Thomas S. Gay, acting master's mate 480  28,710 00  16,908 48    ........

John Woodman, acting master's mate 480  11,484 00  16,908 48    5,424

Samuel Higgins, first-class fireman 360  8,613 01  12,681 36    4,068

Richard Hamilton, coal-heaver 240  5,742 01  8,454 24    2,712

Edward J. Houghton, ordinary seaman 192  4,593 60  6,763 39    2,169

Bernard Harley, ordinary seaman 192  4,593 60  6,763 39    2,169

William Smith, ordinary seaman 192  4,593 60  6,763 39    2,169

Robert H. King, landsman. 168 4,019 40  5,919 62  1,900

Henry Wilkes, landsman. 168. 4,019 40 5,919 62  1,900

Lorenzo Deming, landsman. 168 4,019 40  5,919 61  1,900

- -- -

The present suit is brought under the act of August 8, 1882, c. 480, by one of the subordinate officers of the launch who had not been promoted since the capture of the Albemarle. The question whether he has heretofore received less than his lawful share of prize money depends upon the question whether larger shares than the prize act allowed have been awarded and paid to Lieut. Commander Cushing, and to Howarth and Gay, who, at the time of the capture, were two of his acting master's mates. The prize court held that Cushing was entitled to share according to rate of pay with the other officers and men on board the launch. The court of claims held that he was entitled to one-tenth of the prize money as commander of a single ship. The question which of these views was correct depends upon the rules laid down in section 10 of the prize act of June 30, 1864, c. 174, (13 St. 306.) By those rules, all commanding officers have certain fractional parts of the prize money; and none of them have, or can elect to take, a share proportioned to their pay. By rule 4, there is to be paid 'to the commander of a single ship one-tenth part of all the prize money awarded to the ship under his command, if such ship at the time of the capture was under the command of the commanding officer of a fleet or squadron, the re-enactment of the fourth rule his ship was acting independently of such superior officer.' By rule 2, to the commanding officer of a division is to be paid one-fiftieth part of any prize money awarded to a vessel of his division, unless he elects to receive instead the share due to him as commander of a single ship making or assisting in a capture; that is to say, one-tenth. And by rule 1 the commanding officer of a fleet or squadron receives in all cases one-twentieth of all prize money awareded to vessels under his immediate command. So, by rule 3, the fleet captain receives one-hundredth part of prize money awarded to vessels of the fleet or squadron in which he is serving, with the single exception that when the capture is made by the vessel on board of which he is serving, he shares, in proportion to his pay, with the other officers and men on board. It is only 'after the foregoing deductions' that rule 5 directs that 'the residue shall be distributed and proportioned among all others doing duty on board, (including the fleet captain,) and borne upon the books of the ship, in proportion to their respective rates of pay in the service.' 13 St. 309, 310. Those rules would seem to have been framed upon the theory that in making general regulations for the distribution of prize money it is more just and equitable, and more suitable to the rank of commanding officers, to grant them a certain fractional part, than to etermine their shares by their rates of pay, like subordinate officers and men; and upon the supposition that the fractional part awarded to the commander of a single ship will usually be more than equivalent to a share proportioned to his rate of pay. But, whatever may have been the reasons on which the general rules of distribution laid down in the prize act were founded, it is enough to say that those rules are fixed and definite, governing all cases coming within their terms, and are the only guides of all courts and officers charged with the duty of administering the prize act. The share of the commander of a ship is the same, whether he is leading in action or lying disabled in his berth; and the share of the admiral commanding the squadron is not increased if the capture is made by his flag-ship, nor diminished if it is made without his participation or knowledge by another ship belonging to his command. Lumley v. Sutton, 8 Term R. 224, 229; Pigot v. White, 4 Doug. 302; S.C.. 1 H. Bl. 265, note; Dr. LUSHINGTON, in Banda & Kirwee Booty, L. R. 1 Adm. & Ecc. 109, 250; Decatur v. Chew, 1 Gall. 506; 11 Op. Attys. Gen. 9, 94. The courts cannot depart from the express law, because of the peculiar bravery or merit of the captors, or any of them, in a particular case. The Atlanta, 3 Wall. 425, 433; Porter v. U.S. 106 U.S. 607, 611; S.C.. 1 SUP. CT. REP. 539; The Joseph, 1 Gall. 545, 561; The Anglia, Blatchf. Prize Cas. 566.

We can have no doubt that the launch which took the Albemarle was 'a single ship,' within the meaning of the rules of distribution in the prize act of 1864. In those rules, the words 'single ship' are used in contradistinction to the words 'vessel or vessels,' which include more than one; and upon a view of the whole act, it is manifest that the word 'ship,' in the few instances in which it occurs, has no restricted sense, implying three squarerigged masts, or any masts at all, but is synonymous with the general words 'vessel of the navy,' or simply 'vessel,' as used throughout the act, and comes within the definition of section 32, by which in the term 'vessels of the navy' are to be included, for the purposes of this act, all armed vessels officered and manned by the United States, and under the control of the department of the navy. 13 St. 315. In the re-enactment of the fourth rule in section 4631 of the Revised Statutes, the words 'commander of a single vessel' are substituted for 'commander of a single ship.'

Nor is it material that there was no affirmative proof that the launch had any books. The keeping of books is not made a condition of the right of any vessel to share in prize money. The books of a ship are but the usual evidence of service on board; and neither the omission to keep books, nor the neglect of the proper officers to enter names upon them, can be held to cut off those lawfully assigned to duty on board, and actually doing such duty, from participation in prize money awarded to the ship. It is found as a fact that Lieut. Cushing had been detailed by the proper authorities from the ship which he had previously commanded; and as to the other officers and men, the doing duty on board is sufficient prima facie evidence, at least, that they belonged to the launch, and were entitled to share in the prize money. In Wemys v. Linzee, 1 Doug. 324, cited for the United States, the captain of marines, who was denied an officer's share, was no part of the complement of the ship. See Mackenzie v. Maylor, 4 Doug. 3. The launch being a single ship, within the meaning of the prize act, her commander, as well as her other officers and her crew, was entitled to prize money according to the fourth and fifth rules of distribution therein prescribed. The prize court therefore erred in awarding to her commander, instead of his one-tenth of the prize money, a share proportioned to his rate of pay.

Another error occurred in the distribution of the prize money, by order of the secr tary of the navy, to Cushing, Howarth, and Gay, according to the rates of pay of the grades to which they had been promoted since the capture. Although prize-money is, strictly speaking, a matter of bounty and not of right, and no one has any absolute title to it before adjudication, yet, unless the government, acting through the proper department, has clearly manifested an intention to revoke the grant, or to alter the mode of distribution, it is to be awarded and distributed according to the laws in force and the facts existing at the time of the capture. The Siren, 13 Wall. 389; The Elsebe, 5 C. Rob. 173; Stevens v. Bagwell, 15 Ves. 139, 152; Pill v. Taylor, 11 East, 414, and 8 Taunt. 805; 11 Op. Attys. Gen. 102. The direction in the prize act to make distribution among inferior officers and men 'according to their respective rates of pay in the service' naturally implies the rates of their pay at the time of the capture, by relation to which the subsequent distribution is made; and not those rates as affected by promotions after the capture and before decree or distribution, although such promotions, so far as affects rank, and possibly ordinary pay, date from the day of the capture. To hold otherwise would be to leave the shares of prize money, not only of the persons promoted, but also of all others on board and entitled to share according to rate of pay, subject to be varied in consequence of delay in obtaining distribution. For these reasons, this court concurs in the conclusions of the court of claims as to the shares of prize money which the officers and crew of the launch were entitled to receive under the prize laws in force at the time of the capture. The inequitable operation of those laws, as applied to a capture by a vessel having so small a number of officers and men as this launch, by which the leader of the enterprise obtains less prize money than a paymaster or an enginner under his command, is a matter for the consideration of congress, and not of the courts.

The report of the committee on naval affairs of the house of representatives, accompanying the bill which was afterwards passed as the act of August 8, 1882, c. 480, referred, among other things, to the following documents: The decrees of the prize court in the case of the Albemarle. The orders of the secretary of the navy for the distribution of the prize money. The opinion of Atty. Gen. Reverdy Johnson, dated November 19, 1849, that if accounting officers err, designedly or by mistake, the loss must fall on the United States. 5 Op. Attys. Gen. 183. The opinion of Atty. Gen. Pierrepont, dated December 10, 1875, that this launch was 'a single ship,' within the meaning of the prize act; that her commander was entitled to his fractional part, and could not share according to his pay in the prize money of the Albemarle; and that the rates of pay, according to which others on board the launch were entitled to share in the prize money, were the rates of pay at the time of the capture. 15 Op. Attys. Gen. 63. A letter of the secretary of the navy to the counsel of the captors, dated April 24, 1877, stating that, as the prize money of the Albemarle had been fully distributed, and as there was no other fund which he could lawfully order to be paid to her captors, they must look to congress for the relief to which they seemed to be entitled. Report No. 90, H. R. 1st Sess. 47th Cong.

It is evident, therefore, that the act of 1882 was passed with a knowledge of the manner in which the prize money for the capture of the Albemarle had been distributed by the secretary of the navy under the decrees of the prize court; and the reasonable inference is that congress intended, without impeaching the validity of the distribution so made, or affecting the right of any captor to hold the money already paid him, but treating each as having received no more than a suitable reward for his gallantry, to allow out of the treasury, to those of the captors who had receive less than their lawful shares according to the rules of the prize act, enough to make up the deficiency. The joint effect of the act of 1882 and the previous distribution is the same as if the prize money had been distributed in conformity with those rules, and congress had afterwards granted to Cushing, Howarth, and Gay, out of money in the treasury, sums in addition to their lawful shares of prize money, as was done in the case of Capt. Perry for captures on Lake Erie in the war of 1812. Act April 18, 1814, c. 70, (3 St. 130.)

It is therefore unnecessary to express an opinion upon the question argued by counsel, whether, under the act of 1864, the jurisdiction of the prize court, upon the condemnation of a prize taken by an armed vessel of the navy, extended to determining the separate shares of the officers and crew, or was limited to adjudging what vessels were entitled to share; and whether, by reason of their force as compared with that of their prize, the whole or the half of the proceeds should go to them, leaving the distribution among the officers and men to be made by the secretary of the navy, according to the records of the department.

Judgment affirmed.


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


text:
Hardin v. Boyd

The main question on this appeal relates to the alleged error of the circuit court in permitting the complainants, at the hearing, to amend the prayer of their bill so as to obtain relief not before specifically asked, and which, appellants contend, is inconsistent with the case made by the bill. To make intellingible this and other questions in the cause, it is necessary to state the issues and the general effect of the evidence.

On the twenty-eighth day of March, 1871, John D. Ware executed his title bond to William D. Hardin, reciting the sale to the latter of certain lands in Crittenden county, Arkansas, for the sum of $20,000, one-half of which was this and other questions and the remainder, on the first day of January thereafter, in county scrip or warrants; and providing for a conveyance to the purchaser when the purchase money should be fully paid. Ware died, at this home in Tennessee, on the sixth day of December, 1871. In the same month, the probate court of Crittenden county appointed L. B. Hardin (a brother of the purchaser) to be administrator of Ware; and on the fifteenth of January, 1872, his bond having been on that day filed and approved, letters of administration were directed to be issued. Under date of the twenty-third day of January of the same year, L. B. Hardin, in his capacity as administrator, executed to the purchaser an absolute conveyance of all the right, title, and interest of Ware in the lands. The deed recited the payment by the grantee to the said administrator of $10,000 in Crittenden county scrip and warrants, and that the deed was made in conformity with an order of the probate court.

The General Statutes of Arkansas declare that 'when any testator or intestate shall have entered into any contract for the conveyance of lands and tenements in his life-time, which was not executed and performed during his life, and shall not have given power by will to carry the same into execution, it shall be lawful for the executor or administrator of such testator or intestate, with the approval, in term time, to execute a deed of conveyance of and for such lands, pursuant to the terms of the original contract; such excutor or administrator being satisfied that payment has been made therefor according to the contract, and reciting the fact of such payment to the testator or intestate or to such executor or administrator, as the case may be, which deed may be acknowledged as other deeds, and shall have the same force and effect to pass the title of such testator or intestate to any such lands as if made pursuant to a decree of court.' Act Feb. 21, 1859; Gantt's Dig. 180.

By deed of July 10, 1877, W. D. Hardin conveyed these lands to his wife, and they were in possession, by tenants, when the present suit was instituted, on the twenty-eighth of October, 1881. The complainants are the heirs at law of the vendor and one Boyd, his administrator, the latter having been appointed at the last domicile of the decedent in Tennessee. The defendants were W. D. Hardin and his wife, and their tenants. The bill proceeds upon these grounds: That Ware's obligation of March 28, 1871, was obtained through fraud and imposition practiced by the purchaser; that the latter was at liberty, according to the real agreement between him and Ware, to pay the entire purchase money in county scrip or warrants; that he and his wife were in possession, claiming the lands to be the absolute property of the latter, although no part of the purchase money had been paid, except $5,400 paid to the intestate in county scrip or warrants at their face value; that no such proceedings as are recited in the deed to W. D. Hardin were ever had in the probate court of Crittenden county; that the $10,000 in scrip or warrants, which the deed states was paid by W. D. Hardin, were disposed of at private sale for 15 cents on the dollar of their face value, and the proceeds applied, by collusion between the purchaser and his brother, to a claim which they, acting together, fraudulently procured to be allowed in favor of W. D. Hardin against Ware's estate, when, in fact, no such indebtedness existed; that all the papers relating to the estate of Ware were destroyed by Hardin, while in his custody as clerk of the probate court, for the purpose of concealing his fraudulent scheme to obtain the leands without paying for them; that the deed from Hardin to his wife was without consideration; and that Hardin, after he took possession of the lands, appropriated to his own use all the rents annually accruing therefrom.

The prayer of the bill was that 'the said bond for title and the said deeds made by Lucian B. Hardin to said William D. Hardin, and by the latter to said Lida Hardin, his wife, may be set odecree against said defendants be taken of the said rents and profits, and of the value of the county warrants delivered by said William D. Hardin, and that your orators may have a personal decree against said defendants for any balance that may be found to be justly due to them; that a decree may be rendered quieting the title of the plaintiff herein to said lands against said claims of the said defendants, and for such other relief as equity may require.'

Hardin and wife filed separate answers, and also pleas relying upon the statute of limitations in bar of the suit. They also demurred to the bill upon numerous grounds.

A good deal of evidence was taken touching the physical and mental condition of Ware at and before the execution of his title bond, as well as upon the issue as to whether Hardin had paid for the lands according to contract. Without detailing all the facts, it is sufficient to say that, according to the weight of the evidence, the payment to Ware of $5,400 in county scrip or warrants was the only one ever really made on Hardin's purchase of these lands, and that the alleged payment subsequently of $10,000 in like scrip or warrants to L. B. Hardin, administrator, was not intended to be a payment on the land, because the proceeds of their sale were, by collusion between him and W. D. Hardin, appropriated by the latter on a fictitious claim asserted by him against Ware's estate.

Such was the state of the record when the cause came on for hearing. After the evidence was read, the complainants asked leave to amend the prayer of the bill by inserting therein the following words: 'Or, if thought proper, that the court give a decree for the purchase money due on said lands, and that the plaintiffs be decreed to have a lien on said lands for the payment thereof, and that said lien be foreclosed.' This amendment was allowed, and the defendants excepted. And thereupon the court, having heard the evidence and the argument of counsel, rendered a final decree, adjudging that W. D. Hardin was indebted to B. P. Boyd, administrator of Ware, in the sum of $17,150 on the purchase money for the lands, and that complainants have a lien thereon for its payment, relating back to the date of the title bond. The deeds from L. B. Hardin, administrator, to W. D. Hardin, and from the latter to his wife, were canceled for fraud, and the land ordered to be sold in satisfaction of the lien; no sale, however, to take place until the heirs of Ware should file in court a warranty deed for the lands. The court refused to give a personal decree for the balance of the purchase money, 'the same being barred by the statute of limitations.' Subsequently, the heirs of Ware filed the required deed in court, and the decree was made absolute. Hardin appealed to this court. After the appeal was perfected he departed this life, and by consent it was revived in the name of Mrs. Hardin, as his administratrix. After the submission of the cause here the heirs at law of Hardin appeared, and by consent they were made co-appellants, without opening the submission.

B. C. Brown, for appellant.

U. M. Rose, for appellee.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court:

title: Hardin v. Boyd


text: Talk:Hardin v. Boyd

title: Talk:Hardin v. Boyd