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Boyd v. Moses

THIS was an action in personam, brought originally in the District Court for the Southern District of New York, by the libellants against the appellants, to recover a balance due upon a charter-party. The District Court rendered a decree dismissing the libel. The Circuit Court for the district reversed that decree, and rendered a decree for the libellants. From this last decree an appeal was taken to this court.

The charter-party was executed in July, 1862, at the city of New York, in the harbor of which city the ship then lay. The voyage stipulated was to be from New York to Havre, with a cargo of lawful merchandise, which the charterers were to provide. The ship was to be tight, stanch, strong, and every way fitted for the voyage. She was to load 'under inspection,' and to 'go consigned to charterers' friends.'

The cargo furnished by the charterers consisted principally of grain, lard, and tallow. The grain, which was partly in bulk and partly in bags, was stored in the hold. A portion of the lard was stored between decks. By the leaking of this lard a part of the wheat in the hold was damaged, and the question was, whether the damage should be borne by the owners or the charterers of the ship. It was charged to the ship at Havre, and paid by the consignees, who collected the freight, and its amount was withheld by them from the charter-money. The present action was by the owners against the charterers of the ship for the balance thus withheld.

When the lard was brought to the ship to be taken on board it was leaking from the casks in which it was packed. It appeared to be mostly in a liquid state, and the stevedore having charge of the loading refused without the consent of the master to receive it, and store it between decks,-the only part of the vessel not then occupied by merchandise. He was apprehensive that in its liquid state, leaking from the casks, it would penetrate through the deck and damage the wheat in the hold. The master, to whom the matter was referred, also refused to take it, and informed the charterers that he could not receive it unless they gave him an agreement to hold the ship harmless. They thereupon wrote to him a letter stating that they understood he objected to their shipping lard between the decks of the ship, requesting him to receive it, and agreeing to pay any damages which he or the ship might be subjected to on the discharge of the cargo at Havre, arising from the stowage of the lard between decks, and its running on any other part of the cargo. Upon the receipt of this letter the master consented to take the lard, and it was stowed between decks. There were between three and four hundred casks, and the lard was leaking from nearly all of them. The weather was unusually hot during the time the ship was receiving cargo, so that it became necessary to relieve the stevedores by extra men, and on some days they could not work at all. The weather continued warm during the greater part of the voyage, which lasted over a month. Upon the discharge of the cargo twenty-six casks were found entirely empty, and three hundred and twenty-seven partly empty. The decks were covered with lard in a liquid state, being in some places two or three inches deep, which had destroyed the pitch in the seams and rotted the oakum, and had dripped through and injured a large quantity of the wheat in the hold.

There was no dispute as to the extent of the damage thus produced. As already stated, the question was upon whom should the damage fall, the charterers or the owners of the ship?

The consignees of the ship at Havre were designated by the charterers as their friends, pursuant to the stipulations of the charter-party, and acted as their agent, and not for the master, in collecting the freight.

Mr. E. C. Benedict, for the appellants; Mr. E. H. Owen, contra.

Mr. Justice FIELD, after stating the facts of the case, delivered the opinion of the court, as follows:

title: Boyd v. Moses


text: Talk:Boyd v. Moses

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

title: Talk:Boyd v. Moses


text:
Boyd v. Moses/Opinion of the Court

The stipulation of the charter-party to take a cargo of lawful merchandise necessarily implied that the articles composing the cargo should be in such condition, and be put up in such form, that they could be stowed and carried without one part damaging the other. Whether in any case articles offered can be taken with safety to other articles, will depend upon a variety of considerations; the nature of the articles, the state of the weather, the voyage contemplated, the amount of cargo already received, and other particulars. Lard, for example, can be carried in winter to a northern port in loose casks with little damage to other articles, whilst injury may be reasonably apprehended if the voyage is to be made through the tropics, and the casks are not perfectly tight. Very different care must necessarily be given by the master in receiving and stowing goods perishable in their nature from heat or moisture, and such as are unaffected by either. All that is required of him in such case-he being a competent officer-in determining whether particular goods are at the time in shipping order and condition, or can be received in the state and stowage of cargo already aboard, is that he shall not act capriciously or without due consideration, but shall exercise an honest and reasonable judgment in the matter.

In Weston v. Foster, the whole of the vessel, except the cabin and room for the crew, sails, cables, and provisions, was let, and the owners covenanted to receive all such lawful merchandise as the charterers should choose to put on board. The master, who was a competent officer, took on board all the cargo he thought his vessel could safely carry, which, however, did not fill it, but left a space capable of holding fifty tons more, and the charterers insisted that there should be deducted from the freight-money the amount they would have received if fifty tons more had been brought. But the court held that the whole charter-money was earned, and that the honest opinion of the master, though not absolutely binding on the charterers, could only be controlled by decisive evidence of a mistake on his part.

The master was here sustained in refusing to take all the cargo the hold of the vessel could receive, because, in the exercise of his honest judgment, he thought it would endanger her safety, notwithstanding the terms of the charter-party. Upon the same principle he may refuse to take goods offered, if in his honest judgment they are in such a condition or of such character that they cannot be carried without injury to the rest of the cargo.

In Weston v. Minot, where a vessel was chartered for a voyage to Calcutta and back, to carry all lawful goods placed on board, and for a gross sum for freight out and back, to the entire capacity of the vessel, it was held that the charter-party must be considered to mean all goods not contraband nor diseased, and as many of them as could be put on board without making the vessel draw too much for safety, and that, if the goods put on board were heavy articles, and, before the ship was full, sunk her as low as is usual and proper without extra danger, the master might refuse to take more without violating the charter-party.

The principle upon which the action of the master was justified in these cases applies to the case at bar. Safety to the cargo received on board, though not so high a consideration as safety to the ship, is one which should constantly govern the action of the master.

That his apprehensions were well founded in this case is established by the result. His conduct, therefore, in insisting upon protection to his ship, was reasonable, and this was in effect conceded by the charterers, as otherwise they would have insisted upon the ship receiving the lard, or that the matter should have been submitted to the inspector under whose inspection it was stipulated the ship was to be loaded.

The agreement contained in the letter must be considered as a modification of the terms of the charter-party in respect to the lard in question. It relieved the ship from the responsibility of safe carriage of the cargo so far as that was affected by the lard. It may be regarded as a stipulation to that effect embodied in the charter-party; a stipulation which, though of no efficacy as between shipper and vessel, was valid as between charterer and owner.

If the charterers had owned the entire cargo, and had induced the master, against his objection, to receive and carry the lard in its leaking condition, they would not have had any right of action against the ship for the damage sustained, nor could they have recouped or set-off the amount of damage in an action against them for the charter-money. The principle upon which the ship would be exempt from liability in such case is applicable to the present case between the charterers and owners.

DECREE AFFIRMED.

title: Boyd v. Moses/Opinion of the Court


text: Talk:Boyd v. Moses/Opinion of the Court

title: Talk:Boyd v. Moses/Opinion of the Court


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Page:The Confidence Man.djvu/232

218 the fineness of the nap, seeming out of keeping with something the reverse of fine in the skin; and the unsuitableness of a violet vest, sending up sunset hues to a countenance betokening a kind of bilious habit. But, upon the whole, it could not be fairly said that his appearance was unprepossessing; indeed, to the congenial, it would have been doubtless not uncongenial; while to others, it could not fail to be at least curiously interesting, from the warm air of florid cordiality, contrasting itself with one knows not what kind of aguish sallowness of saving discretion lurking behind it. Ungracious critics might have thought that the manner flushed the man, something in the same fictitious way that the vest flushed the cheek. And though his teeth were singularly good, those same ungracious ones might have hinted that they were too good to be true; or rather, were not so good as they might be; since the best false teeth are those made with at least two or three blemishes, the more to look like life. But fortunately for better constructions, no such critics had the stranger now in eye; only the cosmopolitan, who, after, in the first place, acknowledging his advances with a mute salute in which acknowledgment, if there seemed less of spirit than in his way of accosting the Missourian, it was probably because of the saddening sequel of that late interview—thus now replied: "Colonel John Moredock," repeating, the words abstractedly; "that surname recalls reminiscences. Pray," with enlivened air, "was he anyway connected with the Moredocks of Moredock Hall, Northamptonshire, England?"

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Twitchell v. The Commonwealth

THIS was a petition, by one Twitchell, for a writ of error to the Court of Oyer and Terminer of the City and County of Philadelphia, and the Supreme Court of Pennsylvania, with a view to the revision here of a judgment of the former court, affirmed by the latter court, which condemned the petitioner to suffer death for the crime of murder.

The case was this:

The Constitution of the United States, by its 5th Amendment, ordains, that no person shall be held to answer for a capital crime, nor be deprived of life 'without due process of law;' and, by its 6th, that in all criminal prosecutions the accused shall enjoy the right 'to be informed of the nature and cause of the accusation.'

With these provisions of the Constitution in force, the legislature of Pennsylvania, by a statute of the 30th March, 1860, to consolidate, amend, and revise its laws relative to penal proceedings and pleadings, enacted thus:

'In any indictment for murder or manslaughter, it shall not be necessary to set forth the manner in which, or the means by which the death of the deceased was caused; but it shall be sufficient in every indictment for murder, to charge that the defendant did feloniously, wilfully, and of malice aforethought, kill and murder the deceased.'

Under this statute Twitchell was indicted in the Court of Oyer and Terminer at Philadelphia, in December, 1868, for murder, the indictment presenting, that on a day named, he and his wife, with force, and arms, &c., 'feloniously, wilfully, and of their malice aforethought, did make an assault,' and one Mary Hill, 'feloniously, wilfully, and of their malice aforethought, did kill and murder,' contrary to the form of the act, &c. On this indictment Twitchell was convicted, and the Supreme Court of the State having affirmed the judgment, he was sentenced to be hanged on the 8th April, 1869.

Eight days previously to the day thus fixed, Mr. W. W. Hubbell, counsel of the prisoner, asked, and obtained leave, in this court, to file a motion for a writ of error, as above said, in the case; with notice to the Attorney-General of Pennsylvania, that the motion would be heard on Friday, April the 2d, the earliest motion-day of the court. The petition was heard, before the court in banc, on the 2d, accordingly. It set forth that, pending the suit, Twitchell had set up and claimed certain rights and privileges under the said 5th and 6th Amendments to the Constitution of the United States, and that the final decision was against the rights and privileges so set up and claimed. He therefore prayed, in order that the said Twitchell should enjoy his just privileges under the Constitution, and that what of justice and right ought to be done, should be done, that a writ of error should issue from this court to the Court of Oyer and Terminer of the City and County of Philadelphia, and the Supreme Court of Pennsylvania, with a view to the re-examination here of the judgment of the former court, affirmed by the latter.

The application was made under the 25th section of the Judiciary Act of 1789; the section which gives such writ, where is drawn in question the validity of a statute of, or authority exercised under any State, on the ground of their being repugnant to the Constitution or laws of the United States, and the decision is in favor of such validity; or where is drawn in question the construction of any clause of the Constitution or statute of the United States, and the decision is against the title, right, privilege, or exemption specially set up, &c.; a provision, this last, re-enacted by act of February 5th, 1867, with additional words, as 'where any title, right, privilege, or immunity is claimed under the Constitution, or any statute of, or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up,' &c.

Mr. Hubbell, in support of the motion, contended, that the act of the Pennsylvania Assembly was repugnant to the 5th and 6th Amendments of the Constitution-to the last especially-that under these the prisoner had a right to be informed, before the trial, by the indictment, and so of record, that the murder was alleged to have been brought about by some particular instrument, or some instrument generally, or some means, method, or cause stated; to be informed, in other words, of the specific nature of the accusation, so as that he might be enabled to prepare for a defence; whereas, here the indictment stated but the general nature of the accusation, namely, that the prisoner had murdered Mrs. Hill; that the provisions of the Pennsylvania statute had been copied from a late British statute, and had departed from the principles of the common law-principles not more considerate and humane than just;-which, nevertheless, under the Constitution of the United States, remained, and remaining, were secured to all men; that the court below erred in not deciding in accordance with the view here presented, and that the warrant of the Governor for the execution was, therefore, not a 'due process' of law. In such a case the petitioner had a clear right to the interposition of this court, which he now respectfully asked. Mr. Hubbell read, in detail, cases to show that the appellate power of this court extends to criminal cases, where the State is a party.

Mr. B. H. Brewster, Attorney-General of Pennsylvania, did not appear.

The CHIEF JUSTICE, on the Monday following, delivered the opinion of the court.

The application for the writ of error is made under the 25th section of the Judiciary Act of 1789, which makes provision for the exercise of the appellate jurisdiction of this court over judgments and decrees of the courts of the States.

Neither the act of 1789, nor the act of 1867, which in some particulars supersedes and replaces the act of 1789, makes any distinction between civil and criminal cases in respect to the revision of the judgments of State courts by this court; nor are we aware that it has ever been contended that any such distinction exists. Certainly none has been recognized here. No objection, therefore, to the allowance of the writ of error asked for by the petition can arise from the circumstance that the judgment, which we are asked to review, was rendered in a criminal case.

But writs of error to State courts have never been allowed, as of right. It has always been the practice to submit the record of the State courts to a judge of this court, whose duty has been to ascertain upon examination whether any question, cognizable here upon appeal, was made and decided in the proper court of the State, and whether the case upon the face of the record will justify the allowance of the writ.

In general, the allowance will be made where the decision appears to have involved a question within our appellate jurisdiction; but refusal to allow the writ is the proper course when no such question appears to have been made or decided; and also where, although a claim of right under the Constitution or laws of the United States may have been made, it is nevertheless clear that the application for the writ is made under manifest misapprehension as to the jurisdiction of this court.

In the case before us we have permitted the motion for allowance to be argued before the full bench because of the urgency of the case, and the momentous importance of the result to the petitioner.

It is claimed that the writ should be allowed upon the ground that the indictment, upon which the judgment of the State court was rendered, was framed under a statute of Pennsylvania in disregard of the 5th and 6th Amendments of the Constitution of the United States, and that this statute is especially repugnant to that provision of the 6th Amendment which declares, 'that in all criminal prosecutions the accused shall enjoy the right' 'to be informed of the nature and cause of the accusation against him.'

The statute complained of was passed March 30, 1860, and provides that 'in any indictment for murder or manslaughter it shall not be necessary to set forth the manner in which, or the means by which the death of the deceased was caused; but it shall be sufficient, in every indictment for murder, to charge that the defendant did feloniously, wilfully, and of malice aforethought, kill and murder the deceased; and it shall be sufficient, in any indictment for manslaughter, to charge that the defendant did feloniously kill the deceased.'

We are by no means prepared to say, that if it were an open question whether the 5th and 6th Amendments of the Constitution apply to the State governments, it would not be our duty to allow the writ applied for and hear argument on the question of repugnancy. We think, indeed, that it would. But the scope and application of these amendments are no longer subjects of discussion here.

In the case of Barron v. The City of Baltimore, the whole question was fully considered upon a writ of error to the Court of Appeals of the State of Maryland. The error alleged was, that the State court sustained the action of the defendant under an act of the State legislature, whereby the property of the plaintiff was taken for public use in violation of the 5th Amendment. The court held that its appellate jurisdiction did not extend to the case presented by the writ of error; and Chief Justice Marshall, declaring the unanimous judgment of the court, said:

title: Twitchell v. The Commonwealth


text: Talk:Twitchell v. The Commonwealth

title: Talk:Twitchell v. The Commonwealth


text:
Twitchell v. The Commonwealth/Opinion of the Court

'The question presented is, we think, of great importance, but not of much difficulty. . . . The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.'

And, in conclusion, after a thorough examination of the several amendments which had then (1833) been adopted, he observes:

'These amendments contain no expression indicating an intention to apply them to State governments. This court cannot so apply them.'

And this judgment has since been frequently reiterated, and always without dissent.

That they 'were not designed as limits upon the State governments in reference to their own citizens,' but 'exclusively as restrictions upon Federal power,' was declared in Fox v. Ohio, to be 'the only rational and intelligible interpretation which these amendments can have.' And language equally decisive, if less emphatic, may be found in Smith v. The State of Maryland, and Withers v. Buckley and others.

In the views thus stated and supported we entirely concur. They apply to the sixth as fully as to any other of the amendments. It is certain that we can acquire no jurisdiction of the case of the petitioner by writ of error, and we are obliged, therefore to

REFUSE THE WRIT.


text: Talk:Twitchell v. The Commonwealth/Opinion of the Court


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Tyler v. Boston

TYLER brought suit, in the Circuit Court for Massachusetts, against the city of Boston, for infringement of a patent; the case being this:

The plaintiff professed to have discovered a new compound substance, being a combination of fusel oil with the mineral and earthy oils, which compound constitutes a burning fluid, 'by which term,' he says, 'I mean a liquid which will burn for the purpose of illumination, without material smoke, in a lamp with a small solid wick, and without a chimney.'

The claim of his patent which the defendant was charged with infringing, was 'the compound produced by the combination of the mineral or earthy oils with fusel oil, in the manner and for the purpose substantially as herein set forth; said compound constituting a new manufacture.'

The component parts of this new manufacture were described as 'by measure crude fusel oil one part, kerosene one part.' This combination, the patent stated, might be varied by the substitution of naphtha or crude petroleum in place of Kerosene, or a part of the kerosene by an equal quantity of naphtha or crude petroleum; 'the exact quantity of fusel oil which is necessary to produce the most desirable compound must be determined by experiment.'

The defendants used a burning fluid composed of naphtha seventy-two and fusel oil twenty-eight parts; and experts, chemists, proved that seventy-two parts in bulk of naphtha was the substantial equivalent of twenty-eight parts of kerosene.

The court below charged the jury, 'that the patentee, in suggesting that naphtha might be substituted for kerosene, intended to describe the same proportion in the combination,' and 'that the jury should understand the construction of the suggested substitution, to wit, naphtha for kerosene, as contemplating the same proportion of the two ingredients-that is, one and one, or fifty per cent. of one, and fifty per cent. of the other.'

It charged further, that 'whether one compound of given proportions is substantially the same as another compound varying in the proportions-whether they are substantially the same or substantially different-is a question of fact, and for the jury.'

Under this charge the jury found for the defendant; and the case was now here on error.

Mr. Maynadier, for the plaintiff in error, contended, that the construction given by the court to the patent was erroneous, and that in view of the evidence as to the true relations and characters of the various oils, the claim should be construed to cover not only a compound composed of the particular ingredients in the proportionate bulks especially named in the specification (that is to say, crude fusel oil, one part by measure, and kerosene of the grade there described, one part by measure), and all other compounds composed of these ingredients in substantially the same proportionate bulks; but, in addition, all other compounds whose ingredients are any of the earthy or mineral oils, and any of the fusel oils, provided the quantity by measure of the mineral oil or oils used were ascertained to be substantially equal in character, or equivalent to the prescribed proportion of the prescribed grade of kerosene; and the quantity by measure of the fusel oil used were in like measure ascertained to be equal to the prescribed proportion of the prescribed crude fusel oil.

The whole spirit of the patent, in view of the perfectly well-known relations of naphtha and kerosene, and of refined and crude fusel oil, warrants the construction contended for, and there is nothing in the letter which militates against it, unless the statement that 'a part of the kerosene may be replaced by an equal quantity of naphtha or crude petroleum' be construed to mean an equal quantity in bulk, which would make the statement false, and one that all persons skilled in the art would know to be false; while if 'equal' be construed to mean 'equal in character,' or 'equivalent,' the statement is true, and in harmony with the rest of the specification, and with the chemical facts of the case.

Mr. Robb, contra:

The instruction given was correct. The language used by the patentee in describing his invention and the manner of compounding the same, is 'full, clear and exact,' in view of that construction adopted by the court below. To give it the construction contended for by the plaintiff, the obvious import of the terms used must be disregarded, and the same word must be taken in different senses, in the same sentence; that is, the word 'quantity,' when used in reference to fusel oil, alcohol, or kerosene, means measure; but when used in reference to naphtha or petroleum, it must be taken to mean weight.

Mr. Justice GRIER delivered the opinion of the court.

title: Tyler v. Boston


text: Talk:Tyler v. Boston

title: Talk:Tyler v. Boston


text:
Tyler v. Boston/Opinion of the Court

The patent states that 'the exact quantity of fusel oil which is necessary to produce the most desirable compound must be determined by experiment.'

Now a machine which consists of a combination of devices is the subject of invention, and its effects may be calculated a priori, while a discovery of a new substance by means of chemical combinations of known materials is empirical and discovered by experiment. Where a patent is claimed for such a discovery, it should state the component parts of the new manufacture claimed with clearness and precision, and not leave the person attempting to use the discovery to find it out 'by experiment.' The law requires the applicant for a patent-right to deliver a written description of the manner and process of making and compounding his new-discovered compound. The art is new; and therefore persons cannot be presumed to be skilled in it, or to anticipate the result of chemical combinations of elements not in daily use.

The defendants used a burning-fluid composed of naphtha seventy-two and fusel oil twenty-eight parts; and expert chemists proved that seventy-two parts n bulk of naphtha was the substantial equivalent of twenty-eight parts of kerosene.

This term 'equivalent,' when speaking of machines, has a certain definite meaning; but when used with regard to the chemical action of such fluids as can be discovered only by experiment, it only means equally good. But while the specification of the patent suggests the substitution of naphtha for crude petroleum, it prescribes no other proportion than that of equal parts by measure. The explanation that the 'kerosene must be replaced by an equal quantity of naphtha' does not alter the case.

The charge which the court gave is a clear and intelligible statement of the principles of law which should govern the jury in making up their verdict. It said properly, that 'whether one compound of given proportions is substantially the same as another compound varying in the proportions-whether they are substantially the same or substantially different-is a question of fact and for the jury.'

If the jury in finding for the defendants have erred, the remedy is not in this court.

JUDGMENT AFFIRMED.

title: Tyler v. Boston/Opinion of the Court


text: Talk:Tyler v. Boston/Opinion of the Court


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Grant v. United States (74 U.S. 331)

APPEAL from the Court of Claims; in which court Grant, for himself, and as assignee of one Taliafero, a former partnor, had filed a petition claiming reimbursement and damages from the United States. The case was this:

On the 9th of March, 1860, the Secretary of War, at that time Mr. Floyd, addressed an order to the Quartermaster-General and Commissary-General of Subsistence, granting to the said Taliafero and Grant the privilege of furnishing and delivering, at certain posts in Arizona, for a period of two years, all the supplies that might be needed there for the use of the service, at certain stipulated rates. There was nothing in this order making an inspection necessary elsewhere than at the place of delivery.

On the 29th of July, 1860, the proper officer in Arizona served a requisition on Grant for commissary articles, and the War Department approved the order on the 22d day of September following, with notice that the articles to be purchased would be inspected at Boston or New York.

Some delays took place in regard to the inspection; for the appointment of a proper person to make which, the shipping agents of Grant had made a request on the 20th September, 1862. Major Eaton finally inspected the last of the supplies, certifying that they were contained in strong, sound, full-hooped barrels and well-secured tierces, properly marked with the names of the places to which they were destined, and were of the kind and quality usually provided by the subsistence department. This inspection did not take place until the 3d, 4th, 5th of December, 1860. The Court of Claims found, however, as facts, that the only delay attributable to the United States was a delay in appointing an inspector from the 22d September to the 21st November, 1860; that such delay did not preclude Grant's agents from purchasing the supplies required, and having them ready for inspection; that the supplies inspected by Major Eaton were sold to Grant on the 20th of November, 1860; that the United States were ready to inspect supplies on the 21st of November, 1860, and thereafter, and on that date so notified to Grant's agents; that the inspection was not made at that time, but was postponed at the request of the said agents from the difficulty they had found in procuring a part of the supplies; that these were not then ready for shipment and inspection; that there was no evidence of any notice to the United States to make inspection other than one contained in a letter of the agents to Major Eaton, dated November 22d, 1860.

The supplies thus inspected were immediately afterwards shipped to Lavacca, and arrived there about the 10th January, 1861. They were here laden on wagons, forty-one wagons in all, but after proceeding a short distance, the train was obliged, owing to want of pasturage at that season of the year, to stop and go into camp and await the growth of grass. A delay was thus incurred of about two months and ten days, when the train again proceeded, and arrived at Rio Honde, where it was captured on the 20th April by the troops of Texas, then in a state of rebellion against the United States.

For the goods, wagons, and teams thus lost, the petitioners claimed reimbursement.

The petition also set forth great loss to the petitioner, asking damages for it, from the fact that while, as alleged, he was in the due execution of his contracts, and actually engaged in the transportation of supplies from Lavacca to Arizona, the United States, of its own wrong, and without any fault or negligence on his part, and without notice to him, and without his agreement or consent, had set aside and rescinded the said contracts. On this part of the case it appeared that in April, 1861, the Assistant Commissary-General had recommended to Mr. Cameron, by this time Secretary of War, that the contracts 'be rescinded,' and that, from a sense of insecurity, certain of the articles should be forwarded from St. Louis, and that others might be procured in Arizona or Sonora, of those persons who would furnish them at the cheapest rates. The secretary approving the order, the contract was no longer regarded by the United States as valid.

The Court of Claims dismissed the petition, and the claimant appealed.

Mr. C. B. Gooderich, for the appellant:

I. The petitioner submitted to and acted upon the direction to inspect at Boston and New York. That it was competent for the secretary and the petitioner to agree to inspect at those places, and, to that extent, to modify the terms of the original order, there can be no doubt. The petitioner having acted upon it, pro tanto, to government cannot be allowed to say it was not obligatory upon him. The fact, if it were a fact, that the direction of the War Department for the inspection in Boston and New York, was for the benefit of the contractor, cannot destroy his rights under the modification of the contract.

The inspection by Major Eaton, his acceptance thereof, as shown by his certificate, passed the title in and to the goods inspected and marked.

After inspection and marking, the goods remained in the possession of the claimant but for transportation. The completion of this was prevented by the public enemy, and consequently the loss must be borne by the government. The capture of the goods by an armed force, in rebellion, acting with intent to subvert the government, under the facts found in the case, is a delivery to the United States of the goods ordered.

The relation of the parties, the purpose of the seizure made by the enemy, the use for which the supplies were intended, taken in connection with the fact that the petitioner, as a contractor with the government, must be regarded as in its service, and was rightfully in the face of the enemy, conduce to show that the capture, in this case, by an armed enemy of the government, stands upon grounds peculiar and distinct from those which may or may not apply to a capture from a contractor under other circumstances.

Upon principle, in all cases in which private property is seized by a public enemy, without any default of the owner, the government is bound to sustain the loss. Vattel concedes the principle, although he adds, 'that no action lies against the state for misfortunes of this nature.' He denies but the remedy. He says that 'the sovereign, indeed, ought to show an equitable regard for the sufferers, if the situation of his affairs will admit of it.'

II. The rescission of the contract, by Secretary Cameron, without cause shown, and in the absence of any default on the part of the petitioner, entitles him to damages, which are to be determined by an ascertainment of the profits which he would have made if the contract had not been rescinded, or by a consideration of the expenses which the petitioner had incurred in obtaining teams, &c., to enable him to execute his contract.

Mr. Dickey, Assistant Attorney-General, contra, contended:

I. That the claim for the loss of private property taken in war by the enemy, could not be sustained on principles of law, and was no such claim as the Court of Claims has jurisdiction to try and allow.

That the inspection of goods of a contractor thousands of miles from the place of delivery, did not vest the property so inspected in the United States.

That the whole claim for the loss by capture rested upon the position, that this resulted, without the fault of claimant, from delays caused by the culpable neglect of the United States to inspect the goods at an earlier day; but that the facts did not sustain the claim.

II. As to the rescission. That assuming that the order of Secretary Floyd was a contract, it nowhere appeared that any such supplies were needed after the rescinding of the order. The rescinding of it, therefore, was after the full execution of it, inasmuch as all the supplies needed, &c., had already been furnished, and nothing remained to be done under the order, or if it were a contract, under the contract.

Mr. Justice DAVIS delivered the opinion of the court.

title: Grant v. United States (74 U.S. 331)


text:
Page:Shrinking the Commons.djvu/13

 the following clause (versions of which also appeared in GPLv1 and GPLv2) explaining the function of the license: “Developers that use the GNU GPL protect your rights with two steps: (1) assert copyright on the software, and (2) offer you this License giving you legal permission to copy, distribute and/or modify it.”

Every version of the GPL grants users of the licensed software the rights to engage in the otherwise-infringing acts of copying, modifying, and redistributing the licensed work. Like all open-content licenses, however, the GPL attaches conditions that limit the scope of the authorization the license confers. A licensee’s exercise of one of the rights granted by the license (to copy, modify, or redistribute the work) without observing the applicable conditions exceeds the licensee’s authority, and renders that use unauthorized (and, thus, infringing).

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title: Page:Shrinking the Commons.djvu/13


text: Talk:Grant v. United States (74 U.S. 331)


text:
Grant v. United States (74 U.S. 331)/Opinion of the Court

On the theory that the order of the Secretary of War of March 9th, 1860, granting to Taliafero and Grant the privilege of furnishing and delivering, at certain posts in Arizona, for two years, all the supplies that might be needed there for the service, at certain stipulated rates, was a contract, mutually binding on the government and the claimant, the obligations imposed on the parties to it are clearly defined.

It was the duty of the claimant, as well as his exclusive privilege, to furnish all the supplies which were needed for the use of the service in Arizona, and on the receipt of the goods there, the government was bound to pay him for them the prices which were fixed in the order. It is too plain for controversy, that the property did not vest in the United States until it was delivered. To escape the force of this rule at law, it is insisted, as the goods were inspected in New York and pronounced to be of the proper kind and quality, that the title then passed to the United States, and that they only remained in possession of the claimant for transportation, and as he was prevented from delivering them by the public enemy, the loss must be borne by the United States. This position cannot be sustained, for the inspection at New York, on which it is based, did not work a change of title in the property, nor was it in the contemplation of the parties that it should. It did not affect the contract at all. The goods, by a well-known usage of the War Department, had to be inspected somewhere, and as the contract contained nothing on the subject, it was for the advantage of the contractor that they should be inspected before shipment, rather than at the point of delivery. The War Department took upon itself no additional responsibility by inspecting them in New York, instead of Arizona, and this inspection in no wise relieved the claimant from any obligation which he had assumed. He had agreed to deliver the goods in Arizona, and until he did this there was no contract on the part of the government, either express or implied, to pay him for them. All that the certificate of Major Eaton, the inspecting officer, proves, is, that the goods, when presented to him for inspection, were contained in strong, sound, full-hooped barrels and well-secured tierces, properly marked with the names of the places to which they were destined, and were of the kind and quality usually provided by the subsistence department.

But, it is said the capture of the property is chargeable to the delay of the War Department in making the inspection, and in consequence of this, that the government is not only bound to pay for the supplies which were taken possession of by the enemy, but also to reimburse the claimant for the loss of his wagons and teams. The answer to this is, that the order of the 9th of March, 1860, did not require inspection at Boston or New York, and if the Secretary of War chose to change the order afterwards, by directing that the goods should be inspected at those places, it was optional with the claimant whether or not he would submit to such direction.

But, conceding that the Secretary of War had the right to direct where the goods should be inspected, still he was not required to inspect, until the goods were substantially ready for inspection, and he was notified of the fact; and it is plain, by the finding of the court below, that after such notice and actual readiness, he did not culpably delay the inspection. The evidence shows very clearly, that the difficulty which the agents of the claimant experienced in filling the requisition, was the cause of the delay in inspecting and shipping the goods. If, however, it be admitted that the government was in default in not inspecting sooner, that default had no connection with the subsequent injury suffered by the claimant, and was not the proximate cause of it. In such a case the rule of law applies, that where property is destroyed by accident, the party in whom the title is vested must bear the loss. #fn-s-s

It is insisted that this rule does not apply where private property is seized by the public enemy without any default of the owner, and that in such a case the government is bound to indemnify the sufferers. But the principles of public law do not sanction such a doctrine, and Vattel (page 403) says no action lies against the state for misfortunes of this nature. 'They are accidents caused by inevitable necessity, and must be borne by those on whom they happen to fall.'

Whether there are equities in this particular case, and if so, whether they require that the claimant should be reimbursed, in whole or in part, for the capture of his property, under the circumstances, are questions that must be addressed to Congress, for it is not the province of the judicial department of the government to determine them.

The only remaining point in the case, relates to the rescission by Secretary Cameron of the order of the 9th of March. This proceeding was undoubtedly taken because the supplies needed in Arizona could be either purchased there at cheaper rates, or forwarded more securely from St. Louis. Whether the conduct of the Secretary of War was or was not justifiable, is not a question to be considered in deciding this suit, for the claimant has not shown a state of case on which he could recover if the rescinding order had never been made. The contract entitled him to furnish, at certain prices, all the supplies that might be needed in Arizona until the 20th of March, 1862. To enable him to recover, for a breach of this contract, he should have proved that supplies were needed at the posts in Arizona after the rescinding order was made, and the pecuniary loss he sustained in not being allowed to furnish them. This he has wholly failed to do.

We cannot see that this is a case for even nominal damages; but if it is, the Court of Claims was not instituted to try such a case.

JUDGMENT AFFIRMED.


text: Talk:Grant v. United States (74 U.S. 331)/Opinion of the Court


text:
United States v. Shoemaker

ERROR to the Circuit Court for the Eastern District of Michigan.

This suit was brought by the United States on a bond executed by Shoemaker and his sureties, the defendants, on the 19th of May, 1857, in a penalty of $20,000, conditioned that said Shoemaker, as disbursing agent for the new marine hospital and custom-house, at Detroit, Michigan, should well and truly disburse all moneys that may come into his hands from the Secretary of the Treasury for the object mentioned, and account for the same.

On the trial, the plaintiff proved that the defendant, Shoemaker, was collector of the customs at Detroit, in 1857 and 1858; that he was instructed by the Secretary of the Treasury to disburse about $200,000, appropriated by Congress, for building a custom-house and marine hospital at that port; and that, between the 1st April, 1857, and the 12th June, 1858, and subsequently, the collector made disbursements accordingly.

It was proved, also, that during all the above period he had been allowed and had received his general maximum compensation, under the act of March 2d, 1831, § 4, as collector; and also his special maximum of $400, under the act of May 7th, 1822 (which provides (§ 18), that no collector shall ever receive more than $400 annually, exclusive of his compensation as collector, for any service he may perform for the United States in any other office or capacity), and that he had been allowed one quarter of 1 per cent. upon all disbursements made after June 12th, 1858.

The plaintiff then rested; and the defendants, to maintain their defence, gave in evidence, that the balance shown in the treasury transcripts, against the collector, was composed of an excess over the $400 allowed, under the act of 1822, of 2 1/2 per cent. upon his disbursements; and that this per centum was but a reasonable compensation for the service.

The act of August 4th, 1854, authorized the building of a custom-house and marine hospital, at Detroit, and made an appropriation for the same. The duty was devolved upon the Secretary of the Treasury, and a sum equal to 10 per cent. of the moneys appropriated, was also appropriated to cover the compensation of architects, superintendents, advertising, and other contingent expenses.

The act of June 12th, 1858, provided that collectors of customs should thereafter be disbursing agents for the payment of all moneys appropriated for the construction of custom-houses, court-houses, &c., with a compensation not exceeding one quarter of 1 per cent. This act appropriated a small sum for fencing and grading the grounds about the hospital at Detroit. With this exception, no compensation had been allowed to the collector for the disbursement of the moneys made by him.

The court below directed the jury to find for the defendant if they believed his commission to be a reasonable one. Verdict and judgment went accordingly, and the United States brought the case here on error.

Mr. W. A. Moore, in support of the judgment, contended, that, prior to the act of June 12th, 1858, the disbursing of these moneys was no part of the official duty of the collector of customs. There was no law on the subject; and the Secretary of the Treasury had no right to require any such duty of the collector. The appointment was, therefore, in the nature of an agency of the Treasury Department. It might as well have been conferred upon any other person. And, unless restrained by some statute, Shoemaker was entitled to the same compensation that any other agent would have been.

Mr. Ashton, Assistant Attorney-General, contra.

Mr. Justice NELSON delivered the opinion of the court.

title: United States v. Shoemaker


text: Talk:United States v. Shoemaker

title: Talk:United States v. Shoemaker


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

The question is, whether or not there is any law affording compensation for the service performed by the collector in this case.

The argument in support of it is, that before the act of 1858, which imposed this duty, and prescribed a compensation, the Secretary of the Treasury had no right to require any such duty of the collector, and might as well have appointed some other person to perform it; and, hence, having appointed the collector, who accepted the appointment, and has performed the service, he is entitled to the same compensation as any other agent.

It may be that the collector might have refused the duty, and compelled the secretary to appoint another person. But this does not advance the argument, unless there can be shown some law providing for a compensation to be allowed such agent. No such provision is made in this act, nor are we aware of any authority in any other.

The question here, however, is-the collector having accepted the appointment and performed the service-is there any authority of law entitling him to retain, out of the moneys received, the 2 1/2 per cent. as compensation for the disbursements. It is admitted that there is no act of Congress authorizing it. The claim must rest, therefore, in a quantum meruit. This might, under some circumstances, present a strong case against the government for the allowance of a reasonable compensation. But the difficulty here is, that there is not only no law providing for compensation, but the collector is forbidden to receive it. The act of May 7th, 1822, § 18, provides that 'no collector, &c., shall ever receive more than $400, annually, exclusive of his compensation as collector, &c., for any services he may perform for the United States in any other office or capacity.' And the act of 3d March, 1839, that 'no officer in any branch of the public service, or any other person, whose salaries, or whose pay or emoluments is or are fixed by law and regulations, shall receive any extra allowance or compensation, in any form whatever, for the disbursement of public money, or the performance of any other service, unless the said extra allowance or compensation be authorized by law.' This act was substantially re-enacted 23d August, 1842, with this addition: 'And the appropriation therefore explicitly set forth that it is for such additional pay, extra allowance, or compensation.' This act was noticed and commented on in Hoyt v. United States. The court there observe, that it cuts up by the roots these claims of public officers for extra compensation on the ground of extra services; that there is no discretion left in any officer or tribunal to make allowance, unless it is authorized by some law of Congress. This construction of the acts of 1822 and 1839 was affirmed in the case of Converse v. United States. In that case a compensation was allowed for an extra service rendered by the collector, but it was allowed, for the reason that the service was rendered in pursuance of existing laws, and the appropriation for a compensation was made by law. The principle settled in that case is decisive against the allowance in the present one.

JUDGMENT REVERSED.


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


text:
Thomson v. Dean

THIS was a motion to dismiss an appeal from the Circuit Court for West Tennessee, on the ground that the decree from which it was taken was not final.

The record showed that the controversy related to the ownership and transfer of two hundred and four shares of the stock of the Memphis Gaslight Company, and to the rights of the parties under contracts relating to the purchase, sale, and transfer of the stock.

The decree directed that Dean, the defendant below and appellant here, transfer forthwith upon the books of the company one hundred and ninety-four shares of the stock to one of the plaintiffs below, who are appellees here, and ten shares to another. It directed further, that account be taken and stated as to the amount paid and to be paid for the stock, and as to dividends accrued, and to be credited under the contracts between the parties. This decree was rendered on the 12th of March, 1868, and appeal was allowed on the same day. Bond was given on the 23d.

Mr. Phillips, in support of the motion:

It is, perhaps, not quite easy to reconcile all the decisions of this court on the question as to what is a 'final decree' upon which an appeal will lie.

In Forgay v. Conrad, Taney, C. J., delivering the opinion, says:

title: Thomson v. Dean


text: Talk:Thomson v. Dean

title: Talk:Thomson v. Dean


text:
Thomson v. Dean/Opinion of the Court

'Where the decree decides the right to the property in contest and directs it to be delivered up, or directs it to be sold, and the complainant is entitled to have it carried into immediate execution, the decree must be regarded as final to that extent, although it may be necessary by a further decree to adjust the account between the parties.'

The principle thus laid down indicates that there may be more than one 'final decree' in a cause. But later decisions seem not to sustain what is said in that case.

In Beebe v. Russell the case of Forgay is referred to with the evident intent that it should not be regarded as establishing a principle. 'The fact is,' say the court, 'that the order of reference to the master was peculiar, making it doubtful if it could in any way qualify the antecedent decree.'

So far from sustaining the principle announced in Forgay's case, the court reiterates the decision in the case of The Palmyra, where restitution, with costs and damages, had been decreed, but the damages had not been assessed. This was held on appeal not to be a final decree. The ground of the holding was, that an appeal would lie on the decree awarding damages, and that the cause could not be divided so as to bring up distinct parts of it.

Again, it was decided that the term 'final decree' is to be construed as it was understood in England and this country at the date when Congress acted upon the subject, and that at the date named, a decree was regarded as interlocutory whenever an inquiry as to matter of law or fact is directed preparatory to a final decision; while it is true that a decree may be final, although it directs a reference to the master, provided all the consequential directions depending on the master's report are contained in the decree, so that no further decree will be necessary to give the parties the full benefit of the previous decision of the court.

The latest case is Humiston v. Stainthorp. The bill here was for infringement of a patent; the decree, a permanent injunction, with reference to the master to take an account of profits. The cases were fully discussed at the bar. But the court dismissed the appeal 'according to a long and well-settled class of cases,' which are referred to in a note.

No counsel appeared against the motion.

The CHIEF JUSTICE delivered the opinion of the court.

The question is whether the decree in this case was final for the purpose of appeal?

The eighth rule of the court, prescribing the practice of the United States courts in equity, directs that 'if the decree be for the performance of any specific act, it shall prescribe the time within which the act shall be done, of which the defendant is bound to take notice,' and that, 'on affidavit by the plaintiff of non-performance within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which he shall not be discharged unless on full compliance, or by special order enlarging the time.'

In this case the decree directs the performance of a specific act, and requires that it be done forthwith. The effect of the act when done is to invest the transferees with all the rights of ownership. It changes the property in the stock as absolutely and as completely as could be done by execution on a decree for sale. It looks to no future modification or change of the decree. No such change or modification was possible after the term, except on rehearing or by bill of review in the Circuit Court, or through appeal in this court.

So far as the court below was concerned, the decree in the case determined the principal matter in controversy between the parties. And since the decree could not be changed except through a new and distinct proceeding, it determined that matter finally.

Why, then, must it not be regarded as a final decree within the meaning of the acts of Congress providing for appeals?

The eighth rule of practice to which we have referred certainly regards such a decree as that now under consideration as final in respect to the act to be performed.

But it is insisted that this court has held that no decree which does not completely dispose of the whole cause is final, and that this decree, though disposing completely of the controversy as to the ownership of the stock, is not final, because it directs certain accounts to be taken.

It is true that this court has always desired that appeals be taken only from decrees which are not only final but complete; and has, upon one occasion, at least, directed the attention of the Circuit Courts to the expediency and importance of refraining from making final decrees on any part of a cause, however important, until prepared to dispose of it completely. Such a course would undoubtedly save much inconvenience, both to the Circuit Courts and this court, and diminish largely the expense of litigation to suitors.

And it may be true, that under the influence of these considerations the degree of finality essential to the right of appeal has been sometimes pushed quite to the limit of construction. But we think that the current of decisions fully sustains the rule laid down by the late Chief Justice in the case of Forgay v. Conrad, and which we again declare in his own language: 'When the decree decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is entitled to have such decree carried immediately into execution, the decree must be regarded as a final one to that extent, and authorizes an appeal to this court, although so much of the bill is retained in the Circuit Court as is necessary for the purpose of adjusting by further decree the accounts between the parties pursuant to the decree passed.'

The reasoning in the case just cited fully vindicates this rule, in our judgment, as a sound construction of the acts of Congress relating to appeals, and is sustained by the authority of several decisions.

And it is quite clear that the appeal under consideration is within this rule. The decree for which it was taken decided the right to the property in contest, directed it to be delivered by defendant to complainant by transfer, entitled the complainant to have the decree carried immediately into execution, leaving only to be adjusted accounts between the parties in pursuance of the decree settling the question of ownership.

It follows that the motion to dismiss must be

DENIED.

title: Thomson v. Dean/Opinion of the Court


text: Talk:Thomson v. Dean/Opinion of the Court


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Page:Haiti- Her History and Her Detractors.djvu/47

Rh chopping off their legs and their ears. The hounds were let loose on them, inflicting the greatest torture by their fierce attacks on the unfortunate creatures. Flogging was the mildest chastisement inflicted on the slaves. The honor of their wives, the chastity of their daughters were matters of the slightest consideration to their masters. Small wonder it was that the slave was beset with one fixed idea—to free himself of that odious yoke. Throughout his sufferings he never despaired: liberty was the one hope of his existence. And when he could not buy his freedom he would secure it for himself by fleeing; at the first opportunity he would fly for safety into the densest forests and the most inaccessible gorges of the mountains. When he was successful in effecting his escape he became what was called a maroon. Hence the maroons were slaves who, at the risk of their lives and after undergoing untold hardships, had eventually recovered their freedom. Being outlaws and hunted like wild animals they had continually to be on the lookout. Any place where they could find a safe shelter from their pursuers became their domain. Should they happen to be caught by their owners they knew beforehand that no mercy was to be expected and that the most inhuman punishments the colonial imagination could invent would be theirs. Consequently, when attacked they fought with the fiercest desperation. Theirs was a perpetual struggle for existence. It was these men, without education or culture, who gathered from their confused ideas of human dignity the necessary energy to wage war on the society which was oppressing them so brutally. The first to bid defiance to the colonial system, they showed the men of their race that hardships, sufferings, even death—all were preferable to such degrading servitude. They formed the vanguard of the future army of liberation.

Such were the four classes of men who inhabited


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Page:The Confidence Man.djvu/233

Rh "I know no more of the Moredocks of Moredock Hall than of the Burdocks of Burdock Hut," returned the other, with the air somehow of one whose fortunes had been of his own making; "all I know is, that the late Colonel John Moredock was a famous one in his time; eye like Lochiel's; finger like a trigger; nerve like a catamount's; and with but two little oddities—seldom stirred without his rifle, and hated Indians like snakes."

"Your Moredock, then, would seem a Moredock of Misanthrope Hall—the Woods. No very sleek creature, the colonel, I fancy."

"Sleek or not, he was no uncombed one, but silky bearded and curly headed, and to all but Indians juicy as a peach. But Indians—how the late Colonel John Moredock, Indian-hater of Illinois, did hate Indians, to be sure!"

"Never heard of such a thing. Hate Indians? Why should he or anybody else hate Indians? I admire Indians. Indians I have always heard to be one of the finest of the primitive races, possessed of many heroic virtues. Some noble women, too. When I think of Pocahontas, I am ready to love Indians. Then there's Massasoit, and Philip of Mount Hope, and Tecumseh, and Red-Jacket, and Logan all heroes; and there's the Five Nations, and Araucanians—federations and communities of heroes. God bless me; hate Indians? Surely the late Colonel John Moredock must have wandered in, his mind."

"Wandered in the woods considerably, but never wandered elsewhere, that I ever heard."

title: Page:The Confidence Man.djvu/233


text:
Gaines v. Thompson

APPEAL from the Circuit Court for the District of Columbia.

The Secretary of the Interior having directed the Commissioner of the Land Office to cancel an entry under which Gaines and others claimed an equitable right to certain lands in Arkansas, these last brought their suit in the Circuit Court of the District of Columbia, praying that the secretary and commissioner should be enjoined from making such cancellation. The defendants entered their appearance, and Wilson, the commissioner, filed a plea. The substance of this plea was that the matters set up in the bill were within the exclusive control of the executive department of the government, the secretary and commissioner representing the President, and that the court had no jurisdiction or authority to interfere with the exercise of this power by injunction. In point of fact the validity of the entry in question depended upon the construction of certain acts of Congress, upon the meaning of which different secretaries of the interior had been so far divided that it was thought best to take the opinion of the Attorney-General upon their interpretation.

The court below, sustaining the plea, dismissed the bill; and the question on this appeal was the correctness of such action.

Mr. J. L. Brent, for the appellant, went largely into the merits of the respective claimants, to show that the proposed cancellation was wrong, and ought to be enjoined. He relied upon Lytle v. Arkansas Cunningham v. Ashley, Barnard's Heirs v. Ashley's Heirs, Minnesota v. Bachelder, and several other cases, in order to show that this court did constantly go into such merits and decide according to them, irrespective of decisions by the executive officers connected with the issue of patents.

Mr. Ashton, Assistant Attorney-General, contra, argued, that there were no functions within the range of the executive authority less ministerial in their character than those which devolved upon the officers of the land department in the administration of matters relating to the disposal of the public domain; that these officers had not merely the right, but were obliged to the duty of judgment and decision in them, and were directly responsible in determining the questions which arose before them only to the authority, within their own department of the public service, upon whom a supervisory jurisdiction had been conferred by statute.

The case was therefore within the principle which forbade judicial interference with the exercise of executive discretion; a principle lately so ably explained in this court in the case of Mississippi v. Johnson, that it was almost unnecessary to refer to previous adjudications.

All the cases, he contended, cited by the appellants, in which the courts had undertaken to review ultimately the action of the land office, were cases between private parties, litigated after the legal title had passed, by patent or otherwise, out of the government. That right was undisputed.

Mr. Justice MILLER delivered the opinion of the court.

title: Gaines v. Thompson


text: Talk:Gaines v. Thompson

title: Talk:Gaines v. Thompson


text:
Gaines v. Thompson/Opinion of the Court

The extent of the jurisdiction which may lawfully be asserted by the Federal courts over the officers of the executive departments of the government, has been mooted in this court from the case of Marbury v. Madison down to the present time; and while the principles which should govern the action of the courts in that regard have been settled long since, the frequent application of late to this court, and to other Federal courts, for the exercise of powers not belonging to them, shows that the question is one not generally understood.

In the case already referred to, of Marbury v. Madison, the Chief Justice commented at some length upon the power of the courts over the action of the executive officers of the government, in the course of which he arrived at the conclusion that it is a question which must always depend upon the nature of the act. He then argues, that by the Constitution the President is invested with certain political powers, in the exercise of which he is to use his own discretion, and for which he is accountable only to his country and his conscience, and that he has officers to aid him in the exercise of these powers, who are directly accountable to him. The acts of such an officer, he says, can never, as an officer, be examinable in a court of justice. He holds, however, that where an officer is required by law to perform an act, not of this political or executive character, which affects the private rights of individuals, he is to that extent amenable to the courts. The duty which it was held in that case could be enforced in the proper court by mandamus, was the delivery of a commission already signed by the President. The point, as there presented, was new and embarrassing, and it is no reflection on the distinguished jurist who delivered the opinion to say, that the rule which governs the court in its action, in this class of cases, has since been laid down with more precision, without conflicting with the principles there stated.

In the case of McIntire v. Wood, an application was made to the Circuit Court for the District of Ohio for a mandamus to the register of the land office, to compel him to issue certificates of purchase to plaintiff for lands to which he supposed himself entitled by law. This court was of opinion that no power had been vested by Congress in the circuit courts to issue the writ in such cases. The reasoning of the court is not extended, but the case bears a strong analogy to the one under consideration.

But in Kendall v. United States, the majority of the court held that the courts of the District of Columbia had a larger power than the circuit courts, and could issue writs of mandamus to Federal officers in proper cases. As this is the first case in which the writ was actually ordered, it is worth while to examine the ground on which it was placed. 'The act required to be done by the Postmaster-General,' says the court, 'is simply to credit the relators with the full amount of the award of the solicitor. This is a precise, definite act, purely ministerial, and about which the Postmaster-General had no discretion whatever. This was not an official act in any other sense than being a transaction in the department where the books and accounts were kept, and was an official act in the same sense that an entry in the minutes of a court, pursuant to an order of the court, is an official act. There is no room for the exercise of any discretion, official or otherwise.'

In this language there is no ambiguity, and in it we find a clear enunciation of the rule which separates the class of cases in which the court will interfere from those in which it will not. In the subsequent case of Decatur v. Paulding, where the writ was refused, the Chief Justice, who had dissented in the former case, accepts both the doctrine of the right to issue the writ by the court of the district, and of the cases in which it may be issued, as settled by the case of Kendall v. United States. 'The first question, therefore, to be considered,' he says, 'is whether the duty imposed upon the Secretary of the Navy by the resolution in favor of Mrs. Decatur was a mere ministerial act?' The case of Mrs. Decatur arose under an act of Congress, and also a joint resolution of that body of the same date, both providing compensation for the services of her deceased husband; but the measure of this compensation (which was to be paid to her by the Secretary of the Navy) was in the act different from what it was in the resolution. The secretary held that but one of these was intended by Congress, and gave her the election. She brought suit to compel him to give her both. It is clear she had no other legal remedy. The United States could not be sued. The secretary could not be sued in any other form of action than mandamus. But on the ground that the action of the secretary involved the exercise of judgment and discretion, the order of the Circuit Court refusing the writ was sustained.

This case is cited and relied on in the case of The Commissioner of Patents v. Whiteley, and some of the observations of Chief Justice Taney, in delivering the opinion in the former, are so pertinent to the case before us, and state so well the relations of the judicial branch of the government to the officers engaged in the executive branch, that they may well be reproduced here.

Speaking of the functions of these officers, he says: 'In general, such duties, whether imposed by act of Congress or by resolution, are not mere ministerial duties. The head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. He must exercise his judgment in expounding the laws and resolutions of Congress under which he is required to act.' 'If,' he says, 'a suit should come before this court, which involved the construction of any of those laws, the court certainly would not be bound to adopt the construction given by the head of the department. And if they supposed his decision to be wrong, they would, of course, so pronounce their judgment. But this judgment, upon the construction of the law, must be given in a case in which they have jurisdiction, and in which it is their duty to interpret the acts of Congress, in order to ascertain the rights of the parties before them. The court could not entertain an appeal from the decision of one of the secretaries, nor revise his judgment in any case where the law authorized him to exercise judgment or discretion. Nor can it by mandamus act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care, in the ordinary exercise of his official duties. . . The interference of the courts with the performance of the ordinary duties of the executive departments would be productive of nothing but mischief, and we are quite satisfied that such a power was never intended to be given to them.' To the same effect are also the cases, United States v. Seaman; Same v. Guthrie; Same v. Commissioner of Land Office.

It may, however, be suggested, that the relief sought in all those cases was through the writ of mandamus, and that the decisions are based upon the special principles applicable to the use of that writ. This is only true so far as these principles assert the general doctrine, that an officer to whom public duties are confided by law, is not subject to the control of the courts in the exercise of the judgment and discretion which the law reposes in him as a part of his official functions. Certain powers and duties are confided to those officers, and to them alone, and however the courts may, in ascertaining the rights of parties in suits properly before them, pass upon the legality of their acts, after the matter has once passed beyond their control, there exists no power in the courts, by any of its processes, to act upon the officer so as to interfere with the exercise of that judgment while the matter is properly before him for action. The reason for this is, that the law reposes this discretion in him for that occasion, and not in the courts. The doctrine, therefore, is as applicable to the writ of injunction as it is to the writ of mandamus.

In the one case the officer is required to abandon his right to exercise his personal judgment, and to substitute that of the court, by performing the act as it commands. In the other he is forbidden to do the act which his judgment and discretion tell him should be done. There can be no difference in the principle which forbids interference with the duties of these officers, whether it be by writ of mandamus or injunction.

Accordingly, in the case of The State of Mississippi v. Johnson, which was an application to this court for the writ of injunction in the exercise of its original jurisdiction, the court says that it is unable to perceive that the fact that the relief asked is by injunction takes the case out of the general principles which forbid judicial interference with the exercise of executive discretion.

In the same case the Chief Justice gives is this clear definition of a ministerial duty in the relation in which we have been considering it: 'A ministerial duty, the performance of which may in proper cases be required of the head of a department by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under circumstances admitted or proved to exist and imposed by law.'

The action of the officers of the land department, with which we are asked to interfere in this case, is clearly not of this character. The validity of plaintiffs' entry, which is involved in their decision, is a question which requires the careful consideration and construction of more than one act of Congress. It has been for a long time before the department, and has received the attention of successive secretaries of the interior, and has been found so difficult as to justify those officers in requiring the opinion of the Attorney-General. It is far from being a ministerial act under any definition given by this court.

The numerous cases referred to by counsel, in which this court-after the title had passed from the United States, and the matter had ceased to be under the control of the executive department-has sustained the courts of justice in decreeing the equitable title to belong to the person against whom the department had decided, are not in conflict with these views, but furnish an additional reason for refusing to interfere with such cases while they remain under such control.

DECREE AFFIRMED.

title: Gaines v. Thompson/Opinion of the Court


text: Talk:Gaines v. Thompson/Opinion of the Court


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The Diana (74 U.S. 354)

APPEAL from a decree of the District Court for the Southern District of Florida.

The schooner Diana was captured, on the 26th of November, 1862, by vessels of war of the United States, off Pass Cavallo, on the coast of Texas, then in rebellion against the United States, and, for some time previously, under blockade along the whole line of its coast, and taken to Key West for adjudication.

A libel in prize was filed against both vessel and cargo, in the District Court for the Southern District of Florida, in December, 1862, to which the master of the vessel interposed a claim in behalf of John Cabada, of Campeachy, Mexico, the alleged owner of the schooner, and in behalf of Miguel Canno, a Spanish subject residing at Campeachy, the alleged owner of the cargo. Subsequently a claim was filed by Idela Cabada, alleging that he was owner of the vessel, and that he had let her to one Miguel Canno on freight for a voyage from Campeachy to Matamoras, Mexico, in good faith.

The ship's papers showed that the vessel was on a voyage from Campeachy to Matamoras, and was consigned to one San Roman, at the port last named. She set sail on the 11th November, 1862.

When captured the vessel was near the port of Matagorda, off the coast of Texas. She was fourteen days from Campeachy, and was two hundred miles out of her direct course, having deviated therefrom on the third day out from Campeachy.

The master, in his deposition taken in preparatorio, testified that 'the first port the vessel would have entered had she not been captured would have been the nearest convenient port of entrance, and the second would have been Matamoras,' and 'that for twenty-four hours previous to the capture the ship was steering toward the coast of Texas, in hopes to make a harbor, or beach, or something.'

One of the seamen found on board testified that but for our capture 'the vessel would have entered first the port of Cavallo,' and that 'they were running along the coast for an entrance, and that at the time of the capture the captured vessel was only some three miles from the lighthouse on Pass Cavallo Point.'

In excuse for the position in which the vessel was found it was alleged that when three days out from Campeachy damage had resulted to the rigging of the vessel, causing her to deviate from her course, and that the master approached the coast 'from no other motive than that of seeking shelter to repair the damage of his vessel.'

The log-book, which had perhaps a somewhat elaborate and artificial aspect, stated that there had been a good deal of heavy weather; that the vessel worked much; that when three days out from Campeachy she 'broke the clamp of the peak of the foresail,' which it was necessary to wait till daylight to repair, but which then, at six o'clock in the morning, was repaired, the wind then being favorable, as it was generally, for going to Matamoras; that on the 15th she broke the bobstay of the bowsprit; and that ' a lashing of rope was made to secure the said bowsprit, having no better means,' and that sail was then made with double reefs. It indicated, generally speaking, variable weather, sometimes heavy, sometimes fine; that the vessel, however, required the pumps to be not unfrequently at work; that on the 25th she became uncertain about her longitude, and that on that day, under light variable winds, she 'luffed all that was possible, for the purpose of finding soundings and determining our longitude, and by that means to enable us to make a straight course for our port of destination, or some port near by, where we might repair the damages sustained by the vessel and her rigging.' Twenty-four hours afterwards she was captured, being, as already stated, now off the Texan port of Matagorda.

The following letter of instructions, from the owner of the vessel and the owner of the cargo to the master, was found among his papers.

[Translation.]

CAMPEACHY, November 10th, 1862.

DN. PEDRO JAUREQUIBERRY, present.

DEAR SIR AND FRIEND: We think it advisable to hand you this letter of instructions, in order that you may remember with greater facility and precision the objects of the voyage to be undertaken to-day by our pilot-boat 'Diana,' of which vessel you are master.

You have ample authority to dispose of the goods which are on board of the vessel, and to invest the proceeds in the article which we have mentioned to you verbally, not forgetting that our wishes as well as your personal interest consist in making the most of the article referred to.

Although the vessel goes consigned to Dn. Jose San Roman, you will do what you consider best for our interest. You should not disburse any money while you are able to make purchases from the proceeds of the invoice, and of such ship's stores as you can conveniently dispense with after reserving a sufficient quantity for the return voyage.

As we are embittered by the war which France has declared against the republic, upon the return voyage you will touch at Sisal or Celestun, where you will receive our instructions.

You will keep an accurate account of all moneys disbursed by you, in order that we may determine whether to continue or not these expeditions. We omit any further instructions which we might give, having full confidence in your intelligence and activity.

We conclude by wishing you a safe voyage, and by acknowledging ourselves

Your friends, &c.,

CANNO & CABADA.

The cargo of the Diana consisted in part of rice, starch, coarse flannel, paper, nails, rum, brandy, shoes, and segars; articles which were nearly or quite as abundant at Matamoras as at Campeachy, but which were greatly needed in Texas, at the time, as already said, under blockade by the United States.

There was on board, apparently as a passenger, an Englishman, whose name appeared in the ship's papers as George Stites, but whose real name was George Chase, and who was a pilot, and a resident of Lavacca, Texas.

Acting Master Atkinson, of the United States Navy, in his deposition, taken by leave of court, testified that when he boarded the Diana, her master said that his purpose was to run the blockade; that he had before attempted to do so at St. Louis Pass and did not succeed, and that the same statement was made to him by the pilot of the Diana, who was part owner of the cargo.

Acting Master Samson, also of the United States Navy, in his deposition testified that Chase, the ostensible passenger on board, and who was part owner of the cargo, stated that he was engaged to act as her pilot in entering Matagorda Bay, or any other convenient port of Texas, and that the vessel was intended to violate the blockade; and that Chase made a written acknowledgment to this effect, in presence of several witnesses.

On the hearing, it was brought to the notice of the court that a person of the same name with the captain of the Diana, and residing at the same place, commanded the schooner Sea Witch, which was captured off the coast of Texas for an alleged intention to violate the blockade, and was restored to her owner upon the ground that while on a voyage from Matamoras to New Orleans, she was driven out of course by heavy weather and had been damaged; the same excuse which is offered in this case.

The District Court decreed restitution, and from the decree the United States appealed.

Mr. Ashton, Assistant Attorney-General, for the United States, relief upon the very suspicious facts disclosed by the case upon the position of the vessel, so far out of her proper course, and upon the circumstance, very remarkable if the case was one of innocence, that the captain of the vessel had been recently found on another vessel, in exactly the same unfortunate circumstances as he now invoked the interest of the court for, in the case of the Diana. He was not a novus hospes in this tribunal.

No opposing counsel.

Mr. Justice FIELD delivered the opinion of the court.

title: The Diana (74 U.S. 354)


text: Talk:The Diana (74 U.S. 354)

title: Talk:The Diana (74 U.S. 354)


text:
The Diana (74 U.S. 354)/Opinion of the Court

The schooner Diana was captured, in November, 1862, off Cavallo, near the entrance of Matagorda Bay, on the coast of Texas. According to her papers, she was on a voyage from Campeachy, in Mexico, to Matamoras, at the mouth of the Rio Grande; but at the time of her capture she had been fourteen days at sea and had passed two hundred miles beyond her alleged port of destination. We have no doubt that she was then seeking to enter a blockaded port on the coast. The master states in his deposition that the vessel, if she had not been captured, would have first entered the nearest convenient port, and afterwards gone to Matamoras, and that for twenty-four hours previous to her capture he was steering the vessel toward the coast in hopes of making a harbor or a beach. One of the seamen testifies that the vessel was running along the coast for an entrance; that at the time of her capture she was only three miles from the lighthouse on Pass Cavallo Point, and but for the capture would have entered the port of Cavallo.

Nor do we doubt that it was the object of the voyage to trade with the enemy, and for that purpose that the owners of the vessel and cargo intended to violate the blockade. The excuse offered by the master for the position in which the vessel was found-that she had been injured by stress of weather, and he was approaching the coast with no other motive than that of seeking shelter to repair the damage-is inconsistent with various facts developed by the evidence.

In the first place, the papers of the vessel purport that she was consigned to one San Roman, at Matamoras, but the instructions from the owners of both vessel and cargo show that this consignment was colorable, and that the master was the real consignee. He was clothed with full authority to dispose of the goods on board, and to invest the proceeds in what is very mysteriously termed the article, which they had mentioned to him verbally. The article to which allusion is thus made, was cotton, which it was undoubtedly the object of the voyage to procure.

In the second place, the articles which composed the cargo were as abundant and cheap at Matamoras as at Campeachy, whilst they were in great demand and of high price in the country occupied by the enemy.

In the third place, the vessel had on board, ostensibly as a passenger, but under a fictitious name, an Englishman, who was a pilot, and a resident of Lavacca, a town at the head of Matagorda Bay, for which the vessel was evidently directing her course when captured.

Besides these considerations, which are sufficient of themselves to justify the conclusion that a violation of the blockade was in the original intention of the owners of vessel and cargo before the vessel sailed from Campeachy, it was admitted by the master at the time of the capture that it was his purpose to run the blockade, and that he had before attempted, without success, to do so at St. Louis Pass. The Englishman on board, who joined the vessel at Campeachy, also stated that he was engaged to act as pilot of the vessel to enter Matagorda Bay, or any other convenient port of Texas.

The blockade of the coast of Texas had been established long before the vessel sailed from Campeachy, and its existence was generally known. It is proved that it was known to the owners and master of the captured vessel.

There is another circumstance which may be adverted to in this connection. The master of this vessel was also the master of the Sea Witch, which was captured off the coast of Texas for an attempt to violate the blockade, and was released upon the ground, that whilst on a voyage from Matamoras to New Orleans she was driven out of her course by stress of weather and injuries received-an excuse similar to the one offered in this case. This circumstance the court will take notice of, and it will justify a rigid scrutiny into the character of the exculpating testimony produced by the master in the present case. Such is the language of the adjudged cases.

The statement of the master as to the extent of injuries which the vessel had received is not supported by the log-book. The injuries which are shown by its entries were not of a very serious character-such as would endanger the safety of the vessel. Much less do the entires show the necessity of any deviation of the vessel from a direct course to Matamoras. The statement is, that she deviated from such course on the third day out from Campeachy, because the sea and wind were heavy, and the rigging of the vessel had been damaged. The log-book shows that the damage was repaired the following morning, and on the next day that the wind was fair for sailing in a direct course to Matamoras, and so continued nearly all the time up to the capture.

It is undoubtedly true that a vessel may be in such distress as to justify her in attempting to enter a blockaded port. She may be out of provisions or water, or she may be in a leaking condition, and no other port be of easy access. The case, however, must be one of absolute and uncontrollable necessity; and this must be established beyond reasonable doubt. 'Nothing less,' says Sir William Scott, 'than an uncontrollable necessity, which admits of no compromise, and cannot be resisted,' will be held a justification of the offence. Any rule less stringent than this would open the door to all sorts of fraud. Attempted evasions of the blockade would be excused upon pretences of distress and danger, not warranted by the facts, but the falsity of which it would be difficult to expose.

The decree of the court below must be REVERSED, and that court directed to enter a decree condemning the vessel and cargo as lawful prize; and it is

SO ORDERED.


text: Talk:The Diana (74 U.S. 354)/Opinion of the Court


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Kellogg v. United States

APPEAL from the Court of Claims.

By an act of March 3d, 1853, Congress authorized the commencement of an aqueduct to supply Washington with water. Captain Meigs was appointed to superintend the work.

In January, 1854, Captain Meigs, on behalf of the United States, entered into a contract with Degges & Smith, by which they agreed to furnish for the work a certain number of bricks, for which the United States agreed to pay at a specified rate per thousand. To secure performance, Degges & Smith gave bond, with Mechlin & Alexander as sureties.

The contract between Captain Meigs and Degges & Smith contained a provision that neither the contract, nor any part of it, should be 'sub-let or assigned.'

In March, 1855, Congress having appropriated a certain sum for continuing the work, Captain Meigs gave notice to Degges & Smith, and also to their sureties, Mechlin & Alexander, that there would be required for the work of that season, a portion of the bricks. To this notice Degges & Smith made no response, but abandoned their undertaking, and failed to comply with their contract.

Degges & Smith having thus made default, Mechlin & Alexander, in order to save themselves from prosecution on their bond, entered into an arrangement with Captain Meigs, by which they assumed the contract which had been made with Degges & Smith.

Mechlin & Alexander, accordingly, made preparations for the manufacture of the bricks necessary to fulfil their contract; but before completing their arrangements, they, in March, 1856, entered into a contract with one Kellogg, by which he undertook to furnish all the bricks required, and to receive payment therefor from the United States at the contract price, and to pay over to Mechlin & Alexander, 5 per cent. of the amount so received; and Mechlin & Alexander by deed constituted him their lawful attorney to furnish the bricks, and to receive payment therefor.

Kellogg continued to furnish bricks, as the agent of Mechlin & Alexander, during the summer of 1856, until what remained of the appropriations for the building of the aqueduct was exhausted, when he received notice from Captain Meigs not to make or deliver any more.

On the 3d of March, Congress passed a joint resolution, containing a proposition to 'all parties respectively interested on account of their contract for manufacturing bricks for the Washington aqueduct,' that, if they would cancel it, the United States would settle with them, 'on the principles of justice and equity, all damages, losses, and liabilities incurred by said parties respectively on account of their contract.'

title: Kellogg v. United States


text: Talk:Kellogg v. United States

title: Talk:Kellogg v. United States


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

After the passage of this resolution, Mechlin & Alexander, and Kellogg, also accepted the proposition, and cancelled the contract.

Upon this, the Secretary of the Treasury proceeded to make the settlement contemplated by said joint resolution, and awarded to Mechlin & Alexander, as the only persons included in the provisions of the resolution, $29,534. Of the sum so awarded by the secretary to Mechlin & Alexander, Kellogg, accepting it under protest, received $10,476, as the amount he was entitled to receive under his contract with Mechlin & Alexander.

Kellogg now filed his petition in the court below, setting forth the facts above stated, and insisting that the award of the said sum of money to Mechlin & Alexander, and the exclusion of him from the benefits of the resolution by the secretary, was erroneous, and contrary to the intent of the resolution; and that the secretary should have awarded him, as the amount he was entitled to receive under the resolution, as 'a party interested in said contract,' the sum of $62,692; to recover which sum and interest, amounting in all to $91,389, the suit was instituted.

To this petition the United States demurred; and the demurrer having been sustained by the Court of Claims and the petition dismissed, the case was now here on appeal.

Messrs. Carlisle and McPherson, for the claimant, Kellogg.

Mr. Talbot, contra.

Mr. Justice GRIER delivered the opinion of the court.

The case, well stated by the reporter, sufficiently demonstrates that there was no error in the decision of the Court of Claims sustaining the demurrer to the plaintiff's petition.

The claimant has not shown that he was ever known or recognized by the United States as one of the parties to, or as interested in, the contract made by Captain Meigs, on behalf of the United States, for furnishing bricks for the construction of the Washington aqueduct. That contract provides that it should not be sub-let or assigned.

The petition shows that the claimant was acting under a contract with Mechlin & Alexander (who were the sureties for the fulfilment of the contract of Degges & Smith), and not under a contract with the United States, and was recognized only as agent, attorney-in-fact, or employ e of the sureties; and that under the resolution of Congress, approved March 3d, 1857, by which the Secretary of the Treasury was authorized to settle with all the parties, respectively, in the contract, the claimant was not included, because he was no party to it either originally or by substitution.

The award made by the Secretary of the Treasury, and the payment of the money under it, were in strict accordance with the provisions of the resolution. The secretary properly declined to settle the account between Mechlin & Alexander as to how the money so paid should be divided between them and their agent. Of this sum the petitioner received $10,476, which he accepted, 'under protest;'-which could only mean saving his right to importune Congress or the Court of Claims for more. This has occasionally proved a valuable privilege. But something more is necessary to recover in a court of justice.

JUDGMENT AFFIRMED.


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