text:
Frelinghuysen v. United States

in accordance with the terms of that convention. The following are the facts as recited by the court, and on which the opinion is based.

On the fourth of July, 1868, a convention between the United States and the republic of Mexico, providing for the adjustment of the claims of citizens of either country against the other, was concluded, and, on the first of February, 1869, proclaimed by the president of the United States, by and with the advice and consent of the senate. By this convention (article 1)

'all claims on the part of corporations, companies, or private individuals, citizens of the United States, upon the government of the Mexican republic, arising from injuries to their persons or property by authorities of the Mexican republic, and all claims on the part of corporations, companies, or private individuals, citizens of the Mexican republic, upon the government of the United States, arising from injuries to their persons or property by authorities of the United States, which may have been presented to either government for its interposition with the other since the signature of the treaty of Guadalupe Hidalgo, * * * and which remain unsettled, as well as any other such claims which may be presented within' a specified time, were to 'be referred to two commissioners, one to be appointed by the president of the United Stat s, by and with the advice and consent of the senate, and one by the president of the Mexican republic.' Provision was then mado for the appointment of an umpire. Articles 2, 4, and 5, are as follows:

Art. 2. 'The commissioners shall then conjointly proceed to     the investigation and decision of the claims which shall be      presented to their notice, * * * but upon such evidence or      information only as shall be furnished by or on behalf of      their respective governments. They shall be bound to receive     and peruse all written documents or statements which may be      presented to them by or on behalf of their respective      governments in support of or in answer to any claim, and to      hear, if required, one person on each side, on behalf of each      government, on each and every separate claim. Should they     fail to agree in opinion upon any individual claim, they      shall call to their assistance the umpire; * * * and such      umpire, after having examined the evidence adduced for an      against the claim, and after having heard, if required, one      person on each side as aforesaid, and consulted with the      commissioners, shall decide thereupon finally, and without      appeal. * * * It shall be competent for each government to     name one person to attend the commissioners as agent on its      behalf, to present and support claims on its behalf, and to      answer swer claims made upon it, and to represent it generally in all matters connected with      the investigation and decisions thereof. The president of the     United States * * * and the president of the Mexican republic      hereby solemnly and sincerely engage to consider the decision      of the commissioners conjointly, or of the umpire, as the      case may be, as absolutely final and conclusive upon each      claim decided upon by them or him respectively, and to give      full effect to such decision without any objection, evasion,      or delay whatsoever. * * *

Art. 4. 'When decisions shall have been made by the     commissioners and the arbiter in every case which shall have      been laid before them, the total amount awarded in all the      cases decided in favor of the citizens of the one party shall      be deducted from the total amount awarded to the citizens of      the other party, and the balance, to the amount of $300,000,      shall be paid at the city of Mexico or at the city of      Washington, * * * within twelve months from the close of the      commission, to the government in favor of whose citizens the      greater amount may have been awarded, without interest. * * *     The residue of the said balance shall be paid in annual      installments to an amount not exceeding $300,000 * * * in any      one year until the whole shall have been paid.

Art. 5. 'The high contracting parties agree to consider the     result of the proceedings of this commission as a full,      perfect, and final settlement of every claim upon either      government arising out of any transaction of a date prior to      the exchange of the ratifications of the present convention;      and further engage that every such claim, whether or not the      same may have been presented to the notice of, made,      preferred, or laid before, the said commission, shall, from      and after the conclusion of the proceedings of the said      commission, be considered and treated as finally settled,      barred, and thenceforth inadmissible.' 15 St. 679.

Under this convention, commissioners were appointed, who entered on the performance of their duties. Benjamin Weil and the La Abra Silver Mining Company, citizens of the United States, presented to their government certain claims against Mexico. These claims were referred to the commissioners, and finally resulted in an award, on the first of October, 1875, in favor of Weil and against Mexico for $489,810.68, and on the twenty-seventh of December, 1875, in favor of La Abra Silver Mining Company for $683,041.32. On the adjustment of balances under the provisions of article 4 of the convention it was found that the awards against Mexico exceeded largely those against the United States, and the government of Mexico has promptly and in good faith met its annual payments, though it seems from the beginning to have desired a re-examination of the Weil and La Abra claims.

On the eighteenth of June, 1878, congress passed an act, (chapter 262, 20 St. p. 144,) sections 1 and 5 of which are as follows:

Section 1. 'That the secretary of state be, and he is hereby,     authorized and required to receive any and all moneys which      may be paid by the Mexican republic under and in pursuance of      the convention between the United States and the Mexican      republic for the adjustment of claims; * * * and, whenever      and as often as any installments shall have been paid by the      Mexican republic on account of said awards, to distribute the      moneys so received in ratable proportions among the      corporations, companies, or private individuals respectively      in whose favor awards have been made by said commissioners,      or by the umpire, or to their legal representatives or      assigns, except as in this act otherwise limited or provided,      according to the proportion which their respective awards      shall bear to the whole amount of such moneys then held by      him, and to pay the same, without other charge or deduction      than as hereinafter provided, to the parties respectively      entitled thereto. * * *

Sec. 5. 'And whereas the government of Mexico has called the     attention of the government of the United States to the      claims hereinafter named, with a view to a rehearing,      therefore, be it enacted that the president of the United      [States] be, and he is hereby, requested to investigate any      charges of fraud presented by the Mexican government as to      the cases hereinafter named; and if he shall be of the      opinion that the honor of the United States, the principles      of public law, or considerations of justice and equity      require that the awards in the cases of Benjamin Weil and La      Abra Silver Mining Company, or either of them, should be      opened and the cases retried, it shall be lawful for him to      withhold payment of said awards, or either of them, until      such case or cases shall be retried and decided in such manner as the      governments of the United States and Mexico shall agree, or      until congress shall otherwise direct. And in case of such     retrial and decision, any moneys paid or to be paid by the      republic of Mexico in respect of said awards respectively,      shall be held to abide the event, and shall be disposed of      accordingly; and the said present awards shall be set aside,      modified, or affirmed, as may be determined on such retrial:      provided that nothing herein shall be construed as an      expression of any opinion of congress in respect to the      character of said claims, or either of them.'

During the year 1879 President Hayes caused an investigation to be made of the charges of fraud presented by the Mexican government, and the conclusion he reached is thus stated in the report of Mr. Evarts, the then secretary of state:

'I conclude, therefore, that neither the principles of public     law nor considerations of justice or equity require or      permit, as between the United Stated and Mexico, that the      awards in these cases should be opened and the cases retried      before a new international tribunal or under any new      convention or negotiation respecting the same between the      United States and Mexico.

'Second. I am, however, of opinion that the matters brought     to the attention of this government on the part of Mexico do      bring into grave doubt the substantial integrity of the claim      of Benjamin Weil and the sincerity of the evidence at to the      measure of damages insisted upon and accorded in the case of      the La Abra Silver Mining Company, and that the honor of the      United States does require that these two cases should be      further investigated by the United States to ascertain      whether this government has been made the means of enforcing      against a friendly power claims of our citizens based upon or      exaggerated by fraud.

'If such further investigation should remove the doubts which     have been fairly raised upon the representations of Mexico,      the honor of the United States will have been complete y      maintained. If, on the other hand, the claimants shall fail     in removing these doubts, or they should be replaced by      certain condemnation, the honor of the United States will be      vindicated by such measures as may then be dictated.

'Third. The executive government is not furnished with the means of instituting and pursuing methods of investigation     which can coerce the production of evidence or compel the      examination of parties and witnesses. The authority for such     an investigation must proceed from congress. I would advise,     therefore, that the proofs and the conclusions you shall come      to thereon, if adverse to the immediate payment on these      awards of the installments received from Mexico, be laid      before congress for the exercise of their plenary authority      in the matter.'

This action of the president was communicated to congress under date of April 15, 1880, by his forwarding a copy of the report of the secretary of state, which concludes as follows:

'Unless congress should now make this disposition of the     matter, and furnish thereby definite instructions to the      department to reserve further payments upon these awards till      the conclusion of such investigation, and to take such      further order with the same thereafter as congress might      direct, it would appear to be the duty of the executive to      accept these awards as no longer open to reconsideration, and      proceed in the payment of the same pro rata with all other      awards under the convention.'

No definitive instructions were given by congress in respect to the matter during that session, and after the close of the session payments were made on these awards by the direction of the president the same as on the others. Another installment was paid by the Mexican government, and distributed to these claimants with the rest, during President Garfield's administration. In this way five installments were distributed. After President Arthur came into office he examined the cases further, and, 'believing that said award was obtained by fraud and perjury,' negotiated a treaty with Mexico providing for a rehearing. This treaty is now pending before the senate for ratification. On the thirty-first of January, 1882, the sixth installment was paid by Mexico to Mr. Frelinghuysen, the present secretary of state. A distribution of this installment to these claimants has been withheld by order of the president on account of the pending treaty. These suits were brought in the supreme court of the District of Columbia to obtain writs of mandamus requiring the secretary of state to pay to the several relators the amounts distributable to them respectively upon their disputed awards from the installment of 1882. The relator, Key, is the assignee of part of the Weil claim. In his case the secretary filed an answer setting up the action of President Arthur in respect to this claim and the negotiation of the new treaty. To this the relator demurred. Upon the hearing the court below sustained the demurrer and awarded a peremptory writ as prayed for.

In the case of the La Abra Company a petition substantially like that of the relator, Key, was demurred to by the secretary. Upon the hearing this demurrer was sustained and the petition dismissed. In this case, therefore, the action of President Arthur does not appear affirmatively on the face of the record, but it was conceded on the argument that it might properly be considered.

The writ of error in the Key case was brought by the secretary of state, and in the other by the La Abra Company.

''Sol. Gen. Phillips'', for Frelinghuysen, Secretary, etc.

P. Phillips, W. H. Phillips, John Goode, and R. B. Warden, for Key.

F. P. Stanton, T. W. Bartley, S. Shellabarger, and J. M. Wilson, for Mining Company,

Mr. Chief Justice Waite delivered the opinion of the court.

title: Frelinghuysen v. United States


text:
Page:A Thousand-Mile Walk To The Gulf.djvu/211

Rh sorts of trees and flowers. Enjoy these to-day, and some other day we will all go over the Morro Hill with you and gather shells. All kinds of shells are over there; but these yellow slopes that you see are covered only with weeds.

We jumped into the boat and a couple of sailors pulled us to the thronged, noisy wharf. It was Sunday afternoon, the noisiest day of a Havana week. Cathedral bells and prayers in the forenoon, theaters and bull-fight bells and bellowings in the afternoon! Lowly whispered prayers to the saints and the Virgin, followed by shouts of praise or reproach to bulls and matadors! I made free with fine oranges and bananas and many other fruits. Pineapple I had never seen before. Wandered about the narrow streets, stunned with the babel of strange sounds and sights; went gazing, also, among the gorgeously flowered garden squares, and then waited among some boxed merchandise until our captain, detained by

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text: Talk:Frelinghuysen v. United States

title: Talk:Frelinghuysen v. United States


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

If we understand correctly the positions assumed by the different counsel for the relators, they are:

(1) That the awards under the convention vested in the several claimants an absolute right to the amounts awarded them respectively, and that this right was property which neither the United States alone, nor the United States and Mexico together, could take away; and, (2) that, if this were not so, the action of President Hayes, under the fifth section of the act of 1878, was conclusive on President Arthur, and deprived him of any right he might otherwise have had to investigate the charges of fraud presented by the Mexican government, or to withhold from the relators their distributive shares of any moneys thereafter paid to the secretary of state under the authority of the first section.

1. There is no doubt that the provisions of the convention as to the conclusiveness of the awards are as strong as language can make them. The decision of the commissioners, or the umpire, on each claim is to be 'absolutely final and conclusive' and 'without appeal.' The president of the United States and the president of the Mexican republic are 'to give full effect to such decisions, without any objection, evasion, or delay whatsoever,' and the result of the proceedings of the commission is to be considered 'a full, perfect, and final settlement of every claim upon either government arising out of transactions prior to the exchange of the ratifications of the * *  * convention.' But this is to be construed as language used in a compact of two nations 'for the adjustment of the claims of the citizens of either *  *  * against the other,' entered into 'to increase the friendly feeling between' republics and 'so to strengthen the system and principles of republican government on the American continent.' No nation treats with a citizen of another nation except through his government. The treaty, when made, represents a compact between the governments, and each government holds the other responsible for everything done by their respective citizens under it. The citizens of the United States having claims against Mexico were not parties to this convention. They induced the United States to assume the responsibility of seeking redress for injuries they claimed to have sustained by the conduct of Mexico; and as a means of obtaining such redress the convention was entered into, by which not only claims of citizens of the United States against Mexico were to be adjusted and paid, but those of citizens of Mexico against the United States as well. By the terms of the compact the individual claimants could not themselves submit their claims and proofs to the commission to be passed upon. Only such claims as were presented to the governments respectively could be 'referred' to the commission, and the commissioners were not allowed to investigate or decide on any evidence or information except such as was furnished by or on behalf of the governments. After all the decisions were made, and the business of the commission concluded, the total amount awarded to the citizens of one country was to be deducted from the amount awarded to the citizens of the other, and the balance only paid in money by the government in favor of whose citizens the smaller amount was awarded, and this payment was to be made, not to the citizens but to their government. Thus, while the claims of the individual citizens were to be considered by the commission in determining amounts, the whole purpose of the convention was to ascertain how much was due from one government to the other on account of the demands of their respective citizens. As between the United States and Mexico the awards are final and conclusive until set aside by agreement between the two governments, or otherwise. Mexico cannot, under the terms of the treaty, refuse to make the payments at the times agreed on if required by the United States. This she does not now seek to do. Her payments have all been made promptly as they fell due, as far as these records show. What she asks is the consent of the United States to her release from liability under the convention on account of the particular awards now in dispute, because of the alleged fraudulent character of the proof in support of the claims which the United States were induced by the claimants to furnish for the consideration of the commission.

As to the right of the United States to treat with Mexico for a retrial, we entertain no dou t. Each government, when it entered into the compact under which the awards were made, relied on the honor and good faith of the other for protection as far as possible against frauds and impositions by the individual claimants. It was for this reason that all claims were excluded from the consideration of the commission, except such as should be referred by the several governments, and no evidence in support of or against a claim was to be submitted except through or by the governments. The presentation by a citizen of a fraudulent claim or false testimony for reference to the commission was an imposition on his own government, and if that government afterwards discovered that it had in this way been made an instrument of wrong towards a friendly power, it would be not only its right, but its duty, to repudiate the act and make reparation as far as possible for the consequences of its neglect, if any there had been. International arbitration must always proceed on the highest principles of national honor and integrity. Claims presented and evidence submitted to such a tribunal must necessarily bear the impress of the entire good faith of the government from which they come, and it is not to be presumed that any government will for a moment allow itself knowingly to be made the instrument of wrong in any such proceeding. No technical rules of pleading as applied in municipal courts ought ever to be allowed to stand in the way of the national power to do what is right under all the circumstances. Every citizen who asks the intervention of his own government against another for the redress of his personal grievances must necessarily subject himself and his claim to these requirements of international comity. None of the cases cited by counsel are in opposition to this. They all relate to the disposition to be made of the proceeds of international awards after they have passed beyond the reach of the governments and into the hands of private parties. The language of the opinions must be construed in connection with this fact. The opinion of the attorney general in Gibbes' Case, 13 Op. 19, related to the authority of the executive officers to submit the claim of Gibbes to the second commission after it had been passed on by the first, without any new treaty between the governments to that effect, not to the power to make such a treaty.

2. The first section of the act of 1878 authorizes and requires the secretary of state to receive the moneys paid by Mexico under the convention, and to distribute them among the several claimants, but it manifests no disposition on the part of congress to encroach on the power of the president and senate to conclude another treaty with Mexico in respect to any or even all the claims allowed by the commission, if in their opinion the honor of the United States should demand it. At most, it only provides for receiving and distributing the sums paid without a protest or reservation, such as, in the opinion of the president, is entitled to further consideration. It does not undertake to set any new limits on the powers of the executive. The fifth section, as we construe it, is nothing more than an expression by congress in a formal way of its desire that the president will, before he makes any payment on the Weil or La Abra claims, investigate the charges of fraud presented by Mexico, 'and if he shall be of the opinion that the honor of the United States, the principles of public law, or considerations of justice and equity require that the awards, * *  * or either of them, should be opened and the cases retried,' that he will 'withhold payment *  *  * until the case or cases shall be retried and decided in such manner as the governments of the United States and Mexico may agree, or until congress shall otherwise direct.' From the beginning to the end it is, in form even, only a request from congress to the executive. This is far from making the president for the time being a quasi judicial tribunal to hear Mexico and the implicated claimants and determine once for all, as between them, whether the charges which Mexico makes have been judicially established. In our opinion, it would have been just as competent for President Hayes to have instituted the same inquiry without this request as with it, and his action, with the statute in force, is no more binding on his successor than it would have been without. But his action, as reported by him to congress, is not at all inconsistent with what has since been done by President Arthur. He was of opinion that the disputed 'cases should be further investigated by the United States to ascertain whether this government has been made the means of enforcing against a friendly power claims of our citizens based upon or exaggerated by fraud.' and, by implication at least, he asked congress to provide him the means 'of instituting and furnishing methods of investigation which can coerce the production of evidence or compel the examination of parties or witnesses.' He did report officially that he had 'grave doubt as to the substantial integrity of the Weil claim' and the 'sincerity of the evidence as to the measure of damages insisted upon and accorded in the case of the La Abra * *  * company.' The report of Mr. Evarts cannot be read without leaving the conviction that, if the means had been afforded, the inquiries which congress asked for would have been further prosecuted. The concluding paragraph of the report is nothing more than a notification by the president that unless the means are provided, he will consider that the wishes of congress have been met, and that he will act on such evidence as he has been able to obtain without the help he wants. From the statements in the answer of Secretary Frelinghuysen in the Key case, it appears that further evidence has been found, and that President Arthur, upon this and what was before President Hayes, has become satisfied that the contested decisions should be opened and the claims retried. Consequently, the president, believing that the honor of the United States demands it, has negotiated a new treaty providing for such a reexamination of the claims, and submitted it to the senate for ratification. Under these circumstances, it is, in our opinion, clearly within the discretion of the president to withhold all further payments to the relators until the diplomatic negotiations between the two governments on the subject are finally concluded. That discretion of the executive department of the government cannot be controlled by the judiciary.

The United States, when they assumed the responsibility of presenting the claims of their citizens to Mexico for payment, entered into no contract obligations with the claimants to assume their frauds and to collect on their account all that, by their imposition of false testimony, might be given in the awards of the commission. As between the United States and the claimants, the honesty of the claims is always open to inquiry for the purposes of fair dealing with the government against which, through the United States, a claim has been made.

Of course, in what we have said we express no opinion on the merits of the controversy between Mexico and the relators. Of that we know nothing. All we decide is that it was within the discretion of the president to negotiate again with Mexico in respect to the claims, and that as long as the two governments are treating on the questions involved, he may properly withhold from the relators their distributive shares of the moneys now in the hands of the secretary of state.

The judgment in the case of the La Abra Company is affirmed, with costs, and that in the case of Key is reversed, with costs, and the cases remanded, with instructions to dismiss the petition of Key.


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


text:
Schreiber

A. Sidney Biddle and John K. Valentine, for petitioners.

[Argument of Counsel from pages 77-79 intentionally omitted]

WAITE, C. J.

title: Schreiber


text: Talk:Schreiber

title: Talk:Schreiber


text:
Schreiber/Opinion of the Court

The petitioners sued Charles L. Sharpless in the district court of the United States for the eastern district of Pennsylvania to recover certain penalties and forfeitures claimed under the provisions of section 4965 of the Revised Statutes, for the infringement of a copyright. Sharpless died after issue joined, but before judgment. After his death had been suggested by his attorney in the cause, the petitioners sued out a scire facias against Anna R. Sharples, executrix, and Charles W. Sharpless, executor, of his will, requiring them to appear and become parties to the action, or show cause why they should not be made parties, by order of the court. Before this writ was served, the attorney for Sharpless during his life moved that the writ be quashed. After argument the motion was granted on the ground that the cause of action terminated with the death of the defendant, and did not survive as against his legal representatives.

The petitioners now ask for a rule on the district court to show cause why a writ of mandamus should not issue requiring it to reinstate the writ of scire facias, and proceed with the case. Without considering whether a writ of mandamus may issue directly from this court to a district court to enforce procedure in a case where the final judgment of the district court is subject to review in the circuit court, we deny the rule asked for, because we are entirely satisfied with the action of the district judge. He was asked to send out a writ of scire facias to bring in and make parties to a qui tam action the personal representatives of a deceased defendant, who had been sued to recover the penalties and forfeitures which it was alleged he had subjected himself to under an act of congress by the infringement of a copyright. The suit was not for the damages the plaintiffs had sustained by the infringement, but for penalties and forfeitures recoverable under the act of congress for a violation of the copyright law. The personal representatives of a deceased party to a suit cannot prosecute or defend the suit after his death, unless the cause of action, on account of which the suit was brought, is one that survives by law. Rev. St. § 955. At common law, actions on penal statutes do not survive, (Com. Dig. tit. 'Administration, B 15,') and there is no act of congress which establishes any other rule in respect to actions on the penal statutes of the United States. The right to proceed against the representatives of a deceased person depends, not on forms and modes of proceeding in a suit, but on the nature of the cause of action for which the suit is brought. If the cause of action survives, the practice, pleadings, and forms and modes of proceeding in the courts of the state may be resorted to in the courts of the United States for the purpose of keeping the suit alive and bringing in the proper parties. Rev. St. § 914. But if the cause of action dies with the person, the suit abates and cannot be revived. Whether an action survives depends on the substance of the cause of action, not on the forms of proceeding to enforce it. As the nature of penalties and forfeitures imposed by acts of congress cannot be changed by state laws, it follows that state statutes allowing suits on state penal statutes to be prosecuted after the death of the offender, can have no effect on suits in the courts of the United States for the recovery of penalties imposed by an act of congress.

The rule is denied and petition dismissed.

title: Schreiber/Opinion of the Court


text: Talk:Schreiber/Opinion of the Court

title: Talk:Schreiber/Opinion of the Court


text:
Claflin v. Commonwealth Insurance Company of Boston Massachusetts

[Syllabus from pages 81-82 intentionally omitted]

[Statement of Case from page 82 intentionally omitted]

'These causes, having been duly ordered to be tried before     the same jury by the court, came on for trial before the Hon. Samuel F. MILLER and the Hon. Rensselaer R. NELSON, judges of     said court, presiding at said trial, at a general term      thereof begun and held at St. Paul, Minnesota, on the third      Monday in June, A. D. 1880.

'The respective causes were brought by the plaintiffs on     certain policies of insurance bearing date as follows: That      of the Commonwealth Insurance Company of Boston bearing date of      eleventh of January, 1877; that of the Western Assurance      Company of Toronto, Canada, bearing date of twenty-seventh of      December, 1876; and that of the Franklin Insurance Company of      St. Louis, bearing date of twenty-ninth of December, 1876,      the two latter being for $5,000 each, and the former for      $2,500, insuring one Frances E. Barritt against loss or      damage by fire on her stock of dry goods or other merchandise      pertaining to her business, contained in the three-storied      store, metal-roofed building, situated No. 37 East Third      street, St. Paul, Minnesota, for a period of three months      after their respective dates, with the condition that $35,000      other insurance shall be allowed. The respective policies     were assigned by Frances E. Barritt, the assured, to one      William Murphy on the seventh day of February, 1877, with the      consent and approval of the respective companies.

'On the twenty-fifth day of February, 1877, said stock of     goods was damaged by fire to the amount of $11,804.72, as      found and determined by the arbitrators appointed by the      assured and the respective companies. The policy of the     Western Assurance Company of Toronto, Canada, contained,      among other things, the following provision: 'The assured      shall, if required, submit to an examination or examinations      under oath by any person appointed by the company, and      subscribe thereto when the same is reduced to writing;' and      also 'all fraud or attempt at fraud, by false swearing or      otherwise, shall forfeit all claim on this company, and be a      perpetual bar to any recovery under this policy.'

'That of the Franklin Insurance Company of St. Louis     contained, among others, the following provision, viz.: 'And      the insured shall, if required, submit to an examination      under oath, by the agent or attorney of this company, and      answer all questions touching his, her, or their knowledge of      anything relating to such loss or damage, or to their claim      thereupon, and subscribe such examination, the same being      reduced to writing;' and the further provision, to-wit: 'All      fraud or false swearing shall cause a forfeiture of all      claims on the insurers, and shall be a full bar to all      remedies against the insurer on the policy.' That of the      defendant, the Commonwealth Insurance Company of Boston,      contained, among others, the following provision, to-wit:      'All fraud or attempt at fraud, by false swearing or      otherwise, shall cause a forfeiture of all claims on this      company under this policy;' and the further provision, viz., 'The assured shall,      if required, submit to an examination or examinations, under      oath, by any person appointed by the company, and subscribe      to such examinations when reduced to writing.'

'Upon the trial of said causes there was evidence tending to     show that the respective defendants required the assured,      William Murphy, to appear before their appointed agent and      submit to an examination under oath, and answer all questions      touching his knowledge of anything relating to such loss or      damage and his claim thereupon, and to subscribe such      examination, the same being reduced to writing, which the      said Murphy did, as required, and that upon said examination      the question of the ownership of said goods by said Murphy      was made by the defendants, and said Murphy examined at      length upon the same, and he answered certain questions      relating to the manner in which he paid on Frances E. Barritt      for said stock at the time of his alleged purchase thereof      falsely, and there was evidence tending to show that he      answered thus with no purpose to deceive and defraud the      insurance companies, but for the purpose of showing himself,      upon the examination consistent with a statement that he had      made about it a day or two subsequent to the purchase of said      stock, to R. G. Dunn & Co.'s commercial agency at St. Paul,      Minnesota, with a view of obtaining a large commercial credit      in eastern cities. There was evidence tending to show that on     the ninth day of February, 1877, said William Murphy went to      said agency and reported that he had bought the stock of      Frances E. Barritt for $35,484.20; that he had paid for the      same in cash and securities, and plaintiffs claimed that if      the false statements were made to the agents of the insurance      company upon examination, even though made upon a material      question without intent to deceive or defraud the insurance      companies, it would not prevent a recovery upon the policies,      and requested the court upon that point to charge as follows:      'If you find, from the evidence, that any incorrect      statements made by William Murphy upon his examination were      made for the purpose of protecting himself against the      statements made by him to the commercial agency for the      purpose of obtaining more credit than he was actually      entitled to, and not for the purpose of deceiving and      defrauding the defendants, then such statements constitute no      defense to this action;' and also, 'No false statements made by Murphy on his examination, under oath or      otherwise, constitute a defense to this action, unless the      same were made upon material issues between him and the      defendants, and unless you are satisfied, from the evidence,      that Mr. Murphy made them knowingly and willfully, with      intent thereby to deceive and defraud the defendants.'

'The court (his honor Judge MILLER addressing the jury)     refused to give said instructions, but told the jury in its      charge that the said questions relating to the manner in      which Mr. Murphy paid said Frances E. Barrit  for said stock      at the time of his alleged purchase thereof were upon a      material point, upon which the defendants had a right to      interrogate Mr. Murphy, and were material questions, to which      they had a right to true answers from Murphy in said      examinations, and upon the point in controversy upon which      the said instructions were asked, charged the jury as      follows, to-wit: 'It is said here, and the point is urged      with a good deal of force, that unless Mr. Murphy made these      false statements, if they were false, and it is conceded that      they were false, with the intent to deceive and defraud these      corporations, and if he made them with the intent to deceive      and defraud some one else, that is is immaterial to this      issue. I do not think that is the law. I do not think it was     necessary in order to avoid the policy that the statements      made by Mr. Murphy should have been solely, or even partly,      with a view to get money wrongfully out of the companies;      however, that is a point I wish to draw your attention to. If     these statements had been wholly immaterial, that doctrine      may be right; if it was a matter that the company had no      right to inquire into or interrogate him about, if he did      swear falsely and intend to deceive some one else, that does      not interfere with the policy; but these companies had a      right to have from him the truth about every matter that was      material as evidence to show whether he owned these goods or      not; they had a right to have the truth from him whatever his      intentions might have been,-that is, as far as the truth was      material; and so far as his testimony before the notary had a      tendency to mislead the companies on an important matter, it      was false swearing and false testimony within the meaning of      the policy, and would avoid the policy. If he stated that     which was intended for their action, and which would probably      influence their action, and these statements were false, then      he swore falsely within the meaning of the policy, though he did not intend to cheat them, but intended      to cheat somebody else; for, without looking to his motives,      the company had a right to an honest statement from him to      all questions that went to show whether he was the owner of      these goods or not.'

'To which refusals to charge as requested, and to said charge     as given. plaintiff's counsel thereupon duly excepted, and,     after the rendition of the verdict for the defendants, moved      for a new trial on account thereof, and said motion was duly      argued by John B. Sanborn, Esq., counsel for the plaintiff,      and Cushman K. Davis, Esq., counsel for the defendant, and      after due consideration thereof the court denied the motion,      and upon the question as to whether said instructions should      be given to the jury as requested, or the jury instructed as      in the said charge of the court, the opinions of the said      judges were opposed.

'Whereupon, on motion of the plaintiffs, H. B. Claflin & Co.,     by counsel, that the points on which the disagreement hath      happened may, during the term, be stated under the direction      of the judges, and certified under the seal of the court to      the supreme court, to be finally decided.

'It is ordered that the foregoing state of the evidence and     cases, and the questions on which the disagreement of opinion      hath happened, which is made under the direction of the      judges, be certified according to the request of the      plaintiffs, by their counsel, and the law in that case made      and provided.' John B. Sanborn, for plaintiffs in error.

George B. Young, for defendants in error.

MATTHEWS, J.


text: Talk:Claflin v. Commonwealth Insurance Company of Boston Massachusetts


text:
Claflin v. Commonwealth Insurance Company of Boston Massachusetts/Opinion of the Court

These actions were tried in the court below at the same time, before the same jury, and, by stipulation of parties, were heard in this court upon one record, the issues and questions in them respectively being the same. They were originally commenced in the district court of the state of Minnesota for the county of Ramsey, the plaintiffs in error being plaintiffs below. The suits were founded on policies of insurance against fire issued by the several defendants upon a stock of dry goods in St. Paul, to Frances E. Barritt, who having sold the property insured to William Murphy, assigned to him, for his benefit, the several policies of insurance, with the assent of the insurance companies, the defendants. After the loss, Murphy assigned the policies of insurance and his claims under the same, for value, to the plaintiffs in error, who brought suit thereon on February 11, 1878. On March 7, 1878, the several defendants filed petitions for the removal of the causes to the circuit court of the United States, alleging that the plaintiffs were citizens of the state of New York, and the defendants, respectively, citizens of Massachusetts, or Missouri, or aliens, subjects of Great Britain, in the dominion of Canada, being corporations created by the laws of those governments respectively. The record does not show anything respecting the citizenship of Murphy, the plaintiff's assignor, and it does not appear, therefore, whether, in case the assignment had not been made, he could have brought suit upon the policies of insurance against the defendants in the circuit court of the United States. No question concerning the jurisdiction of that court was made by counsel, either on the trial or in this court; but, after having been argued here at the bar on the merits, the doubt upon the right of the court below to entertain jurisdiction arose so seriously as, in our opinion, to require argument upon the point. That has now been submitted and considered, the conclusion we have reached requiring an affirmance of the jurisdiction.

The question is whether, under the second section of the act of March 3, 1875, (18 St. 470,) a suit of a civil nature, brought in a state court, where the matter in dispute exceeds the sum or value of $500, and in which there is a controversy between citizens of different states, or between citizens of a state and foreign states, citizens or subjects, may be removed into the circuit court, which suit, because it is founded on a contract in favor of an assignee, could not have been brought in the circuit court if no assignment had been made, not being the case of a promissory note, negotiable by the law-merchant, or of a bill of exchange. That section of the act is confined to the subject of removals of suits from the state to the circuit courts, and expressly provides that where there is a controversy between citizens of different states, or between citizens of a state and aliens, the suit in which it arises may be removed by either party; while the first section, providing that the circuit courts shall have original cognizance of the same character of cases, concurrent with the courts of the several states, nevertheless declares that they shall not 'have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon, if no assignment had been made, except in cases of promissory notes negotiable by the law-merchant, and bills of exchange.' The exception out of the jurisdiction, as to suits begun in the circuit courts, contained in this clause, does not, by its terms, nor by the immediate context, apply to suits commenced in state courts and afterwards removed to the circuit courts, but, it is argued, that it must apply from the reason and necessity of the case. The ground of this argument is that no reason can be assigned for limiting the jurisdiction in suits first brought in the circuit courts which does not apply equally to those removed into them from state courts; and that if the limitation is not applied to the latter, the effect will be thereby to remove it from the former, by enabling parties, forbidden to commence their actions in the circuit court, to transfer them at will to that court, after first formally bringing them in a state court. Such, ind ed, seems to be the result neccessarily to be anticipated from this construction of the act, and the argument, ab inconvenienti, must be admitted to be cogent.

An attempt to meet it is made by seeking to limit, by construction, the right of removal given by the second section to both parties, without qualification, to the defendant only in cases where, if exercised by the plaintiff, it would create jurisdiction in the circuit court in favor of an assignee whose assignor could not have sued in that court originally. This proposed construction is based upon the words of the clause in the first section of the act, which forbids the circuit court to take cognizance of any suit founded on contract in favor of an assignee, which, it is agrued, may be taken to mean that when the jurisdiction is invoked by the defendant by a removal from the state court, it cannot be deemed to be exerted in favor of the assignee, but rather in favor of the adverse party. But this, we think, is a refinement upon the language of the clause not justified by its natural import, nor by admitted rules of interpretation. The words, 'in favor of an assignee,' were evidently used, not to distinguish between the plaintiff and the defendant in the suit, but between the assignee and his assignor, so as not to give the favor to the former of bringing a suit which was denied to the latter.

The question, however, we think, is satisfactorily answered by recurring to the state of the law as it existed under the judiciary act of 1789, (1 St. 78,) until the passage of the act of March 3, 1875. The eleventh section of the judiciary act corresponds to the first section of the act of 1875, describing in similar terms the character of the suits of which the circuit courts should have original cognizance, and containing a similar exception out of that jurisdiction of suits 'to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents, if no assignment has been made, except in cases of foreign bills of exchange.' The twelfth section of the act of 1789 corresponds to the second section of the act of 1875, limiting, however, the right to remove a suit begun in a state court to the defendant alone, where he is an alien, or a citizen of a state other than that where the suit has been brought, and of which the plaintiff is a citizen. It will be seen, therefore, on a comparison of the two statutes, that the chief differences between them are-(1) that the act of 1875 enlarges the original jurisdiction of circuit courts, based on the citizenship of the parties, to all cases of controversy between citizens of different states and between citizens of a state and aliens, retaining substantially the same exception as to suits upon contracts brought by an assignee, when the assignee could not have sued in the circuit court, but not including negotiable paper; and (2) that the act of 1875 gives to either party the right of removal from a state court to the circuit court, instead of confining it to the defendant. The exception, out of the original jurisdiction, as to assignees of non-negotiable contracts, occupies in both statutes the same relative position, qualifying the provisions of the section in which it is contained as to suits commenced in the circuit court, and not being found in, nor necessarily connected with, that regulating the removal of suits from the state courts.

Under the judiciary act of 1789 the question was several times presented to this court for decision, whether the exceptions in the eleventh section of the act applied to the right of removal given in the twelfth section, and was uniformly answered in the negative. The very question arose directly in Green v. Custard, 23 How. 484. Mr. Justice GRIER, delivering the opinion of the court, said:

'If Green had been a citizen of Texas, and Custard had     claimed a right as indorsee of a citizen of Texas to bring      his suit in the courts of the United States, because he      (Custard) was a citizen of another state, the case would have      occurred which is included in the proviso to the eleventh      section of the act, which restrains the jurisdiction of the      court. But the United States court had jurisdiction of this     case by virtue of the twelfth section. It is a right plainly     conferred on Green, a citizen of Massachusetts, when sued by      a citizen of Texas in a state court of Texas, no matter what      the cause of action may be, provided it demand over five      hundred dollars. The exception of the eleventh section could     have no possible application to the case.'

The same conclusion was reached in Bushnell v. Kennedy, 9 Wall. 387, in which, however, the prior decision in Green v. Custard does not appear to have been mentioned by counsel or court.

This was the established law at the time of the passage of the act of March 2, 1867, (14 St. 558), known as the Local Prejudice Removal Act, which for the first time conferred upon the plaintiff, as well as the defendant, the right to remove a suit brought by him in a state court when the controversy was between a citizen of the state where the suit was brought and a citizen of another state, upon making and filing an affidavit that he had reason to and did believe that, from prejudice or local influence, he would not be able to obtain justice in such state court. The case of the City of Lexington v. Butler, 14 Wall. 282, was removed by the plaintiff in the action, under this act, from the state court to the circuit court. The question of jurisdiction was raised on the ground that the suit, which was founded on interest coupons attached to bonds issued by the city of Lexington and payable to bearer, could not have been brought in the circuit court on account of the restriction contained in the eleventh section of the judiciary act. It was decided, however, that the case was not within that exception, the holder of such an instrument not being an assignee, within the meaning of the act.

But the courtwent further, and speaking through Mr. Justice CLIFFORD, said:

'Suppose, however, the rule is otherwise, still the objection     must be overruled, as the suit was not originally commenced      in the circuit court. Suits may properly be removed from a     state court into the circuit court in cases where the      jurisdiction of the circuit court, if the suit had been      originally commenced there, could not have been sustained, as      the twelfth section of the judiciary act does not contain any      such restriction as that contained in the eleventh section of      the act defining the original jurisdiction of the circuit      courts. Since the decision in the case of Bushnell v.     Kennedy, 9 Wall. 387, all doubt upon the subject is     removed, as it is there expressly determined that the      restriction incorporated in the eleventh section of the      judiciary act 'has no application to caser removed into the      circuit court from a state court;' and it is quite clear that      the same rule must be applied in the construction of the      subsequent acts of congress extending that privilege to other      sections not embraced in the twelfth section of the judiciary      act.'

By this construction of the act of 1867 it was placed within the power of a plaintiff, on filing the requisits affidavit, to transfer from the state court to the circuit court a suit which he could not have commenced in it, the precise objection which is made to the construction now given to the second section of the act of 1875. It was in contemplation of these previous statutes, and of the judicial decisions construing them, that congress passed the act of 1875, giving to plaintiffs as well as defendants unrestrained liberty to remove the cases specified in the second section from a state court to a circuit court, and we are bound to presume in full view and upon consideration of the very inconveniences which are now relied on as the ground for limiting the right of removal by force of the restricti e clause in the first section of the act. In our opinion this is not admissible. We are bound to take the words of the law in their usual, ordinary, literal meaning, and to construe the two provisions in the different sections in the same sense which, in previous statutes, had uniformly been given to them, and not invent a new application and relation of the two clauses without any indication whatever of any intention on the part of congress to that effect. It was, perhaps, with foresight of possible practical inconveniences to result from the extension of the right of removal effected by the act of 1875, and in order to furnish means for preventing evasions of the limits of the jurisdiction of the courts of the United States under the forms of the law, that in the fifth section of the act it was provided, that if 'it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a suit or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require.' However that may be, we cannot, on the mere ground of a policy of convenience, change the settled rules of construction according to which for so long a period these and similar statutes have been administered.

The question of jurisdiction having been thus answered in the affirmative, it becomes necessary to consider the errors assigned upon the rulings of the court at the trial. These appear from a bill of exceptions and a certificate of division of opinion between the judges before whom the trial was had, and which, to understand the exceptions, it is necessary to set out in full. It is as follows:

It was set out in the answer and relied on as a defense that the policy of original insurance made to Frances E. Barritt had been fraudulently procured for her by one Johnson, upon false representations, greatly overvaluing the stock insured; that Murphy received the assignment of the stock and policy with knowledge of the fraud, and that the pretended sale to him by Mrs. Barritt was without consideration, and merely colorable and fictitious; that Murphy consequently never acquired or had any insurable interest in the stock and property insured; t at after the fire Murphy, in making proof of loss, stated under oath that the actual cash value of the property insured, at the time of the fire, amounted to $35,491.61, and that the same belonged to him; that the property insured was injured to the amount of $26,827.06, and that of said amount $6,463.39 was the cost and value of goods totally destroyed, and $20,360.67 was the amount of the loss on that part of the stock damaged but not destroyed, whereas in truth and in fact the cash value of the goods insured, at the time of the fire, did not exceed $18,000, and the total amount of the loss and damage thereto by fire did not exceed $5,000, and that said goods did not belong to Murphy, as he well knew; 'that thereafter the said Murphy was examined under oath, at the city of St. Paul, by an agent of the defendant, as provided in said policy, before J. D. O'Brien, Esq., and before R. B. Galusha, Esq., who were then and there respectively notaries public within and for the county of Ramsey, and in such examination the said Murphy did swear that he had purchased said stock from said Barritt, and that he was the sole owner thereof, and that no other person had any interest therein, and that he had fully paid for the same, each and every of which statements as to said purchase, ownership, interest, payment, and the manner thereof, were wholly false, as said Murphy well knew.'

It is quite obvious that upon the issues, as made in the pleadings and actually tried, it was material to show what title and interest Murphy had at the time of the loss in the property insured. If he had no insurable interest, that certainly would have been a defense. The object of the provisions in the policies of insurance, requiring the assured to submit himself to an examination under oath, to be reduced to writing, was to enable the company to possess itself of all knowledge, and all information as to other sources and means of knowledge, in regard to the facts, material to their rights, to enable them to decide upon their obligations, and to protect them against false claims. And every interrogatory that was relevant and pertinent in such an examination was material, in the sense that a true answer to it was of the substance of the obligation of the assured. A false answer as to any matter of fact material to the inquiry, would be fraudulent. If it made, with intent to deceive the insurer, would be fraudulent. If it accomplished its result, it would be a fraud effected; if it failed it would be a fraud attempted. And if the matter were material and the statement false, to the knowledge of the party making it, and willfully made, the intention to deceive the insurer would be necessarily implied, for the law presumes every man to intend the natural consequences of his acts. No one can be permitted to say, in respect to his own statements upon a material matter, that he did not expect to be believed; and if they are knowingly false and willfully made, the fact that they are material is proof of an attempted fraud, because their materiality, in the eye of the law, consists in their tendency to influence the conduct of the party who has an interest in them, and to whom they are addressed. 'Fraud.' said Mr. Justice CATRON, in Lord v. Goddard, 13 How. 198, 'means an intention to deceive.' 'Where one,' said SHIPLEY, C. J., in Hammatt v. Emerson, 27 Me. 308-326, 'has made a false representation, knowing it to be false, the law infers that he did so with an intention to deceive.' 'If a person tells a falsehood, the natural and obvious consequence of which, if acted on, is injury to another, that is fraud in law.' BOSANQUET, J., in Foster v. Charles, 7 Bing. 105; Polhill v. Walter, 3 Barn. & Adol. 114; Sleeper v. ''Ins. Co. 56 N. H. 401; Leach v. Republic F. Ins. Co.'' 58 N. H. 245.

An attempt is made by counsel for the plaintiffs in error to distinguish between matters that are material only as evidence and matters material to the contract and liability of the de endants in error thereunder, and in argument the distinction is illustrated by the following statement:

'Where the question is as to the extent of the loss, and the assured know ingly exaggerates his loss, and makes false     statements concerning the same, his conduct must of necessity      be held fraudulent, for he invites the company to take a      false position, to assume new and unjust obligations, to pay      a loss that has not been sustained and does not exist, to do      that which will prejudice and damage the company. But if the     assured had made a true statement of his actual loss, and      then answered falsely, for personal reasons, as to the      parties from whom he had purchased the goods, or the value of      those purchased from a certain house, then there could be no      fraud, because there could be no prejudice or damage. The     questions would be material as evidence, but not material as      the rights and liabilities of the company.'

But this position is untenable. The fact whether Murphy had an insurable interest in the merchandise covered by the policy was directly in issue between the parties. By the terms of the contract he was bound to answer truly every question put to him that was relevant to that inquiry. His answer to every question pertinent to that point was material, and made so by the contract, and because it was material as evidence; so that every false statement on that subject, knowingly made, was intended to deceive and was fraudulent. And it does not detract from this conclusion to suppose that the purpose of Murphy in making these false statements was not to deceive and defraud the companies, as is stated in the bill of exceptions and certificate, but for the purpose of preventing an exposure of the false statement previously made to the commercial agency in order to enhance his credit. The meaning of that we take to be simply this, that his motive for repeating the false statements to the insurance companies was to protect his own reputation for veracity, and that he would not have made them but for that cause. But what is that but that he was induced to make statements known to be false, intended to deceive the insurance companies, lest they might discover, and others through them, the falsity of his previous statements; in other words, that he attempted, by means of a fraud upon the companies, to protect his reputation and credit? In any view, there was a fraud attempted upon the insurers; and it is not lessened because the motive that induced it was something in addition to the possible injury to them that it might work. The supposition proceeds upon the very ground of the false statement of a material matter, knowingly and willfully made, with the intent to deceive the defendants in error; and it is no palliation of the fraud that Murphy did not mean thereby to prejudice them, but merely to promote his own personal interest in a matter not involved in the contract with them. By that contract the companies were entitled to know from him all the circumstances of his purchase of the property insured, including the amount of the price paid and in what manner payment was made; and false statements, willfully made under oath, intended to conceal the truth on these points, constituted an attempted fraud by false swearing which was a breach of the conditions of the policy, and constituted a bar to the recovery of the insurance.

Such we understand to be the precise effect of the rulings of the justice presiding at the trial of the case in the court below, in refusing the requests to instruct the jury as asked by the plaintiffs in error, and in giving the instructions contained in the charge excepted to, and finding no error in them, the judgment is affirmed.


text: Talk:Claflin v. Commonwealth Insurance Company of Boston Massachusetts/Opinion of the Court


text:
The Encyclopedia Americana (1920)/Ottendorfer, Oswald

OTTENDORFER, ŏt'ĕn-dôr-fėr, Oswald, German-American journalist: b. Zwittau, Moravia, 26 Feb. 1826; d. 16 Dec. 1900. After studying law at Prague and Vienna he came to this country after the revolutionary disturbances of 1848, and, settling in New York in 1850, soon became editor of the New Yorker Staats-Zeitung and later (having married the lady who owned the property) its proprietor. Under his management it became the most influential German daily in America and after 1861 was independent in politics. He built and endowed an educational institution in his native town, founded a home for aged and poor men on Long Island and established the Ottendorfer Free Library in New York.


text:
Hilton v. Merritt

H. E. Tremaine, for plaintiffs in error.

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

WOODS, J.

title: Hilton v. Merritt


text: Talk:Hilton v. Merritt

title: Talk:Hilton v. Merritt


text:
Hilton v. Merritt/Opinion of the Court

It appears from the bill of exceptions found in the record that the withdrawal entry of the packages on which the duty occasioning this controversy arose was made October 23, 1878. The local appraiser made and reported to the collector his appraisement of the goods. The importers being dissatisfied therewith, demanded a reappraisement according to law, which was allowed, and a merchant appraiser appointed to be associated with one of the general appraisers. The merchant appraiser made an appraisement of the standard gloves at 42 francs per dozen, and of the invoice at 16,613.10 francs, which corresponded with the importer's invoice and entered valuation of the merchandise in question. The general appraiser made a report of his appraisement on the same day, in which he put the value of the standard gloves at 52 francs, and the total valuation at 20,282.85 francs. Upon receiving these and other appraisements, the collector wrote to the general appraiser a letter dated October 10, 1878, in which he said:

'I have received the reports on the reappraisement of gloves     entered by Wilmerding, Hoguet & Co., per S. S. Lessing;      Iselin, Neeser & Co., per S. S. Pereire; and A. T. Stewart &      Co., per S. S. Mosel, together with a mass of testimony taken      at the hearing, and a special report from yourself, giving in      extenso your reasons for differing from the merchant      appraisers in these cases. The merchant appraisers sustain     the invoices or entered value, while you advance the value in      two of the cases upwards of 20 per cent. The law requires the     collector, in cases of difference, to decide between the      merchant and general appraiser. I find that it has been the     almost universal practice for the collector, under these      circumstances, to adopt the higher valuation. Unwilling to     accept this easy me hod of disposing of troublesome      questions, and believing it to be the duty of a government      officer, while carefully protecting the revenue, to see that      no injustice is done to the merchant, I have personally      devoted much time and attention to the examination of the      evidence presented.

'It is a matter of surprise that three 'discreet' merchants     should differ so widely from the general appraiser. With no     disposition to evade the responsibility placed upon me by the      law, I consider that the interests involved and the vexatious      delays in reaching a satisfactory conclusion require that an      effort should be made to fix a value which will remain      unchallenged. I have therefore to suggest that you re-examine     the evidence, in the hope that a result may be reached which      shall not, on the one hand, make it appear that the merchants      of New York cannot be relied upon to give a fair hearing and      correct judgment on a question of value, or, on the other      hand, that the government seeks and enforces, by its might,      that which is unjust. I would call your attention to the     conflicting evidence as to the similarity of the glove      marketed in London and New York. I would also call your     attention to the amount to be added per button to represent      the true value. I find it difficult, from the evidence, to     fix this amount at five francs per dozen. The three reports     are returned herewith.'

To this letter the general appraiser replied, by letter of the same date, stating, among other things, as follows: 'As to the invoices under consideration I do not feel at  liberty to formally withdraw the reports I have already   presented, because they were founded on the evidence   received on the reasppraisements, and I think it best   that they should stand as expressing my convictions   based on that evidence. If, however, you are willing to  retain them as memoranda for that purpose, and will   accept as substitutes therefor the additional reports   which I present herewith, and have designated as   'amended' reports, I shall feel that I have met, to the   best of my ability, the considerations which your letter   sets forth.'

The amended report of the general appraiser fixed the value of the merchandise in question in this case at 49 francs. The collector on October 23, 1878, assessed the duty, 50 per cent. ad valorem, on the merchandise, based on a valuation of the standard glove at 49 francs, adopting the appratisment returned in the amended report of the general appraiser, that being an advance of the invoice value of 16.2 per cent., and imposed an additional duty of 20 per cent. ad valorem on account of undervaluation in the entry. The importers, the plaintiffs in error, duly protested against the action of the collector and, under protest, paid the duties assessed, and appealed to the secretary of the treasury, who, on November 11, 1878, approved the decision of the collector, holding, however, that the correctness of the valuation was not a matter subject to appeal. Upon the trial of the case the plaintiffs offered in evidence the record of the proceedings before the merchant appraiser and the general appraiser, including the testimony and various documents before those officers, and subsequently before the collector. They also offered the testimony of one Hildreth, an expert, and others, to show the foreign market value of gloves at the principal markets of France, whence the merchandise in question was imported. They also offered the testimony of the collector to show all the facts within his knowledge, or officially acted upon by him, in relation to the invoice in question, and to show what his experience was in valuing kid gloves. They also offered to prove the cost of the manufacture of goods similar to those in question. All the evidence so offered was excluded by the court, and the plaintiffs excepted.

It also appears from the bill of exceptions that the plaintiffs' counsel claimed the right to go to the jury upon the questions: (1) whether the collecter, acting as appra ser, fully and fairly examined the goods; (2) whether the goods were invoiced at their fair and actual value in the principal markets of France at the time of the exportation; (3) whether a fair examination of the goods was made by the general appraiser, associated with the merchant appraiser, when that matter was referred to him; (4) whether the facts stated in the protests to the appraisers had been established by the evidence; and (5) whether the appraisers followed the evidence before them or disregarded it, and whether the collector disregarded the evidence or was negligent in his appraisal. The plaintiffs also asked the court to charge the jury that if the collector did not fully and fairly examine the goods, then the verdict need not necessarily follow the appraisement; and that, the general appraiser not having re-examined the goods after he made his first report, the jury was not concluded by his report at 49 francs, or the collector's action thereon. The court refused to submit the questions aforesaid to the jury or to charge the jury as requested, and the plaintiffs excepted. The bill of exceptions further states that no claim was made to submit to the jury any question of fraud on the part of the collector or appraiser, and that no claim was made during the trial that any excluded evidence was offered for the purpose of showing, or did show or tried to show, fraud on the part of the government officers.

The question presented by the exceptions of plaintiffs is whether the valuation of merchandise made by the custom officers under the statutes of the United States, for the purpose of levying duties thereon, is, in the absence of frand on the part of the officers, conclusive on the importer, or whether it is reviewable in an action at law brought by the importer to recover back duties paid under protest. The solution of this question depends upon the provisions of the acts of congress regulating the subject, which are as follows:

Section 2900 declares, in substance, that the owner, etc., of any merchandise, may, when he shall produce the original invoice to the collector, and make and verify his written entry, and not afterwards make such addition to the cost or value given in the invoice as shall raise the same to the actual market value at the time of importation in the principal markets of the country from which the same has been imported, and the collector shall cause such actual market value to be appraised, and if such appraised value shall exceed by 10 per centum or more the value declared in the entry, then there shall be collected in addition to the duties imposed by law, a duty of 20 per cent. ad valorem on such appraised value.

Section 2902 declares that 'it shall be the duty of the appraisers of the United States, and every of them, and every person who shall act as such appraiser, or of the collector and naval officer, as the case may be, by all reasonable ways and means in his or their power, to ascertain, estimate, and appraise the true and actual market value and wholesale price, any invoice or affidavit thereto to the contrary notwithstanding, of the merchandise at the time of exportation, and in the principal markets of the country whence the same has been imported into the United States, and the number of such yards, parcels or quantities, and such actual market value or wholesale price of every of them, as the case may require.'

Section 2906 provides that 'when an ad valorem rate of duty is imposed on any imported merchandise, or when the duty imposed shall be regulated by or directed to be estimated or based upon the value of the square yard, or of any specified quantity or parcel of such merchandise, the collector * *  * shall cause the actual market value or wholesale price thereof at the period of exportation to the United States in the principal markets of the country from which the same has been imported to be appraised, and such appraised value shall be considered the value on which the duty shall  e assessed.' Section 2922 is as follows:

'The appraisers, or the collector and naval officer, as the     case may be, may call before them and examine upon oath any      owner, importer, consignee, or other person, touching any      matter or thing which they may deem material in ascertaining      the true market value or wholesale price of any merchandise      imported, and require the production on oath to the      collector, or to any permanent appraiser, of any letters,      accounts or invoices in his possession relating to the same. All testimony in writing, or depositions, taken by virtue of     this section, shall be filed in the collector's office, and      preserved for future use or reference, to be transmitted to      the secretary of the treasury when he shall require the      same.'

Section 2929 provides that the principal appraisers shall revise and correct the report of the assistant appraisers as they may judge proper, and report to the collector their decision thereon, who, if he deems any appraisement of goods too low, may order a reappraisement, either by the principal appraisers or by three merchants designated by him for that purpose, and may cause the duties to be charged accordingly.

'If the importer, owner, agent, or consignee of any     merchandise shall be dissatisfied with the appraisement, and      shall have complied with the foregoing requisitions, he may      forthwith give notice to the collector, in writing, of such      dissatisfaction; on receipt of which the collector shall      select one discreet and experienced merchant to be associated      with one of the general appraisers wherever practicable, or      two discreet and experienced merchants, citizens of the      United States, familiar with the character and value of the      goods in question, to examine and appraise the same,      agreeably to the foregoing provisions; and if they shall      disagree, the collector shall decide between them, and the      appraisement thus determined shall be final and deemed to be      the true value, and the duties shall be levied thereon      accordingly.'

Section 2949 provides that the secretary of the treasury from time to time shall establish such rules and regulations, not inconsistent with the laws of the United States, to secure a just, faithful, and impartial appraisement of all merchandise imported into the United States, and just and proper entries of the actual market value or wholesale price thereof.

These provisions of the statute laws show with what care congress has provided for the fair appraisal of imported merchandise subject to duty, and they show also the intention of congress to make the appraisal final and conclusive. When the value of the merchandise is ascertained by the officers appointed by law, and the statutory provisions for appeal have been exhausted, the statute declares that the 'appraisement thus determined shall be final and deemed to be the true value, and the duties shall be levied thereon accordingly.' This language would seem to leave no room for doubt or construction.

The contention of the appellants is that after the appraisal of merchandise has been made by the assistant appraiser, and has been reviewed by the general appraiser, and a protest has been entered against his action by the importer, and the collector has appointed a special tribunal, consisting of a general and merchant appraiser, to fix the value, and they have reported each a different valuation to the collector, who has decided between them and fixed the valuation upon which the duties were to be laid, the importer is in every such case entitled to contest still further the appraisement and have it reviewed by a jury in an action at law to recover back the duties paid. After congress has declared that the appraisement of the customs officers should be final for the purpose of levying duties, the right of the importer to take the verdict of a jury upon the correctness of the appraisement should be declared in clear and explicit terms. So far from this being the case, we do not find that c ngress has given the right at all. If, in every suit brought to recover duties paid under protest, the jury were allowed to review the appraisement made by the customs officers, the result would be great uncertainty and inequality in the collection of duties on imports. It is quite possible that no two juries would agree upon the value of different invoices of the same goods. The legislation of congress, to which we have referred, was designed, as it appears to us, to exclude any such method of ascertaining the dutiable value of goods. This court, in referring to the general policy of the laws for the collection of duties, said, in Bartlett v. Kane, 16 How. 263: 'The interposition of the courts in the appraisement of importations would involve the collection of the revenue in inextricable confusion.' And, referring to section 3 of the act of March 3, 1851, which is reproduced in section 2930, Rev. St., this court declared, in Belcher v. Linn, 24 How. 508, that, in the absence of fraud, the decision of the customs officers 'is final and conclusive, and their appraisement, in contemplation of law, becomes, for the purpose of calculating and assessing the duties due to the United States, the true dutiable value of the importation.' To the same effect, see Tappan v. U.S. 2 Mason, 393, and Bailey v. Goodrich, 2 Cliff. 600.

The appellants contend, however, that the right to review the appraisement of the customs officers by a jury trial is given to the importer by sections 2931 and 3011 of the Revised Statutes. The first of these sections provides that on the entry of any merchandise the decision of the collector as to the rate and amount of duties shall be final and conclusive, unless the importer shall, within 10 days after the ascertainment and liquidation of the duties by the proper officers of the customs, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth distinctly and specifically the grounds of his objection thereto, and shall within 30 days after such ascertainment and liquidation appeal therefrom to the secretary of the treasury, and the decision of the secretary on such appeal shall be final and conclusive, and such merchandise shall be liable to duty accordingly, unless suit shall be brought within 90 days after such decision of the secretary of the treasury. Section 3011 provides that any person who shall have made payment under protest of any money as duties, when such amount of duties was not, or was not wholly, authorized by law, may maintain an action, which shall be triable by jury, to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid; but no recovery shall be allowed in such action unless a protest and appeal shall have been taken as prescribed in section 2931. The argument is that by these sections the appraisement which had been declared final by section 2930 is opened for review by a jury trial. Such is not, in our opinion, a fair construction of the legislation. Considering the acts of congress as establishing a system, and giving force to all the sections, its plain and obvious meaning is that the appraisement of the customs officers shall be final, but all other questions relating to the rate and amount of duties may, after the importer has taken the prescribed steps, be reviewed in an action at law to recover duties unlawfully exacted. The rate and amount of duties depends on the classification of the imported merchandise-that is to say, on what schedule it belongs to. Questions frequently arise whether an enumerated article belongs to one section or another, and section 2499 of the Revised Statutes provides that there shall be levied on every non-enumerated article which bears a similitude either in material, quality, texture, or the use to which it may be applied, to any enumerated article chargeable with duty, the same rate of duty which is levied and charged on the enumerated article which i most resembles in any of the particulars before mentioned. In determining the rate and amount of duties, the value of the merchandise is one factor, the question what schedule it properly falls under is another.

Congress has said that the valuations of the customs officers shall be final, but there is still a field left for the operation of the sections on which the plaintiffs in error rely. Questions relating to the classification of imports, and consequently to the rate and amount of duty, are open to review in an action at law. This construction gives effect to both provisions of the law. If we yield to the contention and construction of plaintiffs in error, we must strike from the statute the clause which renders the valuation of dutiable merchandise final. We are of opinion, therefore, that the valuation made by the customs officers was not open to question in an action at law as long as the officers acted without fraud and within the power conferred on them by the statute. The evidence offered by the plaintiffs, and ruled out by the court, tended only to show carelessness or irregularity in the discharge of their duties by the customs officers, but not that they were assuming powers not conferred by the statute, and the questions which the plaintiffs in error proposed to submit to the jury were, in the view we take of the statute, immaterial and irrelevant.

The plaintiffs in error make the further point that the merchant appraiser having appraised the goods in question at 42 francs, and the general appraiser at 52 francs, the law which made it the duty of the collector to decide between them required him to adopt one valuation or the other, and did not authorize him to fix a valuation of his own between those made by the merchant and general appraisers, and that his appraisement at 49 francs was beyond his powers and unauthorized by law, and consequently void. Without deciding whether this construction of the law is the correct one, we reply that the bill of exceptions shows that after making his first report, the general appraiser filed an amended report, in which he placed his valuation at 49 francs, which was adopted by the collector. The right of the appraiser to amend his report was distinctly recognized in this court in Bartlett v. Kane, 16 How. ubi supra. The informal character of this amended report could not affect the power of the collector to act in the premises.

Plaintiffs in error contend further that a denial of the right to bring an action at law to recover duties paid under an alleged excessive valuation of dutiable merchandise, is depriving the importer of his property without due process of law, and is therefore forbidden by the constitution of the United States. The cases of Murray's Lessee v. ''Hoboken Land & Imp. Co.'' 18 How. 272, and Springer v. U.S. 102 U.S. 586, are conclusive on this point against the plaintiffs in error.

We find no error in the record. The judgment of the circuit court must, therefore, be affirmed.

title: Hilton v. Merritt/Opinion of the Court


text: Talk:Hilton v. Merritt/Opinion of the Court


text:
Kellogg Bridge Company v. Hamilton

The Kellogg Bridge Company, which brings this writ of error and was defendant below, undertook to construct, for the Lake Shore & Michigan Southern Railroad Company, an iron bridge across Maumee river, at Toledo, Ohio. After doing a portion of the work it entered into a written contract with Hamilton, the defendant in error, for the completion of the bridge under its directions. That contract is the basis of this action and contains, among others, these stipulations:

'That the said party of the first part [Hamilton] hereby     agrees to furnish and prepare all the necessary false work      and erect the iron bridge now being constructed by the said      party of the second part [the Kellogg Bridge Company] for the      Lake Shore and Michigan Southern R. R. Co., at Toledo, Ohio,      over the Maumee river, receiving said bridge material as it      arrives on the cars at the site of said bridge and erecting      the same in the best manner, according to the design of said      bridge and the directions of said second party, from time to      time, commencing the erection of said work when required to      do so by said second party, and proceeding with the same with a force sufficient to complete the      entire work on or before the first day of March next; the      said first party also agrees to assume and pay for all work      done and materials furnished up to the time of executing this      contract, including piling and piles, timber, and other      materials and labor done on the same, but not including bolts      and washers which have been furnished by the party of the      second part, but to return said bolts and washers to the said      second party, or pay for the same on completion of said      bridge. And the said first party in consideration of the     payments hereinafter mentioned, to be made by said second      party, agrees to perform all the stipulations of this      agreement in a through and workmanlike manner and to the      satisfaction of the second party. And if at any time the said     second party is not satisfied with the manner of performing      the work herein described, or the rapidity with which it is      being done, the second party shall have full power and      liberty to put on such force as may be necessary to complete      the work within the time named, and provide such tools or      materials for false work as may be necessary, and charge the      cost of the same to the said first party, who agrees to pay      therefor.'

In consideration of the faithful performance of these stipulations, Hamilton was to receive from the Bridge Company $900 on the completion of the first span, a like sum on the completion of the second span, $800 on the completion of the third span, and $1,403 on the completion of the draw and the entire work-such payments to be made only on the acceptance of each part of the work by the chief engineer of the Lake Shore & Michigan Southern Railroad Company.

The bridge which Hamilton undertook to erect consisted of three independent fixed spans, each to be 175 feet 6 inches in length, suspended between and resting at each end of the span upon stone piers, which had been prepared to receive the same, and one draw span of 185 feet in length, resting upon a pier in the center, also then prepared. In erecting the several spans it was necessary to build and use what the contract describes as 'false work,' which consisted of piles driven in the river between the piers upon which the spans were to rest, and upon which was placed a platform.

As indicated in the written contract, the bridge company had previously constructed a part of this false work between the first and second spans, the cost of which Hamilton paid, as by the contract he agreed to do. Assuming this work to be sufficient for the purposes for which it was designed, Hamilton proceeded to complete the erection of the bridge according to the plans furnished him.

There was evidence before the jury tending to establish the following facts: A part of the false work or scaffolding put up by the company sank under the weight of the first span, and was replaced by Hamilton. When the second fixed span was about two-thirds completed, the ice, which before that had formed in the river, broke up in consequence of a flood, carrying away the false work under that span, and causing the whole of the iron material then in place on the span, or on the span ready to be put in place, to fall in the river, which at that place was about 16 feet deep. If the piles driven by the bridge company had been driven more firmly into the bed of the river, they would have withstood the force of the ice and flood. In consequence of the insufficiency of the false work done by that company, Hamilton was delayed in the completion of the bridge and subjected to increased expense.

In this action his claim is that the company is liable, not only for the amount specified in the contract, but also for such damages as he sustained by reason of the insufficiency of the false work it constructed. Charging defendant with these amounts, and crediting it with such sums as had been paid to or for Hamilton, a balance of $3,693.78 was claimed to be due the latter. Defendant, by way of counter-claim, asked judgment against Hamilton for $6,619.70. There was a verdict and judgment in favor of plaintiff for $3,039.89.

Richard Waite and E. T. Waite, for plaintiff in error.

J. C. Lee, for defendant in error.

HARLAN, J.

title: Kellogg Bridge Company v. Hamilton


text: Talk:Kellogg Bridge Company v. Hamilton

title: Talk:Kellogg Bridge Company v. Hamilton