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Hopt v. People (114 U.S. 488)

This is a writ of error to reverse a judgment rendered by the supreme court of the territory of Utah, affirming, upon appeal from the district court of the Third judicial district of the territory, a judgment and sentence of death upon a conviction of murder. The decisions of this court, after former trials of the case, are reported in 104 U.S. 631, and 110 U.S. 574; S.C.. 4 SUP. CT. REP. 202.

One of the errors now assigned in the brief filed in behalf of the plaintiff in error is that the record did not comply with the statute of Utah requiring that the written charges of the court should form part of the record. In the copy of the record of the district court contained in the record transmitted by the supreme court of the territory to this court, the statement relating to the charge of the court to the jury, and the exceptions to the charge, are as follows: On May 5th the case was finally argued by the counsel for either party, 'and the court charged the jury; defendant's counsel except generally to the instructions given by the court on its own motion, and exception allowed; and a verdict of guilty of murder in the first degree was returned and entered.' And on May 16th, 'the time allowed by law for filing the bill of exceptions herein having passed, the court, upon application of defendant's counsel, refuses to further extend the time. Defendant excepts.' The record also shows that on May 10th, after judgment and sentence, a notice of appeal was filed by the defendant with the clerk, and a copy of the notice served on the district attorney.

Appended to the brief filed in this court in behalf of the United States is an affidavit, taken January 7, 1885, of the deputy clerk of the district court, testifying that the counsel for the defendant at the trial in that court, who requested him to prepare the transcript of record on appeal to the supreme court of the territory, requested him to omit the written charge given by the court to the jury at the trial, and told him that no point was to be made by the defendant upon the instructions in Childs v. Frazee, 15 S.C.. 612, in 1880, interest was recovered against a that request was delivered by the clerk to the counsel, and by them filed with the clerk of the supreme court of the territory; that by reason alone of that request the written charge was omitted from the record; and that no bill of exceptions was ever filed, or offered to be filed, or presented to the judge of the district court for settlement.

WAITE, C. J., and HARLAN, J., dissent.

R. N. Baskin, for plaintiff in error.

Asst. Atty. Gen. Maury, for defendant in error.

GRAY, J.

title: Hopt v. People (114 U.S. 488)


text: Talk:Hopt v. People (114 U.S. 488)

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

title: Talk:Hopt v. People (114 U.S. 488)


text:
Hopt v. People (114 U.S. 488)/Opinion of the Court

By the Utah Code of Criminal Procedure of 1878, the charge of the court to the jury 'must be reduced to writing before it is given, unless by mutual consent of the parties it is given orally.' Section 257, cl. 7. Within five days after judgment upon a conviction, the clerk must annex together and file the papers necessary to constitute the record, including '(4) a copy of the minutes of trial; (5) a copy of the minutes of the judgment; (6) the bill of exceptions, if there be one; (7) the written charges asked of the court and refused, if there be any; (8) a copy of all charges given and of the indorsements thereon.' Section 339. The defendant may either take exceptions to the instructions of the court to the jury in matter of law at the trial of an indictment; or he may, without a bill of exceptions, appeal from a final judgment of conviction, on any question of law presented by written charges requested, given, or refused, or any other question of law appearing on the record. Sections 309, 315, 358, 360. The manner of taking an appeal is by filing a notice with the clerk of the court in which the judgment is entered, and serving a copy thereof upon the attorney of the adverse party. Section 363.

The statute expressly and peremptorily requires that the charge of the court to the jury shall be reduced to riting before it is given, unless by mutual consent of the parties it is given orally; and, as has already been adjudged by this court in this case, the giving, without the defendant's consent, of any oral charge or instruction to the jury, is an error, for which judgment must be reversed. 104 U.S. 631. The requirement of the statute that the clerk of the court in which the trial is had shall include, in making up its record, a copy of all written charges, as well as of the minutes of the trial, is equally positive. The object of these provisions, requiring the instructions to be in writing and recorded, is to secure an accurate and authentic report of the instructions, and to insure to the defendant the means of having them revised in an appellate court. When the record shows that the jury were charged by the court, nothing can excuse the omission to set forth in the record a charge in writing, except express consent of the defendant that it should be given orally, and that consent must appear of record. The record must either set forth the charge in writing, or a waiver by the defendant of such a charge. If it does neither, it fails to show what is made by express statute an essential requisite to the validity of the conviction, and contains upon its face a fatal error, of which the defendant may avail himself by appeal, without tendering a bill of exceptions.

The duty of making up a complete record is the duty of the clerk; and the duty of seeing that the record contains everything that actually took place, necessary to support the conviction, is the duty of the district attorney. If the copy of the record made up by the clerk of the district court, and entered by the defendant in the supreme court of the territory, was defective in a material point, the district attorney might have moved in the latter court to have the defect supplied by certiorari or other proper process. The defendant and his counsel were under no obligation to cure, and cannot be held to have waived, any defect in the record, but were entitled to take advantage, either in the supreme court of the territory or in this court, of any error apparent upon the record as it stood in that court. Applying these principles to the record before us, the conviction cannot be supported. The record merely states that the court charged the jury, and does not state whether the charge was written or oral. If the charge was written, it should have been made part of the record, which has not been done. If it was oral, the consent of the defendant was necessary, and that consent does not appear of record, and cannot be presumed.

It is hardly necessary to add that the affidavit taken since the entry of the case in this court cannot be considered. The lawfulness of the conviction and sentence of the defendant is to be determined by the formal record, made up and transmitted as required by law, of what was done in his presence at the trial in open court; and not by ex parte affidavits of private conversations supposed to have afterwards taken place in his absence between the counsel and the clerk.

Judgment reversed, and case remanded, with directions to order the verdict to be set aside and a new trial granted.

WAITE, C. J., and HARLAN, J., dissented.


text: Talk:Hopt v. People (114 U.S. 488)/Opinion of the Court


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Atlantic Phosphate Company v. Grafflin

Samuel Lord, for plaintiff in error.

C. N. West and ''Jas. Lowndes'', for defendant in error.

BLATCHFORD, J.

title: Atlantic Phosphate Company v. Grafflin


text: Talk:Atlantic Phosphate Company v. Grafflin


text:
Atlantic Phosphate Company v. Grafflin/Opinion of the Court

This is an action at law, brought in the circuit court of the United States for the district of South Carolina, by John C. Grafflin against the Atlantic Phosphate Company, a South Carolina corporation. The complaint sets forth, as a first cause of action, that the defendant is indebted to the plaintiff in the sum of $2,792.60, with interest from February 24, 1881, 'the same being due to the plaintiff for a cargo of kainit, sold and delivered by the plaintiff to the defendant,' on that day, 'at the special instance and request of the defendant.' It sets forth four other like causes of action, for cargoes of kainit, amounting to $3,347.55, March 3, 1881; $1,743.37, March 15, 1881; $5,083.53, March 16, 1881; and $2,483.37, March 18, 1881. Bills of particulars are annexed, showing the vessels, quantities, and prices. The total amount is $15,450.42; and there is added a cause of action for that sum, with interest, as money advanced, laid out, and expended by the plaintiff for the use of the defendant, at its special instance and request. The cargoes are stated to amount to 2,500 tons.

The answer contains a general denial of all the causes of action. It also avers a purchase by the defendant, in May, 1880, through one Dunan, of Baltimore, representing himself as agent of one Radde, of Hamburg, of 2,500 tons of kainit, to be shipped between August 1, 1880, and October 31, 1880; further purchases by it, afterwards, from the same parties, of 1,550 tons, for future shipment, all by January 1, 1881; the receipt by it of, and payment for, 1,080 tons on the 2,500 tons' contract; its receipt of the five cargoes sued for; and its willingness to pay for the cargoes according to the contracts therefor, subject to its claims for damages for the non-performance, by the vendors, of the contract of May, 1880, in that the cargoes were not shipped within the time and in the manner specified in the contract, but arrived when the business of the year was over, and when the goods were much depreciated in value; which damages, amounting to $9,586.82, it claims to recoup.

The answer also avers that the defendant purchased the cargoes mentioned in the complaint, at Hamburg, under the contract, and received the same under the circumstances above set forth, and was, from the time of the shipment of the kainit, the owner thereof; that the invoices for all of the cargoes shipped by Radde to the defendant were in the name of Dunan; that on January 25, 1881, Dunan requested the defendant to return his invoices and substitute similar ones in the name of Grafflin, and it did so, but it never made any new contract, in regard to any of the cargoes, with Grafflin; that it never received any notice of the assignment of the contract or cargoes to Grafflin; that, if Grafflin advanced money on the cargoes, he did so subject to the rights of the defendant under the contract, and was conversant with those rights; and that Grafflin was the real principal in the contract. To the counter-claim so set up the plaintiff replied, alleging that he, and not Radde, owned the kainit; that it was sold and delivered to, and accepted and received by, the defendant as the property of the plaintiff, free from the claim made for recoupment; and that he and the defendant never occupied any other relations than those of seller and buyer of the kainit, set forth in the complaint, at the prices agreed to be paid. The case was tried before a jury, and resulted in a verdict for the plaintiff for the $15,450.42, with interest on the amount of each cargo from the date of its delivery; and there was a judgment accordingly, to review which the defendant brings this writ of error.

The bill of exceptions embodies all the evidence, by a stipulation between the parties, made in this court. There was no dispute as to any material question of fact. The transactions originated in the following letter, dated April 29, 1880, from Dunan, at Baltimore, to Pelzer, Rodgers & Co., at Charleston, they being the general agents there of the defendant: 'Radde cables sell Atlantic 2,500 tons best quality Eagle mine genuine raw kainit, guarantied to test not below 24 per crnt. sulphate of potash by the German chemist, Dr. Ulex; to be shipped during the summer and fall months,-say from August to October, inclusive,-for $7.50 per ton of 2,240 lbs. in taking Hamburg weights. The kainit to be delivered at your Atlantic Phosphate Company's wharf, Ashley river, port of Charleston, S.C.. The price of $7.50 per ton includes cost, freight, and insurance to your wharf. From the price, as the quantity is large, I will rebate 10 cents per ton. Terms of payment, cash on delivery of each cargo.' Pelzer, Rodgers & Co. replied, by writing to Dunan, on May 10, 1880, as follows: 'We will take 2,500 tons of best kainit, as described by you, to test not less than 24 per cent. sulphate of potash, to be delivered at our wharf on Ashley river, at seven dollars 50-100 per ton of 2,240 lbs.'

To enable Radde to send the cargoes to the defendant, the plaintiff, who resided in Baltimore, at the request of Dunan, and for a compensation of 1 per cent. commission, paid to him by Dunan, sent to Radde, at Hamburg, a credit with Brown, Shipley & Co., of London, for the amounts of five cargoes, under which Radde drew on Brown, Shipley & Co., paying them their commission, and Brown, Shipley & Co. drew on the plaintiff. They received the shipping documents from Radde and sent them to the plaintiff, and he paid their drafts. He directed them to ship the cargoes to Charleston. The shipping documents consisted of bills of lading, charter-party, consular invoices for entry at the custom-house, certificates of analysis and weight in Hamburg, and memorandum invoices. The declarations before the United States consul, at Hamburg, were made by Radde, as owner, and they named the plaintiff as the consignee at Charleston; and they and the consular certificates named Charleston as the intended port of entry. The invoices referred to in and annexed to the consular certificates named the plaintiff as the consignee. The bills of lading set forth that the kainit was to be delivered at the port of Charleston, at the Atlantic Phosphate Company's wharf, on Ashley river, 'unto Mr. J. C. Grafflin, or his assigns.' The Hamburg declarations and invoices and consular certificates were presented by the plaintiff at the custom-house at Baltimore, and he made oaths to entries before a deputy-collector, at the custom-house there, that the goods were consigned to 'J. C. Grafflin, Charleston,' and the papers were verified by the collector of customs at Baltimore, and were passed by the cashier of customs at that custom-house. These papers and the bills of lading, in this condition, for all the cargoes, (the bills of lading probably indorsed in blank by the plaintiff, though this is not clear,) were put by the plaintiff into the hands of Dunan, at Baltimore, and Dunan sent them all to Pelzer, Rodgers & Co., before January 25, 1881, with invoices made out in his (Dunan's) name, for the five cargoes in question. On that day Dunan wrote to the company as follows: 'Atlantic Phosphate Co., Charleston, S.C.. GENTLEMEN: I wish to withdraw all my invoices sent you with the documents for these cargoes, and substitute instead the inclosed invoices from Mr. John C. Grafflin, as all these cargoes came out in his name, and you will please return to me my invoices by return mail. In remitting for these cargoes, please remit in name of John C. Grafflin, through me. In the future I will always furnish invoice in favor of name in which the cargo comes forward. I inclose you herewith Mr. John C. Grafflin's invoices for the cargoes which are now coming forward, and for which you have the documents.' In compliance with this request, the invoices which Dunan had sent were returned to him by the defendant, and it retained the invoices from Grafflin. All this took place before any of the five cargoes arrived at Charleston. The following is the form of one of the substituted invoices: 'BALTIMORE, January 15, 1881. Atlantic Phosphate Co., Charleston, S.C.., bought of John C. Grafflin: A cargo of genuine kainit, shipped per Batavia, Capt. G. Linde, to Charleston, S.C.., weighing 400 tons, sold at $7.50 per ton,' etc. the total amount of these $7.50 per ton,' etc. The total amount of these this time, Pelzer, Rodgers & Co. had in their possession a power of attorney, dated August 31, 1880, executed by the plaintiff, appointing the members of that firm, five in number, by name, or either of them, his attorneys, to enter in his name, at the custom-house at Charleston, all merchandise which might thereafter be imported by him, or which might arrive consigned to him, or in which he might be interested as principal or otherwise. When the several cargoes arrived at Charleston, Mr. Inglesby, one of the firm of Pelzer, Rodgers & Co., acting under this power of attorney, entered them at the customhouse there in the name of the plaintiff. The entries described the merchandise as 'imported by John C. Grafflin,' and weresigned, 'JOHN C. GRAFFLIN, per THOS. S. INGLESBY, Atty.;' and Inglesby took the entry oaths, as agent of the owner, to the invoices and bills of lading presented on entry, and in each swore that, to the best of his knowledge, J. C. Grafflin was the owner of the goods 'mentioned in the annexed entry.'

On these papers the defendant received and accepted the cargoes, and then refused to pay the plaintiff for them. He had confidence in the pecuniary responsibility of the defendant, and therefore was willing to deliver the cargoes, and waive any lien on them, and accept the defendant as his debtor. The defendant did not and does not make any complaint as to the quality of the kainit. No objection, based on a breach of the contract of May, 1880, as to the lateness of delivery, was made until after the five cargoes were received. The plaintiff, if adv sed at the time of any such claim, could have sold the cargoes elsewhere. He bought the cargoes, but he did not assume the contract, and he was under no obligation to fulfill it or to deliver the cargoes. But the defendant, in accepting the cargoes from him, on all the facts of the case, as above set forth, entered into the relation of purchaser of the cargoes from him, to be paid for on delivery, without reference to any claim against Radde or Dunan for a breach of the contract of May, 1880. It was admitted, at the trial, that the damages for such breach were $10,000.

At the close of the trial the defendant prayed the following instructions to the jury, each of which was refused by the court, and to each refusal the defendant excepted: '(1) If, from the testimony, the jury believe that the Atlantic Company never requested Grafflin to sell them these cargoes, and that there was no agreement between Grafflin and the Atlantic Company for the sale by Grafflin, and the purchase by the Atlantic Company, of these cargoes, the action cannot be supported, and the verdict should be for the defendant. (2) If, from the evidence, the jury are satisfied that the Atlantic Company purchased these cargoes from Radde, and that all that Grafflin did was to advance money to Radde or furnish a credit to him, and that he received the bills of lading from Radde as security for his advances, then Grafflin had only a special property, and his transfer of the bills of lading to the Atlantic Company was not a sale, and he cannot maintain an action for goods sold and delivered. (3) To produce a change of property from the shipper to the consignee, it is essentially necessary that the goods should have been sent in consequence of some contract between the parties by which the one agreed to sell and the other to buy. (4) If the jury believe that Grafflin was aware of the contract of sale made by Dunan for Radde to the Atlantic Company, and that the transfer of the bills of lading by Grafflin to the Atlantic Company was in pursuance of, and in execution of, that contract, then there was no sale by Grafflin to the Atlantic Company, and the plaintiff cannot recover. (5) If Grafflin had a lien on these cargoes for his advances to Radde, and parted with the goods without any agreement by the Atlantic Company to pay his advances, he has lost his lien and must look to the party to whom he advanced for his redress.'

The circuit court instructed the jury as follows: 'If the jury find, from the evidence, that the defendant, through Dunan, purchased from Radde, upon a contract made between Radde and the defendant, the kainit mentioned in the pleadings and evidence, and that the plaintiff made the advances to Radde for the purchase of the kainit, and had the bills of lading and invoices made out in his name as the proof of his ownership and the amount of his advances, and forwarded to Pelzer, Rodgers & Co., his power of attorney authorizing them to enter the said merchandise in his name as owner, they bing the agents of the Atlantic Phosphate Company, and to deliver the same to the said company, which accepted the merchandise, then the jury must find for the plaintiff the amount of the plaintiff's advances on the cargoes in suit, although they may find that Radde or Dunan did not faithfully perform the contract spoken of above; the claim of the defendant for damages, if any, being against them and not against the plaintiff.' To this instruction the defendant excepted.

The jury having come in with a verdict for the plaintiff for $15,450.42, with interest from the date of the delivery of each cargo, the defendant prayed the court to instruct the jury that interest was not due on open account. The court ruled that interest was due, and so instructed the jury, and the defendant excepted. The verdict was then rendered for $15,450.42, 'with interest on the amount of each cargo from the date of delivery thereof, being five days after the date of entry,' all objection to the form being waive.

The facts of the case, and the views before stated as to the relations of the parties, show that the propositions contended for by the defendant were properly rejected, and that there was no error in the instructions to the jury. Indeed, the court might properly have directed a verdict for the plaintiff. A contract of sale by Grafflin to the defendant, and of purchase by it from him, arose, in judgment of law, out of the undisputed facts. The plaintiff had become the owner of the goods. The defendant, by the acceptance of the cargoes under the documents, was estopped from treating him as other than owner. It abandoned, so far as the plaintiff was concerned, its relation with Dunan and Radde, and its claim for damages, and cannot now alter the position of the plaintiff to his detriment. The 'advances' spoken of in the instruction given were the same as the amount of the 'invoices' there spoken of, made out in the name of the plaintiff. The amount of both was $15,450.42, and that was the amount of the recovery, being the sale price. There was no error in the form of the instruction, to the prejudice of the defendant. There having been a contract of sale, by mutual assent, and the contract having been executed by the vendor, by the delivery of the goods, the liability of the vendee to pay for them on delivery, in the absence of other terms, accrued, and the law raises an implied contract to pay interest, from delivery, on the purchase money, which was liquidated by the terms of the invoices in the name of the plaintiff, received and retained by the defendant. Such is the rule of the general commercial law. Dodge v. Perkins, 9 Pick. 368, 388; Foote v. Blanchard, 6 Allen, 221; Van Rensselaer v. Jewett, 2 N. Y. 135; Esterly v. Cole, 3 N. Y. 502. The case is not one of an open running account, but is of the class where there is a stipulated term of credit, which has expired.

We do not find anything in the decisions is South Carolina which would forbid the allowance of interest in the present case. In Rice v. Hancock, Harper, (S.C..) 393, in 1824, interest was disallowed on a book-account for goods, because, although there was a special agreement to pay for the goods in cotton in 60 days, and otherwise to pay interest after 60 days, there was no count on the agreement. A like decision was made in Schermerhorn v. Perman, 2 Bailey, 173, in 1831. In Lindsey v. Bland, 2 Speers, 30, in 1843, on a count for negroes sold, but no count for interest, interest was allowed after 12 months, because a 12-months note was to have been given. In Ancrum v. Slone, Id. 594, in 1844, the rule is stated that interest is allowable on a liability to pay money, if the sum is certain, from the time when, by construction of law, the payment is demandable. In Kennedy v. Barnwell, 7 Rich. Law, 124, in 1854, under a contract to pay a fixed sum for digging a canal, no time of payment being mentioned, interest was allowed from the completion of the work. In Kyle v. Laurens R. Co. 10 Rich. Law, 382, in 1857, interest was allowed on the value of cotton lost by a common carrier, on the ground that the cotton was a cash article at the place of delivery, and its value was taken on a cash sale, as cash lost by the plaintiff, who was, therefore, entitled to interest on the value. In Arnold v. House, 12 S.C.. 600, in 1879, and in Childs v. Frazee, 15 S.C.. 612, in 1880, interest was recovered against a purchaser of land for cash at a judicial sale.

In the present case, the objection made at the trial was not because of the want of a count for interest, but because interest was 'not due on an open account.' The case was not one of an open account, in the sense of any rule as to interest, and the holding of the court, that interest was due, was correct.

Judgment affirmed.


text: Talk:Atlantic Phosphate Company v. Grafflin/Opinion of the Court


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New Orleans Company v. Delamore

This is a writ of error to bring under review a decree of the supreme court of Louisiana reversing a decree of the Fifth district court for the parish of Orleans. The facts, as they appeared from the pleadings and evidence, were as follows:

The Canal Street, City Park & Lake Shore Railroad Company was a corporation organized under the general law of the state of Louisiana. By an ordinance of the city of New Orleans, numbered 2,264, administration series, dated August 6, 1873, the city granted to the corporation named the right of way from the neutral ground in Basin street, by certain other designated streets, and along the embankment on the western side of the Orleans canal, to the lake shore, the termini and the entire route being within the city limits. The route upon which the road was to be built was subsequently modified by ordinance numbered 2,548, administration series, dated March 25, 1874. The company constructed and used a railroad upon the right of way so granted. In the year 1876, upon a petition in bankruptcy filed by Edward B. Hampson and another, the railroad company was adjudicated bankrupt by the district court of the United States for the district of Louisiana. Besides other property and assets surrendered by the bankrupt, were 'the railroad track, all and singular, built in pursuance of the charter of the said company, and the various grants and privileges conferred upon said company by the city of New Orleans, * * * including the road-bed of main tracks and branches, and all rights and appurtenances of said railroad tracks, as well as rights of way thereto attached, * * * and all the franchises and appurtenances' of said company.

On November 29, 1876, the assignee in bankruptcy applied to the bankruptcy court for an order to sell the property above described, and other assets of the company, free and clear of all incumbrances, and on May 19, 1877, the court made the order prayed for, and directed the sale to be made on the following terms: 'One-third cash, and the balance on one and two years' credit, to be secured by mortgage on the property sold.' On July 14, 1877, the property was sold by the special master appointed by the court to Thomas H. Handy. The sale was afterwards confirmed by the court, and a deed made by the master to the purchaser for the railroad and 'all the right of way, powers, privileges, immunities, and franchises conferred and granted by the city of New Orleans to the Canal Street, City Park & Lake Railroad Company,' by the ordinances above mentioned. At the same time, and by the same act, Handy gave a mortgage on the property conveyed to him, to secure his notes given for two-thirds of the purchase money. The mortgage contained the pact de non alienando.

On January 31, 1878, a new railroad company was organized, under authority of the general corporation law of Louisiana, bearing the same name, towit, the 'Canal Street, City Park & Lake Railroad Company,' and having the same objects and purposes as the company which had been adjudicated bankrupt. To this new company, Handy, on August 16, 1878, conveyed by public act the property heretofore described, purchased by him at the bankruptcy sale of the original Canal Street, City Park & Lake Shore Railroad Company, and the purchaser assumed the mortgage of Handy and his agreement to pay the balance due from him on his purchase of the property. Before this conveyance the city of New Orleans, by an ordinance numbered 4,523, administration series, dated May 22, 1878, had granted to the second Canal Street, City Park & Lake Railroad Company the right of way upon which to lay a railroad through and on the same streets and along the same route as had been previously granted by ordinance to the first Canal Street, City Park & Lake Railroad Company.

Both Handy and the railroad company, to which he sold the property, made default in the payment of the mortgage debt, and at the suit of Elizabeth Strathman and another, holders of one of the mortgage notes made by Handy, a writ of seizure and sale was issued, and the property described in and covered by the mortgage was seized and sold to Moses Schwartz & Brother, and afterwards conveyed to them by the sheriff, by deed dated April 4, 1879. In the mean time, on March 31, 1879, the present plaintiff, the New O leans, Spanish Fort & Lake Railroad Company, had been organized under the general law of the state for the organization of corporations, and on April 9, 1879, Schwartz & Brother sold and conveyed to the last-named railroad company the railroad, 'with all and singular the right of way, powers, privileges, and immunities and franchises conferred and granted by the city of New Orleans to the Canal Street, City Park & Lake Railroad Company' by the ordinance of August 5, 1873, as amended by the ordinance of March 24, 1874, being the same property bought by Schwartz & Brother at the mortgage sale.

On November 15, 1879, George Delamore, one of the defendants, recovered a judgment in the Fifth district court for the parish of Orleans for $5,720 against the Canal Street, City Park & Lake Railroad Company, being the second company above mentioned organized under that name. Delamore, on the eleventh day of November, 1879, caused execution to issue on this judgment, which, on the eighteenth of November, the sheriff for the parish of Orleans levied on a certain frame building or structure, known as 'The Pavilion,' being on the Bayou St. John, at or near the entrance tereto into the Lake Pontchartrain, and also on 'all and singular the right of way, the powers, privileges, immunities, and franchises conferred and granted by the city of New Orleans to the Canal Street, City Park & Lake Railroad Company, under and by virtue of an ordinance of the city of New Orleans, being No. 4,523 of the administration series, adopted by the common council of the city of New Orleans on the twenty-first of May, 1878.' Thereupon the plaintiff, the New Orleans, Spanish Fort & Lake Railroad Company, filed the bill in this case in the Fifth district court for the parish of Orleans against Delamore and the sheriff, the prayer of which was for a writ of injunction against the defendants to restrain them from advertising or selling, or offering for sale, the property so levied on, as above stated. The Fifth district court allowed the injunction as prayed for, but on final hearing so modified it as only to restrain the seizure and sale of the rights and franchises enjoyed by the plaintiff, which it acquired from Moses Schwartz, and decreed that the plaintiff be quieted in the enjoyment and possession of the said road, right of way, powers, privileges, immunities, and franchises enjoyed by it and conferred upon it by ordinance of the city of New Orleans, and dissolved the injunction so far as it restrained the sale of property known as the pavilion. From this decree both parties appealed to the supreme court of Louisiana, which by its decree restored the injunction which enjoined the sale of the pavilion, and dissolved the injunction which enjoined the sale of rights and franchises of the New Orleans, Spanish Fort & Lake Railroad Company. The sole ground upon which the court based its decision and decree dissolving the injunction was that, by the proceedings in the bankruptcy court, and the sale made by its order, Handy, the purchaser, did not acquire the right of way and the privileges and franchises granted to the bankrupt corporation by the city of New Orleans, but that the same, upon the adjudication in bankruptcy, reverted to the city.

The present writ of error taken by the railroad company brings up for review so much of the decree of the state supreme court as dissolved the injunction restraining the sale of the right of way and franchises of the plaintiff.

Robert Mott and E. M. Johnson, for plaintiff in error.

C. W. Hornor and W. S. Benedict, for the defendant in error.

WOODS, J.

title: New Orleans Company v. Delamore


text: Talk:New Orleans Company v. Delamore

title: Talk:New Orleans Company v. Delamore


text:
New Orleans Company v. Delamore/Opinion of the Court

The defendant denies the jurisdiction of the court upon this appeal. We think the jurisdiction is clear. It is based on section 709 of the Revised Statutes, which provides that 'a final judgment or decree in any suit in the highest court of a state in which a decision in the suit could be had * *  * where any title, right, privilege or immunity is claimed under the constituti n or any *  *  * statute of *  *  * the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed under such constitution *  *  * or statute, *  *  * may be re-examined and reversed or affirmed in the supreme court of the United States upon a writ of error.' The plaintiff, by its petition in this case, filed in the Fifth district court of the parish of Orleans, based its demand to the relief prayed for, upon its title to the right of way, privileges, and franchises derived under the provisions of the bankrupt law of the United States, by which such right of way, privileges, and franchises were surrendered in bankruptcy, and sold and purchased under the orders and decrees of the bankrupt court. The decision of the supreme court of Louisiana was against the title thus specially claimed. The case, therefore, falls precisely into the class of suits described by the statute in which a writ of error lies to the highest court of a state.

The very question here presented was decided by this court in the recent case of ''Factors' Ins. Co. v. Murphy'', in 111 U.S. 738, S.C.. 4 SUP. CT. REP. 679, where it was held that this court had jurisdiction in error over the judgment of the supreme court of Louisiana in a suit between citizens of that state for the foreclosure of a mortgage, in which the only controversy related to the effect to be given a sale of property under an order of the bankruptcy court directing the mortgaged property of the bankrupt to be sold free of incumbrances. The case is in point and decisive of the jurisdiction of this court on the present appeal. We therefore proceed to consider the merits of the case. They are involved in the one question, whether the right of way and franchises granted by the city of New Orleans to the first Canal Street, City Park & Lake Railroad Company passed by the sale thereof made in pursuance of the decree of the bankruptcy court? The jurisdiction of the bankruptcy court to adjudicate a railroad company bankrupt and to administer its property, under the bankrupt act, has been sustained by several circuit courts of the United States. Adams v. Boston, H. & E. R. Co. 1 Holmes, 30; Sweatt v. Boston, H. & E. R. Co. 5 N. B. R. 234; Alabama & C. R. Co. v. Jones, 5 N. B. R. 97; Winter v. ''Iowa, etc., Ry. Co.'' 2 Dill. 487. No circuit court before which the question has been brought has denied the jurisdiction. As they were the courts of last resort upon this question, and valuable rights may depend upon their judgments upon this point, we think the question should be considered as settled by the authorities cited, and are unwilling at this late day to re-examine it, especially as we have no jurisdiction to do so, except in a collateral proceeding like the present.

The plaintiff contends that the right of way, with the franchise to build and use a railroad thereon for profit, was surrendered by the bankrupt corporation as a part of its property, and was sold to Handy at the bankruptcy sale, and was subsequently acquired by it by means of the claim of title above set forth. It is not contended in this case that Handy acquired the franchise to be a corporation or any other franchise except those just mentioned by virtue of his purchase at the bankruptcy sale. On the other hand, it is contended by the defendant that the right of way and the franchise to build and use a railroad thereon reverted to the city of New Orleans when the railroad company was adjudicated bankrupt, and that all that was surrendered in bankruptcy by the railroad company, and sold at the bankruptcy sale or the mortgage sale, was the railroad without right of way or other franchise.

The contention of the defendant, if sustained, would entirely destroy the value of the property as a railroad; for it is plain that a large part, if not all the line, of the railroad is laid upon the streets and public grounds of the city. If, therefore, the franchise of the right to occu y the streets and public grounds with the railroad track did not pass to the purchaser at the bankruptcy sale, then all that he took by his purchase was a lot of ties and iron rails, which he could be compelled at any time, by the order of the city authorities, to remove. If the law be as contended by the defendant in error, a judicial sale of the railroad and its franchises would be the destruction of both.

The ground upon which this view of the defendant is based is that the franchises of a railroad corporation are inalienable in Louisiana. In passing upon this question it is necessary to bear in mind the distinction between the different classes of railroad franchises. This was stated by Mr. Justice CURTIS in the case of Hall v. Sullivan R. Co. 21 Law Rep. 138, where he said: 'The franchise to be a corporation is therefore not a subject of sale and transfer unless the law by some positive provision made it so and pointed out the modes in which such sale and transfer may be effected. But the franchise to build, own, and manage a railroad and to take tolls thereon are not necessarily corporate rights. They are capable of existing in and being enjoyed by natural persons, and there is nothing in their nature inconsistent with their being assignable.' The same subject was considered by this court in the case of Morgan v. Louisiana, 93 U.S. 217, where it was held that exemption from taxation was a right personal to the railroad corporation to which it was granted, and did not pass upon a sale of its property and franchises. Mr. Justice FIELD, who delivered the opinion of the court, distinguished such an immunity from taxation from those rights, privileges, and immunities which, accurately speaking, are the franchises of a railroad company. He said: 'The franchises of a railroad corporation are rights or privileges which are essential to the operations of the corporation, and without which its works and road would be of little value. * *  * They are positive rights and privileges, without the possession of which the road of the company could not be successfully worked. Immunity from taxation is not one of these. The former may be conveyed to the purchaser of the road as part of the property of the company; the latter is personal and incapable of transfer without express statutory direction.

We are of opinion that those franchises which in the case just cited are described as necessary to the use and enjoyment of the property of a railroad company are assignable in Louisiana, and that there is no warrant in the jurisprudence of that state for holding the contrary. That the quality of being transferable attaches to such franchises of a railroad as are essential to its use and enjoyment by the company is conclusively shown by section 2396 of the Revised Statutes of Louisiana, (act 1856, p. 205,) which was in force when the first Canal Street, City Park & Lake Railroad Company was organized, and has been in force ever since. That section provides as follows: 'In addition to the powers conferred by law upon railroad companies, any railroad company established under the laws of this state may borrow, from time to time, such sum of money as may be required for the construction or repairs of any railroad, and for this purpose may issue bonds, or their obligations secured by mortgage, upon the franchises and all the property of said companies.' The authority to mortgage the franchises of a railroad company necessarily implies the power to bring the franchises so mortgaged to sale, and to transfer them with the corporeal property of the company to the purchaser. It could not be held that when a mortgage on a railroad and its franchises was authorized by law, that the attempt of the mortgagor to enforce the mortgage would destroy the main value of the property by the destruction of its franchises. Since the passage of the act of 1856, the supreme court of Louisiana has recognized the validity of the transfer to individuals of those rights and f anchises of a railroad company without which the road could not be successfully used.

In the case of Chaffee v. Ludeling, 27 La. Ann. 607, it was declared that the defendants, by their purchase at sheriff's sale of the property of the Vicksburg, Shreveport & Texas Railroad Company, a Louisiana corporation, acquired 'the privileges and franchise of the corporation and its powers to operate the railroad. The sheriff's sale made them the owners of the road, its right of way, its property, its franchise, but did not and could not make them a corporation. * *  * This sale conveyed to them the rights and property of that company; it made them joint owners thereof.' There is, therefore, nothing in the nature of a corporate franchise under the law of Louisiana which forbids its transfer with the other property of the corporation. And such must be the conclusion whenever a railroad company is authorized by law to mortgage its tangible property and franchises. When there has been a judicial sale of railroad property under a mortgage authorized by law, covering its franchises, it is now well settled that the franchises necessary to the use and enjoyment of the railroad passed to the purchasers. This was assumed to be the law by the opinion of this court pronounced by Mr. Justice MATTHEWS in the case of Memphis R. Co. v. Commissioners, 112 U.S. 609, S.C.. ante, 299, when it was said: 'The franchise of being a corporation need not be implied as necessary to secure to the mortgage bondholders or the purchasers at a foreclosure sale the substantial rights intended to be secured. They acquire the ownership of the railroad and the property incident to it and the franchise of maintaining and operating it as such.' See, also, Hall v. Sullivan R. Co. 21 Law Rep. 138; Galveston R. R. v. Cowdrey, 11 Wall. 459. It follows that if the franchises of a railroad corporation essential to the use of its road, and other tangible property, can by law be mortgaged to secure its debts, the surrender of its property, upon the bankruptcy of the company, carries the franchises, and they may be sold and passed to the purchaser at the bankruptcy sale.

The plaintiff, therefore, by virtue of the bankruptcy sale, and the subsequent mortgage sale and the several mesne conveyances mentioned, acquired with the tangible property of the original Canal Street, City Park & Lake Railroad Company the franchise granted by the city of New Orleans to lay its track over the streets and public grounds designated in the ordinance of August 6, 1873, and the amendatory ordinance of March 24, 1874. This right of way so vested could not be affected by the ordinance of the city of New Orleans to grant a similar right of way over the same streets and route to the second Canal Street, City Park & Lake Railroad Company, and the acceptance of the grant by the latter railroad company; for, as it was not in the power of the city to repeal the grant to the first company by an ordinance passed expressly for that purpose, it could not do so by any indirect or roundabout method.

The defendants are seeking to sell, upon execution, the right of way which the city of New Orleans, by its ordinance No. 4,523, dated May 21, 1878, attempted to grant to the second Canal Street, City Park & Lake Railroad Company, and which had already been granted to the first company of that name. In substance and in effect the right of way seized by the sheriff at the instance of Delamore is the right of way owned by and in possession of the plaintiff, and forms a part of its property, giving value, and necessary, to the use and enjoyment of the residue. The property thus seized in execution is claimed by the plaintiff, who is a third person, not a party to the judgment on which the execution is issued. This is the case provided for by articles 395, 396, 397, and 399 of the Code of Practice, and it is under these articles that the present suit is brought and justified. We think the injunction gra ted by the Fifth district court restraining the sale of the right of way and franchises of the plaintiff should not have been dissolved.

So much of the decree of the supreme court of Louisiana as was appealed from in this case is therefore reversed, and the cause is remanded to that court, with instructions to render a decree enjoining and restraining the defendants from advertising or selling or offering for sale, upon the execution described in the bill, the right of way and franchises granted by the city of New Orleans to the Canal Street, City Park & Lake Railroad Company by ordinance No. 4,523, administration series, dated May 21, 1878.


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


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Sturges v. Carter

C. H. Scribner, H. G. Riddle, H. E. Davis, and ''Jas. E. Padgett'', for plaintiff in error.

John W. Jenner, for defendant in error.

WOODS, J.

title: Sturges v. Carter


text: Talk:Sturges v. Carter

title: Talk:Sturges v. Carter


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Sturges v. Carter/Opinion of the Court

This was an action brought by John A. Lee, as treasurer of Richland county, in the state of Ohio, against Stephen B. Sturges to recover taxes levied for the years 1874, 1875, 1876, and 1877, upon shares of stock of the value of $100,000 in the Western Union Telegraph Company, and certain credits and investments owned by Sturges, who, during those years, was a citizen of Ohio, residing in the city of Mansfield, in said county. The amount of the taxes sued for was $10,776.83, with the penalty thereon of 10 per cent., amounting to $1,077.68, making a total of $11,854.50. The controversy in this case relates only to the taxes on the stock of the telegraph company. Before the trial the term of office of Lee, the original plaintiff, expired, and Merchant Carter, his successor in office, was substituted as plaintiff in his stead. The parties waived a trial by jury, and submitted the case to the court upon the issues of fact as well as of law. The court made a special finding of facts, from which it appeared as follows:

For 10 years before the commencement of this suit the defendant was a citizen of said county; for the years 1874, 1875, 1876, and 1877 he made returns in accordance with law, purporting to contain full and accurate lists of all his personal property subject to taxation; the returns were received and acted upon as being correct until the twenty-third of June, 1878, when the county auditor caused defendant to be subpoenaed to appear instanter before him at his office, to give information, pursuant to the statute in that case provided, of all property within his knowledge which had not been duly returned for taxation. The defendant accordingly appeared and submitted to an examination. While undergoing examination the auditor exhibited to him a list of judgments and mortgages in his favor not included in his tax returns, and then and there told him that, under the advice of the auditor of state, he felt it to be his duty to make a supplemental assessment against him for the four years named, of all the property which he owned during that period, which was subject to taxation in said county, and not included in his returns; called defendant's attention to the statute under which he proposed to proceed; and requested such explanation as he might deem it proper to make. Defendant thereupon made such explanations as he chose to offer. This was the only notice given by the auditor to the defendant of his intention to assess him on all personal property owned by him during said period, and not included in his tax returns. The auditor then proceeded to assess the defendant on $100,000 of stock in the Western Union Telegraph Company for each of the years 1874, 1875, 1876, and 1877, and entered the same on a supplemental tax duplicate, and certified the same to the county treasurer for collection.

The defendant owned the telegraph stock so assessed during the four years aforesaid, and the same had not been included in his eturns for taxation, nor had he been theretofore charged with or paid any tax on the same. The Western Union Telegraph Company was organized under the laws of New York; it had a paid-up capital of $41,000,000; most of its property was situated outside of Ohio; it owns 4,950 miles of telegraph wires, with the chemicals and office furniture used in connection therewith, in Ohio, all which for 10 years past it had regularly returned for taxation, and paid thereon from $10,000 to $15,000 per annum of tax to the state of Ohio.

From the findings of fact the court deduced the following, among other conclusions of law: 'The auditors said supplemental assessment was authorized, and is regular and valid, and under the statutes of Ohio, as construed by the courts of the state, the defendant is liable in this action for the amounts assessed on his Western Union Telegraph stock, and judgment will therefore be rendered against him for the tax so assessed thereon, with the damages prescribed by statute, and interest and costs.' The court thereupon rendered judgment against Sturges for $10,727.65, 'the sum so as aforesaid found to be due,' and thereupon Sturges sued out the present writ of error to reverse that judgment.

The first contention of the plaintiff in error is that the court erred in holding that the notice give to him by the auditor of Richland county was sufficient, under the statutes of Ohio, to authorize the assessment of additional taxes, and in admitting evidence of what was said by the auditor to the plaintiff in error when the latter was under examination.

Section 2782 of the Revised Statutes of Ohio, originally section 34 of the act of April 5, 1859, (Swan & C. St. p. 1452), provides, in substance that if the county auditor shall have reason to believe that any person has given to the assessor a false statement of his personal property, moneys or credits, investments in bonds, stocks, joint-stock companies, or otherwise, which are by law subject to taxation, or that the assessor has made an erroneous return of any such property, he shall proceed, at any time before the final settlement with the county treasurer, to charge such person on the duplicate with the proper amount of taxes, and to enable him to do this, he is authorized to issue compulsory process and require the attendance of any person 'whom he might suppose to have a knowledge of the articles or value of the personal property, moneys or credits, investments in bonds, stocks, jointstock companies, or otherwise, and examine such person or persons on oath in relation to such statement or return; and it shall be the duty of the auditor in all such cases to notify every such person, before making the entry on the tax list and duplicate, that he may have an opportunity of showing that his statement or return of the assessor was correct. And the county auditor shall in all such cases file in his office a statement of the facts or evidence on which he made such correction.' These provisions of the statute have been in force ever since April 5, 1859.

The findings of fact show that the plaintiff in error was subpoenaed to appear before the auditor to give information of all property within his knowledge which had not been returned for taxation, and that, while in attendance before the auditor, he was informed by the latter of his purpose to increase the amount of the property returned by him for taxation. This was a substantial compliance with the statute, which required the auditor to notify the tax-payer, before making the entry of such increase on the tax-list and duplicate, of his purpose to do so, so that he might have an opportunity of showing that his statement or the return of the assessor was correct. The subpoena served on the plaintiff in error, and the conduct of the auditor under it, gave him he opportunity to which the statute entitled him. But the plaintiff in error contends that, besides service of the subpoena requiring him to attend upon the auditor and give testimony in relation to property not returned for taxation, he was entitled to written notice before the auditor could make an entry on the tax-list of any additional property omitted in his returns. The statute does not require any notice in writing, except the compulsory process of subpoena, to be served upon the person called to attend and testify. But if any further notice was required, it was waived by the plaintiff in error. The finding of the circuit court shows that he appeared and submitted to an examination touching the correctness of his returns; that the auditor told him during such examination that as auditor he was required by his duty to make a supplemental assessment against him of the property which he had not included in his returns for the four years mentioned in the findings of the court, and requested him to make such explanations of his returns as he thought proper, and that he did make such as he chose. It does not appear that he complained that he had not received notice of the purpose of the auditor to increase the assessment of his property, or that the notice was not in writing, or that it was too short, or that he asked further time for consideration, or to take the advice of counsel, or to produce further evidence. From all that appears by the record, there was no surprise; he had opportunity to establish the correctness of the tax returns, and to show the auditor that he was not liable to an additional assessment. He cannot, therefore, complain of want of notice.

The plaintiff in error next insists that the law of 1878, by which the auditor assumed to correct the returns of the plaintiff in error for the years from 1874 to 1877 inclusive, and place his omitted property on the tax-list, was retroactive, and therefore forbidden by section 28 of article 2 of the constitution of Ohio, which declares that 'the general assembly shall have no power to pass retroactive laws.' Before the passage of the act of 1878, the law of Ohio-section 1 of the act of April 5, 1859, (46 Laws Ohio, 175; 2 Swan & C. Rev. St. Ohio, 1438)-provided that all property, whether real or personal, in the state, all moneys, credits, investments in bonds, stocks, etc., of persons residing therein, should be subject to taxation and entered on the list of taxable property for that purpose; and section 6 of the same act required the owner to make out and deliver to the assessor a statement under oath of all the personal property, moneys, investments in bonds or stocks, required to be listed for taxation. This was the law in force during the years for which the taxes sued for were assessed and levied, and it is still in force.

Section 34 of the act of April 5, 1859, re-enacted as section 2782 of the Revised Statutes of Ohio of 1880, suthorized, Statutes of Ohio of 1880, authorized, in case he believed any person had made a false return of his personal property, investments in bonds or stocks, to proceed at any time before the final settlement with the county treasurer, which was required to be made annually, to correct the return and charge such person on the duplicate with the proper amount of taxes. By section 1 of a supplementary act, passed March 29, 1861, (58 Laws Ohio, 47,) it was provided that if any person whose duty it was to make a return of property for taxation should make a false return, the auditor should ascertain the true amount of the taxable property that such person ought to have returned, and add thereto 50 per centum on the amount so ascertained, and the amount so ascertained, with the 50 per centum, should be entered on the duplicate for taxation. These enactments continued in force until the act of May 11, 1878, when they were amended by section 48 of that act by adding the following clause: 'And the inquiry and corrections provided for in this and the next section may go as far back as the same can be traced, not exceeding the four years next prior to the year in which the inquiries and corrections are made; but as to former years no penalty should be added, and only simple taxes should be claimed.' Laws Ohio 1878, tit. 13, p. 456; Rev. St. Ohio 1880, § 2781. As this act took effect upon its passage, it authorized the auditor, in any future corrections and adjustments of taxes due, to extend his inquiries back for a period of four years. It did not require him to wait four years after its passage before he could give it full effect. It is this amendment of April 11, 1878, which the plaintiff in error insists is retroactive, because it authorizes the auditor to go back for a period of four years to correct false returns; whereas, before its passage he could not for that purpose go behind his annual settlement with the treasurer.

The complaint is not that the auditor was required to add 50 per centum to the value of the omitted property, for the old law authorized him to do that, provided he did it before his annual settlement with the county treasurer, and the new law authorized him to make the addition of 50 per centum for the current year only, so that in this respect the new law did not change the old; but that it was not competent for the legislature to go behind the annual adjustments made of the taxes by the auditor with the tax-payer; that if the state had wrongfully assumed too much, the citizen was barred, and if the citizen had listed too little the state was barred, and that legislation which undertook to open these adjustments was retroactive. In substance, this contention is that a tax-payer who has been evading the payment of the taxes due from him by making false returns, can shield himself behind the annual settlement made by the auditor with the treasurer, in which his returns were assumed to be true, and that the legislature can pass no act by which the falsity of the returns can for a limited period (in this case four years) be exposed, and the payment of the taxes enforced; in other words, that the taxpayer has a vested right in the fruits of his false returns. Such a proposition cannot be sustained. Forter v. Essex Bank, 16 Mass. 245.

In our opinion, no right of the tax-payer was invaded by the act of 1878. His investments in bonds and stocks were subject to taxation; the taxes upon such investments were due to the state, and the act of 1878 merely provided a method by which the taxes might be assessed and collected in spite of the annual settlements made by the auditor. It gave a new remedy to the state for enforcing a right which it had all the time possessed, namely, the right to the taxes upon property liable to taxation. Such an act is not a retroactive law within the meaning of the constitution of Ohio. In the case of The Society v. Wheeler, 2 Gall. 139, Mr. Justice STORY thus defines a retroactive, or, as he calls it, a retrospective law: 'Upon principle, every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective.' The act of 1878 took away no vested right of the tax-payer, it imposed upon him no new duty or obligation, and subjected him to no new disability in reference to past transactions. The definition of Judge STORY was adopted by the supreme court of Ohio, in Rairden v. Holden, 15 Ohio St. 207, when construing the clause in the constitution of Ohio now under consideration. Applying that definition, it is clear the provision in the act of May 11, 1878, complained of, is not open to the objection that it is forbidden by the constitution of the state. See, also, Goshorn v. Purcell, 11 Ohio St. 641; Greene Tp. v. Campbell, 16 Ohio St. 11; State v. Richland Tp. 20 Ohio St. 362; Dow v. Norris, 4 N. H. 16; Clark v. Clark 10 N. H. 380; Greenlaw v. Greenlaw, 12N. H. 200. The authorities cited are conclusive against the contention that the legislation under review is retroactive.

The plaintiff in error next insists that the circuit court erred in deciding that certificates or shares of capital stock in the Western Union Telegraph Company, held by him, were taxable in the state of Ohio. Section 2 of article 12 of the constitution of Ohio declares: 'Laws shall be passed taxing by a uniform rule all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise.' To give effect to this provision the act of April 5, 1859, (Swan & C. Rev. St. 1438,) entitled 'An act for the assessment of all property in this state,' etc., was passed. It was provided by the first section of this act as follows: 'All property, whether real or personal, in this state,-all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, of persons residing therein, * *  * except such as is hereinafter expressly exempted,-shall be subject to taxation; and such property, moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, or the value thereof, shall be enterted on the list of taxable property for that purpose.' By section 2 of the same act it was enacted as follows: 'That the term investment in stocks, whenever used in this act, shall be held to mean and include all moneys invested *  *  * in any association or corporation, joint-stock company or otherwise, the stock or capital of which is or may be divided into shares, which are transferable by each owner without the consent of the other partners or stockholders, for taxation of which no special provision is made by this act, held by persons residing in this state, either for themselves or as guardians, trustees, or agents.'

There was no special provision for the taxation of such property as the shares held by the plaintiff in error in the Western Union Telegraph Company. It is plain, therefore, that under the act of April 5, 1859, the shares of stock held by the plaintiff in error were taxable in the state of Ohio, unless they were expressly exempted. The plaintiff in error relies upon an exemption contained in the ninth subdivision of the third section of the act, which is as follows: '(9) Each individual in this state may hold exempt from taxation personal property of any description of which such individual is the actual owner, not exceeding fifty dollars in value. * *  * No person shall be required to include in his statement, as a part of the personal property, moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, which he is required to list, any share or portion of the capital stock or property of any company or corporation which is required to list or return its capital and property for taxation in this state.' Swan & C. Rev. St. 1441. Section 59 of the same act provides that 'no person shall be required to list for taxation any certificate of the capital stock of any company, the capital stock of which is taxed in the name of the company.'

As the findings of the circuit court show that a part of the property of the Western Union Telegraph Company was in the state of Ohio, and that it paid taxes on the same to the state, the plaintiff in error insists that the shares of stock held by him in the company were exempted from taxation by the clauses of the act of April 5, 1859, which we have quoted. This contention cannot be sustained. The law taxes the shares of the plaintiff in error unless they are 'expressly exempted.' The burden is on him to show an express exemption. There is no exemption unless the payment by the Western Union Telegraph Company of the tax imposed on its property situated in the state, and which the findings of facts made by the circuit court show was but a small part of its whole property, relieves from taxation its shares held by a resident of the state. It may be conceded that generally the capital or the capital stock of a corporation is its property. Bank Tax Case, 2 Wall. 200; National Bank v. Com. 9 Wall. 353. But the shares held by the stockholders are distinct from the capital stock of the corporation, and the taxation of both is not necessarily double taxation. Farrington v. Tennessee, 95 U.S. 679; Dewing v. Perdicaries, 96 U.S. 193; Bradley v. Bauder, 36 Ohio St. 28. The claim, therefore, of the plaintiff in error is to the exemption of a certain class of his property from taxation. But it has been repeatedly held by this court that an exemption from taxation must be expressed in clear and unmistakable terms and cannot be shown by doubtful or ambiguous language. Providence Bank v. Billings, 4 Pet. 514; Gilfillan v. Union Canal Co. 109 U.S. 401; S.C.. 3 SUP. CT. REP. 304.

The case, therefore, depends upon the construction of the statute. The supreme court of Ohio has decided that shares owned by a resident of Ohio in a foreign corporation, none of whose capital was taxed in Ohio, but all of it in the state where the corporation had its home, was taxable in Ohio. Bradley v. Bauder, 36 Ohio St. 28. The controversy on this part of the case is, therefore, reduced to the question whether the legislature has clearly and unmistakably expressed the purpose in the act under consideration to exempt from taxation shares in a foreign corporation owned by residents of Ohio, when but a small part of the property of the company was subject to taxation in Ohio. The exemption from taxation of investments in stocks, provided by the statute, applies only to shares of those corporations which are required to return their capital and property for taxation in the state. Jones v. Davis, 35 Ohio St. 474. This clearly means those corporations which are required to return all, or substantially all, their capital and property. There is no rule of interpretation by which the statute can be held to apply to corporations who list only a small part of their property for taxation in Ohio. If the legislature had intended to allow an exemption in such a case, it could and would have expressed that purpose by words not admitting of doubt. As the shares of the plaintiff in error in the Western Union Telegraph Company were not only not expressly, but not even by fair implication, exempted from taxation, we are of opinion that the tax complained of was authorized by law.

Lastly, complaint is made that the circuit court erred in rendering judgment for the penalty and interest upon the additional taxes assessed against the plaintiff in error. The judgment of the circuit court was for $10,727.65, which is less than the taxes demanded in the petition without either interest or penalty. The findings of fact do not show the rate of taxation for any one of the four years for which the taxes were recovered, and it is impossible for us to say that anything was included in the judgment but the simple taxes. It is true that the court said in its conclusion of law that judgment would be rendered for the tax, with the damages prescribed by statute, and interest and costs. But we have not been referred to any statute which gives damages in this class of cases, and there is nothing in the findings to show that anything was actually included in the judgment, either for damages or interest. The amount of the judgment was based upon the assessment of the property of the plaintiff in error, made by the auditor, a sworn public officer. Therefore the burden is on the plaintiff in error to show by the record that the court rendered judgment for an amount not authorized by law. This he has failed to do. Under the circumstances, we must presume that the judgment of the circuit court, in respect to its amount as well as in other respects, was right, unless the contrary is shown. Ventress v. Smith, 10 Pet. 161; Townsend v. Jemison, 7 How. 714; The Potomac, 2 Black, 581.

We find no error in the record. Judgment affirmed.

title: Sturges v. Carter/Opinion of the Court


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


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Beecher Manufacturing Company v. Atwater Manufacturing Company

H. T. Fenton and O. H. Platt, for appellant.

''Geo. S. Prindle and J. M. Wilson'', for appellee.

GRAY, J.


text: Talk:Beecher Manufacturing Company v. Atwater Manufacturing Company


text:
Beecher Manufacturing Company v. Atwater Manufacturing Company/Opinion of the Court

This is an appeal from a decree for an injunction and damages for the infringement of a patent issued to Robert R. Miller, on February 22, 1870, and reissued to his assigns on May 6, 1879, for an improvement in dies for forming the clip-arms of king-bolts for wagons. 8 Fed. Rep. 608. According to the descr ption in the specification, such bolts are made by taking an iron rod of suitable length, splitting it for about two inches at one end, and turning the forks or arms outwards; then heating the rod, placing the body in a hole in a block or die grooved to receive the arms, and striking it with a plane-faced upper die, so as to force the arms into and make them take the shape of the grooves; and afterwards placing it between two other dies, which give the arms the proper bend to fit them to the axle-tree of a wagon. With the subsequent shaping of the collar and stem of the bolt, this patent has nothing to do.

In the original patent the patentee stated that he did not claim either of the dies separately, and claimed only 'the series of dies' (designating them by letters) 'for forming the clip-arms and wings of the lower ends of king-bolts for wagons, said dies being constructed and operating substantially as herein shown and described.' In the reissue he claimed (1) the first pair of dies, 'constructed and combined substantially as and for the purpose shown;' (2) 'the series of dies' (designated by letters) 'for forming clip king-bolts, substantially as shown and described.'

The first claim of the reissue is bad, not only because it was for something the patentee had expressly disclaimed in the original patent, but because, as the evidence clearly shows, there was nothing new in the dies themselves. The second claim of the reissue, like the single claim of the original patent, for the use in succession, or, in the patentee's phrase, 'the series,' of the two pairs of old dies, the one pair to shape the arms of the bolt, and the other to give those arms the requisite curve, does not show any patentable invention. The two pairs of dies were not combined in one machine, and did not co-operate to one result. Each pair was used by itself, and might be so used at any distance of time or place from the other; and if the two were used at the same place and in immediate succession of time, the result of the action of each was separate and distinct, and was in no way influenced or affected by the action of the other. This was no combination that would sustain a patent. Hailes v. Van Wormer, 20 Wall. 353; Pickering v. McCullough, 104 U.S. 310; Stephenson v. Brooklyn Railroad, 114 U.S. 149; S.C.., ante, 777.

Decree reversed, and case remanded, with directions to dismiss the bill.


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Page:Dictionary of National Biography volume 60.djvu/310

 ‘my Jack is fellow of Lincoln.’ The development of his poetical powers is shown in a paraphrase of part of Psalm civ, begun (19 Aug.) at Epworth. On 7 Nov. he was chosen Greek lecturer and moderator of the classes. He graduated M.A. on 9 Feb. 1726–1727 (Whitehead, from Wesley's ‘private diary,’ gives 14 Feb.; Stevenson gives 15 Feb.). Long afterwards he gave curious proof of the soundness of his scholarship. Warburton, who attacked him in 1762, sent the manuscript of his work to Wesley, who corrected the classical quotations and returned it (, Adam Clarke, 1843, i. 244).

In August 1727 he became his father's curate, living and officiating mainly at Wroot, paying visits to Oxford, where he was ordained priest (22 Sept. 1728) by Bishop Potter. He was much impressed by a saying of Thomas Haywood (d. 1746), who examined him, to the effect that entering the priesthood was ‘bidding defiance to all mankind’ (, i. 113). He paid a visit to Staunton, Worcestershire, the home of Betty Kirkham (whom Martha Wesley, writing on 7 Feb. 1727–8, calls his ‘Varanese’), sister of Robert Kirkham. About this time he read the ‘Christian Perfection’ (1726) of William Law [q. v.], followed by his ‘Serious Call’ (1729). These writings aided him by setting a higher standard for the religious life, and ‘everything appeared in a new view.’ Wesley, in July 1732, made Law's personal acquaintance at Putney, and was by him introduced to the ‘Theologia Germanica’ and other books of the same class. His break with the mystics in after life was complete. Jacob Boehme he treated as ‘fustian’ (Journal, 4 June 1742), and Swedenborg as a madman (ib. 28 March 1770). His severe ‘Letter’ (1756) to Law has never been reprinted in full.

A kindly letter from Morley (21 Oct. 1729) recalled him from his curacy to fulfil the statutory obligations of his fellowship. He returned to residence at Lincoln College on 22 Nov., and was at once placed in charge of eleven pupils. He found his brother Charles [q. v.] associated with two other undergraduates, William Morgan (1712–1732), of Christ Church, an Irishman, and Kirkham (above-mentioned) of Merton; the three were already labelled as ‘methodists’ [see ] from their strict rules of study and religious observance, including the practice of weekly communion. On joining these young methodists John Wesley naturally became their head, and directed their plans, getting the nickname of ‘curator of the holy club,’ a Merton witticism. The company of Oxford methodists never reached large proportions. Two or three of John Wesley's pupils were admitted to their meetings in 1730, and one pupil of Charles; Benjamin Ingham [q. v.] of Queen's, and Thomas Broughton (1712–1777) [q. v.] of Exeter were admitted in 1732; at later periods of the same year John Clayton (1709–1773) [q. v.] of Brasenose, with two or three of his pupils, was admitted, and James Hervey (1715–1758) [q. v.] of Lincoln; George Whitefield [q. v.] of Pembroke was not admitted till 1735 (see, Oxford Methodists, 1873). Their proceedings were attacked in ‘Fog's Weekly Journal’ of 9 Dec. 1732, and a defensive pamphlet was issued by an outsider, ‘The Oxford Methodists’ (1732; 2nd edit. 1738). Samuel Wesley, the father, visited Oxford in January 1732–3 to learn ‘what his sons were doing,’ encouraged them to persevere, and helped them from time to time by his advice. Bishop Potter was friendly to them; though ‘irregular,’ he affirmed that they had ‘done good.’ The Oxford methodists were assiduous in study (in 1731 John and Charles Wesley began a lifelong practice of conversing with each other in Latin); every night they met for consultation before supper; they relieved the poor, and looked after the clothing and training of school children; they daily visited the prisoners in the castle, read prayers there on Wednesdays and Fridays, preached there on Sundays, and administered the communion once a month. Their religion was formed on the prayer-book; next to the bible in point of doctrine they valued the books of homilies. Nor did they deny themselves recreation; it would be unjust to charge their temper as morbid; their philanthropy kept them in touch with real life; Wesley's strong sense, his cheerfulness (he did not disdain a game of cards, as his private accounts show), and his knowledge of human nature, gave a manly tone to their zeal. The marked divergence of their subsequent careers, while showing reaction in some cases from an ideal overstrained, proves also that the discipline of strictness was not ruinous to the independence of individual minds. Wesley himself was little of an ascetic; to be methodical and exact was with him an essential part of happiness. He rose at four to cure himself of lying awake at night. At five, morning and evening, he spent an hour in private prayer. His diary and accounts were kept with constant precision. One day a week he allowed for friendly correspondence. His first publication was a small collection of daily prayers (1733) for the


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Fort Leavenworth Company v. Lowe

''Thos. F. Withrow, M. A. Low, and E. E. Cook'', for plaintiff in error.

W. Hallett Phillips, for defendant in error.

FIELD, J.

title: Fort Leavenworth Company v. Lowe


text: Talk:Fort Leavenworth Company v. Lowe

title: Talk:Fort Leavenworth Company v. Lowe