text:
Swift & Courtney & Beecher Company v. United States/Opinion of the Court

On a former appeal in this case a judgment of the court of claims dismissing the claimant's petition on demurrer was reversed. Swift Co. v. U.S. 105 U.S. 691. It was then held that the right construction of the internal revenue acts-act of July 1, 1862, c. 119, § 102, (12 St. 477;) act of March 3, 1863, c. 74, (12 St. 714;) act of June 30, 1864, c. 173, (13 St. 294, 302;) act of July 14, 1870, c. 255, § 4, (16 St. 257)-required the payment of the commission allowed to dealers in proprietary articles purchasing stamps made from their own dies and for their own use, to be made in money, calculated at the rate of 10 per cent. upon the whole amount of stamps furnished, and not in stamps at their face value calculated upon the amount of money paid. In response to a suggestion in argument by the solicitor general we now repeat the conclusion then announced. We had no doubt upon the point at the time; we have none now. The distinction was then pointed out between the rule applicable to the sale of other adhesive stamps and those sold to proprietors of articles named Schedule C, made from their own dies. In the former, the commissioner of internal revenue had a discretion to fix the rate of the commission so as not to exceed 5 per cent., and in exercising that discretion could make the commission payable in stamps as an element in the rate itself. As to the latter, no such discretion was given. The statute fixed the rate of the commission absolutely. The practice of the bureau confused the two cases and ignored the distinction between them. We do not perceive how the substitution of the word 'commission' in the act of 1863 for the word 'discount' in the proviso to section 102 of the act of 1862 affects the question; for the latter obviously refers to a sum to be deducted from the money paid for the stamps and not from the stamps sold, while the former equally denotes a sum to be paid to the purchaser on a purchase of stamps at par, both being calculated as a percentage upon the amount of the purchase money, and the necessary implication as to both being that they are to be paid in money. However the words in some applications may differ in verbal meaning, they represent in the transactions contemplated by these statutes an indentical thing.

The present appeal is from a decree rendered in favor of the United States upon a finding of facts upon issue joined, and presents two questions: First, whether the course of dealing between the parties now precludes the appellant from insisting upon his statutory right to require payment of his commissions in money instead of stamps; and, second, whether, if not, part of his claim did not accrue more than six years before suit brought, so as to be barred by the statute of limitations. On the former appeal, we decided that the course of dealing set forth in the petition, which was admitted by the demurrer, did not bar the claimant's right to recover; holding that it did not appear on the face of the petition that the appellant voluntarily accepted payment of his commissions in stamps at par, instead of money, nor that he was willing to waive his right to be paid in that way; and that 'it would be incumbent on the government, in order to deprive him of his statutory right, not only to show facts from which an agreement to do so'-that is, an agreement to waive his statutory right-'might be inferred, but an actual settlement, based upon such an understanding.'

The decree brought up by the present appeal proceeds upon the basis that the facts as found by the court of claims establish such an agreement and such a settlement. The course of dealing found to exist and to justify this conclusion may be briefly but sufficiently stated to have been as follows: The appellant gave the bonds from time to time necessary under the statute to entitle it to 60 days' credit on its purchases of stamps. The condition of this bond was that the claimant should, on or before the tenth day of each month, make a statement of its account upon a form prescribed by the internal revenue bureau, showing the balance due at the commencement of the month, the amount of stamps received, the amount of money remitted by it during the month, and the balance due from it at the close of the month next preceding; and also that the company should pay all sums of money it might own the United States for stamps delivered or forwarded to it, according to its request or order, within the time prescribed for payment for the same according to law; that is, for each purchase within 60 days from the delivery of the stamps. Each purchase was upon a separate written order, specifying the amount desired; for example, $3,000 worth of match stamps. The commissioner thereupon forwarded stamps of the face value of $3,300, with a letter stating that they were in satisfaction of the order referred to, and inclosing a receipt on a blank form, but filled up, except date and signature, which was an acknowledgement of the receipt of the specified amount of stamps in satisfaction of the order. The receipt was signed by the claimant and returned. The claimant from time to time made remittances of money in authorized certificates of deposit, in sums to suit its convenience, for credit generally, and received in reply an acknowledgment stating that credit had accordingly been given on the books of the internal revenue office on account of adhesive stamps; for instance, by certificate of deposit, $2,500; commission at 10 per cent., $250; total, $2,750; and authorizing the claimant to take credit therefor on the prescribed form for the monthly account-current. These accounts were made out by the claimant monthly on blank forms prescribed and furnished by the commissioner, in which the United States were debited with all items of money remitted, and with commissions calculated on each remittance at 10 per cent., and credited with balance from previous month and stamps received on order in the interval, and with the balance due the United States. This account way by a memorandum at the foot stated to be correct, complete, and true, and signed by the claimant. These returns, with corresponding statements by the commissioner, were settled and adjusted by the accounting officers of the treasury department every quarter, and notice of the settlement given to the claimant. The remittances were so made that, while not corresponding to any particular order for stamps, they nevertheless covered all stamps the orders for which had been given 60 days or more previously, so that the claimant was always indebted to the United States for all stamps received within the past 60 days, but not for any received more than 60 days previously.

It must be admitted that this course of dealing and periodical settlement between the parties, whether the accounts be regarded as running merely or stated, shows clearly enough that the business was conducted upon the basis that the claimant was to receive his commissions in stamps at their par value, and not in money, and that this was asserted by the internal revenue bureau, and accepted by the appellant. But in estimating the legal effect of this conduct on the rights of the parties, there are other circumstances to be considered. It appears that prior to June 30, 1866, the leading manufacturers of matches, among whom was William H. Swift, who, upon the organization of the claimant corporation in 1870, became one of its large stockholders and treasurer, made repeated protests to the officers of the internal revenue bureau against its method of computing commissions for proprietary stamps sold to those who furnish their own dies and designs; although it did not appear that any one in behalf of the claimant corporation ever, after its organization, made any such protest or objection, or any claim on account thereof, until January 8, 1879. On that date the appellant caused a letter to be written to the commissioner, asserting its claim for the amount, afterwards sued for, as due on account of commissions on stamps purchased. To this, on January 16, 1879, the commissioner replied, saying that the appellant had received all commissions upon stamps to which it was entitled, 'provided the method of computing commissions, which was inaugurated with the first issue of private-die proprietary stamps and has been continued by each of my predecessors, is correct. I have heretofore decided to adhere to the long-established practice of the office in this regard until there shall be some legislation or a judicial decision to change it.' And the claim was therefore rejected.

From this statement it clearly appears that the internal revenue bureau had, at the beginning, deliberately adopted the construction of the law, upon which it acted through its successive commissioners, requiring all persons purchasing such proprietary stamps to receive their statutory commissions in stamps at their face value, instead of in money; that it regulated all its forms, modes of business, receipts, accounts, and returns upon that interpretation of the law; that it refused, on application, prior to 1866, and subsequently, to modify its decision; that all who dealt with it in purchasing these stamps were informed of its adherence to this ruling; and finally, that conformity to it on their part was made a condition, without which they would not be permitted to purchase stamps at all. This was, in effect, to say to the appellant that unless it complied with the exaction it should not continue its business; for it could not continue business without stamps, and it could not purchase stamps, except upon the terms prescribed by the commissioner of internal revenue. The question is whether the receipts, agreements, accounts, and settlements made in pursuance of that demand and necessity were voluntary in such sense as to preclude the appellant from subsequently insisting on its statutory right. We cannot hesitate to answer that question in the negative. The parties were not on equal terms. The appellant had no choice. The only alternative was to submit to an illegal exaction or discontinue its business. It was in the power of the officers of the law, and could only do as they required. Money paid, or other value parted with, under such pressure, has never been regarded as a voluntary act within the meaning of the maxim, volenti non fit injuria.

In Closs v. Phipps, 7 Man. & G. 586, which was a case of money paid in excess of what was due in order to prevent a threatened sale of mortgaged property, TINDAL, C. J., said: 'The interest of the plaintiff to prevent the sale, by submitting to the demand, was so great that it may well be said the payment was made under what the law calls a species of duress.' And in Parker v. ''Great Western Ry. Co.'' 7 Man. & G. 252, the wholesome principle was recognized that payments made to a common carrier, to induce it to do, what by law, without them, it was bound to do, was not voluntary, and might be recovered back. Illegal interest, paid as a condition to redeem a pawn, was held in Astley v. Reynolds, 2 Strange, 915, to be a payment by compulsion. This case was followed, after a satisfactory review of the authorities in Tutt v. Ide, 3 Blatchf. 249; and in Ogden v. Maxwell, Id. 319, it was held that illegal fees exacted by a collector, though sanctioned by a long-continued usage and practice in the office, under a mistaken construction of the statute, even when paid without protest, might be recovered back on the ground that the payment was compulsory and not voluntary. And in Max-well v. Griswold, 10 How. 242-256, it was said by this court: 'Now, it can hardly be meant, in this class of cases, that to make a payment involuntary, it should be by actual violence or any physical duress. It sufficies, if the payment is caused on the one part by an illegal demand, and made on the other part reluctantly, and in consequence of that illegality, and without being able to regain possession of his property, except by submitting to the payment.' To the same effect are the ''Amer. Steam-ship Co. v. Young, 89 Pa. St. 186; Cunningham v. Munroe, 15 Gray, 471; Carew v. Rutherford'', 106 Mass. 1; Preston v. Boston, 12 Pick. 7. In Beckwith v. Frisbie, 32 Vt. 559-566, it was said: 'To make the payment a voluntary one the parties should stand upon an equal footing.' If a person illegally claims a fee colore officii, the payment is not voluntary, so as to preclude the party from recovering it back. Morgan v. Palmer, 2 Barn. & C. 729. In Steele v. Williams, 8 Welsb. Hurl. & Gord. 625, MARTIN, B. said: 'If a statute prescribes certain fees for certain services, and a party assuming to act under it insists upon having more, the payment cannot be said to be voluntary.' 'The common principle,' says Mr. Pollock, Principles of Contract, 523, 'is that if a man chooses to give away his money, or to take his chances, whether he is giving it away or not, he cannot afterwards change his mind; but it is open to him to show that he supposed the facts to be otherwise, or that he really had no choice.' Add. Cont. * 1043; Alston v. Durant, 2 Strobh. 257.

No formal protest, made at the time, is by statute a condition to the present right of action, as in cases of action against the collector to recover back taxes illegally exacted; and the protests spoken of in the findings of the court of claims as having been made prior to 1866 by manufacturers of matches and others requiring such stamps are of no significance, except as a circumstance to show that the course of dealing prescribed by the commissioner had been deliberately adopted, had been made known to those interested, and would not be changed on further application, and that consequently the business was transacted upon that footing, because it is well known and perfectly understood that it could not be transacted upon any other. A rule of that character, deliberately adopted and made known, and continuously acted upon, dispenses with the necessity of proving in each instance of conformity that the compliance was coerced. This principle was recognized and acted upon in U.S. v. Lee, 106 U.S. 196-200, S.C.. 1 SUP. CT. REP. 240, where it was held that the officers of the law, having established and acted upon a rule that payment would be received only in a particular mode, contrary to law, dispensed with the necessity of an offer to pay in any other mode, and the party thus precluded from exercising his legal right was held to be in as good condition as if he had taken the steps necessary by law to secure his right. For these reasons we are of opinion that the court of claims erred in rendering its judgment dismissing the appellant's petition, and thus disallowing his entire claim. But we are also of opinion that he is not entitled to recover for so much of it as accrued more than six years before the bringing of his, suit. There was nothing in the nature of the business, nor in the mode in which it was conducted, nor in the accounts it required, that prevented a suit from being brought, for the amount of commissions withheld, in each instance as it occurred and was ascertained. The recovery must therefore be limited to the amount accruing during the six years next preceding November 21, 1878, which, according to the findings of the court of claims, is $28,616, and for that amount judgment should have been rendered by the court in favor of the appellant.

The judgment of the court of claims is therefore reversed, and the cause remanded, with directions to render judgment in favor of the appellant in accordance with this opinion; and it is so ordered.


text: Talk:Swift & Courtney & Beecher Company v. United States/Opinion of the Court

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


text:
Walsh v. Mayer

''Wm. L. Nugent and W. Hallett Phillips'', for Walsh.

C. W. Hornor, for Mayer & Co.

MATTHEWS, J.

title: Walsh v. Mayer


text: Talk:Walsh v. Mayer

title: Talk:Walsh v. Mayer


text:
Walsh v. Mayer/Opinion of the Court

The facts on which the decree appealed from was founded are stated in the opinion of the circuit court. The correctness of some of the findings is challenged by the appellants in the cross-appeal, the defendants to the original bill, but, on a careful consideration of the evidence, this court adopts them as its own, as follows: On the second day of January, 1866, the defendants, J. D. Mayer & Co., purchased from William Barnes, who then resided in the city of New Orleans, and the said defendants then being residents of the state of Arkansas, the hotel property situate in Mississippi City, in this state, (Mississippi,) known as the Barnes Hotel, and, to secure the payment of the last installment of the purchase money, executed their promissory note for $7,500, payable two years after date, with 6 per cent. interest thereon until due and 10 per cent. thereafter until paid, which note was made payable to themselves, and indorsed and delivered to said Barnes, who held and owned the same until about the last of June, 1874, when he sold and delivered the same for value to the complainant, Walsh. To secure the payment of this note, and one for the same amount which fell due the year previous, and which has been paid and satisfied, the said defendants executed a mortgage upon the property so purchased, which was executed and recorded on the twentieth of February, 1866, and described in said mortgage. That at the time said contract was made it was agreed and understood between the parties that the deferred payments were intended by said Barnes as an investment, and that so long as the interest was paid after this note became due, that the payment of the principal sum would not be demanded, and that in pursuance of said agreement and understanding the said defendants paid up the interest, and which was indorsed upon the note as paid, to September, 1873. Sometime after the maturity of the note, Barnes, as a condition for further indulgence, demanded of the said defendants that they should execute their notes falling due at a further period for the interest up to their maturity, equal to 15 per cent. per annum, upon the note for $7,500, and also for the amount of money advanced by Barnes to pay the premiums upon the insurance policies, with 15 per cent. interest added. These notes were drawn in New Orleans, made payable to order, and indorsed and delivered to Barnes. The last of these notes was dated May 12, 1874, and made due and payable on the fourteenth day of September thereafter. These transactions all took place prior to the transfer of the note by Barnes to complainant, but were known to complainant at the time of his purchase.

At the time of the purchase of the note, complainant wrote to the defendants, notifying them that he was the holder and owner of the note, and calling their attention to the continuance of the insurance upon the property. To this letter the said defendants replied on the sixth of July, acknowledging its receipt, but nothing more. On December 1st complainant mailed a letter to defendants, informing them that he needed money; that the interest had been paid to the first of September before, and again urging funds to provide insurance on the property. Defendants replied to this letter on the eighth of December, stating that they were willing to pay three months' interest, but had been served with a writ of garnishment in the suit of the First National Bank of New Orleans, in a suit by attachment brought by the bank on said Barnes in the circuit court of Harrison county, and therefore declined to make further payment or for further insurance, stating that they desired to have the insurance changed and to take it at a future time. On March 2, 1876, complainant wrote a letter to defendants calling their attention to the want of insurance, in which he uses the following language: 'I think it would not be wise for you, or safe for me, to leave things in that way; the amount you owe me on the $7,500 note is too large to be left in such an unprotection condition, and I cannot consent to it.'

On the ninth of March, 1876, the defendants made and sent to the complainant the following reply to the foregoing letter:

'Yours at hand. We do not want to insure any until about     July, when we expect to insure for about $15,000. We think     you will run no risk in that time, as the property would be      worth the amount due you if the building was to burn down.

[Signed] 'J. D. MAYER & CO.'

The suit of the bank vs. defendants was commenced in November, 1874, but owing to the death of Barnes was continued until the twenty-fourth of October, 1876, when the defendants filed their answer to the garnishment, in which they acknowledge the execution of the note, but claim that they have paid excess of interest and usurious interest thereon, which should be deducted from the note, and which when done would only leave a balance of $2,509.76, and which was owing to said William Barnes, but claimed the benefit of the statute of limitations, and which they set up as an entire defense to the said note, and upon which the suit was dismissed as to them. After this, by an arrangement between them and the bank, they gave their note to the bank for the said sum of $2,509.76, at four years, with 6 per cent. interest, but this was done with the condition that if the complainant recovered on said note for $7,500 the bank was not to collect the note so executed to it.

On these facts two questions arose: First, whether the bar of the statute of limitations was prevented by a sufficient acknowledgment or promise by the defendants as makers of the note; and, second, whether the usurious interest paid by them could be applied in reduction of the principal debt. The circuit court rightly held that the statute of limitations of Mississippi, being the law of the forum, was the one applicable to the case. Section 2161 of the Revised Code of Mississippi, 1871, provides that actions on promissory notes must be brought within six years after cause of action accrued; and section 2165 declares that in actions founded on contract no acknowledgment or promise shall be evidence of a new or continuing contract, whereby to take any case out of the provisions of the limitation act, or to deprive any party of the benefit thereof, unless such acknowledgment or promise be made or contained by or in some writing signed by the party chargeable thereby. We agree with the circuit court in the conclusion that the two letters of March 2 and March 9, 1876, contain such a definite recognition and acknowledgment of the debt due on the note in suit as meets the requirement of the statute. The letter of March 9th, it is true, is signed by J. D. Mayer & Co., in their partnership name, while the note is made by the individual members; but it is a legitimate inference, from the facts found, that the firm was the common agent of all its members for the purpose, as the business of managing the property was transacted by the firm. It was indeed for the purpose of owning and conducting the hotel that the partnership was formed, and the note, though in form that of the individual partners, was regarded as a partnership obligation.

Upon the question of the application of the illegal interest paid in reduction of the principal, the circuit court held that the contract, as to interest, was governed by the law of Louisiana; that, by the terms of that law, (Rev. St. 269,) 'the amount of conventional interest shall in no case exceed 8 per cent., under pain of forfeiture of the entire interest so contracted,' and that, 'if any person hereafter shall pay on any contract a higher rate of interest than the above, as discount or otherwise, the same may be sued for and recovered within twelve months from the time of such payment.' By the Mississippi Code, § 2279, the legal rate of interest is fixed, in the absence of contract, at 6 per cent. per annum; 'but contracts may be made in writing for the payment of a rate of interest as great as ten per cent. per annum. And if a greater rate of interest than ten per cent. shall be stipulated for in any case, such excess shall be forfeited on the plea of the party to be charged therewith.'

The circuit court held that the whole interest paid, being avoided by the Louisiana statute, a court of equity would impute its payment to the principal debt, and rendered a decree accordingly, deducting the whole amount of interest paid from the face of the note. In the view we take, it does not become necessary to decide whether the contract ought to be governed by the law of Louisiana or that of Mississippi; for we are of opinion that the decree, in this particular, is erroneous according to either.

It is not claimed that there is any express provision in the Louisiana statute that requires such an application of payments made on account of unlawful interest. It is rested altogether upon the provision that forfeits the whole interest paid, and authorizes the debtor to recover it back within the time limited. But the same provision is contained in section 5198, Rev. St., in reference to national banks; under which it has been held that usurious interest actually paid cannot be applied to the discharge of the principal. Driesbach v. ''Nat. Bank, 104 U.S. 52; Barnet v. Nat. Bank'', 98 U.S. 555. In Cook v. Lillo, 103 U.S. 792, the Louisiana statute was considered, and, upon the decisions of the supreme court of the state, it was decided that the usurious interest cannot be reclaimed, nor be imputed to the principal, unless a suit for its recovery is begun or plea of usury set up to the claim within 12 months after the payment is made. Cox v. McIntyre, 6 La. Ann. 470; Weaver v. Maillot, 15 La. App. 395.

It is said, however, that the law of Louisiana applies and governs, so far as it allows the forfeited interest to be applied in reduction of the principal, in an action on the note, but that the limitation of time within which by that law the right must be exercised, being part of the remedy merely, is governed by the law of Mississippi, being the law of the forum, which contains no such limitation. But the right claimed under the law of Louisiana must be taken as it is given, and is not divisible. The provision requiring it to be asserted in a particular mode and within a fixed time, are conditions and qualifications attached to the right itself, and do not form part of the law of the remedy. If it is not asserted within the permitted period, it ceases to exist, and cannot be claimed or enforced in any form. It was accordingly held in ''P., C. & St. L. Ry. Co. v. Hine'', 25 Ohio St. 629, under an act which required compensation to be made for causing death by wrongful act, neglect, or default, and gave a right of action, provided such action should be commenced within two years after the death of such deceased person, that this proviso was a condition qualifying the right of action, and not a mere limitation on the remedy. Bonte v. Taylor, 24 Ohio St. 628; Pritchard v. Norton, 106 U.S. 124-131; S.C.. 1 SUP. CT. REP. 124. We are therefore of opinion that the circuit court erred in not rendering a decree in favor of the complainants below for the amount of the note, with lawful interest from the date up to which interest had been paid.

We have disposed of the case upon both appeals. The motion to dismiss the cross-appeal of the defendants below, for want of jurisdiction, on the ground that the amount in controversy is less than $5,000, is overruled. The cross-appeal, it is true, is from a decree awarding against the defendants below less than that amount, and it could not, therefore, be maintained by itself; but the appeal of the plaintiffs below, to which it is incident, opened the whole controversy here, so far as they were concerned, and that of the defendants must be allowed to have the like effect as to them, so that upon both appeals the case was brought up as it stood for hearing in the court below, the claims of the respective parties involving the question of liability as to the whole amount.

The decree is reversed and the cause remanded, with directions to render a decree for the complainants below in conformity with this opinion.

title: Walsh v. Mayer/Opinion of the Court


text: Talk:Walsh v. Mayer/Opinion of the Court


text:
United States v. Ulrici

[Syllabus from page 38 intentionally omitted]

[Statement of Case from pages 38-39 intentionally omitted]

''Sol. Gen. Phillips'', for plaintiff in error.

No brief for defendants in error.

WOODS, J.

title: United States v. Ulrici


text: Talk:United States v. Ulrici

title: Talk:United States v. Ulrici


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

The assignment of error is that judgment was given for the defendants, whereas it should have been given for the plaintiff. We think the judgment was right. It is c

lear, even upon a cursory reading, that the well-considered and minute provisions of the Revised Statutes found in chapter 4, entitled 'Distilled Spirits,' of title 35, entitled 'Internal Revenue,' were adopted with one purpose only, namely, to secure the payment of the tax imposed by law upon distilled spirits. All the regulations for the manufacture and storage, the marking, branding, numbering, and stamping with taxstamps of distilled spirits, and all the penalties, forfeitures, fines, and imprisonments prescribed by the chapter mentioned have that end only in view. If the tax on distilled spirits were repealed, all the ingenious and complicated provisions of the chapter would become useless and insensible. Among them is the requirement that when spirits are deposited in a distillery warehouse, the owner should give bond conditioned that he will pay the tax due thereon within one year, and before the spirits are removed. It is clear that the object of exacting this bond is to make sure the payment of the tax. It would seem, therefore, that if the tax is paid within the time limited, either by the distiller or out of the proceeds of the spirits subject to the tax, the object for which the bond was taken is accomplished, and it becomes functus officio, and the obligors are discharged.

The contention of the counsel for the government is that the forfeiture of the spirits on which a tax is due for the fraudulent acts of the distiller in seeking to evade its payment is a punishment for the offense, criminal or quasi criminal, of the distiller, and that the application of the proceeds of the forfeited spirits to the payment of the tax cannot have the effect of relieving him from the obligation of his bond. Such, in our opinion, is not the true construction of the law regulating the imposition and collection of the tax on distilled spirits.

Section 3458 of the Revised Statutes, tit. 35, provides that 'when any whisky or tobacco or other article of manufacture or produce requiring brands, stamps, or marks of whatever kind to be placed thereon, shall be sold upon distraint, forfeiture, or other process provided by law, the same not having been branded, stamped, or marked as required by law, the officer selling the same shall, upon sale thereof, fix or cause to be affixed the brands, stamps, or marks so required, and deduct the expenses thereof from the proceeds of such sale.' The bill of exceptions shows, and the circuit court found, that this was done in this case within the year following the execution of the bond. As directed by the statute, the marshal procured from the collector of internal revenue the stamps necessary to pay the tax on the spirits sold, and placed them on the packages in which the spirits were contained. The collector was authorized by law to deliver the stamps only to be used for the purpose of paying the taxes. Rev. St. §§ 3313, 3314. It is clear, therefore, that the affixing of the stamps to the packages by the marshal was intended by the law to be a payment of the tax, and was a payment. The bond on which the suit is brought, having been exacted for the sole purpose of securing the payment of his taxes, was therefore discharged.

We think the contention of the plaintiffs in error cannot be sustained for another reason. The tax on distilled spirits is made by the statute a first lien thereon. Rev. St. § 3251. As two of the defendants are sureties, they have the right to insist that, when the spirits are seized and sold by the United States for any reason whatever, the proceeds shall be first applied to the payment of the tax. It was said by this court, in the case of U.S. v. Boecker, 21 Wall. 652, that a person about to become a surety on the bond required from a distiller before commencing business 'may examine and determine how far, in the event of liability on the part of the principal, the property where the business was to be carried on would be available as security for the government and indemnity for the surety.' So we think the fact that the tax due the United States is made by law a first lien on the spirits deposited in the distillery warehouse may fairly be considered by the surety when he estimates the risk he takes by signing the distillery warehouse bond. There is an implied undertaking on the part of the United States, based on the statute making the tax a first lien, that the proceeds of the spirits shall be first applied to the payment of the tax, and this undertaking enters into the distiller's warehouse bond. The government, therefore, having forfeited the spirits for the misconduct of the distiller, cannot, consistently with the rights of the sureties, apply their proceeds on some other account, and collect the tax of them, for the contract of a surety is to be strictly construed. Leggett v. Humphreys, 21 How. 66; Miller v. Stewart, 9 Wheat. 680; U.S. v. Boyd, 15 Pet. 187; U.S. v. Boecker, 21 Wall., ubi supra. We think, therefore, that the proceeds of the sale of the spirits was, in fact and in law, applied to the apyment of the tax due thereon, and that the bond of the defendants in the case given for its payment was discharged.

Judgment affirmed.


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


text:
United States v. Sutton

''Sol. Gen. Phillips'', for the United States.

No brief for defendants in error.

WOODS, J.

title: United States v. Sutton


text: Talk:United States v. Sutton

title: Talk:United States v. Sutton


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

This case was argued at the same time with the foregoing case, and the same questions were presented by the record. As the judgment of the court below in that case was in favor of the defendants, it follows that it must be affirmed, and it is so ordered.


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


text:
Ex parte Commonwealth of Virginia

W. Willoughby and F. E. Alexander, for petitioner.

HARLAN, J.

title: Ex parte Commonwealth of Virginia


text: Talk:Ex parte Commonwealth of Virginia

title: Talk:Ex parte Commonwealth of Virginia


text:
Ex parte Commonwealth of Virginia/Opinion of the Court

This is an application for a writ of mandamus directed to the secretary of the treasury, commanding him to deliver to the proper officer of the commonwealth of Virginia the sum of $732,809.33 that being, it is claimed, the amount of the fourth installment of the public money of the United States required by the act of congress, approved June 23, 1836, to be deposited with that state upon the terms and conditions therein prescribed. The thirteenth and fourteenth sections of that act-the only parts thereof material to the present inquiry-are as follows:

'Sec. 13. And be it further enacted, that the money which shall be in the treasury of the United States on the first day of January, eighteen hundred and thirty-seven, reserving the sum of five millions of dollars, shall be deposited with such of the several states, in proportion to their respective representation in the senate and house of representatives of the United States as shall, by law, authorize their treasurers, or other competent authorities, to receive the same on the terms hereinafter specified; and the secretary of the treasury shall deliver the same to such treasurers or other competent authorities, on receiving certificates of deposit therefor, signed by such competent authorities, in such form as may be prescribed by the secretary aforesaid; which certificates shall express the usual and legal obligations, and pledge the faith of the state for the safe keeping and repayment thereof, and shall pledge the faith of the states receiving the same to pay the said moneys, and every part thereof, from time to time, whenever the same shall be required by the secretary of the treasury for the purpose of defraying any wants of the public treasury, beyond the amount of the five millions aforesaid: provided, that if any state declines to receive its proportion of the surplus aforesaid, on the terms before named, the same shall be deposited with the other states agreeing to accept the same on deposit, in the proportion aforesaid: and provided further, that when said money, or any part thereof, shall be wanted by the said secretary to meet appropriations by law, the same shall be called for, in ratable proportions, within one year, as nearly as conveniently may be, from the different states with which the same is deposited, and shall not be called for in sums exceeding ten thousand dollars from any one state, in any one month, without previous notice of thirty days for every additional sum of twenty thousand dollars which may at any time be required.

'Sec. 14. And be it further enacted, that the said deposits shall be made with said states in the following proportions, and at the following times, to-wit: One-quarter part on the first day of January, eighteen hundred and thirty-seven, or as soon thereafter as may be; one-quarter part on the first day of April, one-quarter part on the first day of July, and one-quarter part on the first day of October,-all in the same year.' 5 St. 55.

On the twentieth of December, 1836, Virginia, by legislative enactment, signified her acceptance of the terms and conditions of this act, of which due notice was given to the secretary of the treasury and to congress. On the first day of January, 1837, as appears from a letter of the secretary of the treasury to the speaker of the house of representatives, under date of January 3, 1837, the balance in the treasury-in excess of $5,000,000-subject to be deposited with the states was $37,468,859.97, of which Virginia would have been entitled, under the act of June 23, 1836, to the sum of $2,931,237.32, payable in four installments. Ex. Doc. 2d Sess. 24th Cong. vol. 2, Doc. No. 62. The first three installments were deposited with the states at the respective dates fixed in the act of congress, but no part of the fourth has ever been delivered. The reason why the last installment was not deposited on the first of October, 1837, is shown by the message of President Van Burer to congress, at its extra session in September of that year. He said: 'There are now in the treasury $9,367,214, directed by the act of the twenty-third of June, 1936, to be deposited with the states in October next. This sum, if so deposited, will be subject, under the law, june, 1836, to be deposited with the states existing appropriations; and, as it is now evident that the whole, or the principal part of it, will be wanted for that purpose, it appears most proper that the deposits should be withheld.' Cong. Globe and Appendix, vol. 5, p. 8, 1st Sess. 25th Cong. The secretary of the treasury, in his report to congress, at the same session, after alluding to the then disturbed condition of the finances, and to the fourth installment payable in October, 1837, suggested that, in view of the condition of the finances, 'and the importance of meeting with efficiency and good faith all the obligations of the government to the public creditors, it would be most judicious to apply the whole installment, as fast as it is wanted and can be collected, to the prompt discharge of these obligations; and that the last deposit with the states, not being a debt, but a mere temporary disposal of a surplus, should be postponed until congress, in some different state of the finances, when such an available surplus may exist, shall see a manifest propriety and ability in completing the deposits, and shall give directions to that effect.' Ex. Doc. and Reports of Committees, 1st Sess. 25th Cong. Doc. No. 2.

By an act of congress, approved October 2, 1837, it was provided 'that the transfer of the fourth installment of deposit, directed to be made with the states under the thirteenth section of the act of June 23, 1836, be and the same is hereby postponed until the first day of January, 1839: provided that the first three installments under the said act shall remain on deposit with the states until otherwise directed by congress.' 5 St. 201. But, on the first day of January, 1839, there was not, as the petition admits, in the treasury a sufficient amount to meet that installment after paying existing appropriations for the current expenses of the government. And by the third section of an act approved August 13, 1841, the entire act of June 23, 1836, excepting its thirteenth and fourteenth sections, was repealed. Id. 440. The petition concedes that at no time since January 1, 1841, until within the past few years, has there been in the treasury a surplus of money large enough, after defraying existing charges imposed by congress, to make the fourth installment of deposit. It is, however, alleged that there is now in the treasury of the United States a sufficient sum of money, after defraying all the existing charges imposed by congress upon the treasury, and not needed or wanted by the secretary to meet appropriations by law, or to meet the interest accruing upon the public debt, or to meet all the expenditures of the government, estimated or ascertained by him for the present fiscal year, to make the deposits of the fourth installment with all of the states with which said deposits were directed to be made. The present secretary of the treasury having refused, upon the demand of Virginia, by its duly authorized agent, to use any part of the public moneys for the purpose of meeting that installment, the present application has been made for a mandamus compelling him to deposit with that state an amount equal to one-fourth of the said sum of $2,931,237.32. No case is made for a mandamus. If it was the duty of the secretary of the treasury, in execution of the act of 1836, to make the fourth installment of deposit on the day fixed in that act, whatever may have been, on that day, the wants of the public treasury, his failure to do so was legalized by the act of October 2, 1837, postponing that deposit until January 1, 1839. Of the latter act the states could not complain, because that of January 23, 1836, created no debt or legal obligation upon the part of the government, but only made the states the depositaries, temporarily, of a portion of the public revenue not needed, as was then supposed, for the purposes of the United States. What was the duty of the secretary, on January 1, 1839, to which time, by the act of 1837, the deposit of the fourth installment was postponed? It is conceded that there was not in the treasury, on January 1, 1839, a sufficient amount, available and applicable to public purposes, after paying necessary appropriations for the expenses of the government, to meet that installment. He could not, therefore, do what he might then lawfully have done, had the treasury, on January 1, 1839, been in the condition contemplated by congress when the act of 1837 was passed. The last direction given by the legislative department, upon the subject of this installment, is found in the latter act. No authority has been conferred upon the secretary, by subsequent legislation, to use any surplus revenue accruing after January 1, 1839, for the purpose of meeting the fourth installment of deposit. Congress, by the original act, as we have seen, charged the payment of the several installments upon the revenue, above $5,000,000, which might be in the treasury on January 1, 1837. That charge was transferred to and imposed upon the surplus revenue in the treasury on January 1, 1839. But no such charge has been imposed upon the revenue accruing subsequently to the latter date.

Congress has permitted the thirteenth and fourteenth sections of the act of 1836, as modified by the act of October 2, 1837, to stand for the purpose, as we infer, of showing not only the terms upon which the states received the three first installments of deposit, but that those installments are held by the states, subject to be recalled in the discretion of the United States. But the legislative department of the government seems, purposely, to have refrained from making the fourth installment of deposit a charge directly upon any revenues accruing since January 1, 1839. Since the last direction given by congress upon the subject the financial necessities and obligations of the government have been largely increased, and this circumstance, perhaps, suggests the reason why the legislative department has not fixed any day for the final execution of the act of 1836. Be the reason what it may, we are of opinion that the secretary of the treasury has no authority, under existing legislation and without further direction from congress, to use the surplus revenue in the treasury, from whatever source derived, or whenever, since January 1, 1839, it may have accrued, for the purpose of making the fourth installment of deposit required by the act of 1836.

The petition for a mandamus must consequently be denied. It is so ordered.


text: Talk:Ex parte Commonwealth of Virginia/Opinion of the Court


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Stevens v. Griffith

''Jas. M. Durham'', for plaintiff in error.

No brief for defendant in error.

FIELD, J.

title: Stevens v. Griffith


text: Talk:Stevens v. Griffith

title: Talk:Stevens v. Griffith


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Stevens v. Griffith/Opinion of the Court

In October, 1858, Jesse Rhea died in Tennessee, leaving a will containing various legacies to parties residing in that state and in Illinois and California. The will was admitted to probate in 1859, and the defendant, Griffith, one of the executors named therein, qualified and entered upon the discharge of his duties. In the course of the two years following, the effects and property of the estate were converted into money, its debts settled, and the portions pain to which the legatees in Tennessee were entitled. The executor was desirous of paying the balance to the legatees in Illinois and California, but, owing to the civil war, he could not communicate with them nor remit the money. In 1863, while this balance was still in his possession, he was notified, under proceedings of a court at Knoxville, Tennessee, established by the confederate government, to pay the amount to a confederate agent. On his refusal, suit was brought against him in that court, and judgment recovered for the amount, under a law of the confederate congress, passed to sequestrate and confiscate the property of residents of the loyal states. Upon this judgment he paid over the money. In 1867, legatees in Illinois commenced two suits in equity against him and the sureties on his bond to compel the payment of their share of the estate. These suits were consolidated, and he set up in bar the judgment of the confederate court, and averred that the state of Tennessee was then in the hands of the rebel authorities, both civil and military; that he was threatened by them with punishment if he did not comply with the judgment; that he believed it would be dangerous to refuse compliance; that the officers had the power to seize his property, and to arrest and imprison him; and that under his fears he paid the money.

The question whether the payment, under these circumstances, constitutes a bar to the relief prayed is closed by previous adjudications of this court. The effect of confiscation proceedings of the insurrectionary government to protect a party who during the war paid under them to confederate agents moneys owing to citizens of loyal states, was much considered in Williams v. Bruffy, 96 U.S. 177. That was an action for goods sold by the plaintiffs, residents of Pennsylvania, in March, 1861, to a resident of Virginia, and he having died it was brought against the administrator of his estate. The defendant set up in bar the organization of the confederate government; the existence of war between it and the United States; its enactment of a law providing for the sequestration of the effects, credits, and property of residents in the loyal states, termed 'alien enemies,' and making it a misdemeanor for a person having or controlling any such property to refuse to give information of it to the receiver of the confederate states, and place the same, so far as practicable, in his hands; that this law being in force, the intestate, in January, 1862, paid the amount claimed to such receiver; and, also, that the debt due was sequestrated by a decree of a confederate district court in Virginia, upon the petition of the receiver, who afterwards collected it, with interest. The courts in Virginia sustained the defense, but this court reversed their decision, and subsequently directed judgment for the plaintiffs. 102 U.S. 255. In the extended consideration given to the questions presented, we held that the confederate government, formed in the face of the prohibition of the constitution against any treaty, alliance, or confederation of one state with another, could not be regarded as having any legal existence; that whatever the efficacy the enactment pleaded possessed in Virginia arose from the sanction given to it by that state. If enforced as a law there it would be considered as a statute, not of the confederacy, but of the state, and treated accordingly. Any enactment, to which a state gives the force of law, whether it has gone throught the usual stages of legislative proceedings or been adopted in other modes of expressing the will of the state, is a statute of the state within the meaning of the acts of congress touching our appellate jurisdiction. As a statute of Virginia, it was repugnant to the constitution; and the decision of the courts of that state, sustaining its validity, gave us jurisdiction to review their judgment. It not only impaired the obligation of the contract of the deceased with the plaintiffs, but it undertook to relieve him from all liability to them. It also discriminated against them as citizens of a loyal state, and refused to them the same privileges accorded to citizens of Virginia, contrary to the clause of the constitution declaring that 'the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.' So, in this case, the confederate enactment, under which the confiscation of the money was had, can be treated only as a statute of Tennessee, by whose sanction it was enforced as a law of that state. As such it was repugnant to the constitution and laws of the United States. It authorized the seizure and confiscation of the property of loyal citizens upon no other ground than their loyalty, and for the purpose of raising funds to support an armed rebellion against the authority of the United States. No. opinion of the supreme court of Tennessee is in the record, but its decision sustaining the defense was necessarily in favor of the validity of the enactment. Our jurisdiction therefore attaches to review its judgment.

There can be no question of the right of the plaintiff in error to recover her share of the estate which belonged to her deceased mother, one of the legatees under the will, against any defense founded upon the proceedings pleaded. Viewed from the standpoint of the constitution, the confederate government was nothing more than the military representative of the insurrection against the authority of the United States. The belligerent rights conceded to it in the interest of humanity, to prevent the cruelties which would have followed mutual reprisals and retaliations, were, from their nature, such only as existed during the war. Their concession led to arrangements between the contending parties to mitigate the calamities of the contest. It placed those engaged in actual hostilities on the footing of persons in legitimate warfare; but it gave no sanction to hostile legislation, and in no respect impaired the rights of loyal citizens of a loyal state. Their right and their title to property which they possessed in the insurrectionary states before the war were not thereby divested or rendered liable to forfeiture. Their visible and tangible property may have been destroyed by violence, or seized by insurgents and carried away, and in such cases the occupants or parties in possession may, perhaps, be relieved from liability, as having been subjected to a force too powerful to be resisted. 'But,' as said in Williams v. Bruffy, 'debts not being tangible things subject to physical seizure and removal, the debtors cannot claim release from liability to their creditors by reason of the coerced payment of equivalent sums to an unlawful combination. The debts can only be satisfied when paid to the creditors to whom they are due, or to others by direction of lawful authority.' And, as we there observed, 'It would be a strange thing if the nation, after succeeding in suppressing the rebellion and re-establishing its authority over the insurrectionary district, should, by any of its tribunals, recognize as valid the demand of the rebellious organization to confiscate a debt due to a loyal citizen as a penalty for his loyalty. Such a thing would be unprecedented in the history of unsuccessful rebellions, and would rest upon no just principle.'

In the consideration of transactions between citizens of the insurrectionary districts, no disposition has been manifested by this court, and none exists, to interfere with the regular administration of the law, or with the ordinary proceedings of society in their varied forms, civil or political, except when they tended to impair the just authority of the general government or the rights of loyal citizens. Transactions which thus affect the government or the individual can never be upheld in any tribunal which recognizes the constitution of the United States as the supreme law of the land.

Neither the unlawful proceedings of the confederate government nor the judgment of its unauthorized tribunal exempts the executor from liability. It may, indeed, as he asserts, be a hardship upon him to compel him to pay the money again which he has once paid to others. This hardship, however, comes not from the regular administration of the law under the constitution but from the violence of the insurrectionary movement in which he participated. As Chief Justice CHASE said: 'Those who engage in rebellion must consider the consequences. If they succeed, rebellion becomes revolution, and the new government will justify its founders. If they fail, all their hostile acts to the rightful government are violations of law, and originate no rights which can be recognized by the courts of the nation whose authority and existence have been alike assailed.' Shortridge v. Macon, Chase, Dec. 136. The executor cannot escape the consequences of the insurrection in the community of which he was a member, whatever may have been his individual feelings and wishes as to their action. Besides, also, if questions of hardship are to be considered, the plaintiff might put in her claim there. The judgment of the supreme court must be reversed, and the cause remanded, with directions to affirm the decree of the chancery court of Monroe county, so far as concerns the claim of the plaintiff, Eliza Stevens, who alone has brought the case here: and it is so ordered.


text: Talk:Stevens v. Griffith/Opinion of the Court


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Burrow-Giles Lithographic Company v. Sarony

This was a suit for an infringement of a copyright in a photograph of one Oscar Wilde. The defence denied the constitutional right of Congress to confer rights of authorship on the maker of a photograph; and also denied that the surname of the proprietor with the initial letter of his given name prefixed to it (“N. Sarony”) inscribed on the photograph was a compliance with the provisions of the act of June 18th, 1874, 18 Stat. 78. The essential facts appear in the opinion of the court. The judgment below was for the plaintiff. The writ of error was sued out by the defendant.

Mr. David Calman for plaintiff in error.

Mr. Augustus T. Gurlitz for defendant in error.


text: Talk:Burrow-Giles Lithographic Company v. Sarony


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Burrow-Giles Lithographic Company v. Sarony/Opinion of the Court

delivered the opinion of the court.

This is a writ of error to the Circuit Court for the Southern District of New York.

Plaintiff is a lithographer and defendant a photographer, with large business in those lines in the city of New York.

The suit was commenced by an action at law in which Sarony was plaintiff and the lithographic company was defendant, the plaintiff charging the defendant with violating his copyright in regard to a photograph, the title of which is “Oscar Wilde No. 18.” A jury being waived, the court made a finding of facts on which a judgment in favor of the plaintiff was rendered for the sum of $600 for the plates and 85,000 copies sold and exposed to sale, and $10 for copies found in his possession, as penalties under section 4965 of the Revised Statutes.

Among the findings of fact made by the court the following presents the principal question raised by the assignment of errors in the case:

“3. That the plaintiff about the month of January, 1882, under an agreement with Oscar Wilde, became and was the author, inventor, designer, and proprietor of the photograph in suit, the title of which is ‘Oscar Wilde No. 18,’ being the number used to designate this particular photograph and of the negative thereof; that the same is a useful, new, harmonious, characteristic, and graceful picture, and that said plaintiff made the same at his place of business in said city of New York, and within the United States, entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by the plaintiff, he produced the picture in suit, Exhibit A, April 14th, 1882, and that the terms ‘author,’ ‘inventor,’ and ‘designer,’ as used in the art of photography and in the complaint, mean the person who so produced the photograph.”

Other findings leave no doubt that plaintiff had taken all the steps required by the act of Congress to obtain copyright of this photograph, and section 4952 names photographs among other things for which the author, inventor, or designer may obtain copyright, which is to secure him the sole privilege of reprinting, publishing, copying and vending the same. That defendant is liable under that section and section 4965 there can be no question, if those sections are valid as they relate to photographs.

Accordingly, the two assignments of error in this court by plaintiff in error, are:

1. That the court below decided that Congress had and has the constitutional right to protect photographs and negatives thereof by copyright.

The second assignment related to the sufficiency of the words “Copyright, 1882, by N. Sarony,” in the photographs, as a notice of the copyright of Napoleon Sarony under the act of Congress on that subject.

With regard to this latter question, it is enough to say, that the object of the statute is to give notice of the copyright to the public, by placing upon each copy, in some visible shape, the name of the author, the existence of the claim of exclusive right, and the date at which this right was obtained.

This notice is sufficiently given by the words “Copyright, 1882, by N. Sarony,” found on each copy of the photograph. It clearly shows that a copyright is asserted, the date of which is 1882, and if the name Sarony alone was used, it would be a sufficient designation of the author until it is shown that there is some other Sarony.

When, in addition to this, the initial letter of the christian name Napoleon is also given, the notice is complete.

The constitutional question is not free from difficulty.

The eighth section of the first article of the Constitution is the great repository of the powers of Congress, and by the eighth clause of that section Congress is authorized:

The argument here is, that a photograph is not a writing nor the production of an author. Under the acts of Congress designed to give effect to this section, the persons who are to be benefited and divided into two classes, authors and inventors. The monopoly which is granted to the former is called a copyright, that given to the latter, letters patent, or, in the familiar language of the present day, patent right.

We have, then, copyright and patent right, and it is the first of these under which plaintiff asserts a claim for relief.

It is insisted in argument, that a photograph being a reproduction on paper of the exact features of some natural object or of some person, is not a writing of which the producer is the author.

Section 4952 of the Revised Statutes places photographs in the same class as things which may be copyrighted with “books, maps, charts, dramatic or musical compositions, engravings, cuts, prints, paintings, drawings, statues, statuary, and models or designs intended to be perfected as works of the fine arts.” “According to the practice of legislation in England and America,” says Judge Bouvier, 2 Law Dictionary, 363, “the copyright is confined to the exclusive right secured to the author or proprietor of a writing or drawing which may be multiplied by the arts of printing in any of its branches.”

The first Congress of the United States, sitting immediately after the formation of the Constitution, enacted that the “author or authors of any map, chart, book or books, being a citizen or resident of the United States, shall have the sole right and liberty of printing, reprinting, publishing and vending the same for the period of fourteen years from the recording of the title thereof in the clerk’s office, as afterwards directed.” 1 Stat. 124, 1.

This statute not only makes maps and charts subjects of copyright, but mentions them before books in the order of designation. The second section of an act to amend this act, approved April 29, 1802, 2 Stat. 171, enacts that from the first day of January thereafter, he who shall invent and design, engrave, etch or work, or from his own works shall cause to be designed and engraved, etched or worked, any historical or other print or prints shall have the same exclusive right for the term of fourteen years from recording the title thereof as prescribed by law.

By the first section of the act of February 3d, 1831, 4 Stat. 436, entitled an act to amend the several acts respecting copyright, musical compositions and cuts, in connection with prints and engravings, are added, and the period of protection in extended to twenty-eight years. The caption or title of this act uses the word copyright for the first time in the legislation of Congress.

The construction placed upon the Constitution by the first act of 1790, and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive.

Unless, therefore, photographs can be distinguished in the classification on this point from the maps, charts, designs, engravings, etchings, cuts, and other prints, it is difficult to see why Congress cannot make them the subject of copyright as well as the others.

These statutes certainly answer the objection that books only, or writing in the limited sense of a book and its author, are within the constitutional provision. Both these words are susceptible of a more enlarged definition that this. An author in that sense is “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature.” Worcester. So, also, no one would now claim that the word writing in this clause of the Constitution, though the only word used as to subjects in regard to which authors are to be secured, is limited to the actual script of the author, and excludes books and all other printed matter. By writings in that clause is meant the literary productions of those authors, and Congress very properly has declared these to include all forms of writing, printing, engraving, etching, &c., by which the ideas in the mind of the author are given visible expression. The only reason why photographs were not included in the extended list in the act of 1802 is probably that they did not exist, as photography as an art was then unknown, and the scientific principle on which it rests, and the chemicals and machinery by which it is operated, have all been discovered long since that statute was enacted.

Nor is it to be supposed that the framers of the Constitution did not understand the nature of copyright and the objects to which it was commonly applied, for copyright, as the exclusive right of a man to the production of his own genius or intellect, existed in England at that time, and the contest in the English courts, finally decided by a very close vote in the House of Lords, whether the statute of 8 Anne, chap. 19, which authorized copyright for a limited time, was a restraint to that extent on the common law or not, was then recent. It had attracted much attention, as the judgment of the King’s Bench, delivered by Lord Mansfield, holding it was not such a restraint, in Miller v. Taylor, 4 Burrows, 2303, decided in 1769, was overruled on appeal in the House of Lords in 1774. Ibid. 2408. In this and other cases the whole question of the exclusive right to literary and intellectual productions had been freely discussed.

We entertain no doubt that the Constitution is broad enough to cover an act authorizing copyright of photographs, so far as they are representatives of original intellectual conceptions of the author.

But it is said that an engraving, a painting, a print, does embody the intellectual conception of its author, in which there is novelty, invention, originality, and therefore comes within the purpose of the Constitution in securing its exclusive use or sale to its author, while the photograph is the mere mechanical reproduction of the physical features or outlines of some object animate or inanimate, and involves no originality of thought or any novelty in the intellectual operation connected with its visible reproduction in shape of a picture. That while the effect of light on the prepared plate may have been a discovery in the production of these pictures, and patents could properly be obtained for the combination of the chemicals, for their application to the paper or other surface, for all the machinery by which the light reflected from the object was thrown on the prepared plate, and for all the improvements in this machinery, and in the materials, the remainder of the process is merely mechanical, with no place for novelty, invention or originality. It is simply the manual operation, by the use of these instruments and preparations, of transferring to the plate the visible representation of some existing object, the accuracy of this representation being its highest merit.

This may be true in regard to the ordinary production of a photograph, and, further, that in such case a copyright is no protection. On the question as thus stated we decide nothing.

In regard, however, to the kindred subject of patents for invention, they cannot by law be issued to the inventor until the novelty, the utility, and the actual discovery or invention by the claimant have been established by proof before the Commissioner of Patents; and when he has secured such a patent, and undertakes to obtain redress for a violation of his right in a court of law, the question of invention, of novelty, of originality, is always open to examination. Our copyright system has no such provision for previous examination by a proper tribunal as to the originality of the book, map, or other matter offered for copyright. A deposit of two copies of the article or work with the Librarian of Congress, with the name of the author and its title page, is all that is necessary to secure a copyright. It is, therefore, much more important that when the supposed author sues for a violation of his copyright, the existence of those facts of originality, of intellectual production, of thought, and conception on the part of the author should be proved, than in the case of a patent right.

In the case before us we think this has been done.

The third finding of facts says, in regard to the photograph in question, that it is a “useful, new, harmonious, characteristic, and graceful picture, and that plaintiff made the same … entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.”

These findings, we think, show this photograph to be an original work of art, the product of plaintiff's intellectual invention, of which plaintiff is the author, and of a class of inventions for which the Constitution intended that Congress should secure to him the exclusive right to use, publish and sell, as it has done by section 4952 of the Revised Statutes.

The question here presented is one of first impression under our Constitution, but an instructive case of the same class is that of Nottage v. Jackson, 11 Q. B. D. 627, decided in that court on appeal, August, 1883.

The first section of the act of 25 and 26 Victoria, chap. 68, authorized the author of a photograph, upon making registry of it under the copyright act of 1882, to have a monopoly of its reproduction and multiplication during the life of the author.

The plaintiffs in that case described themselves as the authors of the photograph which was pirated, in the registration of it. It appeared that they had arranged with the captain of the Australian cricketers to take a photograph of the whole team in a group; and they sent one of the artists in their employ from London to some country town to do it.

The question in the case was whether the plaintiffs, who owned the establishment in London, where the photographs were made from the negative and were sold, and who had the negative taken by one of their men, were the authors, or the man who, for their benefit, took the negative. It was held that the latter was the author, and the action failed, because plaintiffs had described themselves as authors.

Brett, M. R., said, in regard to who was the author: “The nearest I can come to, is that it is the person who effectively is as near as he can be, the cause of the picture which is produced, that is, the person who has superintended the arrangement, who has actually formed the picture by putting the persons in position, and arranging the place where the people are to be—the man who is the effective cause of that.”

Lord Justice Cotton said: “In my opinion, ‘author’ involves originating, making, producing, as the inventive or master mind, the thing which is to be protected, whether it be a drawing, or a painting, or a photograph;” and Lord Justice Bowen says that photography is to be treated for the purposes of the act as an art, and the author is the man who really represents, creates, or gives effect to the idea, fancy, or imagination.

The appeal of plaintiffs from the original judgment against them was accordingly dismissed.

These views of the nature of authorship and of originality, intellectual creation, and right to protection confirm what we have already said.

The judgment of the Circuit Court is accordingly affirmed.


text: Talk:Burrow-Giles Lithographic Company v. Sarony/Opinion of the Court


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Hollister v. Zion's Co-Operative Mercantile Institution

''Sol. Gen. Phillips'', for plaintiff in error.

J. L. Rawlins and ''Saml. Shellabarger'', for defendant in error.

WAITE, C. J.


text: Talk:Hollister v. Zion's Co-Operative Mercantile Institution


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Hollister v. Zion's Co-Operative Mercantile Institution/Opinion of the Court

For the purposes of this case we must assume that the Zion's Co-operative Mercantile Institution used for circulation and paid out their own obligations in the following form: '652.] SERIES A. [5.

'SALT LAKE CITY, October 6, 1876.

'Pay David O. Calder or bearer five dollars in merchandise at     retail.

'Five. Five.

'To H. B. Clawson, Supt. Z. C. M. I. G. H. SNELL.'

The question presented is whether these obligations are 'notes' within the meaning of the act of February 8, 1875, c. 36, § 19, (18 St. 311,) which is in these words: 'That every person, firm, association, other than national banking associations, and every corporation, state bank, or state banking association, shall pay a tax of ten per centum on the amount of their own notes used for circulation and paid out by them.' This act was passed as an amendment to the internal revenue laws, and is therefore to be construed in connection with those laws. It is also a part of the system adopted by congress to provide a currency for the country, and to restrain the circulation of any notes not issued under its own authority. Veazie Bank v. Fenno, 8 Wall. 533. The laws on that subject may consequently be resorted to in aid of interpretation.

On the seventeenth of July, 1862, congress first authorized the use of stamps as money, and by the same act-chapter 196, § 2, (12 St. 592)-provided that no private corporation, banking association, firm or individual should make, issue, circulate, or pay any note, check, memorandum, token, or other obligation, for a less sum than one dollar, intended to circulate as money, or to be received or used in lieu of lawful money. It was decided in U.S. v. Van Auken, 96 U.S. 366, that obligations payable in goods are not included in the prohibitions of this act, because, by fair implication, only obligations for money were affected. The national banking act of February 25, 1863, c. 58, (12 St. 665,) was passed at the next session of congress, which authorized the issue of 'notes for circulation.' Section 20. These notes were to be executed in such a manner as to make them 'obligatory promissory notes.' Then followed, at the same session, the act of March 3, 1863, c. 73, (12 St. 709,) 'to provide ways and means for the support of the government,' which required (section 7) all banks, associations, corporations, and individuals issuing notes or bills for circulation as currency to pay a duty of 1 per cent. each half year on the average amount of their circulation over a certain sum, and a duty of 5 per cent. on all issues of notes or bills in sums representing any fractional part of a dollar. At the next session, the act of June 30, 1864, c. 173, § 110, (13 St. 277, 278,) provided for a duty upon the average amount of circulation issued by any bank, association, corporation, company, or person, 'including as circulation all certified checks, and all notes and other obligations calculated or intended to circulate or to be used as money.' Next came the act of March 3, 1865, c. 78, § 6, (13 St. 484,) which required every national banking association, state bank, or state banking association to pay a tax of 10 per cent. on the amount of notes of any state bank or state banking association paid out by them after July 1, 1866. This act was extended on the thirteenth of July, 1866, c. 184, § 9, (bis,) (14 St. 146,) so as to include the notes of persons, as well as of state banks and state banking associations, used for circulation. The acts of 1865 and 1866 were considered and enforced in Veazie Bank v. Fenno, supra. After this came the act of March 26, 1867, c. 8, § 2, (15 St. 6,) which imposed upon every national banking association, state bank, banker, or association a tax of 10 per cent. on the amount of notes of any town, city, or municipal corporation paid out by them. All these statutes were re-enacted, without any material change of phraseology, in the Revised Statutes,-the act of July 17, 1862, being now section 3583; that of February 25, 1863, section 5182; that of June 30, 1864, section 3408; that of July 13, 1866, section 3412; and that of March 26, 1867, section 3413. The effect of the act of February 8, 1875, now under consideration, was to extend section 3412, which included only banks and banking associations, to all persons, firms, associations, and corporations. The subject-matter of the tax, to-wit, 'notes used for circulation paid out by them,' remains the same.

From this review of the legislation on the general subject, and the apparently studied use by congress of words of appropriate signification whenever it was intended to cover anything else than promissory notes in the commercial sense of that term, we are led to the conclusion that only such notes as are in law negotiable, so as to carry title in their circulation from hand to hand, are the subjects of taxation under the statute. It was, no doubt, the purpose of congress in imposing this tax, to provide against competition with the established national currency for circulation as money, but as it was not likely that obligations, payable in anything else than money, would pass beyond a limited neighborhood, no attention was given to such issues as affecting the volume of the currency or its circulating value. This was the principle on which the case of U.S. v. Van Auken was decided, from which we see no reason to depart.

The judgment of the supreme court of the territory is therefore affirmed.


text: Talk:Hollister v. Zion's Co-Operative Mercantile Institution/Opinion of the Court


text:
Canal Bank v. Hudson

W. L. Nugent, W. Hallett Phillips, and ''Wm. A. Maury'', for appellants.

W. P. Harris and Frank Johnson, for appellees.

BLATCHFORD, J.

title: Canal Bank v. Hudson


text: Talk:Canal Bank v. Hudson

title: Talk:Canal Bank v. Hudson