text:
Union Mutual Insurance Company v. Wilkinson/Opinion of the Court

On the first branch of the case the court said to the jury that, if the effects of the fall were temporary, and had entirely passed away before the application was taken, and if it did not affect Mrs. Wilkinson's health or shorten her life, then the non-disclosure of the fall was no defence to the action. On the other hand, if the effects of the fall were not temporary, and remained when the application was taken, or if the fall affected the general health, or was so serious that it might affect the health or shorten life, then the non-disclosure would defeat recovery, although the failure to mention the fall was not intentional or fraudulent.

It is insisted by counsel for the defendant that if the injury was considered serious at the time, it is one which must be mentioned in reply to the interrogatory, and that whether any further inquiry is expedient on the subject of its permanent influence on the health, is for the insurer to determine before making insurance. But there are grave and obvious difficulties in this construction. The accidents resulting in personal injuries, which at the moment are considered by the parties serious, are so very numerous that it would be almost impossible for a person engaged in active life to recall them at the age of forty or fifty years; and if the failure to mention all such injuries must invalidate the policy, very few would be sustained where thorough inquiry is made into the history of the party whose life is the subject of insurance. There is, besides, the question of what is to be considered a serious injury at the time. If the party gets over the injury completely, without leaving any ill consequence, in a few days, it is clear that the serious aspect of the case was not a true one. Is it necessary to state the injury and explain the mistake to meet the requirements of the policy?

On the other hand, when the question arises, as in this case, on a trial, the jury, and not the insurer, must decide whether the injury was serious or not. In deciding this, are they to reject the evidence of the ultimate effect of the injury on the party's health, longevity, strength, and other similar considerations? This would be to leave out of view the essential purpose of the inquirty, and the very matters which would throw most light on the nature of the injury, with reference to its influence on the insurable character of the life proposed.

Looking, then, to the purpose for which the information is sought by the question, and to the difficulty of answering whether an injury was serious, in any other manner than by reference to its permanent or temporary influence on the health, strength, and longevity of the party, we are of opinion that the court did not err in the criterion by which it directed the jury the decide the interrogatory propounded to them.

Passing then to the second branch of the case. The defendant excepted to the introduction of the oral testimony regarding the action of the agent, and to the instructions of the court on that subject; and assigus the ruling of the court as error on the ground that it permitted the written contract to be contradicted and varied by parol testimony.

The great value of the rule of evidence here invoked cannot be easily overestimated. As a means of protecting those who are honest, accurate, and prudent in making their contracts, against fraud and false swearing, against carelessness and inaccuracy, by furnishing evidence of what was intended by the parties, which can always be produced without fear of change or liability to misconstruction, the rule merits the eulogies it has received. But experience has shown that in reference to these very matters the rule is not perfect. The written instrument does not always represent the intention of both parties, and sometimes it fails to do so as to either; and where this has been the result of accident, or mistake, or fraud, the principle has been long recognized that under proper circumstances, and in an appropriate proceeding, the instrument may be set aside or reformed, as best suits the purposes of justice. A rule of evidence adopted by the courts as a protection against fraud and false swearing, would, as was said in regard to the analogous rule known as the statute of frauds, become the instrument of the very fraud it was intended to prevent, if there did not exist some authority to correct the universality of its application. It is upon this principle that courts of equity proceed in giving the relief just indicated; and though the courts, in a common law action, may be more circumscribed in the freedom with which they inquire into the origin of written agreements, such an inquiry is not always forbidden by the mere fact that the party's name has been signed to the writing offered in evidence against him.

In the case before us a paper is offered in evidence against the plaintiff containing a representation concerning a matter material to the contract on which the suit is brought, and it is not denied that he signed the instrument, and that the representation is untrue. But the parol testimony makes it clear beyond a question, that this party did not intend to make that representation when he signed the paper, and did not know he was doing so, and, in fact, had refused to make any statement on that subject. If the writing containing this representation had been prepared and signed by the plaintiff in his application for a policy of insurance on the life of his wife, and if the representation complained of had been inserted by himself, or by some one who was his agent alone in the matter, and forwarded to the principal office of the defendant corporation, and acted upon as true, by the officers of the company, it is easy to see that justice would authorize them to hold him to the truth of the statement, and that as they had no part in the mistake which he made, or in the making of the instrument which did not truly represent what he intended, he should not, after the event, be permitted to show his own mistake or carelessness to the prejudice of the corporation.

If, however, we suppose the party making the insurance to have been an individual, and to have been present when the application was signed, and soliciting the assured to make the contract of insurance, and that the insurer himself wrote out all these representations, and was told by the plaintiff and his wife that they knew nothing at all of this particular subject of inquiry, and that they refused to make any statement about it, and yet knowing all this, wrote the representation to suit himself, it is equally clear that for the insurer to insist that the policy is void because it contains this statement, would be an act of bad faith and of the grossest injustice and dishonesty. And the reason for this is that the representation was not the statement of the plaintiff, and that the defendant knew it was not when he made the contract; and that it was made by the defendant, who procured the plaintiff's signature thereto.

It is in precisely such cases as this that courts of law in modern times have introduced the doctrine of equitable estoppels, or, as it is sometimes called, estoppels in pais. The principle is that where one party has by his representations or his conduct induced the other party to a transaction to give him an advantage which it would be against equity and good conscience for him to assert, he would not in a court of justice be permitted to avail himself of that advantage. And although the cases to which this principle is to be applied are not as well defined as could be wished, the general doctrine is well understood and is applied by courts of law as well as equity where the technical advantage thus obtained is set up and relied on to defeat the ends of justice or establish a dishonest claim. It has been applied to the precise class of cases of the one before us in numerous well-considered judgments by the courts of this country. Indeed, the doctrine is so well understood and so often enforced that, if in the transaction we are now considering, Ball, the insurance agent, who made out the application, had been in fact the underwriter of the policy, no one would doubt its applicability to the present case. Yet the proposition admits of as little doubt that if Ball was the agent of the insurance company, and not of the plaintiff, in what he did in filling up the application, the company must be held to stand just as he would if he were the principal.

Although the very well-considered brief of counsel for plaintiff in error takes no issue on this point, it is obvious that the soundness of the court's instructions must be tested mainly by the answer to be given to the question, 'Whose agent was Ball in filling up the application?'

This question has been decided differently by courts of the highest respectability in cases precisely analogous to the present. It is not to be denied that the application, logically considered, is the work of the assured, and if left to himself or to such assistance as he might select, the person so selected would be his agent, and he alone would be responsible. On the other hand, it is well known, so well that no court would be justified in shutting its eyes to it, that insurance companies organized under laws of one State, and having in that State their principal business office, send these agents all over the land, with directions to solicit and procure applications for policies, furnishing them with printed arguments in favor of the value and necessity of life insurance, and of the special advantages of the corporation which the agent represents. They pay these agents large commissions on the premiums thus obtained, and the policies are delivered at their hands to the assured. The agents are stimulated by letters and instructions to activity in procuring contracts, and the party who is in this manner induced to take out a policy, rarely sees or knows anything about the company or its officers by whom it is issued, but looks to and relies upon the agent who has persuaded him to effect insurance as the full and complete representative of the company, in all that is said or done in making the contract. Has he not a right to so regard him? It is quite true that the reports of judicial decisions are filled with the efforts of these companies, by their counsel, to establish the doctrine that they can do all this and yet limit their responsibility for the acts of these agents to the simple receipt of the premium and delivery of the policy, the argument being that, as to all other acts of the agent, he is the agent of the assured. This proposition is not without support in some of the earlier decisions on the subject; and, at a time when insurance companies waited for parties to come to them to seek assurance, or to forward applications on their own motion, the doctrine had a reasonable foundation to rest upon. But to apply such a doctrine, in its full force to the system of selling policies through agents, which we have described, would be a snare and a delusion, leading, as it has done in numerous instances, to the grossest frauds, of which the insurance corporations receive the benefits, and the parties supposing themselves insured are the victims. The tendency of the modern decisions in this country is steadily in the opposite direction. The powers of the agent are, prim a facie, coextensive with the business intrusted to his care, and will not be narrowed by limitations not communicated to the person with whom he deals. An insurance company, establishing a local agency, must be held responsible to the parties with whom they transact business for the acts and declarations of the agent, within the scope of his employment, as if they proceeded from the principal.

In the fifth edition of American Leading Cases, after a full consideration of the authorities, it is said:

'By the interested or officious zeal of the agents employed by the insurance companies in the wish to outbid each other and procure customers, they not unfrequently mislead the insured, by a false or erroneous statement, of what the application should contain, or, taking the preparation of it into their own hands, procure his signature by an assurance that it is properly drawn, and will meet the requirements of the policy. The better opinion seems to be that, when this course is pursued, the description of the risk should, though nominally proceeding from the insured, be regarded as the act of the insurers.'

The modern decisions fully sustain this proposition, and they seem to us founded in reason and justice, and meet our entire approval. This principle does not admit oral testimony to vary or contradict that which is in writing, but it goes upon the idea that the writing offered in evidence was not the instrument of the party whose name is signed to it; that it was procured under such circumstances by the other side as estops that side from using it or relying on its contents; not that it may be contradicted by oral testimony, but that it may be shown by such testimony that it cannot be lawfully used against the party whose name is signed to it.

JUDGMENT AFFIRMED.


text: Talk:Union Mutual Insurance Company v. Wilkinson/Opinion of the Court

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


text:
Ex parte McNiel

SUR petition for a writ of prohibition to the judge of the District Court of the United States for the Eastern District of New York.

Mr. Donohue, in support of the petition; Mr. F. A. Wilcox, contra.

Mr. Justice SWAYNE stated the case and delivered the opinion of the court.

title: Ex parte McNiel


text: Talk:Ex parte McNiel

title: Talk:Ex parte McNiel


text:
Ex parte McNiel/Opinion of the Court

Alexander Banter filed his libel in the District Court above named against the owners of the bark Maggie McNiel, wherein it was set forth that the libellant was a pilot of the port of New York, duly licensed under the laws of the State of New York, to pilot vessels by way of Hellgate, and that the respondents were the owners of the bark; that on the 27th day of February, 1870, the libellant, at a point on Long Island Sound, tendered his services and offered to the master of the bark to pilot her by way of Hellgate to the port of New York, and notwithstanding that the libellant was the first pilot so offering his services they were refused; that the bark was a registered vessel foreign to the port of New York, and drew more than thirteen feet of water, so that there became due to the libellant by reason of the premises the sum of twenty-three dollars; that payment has been demanded and refused, and that the premises are within the admiralty and maritime jurisdiction of the United States and of the court to which the libel was addressed.

Process was issued according to the prayer of the libel, and the respondents not being found the vessel was attached. Alexander McNiel intervened as claimant and answered the libel. The answer denies that the action is founded upon a contract civil and maritime. It admits that the bark was sailing under a register, and alleges that she was towed through Hellgate by a steam-tug, which had on board a duly licensed pilot, and that the master of the bark paid for the service. It insists that the cause of action set forth in the libel is not enforceable by the District Court and not within its jurisdiction. Testimony was taken, the cause proceeded to hearing, and the court gave judgment for the amount claimed by the libellant. The respondent applies for a writ of prohibition to restrain the District Court from enforcing the judgment.

(1) That the District Court has no jurisdiction of the cause of action stated in the libel.

(2) That no lien existed on the vessel enforceable in a court of admiralty.

The statute of the State upon which the libel was founded is entitled 'An act concerning the Pilots of the Channel of the East River, commonly called Hellgate, passed April 15th, 1847, as amended March 12th, 1860, March 14th, 1865, April 16th, 1868, and April 5th, 1871.' It is a carefully digested system of regulations, covering the whole subject of pilotage, and was designed to secure the appointment of qualified persons and to insure as far as possible the faithful performance of their duties. All appointments are required to be make upon the recommendation of the board of wardens of the port of New York to the governor, the nomination by him to the Senate of the State of the persons so recommended, and their confirmation by that body. Apprentices are required to serve three years, to be examined twice during the last year by the board of wardens, and to serve two years afterwards as deputies before they can be appointed pilots. The seventh section of the act provides that a pilot who shall first tender his services may demand from the master of any vessel of one hundred tons burden and upwards, navigating Hellgate, to whom the tender was made and by whom it was refused, half-pilotage, the amount to be ascertained according to the rules prescribed by the act. Certain exceptions are made which do not affect this case and which it is therefore not necessary to consider.

It is not denied that the case made by the libel is within the statute, nor that it was established by the testimony, but it is insisted that the statute is in conflict with the power of Congress to regulate commerce, and is therefore void.

It must be admitted that pilot regulations are regulations of commerce. A pilot is as much a part of the commercial marine as the hull of the ship and the helm by which it is guided; and half pilotage, as it is called, is a necessary and usual part of every system of such provisions. Pilots are a meritorious class, and the service in which they are engaged is one of great importance to the public. It is frequently full of hardship, and sometimes of peril; night and day, in winter and summer, in tempest and calm, they must be present at their proper places and ready to perform the duties of their vocation. They are thus shut out for the time being from more lucrative pursuits and confined to a single field of employment.

It is not complained anywhere, so far as we are advised, that the sum of what is allowed them is oppressive, or that including half-pilotage, it is more than sufficient to secure the services of persons of proper qualifications and to give them a reasonable compensation.

There is nothing new in provisions of the same character with the one here under consideration. They have obtained from an early period and are to be found in the laws of most commercial states. The obligation on the captain to take a pilot, or be responsible for the damages that might ensue, was prescribed in the Roman Law. The Hanseatic ordinances, about 1457, required the captain to take a pilot under the penalty of a mark of gold. The maritime law of Sweden, about 1500, imposed a penalty for refusing a pilot of 150 thalers, one-third to go to the informer, one third to the pilot who offered, and the residue to poor mariners. By the maritime code of the Pays Bas the captain was required to take a pilot under a penalty of 50 reals, and to be responsible for any loss to the vessel. By the maritime law of France, ordinance of Louis the XIV, 1681, corporal punishment was imposed for refusing to take a pilot, and the vessel was to pay 50 livres, to be applied to the use of the marine hospital and to repair damages from stranding. In England (3 George I, ch. 13), if a vessel were piloted by any but a licensed pilot, a penalty of 20 was to be collected for the use of superannuated pilots, or the widows of pilots. In the United States, provisions, more or less stringent, requiring the payment of a sum when no pilot is taken, are to be found in the statutes of ten of the States. The earliest of these statutes is that of Massachusetts of 1783, and the latest, to which our attention has been called, the statute of New York here under consideration.

But, conceding that this provision is a regulation of commerce and within the power of Congress upon that subject, it by no means follows that it involves the constitutional conflict insisted upon by the counsel for the petitioner. In the complex system of polity which prevails in this country the powers of government may be divided into four classes.

Those which belong exclusively to the States.

Those which belong exclusively to the National government.

Those which may be exercised concurrently and independently by both.

Those which may be exercised by the States, but only until Congress shall see fit to act upon the subject. The authority of the State then retires and lies in abeyance until the occasion for its exercise shall recur.

The commercial power lodged by the Constitution in Congress is, in part, of this character. Some of the rules prescribed in the exercise of that power must, from the nature of things, be uniform throughout the country. To that extent the power itself must, necessarily, be exclusive; as much so as if it had been so declared to be, by the organic law, in express terms. Others may well vary with the varying circumstances of different localities. In the latter contingency the States may prescribe the rules to be observed until Congress shall supersede them; the Constitution and laws of the United States in such case, as in all others to which they apply, being the supreme law of the land. This subject, in some of its aspects, was fully considered in Gilman v. Philadelphia. What is there said need not be repeated. In that case it was held that the State of Pennsylvania might competently authorize a bridge to be built across the Schuylkill River in that city, but that Congress, in the exercise of its paramount power, might require it to be removed, and prohibit and punish the erection of like structures, whenever it was deemed expedient to do so. It is the exercise, and not the existence, of the power that is effectual and exclusive.

The Constitution took effect on the first Wednesday of March, 1789. Pilot laws existed in several of the States at that time, and were subsequently enacted in others. In all such States, it is believed, they have been changed from time to time according to the will of their respective legislatures. Suits in the State courts have been founded upon them and recoveries had, and many such cases are reported. In none of them have we found that the question was raised, or a doubt expressed, as to the validity of the laws or the authority of the States to enact them.

The legislation of Congress upon the subject is as follows: The 4th section of the act of August 7th, 1789, provided that pilots should be regulated by the existing laws of the States, or such as the States should thereafter enact, 'until further legislative provision should be made by Congress.' Whatever may be the effect of the provision looking to future State legislation, it is clear that the body which passed the section did not doubt the power of the States to legislate upon the subject. This was the first Congress which sat under the Constitution, and many of its members were members of the Convention which framed that instrument. The act of March 2d, 1837, declares that a vessel, approaching or leaving a port situate upon waters which are the boundary between two States, may employ a pilot licensed by either of such States, 'any law, usage, or custom to the contrary notwithstanding.' The act of August 30th, 1852, regulates the appointment of pilots upon certain steamboats, and is a complete system as to the class of vessels to which it applies. The act of June 8th, 1864, regulates the fee to be paid by a pilot for his certificate under the act of 1852. It also requires pilots of the vessels of the class named to be licensed according to the provisions of that act. The act of July 13th, 1866, declares that no regulation shall be adopted by any State making a discrimination as to the rule of half-pilotage between the vessels therein described, and such existing regulations were thereby annulled. The act of February 25th, 1867, contains a pilot regulation touching the sea-going vessels there described, with a proviso that certain State regulations should not be thereby affected. The act of July 25th, 1866, provides for the revocation of the pilot's license for the offences specified. These several acts assert and exercise the plenary power of Congress over the subject. This early and long-continued practical construction of the Constitution by both National and State authorities, as affecting the validity of the statutory provision here in question, if a doubt could otherwise exist upon the subject, would be entitled to the gravest consideration.

The precise question we are considering came before this court in Cooley v. The Board of Wardens of the City of Philadelphia. The suit was for half-pilotage under a statute of Pennsylvania, substantially the same, in this particular, with the statute of New York. The plaintiff recovered in the lower court, and the Supreme Court of the State affirmed the judgment. The case was brought here for review by a writ of error under the 25th section of the Judiciary Act, and was argued with exhaustive learning and ability. This court, after the fullest consideration of the subject, also affirmed the judgment. We are entirely satisfied with that adjudication, and reaffirm the doctrines which it lays down. It is conclusive upon this branch of the case before us.

The other objections taken to the judgment relate to the jurisdiction of the court. It is said there is no jurisdiction in admiralty to maintain a libel for a penalty. It was not a penalty that was recovered. There was a tender of services upon which the law raised an implied promise to pay the amount specified in the statute. Courts of admiralty have undoubted jurisdiction of all marine contracts and torts. That contracts relating to pilotage are within the sphere of the admiralty jurisdiction has not been controverted by the counsel for the petitioner. The question is not an open one in this court.

It is urged further that a State law could not give jurisdiction to the District Court. That is true. A State law cannot give jurisdiction to any Federal court; but that is not a question in this case. A State law may give a substantial right of such a character that where there is no impediment arising from the residence of the parties, the right may be enforced in the proper Federal tribunal whether it be a court of equity, of admiralty, or of common law. The statute in such cases does not confer the jurisdiction. That exists already, and it is invoked to give effect to the right by applying the appropriate remedy. This principle may be laid down as axiomatic in our National jurisprudence. A party forfeits nothing by going into a federal tribunal. Jurisdiction having attached, his case is tried there upon the same principles, and its determination is governed by the same considerations, as if it had been brought in the proper State tribunal of the same locality. In no class of cases has the application of this principle been sustained by this court more frequently than in those of admiralty and maritime jurisdiction.

APPLICATION FOR WRIT DENIED AND PETITION DISMISSED.

title: Ex parte McNiel/Opinion of the Court


text: Talk:Ex parte McNiel/Opinion of the Court


text:
Bath County v. Amy

ERROR to the Circuit Court for the District of Kentucky; the case being thus:

The 11th section of the Judiciary Act of 1789, enacts that—

'The Circuit Court shall have original cognizance concurrent with the courts of the several States, of all suits of a civil nature at common law,. . . between a citizen of the State where the suit was brought, and a citizen of another State.'

The 14th section of the same act, referring to certain courts of the United States, including the Circuit Courts, enacts:

'That all the before-mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and ALL other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.'

An act passed in 1813 by the legislature of Kentucky (which State was admitted into the Union A. D. 1792), enacts:

'SECTION 2. That it shall be lawful for the person at whose instance a mandamus may be issued, to traverse the truth of any one or more of the facts asserted in the return made to such writ, the traverser concluding the same by an appeal to the country for the trial of the contested facts upon which issue may have been taken by such traverse. A jury shall be empanelled and sworn by order of the court having jurisdiction thereof, subject to the same rules and regulations, and with power to such courts to superintent and control such jury, by instructing them in points of law which may arise in the course of such trial, or of granting new trials in the same manner, and to be governed by the same principles which are applicable to the trial by jury in other cases at common law.

'SECTION 3. It shall be the duty of such court upon the result of any such finding as aforesaid, to pronounce judgment thereon in favor of either party according to law, and to award judgment for the costs of suing out or defending such mandamus as the case may be, in favor of the successful party, upon which execution shall and may be issued as in other cases.'

And, finally, an act of Congress of May 19th, 1828, enacts:

'That the forms of mesne process, except the style, and the forms and modes of proceeding in suits in the courts of the United States held in those States admitted into the Union since the 29th day of September, in the year 1789, in those of common law, shall be the same, in each of the said States respectively, as are now used in the highest court of original and general jurisdiction of the same.'

With those statutes, Federal and State, in force, the legislature of Kentucky incorporated, A. D. 1852, the Lexington and Big Sandy Railroad Company. By the charter of the railroad the county courts of the different counties, through which it was to run, were authorized to subscribe to the stock of the road, and to pay their subscriptions by borrowing money; making the money borrowed payable in the way in which the county courts should deem most advisable. The interest on all such sums borrowed was to be provided for in like manner, provided that all taxes laid to pay either principal and interest, should be sacredly appropriated to such purpose and no other. A subsequent act required the county courts to issue bonds, and to proceed to levy, assess, and collect a tax to pay the interest thereon, according to the true intent and meaning of the previous act.

The county of Bath subscribed $150,000, and issued one hundred and fifty bonds of $1000 each, payable thirty years from date, with interest semiannually, for which coupons were annexed. And the company having indorsed them, sold, and put them into circulation. The county court levied the tax and paid the interest for five years, and then stopped payment.

In this state of things one Amy, of New York, being the holder of eighty-two of the bonds, with the overdue and unpaid coupons, in November, 1866, made a written demand upon the justices, who composed the county court of Bath County, requiring the court forthwith to levy the necessary tax to pay his coupons, and notified to each of the judges that if they did not do so, he would on the second day of the next term of the Circuit Court of the United States, sitting in the District, move that court for the writ of mandamus requiring them to do it. No tax was levied; and at the next term of the Circuit Court, Amy accordingly filed an affidavit in the nature of an information, setting forth specifically his case, and concluding with a prayer for a mandamus requiring the tax to be levied. The court granted a rule against the county to show cause why the writ should not issue. The county came and craved oyer of the bonds and coupons, which was had, upon which it moved the court to discharge the rule; and also filed a response to the rule setting forth eleven points of defence. By agreement of counsel a general traverse of the facts set out in the response was entered on the record, and the law and facts submitted to the court for trial and decision. Upon the trial, the court found the issues for the plaintiff, and gave judgment awarding a peremptory writ of mandamus. To reverse this judgment the county brought the case here. The chief ground of the argument of their counsel, Messrs. M. Blair, J. G. Carlisle, and J. B. Beck, being that under the 14th section of the act of September 24th, 1789, the Circuit Court of the United States had no jurisdiction to issue a writ of mandamus, there having been no previous judgment of the court in favor of the party holding the obligations, and no previous attempt made by it to enforce their payment by its ordinary process.

Messrs. J. W. Stevenson, and H. Myers, contra, and in support of the ruling below:

The argument is that the Circuit Court had no jurisdiction until the relator had reduced his demand to judgment, and had an execution returned, 'no property' thereon. But in no case has this court decided that this was a prerequisite to the jurisdiction.

Mandamus is a common law action, so held by this court. The act of 1813 of Kentucky, in which State the cause originated, makes the proceedings by mandamus there also a suit of a civil nature at common law; not a mere incident to another suit. The parties plead to issue. Issues of fact are to be tried by jury; issues of law, by the court. Judgment is to be awarded, and execution issued thereon. This act of 1813 was in force when the act of Congress of May 19th, 1828, was adopted, providing that the proceedings in suits at common law, in States admitted to the Union since 1789, shall be the same in the National courts in each of said States, as are now used in the highest courts of original and general jurisdiction of the same.

Now by the course of proceeding in Kentucky, it is not necessary that a party who has a right to have a tax levied by a county court or city council to pay his demand, should reduce the demand to judgment before applying for the writ of mandamus requiring the levy of the tax. This is settled by adjudicated cases, and that where a party has the right to have a county court levy a tax, upon their refusal, after demand, he may proceed in the first instance for the writ.

Certainly this court, under the act of Congress of 1828, will award to the citizen of another State the same relief that the State court would give one of its own citizens in a case arising upon the statute laws of that State.

Mr. Justice STRONG delivered the opinion of the court.

title: Bath County v. Amy


text: Talk:Bath County v. Amy

title: Talk:Bath County v. Amy


text:
Bath County v. Amy/Opinion of the Court

It must be considered as settled that the Circuit Courts of the United States are not authorized to issue writs of mandamus, unless they are necessary to the exercise of their respective jurisdictions. Those courts are creatures of statute, and they have only so much of the judicial power of the United States as the acts of Congress have conferred upon them. The Judiciary Act of 1789, which established them, by its 11th section, enacted that they shall have original cognizance, concurrently with the courts of the several States, of 'all suits of a civil nature at common law, or in equity,' between a citizen of the State in which the suit is brought and a citizen of another State, or where an alien is a party. While it may be admitted that, in some senses, the writ of mandamus may properly be denominated a suit at law, it is still material to inquire whether it was intended to be embraced in the gift of power to hear and determine all suits at common law, of a civil nature, conferred by the Judiciary Act. At the time when the act was passed it was a high prerogative writ, issuing in the king's name only from the Court of King's Bench, requiring the performance of some act or duty, the execution of which the court had previously determined to be consonant with right and justice. It was not, like ordinary proceedings at law, a writ of right, and the court had no jurisdiction to grant it in any case except those in which it was the legal judge of the duty required to be performed. Nor was it applicable, as a private remedy, to enforce simple common-law rights between individuals. Were there nothing more, then, in the Judiciary Act than the grant of general authority to take cognizance of all suits of a civil nature at common law, it might well be doubted whether it was intended to confer the extraordinary powers residing in the British Court of King's Bench to award prerogative writs. All doubts upon this subject, however, are set at rest by the 14th section of the same act, which enacted that Circuit Courts shall have 'power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary to the exercise of their respective jurisdictions and agreeable to the principles and usages of law.' Among those other writs, no doubt, mandamus is included; and this special provision indicates that the power to grant such writs generally was not understood to be granted by the 11th section, which conferred, only to a limited extent, upon the Circuit Courts the judicial power existing in the government under the Constitution. Power to issue such writs is granted by the 14th section, but with the restriction that they shall be necessary to the exercise of the jurisdiction given. Why make this grant if it had been previously made in the 11th section? The limitation only was needed.

This subject has heretofore been under consideration in this court, and in McIntire v. Wood, it was unanimously decided that the power of the Circuit Courts to issue the writ of mandamus is confined exclusively to those cases in which it may be necessary to the exercise of their jurisdiction. The court said: 'Had the 11th section of the Judiciary Act covered the whole ground of the Constitution, there would be much reason for exercising this power in many cases wherein some ministerial act is necessary to the completion of an individual right arising under laws of the United States, and the 14th section of the act would sanction the issuing of the writ for such a purpose. But, although the judicial power of the United States extends to cases arising under the laws of the United States, the legislature have not thought proper to delegate the exercise of that power to its Circuit Courts, except in certain specified cases.' And in McClung v. Silliman, this court said, when speaking of the power to issue writs of mandamus: 'The 14th section of the act under consideration (the Judiciary Act) could only have been intended to vest the power. . . in cases where the jurisdiction already exists, and not where it is to be courted or acquired by means of the writ proposed to be sued out.' In other words, the writ cannot be used to confer a jurisdiction which the Circuit Court would not have without it. It is authorized only when ancillary to a jurisdiction already acquired. The doctrine asserted in both these cases was conceded to be correct by both the majority and the minority of the court in Kendall v. The United States. The power to issue a writ of mandamus as an original and independent proceeding does not, then, belong to the Circuit Courts.

It has been argued, on behalf of the defendant in error, that the writ of mandamus is a civil action in Kentucky; that the proceedings therein were regulated by an act of the legislature of that State, approved January 8th, 1813, still in force, which directed how a traverse to the return shall be tried in the State courts, and what judgment may be pronounced, and that the act of Congress of May 19th, 1828, directed that the proceedings in suits at common law in States admitted to the Union since 1789, of which Kentucky is one, shall be the same in the Federal courts as those used, when the act was passed, in the highest courts of original and general jurisdiction in those States. Hence it is inferred that the law of Kentucky respecting mandamus has been adopted as a part of the rule of practice of the United States Circuit Court for that State. The argument rests on a misapprehension of the meaning of the act of 1828. It was a process act, designed only to regulate proceedings in the Federal courts after they had obtained jurisdiction; not to enlarge their jurisdiction. The purpose was to make the forms of process and forms and modes of proceeding in those courts correspond with the forms and modes in use in the State courts. The words of the act are, 'that the forms of mesne process, except the style, and the forms and modes of proceeding in suits in the courts of the United States held in those States admitted into the Union since the 29th day of September, in the year 1789, in those of common law, shall be the same, in each of the said States respectively, as are now used in the highest court of original and general jurisdiction of the same.' It is quite too much to infer from this an enlargement of jurisdiction, or an adoption of all the powers which the State courts then had. There is, then, no act of Congress which has conferred upon Circuit Courts authority to issue the writ of mandamus as an original proceeding, or at all, except when necessary for the exercise of the jurisdiction conferred upon them by law.

Applying this rule to the present case it is decisive. The relator's claim for payment had not been brought to judgment in the Circuit Court, nor had it been put in suit. His application for a mandamus was, therefore, an original proceeding, neither necessary nor ancillary to any jurisdiction which the court then had. For this reason it should have been denied, and the judgment that a peremptory mandamus should issue was erroneous.

JUDGMENT REVERSED, and the cause remanded with instructions to

DISMISS THE PETITION FOR A MANDAMUS.

title: Bath County v. Amy/Opinion of the Court


text: Talk:Bath County v. Amy/Opinion of the Court


text: United States v. Avery

title: United States v. Avery


text: Talk:United States v. Avery

title: Talk:United States v. Avery


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

ON certificate of division in opinion between the judges of the Circuit Court for the District of South Carolina:

Avery and others were indicted under the act of May 31st, 1870, known as the Enforcement Act, for conspiracy, with intent to violate the first section of that act, by unlawfully hindering, preventing, and restraining divers males, citizens of the United States, of African descent, from exercising the right of voting; and the second count of the indictment after charging this offence further charged, under the 7th section of that act, that in the act of committing the offence aforesaid, they murdered one Jim Williams, 'contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of South Carolina.' The first count charged the conspiracy without the murder. The fourth count charged murder in the same manner as the second count.

The defendant's counsel moved to quash so much of the second and fourth counts as charged the murder, on the ground that the Circuit Court had no jurisdiction to try an offence against the State of South Carolina; and, thereupon the following question arose upon which the opinions of the judges were opposed:

'Whether the court has jurisdiction to inquire and find whether the crime of murder has been committed, as set forth and charged, in the latter portions of the second and fourth counts of said indictment, in order to ascertain the measure of punishment to be affixed to the offences against the United States, charged in the former portions of the said second and fourth counts.'

The question was accordingly certified to this court under the act of April 29th, 1802, which enacts that when a question shall occur before a Circuit Court upon which the opinions of the judges shall be opposed, the point may be certified to this court, and by it be finally decided.

Mr. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, for the United States, on the case being called for argument, suggested that as the question certified arose on a motion to quash the indictment, the court could not, under the Judiciary Act of 1802, take cognizance of it, such motion being determinable by the court below as a matter of pure discretion; and cited United States v. Rosenburgh, where it was held, according to the syllabus, that 'this court cannot take cognizance under the Judiciary Act of 1802, of a division of opinion between the judges of the Circuit Court upon a motion to quash an indictment.'

Messrs. Reverdy Johnson and H. Stanbery, contra:

When objection to the jurisdiction of the court to try the offence charged in an indictment is raised, it must then and there be passed upon, because it involves the authority of the court to proceed at all, and this principle applies as well to a motion to quash as to any other form of objection. A motion to quash is the proper mode of raising a question of jurisdiction, because if the objection be well taken, all proceedings in the case are coram non judice, and the objection should, therefore, be made at the earliest possible moment. And when the judges are divided in opinion upon the motion, the case cannot proceed until the question is decided, because it involves the right to proceed at all. This fact distinguishes the present case from United States v. Rosenburgh. The question there certified was whether the indictment charged an offence. The cases of United States v. Wilson, 3 United States v. Chicago, and United States v. Reid & Clements of a case may be cognizable here, although arising on motions discretionary in their character.

Reply: Unless the court overrules United States v. Rosenburgh, in must refuse to take cognizance of this question. The ground for that decision was that 'the denial of the motion would not decide finally any right of the defendant.' That applies equally to a question of jurisdiction. In this case there is no division of opinion except as to parts of the second and fourth counts of the indictment. The court did not doubt its jurisdiction to try the defendants for conspiracy, and the trial might have proceeded if their motion had been denied (as it would have been as matter of course, had the judges been divided in opinion upon it), and the same question been again raised upon the offer of evidence to prove the fact of murder.

The CHIEF JUSTICE, on the following day, announced that a majority of the court were of opinion that the case must be ruled by United States v. Rosenburgh, and the case be

DISMISSED FOR WANT OF JURISDICTION.


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


text:
United States v. Wilder

APPEAL from the Court of Claims.

On the 23d of May, 1861, Burbank & Co. contracted with Major McKinstry, a quartermaster of the United States, to furnish transportation for all public stores from St. Paul to Fort Abercrombie, at the rate of $2.90 per 100 lbs. The contract specified no period of duration, but the parties acted under and in pursuance of its terms, until the 19th of July, 1863. On that day, Captain Carling, an assistant quartermaster in charge of the department at St. Paul, being obliged, in a military exigency, to send forward quartermaster and commissary stores to Fort Abercrombie, called upon Burbank & Co. to receive and transport them under the contract referred to. But Burbank & Co. declined to receive and transport the goods under that contract, and refused to acknowledge its force and validity. Carling, being unable to obtain transportation from other parties, thereupon entered into a verbal agreement with them that if they would transport the stores they should receive for their services whatever price the transport might be reasonably worth. They carried the stores accordingly. Carling fixed the value of the carriage at $4.50 per 100 lbs. But the quartermaster's department refused to allow or pay to Burbank & Co. any greater price than $2.90 per 100 lbs.; alleging as a reason for their refusal that the obligation of the original contract had not been terminated by reasonable notice, and that the services justly and legally ought to be deemed to have been rendered under it, and at the rate of compensation therein agreed on.

The services were performed and completed on the 31st of July, 1863.

On the 1st of October, 1863, Burbank & Co. were paid by the quartermaster $6393.72, being a payment at the rate of $2.90 per 100 lbs., and leaving unpaid $3516.21; which 'the defendants then and there refused to pay. And it still remains unpaid.'

The petition was filed in the Court of Claims on the 26th of August, 1869, being more than six years from the time the services were performed, and less than six years from the time of payment.

Upon these facts the Court of Claims decided:

1st. That the claimants had a good cause of action upon the parol agreement.

2d. That they were not barred from maintaining this suit upon the facts set forth and within the meaning of the act of March 3d, 1863, reorganizing the Court of Claims, 'and which declares that every claim against the United States shall be forever barred, unless the petition setting forth a statement of the claim be filed in the court. . . within six years after the claim first accrued.'

The United States appealed and alleged as error that the cause was barred by the statute of limitations, and that the Court of Claims should have so held.

Mr. C. H. Hill, for the United States; Mr. J. B. Sanborn, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: United States v. Wilder


text: Talk:United States v. Wilder

title: Talk:United States v. Wilder


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

We think the Court of Claims erred in deciding that the claimant was not barred by the provision in the act reorganizing that court. The claim accrued on the 31st of July, 1863, because the services were rendered at that time. The petition was not filed until six years afterwards. The claim was, therefore, barred by the statute, unless, in some way, taken out of it. It is insisted that this has been done by a payment of a portion of the demand within the six years, and this presents the only question for consideration.

This court has not adopted the rule of decision made at one time in England, and to some extent in this country, under which, by a constructive equity, judicial refinements came near to abolish the statute altogether. On the contrary, following the decisions of the English courts, made more immediately after the passage of the statute of James I, we have sought to give to it full effect. In 1814, Marshall, C. J., delivering the judgment of this court, declared that the statute of limitations was entitled to the same respect as other statutes, and should not be explained away. The same doctrine has been asserted in subsequent decisions.

It results from these cases that a promise to pay cannot be inferred from the mere fact of payment of part of debt, there being nothing to raise a presumption that it was a payment on account of this debt. The principle on which part payment takes a case out of the statute is, that the party paying intended by it to acknowledge and admit the greater debt to be due. If it was not in the mind of the debtor to do this, then the statute, having begun to run, will not be stopped by reason of such payment. It is too plain for controversy that the payment in question was not intended as an acknowledgment of the demand sued for. Instead of being applicable to an admitted debt, it was in denial of the right to further payment. The sum paid was the exact amount due under the written agreement, and was in discharge of the obligation imposed by it. That agreement was acknowledged, while the verbal arrangement made by the assistant quartermaster was repudiated. It is difficult to see how a payment in full of an admitted contract can be converted into an acknowledgment of one which was denied.

The case of the claimant is in some of its aspects worthy of consideration, but as it was not filed in the Court of Claims until barred by the statute, we are not at liberty to discuss its merits.

JUDGMENT REVERSED, and the cause remanded to the Court of Claims, with directions to

DISMISS THE PETITION.


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


text:
Klinger v. Missouri

ERROR to the Supreme Court of Missouri; the case being thus:

By the third section of the second article of the constitution of Missouri, adopted in April, 1865, it was declared in substance that no person who had ever engaged in the rebellion, or had manifested any sympathy therefor, in any way, should be deemed a qualified voter, or be capable of holding any office, or being a councilman, director, or trustee of any corporation, or of being a professor or teacher in any seminary of learning, or of holding property in trust for a church or congregation.

By the sixth section (one more particularly referred to in the present case), an oath was prescribed to be taken by all persons occupying, or entering upon, the positions referred to in section third, beginning as follows:

'I, A. B., do solemnly swear that I am well acquainted with the terms of the third section of the second article of the constitution of the State of Missouri, adopted in the year 1865, and have carefully considered the same; that I have never directly or indirectly done any of the acts in said section specified; that I have always been truly and loyally on the side of the United States against all enemies thereof, foreign and domestic, &c.

By the eleventh section it is declared 'that every court in which any person shall be summoned to serve as a grand or petit juror shall require him, before he is sworn as a juror, to take the said oath in open court; and no person refusing to take the same shall serve as a juror.'

By the twelfth section, 'If any person shall declare that he has conscientious scruples against taking an oath, or swearing in any form, the said oath may be changed into a solemn affirmation, and be made by him in that form.'

On the 25th of December, 1868, President Johnson issued his proclamation, by which he did

'Proclaim and declare, unconditionally, and without reservation, to all and to every person who directly or indirectly participated in the late insurrection or rebellion, a full pardon and amnesty for the offence of treason against the United States, or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and laws which have been made in pursuance thereof.'

The constitution of Missouri, above referred to, being in force, and the said proclamation of President Johnson having issued, one Max Klinger was indicted for the murder of Henry Werder, in the Criminal Court of the County of St. Louis, Missouri, and was convicted in October, 1869, and sentenced to be executed on the 16th of December, 1869; but having taken a bill of exceptions and a writ of error to the Supreme Court of Missouri, his sentence was respited.

The bill of exceptions taken on the trial of the case contained in its first paragraph what here follows; this paragraph being the only part of the bill which referred to the subject of any refusal to take the test oath:

'Be it remembered that this cause coming on to be heard and tried in said court, the marshal proceeded to call the jurors summoned in the same, and whilst empanelling the jury, it was found that one of said jurors, named Andrew Park, refused to take the oath of loyalty prescribed by the constitution of this State, whereupon the said Park was duly sworn to answer such questions as might be propounded to him, and being asked by the court why he refused to take said oath, he stated and declared that during the late rebellion he was a sympathizer with the Confederate cause, and earnestly desired its success; that these were his opinions and sentiments then; that he thinks so stronger now than he did then; that he was born in the South; that his heart was with the Southern cause, and that for these reasons he could not conscientiously take the proffered oath; thereupon the court of its own motion discharged the said juror, against the consent and objection of the defendant, to which action of the court the defendant excepted.'

Among the errors assigned before the Supreme Court of Missouri, of which there were ten, was this one (the only one cognizable here):

'That the court erred in excluding and discharging from the jury, the said Andrew Park, against the objections and consent of the defendant, for no other reason than that the said Andrew Park declined to take the oath prescribed in the sixth section of the second article of the constitution of the State of Missouri.'

The case is reported in the 43d volume of the Missouri Reports; but it does not appear by the report there that this point was raised or passed upon by the Supreme Court of Missouri. However, the judgment of the court below was affirmed, and the case was now brought here by the prisoner under an assumption of his counsel that it was within the 25th section of the Judiciary Act; a matter to the establishing of which, as a preliminary point, the attention of counsel for the plaintiff in error was directed on the calling of the case.

Mr. W. H. Russell, for the plaintiff in error:

Has this court jurisdiction under the 25th section? We think that it has. The Constitution of the United States declares that 'the trial of all crimes, except of impeachment, shall be by jury.' The sixth amendment to the Constitution, that 'the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where the crime shall have been committed;' and the fourteenth amendment that no 'State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.'

Right to trial by jury is thus sought by our organic law to be secured in absolute fulness and perfection.

Now the Criminal Court of St. Louis excluded Park for no other reason than that he declined to take the oath of loyalty prescribed by the sixth section of the second article of the constitution of Missouri. But that section is repugnant to the Constitution of the United States; and has by this court been so declared. It was an ex post facto law, and therefore unconstitutional. Moreover, the proclamation of amnesty issued by President Johnson, was a complete pardon for all the acts specified in the third section of the second article of the constitution of Missouri, and relieved Park from all guilt, and restored him to all his rights, privileges, and immunities as a citizen.

The decision of the Supreme Court of Missouri was in favor of the validity of the authority exercised by the Criminal Court under the constitution of Missouri, and against the right thus existing under the higher Constitution of the United States, and the President's pardon under it. Jurisdiction, therefore, exists in this court to re-examine. There has been drawn in question the validity of an authority exercised under a State, on the ground of its being repugnant to the Constitution or laws of the United States, and the decision has been in favor of such its validity.

No counsel appeared for the State of Missouri.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Klinger v. Missouri


text: Talk:Klinger v. Missouri

title: Talk:Klinger v. Missouri


text:
Klinger v. Missouri/Opinion of the Court

Although it does not seem, from the report of this case in the Missouri Reports, that the point taken before us was raised or passed upon by the Supreme Court of that State, yet being found in the record, and arising out of the transactions at the trial, as exhibited in the bill of exceptions, it is our duty to examine it.

The oath referred to, which the juror, Park, declined to take, was what is known as the oath of loyalty, or test oath, prescribed by the sixth section of article second of the constitution of Missouri, adopted in April, 1865.

The plaintiff in error insists that this oath was unconstitutional, as declared by this court in the case of Cummings v. The State of Missouri, and that the imposition of it upon the juror, in obedience to the State constitution, against the plaintiff's protest, was an invasion of his rights as well as those of the juror; that to exclude the juror because he declined to take the oath was to decide in favor of the validity of a State law repugnant to the Constitution and laws of the United States, &c., and hence that this court has jurisdiction to review the decision of the Supreme Court of Missouri.

Conceding, for the sake of argument, all this to be true, still, before we enter upon that duty it is necessary to look carefully at the record and see whether the plaintiff's allegation is true, that the court below excluded the juror for no other reason than that he declined to take the oath referred to. For we do not assume jurisdiction to review the judgment of a State court, unless it clearly appears from the record that a question has been raised and passed upon which is within the cognizance of this court, as provided for in the 25th section of the Judiciary Act, or the corresponding act passed February 5th, 1867. If such a question was really raised and passed upon in this case, it is somewhat singular that no notice is taken of it in the report of the case before referred to.

The only portion of the bill of exceptions relating to this subject is the first paragraph of the bill. Now, it does not clearly appear from the statement there made that the juror was discharged 'for no other reason than that he declined to take the oath.' The reasons assigned by him for not taking the oath were twofold: first, that he was a rebel in his sympathies during the war; and, secondly, that he was so still, and even stronger than ever. A man who makes such an avowal as that, thus manifesting a settled hostility to his country and its government, may well have been deemed by the court, irrespective of his refusal to take the oath, an unfit person to act as a juryman, and a participant in the administration of the laws.

Had the juror refused to take the oath simply because he had sympathized with or aided the rebellion during the war, and had he been discharged on that account, then the questions would have fairly arisen of which this court could take cognizance. The repugnancy of the test oath to President Johnson's proclamation of amnesty, and to the prohibition against ex post facto laws, & c., would have been fairly brought into question. But as he also refused to take it because he was still a more bitter rebel than ever, the avowal of such a feeling was inconsistent with the upright and loyal discharge of his duties, as much so as if he had expressed his disbelief in the obligation of an oath, and had declined to take it for that reason. Surely, if he had done that, there could have been no doubt that his discharge was justifiable, whatever view might be taken of the constitutionality of the test oath. It certainly would have been in the discretion of the court, if not its duty, to discharge him. And so we think it was in this case.

The rules which govern the action of this court in cases of this sort are well settled. Where it appears by the record that the judgment of the State court might have been based either upon a law which would raise a question of repugnancy to the Constitution, laws, or treaties of the United States, or upon some other independent ground; and it appears that the court did, in fact, base its judgment on such independent ground, and not on the law raising the Federal question, this court will not take jurisdiction of the case, even though it might think the position of the State court an unsound one. But where it does not appear on which of the two grounds the judgment was based, then, if the independent ground on which it might have been based was a good and valid one, sufficient of itself to sustain the judgment, this court will not assume jurisdiction of the case; but if such independent ground was not a good and valid one, it will be presumed that the State court based its judgment on the law raising the Federal question, and this court will then take jurisdiction.

In this case it appears that the court below had a good and valid reason for discharging the juror, independent of his refusal to take the test oath; and it does not appear but that he was discharged for that ground. It cannot, therefore, with certainty, be said that the Supreme Court of Missouri did decide in favor of the validity of the said clause of the State constitution, which requires a juror to take the test oath.

WRIT OF ERROR DISMISSED.


text: Talk:Klinger v. Missouri/Opinion of the Court


text:
Wilmington Railroad v. Reid

ERROR to the Supreme Court of North Carolina; the case being thus:

In 1853 the legislature of North Carolina chartered the Wilmington and Raleigh Railroad Company. One section of the charter ran thus:

'It shall be lawful for the president and directors to purchase with the funds of the company, and place on the said railroad, all machines, wagons, vehicles, carriages, and teams of any description whatsoever which may be deemed necessary for the purposes of transportation; and all the property purchased by the said president and directors, and that which may be given to the company, and the works constructed under the authority of this act, and all profits accruing on the said works and the said property shall be vested in the respective shareholders of the company and their successors and assigns forever, in proportion to their respective shares; and the shares shall be deemed personal property; and the property of said company and the shares therein shall be exempt from any public charge or tax whatsoever.'

With this charter in force, the franchise and rolling stock of the company were assessed, under a subsequent law and pursuant to it, for taxation by the State of North Carolina and the county of Halifax, in two parts-one, the apportioned share for the county of Halifax, assessed in each case upon the entire franchise and rolling stock jointly, and the other a tax assessed upon certain lots of land in Halifax County, appurtenant to and forming a part of the property of the company, and necessary to its business.

On application for injunction against one Reid, sheriff, who was going to seize the company's property for nonpayment of the tax-the application for the injunction being made on the ground that the subsequent law impaired the obligation of a contract-the Supreme Court of the State adjudged that the law did not do this, and that the tax was valid. The case was accordingly now brought here by the company to review that judgment.

It may be here added that provisions exempting the property of companies chartered by it, exist in the cases of numerous companies incorporated by the legislature of North Carolina; beginning with the charter to the Dismal Swamp Canal Company, A. D. 1790. In some cases the provision exempted the company from all taxes forever; in others but for a limited time. In some, all dividends were exempted; in others, dividends when not exceeding a certain rate per cent. Such exemptions are more observable in earlier times than in later ones.

Mr. W. H. Battle, in support of the ruling below:

In the Binghamton Bridge Case, it is said by this court 'that all rights which are asserted against the State must be clearly defined, and not raised by inference or presumption; and if the charter is silent about a power, it does not exist.' The reason for such a doctrine is obvious. It is that the taxing power is one of the highest and most important attributes of sovereignty; essential to the establishment and continued existence of the government. No government can divest itself altogether of such a power. Concede, that it may, by a contract for an adequate consideration, bind itself for a longer or a shorter period, not to exercise its taxing power at all, or not beyond a certain extent, upon certain persons or things. Still this is a dangerous restriction upon its power, because the necessities of the government cannot always be foreseen. In the changes and chances of things, those who have charge of the administration may have need of all the possible resources of the country to save it from great disaster, if not from ruin.

Now the franchise of the corporation is something distinct from its property, and the distinction is recognized in adjudged cases. In this case the tax is upon the franchise. The exemption of the charter extends only to the property, leaving the franchise or body politic itself liable to be taxed; just as an individual might have his property exempt while the State might tax his poll ad libitum. In view of the great explicitness of language required to divest a State of so necessary an attribute of sovereignty, we think that nothing less than the exemption in terms of the franchise as well as of the property of a corporation from taxation, can or ought to relieve it from the burden of contributing its just proportion towards the support of the government.

Messrs. Carlisle, McPherson, and B. F. Moore, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Wilmington Railroad v. Reid


text: Talk:Wilmington Railroad v. Reid

title: Talk:Wilmington Railroad v. Reid


text:
Wilmington Railroad v. Reid/Opinion of the Court

It has been so often decided by this court that a charter of incorporation granted by a State creates a contract between the State and the corporators, which the State cannot violate, that it would be a work of supererogation to repeat the reasons on which the argument is founded. It is true that when a corporation claims an exemption from taxation, it must show that the power to tax has been clearly relinquished by the State, and if there be a reasonable doubt about this having been done, that doubt must be solved in favor of the State. If, however, the contract is plain and unambiguous, and the meaning of the parties to it can be clearly ascertained, it is the duty of the court to give effect to it, the same as if it were a contract between private persons, without regard to its supposed injurious effects upon the public interests.

It may be conceded that it were better for the interest of the State, that the taxing power, which is one of the highest and most important attributes of sovereignty, should on no occasion be surrendered. In the nature of things the necessities of the government cannot always be foreseen, and in the changes of time, the ability to raise revenue from every species of property may be of vital importance to the State, but the courts of the country are not the proper tribunals to apply the corrective to improvident legislation of this character. If there be no constitutional restraint on the action of the legislature on this subject, there is no remedy, except through the influence of a wise public sentiment, reaching and controlling the conduct of the law-making power.

There is no difficulty whatever in this case. The General Assembly of North Carolina told the Wilmington and Weldon Railroad Company, in language which no one can misunderstand, that if they would complete the work of internal improvement for which they were incorporated, their property and the shares of their stockholders should be forever exempt from taxation. This is not denied, but it is contended that the subsequent legislation does not impair the obligation of the contract, and this presents the only question in the case. The taxes imposed are upon the franchise and rolling stock of the company, and upon lots of land appurtenant to and forming part of the property of the company, and necessary to be used in the successful operation of its business. It certainly requires no argument to show that a railroad corporation cannot perform the functions for which it was created without owning rolling stock, and a limited quantity of real estate, and that these are embraced in the general term property. Property is a word of large import, and in its application to this company included all the real and personal estate required by it for the successful prosecution of its business. If it had appeared that the company had acquired either real or personal estate beyond its legitimate wants, it is very clear that such acquisitions would not be within the protection of the contract. But no such case has arisen, and we are only called upon to decide upon the case made by the record, which shows plainly enough that the company has not undertaken to abuse the favor of the legislature.

It is insisted, however, that the tax on the franchise is something entirely distinct from the property of the corporation, and that the legislature, therefore, was not inhibited from taxing it. This position is equally unsound with the others taken in this case. Nothing is better settled than that the franchise of a private corporation-which in its application to a railroad is the privilege of running it and taking fare and freight-is property, and of the most valuable kind, as it cannot be taken for public use even without compensation. It is true it is not the same sort of property as the rolling stock, road-bed, and depot grounds, but it is equally with them covered by the general term 'the property of the company,' and, therefore, equally within the protection of the charter.

It is needless to argue the point further. It is clear that the legislation in controversy did impair the obligation of the contract, which the General Assembly of North Carolina made with the plaintiff in error, and it follows that the judgment of the Supreme Court must be REVERSED, and the cause remanded for further proceedings

IN CONFORMITY WITH THIS OPINION.

The the same time with the preceding case was adjudged another, from the same court, the two cases being of kindred character, and alike in their essential features, the difference between the two consisting chiefly in the extent of the exemption. It was the case of


text: Talk:Wilmington Railroad v. Reid/Opinion of the Court


text:
Raleigh and Gaston Railroad Company v. Reid

In the case just above adjudged and reported, the property of the railroad company could not by its charter be taxed under any circumstances. In the case of the charter of the railroad company now under consideration the exemption was limited to a term of fifteen years. After this limitation expired the legislature was at liberty to tax the individual shares of the stockholders whenever their annual profits exceeded 8 per cent., provided that the tax did not exceed twenty-five cents a share per annum. The pleadings in the case showed that the annual profits on the shares never reached 8 per cent.

Messrs. Carlisle, McPherson, and B. F. Moore, for the plaintiff in error:

It is laid down in Lord Hobart's Reports that affirmatives in statutes that introduce a new rule imply a negative of all else. Father Plowden equally declares that when a statute limits a thing to be done in a particular mode, it includes a negative of any other mode.

The tax is in violation of rules thus anciently and authoritatively laid down; rules conformed to obvious sense and justice.

Mr. W. H. Battle, contra, argued that such exemptions were so grossly impolitic that they could not be considered as legitimate exercise of legislative power.

Mr. Justice DAVIS delivered the opinion of the court.


text: Talk:Raleigh and Gaston Railroad Company v. Reid


text:
Raleigh and Gaston Railroad Company v. Reid/Opinion of the Court

The only way in which the property of this company could be reached for taxation at all was after the limitation of the fifteen years had expired. The legislature was then at liberty to tax the individual shares of the stockholders, whenever their annual profits exceeded 8 per cent. When a statute limits a thing to be done in a particular mode, it includes a negative of any other mode. It was the manifest object of the legislation which incorporated this company to invite the investment of capital in the enterprise of building this road; and no means better adapted for the purpose could have been devised, short of total immunity from taxation. As long as the capital was unproductive it contributed nothing to the support of the government, and even after it became remunerative, its contribution was fixed by the terms of the charter, and could not, in any event, exceed twenty-five cents on the share of stock. The impolicy of this legislation is apparent, but there is no relief to the State, for the rights secured by the contract are protected from invasion by the Constitution of the United States.

As the pleadings show that the annual profits on the shares of stock have never reached 8 per cent., it follows that they were not subject to any public charge or tax.

JUDGMENT REVERSED, and the cause remanded for further proceedings,

IN CONFORMITY WITH THIS OPINION.


text: Talk:Raleigh and Gaston Railroad Company v. Reid/Opinion of the Court


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Page:Copyright, Its History And Its Law (1912).djvu/192

 The provisions supplementing the manufacturing clause by prohibiting importation are given in the chapter on importation.

Holland is the only country in Europe which requires that the deposit copies shall be printed within the country and thus makes manufacture a condition of copyright — an inheritance probably from the times when the printer-publishers of the Protestant Netherlands were the only ones printing the books barred in Catholic countries by the index expurgatorius, and when deposit was naturally required from them. The law covered the Dutch West Indies, and the precedent was followed in Siam ; and in the Transvaal and Orange State the Dutch law continued after they had become English colonies. Otherwise than in these countries, only the British dominions of Canada and Newfoundland and the Commonwealth of Australia have manufacturing provisions. Canada made such provision as to domestic copyright in 1886 and again in the act of May 2, 1889, which last provides that a literary, scientific, musical or artistic work shall, before or simultaneously with publication or production elsewhere, be registered in the office of the Minister of Agriculture, and be printed or published or produced in Canada within one month after publication or production elsewhere. Newfoundland in its statute of 1892, following our own of 189 1, provided similarly that the condition for obtaining copyright shall be that the literary, scientific or artistic work shall be printed and published or produced in this colony. Australia, under the new code of 1905, confines domestic copyright to books (inclusive of drama) " printed from type setup in Australia, or plates made therefrom, or from plates or negatives made in Australia in cases where type is not necessarily used," and in an artistic work to those " made in Australia."


text: Chicago and Northwestern Railway Company v. Whitton's Administrator


text: Talk:Chicago and Northwestern Railway Company v. Whitton's Administrator