text:
Town of Red Rock v. Henby

The legislature of the state of Minnesota, on March 6, 1868, passed an act entitled 'An act to authorize the towns in Fillmore, Mower, Freeborn, Faribault, Martin, and Jackson counties to issue bonds to aid in the construction of any railroad running into or through said counties.' The first three sections of this act, which are the only ones material to this case, were as follows:

'Section 1. Each town in the counties of Fillmore, Mower, Freeborn, Faribault, Martin, and Jackson is authorized to issue bonds as hereinafter provided to aid in the construction of any railroad running into, or proposed to be built through, either or all of the counties aforesaid.

'Sec. 2. Said bonds shall be issued in sums of not less than $100 each, may bear interest at a rate not exceeding 10 per cent. per annum, payable annually, and shall run for a period not exceeding 10 years from their respective dates. They shall be signed by the chairman of the board of supervisors, and countersigned by the town clerk of such towns; and the principal and interest as they become due shall be payable to the person or corporation to whom they shall be issued, or bearer, on presentation to the town treasurer.

'Sec. 3. Any town in either of the aforesaid counties may, at any usual or regularly-called special meeting, by vote of a majority of the legal voters of such town present and voting, fix the amount and size of bonds to be issued by such town, the rate of interest, and the date of payment of all and any thereof, and the person or corporation to whom the same shall be issued and made payable, and the time at which and the terms and conditions upon which the same will be issued; and such town may, at such meeting, by vote, delegate all or any of the foregoing powers to the board of supervisors or any committee appointed by the town.'

Afterwards, on February 27, 1869, this act was amended by substituting 30 instead of 10 years as the limit of time at or within which the bonds were to be made payable. While this law, thus amended, was in force, to-wit, on May 9, 1869, the Southern Minnesota Railroad Company, by Clark W. Thompson, its general manager made the following proposition to certain towns in the counties of Mower and Fillmore, among which was the town of Red Rock, the plaintiff in error:

'I propose, in the name of the Southern Minnesota Railroad Company, to build and put in operation the Southern Minnesota Railroad, from its present terminus in Fillmore county to some point on the Innesota Central Railroad, on or before the thirty-first day of December, 1872, on the following conditions, to-wit:

'That the following towns in Fillmore and Mower counties shall vote and certify to the Southern Minnesota Railroad Company the following amount of bonds of their respective towns, payable in 20 years, with 7 per cent. annual interest: Fillmore, $15,000; Spring Valley, $25,000; Frankfort, $15,000; Grand Meadow, $15,000; Red Rock, $25,000; and Walthan, $15,000; the bonds not to be delivered, and the interest not to commence, until said completed road shall reach the town, or some point as far west as the eastern line of the town, voting the aid, if said road shall be done by the time specified.'

On May 15, 1869, a special meeting of the legal voters of the town of Red Rock was held, at which the following resolutions were passed by a majority of the legal voters present and voting at said meeting:

'Resolved, that under the provisions of an act of the legislature of the state of Minnesota, entitled 'An act to authorize the counties of Fillmore, Mower, Freeborn, Faribault, Martin, and Jackson to issue bonds to aid in the construction of any railroad running into or through said counties,' the supervisors of the town of Red Rock, Mower county, Minnesota, and their successors in office, be and are hereby authorized and required to issue and deliver the Southern Minnesota Railroad Company the bonds of said town, with interest coupons attached, to the amount of $25,000, such bonds to bear interest at the rate of 7 per cent. per annum, payable annually; such bonds to be issued in denominations of not less than $1,000 each, and to be payable in 20 years from their date, and to be signed by the chairman of said board of supervisors and attested by the clerk of said town, whenever said railroad company shall have completed its said road from its present termination, Fillmore county, to some point within 100 rods of the S. E. corner of the N. E. 1/4 of section 9, in town ship 103 N., of range 17 W., and shall have established a regular freight and passenger depot and are doing business therefrom.

'Resolved, that the bonds shall not be issued or delivered to said company, and no obligation incurred by said town by voting of this resolution, unless said company shall have completed said road to said point by the thirty-first day of December, 1872.'

Prior to the issue of the bonds mentioned in these resolutions the railroad company never formally agreed in writing to the terms and conditions on which the bonds were voted, but in the fall of 1869 it located its road between the points and upon the line mentioned in the resolution of the town of Red Rock above set forth; and in December of that year let the contract for constructing that portion of its line so located, and the work of construction was at once begun and was carried on during the winter, spring, and summer of the year 1870. Before the close of the summer, and more than two years before the time fixed in the resolution of the town of Red Rock, the railroad company had complied with all the terms and conditions of that resolution, and had completed its road between the points and upon the line prescribed in the resolution and had built the depot, and was 'doing business thereupon.' Whereupon, in pursuance of the proposition made to the railroad company in said resolution of May 15, 1869, the town of Red Rock, on March 9, 1871, issued to the Southern Minnesota Railroad Company 25 bonds of $1,000 each, falling due in 20 years. The bonds referred on their face to the law of the state and the vote of the legal voters of the town of Red Rock by which it was supposed the issue of the bonds was authorized, and they recited that the railroad company had fully performed the conditions upon which the town had promised to issue the bonds. After the issue of the said bonds, and before the maturity of the first coupons thereunto attached, the Southern Minnesota Railroad Company, which was then the holder of said bonds and coupons, sold, transferred, and delivered the bonds, with all the coupons appertaining thereto attached to the same, to the plaintiff, for the consideration of $900 in money for each of said bonds, such price then being the full market value of the same, which money was forthwith paid by the plaintiff to the said company. At the time of such purchase and payment of such money, the plaintiff had no knowledge of any of the special acts of the legislature hereinafter mentioned, and no knowledge of the proceedings of the electors or other authorities of said town of Red Rock, except what he derived from the recitals contained in the said bonds.

This suit was brought upon coupons which had fallen due since the defendant in error became the holder of the bonds. The defense set up on the trial in the circuit court was this: That before the railroad company had fully complied with the conditions upon which the town of Red Rock had proposed to issue its bonds, to-wit, on March 5, 1870, the legislature of Minnesota passed an act, the sections of which pertinent to this case are as follows:

'Section 1. Each township and village, town and incorporated city in the counties of Mower, Dodge, Goodhue, and Dakota, by a vote of a majority of the supervisors of any township, or of the majority of the city council of any such village, town, or city, as hereinafter provided, may create and issue its bonds, with interest coupons attached, to aid in the construction of any railroad running into or proposed to be built through either or all of the counties aforesaid.

'Sec. 2. The majority of the supervisors of any township, or the majority of the village, town, or city council of any such village, town, or city in the aforesaid counties, may fix the amount and size of the bonds to be issued by said township, village, town, or city, the rate of interest and the date of payment of all or any part thereof, and the person or corporation to whom the same shall be issued and made payable, and the time at which, and the terms and conditions upon which, the same shall be issued to such corporation.

'Sec. 3. Before the bonds are issued in any township or incorporated village, town, or city, the question of issuing them shall be submitted to the legal voters thereof by the supervisors of said township, or by the council of said village, town, or city. And the supervisors of townships and common councils of said villages, towns, and cities are hereby authorized to appoint and call special elections for such purposes, which elections shall be called and conducted in such form and manner as elections are usually conducted in such townships, villages, towns, or cities.'

The act further provided that if the majority of the voters at such election voted for the issue of the bonds, the said supervisors or the said common council should cause the bonds to be delivered to the railroad company whenever it should have complied with the terms and conditions upon which the bonds were to be issued. Afterwards, to-wit, on March 2, 1871, and before the bonds in controversy were issued, the legislature amended the first section of the act, so as to make it read as follows:

'Section 1. Each township, village, town, and incorporated city in the counties of Mower, Dodge, and Goodhue, by a vote of a majority of the supervisors of any township or of the majority of the city council of any such village, town, or city, subject to the approval and ratification of the legal voters of said township, village, town, or city, as hereinafter provided, may create and issue its bonds, with interest coupons attached, to aid in the construction of any railroad running into or proposed to be built through either or all the counties aforesaid.'

This was followed by a repealing section, as follows:

'Sec. 2. All acts and parts of acts inconsistent with this act are hereby repealed.'

The contention of the town of Red Rock in the circuit court was that the act of 1868, under which it was claimed that the bonds had been issued, had been repealed by the above-mentioned acts of 1870 and 1871. Upon this question the judges of the circuit court were divided in opinion. In accordance with the opinion of the presiding judge, judgment was rendered in favor of the plaintiff, and the question upon which the judges differed was certified to this court for its decision.

Gordon E. Cole, for plaintiff in error.

W. P. Clough and E. G. Rogers, for defendant in error.

WOODS, J.

title: Town of Red Rock v. Henby


text: Talk:Town of Red Rock v. Henby

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

title: Talk:Town of Red Rock v. Henby


text:
Town of Red Rock v. Henby/Opinion of the Court

The statute of March 5, 1870, is an affirmative act, and contains no express repeal of the act of March 6, 1868. The question is, therefore, whether the former act repeals the latter by implication. The leaning of the courts is against repeals by implication, (U.S. v. Tynen, 11 Wall. 88,) and if it be possible to reconcile two statutes, one will not be held to repeal the other. McCool v. Smith, 1 Black, 459. It was held by this court, in the case of Wood v. ''U.S. 16 Pet. 342, that a repeal by implication must be by 'necessary implication; for it is not sufficient to establish that subsequent laws cover some or even all the cases provided for by it, for they may be merely affirmative or cumulative or auxiliary.' In the case of U.S. v. Tynen, ubi supra, it was declared by Mr. Justice FIELD, speaking for the court, that 'it is when the later act plainly shows that it was intended as a substitute for the former act that it will operate as a repeal of that act.' So in the case of Henderson's Tobacco'', 11 Wall. 652, this court said, Mr. Justice STRONG delivering its opinion, that 'when the powers and directions under the several acts are such as may well subsist together, an implication of repeal cannot well be allowed.' In the case of King v. Cornell, ante, 312, the chief justice, expressing the opinion of the court, on this point said:

'While repeals by implication are not favored, it is well     settled that when two acts are not in all respects repugnant,      if the later act covers the whole subject of the earlier, and      embraces new provisions which plainly show that the last was      intended as a substitute for the first, it will operate as a      repeal.' See, also, Murdock v. Memphis, 20 Wall. 590.

The result of the authorities cited is that when an affirmative statute contains no expression of a purpose to repeal a prior law, it does not repeal it unless the two acts are in irreconcilable conflict, or unless the later statute covers the whole ground occupied by the earlier and is clearly intended as a substitute for it, and the intention of the legislature to repeal must be clear and manifest.

Guided by this rule, we are to settle the question upon which the judges of the circuit court were divided in opinion. It must be conceded that while the act of 1868 requires only the vote of a majority of the legal voters of the town before the bonds authorized thereby could be lawfully issued, the act of 1870 requires a vote of a majority of the supervisors, as well as a vote of the majority of the legal voters, to warrant the issue of bonds under its authority. It is, therefore, clear that the conditions upon which the towns of Mower county were authorized to issue their bonds were different under the two acts. Nevertheless, we are of opinion that the later act was neither repugnant to nor was it intended as a substitute for the former. This, we think, will appear from the following considerations. The act of 1868 authorized the issue of bonds by the towns of five counties, namely, Fillmore, Mower, Freeborn, Faribault, Martin, and Jackson. The map of Minnesota discloses the fact that they form a part of the southern tier of the counties of the state, and, beginning at the Mississippi river, extend in a right line from east to wast in the order named in the act. It appears from the record that prior to the passage of the act of 1868 the Southern Minnesota Railroad Company was chartered and empowered to construct and use a railroad from the Mississippi river westward across the state of Minnesota to its western boundary. This fact makes it reasonably clear that the object of the act of 1868 was to authorize the towns of the counties named to issue their bonds in aid of the construction of that line of railroad. The act of 1870 authorizes the towns, etc., of the counties of Mower, Dodge, Goodhue, and Dakota to issue bonds to aid in the construction of any railroad running into or proposed to be built through either or all of said counties. The map shows that these counties, beginning with Mower, on the southern boundary of the state, extend in a line northwardly to the Mississippi river opposite St. Paul. It is, therefore, reasonably clear that the purpose of this law was to aid in the construction of a line of railroad running north and south through these counties. It is true that each of the acts authorizes the towns to issue bonds in aid of any railroad running into either of the counties named therein, but this fact is consistent with the general purpose of the act as above indicated.

We have, therefore, two acts,-one passed to authorize the towns in a certain group of counties to aid in the construction of one line of railroad, and the other to authorize the towns in another group of counties to aid in the construction of another line of road, and the county of Mower happens to be common to both groups. When we consider the different objects which it is reasonably clear the legislature had in view in the passage of these two acts, it is a fair construction to hold that it was not the intention of the legislature, by the passage of the later act, to repeal the older act, either totally or partially. It is not contended that the supposed repeal affected any of the counties named in the first act except the county of Mower. If the method of authorizing the issue of bonds in that act was an unsafe and vicious one, which the legislature intended to change, why did it not repeal the act as to other counties and apply to them also the restrictions contained in the later act? It would not be an unwarranted construction of the two acts to hold that bonds issued in aid of an east and west line of railroad passing through the counties named in the act of March 6, 1868, should be issued in conformity with that act, and that bonds issued in aid of a north and south line of railroad running through the counties named in the act of March 5, 1870, should be issued in conformity with the latter act. We think that the circumstance that the county of Mower happens to be in both groups of counties does not show a purpose on the part of the legislature to repeal the first act, so far as it affects that county.

The language of the act of 1868 might have been sufficient to authorize the towns in Mower county to issue bonds in aid of a north and south line of railroad, but it was necessary to pass an act to authorize the towns in the counties of Dodge, Goodhue, and Dakota to issue bonds in aid of such a road. In passing this act the county of Mower was included, doubtless, for the purpose of making clear and unquestionable the authority of towns in that county to issue bonds for the same purpose. We, therefore, find no repugnance between the statutes, nor do we find the later act to be a revision of the entire subject covered by the older act, nor to be intended as a substitute for it. There is, therefore, no repeal.

There is another consideration which is entitled, in our opinion, to some weight, and that is, that before the act of 1870 was passed the railroad company had made considerable progress in performing the conditions upon which the town of Red Rock had agreed to issue its bonds. It had located its line of road according to the proposition made by the town, and had for more than two months been engaged in constructing its road upon that line. It is true, it was under no binding contract with the town to go on and complete the line, but it had unmistakably manifested its purpose to do so, and had expended and was expending large sums of money in an effort to comply with the conditions upon which the town had agreed to issue its bonds. If, under these circumstances, the legislature had withdrawn the authority of the town to issue its bonds, or had imposed new conditions upon the issue, it would have been an act of bad faith. If possible, we should give such a construction to the act of the legislature as would relieve the state from such an imputation. Broughton v. Pensacola, 93 U.S. 266.

The amendatory act of March 2, 1871, with its repealing clause, can have no effect on this controversy. That act was passed more than six months after the railroad had fully complied with all the conditions upon which the town of Red Rock had agreed to issue its bonds. It was too late then for the legislature to interfere. The railroad company was entitled to the bonds, and any attempt by the legislature to forbid their issue would have been unconstitutional and void.

The burden is on the plaintiff in error to make it appear that the act of March, 1868, which authorized the issue of the bonds, the coupons of which are in suit, was repealed by the subsequent act of 1870. In view of the considerations which we have stated, we are of opinion that the repeal has not been satisfactorily shown. On the contrary, we think it reasonably clear that no repeal of the former act was intended by the passage of the act of 1870.

As this view coincides with the opinion of the presiding judge in the circuit court, upon which the judgment of that court was based, it follows that the judgment should be affirmed; and it is so ordered.


text: Talk:Town of Red Rock v. Henby/Opinion of the Court


text:
Weeth v. New England Mortgage Security Company

John M. Thurston, for appellants.

J. D. Campbell, for appellee.

WAITE, C. J.


text: Talk:Weeth v. New England Mortgage Security Company


text:
Weeth v. New England Mortgage Security Company/Opinion of the Court

This case comes here by appeal on a certificate of division after a decree in accordance with the opinion of the presiding judge, as required by section 650 of the Revised Statutes. The value of the matter in dispute is less than $5,000, and we have consequently no jurisdiction unless the questions certified are such as we can consider. The controversy is as to whether certain notes sued on are usurious. In the progress of the cause a reference was made to one of the masters of the court 'to report on the law and the facts as shown by the pleadings and the proofs herein.' The master reported, stating the facts he found and his conclusions of law thereon. To this report exceptions were filed by both parties, on the ground, among others, that the facts found and stated were not sustained by the evidence. Upon the hearing of the cause by the court the judges were divided in opinion on the following questions: (1) Whether the notes sued on were usurious. (2) Whether the master's report should in all things be affirmed. These are the questions certified to us.

The rule is well settled that to give us jurisdiction on a certificate of division of opinion, the questions certified must be of law and not of fact. Wilson v. Barnum, 8 How. 262; Dennistown v. Stewart, 18 How. 568; Silliman v. Hudson River Bridge Co. 1 Black, 584; Daniels v. Railroad Co. 3 Wall. 254; Brobst v. Brobst, 2 Wall. 96. We cannot in this way be called on to consider the weight or effect of evidence. It is equally well settled that we cannot take jurisdiction where the whole case is certified up for adjudication instead of single points. U.S. v. Bailey, 9 Pet. 273; Nesmith v. Sheldon, 6 How. 43.

The certificate in this case is manifestly subject to both these objections. The counsel for the appellants opens his argument with the candid statement that 'the first question submitted depends on the solution and determination of the second, to-wit, whether the master's report should in all things be sustained?'-that is to say, whether the evidence supports the findings, and if it does, whether the master was right in his conclusions of law. This certainly presents the whole case for adjudication, and involves a finding of the facts by this court.

The appeal is dismissed for want of jurisdiction.


text:
Nets to Catch the Wind/The Falcon

Why should my sleepy heart be taught To whistle mocking-bird replies? This is another bird you've caught, Soft-feathered, with a falcon's eyes.

The bird Imagination, That flies so far, that dies so soon; Her wings are colored like the sun, Her breast is colored like the moon.

Weave her a chain of silver twist, And a little hood of scarlet wool, And let her perch upon your wrist, And tell her she is beautiful.

title: Nets to Catch the Wind/The Falcon


text: Talk:Weeth v. New England Mortgage Security Company/Opinion of the Court


text:
United States v. Steam Vessels of War Seaboard, Texas, Beaufort

This was a proceeding termed a libel of information filed in the supreme court of the District of Columbia, on behalf of the admiral and officers and men of the North Atlantic squadron, to recover the bounty provided by the act of congress of June 30, 1864, regulating prize proceedings, and the distribution of prize money. 13 St. at Large, 306. The eleventh section of that act declares-

'That a bounty shall be paid by the United States for each person on board any ship or vessel of war belonging to an enemy at the commencement of an engagement, which shall be sunk or otherwise destroyed in such engagement by any ship or vessel belonging to the United States, or which it may be necessary to destroy in consequence of injuries sustained in action of $100, if the enemy's vessel was of inferior force, and of $200, if of equal of superior force, to be divided among the officers and crew in the same manner as prize money; and when the actual number of men on board any such vessel cannot be satisfactorily ascertained, it shall be estimated according to the complement allowed to vessels of its class in the navy of the United States; and there shall be paid as bounty to the captors of any vessel of war captured from an enemy, which they may be instructed to destroy, or which shall be immediately destroyed for the public interest, but not in consequence of injuries received in action, $50 for every person who shall be on board at the time of such capture.'

The libel, in substance, alleges that between the eighth of October, 1864, and the twenty-eighth of April, 1865, the North Atlantic squadron, consisting of 11 ships of war,-which are mentioned,-was under the command of David D. Porter, now admiral of the navy; that by orders of the president of the United States and of the secretary of the navy, he ascended the James and York rivers, in Virginia, with the vessels composing his squadron, for the purpose of expelling the naval and military forces of the confederate states from those waters, and to assist in the capture of Richmond; that previously to April 1, 1865, the confederates, in order to obstruct the passage of the vessels, had erected along those rivers batteries and other means of defense; had caused boats to be sunk in the streams and trees to be filled in and across them; and had placed in the James river, in support of the defenses of Richmond, many armed steam batteries, steam rams, iron-clad ships of war, and armed steamers, of which 11 are mentioned by name; that the fleet removed the obstructions from the river, attacked the naval forces of the confederates, destroyed some of the vessels, and caused the enemy to destroy others to prevent them from falling into the possession of the United States, and that nine vessels, which are named, were thus destroyed. The libel further alleges that the vessels of the enemies, aided by the guns of the batteries and the obstructions in the river, constituted a superior force to that under the command of Admiral Porter; and claims that by the act of congress of June 30, 1864, cited above, the officers and men of the squadron were entitled to a bounty of $200 a head for each man on the enemy's vessels at the commencement of the engagement. It therefore prays that such bounty may be allowed to them; and that, in estimating the numerical strength of the enemy, the court will take into consideration and adjudge that all persons engaged on land, as well as those on the water, in resisting the United States naval forces in that engagement, may be held to have been on board of the enemy's vessels, and treated as adjuncts to them; and, furthermore, as it will be difficult, and in some instances impossible, by reason of the lapse of time and from other causes, to show the number of men that were on and about the enemy's vessels when the engagement commenced, the libel prays that such forces may be estimated according to the complement of men allowed to vessels of the same capacity in the navy of the United States.

Upon this libel process was ordered to be issued to the secretary of the navy, notifying him of the commencement of the suit; and subsequently testimony in the case was taken, and such proceedings were had as resulted in a decree in favor of the libelants, by the supreme court of the District of Columbia, sitting in admiralty, and held by a single justice. The case being subsequently carried before the full court, the decree was reversed and the libel dismissed. From the decree of dismissal the case is brought by appeal to this court.

J. F. Manning, for appellants.

''Sol. Gen. Phillips'', for appellee.

FIELD, J.


text: Talk:United States v. Steam Vessels of War Seaboard, Texas, Beaufort


text:
United States v. Steam Vessels of War Seaboard, Texas, Beaufort/Opinion of the Court

Two objections are made to the recovery of the bounty claimed by the libelants: one, that the destruction of the confederate vessels was effected by the joint action of the army and navy; the other that it took place on the inland waters of the United States. For the determination of the first of these objections it will be necessary to consider the movements of the fleet under command of Admiral Porter, immediately preceding the capture of Richmond. The record enables us to do this, although officers present on the vessels differ in their recollection of dates.

On the morning of April 2, 1865, Gen.Lee commanding the enemy's forces around Richmond, informed the confederate authorities that he should immediately withdraw his lines and evacuate the city. The withdrawal and evacuation took place on the evening of that day. Information of his purpose was undoubtedly communicated to Admiral Porter soon after it was generally known in Richmond, which was before noon. At that time there were in James river, for some miles below Richmond, obstructions which the confederates had placed to prevent the ascent of the Union fleet. Vessels filled with stone had been sunk and numerous torpedoes planted in the stream. Batteries had also been erected along the river. Some of the obstructions were just above the lower end of what was known as Dutch Gap canal, about 16 miles by the river from Richmond, which were originally placed there by the confederates, and afterwards maintained by the forces of the United States. Two miles above them was Howlett's confederate battery. Eight miles above the Dutch Gap canal was Chaffin's bluff, and one mile above that on the opposite side of the river was Drury's bluff, seven miles below Richmond. Gen. Lee's lines extended across the river between the two bluffs, and below them. Above the obstructions near Dutch Gap canal several confederate vessels of war were stationed. When Gen. Lee was compelled to abandon his lines, orders were given that the batteries on James river should be withdrawan and the confederate vessels destroyed.

As soon as Admiral Porter, on the second of April, was informed, or had reason to believe that Gen. Lee intended to retreat from Richmond, he gave orders for the removal of the obstructions in the river, and for his vessels to open fire on the confederate batteries within range and to push on through the obstructions as fast as they were carried away, first sending boats ahead to remove the torpedoes. These orders were carried out with great gallantry and spirit; a heavy fire was opend on the batteries, and during the following night a channel was cut through the obstructions. Soon after the fleet opened fire, the enemy, to prevent the capture of his vessels, commenced destroying them, setting fire to some of them and blowing up others. On the next day, the 3d, the fleet passed through the obstructions and moved up to Drury's bluff, capturing one of the enemy's vessels which had not been destroyed-the iron-clad ram Texas. Another of the enemy's vessels-the Beaufort-was subsequently captured further up the river. At Drury's bluff the vessels were detained by the obstructions until the 4th. On that day the admiral, accompanied by President Lincoln, proceeded up to Richmond. Although in the movements of the admiral's fleet in its ascent of James river and in its attack on the batteries he was not assisted by the actual presence of any portion of the army of the United States, so that the capture of the two vessels-the Texas and the Beaufort-and the destruction of the other vessels may, in that sense, be said to have been effected by his fleet alone, yet without the aid of the army the result mentioned would not probably have been accomplished. Certainly, its movements contributed most essentially to the success of the fleet. For several months it had been lying near Richmond under the command of Gen. Grant, with the avowed purpose of capturing that city and of destroying the confederate forces. The result of the battle of Five Forks, on the first of April, satisfied the confederate commander that he could not hold his lines and protect Richmond. The withdrawal of his troops and the evacuation of Richmond followed. Had they not been thus forced to retire and his lines had continued to cross James river between Chaffin's bluff and Drury's bluff, it would have been almost if not quite impossible for the fleet of Admiral Porter to ascend the river. The fire of the shore batteries, with the assistance of the confederate troops near by, would have checked any advance, supported as they would have been by the confederate vessels and the torpedoes in the stream. It is plain, therefore, that whatever was accomplished by the fleet of the admiral in James river on the second and third days of April, 1865, must be considered as the result of the co-operative action of both the army and the navy. It matters not that the movements of the army were miles distant from the operations of the fleet; they relieved that fleet from resistance which might and probably would have defeated any attempt to ascend the river above the shore batteries, and destroy the armed vessels of the enemy.

Prize money, or bounty in lieu of it, is not allowed by the laws of congress where vessels of the enemy are captured or destroyed by the navy with the co-operation of the army. To win either the navy must achieve its success without the direct aid of the army, by maritime force only. No pecuniary reward is conferred for anything taken or destroyed by the navy when it acts in conjunction with the army in the capture of a fortified position of the enemy, though the meritorious service and gallant conduct of its officers and men may justly entitle them to honorable mention in the history of the country. The Siren, 13 Wall. 389.

The second objection to a recovery, that the destruction of the confederate vessels was effected upon inland waters of the United States, is equally clear if the term 'property,' used in the seventh section of the act of 1864, can be construed-as counsel seem to take for granted-to embrace public vessels of the enemy. That act provides, among other things, for the collection of captured and abandoned property, and is in addition to the act on that subject of March 12, 1863. 13 St. at Large, 377; 12 St. at Large, 320. The seventh section declares—

'That no property seized or taken upon any of the inland     waters of the United States by the naval forces thereof,      shall be regarded as maritime prize; but all property so      seized or taken shall be promptly delivered to the proper      officers of the curts, or as provided in this act and in the      said act approved March 12, 1863.'

The term 'inland,' as here used, was evidently intended to apply to all waters of the United States upon which a naval force could go, other than bays and harbors on the sea-coast. In most instances property of the enemy on them could be taken, if at all, by an armed force without the aid of vessels of war. These were seldom required on such waters, except when batteries or fortified places near them were to be attacked in conjunction with the army. As observed by the court in the case of The Cotton Plant, congress probably anticipated, in vie of the state of the war when the act was passed, that most of the captures on the rivers would be made by the army. 10 Wall. 577. James river is an inland water in any sense which can be given to the term 'inland.' It lies within the body of counties in Virginia. For miles below Richmond and below the obstructions mentioned a person can see from one of its banks what is done on the other. Rivers across which one can thus see are inland waters. It matters not that the tide may ebb and flow miles above their mouths; that fact does not make them any part of the sea or bay into which they may flow, though they may be arms of both. U.S. v. Grush, 5 Mason, 290.

Decree affirmed.


text: Talk:United States v. Steam Vessels of War Seaboard, Texas, Beaufort/Opinion of the Court


text:
Albright v. Teas

This was a suit in equity originally brought in the court of chancery of the state of New Jersey by Andrew Teas, the appellee, against the appellants, Andrew Albright, Edwin R. Cahoone, and Samuel E. Tompkins. The bill alleged that Teas was the inventor and patentee of certain improvements in coach-pads, harness-saddles, and saddletrees, covered by three certain letters patent issued to him; that on February 1, 1876, he made an agreement in writing of that date with Albright and Cahoone, which was in substance as follows: Teas agreed on his part to make assignments of said letters patent to Albright and Cahoone, and also of certain other letters patent for which he had made application to the patent-office, and also of any other patents which he might obtain for improvements in gig-saddles and coash-pads for harness; in consideration whereof Albright and Cahoone agreed that they would 'use their best endeavors to have the aforesaid inventions worked, goods manufactured and sold to the best advantage of themselves and said Teas,' and to pay Teas certain specified royalties for the use of the patented improvements, and pay 'all just and necessary expenses for the purpose of procuring and sustaining all of said letters patent against infringers,' provided it be for the mutual interests of and financial benefits to all the parties to the agreement.

The bill further alleged that Teas did assign the patents as stipulated in the agreement and that the agreement was in full force; that a large amount of goods, in which the improvements covered by the patents of the complainant were used, had been manufactured by Albright and Cahoone under the name of the Cahoone Manufacturing Company, and by Tompkins, Albright, and Cahoone, under the firm name of Samuel E. Tompkins, Cahoone & Co.; that the defendants had failed to render proper statements of the quantity of goods manufactured by them; that complainant believed there was a large amount due him under said contract for royalties; and that he had tried without success to obtain an inspection of the account books of defendants to ascertain what was so due him.

The bill prayed for discovery, for an account of the sums due the complainant for royalties under said contract, and for a decree against Albright and Cahoone for the amount found to be due from them to him on said account and for general relief.

Albright and Cahoone filed a joint and several answer and Tompkins a several answer to the bill.

Albright and Cahoone in their answer neither admitted nor denied that Teas was the original inventor of the patents assigned to them, but they denied that he had not free access to their books of account. They averred that they had rendered full accounts and made all payments due to Teas under the agreement set forth in the bill; that if any disputes existed between Teas and defendants, they arose from a wrong construction put in the agreement by Teas, and from unfounded claims by him as to his rights under it; that at the time of the agreement they were in litigation with Tompkins in respect to certain patents held by him for improvements in saddle-trees; that the litigation and rivalry impaired the business of all three, and that in October, 1877, they settled their differences with Tompkins and united their business with his, and it had since been carried on by the firm of Tompkins, Cahoone & Co., which had been entitled to use all the patents of both parties, and that the new firm had manufactured many goods without employing any of the improvements described in the patents of Teas, and had manufactured many to which they had applied the improvements covered by the Teas patents, in connection with those covered by patents of Tompkins and others; that Tompkins had always disputed the value and validity of the Teas patents, but that they-Albright and Cahoone-had always been anxious to fulfill their agreement with Teas, and had paid royalties on all goods to the manufacture of which it could, by any reasonable construction, be claimed that the improvements covered by the Teas patents had been applied, and that if Teas claimed more, it was because he insisted that goods made under the patents of Tompkins were infringements on his patents.

Tompkins made substantially the same denials and averments in his answer. He also averred that he was not a party to the agreement with Teas, and denied all obligations under it. He alleged that, though he had always disputed the validity of the Teas patents, he had desired to enable his partners, Albright and Cahoone, fairly to fulfill their agreement with Teas, and that it had been fulfilled, and all moneys had been paid him to which he was entitled for goods made under his patents.

Replications were filed to these answers, and the parties proceeded to take testimony. While the taking of the testimony was going on, some correspondence took place between the counsel of the parties, in which counsel for defendants specified a large number of articles which they admitted that the defendants were manufacturing under the Teas patents, and gave a list of 19 other articles manufactured by the defendants, which they contended were not made under the Teas patents, and did not, therefore, fall within the agreement between Teas and Albright and Cahoone. Thereupon the defendants filed a petition for the removal of the cause to the circuit court of the United States, in which they alleged that all the parties to the suit were citizens of the state of New Jersey, but that the suit was one arising under the patent laws of the United States, and exclusively within the cognizance of the courts of the United States, and removable under the act of March 3, 1875, (18 St. 470.) Upon this petition the cause was removed to the circuit court of the United States for the district of New Jersey. By consent of parties an interlocutory order was made in the circuit court referring the cause to a master to report the amount due the complaint, if anything, for royalty upon the articles, enumerating them, in the manufacture of which the patented improvements of the complainant were used.

Upon final hearing, the testimony having been closed, the counsel for the complainant moved the circuit court to remand the cause to the state court of chancery, and the court declaring its opinion to be that the suit was not one arising under any of the laws of the United States, but was one over which the United States courts had no jurisdiction, and that it was a suit for an accounting and relief for the settlement of controversies under a contract of which the state courts had full cognizance, ordered the cause to be remanded to the state court. To obtain a review of this order the present appeal was taken by Tompkins, Albright, and Cahoone, defendants in the circuit court.

A. Q. Keasbey and J. C. Clayton, for appellants.

Walter H. Smith, for appellee.

WOODS, J.

The contention of the appellants is that the case is one 'arising under the * * * laws of the United States,' and was, therefore, properly removable from the state to the United States courts, and should not have been remanded. It is clear, from an inspection of the bill and answers, that the case is founded upon the agreement in writing between the appellee and the appellants Albright and Cahoone, by which the former, for a consideration therein specified, transferred to the latter his interest in certain letters patent. The suit was brought to recover the consideration for this transfer, and was not based on the letters patent. The appellants insist, however, that evidence was taken in the cause by the appellee for the purpose of proviing that they were using his patented improvements in the manufacture of goods for which they paid him no royalty, and which they contended did not embody the improvements covered by his patents; that the testimony developed a controversy between the parties on the question whether the goods manufactured by the appellants under the Tompkins and other patents owned by them, were or were not infringements on the patents of appellee; consequently that questions of infringement and of the construction of the claims of appellee's patents were necessarily involved in the case, and therefore it was one arising under the patent laws of the United States. We search the bill of complaint in vain to find any averments raising these questions. It makes no issue touching the construction of the patents granted the appellee, or their validity or their infringement. The only complaint made in the bill is that the appellants were fraudulently excluding the appellee from an inspection of their books of account, and refusing to pay him the sums due for royalties under his contract. And the prayer of the bill was for a discovery, an account of what was due appellee under his contract, and a decree for the amount found to be due him. On the face of the bill, therefore, the case is not one arising under the patent laws of the United States. Wilson v. Sandford, 10 How. 99.

The testimony on which appellants rely to show the jurisdiction of the circuit court is not before us, but conceding that it discloses the controversy which appellants assert it does, the question arises, does this fact give the courts of the United States jurisdiction of the case? Tompkins is the only one of the appellants who questions the validity of the appellee's patents. But he is not a party to the contract between appellee and Albright and Cahoone, and no relief is prayed against him by the bill; and though he says in his answer that he had always disputed the value and validity of the patents of appellee, he raises no issues thereon. The fact that he is made a party defendant to the bill can, therefore, have no effect on the question in hand.

In passing on the question of jurisdiction the case is to be considered as if Albright and Cahoone were the only defendants. The appellee, before the commencement of the suit, sold and transferred to Albright and Cahoone all his title and interest in the inventions covered by his patents. The transfer was absolute and unconditional. No right, therefore, secured to the appellee in the patent by any act of congress remained in him. He had no right to prosecute any one for infringements of his patents, or to demand damages therefor or an account of profits. He was entitled to the royalties secured by his contract and nothing more. And the only question raised by the bill of complaint and the answer of Albright and Cahoone was simply this : What is the sum due the appellee from Albright and Cahoone for his royalties under his contract? In ascertaining this amount, it, of course, became necessary to inquire what goods were manufactured by the appellants under the patents of the appellee. In prosecuting this inquiry an incidental question might arise, namely, what goods were manufactured by the appellants under other patents of which they were the owners or licensees? But this incidental and collateral inquiry does not change the nature of the litigation. The fact that Albright and Cahoone had licenses to use other patents under which they were manufacturing goods, does not give them the right to litigate their cause in the United States courts because certain goods, which they asserted were made under the other patents, the appellee asserted were really made under his. The suit, notwithstanding the collateral inquiry, still remains a suit on the contract to recover royalties, and not a suit upon the latters patent. It arises solely upon the contract and not upon the patent laws of the United States. In fact, it does not appear that there is any dispute whatever between the parties in reference to the construction of the patents of the appellee. The controversy between them, as stated by the appellants themselves, is whether certain goods manufactured by them embody the invention covered by the appellee's patents. This does not necessarily involve a construction of the patents. Both parties may agree as to what the patented invention is, and yet disagree on the question whether the invention is employed in the manufacture of certain specified goods. The controversy between the parties in this case is clearly of the latter kind. The case cannot, therefore, be said to be one which grows out of the legislation of congress. Neither party asserts any right, privilege, claim, protection, or defense founded, in whole or in part, on any law of the United States. We are, therefore, of opinion that, even if we go outside the pleadings and look into the testimony, the case is not one arising under the laws of the United States, and, consequently, that the courts of the United States had no jurisdiction to entertain it.

The cases adjudged by this and other courts of the United States sustain this conclusion. In the case of Wilson v. Sandford, ubi supra, the object of the bill was to set aside a contract made by the appellant with the appellees, by which he had granted them permission to use and vend to others to be used one of Woodworth's planing-machines in the cities of New Orleans and Lafayette, and also to obtain an injunction against the further use of the machine, on the ground that it was an infringement of his patent rights. Upon this cause the court, speaking by Mr. Chief Justice TANEY, said:

title: Albright v. Teas


text: Talk:Albright v. Teas

title: Talk:Albright v. Teas


text:
Albright v. Teas/Opinion of the Court

'The dispute in this case does not arise under any act of     congress, nor does the decision depend upon the construction      of any law in relation to patents. It arises out of the     contract stated in the bill, and there is no act of congress      providing for or regulating contracts of this kind. The     rights of the parties depend altogether upon common-law and      equity principles.'

The case of Hartell v. Tilghman, 99 U.S. 547, is also in point. In that case Hartell, the complainant, alleged that he was the original patentee and inventor of a process for cutting and engraving stone, glass, metal, and other hard substances by what is known as the sand-blast process; that the defendants had paid him a considerable sum for machines necessary in the use of his invention, and had also paid him during several months the royalty which he asked for the use of the invention described in and secured by his patent; that the defendants refused to do certain other things, which the complainant charged to have been a part of the consideration of the contract between them, whereupon he had forbidden them further to use his invention, and that the defendants had disregarded this prohibition. The bill prayed for an injunction, an account of profits, and damages.

The defendants admitted the validity of the patent, their use of it, and their liability for its use under their contract with the complainant, and offered to perform all that the contract required them to perform. All the parties were citizens of the same state.

Upon this case the question of the jurisdiction of the United States courts was raised, and this court, after a review of several cases bearing on the subject, held that the suit was not one arising under the laws of the United States, and that the circuit court had no jurisdiction of the case, and reversed its decree, and remanded the cause, with directions to dismiss the bill.

The argument against the jurisdiction in the case under consideration is stronger than in the two cases above referred to. In each of these cases the object of the complaint in filing the bill was to go behind the agreement under which the defendant had contracted for the right to use the complainant's invention, and to obtain an injunction against the defendant as an infringer. In this case the appellee admits the contract to be in force, and simply seeks to compel its performance.

The following cases cited by this court in Hartell v. Tilghman are in accord with the views we have expressed: Goodyear v. India Rubber Co. 4 Blatchf. 63; Merserole v. Union Paper Collar Co. 6 Blatchf. 356; Blanchard v. Sprague, 1 Cliff. 288; Hill v. Whitcomb, 1 Holmes, 317.

From the conclusions reached by us, it follows that the decree of the circuit court remanding the cause to the state court must be affirmed.

title: Albright v. Teas/Opinion of the Court


text: Talk:Albright v. Teas/Opinion of the Court


text:
United States v. Wilson (106 U.S. 620)

[Syllabus from page 620 intentionally omitted]

[Statement of Case from pages 620-622 intentionally omitted]

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

No counsel for appellee.

WAITE, C. J.

title: United States v. Wilson (106 U.S. 620)


text:
Nets to Catch the Wind/A Proud Lady

Hate in the world's hand Can carve and set its seal Like the strong blast of sand Which cuts into steel.

I have seen how the finger of hate Can mar and mold Faces burned passionate And frozen cold.

Sorrowful faces worn As stone with rain, Faces writhing with scorn And sullen with pain.

But you have a proud face Which the world cannot harm, You have turned the pain to a grace And the scorn to a charm.

You have taken the arrows and slings Which prick and bruise And fashioned them into wings For the heels of your shoes.

From the world's hand which tries To tear you apart You have stolen the falcon's eyes And the lion's heart.

What has it done, this world, With hard finger tips, But sweetly chiseled and curled Your inscrutable lips?

title: Nets to Catch the Wind/A Proud Lady


text: Talk:United States v. Wilson (106 U.S. 620)


text:
United States v. Wilson (106 U.S. 620)/Opinion of the Court

We are not satisfied that the certificates of indebtedness, on account of which the United States have assessed the taxes petitioned for, were calculated or intended to circulate or to be used as money. They were not, therefore, taxable as 'circulation' under the third clause of section 3408 of the Revised Statutes.

The decree dismissing the petition of intervention is affirmed.


text: Talk:United States v. Wilson (106 U.S. 620)/Opinion of the Court


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County of Madison v. Warren

''Chas. P. Wise'', for plaintiff in error.

T. C. Mather, for defendant in error.

WAITE, C. J.

title: County of Madison v. Warren


text: Talk:County of Madison v. Warren

title: Talk:County of Madison v. Warren


text:
County of Madison v. Warren/Opinion of the Court

This is a case tried and determined by the court without the intervention of a jury. The record does not show any stipulation in writing waiving a jury. The errors assigned all relate to rulings of the court on the trial, excepted to at the time and presented by bill of exceptions. The rule is well settled that if a written stipulation waiving a jury is not in some way shown affirmatively in the record, none of the questions decided at the trial can be re-examined here on writ of error. Kearney v. Case, 12 Wall. 283; Gilman v. Illinois & Mississippi Tel. Co. 91 U.S. 614; Boogher v. ''New York Life Ins. Co. 103 U.S. 96; Hodges v. Easton'', 1 SUP. CT. REP. 307.

For this reason, and without passing on any of the questions presented by the assignment of errors, we affirm the judgment.


text: Talk:County of Madison v. Warren/Opinion of the Court


text:
Russell v. Williams

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

C. L. Woodbury, for defendant in error.

BRADLEY, J.

title: Russell v. Williams


text: Talk:Russell v. Williams

title: Talk:Russell v. Williams


text:
Russell v. Williams/Opinion of the Court

This is an action brought for the recovery of duties alleged to have been illegally imposed. The following is the agreed statement of facts, so far as necessary to understand the case:

The plaintiffs, in February and April, 1871, imported into     the port of Boston from Liverpool 988 packages of tea, and      entered the same in warehouse under bond. At various     subsequent dates the plaintiff withdrew these teas for      consumption. These teas were produced in China. The defendant     assessed and plaintiffs paid to the defendant, as collector      of customs, duties thereon at the rate of 15 cents per pound,      and in addition a duty of 10 per cent. ad valorem, paying the     latter amount under protest. The defendant assessed and     exacted the duty of 15 cents per pound under the provisions      of section 21 of the act of July 14, 1870, (16 St. 262,)      which provides that after the thirty-first day of December,      1870, in lieu of the duties now imposed by law on the      articles hereinafter enumerated or provided for imported from      foreign countries, there shall be levied, collected, and paid      the following duties and rates of duties, that is to say, on      teas of all kinds, 15 cents per pound. The defendant assessed     and exacted the additional duty of 10 per cent. ad valorem     under the provision of section 6 of the act of March 3, 1865,      (13 St. 493,) which provides that 'there shall be hereafter      collected and paid on all goods, wares, and merchandise of      the growth or produce of countries [east] of the Cape of Good      Hope (except raw cotton and raw silk as reeled from the      cocoon, or not further advanced than tram, thrown, or      organzine) when imported from places west of the Cape of Good      Hope, a duty of 10 per cent. ad valorem in addition to the     duties imposed on any such articles when imported directly      from the place or places of their growth or production.'

The circuit court gave judgment for the plaintiff, and the case is brought here by writ of error. The sole question is whether the additional duty of 10 per cent. ad valorem was or was not lawfully exacted; and this depends on the question whether the provision of the act of 1865, for the payment of 10 per cent. on goods produced in countries east of the Cape of Good Hope when imported from places west of the Cape, was a general commercial regulation for the encouragement of direct trade with those countries, as well as for the benefit of American shipping, or whether it was intended simply as an increase of duties for purposes of revenue. If the former, it would be independent of the duties imposed on the articles, and would not be repealed by a modification of them; if the latter, the result might be different. We are of opinion that it was intended as a general regulation of commerce. The object of the law was to favor direct importation from countries east of the Cape, without regard to the amount of duties imposed on the articles imported. These might be more, or might be less, or might be nothing; yet, the 10 per cent. ad valorem was to be paid if the articles were imported from places west of the Cape. This would incidentally benefit our own shipping, as that principally employed in the direct trade; whereas importation of the same goods to European ports, and thence to this country, would generally be made in foreign vessels. The law in various forms has been in existence since 1861. The successive enactments were as follows:

St. August 5, 1861, c. 45, § 3: 'That all articles, goods,     wares, and merchandise imported from beyond the Cape of Good      Hope in foreign vessels, not entitled by reciprocal treaties      to be exempt from discriminating duties, tonnage, and other      charges, and all other articles, goods, wares, and      merchandise not imported direct from the place of their      growth or production, or in foreign vessels, entitled by      reciprocal treaties to be exempt from discriminating duties,      tonnage, and other charges, shall be subject to pay, in      addition to the duties imposed by this act. 10 per centum ad     valorem: provided, that this rule shall not apply to goods,      wares, and merchandise imported from beyond the Cape of Good      Hope in American vessels.' 12 St. 293.

St. July 14, 1862, c. 163, § 14: 'That from and after the day     and year aforesaid there shall be levied, collected, and paid      on all goods, wares, and merchandise of the growth or produce      of countries beyond the Cape of Good Hope, when imported from      places this side of the Cape of Good Hope, a duty of 10 per      cent. ad valorem, and in addition to the duties imposed on     any such articles when imported directly from the place or      places of their growth or production.' 12 St. 557.

The act of March 3, 1863, c. 77, § 2, simply exempted from the operation of the law cotton and raw silk as reeled from the cocoon. The eighteenth section of the new tariff act of June 30, 1864, c. 171, repealed and re-enacted the Cape law of 1862, only changing the words 'beyond the Cape' to 'east of the Cape,' and the words 'this side' to 'west.' The act of March 3, 1865, c. 80, § 6, (which is the law now under consideration,) is set out in the statement of facts. This statute remained in force until supplied by the third section of the tariff act of 1872, which was couched in the same terms, (only adding wool to the excepted articles,) and is still in force.

It will be observed that the first of these laws (that passed in 1861) imposed the additional 10 per cent. ad valorem on goods imported in foreign vessels from beyond the Cape unless they were exempt from discriminating duties by reciprocal treaty, and goods imported in American ships were ex industria exempted from the burden. But it is obvious that this law would have failed to reach the object intended, since it would have been a dead letter in all cases where we had reciprocal treaties with other nations placing their ships on an equality with our own. The next enactment, therefore, left out the reference to foreign ships and propounded the regulation in the form which has ever since been substantially followed. It imposed the additional 10 per cent. ad valorem on the products of the countries beyond, or east of, the Cape of Good Hope, when imported from places this side, or west of, the Cape. By this means the direct trade was distinctly favored, and, without expressly making any discrimination between domestic and foreign vessels, the desired encouragement in favor of the former was substantially attained.

It will also be observed that the provision was successively renewed in the different customs laws without regard to the modifications made in the duties themselves, or the changes made in the free list. It was very early contended by importers that the law was not intended to affect goods which were on the free list, and exempt from any duty-a position somewhat plausible from the words of the law, which were these: 'A duty of 10 per cent. ad valorem in addition to the duties now imposed on any such articles.' It was argued that the 10 per cent. could not be said to be 'in addition to the duties now imposed' where no duties were imposed. But such a construction would evidently have defeated the purpose of the law; and accordingly, it was decided by this court in the case of Hadden v. The Collector, 5 Wall. 107, that the act of 1862 (which was then under consideration) did apply to goods which at the date of the act were duty free, as well as to those which were subject to duty. Reliance was placed in that case, it is true, on the literal phraseology of the law; but the judgment of the court was in conformity with the clear intent of the legislature, as we have supposed it to be. The same conclusion was come to in the case of Sturges v. The Collector, 12 Wall. 19, in expounding the act of 1865, the one now before us. The court, speaking through Mr. Justice CLIFFORD, referred to the evident purpose of congress, not only to augment the revenue, but to make a discrimination 'in favor of the direct trade.' Pages 26, 27.

In conformity with the principle of these decisions, we are of opinion that the law in question continues in force in reference to all goods not expressly exempted from its provisions, whether dutiable or free, and whether new duties imposed are declared to be in lieu of all other duties or not. Such a declaration is a mere formula to indicate that the duties newly imposed are to take the place of and supersede the previous duties specially imposed in the tariff schedules, and not to abrogate any general commercial regulations not expressly mentioned. The duties on tea have been several times changed since 1861; but in our view, these changes have only had reference to the ordinary duties imposed for the purposes of revenue only, and not to the standing regulation which we are considering. In 1861, the regular duty on tea was fixed at 15 cents per pound; in 1864, at 25 cents; in 1870, at 15 cents; and in 1872 it was placed with coffee on the free list. In 1861, 1864, and 1870, the duty was fixed in the general tariff laws of those years respectively; the two first of which also contained the Cape clause discriminating in favor of direct importation. The tariff act of 1870 did not re-enact this clause, but neither was it repealed; it remained in force as enacted in 1865 until re-enacted in the general tariff act of 1872. We do not think that it was necessary to re-enact it in 1870 in order to make it operative upon those imports within its scope, the duties on which were revised by that act. The object of that revision was to readjust the regular schedule of duties, not to interfere with the Cape rule as a regulation of commerce, or any other general regulation not expressly mentioned or referred to in the act, and not repugnant to its provisions. Both laws could stand together without repugnancy. The Cape rule contained in the act of 1865 could only be regarded as repealed by implication, if repealed at all; and considering the object and purpose of the rule, such an implication was not necessarily involved in the act of 1870, and therefore will not be inferred.

It is urged, however, that the case of Gautier v. Arthur, 104 U.S. 345, decides adversely to the view now expressed. But an examination of that case will show that the principle of construction which we have suggested was approved in the opinion of the court. That was the case of plumbago imported in a French vessel direct from Ceylon in 1873. The act of June 6, 1872, had exempted plumbago from all duty, but the seventeenth section of the act of 1864 had imposed posed a discriminating duty of 10 per cent. ad valorem, in addition to the duties imposed by law on all goods imported in foreign vessels, except where by treaty such vessels were entitled to the same privileges as American vessels. The court intimated that if the act of 1872 had done nothing more than to exempt the article from duty, the act of 1864 would still be operative. The court, in its opinion, says: 'A construction of the section, in harmony with this view, is not an unreasonable one. In our judgment it best carries out the purposes of the act imposing a discrimination; and it comforms to the construction which this court, in Hadden v. The Collector, reported in 5 Wall. 107, gave to the succeeding section of the same act.' The opinion then goes on to notice that the act of 1872 does contain something more; that the general repealing clause repeals all acts and parts of acts inconsistent with its provisions, excepting certain other acts, among which the discriminating section of the act of 1864 is not mentioned; and the opinion adds: 'Both from * the general language of the repealing clause, and the enumeration of the provisions of acts excepted from it, we are forced to conclude that it was the intention of congress to put an end, so far as the free list in the fifth section of the act of 1872 is concerned, to the operation of the discriminating act of 1864.' It is only necessary to observe that the act of July 14, 1870, on which the defendants in error rely in respect to the duty on teas, contained no such repealing clause. We do not see, therefore, that the case of Gautier v. Arthur contravenes the conclusion to which we have come.

The judgment of the circuit court must be reversed, and the cause remanded with directions to award a new trial.


text: Talk:Russell v. Williams/Opinion of the Court


text:
United States v. Harris (106 U.S. 629)

Section 5519 of the Revised Statutes of the United States declares:

'If two or more persons in any state or territory conspire or go in disguise upon the highway or on the premises of another for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any state or territory from giving or securing to all persons within such state or territory the equal protection of the laws, each of said persons shall be punished by a fine of not less than $500 nor more than $5,000, or by imprisonment, with or without hard labor, not less than six months nor more than six years, or by both such fine and imprisonment.'

This section was originally a part of section 2 of the act of April 20, 1861, (17 St. 13, 14.)

At the November term, 1876, of the United States circuit court for the western district of Tennessee, an indictment, based on this section, was teturned by the grand jury against one R. G. Harris and 19 others. The indictment contained four counts. The first count charged as follows:

'That R. G. Harris, [and 19 others, naming them,] yeomen of the county of Crockett, in the state of Tennessee, and all late of the county and district aforesaid, on, to-wit, the fourteenth day of August, in the year of our Lord one thousand eight hundred and seventy-six, in the county of Crockett, in said state and district, and within the jurisdiction of this court, unlawfully, with force and arms, did conspire together with certain other persons whose names are to the grand jurors aforesaid unknown, then and there, for the purpose ofdepriving Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, then and there being citizens of the United States and of said state, of the equal protection of the laws, in this, to-wit, that therefore, to-wit, on the day and year aforesaid, in said county, the said Robert R. Smith, william J. Overton, George W. Wells, Jr., and P. M. Wells, having been charged with the commission of certain criminal offenses, the nature of which said criminal offenses being to the grand jurors aforesaid unknown, and having upon such charges then and there been duly arrested by the lawful and constituted authorities of said state, to-wit, by one William A. Tucker, the said William A. Tucker then and there being a deputy sheriff of said county, and then and there acting as such; and having been so arrested as aforesaid, and being then and there so under arrest and in the custody of said deputy sheriff as aforesaid, they, the said Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, were there and then by the laws of said state entitled to the due and equal protection of the laws thereof, and were then and there entitled under the said laws to have their persons protected from violence when so then and there under arrest as aforesaid. And the grand jurors aforesaid, upon their oaths aforesaid, do further present that the said R. G. Harris, [and 19 others, naming them,] with certain other persons whose names are to the said grand jurors unknown, did then and there, with force and arms, unlawfully conspire together as aforesaid then and there for the purpose of depriving them, the said Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, of their rights to the due and equal protection of the laws of said state, and of their rights to be protected in their persons from violence while so then and there under arrest as aforesaid, and while so then and there in the custody of the said deputy sheriff, and did then and there deprive them, the said Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, of such rights and protection, and of the due and equal protection of the laws of the said state, by then and there, while so under arrest as aforesaid, and while so then and there in the custody of the said deputy sheriff as aforesaid, beating, bruising, woulding, and otherwise ill-treating them, the said Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.'

The second count charged that the defendants, with force and arms, unlawfully did conspire together for the purpose of preventing and hindering the constituted authorities of the state of Tennessee, to-wit, the said William A. Tucker, deputy sheriff of said county, from giving and securing to the said Robert R. Smith and others, naming them, the due and equal protection of the laws of said state, in this, to-wit, that at and before the entering into said conspiracy, the said Robert R. Smith and others, naming them, were held in the custody of said deputy sheriff by virtue of certain warrants duly issued against them, to answer certain criminal charges, and it thereby became and was the duty of said deputy sheriff to safely keep in his custody the said Robert R. Smith and others while so under arrest, and then and there give and secure to them the equal protection of the laws of the state of Tennessee; and that the defendants did then and there conspire together for the purpose of preventing and hindering the said deputy sheriff from then and there safely keeping, while under arrest and in his custody, the said Robert R. Smith and others, and giving and securing to them the equal protection of the laws of said state.

The third count was identical with the second, except that the conspiracy was charged to have been for the purpose of hindering and preventing said William A. Tucker, deputy sheriff, from giving and securing to Robert R. Smith alone the due and equal protection of the laws of the state.

The fourth count charged that the defendants did conspire together for the purpose of depriving said P. M. Wells, who was then and there a citizen of the United States and the state of Tennessee, of the equal protection of the laws, in this, to-wit: said Wells having been charged with an offense against the laws of said state, was duly arrested by said Tucker, deputy sheriff, and so being under arrest was entitled to the due and equal protection of said laws, and to have his person protected from violence while so under arrest; and the said defendants did then and there unlawfully conspire together for the purpose of depriving said Wells of his right to the equal protection of the laws, and of his right to be protected in person from violence while so under arrest, and 'did then and there deprive him of such rights and protection, and of the due and equal protection of the laws of the state of Tennessee, by then and there, and while he, the said P. M. Wells, was so then and there under arrest as aforesaid, unlawfully beating, bruising, wounding, and killing him, the said P. M. Wells, contrary to the form of the statute in such case made and provided,' etc.

The defendants demurred to the indictment on several grounds, among them the following:

(1) 'Because the offenses created by section 5519 of the Revised Statutes of the United States, and upon which section the aforesaid four counts are based, are not constitutionally within the jurisdiction of the courts of the United States, and because the matters and things therein referred to are judicially cognizable by state tribunals only, and legislative action thereon is among the rights reserved to the several states and inhibited to congress by the constitution of the United States;' and—

(2) 'Because the said section 5519 of the Revised Statutes of the United States, in so far as it creates offenses and imposes penalties, is in violation of the constitution of the United States, and an infringement of the rights of the several states and the people thereof.'

The case was heard in the circuit court on the demurrer to the indictment, and, as the record states,--

'Came the district attorney, on behalf of the United States, and came also the defendants indicted herein, by their attorneys, when this case came on to be heard before the Hon. JOHN BAXTER, circuit judge, and the Hon. CONNALLY F. TRIGG, district judge, presiding, on the demurrer of the said defendants, filed herein on the fifth day of February, A. D. 1878, to the indictment herein, and the said judges being divided in opinion on the point of the constitutionality of the section of the Revised Statutes of the United States on which the said indictment is based, being section No. 5519 thereof, * * * after argument, hereby direct the said point * * * to be certified to the supreme court of the United States for its decision thereon, and the same is accordingly ordered. And it is further ordered by the court that this case be continued until the decision of said supreme court in the premises.'

Section 651 of the Revised Statutes, which authorizes certificates of division of opinion, declares:

'Whenever any question occurs on the trial or hearing of any criminal proceeding before a circuit court, upon which the judges are divided in opinion, the point upon which they disagree shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges, and certified, under the seal of the court, to the supreme court at their next session; but nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, further proceedings can be had with out prejudice to the merits.'

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

No counsel for Harris and others.

WOODS, J.

title: United States v. Harris (106 U.S. 629)


text: Talk:United States v. Harris (106 U.S. 629)