text:
Railroad Company v. Soutter

APPEAL from the Circuit Court for the District of Wisconsin.

The Milwaukee and Minnesota Railroad Company filed a bill in equity, in June, 1859, against Soutter (survivor of Bronson), Russell Sage, and several other natural or individual persons, as also against the Milwaukee and St. Paul Railway Company, a corporation, to recover back certain large sums of money, amounting in all to $462,057.80, which they had paid into court, in December, 1865, in part liquidation of certain bonds held by the individual defendants, in this suit, which bonds had been issued by the La Crosse and Milwaukee Railroad Company in 1857, and were secured by a mortgage upon a portion of the railroad of the last named company. By way of alternative relief, the complainants prayed that they might be subrogated to the benefit of the decree of foreclosure of the mortgage, under which they had paid they money in question. The Milwaukee and St. Paul Railway Company were made defendants because they were the parties now in possesson of the railroad and other mortgaged premises, and asserted themselves to be the owners thereof.

The facts, on which the complainants rested their claim, as set forth in their bill, were substantially as follows:

The La Crosse and Milwaukee Railroad Company, in 1858, after giving the bonds and mortgage above mentioned, gave two other mortgages, one on their road and one on their land grants, to secure certain other bonds issued by them. Failing to pay the interest coupons on the latter bonds, William Barnes, the trustee named in the mortgages, in May, 1859, sold the mortgaged premises, and all the franchises of the company, at public auction, and became the purchaser thereof, in trust for the bondholders, under the laws of Wisconsin, for the sum of $1,593,333. The bondholders thereupon, in May, 1859, organized a new company by the name of the Milwaukee and Minnesota Railroad Company (the corporation now complainant in the case), and Barnes conveyed the property to the said company; which thereafter conducted its business under and in pursuance of the charter of the La Crosse and Milwaukee Railroad Company, and immediately entered into possession of the said property and franchises.

But the prior mortgage of 1857 still subsisted on a portion of the road. Of this mortgage Bronson and Soutter were the trustees, and they filed another bill to foreclose their mortgage, and, after protracted litigation (of which the part in this court is reported in Bronson v. La Crosse Railroad Company) obtained a final decree in 1865, for the amount of interest coupons due on the bonds secured thereby, amounting to upwards of $450,000; which decree contained a proviso, that if the Milwaukee and Minnesota Railroad Company (the now complainants) should pay the amount of the decree before a sale of the mortgaged premises, the receiver (the road being then in the hands of a receiver) should deliver the property to them; that is to say, they had the usual privilege of redeeming the property by paying the decree. Thereupon, the complainants, on the 30th of December, 1865, paid into court the amount of $462,057.80, as above stated, the money being afterwards distributed to the holders of the various bonds secured by the Bronson and Soutter mortgage, who are the individual defendants in this suit. The money thus paid was paid by the complainants as purchasers, and claiming to be owners, of the property, upon an acknowledged incumbrance, and in relief of the property claimed.

Prior to this payment, however, certain judgment creditors of the La Crosse and Milwaukee Railroad Company filed in the United States District Court for Wisconsin a creditor's bill against the present complainants, alleging that the sale by Barnes was fraudulent and void, and praying that it might be set aside as such, and that the complainants might be enjoined from any further interference with the property or franchises of the La Crosse and Milwaukee Railroad Company. This suit had been pending for some considerable period, and was pending here on appeal-the case of James v. Railroad Company -when the complainants paid their money into court, as before stated, and, some time after its payment and distribution, a decree was made on said creditor's bill, in accordance will the prayer thereof, and directing that the property should be resold, and the proceeds applied, after payment of prior liens, to the satisfaction of the judgments on which the creditor's bill was founded.

The complainants accordingly now asked to have their money returned to them, on the ground that they paid it under a mistake. Their allegation was that they supposed they owned the property when they did not; that they supposed they were lifting an incumbrance off of their own property, when they were, in fact, lifting it off of property decided to belong to other parties. Their bill, speaking of the order allowing them to pay the amount of the decree, represented that the 'said order was made by this court upon the understanding and theory entertained and believed by the judges of said court, and by your orator, and by all persons and parties interested in said cause, that your orator was the owner of said equity of redemption.' And again, that 'your orator paid said sum of money into this court, this court distributed the same, and the several persons hereinbefore named in that behalf received the same with, upon, and under, and only with, upon, and under, the belief, understanding, and theory, that your orator was the owner of the equity of redemption of the mortgaged premises and property in said cause, and that your orator was thereby paying and extinguishing a lien, charge, and incumbrance upon property owned by your orator as aforesaid.' It further stated that 'after paying the money, your orator for the first time discovered that the said foreclosure of the Barnes mortgage was fraudulent and void as to the creditors of the La Crosse and Milwaukee Railroad Company, and as against the said last-named company, and that, in fact and in law, your orator never was the owner of the said equity of redemption, and that the payment made by your orator into court, and the distribution of the said moneys and the receipt thereof by the said defendants was made, had, and received in mistake of fact as aforesaid.'

The bill further stated that Russell Sage, one of the defendants, who received a large portion of the money paid into court, was also a large holder of bonds under the Barnes mortgages, and had advised and encouraged the sale by Barnes, and participated in the organization of the complainants' company; and alleged further that the board of directors of the corporation complainant became totally changed, and was, at the time of such payment, wholly composed of persons who had not participated personally in the foreclosure of the Barnes mortgage; and that a large majority of the stockholders and directors at the time of the said payment were persons who had no interest at the time of the foreclosure, and no participation in the proceedings.

The defendants demurred to this bill, and on the hearing of the same the demurrer was sustained, and the bill dismissed. From the decree dismissing the complainants' bill, this appeal was taken.

Messrs. G. B. Smith and M. H. Carpenter, for the appellant:

Whether money paid under a mistake of law can or cannot be recovered back, it is certain that money paid under a mistake of fact, may be so recovered, and by suit in equity. Mistake is one of the original heads of chancery jurisdiction; it is one of the great trinity of subjects from which all equity jurisdiction flows. No chancellor would be anything without fraud, accident, and mistake.

This money was paid under a mistake of fact. In almost every instance of the payment of money the ultimate determination rests upon some legal conclusion of the parties' right to, or interest in the subject-matter to be affected by such payment. The conclusion must rest upon facts to which it is attempted to apply the legal principle. And the rule is that if any one of a supposed complicated state of facts is unfounded, and that supposed fact induced, or tended to induce, the payment of the money, the party paying is entitled to relief. A man's title to property is always a question of law, after facts are ascertained. But if a man acts upon the belief that he is the owner of property and that belief is based upon a supposed state of facts, which if well founded, would in law make him the owner, and such supposed facts are misapprehended, the erroneous conclusion of ownership is a mistake of fact, not of law.

In this case the Minnesota company paid this money into court upon the supposition that it was the owner of the equity of redemption; that supposition being a legal conclusion based upon certain supposed facts, one being that the Barnes mortgage was a valid incumbrance. But unfortunately for the company the supposed state of facts did not exist. The mistake, therefore, under which the company acted in paying the money was a mistake in regard to the existence of certain facts; or in other words the company paid the money under a mistake of fact.

This view of the subject is established by the single consideration that this court, which cannot make any mistake of law, expressly declared in its opinion in Bronson v. La Crosse Railroad Company, that the foreclosure of the Barnes mortgage had vested the equity of redemption in the Minnesota company. This tribunal knew all law when it made this decision just as well as it did when in the subsequent case of James v. Railroad Company, it decided that the Minnesota company had no interest whatever in the premises.

The different conclusions reached by that court, first, that the company did own the property, and second, that it did not, were both sound in law as applied to the cases made by the respective suits.

The difference between the two, in other words, is a difference of fact, not of law. In the first suit, it appeared to the court that the case before mentioned did exist, and therefore the law said: 'The Minnesota company is the owner of the equity of redemption.' In the second case, the case was shown not to exist, and the law said, 'The Minnesota company is not the owner of the equity of redemption.' It was the mistake in regard to the facts that induced the court to say, and induced the company to believe, that the company was such owner. And the mistake of the company was the same as that made by the court; and as the court cannot make a mistake of law, it follows that the company did not.

The true distinction between a mistake of law and a mistake of fact is well stated by the court in Hurd v. Hall, and there can be no doubt that the money in this instance was paid under a mistake of fact.

An action for money had and received, is maintainable wherever the money of one man has, without consideration, gone into the pockets of another.

Mr. J. W. Cary, contra, contended that on the face of the bill no case was made, and that judgment was rightly given on the demurrer for the defendants.

Mr. Justice BRADLEY, having stated the case, delivered the opinion of the court.

title: Railroad Company v. Soutter


text: Talk:Railroad Company v. Soutter

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title: Talk:Railroad Company v. Soutter


text:
Railroad Company v. Soutter/Opinion of the Court

The bare statement of the claim, even presenting it in the language of the bill itself, seems to us sufficient to condemn it. Who are the complainants? Are they not the very bondholders, self-incorporated into a body politic, who, through their trustee and agent, effected the sale which was declared fraudulent and void, as against creditors, and made the purchase which has been set aside for that cause? Was it ever known that a fraudulent purchaser of property, when deprived of its possession, could recover for his repairs or improvements, or for incumbrances lifted by him whilst in possession? If such a case can be found in the books, we have not been referred to it. Whatever a man does to benefit an estate, under such circumstances, he does in his own wrong. He cannot get relief by coming into a court of equity. By the civil law, the possessor, even in bad faith, may have the value of his improvements, if the real owner choose to take them. The latter has an option to take them or to require their removal. But this rule has never obtained in the common law, nor in the system of English equity. One of the maxims of the latter system is, 'He that hath committed iniquity shall not have equity.' And various illustrations of it are furnished by the books.

But the complainants are wrong in asserting that the property was not theirs. It was theirs. Their purchase was declared void only as against the creditors of the La Crosse and Milwaukee Railroad Company. In other words, it was only voidable, not absolutely void. By satisfying these creditors they could have kept the property, and their title would have been good, as against all the world. The property was theirs; but, by reason of the fraudulent sale, was subject to the incumbrance of the debts of the La Crosse company. This was the legal effect of the decree declaring their title void. Therefore, they were, in fact, paying off an incumbrance on their own property when they paid into court the money which they are now seeking to recover back.

They are wrong also in asserting that they made the payment under a mistake of fact. If it was made under any mistake at all, it was clearly a mistake of law. They mistook the legal effect of transactions of which they were chargeable with notice. They were the persons for whose benefit the purchase was made, which was declared to be fraudulent. They were the principal defendants in the creditors' bill, upon which this decree was rendered. All the evidence in that suit had been taken when they made the payment in question. The cause was pending, on appeal, in this court. There was not a fact, therefore, of which they were ignorant. They had full and actual notice of all the transactions, and all the evidence on which the decree was ultimately founded.

All this appears from the statements of the bill in this case. We do not see how such a bill can possibly be sustained. The pleader who drew it evidently felt the force of these objections, and interjected some special circumstances for the purpose of showing that the case is distinguishable from the class of cases referred to. It is stated that Russell Sage, one of the defendants, who received a large portion of the money paid into court, was also a large holder of bonds under the Barnes mortgages, and advised and encouraged the sale by Barnes, and participated in the organization of the complainants' company. All these facts may be true, and on the demurrer to the bill must be taken as true; but they do not show, nor is it alleged, that Sage was personally a participant in the fraud which was committed in the sale under the Barnes mortgage. And if it were so alleged, can one fraud-doer obtain relief in equity against his particeps criminis?

Again, it is alleged that the board of directors of the complainant was totally changed, and was, at the time of such payment, wholly composed of persons who had not participated personally in the foreclosure of the Barnes mortgage; and that a large majority of the stockholders and directors at the time of the said payment were persons who had no interest at the time of the foreclosure, and no participation in the proceedings. This cannot alter the case. A corporation aggregate retains its identity through all the changes that may take place in its individual membership. This corporation, by its own statement, was adjudged to be the child of a fraudulent and corrupt transaction, and entered upon its career as purchaser of the property, with all the risks of its illicit origin and fraudulent purchase upon its head. Change of membership cannot change its rights. If it can, when is the change effected? How many, or what proportion, of the members must be changed?

It is needless to pursue the subject further. If the present individual stockholders of the complainants have been wronged that wrong cannot be redressed in this proceeding without violating the clearest principles of equity jurisprudence. The bondholders who received the money that was paid into court were entitled to that money. It was due them. Had not the complainants interposed they could have sold the property and realized their claim from the proceeds. How can they be called to account? The present owners of the road have purchased it (it is to be presumed) under the proceedings had in favor of the judgment creditors. How can their title be disturbed by the complainants? What equity would there be in subjecting the property in their hands to an incumbrance from which it was free when their purchase was made?

AFFIRMED.

Mr. Justice FIELD, dissenting.

I differ from Brother Bradley in the construction of the bill in this case, and, therefore, differ from him in the conclusions to be drawn from the facts which it discloses. To my mind it presents a clear case, where money, amounting to over four hundred and sixty thousand dollars, was paid under a mistake of fact, into which the complainant was led by the decision of this court. And it would be, in my judgment, only administering simple justice to the company to compel the defendants to make restitution, or to give to the company the benefit of the decree in the foreclosure suit, upon which the money was paid. I, therefore, dissent from the judgment rendered.

The CHIEF JUSTICE and Mr. Justice MILLIER also dissented.


text: Talk:Railroad Company v. Soutter/Opinion of the Court


text:
User:Anirudh Emani

New to WikiSource

title: User:Anirudh Emani


text:
Commonwealth v. Boutwell

THIS was a petition by the State of Kentucky, through its constituted authority, asking this court, in the exercise of its original jurisdiction, for a writ of mandamus to compel the Honorable G. S. Boutwell, Secretary of the Treasury of the United States, to deliver to the said State a warrant to which it alleged itself entitled for expenses incurred in defence of the Union. The application was founded on the provisions of an act of Congress of July 27th, 1861, directing the Secretary of the Treasury to refund to the governor of any State the expenses properly incurred in raising troops to aid in the suppression of the late rebellion; an act which, having been in force and acted on for several years, was repealed from the 1st July, 1871, by act of the 12th July, 1870.

The petition, after setting forth the nature of the claim of Kentucky under this law, its approval by the Secretary of War and the accounting officers of the Treasury Department, alleged that the acting Secretary of the Treasury, on the 30th of June, 1871, caused to be issued and signed a warrant upon the Treasurer of the United States for the sum due the State, which, after being countersigned by the First Comptroller, was withheld from the relator by direction of the defendant.

The purpose of the petition was to obtain possession of this warrant, or, if this could not be done, to procure the delivery to the agent of the State of another warrant of like amount.

The court having ordered an alternative writ of mandamus, the defendant, in his return to it, among other things, denied that the acting Secretary of the Treasury, on the 30th day of June, 1871, or on any other day, caused to be issued the warrant as alleged in the petition, but asserted that as he was informed and believed, the facts in regard to the said pretended warrant were these, to wit:

That on said 30th June, one Fayette Hewitt, the agent of the State of Kentucky, about the close of business hours, applied to the chief of the warrant division in the office of respondent to prepare a warrant for the said sum claimed, and that the said chief declined to prepare such warrant at that time, unless specially directed to do so by the acting secretary; that the agent applied to the acting secretary, who determined not to issue such warrant, on the ground that, by the act of July 27th, 1861, the matter was lodged specially in the discretion and judgment of the secretary himself, who was absent, and that the propriety of issuing the said warrant would be determined by him on his return; but that in view of the urgent request of the agent, and representations by him that, after said 30th of June, an appropriation made in the matter would be no longer available for the payment of the said claim, the acting secretary determined to confer with the officers of the department, and, if it was by them deemed advisable and proper, to prepare and sign a warrant on the said day in order to save the appropriation, which warrant should not be issued, nor registered, nor recorded, but should be retained in the office of the acting secretary subject to approval or rejection by the secretary on his return; that the acting secretary did accordingly call together the said officers at his office at about eight o'clock on the evening of said day, and that it was then and there agreed that a warrant should be prepared and signed, and should not be registered nor delivered, but should be retained and submitted to the secretary on his return, to be by him either approved and issued or cancelled, as he should determine; and that the said warrant was accordingly prepared and signed, and countersigned at the office of the acting secretary, and was so retained; that, on the secretary's return to Washington, about the middle of July, 1871, the warrant prepared was presented to him for approval by the acting secretary, in accordance with the understanding between him and the said agent, Hewitt, and that upon mature consideration the claim was rejected and the warrant cancelled by him.

And as a conclusion from these facts the defendant in the case denied that it was the legal right of the said Commonwealth of Kentucky to have the said warrant, and to receive the sum of money as alleged, and asserted that he, the said defendant, could not now deliver the warrant, conditionally signed as aforesaid, as prayed for by the State of Kentucky, because the same was officially cancelled by him on rejection of the claim, and that he could not now prepare and deliver another warrant upon the Treasurer of the United States, because there was not now any appropriation out of which it could be paid.

To this answer the State of Kentucky demurred.

The case was argued at different times by Messrs. J. Casey, A. A. Burton, and G. R. McKee, for the State of Kentucky, and by Mr. Akerman and Mr. G. H. Williams, Attorneys-General, Mr. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-General, for the Secretary of the Treasury.

Mr. Justice DAVIS delivered the opinion of the court.

title: Commonwealth v. Boutwell


text: Talk:Commonwealth v. Boutwell

title: Talk:Commonwealth v. Boutwell


text:
Commonwealth v. Boutwell/Opinion of the Court

The answer of the respondent must, in the state of the pleadings, be taken as true, so far as its statement of facts is concerned, and, therefore, presents a complete defence against the demand of the writ.

It seems very clear, if no warrant were ever issued, and the condition of the law on the subject at the present time does not authorize the secretary to issue one, that the prayer of the petition cannot be granted. If it be conceded, as is argued by the counsel for the petitioner, that the decision of the accounting officers was conclusive upon the secretary, and that he should have paid the money, if applied to in proper season, still the fact exists that he was not asked to pay the money until the time limited in the law for the appropriation to take effect had expired. It will not do to say that the proceedings by the acting secretary vested a right in the State, which could not be defeated by the refusal of the secretary to approve the prepared warrant, because the validity of this proceeding depended entirely on the future action of the secretary. By the very terms of the agreement the warrant was to be retained in the office, subject to the approval or rejection by the secretary on his return to Washington. If the acting secretary had the power, in the absence of his principal, to sign and deliver the warrant-a point on which we express no opinion-he did not choose to exercise it, but preferred in a matter of such consequence to leave the ultimate decision of the question to the secretary himself. Nothing fairer than the arrangement which was made could have been expected of a subordinate officer, anxious to preserve the rights of all the parties concerned, but unwilling to take the responsibility of paying so large a claim during the temporary absence of the head of the department, and nothing better for the interest of the State could have been looked for under the circumstances. As the appropriation was not available after the 30th of June, the papers were arranged to save it, if the secretary should on his return approve the warrant, and order it to be issued. On the contrary, if the transaction did not meet with his approbation the warrant was to be cancelled and held for nought. In this state of case, it is quite clear, that the warrant could have no effect without the secretary's approval, and as he decided adversely so soon as his attention was called to the subject, it follows, as a necessary consequence, that this warrant, if it had any life before, ceased to have it after this decision was made, and that the allegation in the petition, that the warrant was wrongfully withheld from the relator, is not sustained.

It is insisted, however, that the court should now order the Secretary of the Treasury to deliver to the relator another warrant in place of the one thus cancelled.

This proposition would present an important question, if there were money in the Treasury appropriated to pay this claim, but as Congress has seen fit to withdraw the appropriation for refunding to States expenses incurred in raising volunteers during the late rebellion, it is difficult to see on what ground it can be based. If it be conceded that the State had a right, on the 30th of June, 1871, to demand of the Secretary of the Treasury, in person, payment of the amount due her under the terms of the act of July 27th, 1861, and that the claim was in such a condition of settlement that he had no power to revise it, still it is manifest that he was justified in refusing compliance with a demand made after that day. Congress, on the 12th of July, 1870, repealed the law on which this claim is founded. It cannot be supposed that this legislation was directed against the ultimate payment of the promised indemnity, for the repealing act did not go into operation until the 1st of July, 1871. For nearly a year, therefore, the appropriation was continued, and the constituted authorities of the States, were told to hasten their action if they wished to avail themselves of the benefits of the law. It was easy for them to see that if by delay, or from any other cause, they suffered the appropriation to expire without getting a settlement of their claims, that additional legislation would be necessary to furnish them relief, for the effect of the repealing law after the limitation expired, was not only to take the subject out of the control of the secretary, but to place it within the control of Congress.

These views dispose of this case. It is proper to observe, in conclusion, that many important questions are presented in the pleadings, and were argued at the bar, on which we have purposely refrained from expressing an opinion, and which are open for consideration in any future case that may arise, where they are applicable.

DEMURRER OVERRULED and a peremptory writ of mandamus

DENIED.


text: Talk:Commonwealth v. Boutwell/Opinion of the Court


text: Stockwell v. United States

title: Stockwell v. United States


text: Talk:Stockwell v. United States

title: Talk:Stockwell v. United States


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

ERROR to the Circuit Court for the District of Maine.

The United States brought an action of debt, in the District Court for the Maine District, against D. R. Stockwell and J. L. Cutter to recover (inter alia) double the value of certain importations of shingles alleged to have been illegally made, and received, concealed, or bought by the defendants, with knowledge that the shingles had been illegally imported into the United States.

The case, which depended partly upon statutes and partly upon facts and evidence, was thus:

On the 3d of March, 1823, Congress passed an act the 2d section of which enacts:

'That if any person or persons shall receive, conceal, or buy any goods, wares, or merchandise, knowing them to have been illegally imported into the United States, and liable to seizure by virtue of any act in relation to the revenue, such person or persons shall, on conviction thereof, forfeit and pay a sum double the amount or value of the goods, wares, or merchandise so received, concealed, or purchased.'

The 5th section of the act enacted that all penalties and forfeitures incurred by force of it should be sued for, recovered, distributed, and accounted for in the manner prescribed by the act of March 2d, 1799, entitled 'An act to regulate the collection of duties on imports and tonnage.' That act (by its 89th section) directs all penalties accruing by any breach of the act, to be sued for and recovered, with costs of suit, in the name of the United States of America, in any court competent to try the same; and the collector, within whose district a forfeiture shall have been incurred, is enjoined to cause suits for the same to be commenced without delay.

On the 18th of July, 1866, Congress passed another act, entitled 'An act further to prevent smuggling, and for other purposes.' The 4th section of this statute enacted:

'That if any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any goods, wares, or merchandise contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such goods, wares, or merchandise after their importation, knowing the same to have been imported contrary to law, such goods, wares, and merchandise shall be forfeited, and he or she shall, on conviction thereof before any court of competent jurisdiction, be fined in any sum not exceeding $5000 nor less than $50, or be imprisoned for any time not exceeding two years, or both, at the discretion of such court.'

The same section declares that present or past possession of the goods by the defendant shall be sufficient evidence to authorize his conviction, unless such possession be explained to the satisfaction of the jury.

'That nothing in the act shall be taken to abridge, or limit, any forfeiture, penalty, fine, liability or remedy provided for or existing under any law now in force, except as herein otherwise specially provided.'

And the 43d section, that all other acts and parts of acts conflicting with or supplied by it should be repealed.

It was with both these statutes on the statute-book that the action was brought.

One set of courts was to recover the duties on the importations. Another set to recover, under the 2d section of the statute of 1823, double the value of the goods received by the defendants.

The admitted facts of the case and the evidence tending to establish or disprove those disputed were thus:

The defendants, residents of Bangor, Maine, had long been engaged in the trading in shingles there. They were partners with one Chalmers, under the firm of D. R. Stockwell & Co. Chalmers was not proceeded against. In 1863, the firm made an arrangement with one Leman Stockwell, also of Bangor, to go to Aroostook County, in Maine, Frederickton and St. John, in New Brunswick, and there collect, buy, and forward shingles, to be consigned to the firm at Bangor; under circumstances as to the division of profit and loss between the firm and their agent, Leman Stockwell, which it was not here denied made them partners with him in the shingle business done under this arrangement, but not in their general business.

No question was made in this court that the shingles, for the double value of which the suit was brought, were subject to duties if they were of Provincial growth.

In the years 1863-4, Leman Stockwell was in Aroostook County, in Maine, and on the St. John River, and at Frederickton and St. John, engaged in the business of collecting, buying, and forwarding shingles to Bangor, on the account of this arrangement, consigned to D. R. Stockwell & Co.

There was evidence tending to show that the shingles, for the importation of which these duties and penalties are claimed, were not of the growth and produce of the State of Maine, or of that portion of the State watered by the river St. John or its tributaries, but were the growth and produce of the province of New Brunswick. There was also evidence to rebut this, and tending to show that they were of the growth and produce of Maine, as aforesaid. There was evidence tending to show that the defendants did, in fact, know that the said shingles were of the growth and produce of New Brunswick, and there was evidence tending to show that they had no knowledge or information on the subject.

When these cargoes came to Bangor, in 1863 or 1864, they were reported at the custom-house, with the manifest and foreign clearances, and with certificates of their American origin. The collector required no duties on the cargoes, and no entries to be made, nor invoices, nor bills of lading, to be produced; but the cargoes were allowed to be taken into the shed of D. R. Stockwell & Co., and there to be housed, sorted, and sold, in the usual manner of the trade. They were treated, in fact, by all parties as not being subject to duties. The shingles were openly in the possession of D. R. Stockwell & Co., sometimes lying over a season unsold, and no attempts were made by either of the defendants, or by Leman Stockwell, or Mr. Chalmers, or by any person connected with them, to conceal the shingles, or in any way to interfere with the exercise of the power of seizing them; and the revenue department did not claim duties, nor attempt to seize the shingles, and made no claim against the defendants, or any one connected with them, of any kind, until the commencement of this suit, which was April 2d, 1868, when the shingles had been sold for three or four years or so.

As to the counts under the act of 1823, to recover double the value of the shingles, the defendants presented the following, among other prayers for instructions:

1. That a civil action will not lie to recover the double value, and that the United States cannot recover both the double values and the duties under the declaration.

2. That the jury must be satisfied, as to each defendant, that he knew that the shingles had been illegally imported, and were liable to seizure, before he received, concealed, or bought the same; and that such receiving, concealing, or buying must have been with an intent to defraud the revenues.

The presiding judge ruled that a civil action would lie for the double values under the act of 1823; and thus instructed the jury:

'If Leman Stockwell, in the conduct and management of the shingle business so intrusted to him, and in the course of the business and for the common and joint benefit of himself and D. R. Stockwell & Co., went into New Brunswick, and there knowingly purchased and received on their joint account, shaved shingles, the growth and produce of New Brunswick, and afterwards, he, by himself or his agents, knowingly sent such shingles to his copartners D. R. Stockwell & Co., at Bangor, fraudulently documenting them as of the growth of Maine, so that thereby, in the regular course of business, they should be and were admitted and received into the country by the defendants as the growth of Maine, the shingles so imported were illegally imported and liable to seizure; and these defendants, being then his partners, are in this action chargeable with and bound by this knowledge of Leman Stockwell, if such was his knowledge, viz.: that the shingles were the growth of New Brunswick, liable to duty and seizure, being illegally imported. This being a civil action, and not a criminal prosecution, the knowledge of one of the firm on these matters in this suit is to be deemed the knowledge of the defendants, his copartners in the shingle business.'

'If Leman Stockwell, at the time of the importation and reception of the shingles at Bangor, knew that they were Province shingles, liable to duty and seizure, &c., it was not necessary for the government to prove that the defendants personally had actual knowledge of these facts, which were then within the knowledge of their partner, Leman Stockwell.'

'If with this knowledge, as before stated, on Leman's part, that the shingles were illegally imported and liable to seizure, D. R. Stockwell & Co., in the usual course of the business, received the shingles at Bangor, and they were disposed of by them, and the profits of the business divided as stated above, the jury are authorized to find that the defendants, being Leman's partners, received the shingles, knowing the same were illegally imported and liable to seizure.'

When the charge to the jury was completed, the defendants' exceptions to the refusal of the court to give the instructions requested by them, and to the instructions given to the jury as above stated, were duly reserved to them.

The verdict was for the plaintiffs on the counts for the duties and the double values; and judgment going accordingly in the District Court, and this being affirmed in the Circuit, the defendants brought the case here on writ of error; no error being, however, assigned relating to the first-mentioned counts.

Mr. R. H. Dana, for the plaintiffs in error:

I. A civil action of debt will not lie in this case in the name of the United States. Where the proceeding is by the sovereign and for a penalty based on an offence, it must be by indictment or by information of debt. The statute of 1823 makes the penalty depend 'on conviction thereof.' It requires knowledge on the part of the offender. The offence and penalty are not based on the illegal importation, but on the knowingly concealing, &c., goods illegally imported. The penalty is the double value, not of the importation, but of the goods concealed.

The provisions of the 6th section, that the penalties and forfeitures 'shall be sued for and recovered' in the manner prescribed by the act of 1799, do not necessarily give a civil action of debt. The words 'sued for,' 'recovered,' will embrace the information of debt and even an indictment for a penalty.

The difference which we here insist on becomes material in this case; for the judge ruled that by reason of this being a civil action, the defendants were bound by an artificial presumption of knowledge from the knowledge of their partner, which they would not have been in a proceeding of a different character.

II. The court erred in the ruling, that in a proceeding under the act of 1823, the knowledge required of the defendants was conclusively presumed from the knowledge possessed by their agent, being their partner in the transaction.

1. The statute is entirely punitive. The loss the government sustains and its civil claim are for the duties. These they have recovered in this suit, of these defendants, and no error is assigned to defeat that claim. The utmost loss the government could sustain by the concealing of the goods liable to seizure, would be the value of the goods so concealed. The penalty inflicted by the statute is arbitrary and absolute, and has no reference to indemnification. The penalty is calculated upon the illegal act, and is double the value of the goods received or concealed, without reference to the duties or the value of the consignment. It is in fact purely a punishment for the illegal act of receiving and concealing smuggled goods.

The statute requires the existence of four things: First, an illegal importation by some person; second, that the goods be subject to seizure; third, a knowledge by the defendants of both these facts; and, fourth, a receiving, concealing, or buying of these goods by the defendants after importation, and after they have become subject to seizure. The scienter is the sine qua non of the offence. All persons are liable to buy smuggled goods subject to seizure. As simply buying these goods is made a sufficient act, the offence depends on the scienter.

This suit is not upon a partnership liability. The defendants could not have pleaded the nonjoinder of Chalmers in abatement. Each defendant was liable for his own act, and, although partners, the verdict might be against one and in favor of the other. If the ruling had been that the fact that Leman Stockwell was agent and partner should be weighed by the jury as a circumstance tending to show knowledge on the part of the defendants, no error could have been assigned.

2. The instructions do not make a proper distinction as to the character of the acts. If an agent or partner, in the course of his employment, wilfully does an act in violation of law, the principal or partner is not liable, except upon evidence that he authorized or adopted it. In the absence of proof as to actual authorization, or in determining whether he impliedly authorized it, the nature of the employment and of the act must be compared and the instructions should refer to the consideration whether the illegal act was one the doing of which may be fairly held to have been authorized from the nature of the employment, &c., &c. An absolute instruction, as this substantially was, that from the fact of an authority to buy and ship goods, an illegal act of shipping goods by a fraudulent invoice or description was in law the act of the partnership, and not open to rebuttal, would be incorrect.

3. Such ruling would deprive the defendants of the benefit of the presumption that no one does an act prohibited by law. This presumption applies, of course, to the authorizing of an illegal act by another. It is, doubtless, a rebuttable presumption and cannot overweigh facts and is to be balanced with other presumptions; but the defendants should have the benefit of it in the scales.

4. The instructions were erroneous in that they required the jury to find that the defendants knew of the illegal importations from the mere fact of a knowledge of their partner in a foreign country, without submitting to the jury the question whether the defendants authorized the act of their agent and partner, or did in fact know of it.

5. In all cases where knowledge is required by statute, the question of knowledge is left to the jury, with instructions as to presumptions and prim a facie proof, &c., if required; but, on balancing the presumptions arising on each side, and the facts proved, the jury must be satisfied of the knowledge. The cases of Regina v. Dean, Graham v. Pocock, and numerous others, show that such is always the course taken whenever a principal or partner is charged for a penalty, or even to make good a loss, by reason of an act of an agent or partner, if knowledge on his part is an ingredient. So in civil suits where knowledge is required.

6. Assuming the instructions to state the law correctly, that a principal or partnership may be liable for a tort of an agent or copartner, done without their knowledge and authority, in suits brought to recover compensation or indemnification for a loss suffered by a third person through the misconduct of an agent or partner-they were erroneous in assuming that the same rule applies in the case of a suit to recover a penalty.

7. It has been said by text-writers, in general terms, that a principal may be held responsible for the illegal or tortious act of his agent, even penally and criminally. But in all cases, when the principal or partner has not authorized the act or adopted it with knowledge, he is held liable only to make good the loss, or to the extent of the consideration and benefit received.

III. The act of 1823 cannot be construed to apply to the illegal importers themselves. It applies only to an offence committed after the goods shall have been the subject of a prior offence by which they shall have been 'illegally imported,' and have become 'liable to seizure.' There are, then, two acts: first, such an act of illegal importation as shall have made the goods liable to seizure; second, after the liability to seizure has attached, an act of receiving, concealing, or buying the goods, with knowledge of the illegal importation and liability to seizure. There are numerous and sufficient laws punishing by fine, penalty, or forfeiture, all forms of illegal importation. The act of 1823 does not assume to provide for the original offender, but only for the person who, with knowledge of that offence, shall aid in keeping the goods out of the reach of the government. In order to cover all the methods by which this may be done, the words 'receive, conceal, or buy,' are used. These words will cover every act of an accessory after the fact.

IV. The act of 1866 inflicts a penalty for the same offence set forth in the act of 1823. This penalty may be less than that of the act of 1823, as it may be a fine of only $50. It must therefore be held to supersede and repeal the penalty under the former act.

Mr. B. H. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice STRONG delivered the opinion of the court.

The first error assigned is that a civil action of debt will not lie, at the suit of the United States, to recover the forfeitures or penalties incurred under this act of Congress, and that the court below erred in holding that such an action might be maintained. It is not contended that an action of debt will not lie to recover duties, if the defendant be the owner or importer of the goods imported, for it is conceded that by the act of importing an obligation to pay the duties is incurred. The obligation springs out of the statutes which impose duties. Nor is it doubted that when a statute gives to a private person a right to recover a penalty for a violation of law he may maintain an action of debt, but it is insisted that when the government proceeds for a penalty based on an offence against law, it must be by indictment or by information. No authority has been adduced in support of this position, and it is believed that none exists. It cannot be that whether an action of debt is maintainable or not depends upon the question who is the plaintiff. Debt lies whenever a sum certain is due to the plaintiff, or a sum which can readily be reduced to a certainty-a sum requiring no future valuation to settle its amount. It is not necessarily founded upon contract. It is immaterial in what manner the obligation was incurred, or by what it is evidenced, if the sum owing is capable of being definitely ascertained. The act of 1823 fixes the amount of the liability at double the value of the goods received, concealed, or purchased, and the only party injured by the illegal acts, which subject the perpetrators to the liability, is the United States. It would seem, therefore, that whether the liability incurred is to be regarded as a penalty, or as liquidated damages for an injury done to the United States, it is a debt, and as such it must be recoverable in a civil action.

But all doubts respecting the matter are set at rest by the fourth section of the act, which enacted that all penalties and forfeitures incurred by force thereof shall be sued for, recovered, distributed, and accounted for in the manner prescribed by the act of March 2d, 1799, entitled 'An act to regulate the collection of duties on imports and tonnage.' By referring to the 89th section of that act it will be seen that it directs all penalties, accruing by any breach of the act, to be sued for and recovered, with costs of suit, in the name of the United States of America, in any court competent to try the same; and the collector, within whose district a forfeiture shall have been incurred, is enjoined to cause suits for the same to be commenced without delay. This manifestly contemplates civil actions, as does the proviso to the same section, which declares that no action or prosecution shall be maintained in any case under the act, unless the same shall have been commenced within three years after the penalty or forfeiture was incurred. Accordingly, it has frequently been ruled that debt will lie, at the suit of the United States, to recover the penalties and forfeitures imposed by statutes. It is true that the statute of 1823 imposes the forfeiture and liability to pay double the value of the goods received, concealed, or purchased, with knowledge that they had been illegally imported, 'on conviction thereof.' It may be, therefore, that an indictment or information might be sustained. But the question now is, whether a civil action can be brought, and, in view of the provision that all penalties and forfeitures incurred by force of the act shall 'be sued for and recovered,' as prescribed by the act of 1799, we are of opinion that debt is maintainable. The expression 'sued for and recovered' is primarily applicable to civil actions, and not to those of a criminal nature.

The second assignment of error is that the jury were instructed the knowledge of the defendants required by the statute in order to render them liable, was conclusively presumed from the knowledge of their agent, their partner in the transaction. This is hardly a fair exhibition of what the court did charge. The instruction given to the jury, and all that is assigned for error, was that 'if Leman Stockwell, as a member of the firm, engaged in the shingle business at the time of the importation and reception of the shingles at Bangor, knew that they were Province shingles, liable to duty and seizure, and illegally imported, it was not necessary for the government to prove that the defendants personally had actual knowledge of these facts, which were then within the knowledge of their partner, Leman Stockwell.' This is all which is embraced in the assignment. But the court added, that 'if with this knowledge, as before stated on Leman's part, that the shingles were illegally imported and liable to seizure, D. R. Stockwell & Co., in the usual course of the business, received the shingles at Bangor, and they were disposed of by them, and the profits of the business divided as stated above, the jury were authorized to find that the defendants, being Leman's partners, received the shingles knowing the same were illegally imported and liable to seizure.' Taking this together, and it must be so taken, for the exception was general to the instructions given, it cannot be said to justify the complaint that the court ruled knowledge of the defendants that the shingles had been illegally imported was conclusively presumed from the knowledge of Leman Stockwell, their partner. Qualified by what was added to the language alleged to be erroneous, it amounts to no more than that the jury might presume such knowledge from the facts stated.

To understand the force and merits of this instruction it is necessary to notice concisely the facts of which evidence had been given at the trial.

The defendants were lumber dealers resident in Bangor, in the State of Maine, and partners under the firm name of D. R. Stockwell & Co. In 1863 they made an arrangement with Leman Stockwell, a brother of one of the partners, that he should go to Aroostook County, in Maine, and to Frederickton and St. John, in the Province of New Brunswick, and there collect, buy, and forward shingles, consigned to the firm at Bangor. By the arrangement he became a partner with them in the shingle business, done in pursuance of it. He purchased shingles and shipped them from St. John to Bangor, consigned to the firm. Some of these shingles were of Provincial growth, known to Leman Stockwell to be such. They were of course subject to duties. There was evidence that Leman Stockwell knew them to be subject to duties, and liable to seizure if the duties were not paid, and that with that knowledge he exported them from St. John, documented as of the growth of Maine, with the intent that they should be, and in order that they might be, imported as free from duty. When the cargoes came to Bangor, in 1863 or 1864, the defendants reported them at the custom-house with the manifest and foreign clearances, and with certificates, or affidavits, of their American origin. No duties were therefore exacted, nor were entries required to be made, or invoices, or bills of lading to be produced; but the collector allowed the shingles to be taken to the sheds of the defendants, where they were received, sorted, and sold in the usual manner of the trade. An account was kept of the business, and at the end of each year the profits were divided between Leman Stockwell and the members of the firm. When subsequently it was discovered, after all the shingles had been sold, that they were not of American origin, but were the growth of the Province of New Brunswick, and as such subject to duties, and consequently that they had been illegally imported, in fraud of the revenue laws, this action was brought, and at the trial the defendants requested the court to charge the jury 'that they must be satisfied, as to each defendant, that he knew that the shingles had been illegally imported, and were liable to seizure, before he received, concealed, or bought the same; and that such receiving, concealing, or buying must have been with an intent to defraud the revenues.' The court, however, instructed the jury, as we have above stated. It is now insisted that in thus charging the jury the court fell into error. The argument is rested mainly upon the assumption that the statute upon which the action is founded is a penal statute intended solely for the punishment of crimes against the revenue laws. It is not seriously denied that in civil transactions a principal or a partnership is affected by the knowledge of the agent or copartner, and that the knowledge of the agent is in law attributed to his principal, as well as that of the partner to all the members of the firm; nor is it much insisted that a principal, or copartner, is not liable for the tort of an agent, or copartner, done without his knowledge or authority, in suits brought by third persons to recover compensation, or indemnity for loss sustained in consequence of the tort; but it is argued that the rule does not apply in the case of suits for a penalty. It becomes, then, material to consider the nature and purposes of the statute under which it is claimed the liability of the defendants has arisen. Is it strictly punitive, or is it remedial?

When foreign merchandise, subject to duties, is imported into the country, the act of importation imposes upon the importer the obligation to pay the legal charges. Besides this the goods themselves, if the duties be not paid, are subject to seizure and appropriation by the government. In a very important sense they become the property of the government. Every act, therefore, which interferes with the right of the government to seize and appropriate the property which has been forfeited to it, or which may hinder the exercise of its right to seize and appropriate such property, is a wrong to property rights, and is a fit subject for indemnity. Now, it is against interference with the right of the government to seize and appropriate to its own use property illegally imported that the statute of 1823 was aimed. It was to secure indemnity for a wrong to rights of property. The instant that goods are illegally imported, the instant that they pass through the custom-house without the payment of duties, the right of the government to seize and appropriate them becomes perfect. If any person receives them, knowing them to have been illegally imported, or conceals them, or buys them, his act necessarily embarrasses, if it does not defeat altogether the possibility of the government's availing itself of its right and securing the property. It is therefore manifest that the act of 1823 was fully as remedial in its character, designed as plainly to secure civil rights, as are the statutes rendering importers liable to duties. Its plain purpose was to protect the government in the unembarrassed enjoyment of its rights to all goods and merchandise illegally imported, and it proportioned indemnity for infringement upon such rights to the loss which such infringement might cause. The amount recoverable is in proportion to the value of the goods abstracted or concealed, or bought, not at all in proportion to the degree of criminality of the act of receipt or concealment. Obviously there may be more guilt in concealing goods illegally imported, worth only one hundred dollars, then in receiving or concealing imported property worth ten times as much, but the statute measures the liability not by the guilt but by the value of the goods. It must therefore be considered as remedial, as providing indemnity for loss. And it is not the less so because the liability of the wrongdoer is measured by double the value of the goods received, concealed, or purchased, instead of their single value. The act of abstracting goods illegally imported, receiving, concealing, or buying them, interposes difficulties in the way of a government seizure, and impairs, therefore, the value of the government right. It is, then, hardly accurate to say that the only loss the government can sustain from concealing the goods liable to seizure is their single value, or to assert that the liability imposed by the statute of double the value is arbitrary and without reference to indemnification. Double the value may not be more than complete indemnity. There are many cases in which a party injured is allowed to recover in a civil action double or treble damages. Suits for infringement of patents are instances, and in some States a plaintiff recovers double damages for cutting timber upon his land. It will hardly be claimed that these are penal actions requiring the application of different rules of evidence from those that prevail in other actions for indemnity. Regarding, then, an action of debt founded upon the act of 1823 as a claim for compensation or indemnity, it cannot be maintained upon authority or principle that the knowledge of the agent that the goods had been illegally imported is not presumptively the knowledge of the principal. That as a general rule partners are all liable to make indemnity for the tort of one of their number, committed by him in the course of the partnership business, is familiar doctrine. It rests upon the theory that the contract of partnership constitutes all its members agents for each other, and that when a loss must fall upon one of two innocent persons he must bear it who has been the occasion of the loss or has enabled a third person to cause it. In other words, the tortious act of the agent is the act of his principals, if done in the course of his agency, though not directly authorized. And this is emphatically true when the principals, as in this case, have received and appropriated the benefit of the act. These defendants received the shingles on their arrival at Bangor, presenting at the custom-house false certificates of their American origin. They paid no duties. They removed the property to their own lumber sheds, sold it, and divided the profits, retaining a portion for themselves. They have therefore now the proceeds of sale of property which was not their own, but which had been forfeited to the United States, and they have secured and they now hold these proceeds through the tortious act of their own partner, who planned and effected the fraudulent importation for their benefit and his. Can it be that they may derive a profit from his fraud and yet repudiate his act by asserting that his knowledge of the fraud does not affect them? If they can, the revenue laws will be found utterly ineffectual to protect the revenues of the government, and facilities to fraud will be abundant. If an irresponsible agent consigns to his principal foreign merchandise, documenting it as of American growth or production, it will always be difficult if not impossible to prove knowledge by the principal that the agent has perpetrated a fraud, and if that is necessary to give to the government a right of action under the act of 1823 against the principals who claim or conceal property thus brought into the country, the act utterly fails to secure a remedy for the mischief against which it was intended to guard.

The plaintiffs in error have argued that in all cases where knowledge is by statute made essential to liability, whenever an attempt is made to hold a principal or partner responsible for a loss occasioned by the act of his agent, or partner, the question of his knowledge, apart from that of the agent, is submitted to the jury, or, in other words, the knowledge of the agent or partner is regarded as distinct from that of the principal. Numerous cases have been cited which it is supposed support this position. We do not find, however, that such is the doctrine of any of them. The case of Regina v. Dean, one of the cases cited, was an information for penalties under the Smuggling Prevention Act of 3 and 4 Will. IV, in which the defendant was charged, inter alia, with knowingly harboring goods imported and illegally unshipped without payment of duties. At the trial it appeared that a clerk of the defendant, with the assistance of two custom-house officers, had made false entries of the quantities of goods imported, but no knowledge of the fraud was brought home to the defendant, though it appeared that he had, or must have derived benefit from the fraudulent transaction. Lord Abinger told the jury that as the defendant had derived benefit from the fraud, they might infer knowledge on his part of the fraud having been committed, and that the case, under those circumstances, would be made out against the defendant. This was very like the instruction given, of which the plaintiffs in error complain. On a motion for a new trial, for misinstruction, the Exchequer refused a rule. It was conceded in the argument that when goods illegally imported, without payment of duties, are brought to the place of business of a trader, by an agent or clerk of his, known by him not to have paid any duty, and are found there, there is a fair inference he knew the duties had been evaded. The ruling in this case was in a criminal proceeding. The information was for a penalty, and not for the value of the goods. Graham v. Pocock is another case cited. There the defendants were sued, and one of them was held liable for unshipping and landing goods liable to forfeiture. No question of knowledge was mooted. And in none of the other cases cited do we find it held that in civil actions for indemnity, or for double or treble value, the knowledge of the agent is not to be imputed to the principal. Upon this subject the opinion of this court has been outspoken, and it has been in accordance with the instruction given to the jury in the case before us. The principle asserted in all those cases is that whatever an agent does, or says, in reference to the business in which he is at the time employed, and within the scope of his authority, is done, or said, by the principal; and may be proved, as well in a criminal as a civil case, in like manner as if the evidence applied personally to the principal.

The British statutes for the prevention of smuggling differ from our act of 1823. They are both penal and remedial. They impose not only a liability for treble value of goods illegally imported, upon assisting in unlading them, or knowingly harboring or concealing them, but also a stipulated penalty, in some cases leaving to the revenue commissioners to determine whether proceedings shall be instituted for the penalty or for treble the damages. Yet in both classes of cases the fraudulent act of a servant is held attributable to his master when the master has derived a benefit from the illegal importation. We think, therefore, the charge of the court, of which the plaintiffs in error complain, was not erroneous.

It is next contended that section second of the act of 1823 cannot be construed to apply to the illegal importers themselves. As it extends only to acts done after the illegal importation and requires knowledge of its illegality, it is argued that it aims rather at accessories after the fact. We think, however, it embraces both. If it does not, then greater liabilities are laid on the accessory than on the principal. The mischief at which the act aimed was, as we have seen, embarrassing the right of the government to seize the forfeited goods. That may be done as well by importers as others. They may receive the goods or conceal them, and the wrong to the government is precisely the same, whether the concealment is by them or by others who were not the importers. It certainly would be most strange if the accessory to a wrongful act were held responsible therefor when the principal goes free. As was said in Graham v. Pocock, the question who is liable for receiving, concealing, or buying the shingles is a question to be determined irrespective of the inquiry who is the principal and who the accessory.

Finally, it is argued that the act of 1823 (section 2) was repealed by the act of July 18th, 1866, entitled 'An act further to prevent smuggling, and for other purposes,' the 4th section of which enacted 'that if any person shall fraudulently or knowingly import or bring into the United States any goods, wares, or merchandise contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation or concealment or sale of such goods, wares, or merchandise after their importation, knowing the same to have been imported contrary to law, such goods, wares, and merchandise shall be forfeited, and he or she shall, on conviction thereof before any court of competent jurisdiction, be fined in any sum not exceeding five thousand dollars nor less than fifty dollars, or be imprisoned for any time not exceeding two years, or both, at the discretion of such court.' The 43d section of that act enacted that all other acts and parts of acts conflicting with or supplied by it should be repealed. It is now insisted that the act of 1823 was in conflict with this act, or, if not, that it was supplied by it. Very clearly, however, this is not maintainable. The act of 1823 was, as we have seen, remedial in its nature. Its purpose was to secure full compensation for interference with the rights of the United States. The act of 1866 is strictly penal, not at all remedial. It was avowedly enacted further to prevent smuggling. Its design, therefore, was not to substitute new penalties which might be less onerous than the liabilities which former acts had imposed, but to punish as a crime that which before had subjected its perpetrator to civil liability, or quasi civil liability. Hence it is cumulative in its character rather than substitutionary. If it has indeed only supplied what was enacted in 1823, then a party who conceals goods illegally imported and forfeited to the United States is subject to no more than a fine of five thousand dollars, with possible imprisonment, though the goods concealed and thereby wholly lost to the government may be worth one hundred thousand dollars, and this, though the declared purpose of the act was more effectually to prevent smuggling. This cannot be. There is no inconsistency between a remedy for an illegal act which works a private wrong, securing pecuniary compensation, and a statute making the same act a criminal offence and punishing it accordingly. Were there nothing more, then, in the act of 1866 than the 4th and the 43d sections, we should feel compelled to hold that the 2d section of the act of 1823 was not repealed by it. But the 18th section expressly enacted that nothing in the act shall be taken to abridge or limit any forfeiture, penalty, fine, liability, or remedy provided for or existing under any law then in force, except as in the act was specially provided. Certainly the act contains no special provision for the civil remedy given by the act of 1823. It merely imposes punishment and superadds criminality to that which before was a civil injury. It is said the court will not construe the statutes so as to give the executive department the option to treat two citizens who have done the same act affecting the same cargo in such manner that one statute may be applied to one, and a different statute to another, thus causing different consequences. But the true question is whether a wrongdoer may not be both civilly and criminally responsible for the same act, and it would not be strange if Congress had given the option to sue for double values, or to prosecute for the crime. The British statutes against smuggling, as we have stated, allow suits for treble value of goods illegally imported and harbored, or prosecutions for penalties, at the election of the government. Our opinion, then, is that the 2d section of the act of 1823 was not repealed by the act of 1866, certainly not so as to affect this suit, brought to enforce liabilities incurred before the later act was passed.

JUDGMENT AFFIRMED.


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


text:
Twenty Per Cent Cases

APPEAL from the Court of Claims; the case being this:

A joint resolution of Congress of February 28th, 1867, provided:

'That there shall be allowed and paid to the following described persons [whose salaries do not exceed $3500] now employed in the civil service of the United States, at Washington, as follows: To civil officers and temporary and all other clerks, messengers, and watchmen, including enlisted men detailed as such, to be computed upon the gross amount of the compensation received by them, and employees male and female, in the Executive Mansion, and in any of the following-named departments, or any bureau or division thereof, to wit: State, Treasury, War. Navy, Interior, Post Office, Attorney-General's, Agricultural, and including civil officers and temporary, and all other clerks and employees, male and female, in the offices of the Coast Survey, Naval Observatory, Navy Yard, Arsenal, Paymaster-General, including the division of referred claims, Commissary-General of Prisoners, Bureau of Refugees, Freedmen, and Abandoned Lands, Quartermaster's, Capitol and Treasury Extension, City Post Office, and Commissioner of Public Buildings; to the photographer of the Treasury Department, to the superintendent of meters, and to lamplighters under the Commissioner of Public Buildings, an additional compensation of 20 per centum on their respective salaries as fixed by law, or, where no salary is fixed by law, upon their pay, respectively, for one year from and after the 30th day of June, 1866.' I. FITZPATRICK'S AND SEVEN OTHER CASES.

This joint resolution being in force, several persons, named respectively Fitzpatrick, Hall, Bohn, Lytle, Holbrook, La Rieu, Richards, and Newman, and whose salaries were all less than $3500, filed their petitions; each setting forth facts, which, if true, brought him within the act, and each claiming the 20 per cent. additional. By the finding of the Court of Claims it appeared that Fitzpatrick was an employ e in the office of the Commissioner of Public Buildings, as keeper of the western gate of the Capitol; that Hall was an employ e in the office of the Commissioner of Public Buildings, in that part of the Capitol called the crypt; that Bohn was an employ e in the office of the Commissioner of Public Buildings, as a laborer on the public grounds; that Lytle was an employ e in the office of the Commissioner of Public Buildings, as watchman in the east grounds of the Capitol; that Holbrook was an employ e in the office of the Commissioner of Public Buildings, as watchman at the stables; that La Rieu was an employ e in the same office, as watchman in the Smithsonian grounds; that Richards was an employ e in the same office, as watchman on the Capitol dome; and Newman was an employ e in the same office, as captain of the Capitol police. II. MILLER'S CASE.

About the same time one Miller filed a petition in the Court of Claims, alleging that he had been as clerk and employ e in the office of the Capitol Extension, assigned to duty as foreman of construction, receiving a salary of $1800; that he was in the civil service of the United States at Washington, and that he was thus entitled to an addition of 20 per cent. on his salary, under the joint resolution above quoted, and asking judgment against the United States therefor. The United States opposed the demand.

The court found as fact:

1. That the claimant was appointed foreman of carpenters by the Secretary of the Interior Department, March 1st, 1866, at a salary of $1800 per annum, and was in the service of the United States, in connection with Capitol Extension, at Washington, D. C., continuously from June 30th, 1866, to June 30th, 1867, inclusive, at the said salary.

2. That he was paid monthly, as in the case of other salaried officers; that he received materials for the work upon the Capitol building; made up daily reports; had charge of workmen, and performed such duties as were assigned him by the architect of the Capitol Extension, and was paid out of the said fund as the architect of the Capitol Extension, clerks, and others connected with said work, viz., the appropriation for the Capitol Extension.

No other facts than those above mentioned were found by the court. The counsel of the United States, however, after adverting to the fact that the findings contradicted an averment of the petitioner of a matter within his own knowledge, they finding that he was appointed foreman of carpenters March 1st, 1866, at a salary of $1800 per annum, and the counsel stating-by way of reconciling the discrepancy-that prior to March 1st, 1866, the claimant was employed in the same capacity as thereafterwards, but at a compensation of only $5 per day of actual employment, that is, exclusive of Sundays, or about $1500 per annum; and that the Secretary of the Interior, on March 1st, 1866, wrote the following letter:'DEPARTMENT OF THE INTERIOR,

'WASHINGTON, D. C. March 2d, 1866.

'SIR: You are hereby authorized, from and after the 1st of the present month, to pay George Miller, timekeeper, &c., on the Capitol Extension, at the rate of $150 per month, for the time actually employed, until further orders.

'I am, sir, very respectfully, your obedient servant,

'JAMES HARLAN,

'Secretary.'

'DR. WM. S. MARSH,

Disbursing Agent, Capitol Extension.'

III. MANNING'S CASE.

Near about the same time one Manning filed a petition with a purpose similar to that with which the others filed theirs. The court found that the claimant was employed as watchman or guard at the jail in Washington, for one year, at a salary of $1200 per year, paid to him monthly by the disbursing officer of the Department of the Interior. His pay was fixed at this rate by the Secretary of the Interior, under act of Congress which place the jail under the supervision of the Department of the Interior.

The Court of Claims gave a decree for the claimants in all of the cases, and the United States appealed in all.

Mr. C. H. Hill, Assistant Attorney-General, for the United States, (Messrs. L. P. Poland and N. P. Chipman, contra,) argued:

I. IN REGARD TO FITZPARICK AND THE SEVEN OTHER CLAIMANTS,

That none of these claimants were 'employed in the civil service at Washington,' which it was indispensable that any one claiming under the joint resolution should be. No officer, clerk, messenger, watchman, enlisted man, or employ e being entitled unless within that special class; a class which not only excluded the military and naval branches, but which, in reference to the civil branch, comprises only those persons who fill some office or hold some appointment established by law.

That the findings of the Court of Claims that the persons were 'employees,' were not findings of fact, but findings of law, and therefore not findings proper for the court to have made as the basis of its conclusions; that being findings of law they were re-examinable in this court; that thus re-examined it was plain that the word employees being found in the phrase, 'all other clerks and employees,' was to be regarded as meaning employees whose duties were clerical; moreover that the 'employees' meant to be favored were 'employees' in the office of the Commissioner of Public Buildings, &c.; that is to say, employees having appointments as officers in the edifice appropriated to the commissioner, &c.

II. IN REGARD TO MILLER,

That the claimant was not in in civil service, nor even an appointee of the Secretary of the Interior; that the letter of March 2d, 1866, was not an appointment but a mere order for an increase of pay; that the letter showed that the claimant was in the service of the United States, 'in connection with the Capitol Extension,' and not an 'employ e in the Capitol Extension.' Of course he was not an employ e in any other of the departments.

III. IN REGARD TO MANNING,

That he did not show that he was an employ e in any one of the departments, or in any bureau or division thereof, or in any office named in the resolution; his appointment was not authorized by statute, nor is his compensation prescribed by an appropriation act; that neither his employment nor his compensation being known to any act of Congress, he was not to be regarded as an employ e in the civil service at Washington.

Mr. Justice CLIFFORD delivered the opinion of the court in all the cases, giving it as follows:

title: Twenty Per Cent Cases


text: Talk:Twenty Per Cent Cases

title: Talk:Twenty Per Cent Cases


text:
Twenty Per Cent Cases/Opinion of the Court

I. IN FITZPATRICK'S AND THE SEVEN OTHER CASES.

Twenty per cent. additional pay is allowed by the joint resolution of the twenty-eighth of February, 1867, to certain persons or classes of persons therein described, who are employed in the civil service of the United States in this city, whose salaries, as fixed by law, do not exceed three thousand five hundred dollars per annum, to be paid out of any money in the treasury not otherwise appropriated.

Objection is made in several of the pending cases arising under that resolution that the claimant does not show himself to be an employe e in the civil service of the United States, which, it is said is the primary condition and the one required to be shown in every case before the party can lawfully claim the prescribed additional compensation, and the attempt is made by the appellants to restrict the meaning of the term civil service so as to exclude all persons from the benefits of the provision except such as have been appointed to office or hold appointments of some kind in that service. They contend that the words 'in the civil service' were not employed merely to contradistinguish the service described from that of the military or naval service of the United States, but also to show that the persons entitled to the benefits of the enactment must be persons filling offices or holding appointments established by law.

Beyond doubt those words were intended to contradistinguish the service described from that of the military or naval service, but the court is unable to concur in the proposition that they were also intended to restrict the operation of the resolution to persons in office in the civil service, or to persons holding appointments in that service as salaried officers.

Certain described persons and classes of persons are plainly entitled to the benefit of the provision, whether regarded as officers or as mere employees, and it is no valid argument against that proposition to show that there are or may be other employees or persons in the civil service here who are not within that description, as the terms of the enactment are special and do not extend to every employment in that service, but only to the described persons and classes of persons therein mentioned.

Civil officers whose salaries, as fixed by law, do not exceed three thousand five hundred dollars per annum are clearly within the terms of the resolution, and so are temporary and other clerks, messengers, and watchmen, including enlisted men detailed as such, and employees, male and female, in the executive mansion, and in the state, treasury, war, navy, interior, and post office departments, and the department of justice, or in any bureau or division of such a department, including the agricultural bureau, and all civil officers, whether permanent or temporary, in the offices of the coast survey, naval observatory, navy yard, arsenal, paymaster-general, commissary-general of prisoners, bureau of refugees, freedmen, and abandoned lands, office of quartermaster, capitol, and treasury extension, city post office, and commissioner of public buildings, and the other officers and employees described in the same resolution.

By the finding of the Court of Claims it appears that Fitzpatrick was an employ e in the office of the commissioner of public buildings, as keeper of the western gate of the Capital; that Hall was an employ e in the office of the commissioner of public buildings, in that part of the Capitol called the crypt; that Bohn was an employ e in the office of the commissioner of public buildings, as a laborer on the public grounds; that Lytle was an employ e in the office of the commissioner of public buildings, as watchman in the east grounds of the Capitol; that Holbrook was an employ e in the office of the commissioner of public buildings, as watchman at the stables; that Richards was an employ e in the office of the commissioner of public buildings, as watchman on the Capitol dome; and that Newman was an employ e in the office of the commissioner of public buildings, as captain of the Capitol police. Employees in the office of the commissioner of public buildings being within the very words of the joint resolution, the Court of Claims in each of these cases rendered judgment for the claimant, and the United States appealed to this court.

Most of the defences to the several claims have already been considered in the remarks preceding the statement of the case, but there are also certain special objections which deserve some consideration, as, for example, it is insisted that the question whether the claimant was or was not an employ e in the office of the commissioner is a question of law and not a question of fact, and that being a question of law it may be re-examined in this court.

Whether the claimant was or was not employed by the commissioner of public buildings is certainly a question of fact, but the question as to what relation he sustained to that office may perhaps be a question of law, as assumed by the United States. What they contend is that the words of the act 'in the office of' have respect to another class of employees, that those words refer to the clerks and messenger and the like, but the court is of a different opinion, as clerks and messenger are specially mentioned in the same enactment, which shows that the words 'employees in the office of' were intended to embrace a class of persons other and different from the persons having appointments as officers in the building assigned to the commissioner. Such an interpretation would be too restricted to comport with the general scope and object of the resolution, or with any of the canons of construction usually applied in ascertaining the meaning of a remedial law.

Offices may be and usually are divided into two classes-civil and military. Civil offices are also usually divided into three classes-political, judicial, and ministerial. Political offices are such as are not immediately connected with the administration of justice, or with the execution of the mandates of a superior, as the President or head of a department. Judicial offices are those which relate to the administration of justice, and which must be exercised by the persons appointed for that purpose and not by deputies. Ministerial offices are those which give the officer no power to judge of the matter to be done, and which require him to obey some superior, many of which are merely employments requiring neither a commission nor a warrant of appointment, as temporary clerks or messengers.

Neither a commission nor a warrant of appointment is necessary to entitle an employ e to the benefit of the provision under consideration, provided he was actually and properly employed in the executive mansion, or in any of the departments, or in any bureau or division thereof, or in the office of the Capitol or Treasury Extension, or in the office of the commissioner of public buildings, or in any other of the offices therein mentioned, if it appears that he is one of the persons or class of persons described in the joint resolution. Persons so employed are properly in the service if they were employed by the head of the department or of the bureau or any division of the department charged with that duty and authorized to make such contracts and fix the compensation of the person employed, even though the particular employment may not be designated in an appropriation act.

Many persons not employed as clerks or messengers of a department, are in the public service by virtue of an employment by the head of the department or by the head of some bureau of the department authorized by law to make such contracts, and such persons are as much in the civil service within the meaning of the joint resolution as the clerks and messengers employed in the rooms of the department building.

Tested by these rules it is clear that each of the eight claimants whose cases are under consideration were employees in the office of the commissioner of public buildings, and that the judgment of the Court of Claims in each case was correct.

JUDGMENT IN EACH CASE AFFIRMED.

II. IN MILLER'S CASE.

Judgment for the claimant was rendered in this case by the Court of Claims under the joint resolution of Congress giving additional compensation to certain employees of the government in the civil service in this city. Preceding the entry of the judgment is a finding of the facts, which is also agreed to by the counsel of the parties, as follows: (1.) That the claimant was appointed foreman of carpenters by the Secretary of the Interior, at a salary of eighteen hundred dollars, and that he was in the service of the United States, in connection with the Capitol Extension, continuously for one year at that salary. (2.) That he was paid monthly, as in the case of other slaried officers; that he received materials for the work upon the Capitol building, made up daily reports, had the charge of workmen, and performed such duties as were assigned him by the architect of the Capitol Extension, and that he was paid out of the same appropriation as the architect, clerks, and others connected with that work.

Several defences were set up by the appellants, as follows: (1.) That he is not an appointee of the Secretary of the Interior, and that he was not an employ e in the civil service. (2.) That he does not show himself to have been an employ e in the office of the Capitol Extension. (3.) That he was not an employ e in any of the departments specified in the joint resolution.

Support to first proposition is supposed to be derived from the fact alleged in argument, which is not found by the court, that the claimant was employed in the first place at a compensation of five dollars per day, exclusive of Sundays, and from the copy of a letter not introduced in evidence, addressed by the Secretary of the Interior to the disbursing agent of the Capitol Extension, in which he gives authority to that agent to pay the claimant from that date as timekeeper, &c., on the Capitol Extension, at the rate of one hundred and fifty dollars per month for the time he actually worked until further orders.

Two remarks will afford a sufficient reply to those suggestions: (1.) That such evidence cannot be received in this court to contradict the finding of the Court of Claims. (2.) Suppose it could, it would constitute no defence to the claim, as it only shows a mistake in the appellation given by the government to the employment. Enough appears in the letter to show that he was employed by authority of the Secretary of the Interior, and that his compensation was fixed as alleged, by the head of that department. Grant that the letter does not amount to a warrant of appointment, still if it be admitted as evidence it clearly shows that he was employed by the authority of the secretary, which, instead of contradicting, actually fortifies the finding of the court.

Sufficient has already been remarked in disposing of the first defence set up by the appellants, to show that the second cannot be sustained, as the claimant does show that he was employed in the public service on the Capitol Extension. Employed as he was by the authority of the Secretary of the Interior, it is clear that he was an employ e in the civil service in that department, as neither a commission nor a warrant of appointment is required to evidence such an employment.

Argument to show that the work designated by the words 'Capitol Extension' was under the supervision of the Secretary of the Interior is unnecessary, as the act of Congress of the sixteenth of April, 1862, provides that the supervision of the Capitol Extension and the erection of the new dome be and the same is hereby transferred from the War Department to the Department of the Interior.

None of the errors assigned can be sustained, and they are accordingly overruled.

JUDGMENT AFFIRMED.

III. IN MANNING'S CASE.

Persons to act as watchmen or guards at the jails in this District are usually selected by the warden of the jail, subject to the approval of the head of the department, but their number and the amount of their compensation are fixed by the Secretary of the Interior, as they are paid out of the judiciary fund, over which he exercises control.

By the act of the twenty-seventh of February, 1801, the custody of the jails was intrusted to the marshal of the District, and he was made accountable for the safe keeping of the prisoners.

Congress, however, on the twenty-ninth of February, 1864, created the office of warden of the jail, and enacted that he should have all the power and should discharge all the duties previously exercised and discharged over the jail and the prisoners by the marshal.

Supervisory power over the accounts of marshals is given by the act of Congress upon the subject to the Secretary of the Interior, and the express provision is that the warden shall annually, in the month of November, make a detailed report to the Secretary of the Interior.

Judgment was rendered for the claimant, and the court below made the following finding of facts: (1.) That the claimant was employed as watchman or guard at the jail in this city for one year, at a salary of twelve hundred dollars per year, paid to him monthly by the disbursing officer of the Department of the Interior, and it is conceded by the appellants that the pay of such employees was fixed at that rate by the secretary of that department. (2.) That he made application to the first comptroller of the treasury for the additional compensation, which is the subject of controversy, and that his application was refused.

1. Objection is made in this case, as in those previously decided, that the claimant does not show that he was an employ e in any one of the departments, or in any bureau or division thereof, or in any office named in the joint resolution. His appointment, it is said, is not authorized by statute, nor is his compensation prescribed by any appropriation act; and the argument is, that inasmuch as neither his employment nor his compensation is directly known to any act of Congress, he cannot be regarded as an employ e in the civil service of the United States; but the court is entirely of a different opinion, as the office of warden is an office created by law, and the appointee of the office is required to report to the Secretary of the Interior.

Guards at the jail are selected by the warden, but their compensation is fixed by the Secretary of the Interior, and they are paid by him, and it makes no difference whether the pay is charged to the appropriation for the department or to the judiciary fund, as the fact remains that the whole subject is under the supervision of the head of that department; whether their pay is charged to the one fund or to the other, the charge for their services must be approved by the warden, and must be included in his report to the Secretary of the Interior, where the same is subject to a further revision. Evidently they are employees in a bureau or division of the Interior Department, as their compensation is fixed by the head of that department, and the officer by whom they are employed is required annually to make a detailed report to that department of all his official acts.

Persons employed in a bureau or division of a department are as much employees in the department, within the meaning of the joint resolution, as the messengers and others rendering service under the immediate supervision of the secretary, or those specially named in the provision as entitled to its benefits. Unquestionably guards of the jail are employees of the warden, and the office of warden of the jail is a bureau or division of the Department of the Interior.

Viewed in that light, as the case must be, it is clear that the claim is well founded, and we are all of the opinion that the judgment should be

AFFIRMED.


text: Talk:Twenty Per Cent Cases/Opinion of the Court