text:
Railroad Company v. Commissioners (103 U.S. 1)/Opinion of the Court

The Annapolis and Elk Ridge Railroad Company was incorporated by an act of assembly of Maryland, passed March 21, 1837. Sect. 5 of its charter is as follows:--

'And be it enacted, that the president and directors of the     said company shall be, and they are hereby, invested with all      the rights and powers necessary to the construction and      repair of a railroad from the city of Annapolis, to connect with the      Baltimore and Washington railroad, not exceeding sixty feet      in width, with as many sets of tracks as the said president      and directors, or a majority of them, may think necessary;      and for this purpose the said president and directors may      have and use all the powers and privileges, and shall be      subject to the same obligations, that are provided in the      fourteenth, fifteenth, sixteenth, seventeenth, eighteenth,      nineteenth, twentieth, twenty-first, twenty-second, and      twenty-third sections of the aforesaid act, entitled 'An Act      to incorporate the Baltimore and Ohio Railroad Company."

The capital stock of the company was fixed at $450,000, the State taking $300,000, on which a payment of at least six per cent per annum was to be guaranteed by the company. None of the sections of the charter of the Baltimore and Ohio Company referred to, except the eighteenth, have any special bearing on the present case. They related entirely to the powers and privileges necessary to the construction, operation, and maintenance of the road. Sect. 18, on which the case depends, is as follows:--

'And be it enacted, that the said president and directors, or     a majority of them, shall have power to purchase with the      funds of said company, and place on any railroad constructed      by them under this act, all machines, wagons, vehicles, or      carriages of any description whatsoever, which they may deem      necessary or proper for the purposes of transportation on      said road, and they shall have power to charge for tolls upon      (and the transportation of persons) goods, produce,      merchandise, or property of any kind whatsoever, transported      by them along said railway from the city of Baltimore to the      Ohio River, any sum not exceeding the following rates, viz.:      On all goods, produce, merchandise, or property of any      description whatsoever, transported by them from west to      east, not exceeding one cent a ton per mile for toll, and      three cents a ton per mile for transportation; on all goods,      produce, merchandise, or property of any description      whatsoever, transported by them from east to west, not      exceeding three cents a ton per mile for tolls, and three      cents a ton per mile for transportation, and for the      transportation of passengers not exceeding three cents per      mile for each passenger; and it shall not be lawful for any      other company, or any person or persons whatsoever, to travel      upon or use any of the roads of said company, or to transport      persons, merchandise, produce, or property of any description whatsoever, along said roads, or any of      them, without the license or permission of the president and      directors of said company; and that the said road or roads,      with all their works, improvements, and profits, and all the      machinery of transportation used on said road, are hereby      vested in the said company, incorporated by this act, and      their successors, forever; and the shares of the capital      stock of the said company shall be deemed and considered      personal estate, and shall be exempt from the imposition of      any tax or burthen by the States assenting to this law.'

Under the last clause of this section it was held at an early day, by the Court of Appeals of Maryland, that the property of the Baltimore and Ohio Company was exempt from taxation. Mayor, & c. of Baltimore v. Baltimore & Ohio Railroad Co., 6 Gill (Md.), 288; State v. Baltimore & Ohio Railroad Co., 48 Md. 49. In 1876, the General Assembly passed an act to provide for the assessment and taxation of railroad companies, and under that act the commissioners of Anne Arundel County proceeded to assess the property of the Annapolis and Elk Ridge Company. The object of the proceeding instituted in the court below was to vacate this assessment, on the ground that the property of the company was by its charter exempt from taxation. The Court of Appeals refused the relief asked, holding that no such exemption existed. To reverse that judgment the case has been brought here by writ of error.

We think the judgment below was right. Grants of immunity from taxation are never to be presumed. On the contrary, all presumptions are the other way, and, unless an exemption is clearly established, all property must bear its just share of the burdens of taxation. These principles are elementary, and should never be lost sight of in cases of this kind.

The Annapolis and Elk Ridge Company was 'invested with all the rights and powers necessary to the construction and repair' of its railroad, and for that purpose was to 'have and use all the powers and privileges,' and be subject to the obligations, contained in the enumerated sections of the Baltimore and Ohio charter. Clearly this is not a grant of all the powers and privileges of the Baltimore and Ohio Company named in those sections, but only of such as were necessary to carry into effect the objects for which the new company was incorporated. Such is the plain import of the language employed. Consequently, only such of the privileges of the old company could be enjoyed by the new as were appropriate to the work which the latter was authorized to do.

The power to construct and repair a railroad undoubtedly implies, in the absence of any restrictions, the power to use the road when constructed as railroads are ordinarily used. Such use is in general an incident to the ownership of that kind of property. The powers and privileges of the Baltimore and Ohio Company, therefore, which the new company was permitted to 'have and use,' were such as were necessary to the construction, repair, and use of its railroad. Exemption from taxation is not one of these privileges. It is undoubtedly a privilege, but not necessary either to the construction, repair, or operation of a railroad. We so held in the case of the Knoxville and Charleston Railroad Company (Railroad Companies v. Gaines, 97 U.S. 697), where the language of the charter was much like this. Our conclusion then was that the grant to one company of the rights and privileges of another, for the purpose of making and using a railroad, carried with it only such rights and privileges as were essential to the operations of the company, or, to use the language of Mr. Justice Filed for the court in Morgan v. Louisiana (93 id. 217), the positive rights and privileges without which the road of the company could not be successfully worked.

It seems to us that case is conclusive of this. We cannot see that the claim of the company is at all strengthened by the fact that the State was to be the largest stockholder, and to some extent preferred in the division of profits. The corporation was not in that way made a part of the government. It had certain duties to the public to perform; but it was, notwithstanding the State's interest in its stock, just as much a private corporation as any other railroad company is. There are no more presumptions in its favor than any other railroad company with the same general powers and privileges can claim. The public ownership of the stock gave the company no more rights against the State than a private ownership would. The State was not, in any respect, 'her own grantee.' She granted a charter, and those who claim under her charter, whether it be herself or some one else, must be content with what she granted in that way. Ordinarily the same rules of construction which are applied to other charters will be applied to such as this. The State, as a stockholder, must take what she, as sovereign, gave to the other stockholders, unless she, in express terms, provided specially for herself. She did in this case make provision for a preferred dividend, but did not on that account, or any other, relieve the property of the company from the burdens of taxation, such as were common to all property holders in the State. She did give the Baltimore and Ohio Company such an exemption, but that privilege was kept back from this corporation.

We are all clearly of the opinion that the power to tax the property of the company was never relinquished by the State, either in express terms or by any fair implication.

Judgment affirmed.


text: Talk:Railroad Company v. Commissioners (103 U.S. 1)/Opinion of the Court

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


text:
Hall v. Wisconsin

Error to the Supreme Court of the State of Wisconsin.

The facts are stated in the opinion of the court.

Mr. Luther S. Dixon for the plaintiff in error.

No counsel appeared for the defendant in error.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Hall v. Wisconsin


text: Talk:Hall v. Wisconsin

title: Talk:Hall v. Wisconsin


text:
Hall v. Wisconsin/Opinion of the Court

This is a writ of error to the Supreme Court of Wisconsin. The case we are called on to consider is thus disclosed in the record:--

By an act of the legislature, entitled 'An Act to provide for a gelogical, mineralogical, and agricultural survey of the State,' approved March 3, 1857, James Hall, of the State of New York, the plaintiff in error, and Ezra Carr and Edward Daniels, of Wisconsin, were appointed 'commissioners' to make the survey. Their duties were specifically defined, and were all of a scientific character.

They were required to distribute the functions of their work by agreement among themselves, and to employ such assistants as a majority of them might deem necessary.

The governor was required 'to make a written contract with each commissioner' for the performance of his allotted work, and 'the compensation therefor, including the charge of each commissioner;' and it was declared that 'such contract shall expressly provide that the compensation to such commissioners shall be at a certain rate per annum, to be agreed upon, and not exceeding the rate of two thousand dollars per annum, and that payment will be made only for such part of the year as such commissioner may actually be engaged in the discharge of his duty as such commissioner.'

In case of a vacancy occurring in the commission, the governor was empowered to fill it, and he was authorized to 'remove any member for incompetency or neglect of duty.'

To carry out the provisions of the act, the sum of $6,000 per annum for six years was appropriated, 'to be paid to the persons entitled to receive the same.'

By an act of the legislature of April 2, 1860, Hall was made the principal of the commission, and was vested with the general supervision and control of the survey. He was required to contract with J. D. Whitney and with Charles Whittlesey for the completion within the year of their respective surveys. To carry into effect these provisions, the governor was authorized to draw such portion of the original appropriation, not drawn previous to the 29th of May, 1858, as might be necessary for that purpose; the residue to be otherwise used as directed.

By a subsequent act of March 21, 1862, both the acts before mentioned were repealed without qualification.

On the 29th of May, 1858, Hall entered into a contract with the governor, whereby it was stipulated on his part that he should perform the duties therein mentioned touching the survey, 'this contract to continue till the third day of March, 1863, unless the said Hall should be removed for incompetency or neglect of duty,. . . or unless a vacancy shall occur in his office by his own act or default.'

On the part of the State it was stipulated 'that the said Hall shall receive for his compensation and expenses, including the expense of his department of said survey, at the rate of $2,000 per annum. . . . Provided, that for such time as said Hall or his assistants shall not be engaged in the prosecution of his duties, according to the terms of said act and of this contract, deduction shall be made, pro rata, from the sum of his annual compensation and expenses.'

Hall brought this action upon the contract. The declaration avers that immediately after the execution of the contract he entered upon the performance of the duties thereby enjoined upon him, and continued in their faithful performance until the time specified in the contract for its expiration, to wit, the 3d of March, 1863; that he was not removed by the governor for incompetency or neglect, nor was any complaint ever made by the governor against him; that he never at any time, directly or indirectly, assented to the repeal of the acts of 1857 and 1860; and that thereafter he continued in the performance of his labors the same as before, and that for the year ending March 3, 1863, he devoted his whole time and skill, without cessation, to the work.

He avers further, that for his services performed prior to March 3, 1862, he was fully paid, but that for the year ending March 3, 1863, he had received nothing; that payment was demanded and refused on the 3d of December, 1863, and that the defendant is, therefore, justly indebted to him in the sum of $2,000, with interest from the date last mentioned.

He avers, finally, that on the 30th of January, 1875, he presented his claim to the legislature by a proper memorial, and that its allowance was refused.

The State demurred upon two grounds:--

1. That the complaint did not show facts sufficient to constitute a cause of action;

2. That it appeared upon the face of the complaint that the cause of action did not accrue within six years before the commencement of the action.

In support of the first objection, it was insisted that the employment of the plaintiff was an office, and that the legislature had therefore the right to abolish it at pleasure. For the plaintiff, it was maintained that there was a contract, and that the repealing act impaired its obligation in violation of the contract clause of the Constitution of the United States.

The court sustained the demurrer upon the first ground, and the plaintiff declining to amend, dismissed his petition. The opinion of the court is limited to the first point, and ours will be confined to that subject. The whole case resolves itself into the issue thus raised by the parties.

No question is made as to the suability of the State. The proceeding is authorized by a local statute. The question raised by the record is within our jurisdiction. In the exercise of that jurisdiction in such cases this court is unfettered by the authority of State adjudications. It acts independently, and is governed by its own views. Township of Pine Grove v. Talcott, 19 Wall. 666.

The question to be considered was before us in United States v. Hartwell, 6 id. 385. It was there said that 'an office is a public station or employment conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties. . . . A government office is different from a government contract. The latter, from its nature, is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other.'

In United States v. Maurice (2 Brock. 96), Mr. Chief Justice Marshall said: 'Although an office is an employment, it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to perform a service without becoming an officer.'

The case before us comes within the definition we have taken from United States v. Hartwell, supra.

The statute under which the governor acted was explicit, that he should 'make a written contract with each of the commissioners aforesaid, expressly stipulating and setting forth the nature and extent of the services to be rendered by each, and the compensation therefor,' and that 'such contract' should expressly provide that the compensation of each commissioner should be at a certain rate per annum, to be agreed upon, and not exceeding $2,000 per annum for the time such commissioner may be actually engaged.

The action of the governor conformed to this view. The instrument executed pursuant to the statute recites that it is an 'agreement' between the governor as one party, and Hall, Carr, and Randall, the commissioners, as the other. They severally agreed to do what the statute contemplated, and he agreed to pay all that it permitted.

The names and seals of the parties were affixed to the agreement, and its execution was attested by two subscribing witnesses, as in other cases of contract.

Where an office is created, the law usually fixes the compensation, prescribes its duties, and requires that the appointee shall give a bond with sureties for the faithful performance of the service required. To do all this, if the employment were an office, by a contract with the officer and without his bond would, to say the least, be a singular anomaly.

The acts of 1857 and 1860 both speak of Hall as 'of Albany, N. Y.' He was not, therefore, a citizen or a resident of the State of Wisconsin.

It is well settled in Wisconsin that such a person cannot be a public officer of that State. ''State, ex rel. Off, v. Smith, 14 Wis. 497; State, ex rel. Schuet, v. Murray'', 28 id. 96.

In United States v. Hatch, the Supreme Court of Wisconsin decided that the term 'civil officers' as used in the organic law (act of Congress of April 20, 1836) embraces only those officers in whom a portion of the sovereignty is vested, or to whom the enforcement of municipal regulations or the control of the general interests of society is confided, and does not include such officers as canal commissioners. 1 Pinn. (Wis.) 182.

In Butler v. The Regents of the University (32 Wis. 124), the same court held, without dissent, that a professor in the State university, appointed for a stated term with a fixed salary, was not a public officer in such a sense as prevented his employment from creating a contract relation between himself and the regents.

It is hard to distinguish that case in principle from the one before us.

In a sound view of the subject it seems to us that the legal position of the plaintiff in error was not materially different from that of parties who, pursuant to law, enter into stipulations limited in point of time, with a State, for the erection, alteration, or repair of public buildings, or to supply the officers or employees who occupy them with fuel, light, stationery, and other things necessary for the public service. The same reasoning is applicable to the countless employees in the same way, under the national government.

It would be a novel and starting doctrine to all these classes of persons that the government might discard them at pleasure, because their respective employments were public offices, and hence without the protection of contract rights.

It is not to be supposed that the plaintiff in error would have turned his back upon like employment, actual or potential, elsewhere, and have stipulated as he did to serve the State of Wisconsin for the period named, if the idea had been present to his mind that the State had the reserved power to break the relation between them whenever it might choose to do so. Nor is there anything tending to show that those who acted in behalf of the State had any such view at that time. All the facts disclosed point to the opposite conclusion as to both parties.

Undoubtedly, as a general proposition, a State may abolish any public office created by a public law (Newton v. Commissioners, 100 U.S. 559), but even with respect to those offices the circumstances may be such as to create an exception. In Trustees of Dartmouth College v. Woodward, Mr. Justice Story said: 'It is admitted that the State legislatures have power to enlarge, repeal, and limit the authorities of public officers in their official capacities, in all cases where the constitutions of the States respectively do not prohibit them; and this, among others, for the very reason that there is no express or implied contract that they shall always, during their continuance in office, exercise such authorities. . . . But when the legislature makes a contract with a public officer, as in case of a stipulated salary for his services during a limited period, this, during the limited period, is just as much a contract, within the purview of the constitutional prohibition, as a like contract would be between two private citizens.' 4 Wheat. 518, 694.

When a State descends from the plane of its sovereignty, and contracts with private persons, it is regarden pro hac vice as a private person itself, and is bound accordingly. Davis v. Gray, 16 Wall. 203.

The general government has no powers but such as are given to it expressly or by implication.

The States and their legislatures have all such as have not been surrendered, or prohibited to them. Gilman v. Philadelphia, 3 Wall. 713. And see also 2 Greenleaf's Cruise, 67.

That the laws under which the governor acted, if valid, gave him the power to do all he did, is not denied. We will not, therefore, dwell upon that point. The validity of those laws is too clear to admit of doubt. It would be a waste of time to discuss the subject.

We are of the opinion that the Supreme Court of the State erred in the judgment given. It will, therefore, be reversed, and the case remanded for further proceedings in conformity with this opinion.

So ordered.

title: Hall v. Wisconsin/Opinion of the Court


text: Talk:Hall v. Wisconsin/Opinion of the Court


text:
Dennick v. Railroad Company

ERROR to the Circuit Court of the United States for the Northern District of New York.

An act of the General Assembly of the State of New Jersey, approved March 3, 1848, provides as follows:--

'SECT. 1. That whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony.

'SECT. 2. That every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death, to the wife and next of kin of such deceased person.'

The plaintiff brought suit in a State court of New York against The Central Railroad Company of New Jersey, to recover damages for the death of her husband by an accident on the defendant's road. The company entered an appearance and removed the case into the Circuit Court of the United States, on the ground that the plaintiff was a citizen of New York and the defendant a corporation of New Jersey. The complaint filed in the Circuit Court alleges that the plaintiff was his widow, and her children were his next of kin; that she was administratrix of his estate, appointed by the proper court in New York; and that his death was caused by the negligence of the defendant. Damages in the sum of $15,000 were claimed.

The answer denied the negligence, but admitted that the death was caused by the train running off the track in New Jersey, that there were a widow and next of kin, and that the plaintiff had been appointed administratrix by the surrogate of Albany County, New York.

The parties waived a jury. The plaintiff introduced evidence tending to prove the negligence charged, whereupon the court ruled that for the death of her husband, which occurred in the State of New Jersey, she could not, under the special statute of that State, recover in the action. Judgment was rendered for the defendant. The plaintiff then sued out this writ of error.

The court below having acquired jurisdiction of the parties had full power to pass upon their relative rights and liabilities. The judicial power of every government looks beyond its municipal laws, and, in civil cases, between parties within its jurisdiction, lays hold of all subjects of litigation, though they are relative to the laws of the most distant part of the globe. The Federalist, No. 82. Rights which have accrued by the law of a foreign State are treated as valid everywhere; cognizance is therefore taken of extra-territorial facts, and of persons not generally subject to the jurisdiction. Westlake, Private Int. Law, p. 54, sect. 58.

In the jurisprudence of England, transitory actions at common law were entertained against, and at the suit of, any British subject or alien friend, wherever the cause of action really arose, if process might be served upon the defendant. Id. p. 105, sect. 120; 3 Stephen, Com. 451; 4 Phillimore, Int. Law, 648. Nor was there any distinction in this respect whether the cause of action was ex contractu or ex delicto. Rafael v. Verelst, 2 W. Bl. 983, 1055; Scott v. Seymour, 1 H. & C. 219; Phillips v. Eyre, Law Rep. 6 Q. B. 1; Madrazo v. Willes, 3 Barn. & Ald. 353; Mostyn v. Fabrigas, Cowp. 161; De la Vega v. Viana, 1 Barn. & Ad. 284; 1 Sm. L. C. 340.

The same principle has been recognized and applied without qualification in the courts of this county to cases arising on contracts: Cox v. United States, 6 Pet. 172; Caldwell v. Carrington, 9 id. 86; Green v. Van Buskirk, 7 Wall. 139; King v. Sarria, 69 N. Y. 24; Barrell v. Benjamin, 15 Mass. 354; Roberts v. Knight, 7 Allen (Mass.), 449; Miller v. Black, 2 Jones (N. C.) L. 341; Ruse v. Mutual, & c. Insurance Co., 23 N. Y. 516; and to personal injuries or torts: McKenna v. Fisk, 1 How. 241; McCormick v. Pennsylvania Railroad Co., 49 N. Y. 303; Boynton v. Boynton, 43 How. Ap. Cas. 383; Johnson v. Dalton, 1 Cow. (N. Y.) 543; Smith v. Bull, 17 Wend. (N. Y.) 323; Stout v. Wood, 1 Blackf. (Ind.) 71; Lister v. Wright, 2 Hill (N. Y.), 320; Gardner v. Thomas, 14 Johns. (N. Y.) 134; Glen v. Hodges, 9 id. 68; Smith v. Butler, 1 Daly (N. Y.), 508; McIvor v. McCabe, 26 How. Ap. Cas. 257; Hull v. Vreeland, 42 Barb. (N. Y.) 543; Latourette v. Clark, 45 id. 327; De Witt v. Buchanan, 54 id. 31; Newman v. Goddard, 3 Hun (N. Y.), 70; Watts v. Thomas, 2 Bibb (Ky.), 458; Wall v. Hoskins, 5 Ired. (N. C.) L. 177; Shiff v. McCrow, 3 Murphy (N. C.), 463; Walters v. Breeder, 3 Jones (N. C.) L. 64; Northern Central Railroad Co. v. Scholl's Ex., 16 Md. 332; Great Western Railway Co. v. Miller, 19 Mich. 305; Ackerson v. Erie Railroad Co., 31 N. J. L. 309.

As the rule is founded on the principle of comity, the foreign law, if not contrary to the public policy of the country where the suit is brought, nor to abstract justice or pure morals, will be recognized and enforced. King v. Sarria, 69 N. Y. 24; Phillips v. Eyre, Law Rep. 6 Q. B. 1; Wall v. Hoskins, supra.

It is no objection that all the parties to the suit are aliens or non-residents, and that the cause of action arose abroad. Rafael v. Verelst, supra; Johnson v. Dalton, 1 Cow. (N. Y.) 543; Mason v. Ship Blaireau, 2 Cranch, 240; Barrell v. Benjamin, 15 Mass. 354; Roberts v. Knights, 7 Allen (Mass.), 449; Watts v. Thomas, 2 Bibb (Ky.), 458; De Witt v. Buchanan, 54 Barb. (N. Y.) 31; Newman v. Goodard, 3 Hun (N. Y.), 70; Latourette v. Clark, 45 Barb. (N. Y.) 327; Smith v. Spinola, 2 Johns. (N. Y.) 198; Gardner v. Thomas, 14 id. 134; Smith v. Butler, 1 Daly (N. Y.), 508; Melan v. Fitzjames, 1 Bos. & Pul. 138; Miller v. Black, 2 Jones (N. C.) L. 341; McCormick v. Pennsylvania Railroad Co., 49 N. Y. 303; De la Vega v. Viana, 1 Barn. & Ad. 284; Walters v. Breeder, 3 Jones (N. C.) L. 64; Ruse v. ''Mutual, &c. Insurance Co., 23 N. Y. 516; Ackerson v. Erie Railroad Co.'', 31 N. J. L. 309.

If, however, in this respect, the rule as between subjects or citizens of different nations were otherwise, it would not affect the right of a citizen of one State to sue in the courts of another, as under the Federal Constitution he is entitled to all privileges and immunities of citizens in the several States, including the right of resorting to the same legal remedies. Barrell v. Benjamin, 15 Mass. 354: McIvor v. McCabe, supra; Miller v. Black, supra; Bank of Augusta v. Earle, 13 Pet. 520.

The rule has been specially applied to foreign corporations; and actions have been sustained in the courts of one State for injuries to persons and property, caused by negligence in operating railways in other States. Bissell v. Michigan Railroad Co., 22 N. Y. 258; McCormick v. Pennsylvania Railroad Co., supra; Howe Insurance Co. v. Pennsylvania Railroad Co., 11 Hun (N. Y.), 182.

There is no reason in morals, justice, or policy why the same rule should not be applied to all transitory actions for injuries to persons and property, whether recognized by the common law, or created by statute to meet new exigencies of modern life. The claim of comity, on which the rule is founded, is as urgent and unanswerable in the one case as in the other. Stallknecht v. Pennsylvania Railroad Co., 13 Hun (N. Y.), 451; Ex parte Van Riper, 20 Wend. (N. Y.) 614; Lowry v. Inman, 46 N. Y. 119.

A personal liability created by the statute of another State will, as other personal obligations, be enforced according to the course of procedure in the place where the defendant is found. Lowry v. Inman, supra; Pickering v. Fisk, 6 Vt. 102; Railroad v. Sprayberry, 8 Bax. (Tenn.) 341; McDonald v. Mallory, 77 N. Y. 547; Whitford v. Panama Railroad Co., 23 id. 465; Vandeventer v. New York & New Haven Railroad Co., 27 Barb. (N. Y.) 244; Great Western Railway Co. v. Miller, 19 Mich. 305; Selma, & c. Railroad Co. v. Lacy, 43 Ga. 461.

The statute in question has no extra-territorial force, and it gives a cause of action only to a personal representative appointed in New Jersey when the death occurred in that State. Mackay, Admx., v. Central Railroad Co. of New Jersey, 14 Blatchf. 65; Whitford v. Panama Railroad Co., 23 N. Y. 465; Beach v. Bay State Co., 30 Barb. (N. Y.) 433.

The alleged injury in this case was received in New Jersey, and the intestate died there. The question therefore arises whether the damages which her statute authorizes his personal representative to sue for and obtain for the benefit of his widow and next of kin can be recovered by an administrator appointed under the laws of New York.

An administrator takes his title by force of the grant of administration. Marcy v. Marcy, 32 Conn. 308. The laws of the State in which he is appointed prescribe his rights, powers, and duties. Another State cannot impose upon him different liabilities or obligations. He is the creature of the local law, and, until additional authority is derived by virtue of an appointment in another jurisdiction, he has only the power which that law confers.

The plaintiff sets up, not a right to her property, or to that which belonged to the deceased, but a right to sue as the trustee of a fund which may be obtained for his widow and next of kin, a position which she, by the law under which she was appointed, does not sustain. In order to execute such a trust, the trusteeship must attach to her appointment as administratrix under the laws of New York, and they do not confer upon her the right to damages for injuries received by him in another State, and resulting in his death. Richardson v. New York Central Railroad Co., 98 Mass. 85; Woodward v. Michigan Southern, & c. Railroad Co., 10 Ohio St. 121; Armstrong v. Bendle, 5 Sawyer, 485; McCarthy v. Chicago, Rock Island, & Pacific Railroad Co., 18 Kan. 46; Maryland v. Pittsburg & Connellsville Railroad Co., 45 Md. 41; Needham, Admx., v. Grand Trunk Railroad, 38 Vt. 294; Illinois Central Railroad v. Cragin, Admr., 71 Ill. 177.

The reasoning in the cases cited may be briefly summarized as follows:--

First, The plaintiff's right as administratrix to recover for the 'pecuniary injury resulting from death to the widow and next of kin' is unknown at common law, and can exist only by statute.

Second, The statute of New Jersey, under which she sues, has no extra-territorial force. It gives a cause of action for this 'pecuniary injury' only when the death occurs within the State of New Jersey.

Third, In like manner, the statute of New Jersey has no extra-territorial force to confer upon a creature of the New York law powers and duties other than those bestowed by the laws of New York.

Mr. Amasa J. Parker for the plaintiff in error.

Mr. Henry G. De Forest for the defendant in error.

MR. JUSTICE MILLER, after stating the case, delivered the opinion of the court.

title: Dennick v. Railroad Company


text: Talk:Dennick v. Railroad Company

title: Talk:Dennick v. Railroad Company


text:
Dennick v. Railroad Company/Opinion of the Court

It is understood that the decision of the court below rested solely upon the proposition that the liability in a civil action for damages which, under the statute of New Jersey, is imposed upon a party, by whose wrongful act, neglect, or default death ensues, can be enforced by no one but an administrator, or other personal representative of the deceased, appointed by the authority of that State. And the soundness or unsoundness of this proposition is what we are called upon to decide.

It must be taken as established by the record that the accident by which the plaintiff's husband came to his death occurred in New Jersey, under circumstances which brought the defendant within the provisions of the first section of the act making the company liable for damages, notwithstanding the death.

It can scarcely be contended that the act belongs to the class of criminal laws which can only be enforced by the courts of the State where the offence was committed, for it is, though a statutory remedy, a civil action to recover damages for a civil injury.

It is indeed a right dependent solely on the statute of the State; but when the act is done for which the law says the person shall be liable, and the action by which the remedy is to be enforced is a personal and not a real action, and is of that character which the law recognizes as transitory and not local, we cannot see why the defendant may not be held liable in any court to whose jurisdiction he can be subjected by personal process or by voluntary appearance, as was the case here.

It is difficult to understand how the nature of the remedy, or the jurisdiction of the courts to enforce it, is in any manner dependent on the question whether it is a statutory right or a common-law right.

Wherever, by either the common law or the statute law of a State, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties.

The action in the present case is in the nature of trespass to the person, always held to be transitory, and the venue immaterial. The local court in New York and the Circuit Court of the United States for the Northern District were competent to try such a case when the parties were properly before it. Mostyn v. Fabrigas, 1 Cowp. 161; Rafael v. Verelst, 2 W. Bl. 983, 1055; McKenna v. Fisk, 1 How. 241. We do not see how the fact that it was a statutory right can vary the principle. A party legally liable in New Jersey cannot escape that liability by going to New York. If the liability to pay money was fixed by the law of the State where the transaction occurred, is it to be said it can be enforced nowhere else because it depended upon statute law and not upon common law? It would be a very dangerous doctrine to establish, that in all cases where the several States have substituted the statute for the common law, the liability can be enforced in no other State but that where the statute was enacted and the transaction occurred. The common law never prevailed in Louisiana, and the rights and remedies of her citizens depend upon her civil code. Can these rights be enforced or the wrongs of her citizens be redressed in no other State of the Union? The contrary has been held in many cases. See Ex parte Van Riper, 20 Wend. (N. Y.) 614; Lowry v. Inman, 46 N. Y. 119; Pickering v. Fisk, 6 Vt. 102; Railroad v. Sprayberry, 8 Bax. (Tenn.) 341; Great Western Railway Co. v. Miller, 19 Mich. 305.

But it is said that, conceding that the statute of the State of New Jersey established the liability of the defendant and gave a remedy, the right of action is limited to a personal representative appointed in that State and amenable to its jurisdiction.

The statute does not say this in terms. 'Every such action shall be brought by and in the names of the personal representatives of such deceased person.' It may be admitted that for the purpose of this case the words 'personal representatives' mean the administrator.

The plaintiff is, then, the only personal representative of the deceased in existence, and the construction thus given the statute is, that such a suit shall not be brought by her. This is in direct contradiction of the words of the statute. The advocates of this view interpolate into the statute what is not there, by holding that the personal representative must be one residing in the State or appointed by its authority. The statute says the amount recovered shall be for the exclusive benefit of the widow and next of kin. Why not add here, also, by construction, 'if they reside in the State of New Jersey'?

It is obvious that nothing in the language of the statute requires such a construction. Indeed, by inference, it is opposed to it. The first section makes the liability of the corporation or person absolute where the death arises from their negligence. Who shall say that it depends on the appointment of an administrator within the State?

The second section relates to the remedy, and declares who shall receive the damages when recovered. These are the widow and next of kin. Thus far the statute declares under what circumstances a defendant shall be liable for damages, and to whom they shall be paid. In this there is no ambiguity. But fearing that there might be a question as to the proper person to sue, the act removes any doubt by designating the personal representative. The plaintiff here is that representative. Why can she not sustain the action? Let it be remembered that this is not a case of an administrator, appointed in one State, suing in that character in the courts of another State, without any authority from the latter. It is the general rule that this cannot be done.

The suit here was brought by the administratrix in a court of the State which had appointed her, and of course no such objection could be made.

If, then, the defendant was liable to be sued in the courts of the State of New York on this cause of action, and the suit could only be brought by such personal representative of the deceased, and if the plaintiff is the personal representative, whom the courts of that State are bound to recognize, on what principle can her right to maintain the action be denied?

So far as any reason has been given for such a proposition, it seems to be this: that the foreign administrator is not responsible to the courts of New Jersey, and cannot be compelled to distribute the amount received in accordance with the New Jersey statute.

But the courts of New York are as capable of enforcing the rights of the widow and next of kin as the courts of New Jersey. And as the court which renders the judgment for damages in favor of the administratrix can only do so by virtue of the New Jersey statute, so any court having control of her can compel distribution of the amount received in the manner prescribed by that statute.

Again: it is said that, by virtue of her appointment in New York, the administratrix can only act upon or administer that which was of the estate of the deceased in his lifetime. There can be no doubt that much that comes to the hands of administrators or executors must go directly to heirs or devisees, and is not subject to sale or distribution in any other mode, such as specific property devised to individuals, or the amount which by the legislation of most of the States is set apart to the family of the deceased, all of which can be enforced in the courts; and no reason is perceived why the specific direction of the law on this subject may not invest the administrator with the right to receive or recover by suit, and impose on him the duty of distributing under that law. There can be no doubt that an administrator, clothed with the apparent right to receive or recover by suit property or money, may be compelled to deliver or pay it over to some one who establishes a better right thereto, or that what he so recovers is held in trust for some one not claiming under him or under the will. And so here. The statute of New Jersey says the personal representative shall recover, and the recovery shall be for the benefit of the widow and next of kin. It would be a reproach to the laws of New York to say that when the money recovered in such an action as this came to the hands of the administratrix, her courts could not compel distribution as the law directs.

It is to be said, however, that a statute of New York, just like the New Jersey law, provides for bringing the action by the personal representative, and for distribution to the same parties, and that an administractor appointed under the law of that State would be held to have recovered to the same uses, and subject to the remedies in his fiduciary character which both statutes prescribe.

We are aware that Woodward v. Michigan Southern & Northern Indiana Railroad Co. (10 Ohio St. 121) asserts a different doctrine, and that it has been followed by Richardson v. New York Central Railroad Co., 98 Mass. 85, and McCarthy v. Chicago, Rock Island, & Pacific Railroad Co., 18 Kan. 46. The reasons which support that view we have endeavored to show are not sound. These cases are opposed by the latest decision on the subject in the Court of Appeals of New York, in the cast of Leonard, Administrator, v. The Columbia Steam Navigation co., not yet reported, but of which we have been furnished with a certified copy.

The right to recover for an injury to the person, resulting in death, is of very recent origin, and depends wholly upon statutes of the different States. The questions growing out of these statutes are new, and many of them unsettled. Each State court will construe its own statute on the subject, and differences are to be expected. In the absence of any controlling authority or general concurrence of decision, this court must decide for itself the question now for the first time presented to it, and with every respect for the courts which have held otehrwise, we think that sound principle clearly authorizes the administrator in cases like this to maintain the action.

Judgment reversed, with directions to award a new trial.


text: Talk:Dennick v. Railroad Company/Opinion of the Court


text:
Prewit v. Wilson

APPEAL from the Circuit Court of the United States for the Northern District of Alabama.

The facts are stated in the opinion of the court.

Mr. John T. Morgan for the appellants.

Mr. F. P. Ward, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Prewit v. Wilson


text: Talk:Prewit v. Wilson

title: Talk:Prewit v. Wilson


text:
Prewit v. Wilson/Opinion of the Court

On the 27th of April, 1866, Mrs. Josephine Prewit was a widow, only twenty years of age. Her husband was the late John Prewit. Not many months after his death another Mr. Prewit Richard, this time-proposed marriage to her. He was of mature age, being in his fifty-eighth year. His proposal was rejected. He renewed it, and accompanied it with a promise to settle upon her, if she would consent to the marriage, a large amount of property. This promise moved her to consent. The deed of settlement was accordingly executed, and in May following the marriage took place. Both parties affirm that the marriage was the only consideration for the settlement, and it is so stated in the deed.

A little more than two years and a half afterwards,-in December, 1868,-the husband was adjudged to be a bankrupt in the District Court of the United States for the Northern District of Alabama, in proceedings taken upon his own application; and in the following month the plaintiff was appointed assignee of his effects, and to him an assignment was made. The present suit is brought by him to set aside the deed of settlement, on the alleged ground that it was executed by Prewit to defraud his creditors.

At the time of the settlement Prewit was the holder of a large amount of property, consisting chiefly of lands in Alabama, but was indebted in an amount greater than their value. It is stated that his property was not worth more than $50,000, and that his debts exceeded $70,000.

It would seem from the evidence, and we assume it to be a fact, that he was insolvent at the time he executed the deed of settlement, in the sense that his debts largely exceeded the value of his property. It may also be taken as true, so far as the present suit is concerned, that he intended by the deed to hinder, delay, and defraud his creditors, and that he made the settlement to place his property beyond their reach.

There is no evidence that Mrs. Prewit was aware at the time of the amount of property he held, or of the extent of his debts, or that he had any purpose in the execution of the deed except to induce her to consent to the marriage. It is not at all likely, judging from the ordinary motives governing men, that whilst pressing his suit with her, and offering to settle property upon her to obtain her consent to the marriage, he informed her that he was insolvent, and would, by the deed he proposed to execute, defraud his creditors. If he intended to commit the fraud imputed to him, it is unreasonable to suppose that he would, by unfolding his scheme, expose his true character to one whose good opinion he was at that time anxious to secure. If capable of the fraud charged, he was capable of deceiving Mrs. Prewit as to his pecuniary condition. She states in her answer that she knew he was embarrassed and in debt, but to what extent or to whom she did not know, and that it was because of the knowledge that he was embarrassed that she insisted upon his making a settlement upon her. The deed itself shows that he owed a large sum, for of the 6,770 acres of land embraced by it, 2,185 acres were charged with the payment of certain designated debts to the amount of $18,000. A knowledge of these facts justified her in saying that she knew he was embarrassed; but they rather dispelled than created any suspicion that he had a design to defraud his creditors. Her statements do not warrant the inference of knowledge of any such purpose, much less of any assent to its execution. Besides the property charged in the deed with the payment of the large amount of indebtedness mentioned, he owned 4,700 acres of land not included in it, and personal property of the value of several hundred dollars.

When a deed is executed for a valuable and adequate consideration, without knowledge by the grantee of any fraudulent intent of the grantor, it will be upheld, however fraudulent his purpose. To vitiate the transfer in such case, the grantee also must be chargeable with knowledge of the intention of the grantor.

Now, marriage is not only a valuable consideration, but, as Coke says, there is no other consideration so much respected in the law. Bishop justly observes, that 'Marriage is attended and followed by pecuniary consequences; by happiness or misery to the parties; by life to unborn children; by unquiet or repose to the State; by what money ordinarily buys and by what no money can buy, to an extent which cannot be estimated or expressed, except by the word 'infinite.' To say, therefore, that it is to be regarded, where it is the inducement to any contract, as a valuable consideration, is to utter truth, yet only a part of the truth.' And, also, that 'Marriage is to be ranked among the valuable considerations, yet it is distinguishable from most of these in not being reducible to a value which can be expressed in dollars and cents, while still it is in general terms of the very highest value.' Law of Married Women, sects. 775, 776. Such is the purport and language running through all the decisions, both in England and in this country, with reference to marriage as a consideration for an ante-nuptial settlement. Barrow v. Barrow, 2 Dick. 504; Nairn v. Prowse, 6 Ves. Jr. 752; Compion v. Cotton, 17 id. 264; Sterry v. Arden, 1 Johns. (N. Y.) Ch. 261; Herring v. Wickham, 29 Gratt. (Va.) 628.

In Magniac v. Phompson this court said that 'Nothing can be clearer, both upon principle and authority, than the doctrine that to make an ante-nuptial settlement void, as a fraud upon creditors, it is necessary that both parties should concur in or have cognizance of the intended fraud. If the settler alone intend a fraud and the other party have no notice of it, but is innocent of it, she is not and cannot be affected by it. Marriage, in contemplation of the law, is not only a valuable consideration to support such a settlement, but is a consideration of the highest value, and from motives of the soundest policy is upheld with a steady resolution.' 7 Pet. 348, 393.

The same doctrine is asserted by the Supreme Court of Alabama, in which State the parties to the deed of settlement reside and in which it was executed. Andrews v. Jones, 10 Ala. 400.

According to these authorities there can be no question of the validity of the settlement in this case. There is an entire absence of elements which would vitiate even an ordinary transaction of sale where, if set aside, the parties may be placed in their former positions. And an ante-nuptial settlement, though made with a fraudulent design by the settler, should not be annulled without the clearest proof of the wife's participation in the intended fraud, for upon its annulment there can follow no dissolution of the marriage, which was the consideration of the settlement.

It follows that the decree of the court below must be reversed, and the cause remanded with directions to dismiss the bill of complaint; and it is

So ordered.

title: Prewit v. Wilson/Opinion of the Court


text: Talk:Prewit v. Wilson/Opinion of the Court


text:
Insurance Company v. Stinson

ERROR to the Circuit Court of the United States for the District of Massachusetts.

The facts are stated in the opinion of the court.

Mr. Charles T. Russell and Mr. Charles T. Russell, Jr., for the plaintiff in error.

Mr. Robert D. Smith, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Insurance Company v. Stinson


text: Talk:Insurance Company v. Stinson

title: Talk:Insurance Company v. Stinson


text:
Insurance Company v. Stinson/Opinion of the Court

This was an action on a policy of insurance against loss or damage by fire. Stinson, the plaintiff below, had a contract to build a hotel to be called the Webster House, at Marshfield, Plymouth County, Massachusetts, for the sum of $25,000, and had nearly completed it; but, failing to get his payments from the owner, he stopped work and took the necessary steps for securing a mechanic's lien on the building. For this purpose he filed the required statement with the town clerk, and commenced an action to enforce his lien within the period prescribed by law. Whilst that action was pending, in July, 1875, he procured the policy in question from the plaintiffs in error, the defendants below, insuring him for three months against loss or damage by fire to the amount of $5,000 on the building,-the policy stating his interest to be that of contractor and builder. The loss occurred during the continuance of the policy, and due notice was given. After the fire the plaintiff did not further prosecute his action to enforce the lien; but commenced the present action for the amount of his insurance. When the building contract was entered into, and until the loss occurred, the property on which the building was erected was subject to a mortgage for a debt of $17,000, being the purchase-money which the owner had agreed to pay to the former owner; and which is conceded to have been a lien on the whole property prior to that of the plaintiff. Two defences were made by the insurance company to the action: first, the failure of the plaintiff to prosecute his suit for enforcing his lien; secondly, want of insurable interest, from the alleged fact that the property, at the time of the loss, was not worth more than the amount of the prior mortgage. The court overruled these defences, and charged the jury substantially as follows, namely: that if the plaintiff had a valid builder's lien when the policy was effected, which could have been enforced by the decree of the appropriate court against the equity of redemption of the property, and if it was a valid and subsisting lien at the time of the loss, it was immaterial whether he did or did not subsequently perform those acts, the non-performance of which as conditions subsequent might have dissolved the lien.

The court further instructed the jury in substance that if the plaintiff had such builder's lien when the policy was effected, which could have been enforced by the decree of the appropriate court, and by virtue of which he could have recovered the equity of redemption on that property, then he was entitled to recover, without regard to the question what his equity of redemption might or might not have realized at an auction sale; that if a party has a valid and subsisting second security for a given amount, and he enters into a contract of indemnity against the destruction of that security, and a loss by fire occurs, both parties having full knowledge of the state of the property and the title when the contract is entered into, such insurance would cover that second security, although by the subsequent course of events the older and prior security might have swept away the value of the second; and that if the jury found in this case that this plaintiff had a valid claim for a given amount subsisting at the time of the loss, and which he had done everything that was required of him to enforce up to the time of the loss, and that it was such a claim, for instance, as he could have recovered a judgment for $5,000 or $6,000 or $8,000 and a judgment against that equity of redemption on that property, that was, for the purposes of this trial, an insurable interest, and an interest which he had on that property, whether by any course of events that property might have been by subsequent events more or less affected; and for the purposes of this trial the court instructed the jury to so consider it.

To this charge, and to the refusal to give instructions to the contrary, the defendants took a bill of exceptions.

We think that the instructions were correct. As to the first point, based on the abandonment by the plaintiff, after the destruction of the building, of the proceedings to enforce his lien, it is apparent from the evidence adduced by the defendants themselves that it could not have injured them. But, aside from this consideration, if the plaintiff had an insurable interest at the time of issuing the policy and at the time of the loss, equal to the amount insured, he had a complete and absolute cause of action against the defendants; and it was no concern of theirs whether he farther prosecuted his lien or not, unless they desired to be subrogated to his rights, and give him notice to that effect. Whether, if they had done this, and had offered to indemnify him against all costs and expenses, a refusal on his part to continue the proceedings would have been a defence to this action, it is unnecessary to inquire. No such course was taken by the defendants. We may remark, however, that where a creditor effects insurance on property mortgaged or pledged to him as security for the payment of his debt, the insurers do not become sureties of the debt, nor do they acquire all the rights of such sureties. They are insurers of the particular property only, and so long as that property is liable for the debt, so long its destruction by fire would be a loss to the creditor within the terms of the policy. A surety of the debt might complain if the creditor should surrender to the debtor collateral securities; but an insurer of property for the benefit of the mortgagee would have no just ground of complaint. True, after a loss has occurred and the insurance has been paid, sufficient to discharge the debt, the insurers may be entitled to be subrogated to the rights of the creditor against the debtor, and to any collateral securities which the creditor may then hold and which are primarily liable for the debt before the insurers. But even then we do not think that the creditor is bound to take any active steps to realize the fruits of a collateral, or to keep it from expiring, unless the insurance be first paid and notice be given to him of a desire on the part of the insurers to be subrogated to his rights, with a tender of indemnity against expenses. We are aware that views somewhat differing from these have been held by respectable authority; but we think without any sound reason. See May on Insurance, sect. 457; Insurance Company v. Woodruff, 2 Dutch. (N. J.) 541. To impose such restrictions and obligations upon the creditor would be to add to the contract of insurance conditions never contemplated by the parties, making of it a mere shadow of security, and increasing the avenues of escape from obligation to pay, already too numerous and oppressive. When a building is insured in the interest of a mortgagee, the insurance company does not inquire what other collaterals he holds, and never reduces its premium on any such consideration.

As to the other question, relating to the insurable interest of the plaintiff, we think that the charge given was equally free from exception. There is no doubt that the owner of the property had an insurable interest to the extent of the value of the building notwithstanding the existence of a mortgage on the property of sufficient amount to absorb it. Leading authorities on the point may be found cited in May on Insurance, sects. 81, 82. The remarks of Mr. Chief Justice Marshall, in delivering the opinion of the court in Columbian Insurance Co. v. Lawrence (2 Pet. 25), are apposite and illustrative. The assured in that case, though in possession, had only a contract for a purchase of the property, subject to a condition which had not been complied with, but of which the vendor had taken no advantage at the time of effecting the insurance, or at the time of the loss. The Chief Justice says: 'That an equitable interest may be insured is admitted. We can perceive no reason which excludes an interest held under an executory contract. While the contract subsists, the person claiming under it has undoubtedly a substantial interest in the property. If it be destroyed, the loss in contemplation of law is his. If the purchase-money be paid, it is his in fact. If he owes the purchase-money, the property is its equivalent, and is still valuable to him. The embarrassment of his affairs may be such that his debts may absorb all his property; but this circumstance has never been considered as proving a want of interest in it. The distruction of the property is a real loss to the person in possession, who claims title under an executory contract, and the contingency that his title may be defeated by subsequent events does not prevent this loss.'

The principle asserted in these remarks, as well as the reason of the thing, leads to the conclusion, that the owner of an equity of redemption has an insurable interest equal to the value of the insurable property embraced therein, whether he is personally liable for the mortgage debt or not. His interest arises from his ownership, carrying with it the incidental right of redeeming the property from the incumbrances on it. If he is also personally liable for such incumbrances, it only makes his interest more direct and exacting.

Such being the insurable interest of the owner of the equity of redemption, it follows that one who has a mechanic's lien on the property by virtue of a contract with such owner, has an equal insurable interest, limited only by the value of the property and the amount of his claim. In the present case it is admitted that the value of the building insured exceeded the amount of the plaintiff's claim; and that the latter was equal to the amount insured. The insurable interest of the lienholder arises from the nature of the lien, which is a jus ad rem. All the owner's rights in the property are potentially his. They are under hypothecation to him for his security, and he can reduce them to possession if the debt be not paid. He is, therefore, directly interested in the property to the extent of his demand, whatever other security he may hold; and is entitled to insure to that extent; and, if a loss occurs, to recover the full amount of his insurance, or so much thereof as may be necessary to satisfy his debt.

We think that there is no error in the record.

Judgment affirmed.


text: Talk:Insurance Company v. Stinson/Opinion of the Court


text:
Folger v. United States

APPEAL from the Court of Claims.

The facts are stated in the opinion of the court.

Mr. Walter H. Coleman and Mr. George F. Comstock for the appellant.

The Solicitor-General, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Folger v. United States


text: Talk:Folger v. United States

title: Talk:Folger v. United States


text:
Page:Works of John C. Calhoun, v6.djvu/15

EXPOSITION.

Original Draft of the South Carolina Exposition, prepared for the Special Committee on the Tariff, and, with considerable alterations, adopted by the Legislature of South Carolina, December, 1828.

The Committee of the Whole, to whom were referred the Governor's Message and various memorials on the subject of the Tariff, having reported, and the House having adopted the following resolution, viz.:

"Resolved, That it is expedient to protest against the unconstitutionality and oppressive operation of the system of protecting duties, and to have such protest entered on the Journals of the Senate of the United States—Also, to make a public exposition of our wrongs and of the remedies within our power, to be communicated to our sister States, with a request that they will co-operate with this State in procuring a repeal of the Tariff for protection, and an abandonment of the principle; and if the repeal be not procured, that they will co-operate in such measures as may be necessary for arresting the evil.

"Resolved, That a committee of seven be raised to carry the foregoing resolution into effect:" which was decided in the affirmative, and the following gentlemen appointed on the committee, viz.:


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

In the month of June, 1866, some correspondence passed between Van Dyck, then assistant treasurer of the United States at the city of New York, and the Commissioner of Internal Revenue, as to whether the former should be required, in addition to his ordinary duties, to assist in the distribution of adhesive stamps among those desiring to purchase them for their own use. An official communication from the Secretary of the Treasury to the assistant treasurer, under date of July 2, 1866, shows upon its face that the latter officer objected to being required to perform any such services. In that communication the Secretary says:--

'The Commissioner of Internal Revenue has referred to me your     recent letter to him in relation to the distribution of      revenue stamps in the city of New York. I am aware that the     cares and responsibilities of your position are burdensome,      and I should not think of increasing them were it not for the      seeming necessity of so doing. The adhesive revenue stamps     are all printed in Philadelphia, and it is deemed imprudent      to multiply the places of their production. It is     indispensable, however, that every facility shall be given by      the government for their purchase and distribution. The     consumption of stamps in New York alone is very large, while      the amount which is naturally distributed from that city is      no small part of the supply for the whole country. It seems     to me very advisable, therefore, because of their great      value, that they should be kept, as other property of the      government is kept, in the possession of the government      itself until actual sale. I am aware that the distribution     will require a room set apart, perhaps, exclusively for that      purpose, and some additional clerical force; but reasonable      prudence and a proper regard for the public convenience, as I      have suggested, constrain me to ask your critical      consideration of the subject. It may not be improper for me     to add that the assistant treasurer at San Francisco is      employed in the distribution of stamps, and that I am      disposed to ask the same service of the several other      assistant treasurers in different parts of the country.'

In a subsequent communication, dated Sept. 11, 1866, the Secretary said:--

'It has been deemed proper, as an additional means of     facilitating the distribution of internal revenue stamps,      that packages containing such denominations of stamps as are      in most general demand should be placed in the hands of the      assistant treasurers of the United States and some of the      designated depositaries. Printed circulars will be furnished     to you, specifying the contents and the cash value of each      package, and the packages are to be sold, with seals      unbroken, at such value, which will be stated upon each      package. The amounts received from the sale of these packages     should be transmitted to the Commissioner of Internal Revenue, in      the form of certificates of deposit, daily or weekly, as may      be most convenient.'

At a later period Charles J. Folger became assistant treasurer of the United States at the city of New York. Between Nov. 16, 1869, and the twenty-second day of July, 1870, inclusive, in obedience to the instructions and requirements contained in the foregoing communications, and without any application upon his part, he was furnished by the Commissioner of Internal Revenue with sealed packages of adhesive stamps for sale and distribution. He was not required to give, and did not give, any bond with reference to them. Upon each package, as it came to him, was marked as well the aggregate face value of the stamps contained in it for delivery to purchasers, as the amount of them of like kind, to be paid out to purchasers, as their commissions under the regulations established by the Commissioner. He was directed to sell and deliver the packages without disturbing their seals.

The commissions, at the time allowed by such regulations, to purchasers of common stamps were: two per cent in purchases of $50 or more, three per cent on $100 or more, four per cent on $500 or more, and five per cent on $1,000 or more; while as to proprietary stamps, the commissions allowed, by statute, were as hereinafter stated.

His sales of common stamps from Nov. 16, 1869, to July 22, 1870, inclusive, amounted to $3,642.60, and of proprietary stamps, to $31,589.54. These sums, respectively, included the amount, in stamps, which he passed over to purchasers as their commissions. Upon retirement from office his accounts were settled and adjusted at the Treasury Department, without any assertion of a right to commissions for himself. In that settlement he was allowed, or credited with, all payments made by him, in stamps, of commissions to purchasers. He derived no personal advantage from the sales.

He brought this action on the first day of May, 1875, to recover from the United States the sum of $184,934.95, to which he claims to be entitled as commissions upon such sales. His claim was denied, and judgment having been entered for the government, he appealed.

By sect. 161 of the act of June 30, 1864, c. 173, providing internal revenue to support the government, to pay the interest on the public debt, and for other purposes, it is provided, among other things, that—

'The Commissioner of Internal Revenue be, and he is hereby,     authorized to sell to and supply collectors, deputy      collectors, postmasters, stationers, or any other persons, at      his discretion, with adhesive stamps, or stamped paper,      vellum, or parchment, as herein provided for, in amounts of      not less than fifty dollars, upon the payment, at the time of      delivery, of the amount of duties said stamps, stamped paper,      vellum, or parchment, so sold or supplied, represent, and may      allow, upon the aggregate amount of such stamps, as      aforesaid, the sum of not exceeding five per centum as      commission to the collectors, postmasters, stationers, or      other purchasers; but the cost of any paper, vellum, or      parchment shall be paid by the purchaser of such stamped      paper, vellum, or parchment as aforesaid: Provided, that any      proprietor or proprietors of articles named in Schedule C,      who shall furnish his or their own die or design for stamps,      to be used especially for his or their own proprietary      articles, shall be allowed the following commission, namely:      on amounts purchased at one time, of not less than fifty      dollars nor more than five hundred dollars, five per centum;      on amounts over five hundred dollars, ten per centum.' 13      Stat. 294.

Sect. 170 of the same act declares,--

'That in any collection district where in the judgment of the     Commissioner the facilities for the procurement and      distribution of stamped vellum, parchment, or paper, and      adhesive stamps, are or shall be insufficient, the      Commissioner is authorized to furnish, supply, and deliver to      the collector and to the assessor of any such district and to      any assistant treasurer of the United States, or designated      depositary thereof, or any postmaster, a suitable amount of      stamped vellum, parchment, or paper, and adhesive stamps,      without prepayment therefor, and shall allow the highest rate      of commissions allowed by law to any other parties purchasing      the same; and may in advance require of any such collector,      assessor, assistant treasurer of the United States, or      postmaster, a bond with sufficient sureties to an amount      equal to the value of any stamped vellum, parchment, or      paper, and adhesive stamps, which may be placed in his hands      and remain unaccounted for, conditioned for the faithful      return, whenever so required, of all quantities or amounts undisposed of, and for the payment monthly of all      quantities or amounts sold, or not remaining on hand. And it     shall be the duty of such collector to supply his duputy      with, or sell to other parties within his district who may      make application therefor, stamped vellum, parchment, or      paper, and adhesive stamps, upon the same terms allowed by      law or under the regulations of the Commissioner, who is      hereby authorized to make such other regulations not      inconsistent herewith, for the security of the United States      and the better accommodation of the public, in relation to      the matters hereinbefore mentioned, as he may judge necessary      and expedient. And the Secretary of the Treasury may from     time to time make such regulations as he may find necessary      to insure the safe keeping or prevent the illegal use of all      such stamped vellum, parchment, paper, and adhesive stamps.'      Id. 297.

Sect. 161 plainly provides for sales by the Commissioner, while sect. 170 authorizes him to furnish and supply certain officers with stamps for sale to others. Where stamps were purchased either directly from the Commissioner of Internal Revenue, for cash, under sect. 161, or from one of the officers to whom they were furnished for sale and distribution under sect. 170, the purchaser, it is conceded, was allowed commissions according to the rate or scale established by the regulations of the Commissioner. Touching the particular sales made by the appellant, the purchasers of common or general stamps were entitled, respectively, to five per cent commissions, and the purchasers of proprietary stamps to ten per cent. There can be no doubt of this, since his petition distinctly alleges that his sales of common stamps were in amounts of not less than $1,000, and of proprietary stamps in amounts exceeding $500. If, therefore, it be suggested that he was entitled to the difference between the highest rate or per cent allowed by the government (five per cent in purchases of common stamps, and ten per cent in purchases of proprietary stamps), and the amount paid over by him, in stamps, to purchasers, the obvious answer is, that there was in this case no such difference. This interpretation of the statute, we may observe, could, therefore, be of no practical value to him. His contention-and upon no other ground could his claim be sustained-is, that, without reference to the rate of commissions which purchasers received, although it may have been the highest allowed, he was, nevertheless, given by the statute, to his own use, and as his personal allowance or compensation for distributing stamps, under sect. 170, the highest rate of commissions allowed to any one buying from the Commissioner of Internal Revenue.

For instance, upon the theory advanced by appellant's counsel, a purchaser, from the Commissioner of Internal Revenue, of common stamps to the amount, at one time, of $1,000 or more, would be allowed five per cent as commissions, payable in stamps (which, in such cases, would be the full extent of the government's loss), while upon a sale, through an assistant treasurer of the United States, to the same purchaser of the same stamps, in sealed packages, the government would lose altogether ten per cent in commissions,-five per cent to the assistant treasurer, and five per cent to the purchaser; that is, double commissions. In other words, according to that construction of the statute, the government held out an inducement to officers, named in sects. 161 and 170, not to become themselves purchasers, for cash, of stamps for sale and distribution in their respective localities (as they might under sect. 161), but to receive them, under sect. 170, and thereby, without advancing any money, secure for themselves (outside of what the purchasers from them would be allowed), the highest rate which the law allowed in purchases directly from the Commissioner.

We cannot give our assent to any such construction of the statute. The officers, named in sect. 170, were charged, at the outset, with the value of each sealed package of stamps delivered to them for distribution. In the settlement of their accounts they were entitled to be credited with the amount of stamps unsold and returned; with the sums received upon sales, and paid over to the government; and, also, with the value of the stamps placed in the sealed packages, for delivery to purchasers as commissions allowed to them. In this way they were relieved from the responsibility assumed when they were supplied with stamps for distribution under sect. 170. The statutory direction that the Commissioner, in such cases, 'shall allow the highest rate of commissions allowed by law to any other parties purchasing the same,' was an awkward mode of expressing the idea that the same commissions, up to the highest rate, should be allowed in purchases under sect. 170, as under sect. 161,-that is, that those wishing stamps might purchase from the officers named in sect. 170 at the like rate, even the highest, accorded to 'any other parties purchasing the same' stamps, for cash, directly from the Commissioner.

As to assistant treasurers distributing stamps under sect. 170, we are of opinion that Congress did not intend that they should receive any compensation whatever for services of that character,-certainly not in any case where the commissions paid to those who purchased from such officers were as large as the highest rate prescribed in sales by the Commissioner, for cash, under sect. 161. It was for the better accommodation of the public that the Secretary of the Treasury required assistant treasurers to aid in the distribution of adhesive stamps. The communications addressed to the assistant treasurer of New York, announcing his purpose to adopt that course, show upon their face that the Secretary had no expectation thereby of increasing the loss, in the way of commissions, which the government would sustain upon sales of stamps. He believed that he had the power to impose upon assistant treasurers the duty of distributing internal revenue stamps.

The conclusion we have indicated is in line with the settled policy which has existed upon the subject of extra compensation to officers having fixed salaries or pay, especially in regard to assistant treasurers of the United States.

By an act approved March 3, 1839, c. 82, making appropriations for the civil and diplomatic service, it was declared, that 'no officer in any branch of the public service, or any other person whose salaries, or whose pay or emoluments, is or are fixed by law and regulations, shall receive any extra allowance or compensation, in any form whatever, for the disbursement of public money, or the performance of any other service, unless the said extra allowance or compensation be authorized by law.' 5 Stat. 349. In a subsequent act of Aug. 23, 1842, c. 183, this prohibition against extra compensation to officers with fixed salaries was somewhat enlarged, and this provision was inserted: 'No officer in any branch of the public service, or any other person whose salary, pay, or emoluments is, or are, fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatsoever, unless the same shall be authorized by law, and the appropriation therefor explicitly set forth that it is for such additional pay, extra allowance, or compensation.' Id. 510. And at the same session of Congress, by an act approved Aug. 26, 1842, c. 202, it was declared that 'no allowance or compensation shall be made to any clerk or other officer, by reason of the discharge of duties which belong to any other clerk or officer, in the same or any other department; and no allowance or compensation shall be made for any extra services whatever, which any clerk or other officer may be required to perform.' Id. 525.

We come, then, to the act of Aug. 6, 1846, c. 90, under which the appellant was appointed to office, providing for the better organization of the treasury, and for the collection, safe-keeping, transfer, and disbursement of the public revenue. Among the duties imposed by that act upon assistant treasurers was that of doing and performing all duties as fiscal agents of the government which might be imposed by that or any other act of Congress, or by any regulation of the Treasury Department made in conformity to law; and, 'also to do and perform all acts and duties required by law, or by direction of any of the executive departments of the government, as agents for paying pensions, or for making any other disbursements which either of the heads of those departments may be required by law to make, and which are of a character to be made by the depositaries hereby constituted, consistently with the other official duties imposed upon them.' 9 id. 60. The same act fixed the salaries of the assistant treasurers, and declared: 'And these salaries, respectively, shall be in full for the services of the respective officers; nor shall either of them be permitted to charge or receive any commission, pay, or perquisite, for any official service, of any character or description whatsoever.' Id. 65. The foregoing provisions in the acts of 1839, 1842, and 1846 have been preserved in sects. 1763, 1764, 1765, and 3597 of the Revised Statutes. They were all in force when the general revenue statute of 1864 was passed. Commenting upon the act of Aug. 23, 1842, this court in Stansbury v. United States said: 'The law was passed to remedy an evil which had existed of detailing officers with fixed pay to perform duties outside of their regular employment, and paying them for it, when the government was entitled, without this double pay, to all their services. The law prohibited, and was intended to do so, the allowance of such claims as these, made by public officers, for extra compensation, on the ground of extra services.' 8 Wall. 33, 37.

It will be observed that while the act of Aug. 23, 1842, allows an officer having a fixed salary to receive additional pay, extra allowance, or compensation, if 'the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation,' the act of 1876 contains no such reservation in favor of assistant treasurers of the United States. As to those officers, the statute expressly forbids them from receiving 'any commission, pay, or perquisite, for any official service of any character or description whatsoever.' And so the law is to this day. Rev. Stat., sect. 3597.

Of course these provisions would not avail the government should Congress, by subsequent enactment, allow assistant treasurers to receive, outside of their fixed salaries, commissions, pay, or perquisites for extra services. But, in view of the established policy of the government, as shown in the statutes to which we have referred, the act of 1864 should not be construed as a departure from that policy. Its language does not clearly indicate an intention to allow assistant treasurers additional pay or compensation for such services as those which appellant performed. We are not satisfied that Congress had any purpose to alter the existing statutes in reference to the allowance of extra compensation to assistant treasurers, with fixed salaries. His services in connection with the distribution of adhesive stamps were of a character which, consistently with his other official duties, he might be required to perform. But if they were not, he was not entitled to compensation, because the statute does not explicitly state that he was to receive additional pay therefor.

The views we have expressed are further fortified by the twenty-fifth section of the act of 1864, which declares that 'there shall be allowed to collectors, in full compensation for their services, and that of their deputies, a salary of $1,500 to be paid quarterly, and in addition thereto a commission of three per cent upon the first hundred thousand dollars, and a commission of one per cent upon sums above $100,000 and not exceeding $400,000, and a commission of one-half of one per cent on all sums above $400,000, such commissions to be computed upon the amounts by them respectively collected and paid over and accounted for under the instructions of the Treasury Department.' According to the argument advanced by counsel for appellant, collectors, notwithstanding the foregoing provision, would be entitled to receive, for their services in distributing stamps, under sect. 170, compensation other and beyond that which sect. 25 of the same act declares shall be 'in full compensation for their services.' Such was not, as we think, the intention of Congress.

If an assistant treasurer wished to derive personal advantage or profit from the distribution of adhesive stamps, he was at liberty to do so by becoming himself a purchaser, for cash, directly from the Commissioner, under sect. 161. The stamps in that case would become his property, whereas, if received under sect. 170, they remained the property of the government until they were actually sold. By purchasing stamps for cash, in amounts of $1,000 and over, he would be allowed, as any other purchaser would be, five per cent as commissions, and upon sales in small amounts by him to others he could realize to his own use the difference between five per cent and the rate (whatever it was) at which the purchaser from him could have obtained stamps directly from the Commissioner. But when he received stamps, under sect. 170, for distribution, he could derive no advantage from their sale, certainly not in cases where the commissions allowed to the purchasers amounted, in sales of common stamps, to five per cent, and in sales of proprietary stamps to ten per cent. Congress never intended that the government should, in any contingency, lose on sales of adhesive stamps, by whomsoever and in whatsoever quantities made, more than five per cent of the face value of common stamps, and more than ten per cent of the face value of proprietary stamps.

Judgment affirmed.

MR. JUSTICE FIELD, with whom concurred MR. JUSTICE BRADLEY, dissenting.


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


text:
Folger v. United States/Dissent Field

MR. JUSTICE FIELD, with whom concurred MR. JUSTICE BRADLEY, dissenting.

I dissent from the judgment of the court. I think that Mr. Folger was entitled to the difference between the five per cent given by the government and the amount he allowed to the purchasers.

title: Folger v. United States/Dissent Field


text: Talk:Folger v. United States/Dissent Field


text:
Bamberger v. Terry

ERROR to the Circuit Court of the United States for the District of Connecticut.

The parties to this action having stipulated in writing that it should be tried by the court, the following facts were found by it to have been proven:--

On or about Aug. 12, 1875, the firm of S. A. Castle & Co., of the city of New York, consisting of Samuel A. Castle, Rufus E. Hitchcock, and Henry S. McGrane, being insolvent, made an assignment of all their goods and effects, for the joint and equal benefit of their creditors, under the statute of New York of April 13, 1860, to Leopold Bamberger, of that city, who accepted the trust, gave bonds according to law, and entered upon his duties Aug. 12, 1875.

Previously to this time the firm had been the selling agents in that city of the United States Button Company, a jointstock corporation, duly incorporated in pursuance of the laws of Connecticut, and established in Waterbury. The firm had in their store on Aug. 12, 1875, the manufactured goods of the company theretofore sent for sale upon commission to large amount, and being the property of the company. Their market value was $7,500. The company had not been in the habit of drawing against its consignments, but prior to that date had obtained from Castle & Co. their accommodation acceptances to the amount of $22,500; and it was agreed between the parties at the time when the acceptances were given that the firm should have, as security against their liability upon them, a lien on the goods which were from time to time unsold. These acceptances had been discounted for the benefit of the company, and were then held and owned by the Waterbury National Bank.

The goods of the company in the possession of Castle & Co. were specified in their inventory, which was duly made and filed, in pursuance of the laws of New York, under the head of 'Goods on hand on which allowances have been made, and merchandise in stock,' &c., as 'consigned by the United States Button Co.,' and were appraised at $6,054. The assignee thus had notice of the ownership of the goods. He immediately took possession of them as his own, and as equitably belonging to the creditors of Castle & Co., and proceeded forthwith to sell them as rapidly as he was able for the benefit of the estate. On Sept. 24, 1875, the company took up and received the acceptances from the Weterbury National Bank by the substitution of the company's notes therefor; and thereupon the president of the company carried said acceptances to New York, tendered them to Bamberger, and demanded of him the goods belonging to the company, but he refused to deliver the same, and continued the sale thereof.

The Superior Court of New Haven County, on or about Nov. 1, 1875, appointed Terry, the plaintiff, receiver of the estate of the Button Company, and authorized him, by its decree, to execute the powers specified in the General Statutes of Connecticut. He accepted said trust, gave bonds pursuant to law, which were accepted by the court, and entered upon his duties.

Nov. 24, 1875, the plaintiff, accompanied by the secretary of the company as a witness, again tendered the acceptances to Bamberger, in the city of New York, and demanded the goods as the property of the Button Company. Bamberger refused to deliver them. The plaintiff then asked him if there were any other acceptances outstanding against the goods, or if there were any other claims or charges against the goods for interest, commission, &c., except the tendered drafts, to which inquiry Bamberger replied in the negative. Upon the payment of said accommodation acceptances, Castle & Co. were indebted to the Button Company in a large amount, as appeared by the inventory.

The defendant objected to all evidence of the demand of Terry as receiver upon Bamberger, and of his refusal and of the title of Terry to the goods, upon the following grounds:--

'It being conceded by the plaintiff that all the demanded goods at the time of the appointment of said Terry, and continuously until said demand, and until after the bringing of this suit, were in the city of New York, all evidence of demand and refusal and of ther title of said Terry is objected to on the ground that said Terry's title is confined to the property of said corporation within the State of Connecticut and the jurisdiction of the State court.'

The objection was overruled, whereupon the defendant excepted.

At the close of plaintiff's evidence the defendant moved for judgment in his favor, on the ground,--

1. That the plaintiff's only title to the goods in question is as receiver appointed by the State court of Connecticut.

2. All the goods in question are in New York, and beyond the jurisdiction of the courts of Connecticut.

3. The statutes and courts of Connecticut have no power to give title to goods located beyond the jurisdiction of that State.

The motion was denied, and the defendant excepted.

At the close of the testimony, the plaintiff asked and obtained leave, against the objection of the defendant, to amend the declaration by the addition of counts for a conversion prior to the plaintiff's appointment. Opportunity was given to the defendant, after the allowance of the amendments, to introduce additional testimony if he desired, but he claimed that a new issue having been raised, he was entitled to a trial by jury upon the whole case.

The court held that the defendant having stipulated to try the case by the court, and having closed his pleadings and presented all his evidence, had waived his right to trial by jury. Judgment having been rendered in favor of the plaintiff, the defendant sued out this writ of error.

Mr. R. B. Warden and Mr. S. W. Jonston, for the plaintiff in error.

Mr. S. W. Kellogg and Mr. George E. Terry, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Bamberger v. Terry


text: Talk:Bamberger v. Terry

title: Talk:Bamberger v. Terry


text:
Bamberger v. Terry/Opinion of the Court

This record shows that on the 25th of May, 1876, Bamberger, the defendant below, moved that the cause be entered on the jury docket of the court, 'pursuant to the statute in such case provided, and as of right he may demand.' Afterwards he stipulated in writing that the cause be tried by the court. This was equivalent to a waiver of a jury. The stipulation was duly filed and entered of record. Afterwards the parties appeared and the case was tried by the court. At the close of the testimony, Terry, the plaintiff below, asked and, against the objection of the defendant, obtained leave to amend his declaration so as to avoid a variance between the pleadings and the proof. The defendant then put in a general denial to the amended declaration and demanded a jury trial. This the court refused, but gave the defendant leave to introduce additional evidence, if he desired.

By sect. 954, Rev. Stat., the trial court may at any time permit either of the parties to amend any defect in the process or pleadings upon such conditions as it shall in its discretion, or by its rules, prescribe. This clearly authorizes the allowance of amendments during the progress of a trial in furtherance of justice. When such an amendment is permitted the court must, in its discretion, determine whether any submission which has been made ought to be vacated. Here the court decided that it ought not, and in this we see nothing wrong. Neither the nature of the case nor the real issue between the parties, as it had been tried, was changed by the amendment. All that had been done was to present by the pleadings, fairly and on its merits, the controversy as it had actually been tried.

Judgment affirmed.

title: Bamberger v. Terry/Opinion of the Court


text: Talk:Bamberger v. Terry/Opinion of the Court


text:
Pennock v. Commissioners

ERROR to the Supreme Court of the State of Kansas.

The facts are stated in the opinion of the court.

Mr. George E. Peck and Mr. Thomas Ryan for the plaintiff in error.

No counsel appeared for the defendants in error.

Mr. JUSTICE FIELD delivered the opinion of the court.

title: Pennock v. Commissioners


text: Talk:Pennock v. Commissioners

title: Talk:Pennock v. Commissioners