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Alexander v. Bryan/Opinion of the Court

On the twenty-second of November, 1858, John A. C. Horn, having been appointed by the judge of the probate court of Marengo county, Alabama, executor of the last will and testament of John Horn, executed, with John D. Alexander and W. B. Lessuer, as sureties, a bond or writing obligatory, under seal, to said judge, in the penalty of $100,000, conditioned that said executor should well and truly perform all the duties which were or might by law be required of him. This suit was brought by Frances L. Bryan against the surety Alexander, in the circuit court of the United States for the Southern district of Alabama, on the twelfth of February, 1879. The complaint sets forth that the plaintiff obtained a final decree in that court against said executor, June 10, 1877, for $4,292.12, and costs, in a suit in equity brought by legatees of John Horn against said executor and others, and alleges the non-payment of the decree and a breach of the condition of the bond. The defendant pleaded several unverified pleas, to each of which the plaintiff demurred. The demurrers were sustained. The defendant did not plead further, and the court rendered a judgment for the plaintiff, for $5,207.26. The defendant has brought the case here by a writ of error.

The first plea alleges that the defendant 'did not undertake in manner and form as is in said complaint alleged and set forth, and that he does not owe the debt claimed of him in said complaint.' The grounds of demurrer to this plea are (1) that the plea that the defendant did not undertake amounts only to a denial of the execution of the bond, and is not verified by oath; (2) that the plea is not verified; (3) that the averment that the defendant does not owe the sum sued for cannot be legally pleaded, and tenders no legal issue. By the Code of Alabama (section 2989) a plea which denies the execution by the defendant of an instrument in writing which is the foundation of the suit, must be verified by affidavit. It is admitted that the want of such affidavit may be reached by a demurrer. But it is contended that the plea is not a plea of non est factum. If the allegation that the defendant did not undertake in manner and form as alleged is not a denial of the execution of the bond, but merely a denial of its operation or effect, it is a bad plea, (2 Chit. Pl. 483,) and equivalent only to the plea of nil debet, which follows, and bad with that. Indeed, the plaintiff in error contends that all the plea does is to deny liability for a breach of the bond at the time the suit was commenced. In Alabama, the plea of nil debet in an action of debt on a bond with condition, where breaches are assigned, is bad on demurrer. Reid v. Nash, 23 Ala. 733.

The other pleas raise the question of the statute of limitations. The Code of Alabama provides that actions against the sureties of executors for any misfeasance or malfeasance of their principal must be brought within six years after the cause of action has accrued, and not afterwards, 'the time to be computed from the act done or omitted by their principal, which fixes the liability of the surety.' Section 3223, (2898;) section 3226, (2901.) In order to apply the provisions of this statute it is necessary to state the facts of the case, as set forth in the pleas.

On the twenty-first of May, 1860, the probate court of Marengo county made a decree on partial settlement of the accounts of the executor, in which it was found that there remained due to Frances L. Bryan, as a legatee, $2,700.18, for which she was entitled to a decree. Other sums were found to be due to other legatees, and it was decreed that they should recover those sums of the executor; but in regard to Frances L. Bryan the decree stated that it appeared there was a suit pending between her and her husband respecting the right of possession of the property therein ascertained to be her share, and it ordered that the executor should hold the balance in cash so ascertained to be due to her, subject to the further decree of the court to be made on the determination of said suit. The legatees and the executor were parties to this decree. Proceedings for a final accounting were afterwards had in the probate court, and on the second of May, 1864, it made a decree, stating that the executor had fully administered the estate and had a balance of money for distribution, which he had invested in 4 per cent. bonds of the confederate states, and ordering that of this amount he should pay to Frances L. Bryan as her share, due to her, $995.78, in said confederate bonds, this sum being in addition to the prior sum of $2,700.18. It ordered the payment of four other shares in such confederate bonds, and that the resignation of the executor, then filed, should be recorded.

On the fifteenth of November, 1867, Sarah Lockhart, one of the legatees, and her husband, and Narcissa Lockhart, another legatee, filed a bill in equity in said circuit court against the executor, making as defendants also the other legatees, devisees, and heirs of the testator and others, including Frances L. Bryan and her husband, alleging the failure of the executor to pay to the legatees, including Frances L. Bryan, the moneys so decreed to them, and praying an enforcement of their payment and a decree therefor against the executor, and against James D. Alexander, as surety on his bond. On the second of June, 1871, the court decreed that the executor pay to the plaintiffs in the suit, in lawful money of the United States, the several amounts adjudged to be due to them by the decree of the probate court of May 2, 1864, with interest; and that the remaining defendants be authorized to apply for such order and relief as they might be entitled to ask on the principles of said decree. The executor appealed to this court, and the decree was affirmed at October term, 1873, (Horn v. Lockhart, 17 Wall. 570,) it being held that the executor could not exonerate himself from liability for the moneys adjudged to be due to the legatees by paying the same in confederate bonds. In the opinion of the court it was said: 'The validity of the action of the probate court of Alabama in the present case, in the settlement of the accounts of the executor, we do not question, except so far as it approves the investment of funds received by him in confederate bonds, and directs payment to the legatees of their distributive shares in those bonds. Its action in this respect was an absolute nullity, and can afford no protection to the executor in the courts of the United States.'

On the first of April, 1874, Frances L. Bryan filed her * petition in the circuit court, in the said suit in equity therein, under the provisions of the decree, praying for the recovery of the moneys so ascertained to be due to her by the decrees of the probate court, against the executor and against Alexander. The petition set forth that the moneys were her separate estate, and that she had been divorced from her husband. The court, on June 10, 1877, made a decree adjudging that no recovery could be had against Alexander, and dismissing the petition as to him, but without prejudice, and decreeing that the petitioner recover, with interest and costs, from the executor, $4,292.12, which was the amount found to be due to her by the report of a master, as the amount, with interest, of the decrees in her favor in the probate court.

On these facts the question arises as to when the act was done or omitted by the executor which fixed the liability of the surety so that the cause of action had accrued against the surety and the six years had commenced to run. The plaintiff in error contends that the probate decree of 1864 enabled Mrs. Bryan then to sue him, because the provision as to payment in confederate bonds was void, and could and should have been so treated by her; and that thus there was then an absolute decree against the executor to pay the money, which fixed the liability of the surety at that time. If this be not so, then it is contended that his liability was fixed by the equity decree of June 2d, 1871. It is very plain that the probate decree of 1860, which directed the executor to retain the share of Mrs. Bryan, $2,700.18, till further order, and did not direct him to pay it to her, cannot affect the question before us. It is settled law in Alabama that, until there is a judicial ascertainment of the default of the principal, the liability of the surety is not fixed within the statute; that the bar in favor of the surety must be computed from the time of such ascertainment of such default; that the words 'act done,' in the statute, means such judicial ascertainment; and that it is that only which creates a cause of action against the surety and authorizes a suit against him on his bond. Fretwell v. McLemore, 52 Ala. 124, 136. There must be something more than an auditing of accounts, or an ascertainment or judgment that the distributee's share is so much, or that the distributee is entitled to so much. There must be a decree ordering payment, and on which process to collect can issue against the principal. Gilbreath v. Manning, 24 Ala. 418.

As to the probate decree of 1864, the effect of the decision of this court in 17 Wall. 570, was to leave that decree a valid decree so far as it ascertained that the $995.78 was the amount of the share of Mrs. Bryan, but to declare it invalid so far as it directed anything as to payment. All it directed as to payment was to order the executor to pay the $995.78 in confederate bonds. This was no direction to pay in lawful money of the United States. It was only an order to turn over the bonds. The direction as to the bonds being invalid, the entire direction as to payment fell. Under that decree, so long as the direction to pay in the bonds stood, not abrogated by judicial action, the executor could not be sued to pay in anything but the bonds. Hence, the surety could not be sued to pay in lawful money of the United States. This court, in saying that the direction as to payment in bonds was 'an absolute nullity,' said nothing in conflict with these views. The ascertainment that $995.78 remained due to Mrs. Bryan as her share, was coupled with the direction to pay in the bonds, and until the latter was got rid of by judicial action, there was only a qualified decree as to the share. The two parts of the decree were not so unconnected that the former could be allowed to operate as a distinct money judgment by rejecting the latter. The clause as to payment was a whole, and directed that the executor pay to Mrs. Bryan the $995.78, 'so remaining due her as aforesaid, in bonds as aforesaid.' This was preceded by the finding that the executor had received so much money, and had invested it 'in 4 per cent. confederate bonds.' Hence, the direction as to payment had immediate reference to the acquittance of the executor, by enabling him to discharge his liability to Mrs. Bryan by turning the bonds over to her, and it is not to be presumed the probate court intended to say he should pay in any other way. It did not so say. Therefore, Mrs. Bryan could not have maintained any suit against the surety, based on that decree.

The equity decree of 1871 gave to Mrs. Bryan no greater right to sue the surety than she had before. It was a money decree only for the plaintiffs in it, conferring on her, as a defendant, the right to apply in the suit for like relief. She could obtain no relief in the probate court, as was held in Bryan v. Horn, 42 Ala. 496, because that court had no jurisdiction after the settlement of the administration and the resignation of the executor in 1864. Her decree of 1877, in the equity suit, was the first judicial ascertainment of the default of the executor. That decree dismissed her petition as against the surety, 'but without prejudice.' This showed that it was not dimissed on the merits, but for some defect which was allowed to be obviated by another suit. Co. of Mobile v. Kimball, 102 U.S. 691, 705.

The above views dispose of the defense on the merits. The second plea alleges that more than six years from the time of any act done or omitted by the executor, which fixed the liability of the surety on the bond, had elapsed before the commencement of the suit, and that the right of the plaintiff did not accrue within six years before the commencement of the suit, and that the suit and the plaintiff's rights of recovery are barred by the six-years statute of limitations. This plea asserts only a conclusion of law, without averring any facts. The complaint alleges merely the giving of the bond, the decree of 1877, and the non-payment of the money, as a breach of the condition of the bond. The suit being brought in 1879, no facts appeared in the complaint to show the application of the limitation on which the plea is based. That being so, the plea must state the facts. Winston v. Trustees, 1 Ala. 124. This ground of demurrer is stated in the demurrer to the second plea.

By a stipulation in the record, the decree of 1864 is to be considered as set forth in hoec verba in the third plea, and the omission to copy it as part of the plea, as agreed by the stipulation, is a clerical error. It appears in the other pleas.

These are all the errors assigned, and the judgment of the circuit court is affirmed.

title: Alexander v. Bryan/Opinion of the Court


text: Talk:Alexander v. Bryan/Opinion of the Court

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text:
The Legal-Tender Cases

Juilliard, a citizen of New York, brought an action against Greenman, a citizen of Connecticut, in the circuit court of the United States for the Southern district of New York, alleging that the plaintiff sold and delivered to the defendant, at his special instance and request, 100 bales of cotton, of the value and for the agreed price of $5,122.90; and that the defendant agreed to pay that sum in cash on the delivery of the cotton, and had not paid the same or any part thereof, except that he had paid the sum of $22.90 on account, and was now justly indebted to the plaintiff therefor in the sum of $5,100; and demanding judgment for this sum, with interest and costs. The defendant in his answer admitted the citizenship of the parties, the purchase and delivery of the cotton, and the agreement to pay therefor, as alleged; and averred that, after the delivery of the cotton, he offered and tendered to the plaintiff, in full payment, $22.50 in gold coin of the United States, 40 cents in silver coin of the United States, and two United States notes, one of the denomination of $5,000 and the other of the denomination of $100, of the description known as United States legal tender notes, purporting by recital thereon to be legal tender, at their respective face values, for all debts, public and private, except duties on imports and interest on the public debt, and which, after having been presented for payment, and redeemed and paid in gold coin, since January 1, 1879, at the United States subtreasury in New York, had been reissued and kept in circulation under and in pursuance of the act of congress of May 31, 1878, c. 146; that at the time of offering and tendering these notes, and coin to the plaintiff the sum sum of $5,122.90 was the entire amount due and owing in payment for the cotton, but the plaintiff declined to receive the notes in payment of $5,100 thereof; and that the defendant had ever since remained, and still was, ready and willing to pay to the plaintiff the sum of $5,100 in these notes, and brought these notes into court, ready to be paid to the plaintiff, if he would accept them.

The plaintiff demurred to the answer, upon the grounds that the defense, consisting of new matter, was insufficient in law upon its face, and that the facts stated in the answer did not constitute any defense to the cause of action alleged.

The circuit court overruled the demurrer and gave judgment for the defendant, and the plaintiff sued out this writ of error.

''Wm. Allen Butler and Geo. F. Edmunds'', for plaintiff in error.

[Argument of Counsel from pages 422-435 intentionally omitted]

''Thos. H. Talbot and Jas. McKeen'', for defendant in error.

GRAY, J.

title: The Legal-Tender Cases


text: Talk:The Legal-Tender Cases

title: Talk:The Legal-Tender Cases


text:
The Legal-Tender Cases/Opinion of the Court

The amount which the plaintiff seeks to recover, and which, if the tender pleaded is insufficient in law, he is entitled to recover, is $5,100. There can, therefore, be no doubt of the jurisdiction of this court to revise the judgment of the circuit court. Act Feb. 16, 1875, c. 77, § 3, (18 St. 315.) The notes of the United States, tendered in payment of the defendant's debt to the plaintiff, were originally issued under the acts of congress of February 25, 1862, c. 33; July 11, 1862, c. 142; and March 3, 1863, c. 73, passed during the war of the rebellion, and enacting that these notes should 'be lawful money and a legal tender in payment of all debts, public and private, within the United States,' except for duties on imports and interest on the public debt. 12 St. 345, 532, 709. The provisions of the earlier acts of congress, so far as it is necessary for the understanding of the recent statutes to quote them are re-enacted in the following provisions of the Revised Statutes:

'Sec. 3579. When any United States notes are returned to the treasury, they may be reissued, from time to time, as the exigencies of the public interest may require.

'Sec. 3580. When any United States notes returned to the treasury are so mutilated or otherwise injured as to be unfit for use, the secretary of the treasury is authorized to replace the same with others of the same character and amounts.

'Sec. 3581. Mutilated United States notes, when replaced according to law, and all other notes which by law are required to be taken up and not reissued, when taken up shall be destroyed in such manner and under such regulations as the secretary of the treasury may prescribe.

'Sec. 3582. The authority given to the secretary of the treasury to make any reduction of the currency, by retiring and canceling United States notes, is suspended.'

'Sec. 3588. United States notes shall be lawful money, and a legal tender in payment of all debts, public and private, within the United States, except for duties on imports and interest on the public debt.'

The act of January 14, 1875, c. 15, 'to provide for the resumption of specie payments,' enacted that on and after January 1, 1879, 'the secretary of the treasury shall redeem in coin the United States legal tender notes then out-standing, on their presentation for redemption at the office of the assistant treasurer of the United States in the city of New York, in sums of not less than fifty dollars;' and authorized him to use for that purpose any surplus revenues in the treasury and the proceeds of the sales of certain bonds of the United States. 18 St. 296. The act of May 31, 1878, c. 146, under which the notes in question were reissued, is entitled 'An act to forbid the further retirement of United States legal tender notes,' and enacts as follows: 'From and after the passage of this act it shall not be lawful for the secretary of the treasury or other officer under him to cancel or retire any more of the United States legal tender notes. And when any of said notes may be redeemed or be received into the treasury under any law, from any source whatever, and shall belong to the United States, they shall not be retired, canceled or destroyed, but they shall be reissued and paid out again and kept in circulation: provided, that nothing herein shall prohibit the cancellation and destruction of mutilated notes and the issue of other notes of like denomination in their stead, as now provided by law. All acts and parts of acts in conflict herewith are hereby repealed.' 20 St. 87.

The manifest intention of this act is that the notes which it directs, after having been redeemed, to be reissued and kept in circulation, shall retain their original quality of being a legal tender. The single question, therefore, to be corsidered, and upon the answer to which the judgment to be rendered between these parties depends, is whether notes of the United States, issued in time of war, under acts of congress declaring them to be a legal tender in payment of private debts, and afterwards in time of peace redeemed and paid in gold coin at the treasury, and then reissued under the act of 1878, can, under the constitution of the United States, be a legal tender in payment of such debts. Upon full consideration of the case, the court is unanimously of opinion that it cannot be distinguished in principle from the cases heretofore determined, reported under the names of the Legal-tender Cases, 12 Wall. 457; Dooley v. Smith, 13 Wall. 604; Railroad Co. v. Johnson, 15 Wall. 195; and Maryland v. Railroad Co. 22 Wall. 105; and all the judges, except Mr. Justice FIELD, who adheres to the views expressed in his dissenting opinions in those cases, are of opinion that they were rightly decided.

The elaborate printed briefs submitted by counsel in this case, and the opinions delivered in the Legal-tender Cases, and in the earlier case of Hepburn v. Griswold, 8 Wall. 630, which those cases overruled, forcibly present the arguments on either side of the question of the power of congress to make the notes of the United States a legal tender in payment of private debts. Without undertaking to deal with all those arguments, the court has though it fit that the grounds of its judgment in the case at bar should be fully stated. No question of the scope and extent of the implied powers of congress under the constitution can be satisfactorily discussed without repeating much of the reasoning of Chief Justice MARSHALL in the great judgment in McCulloch v. Maryland, 4 Wheat. 316, by which the power of congress to incorporate a bank was demonstrated and affirmed, notwithstanding the constitution does not enumerate, among the powers granted, that of establishing a bank or creating a corporation,

The people of the United States by the constitution established a national government, with sovereign powers, legislative, executive, and judicial. 'The government of the Union,' said Chief Justice MARSHALL, 'though limited in its powers, is supreme within its sphere of action;' 'and its laws, when made in pursuance of the constitution, form the supreme law of the land.' 'Among the enumerated powers of government, we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government.' 4 Wheat. 405-407. A constitution, establishing a frame of government, declaring fundamental principles, and creating a national sovereignty, and intended to endure for ages, and to be adapted to the various crises of human affairs, is not to be interpreted with the strictness of a private contract. The constitution of the United States, by apt words of designation or general description, marks the outlines of the powers granted to the national legislature; but it does not undertake, with the precision and detail of a code of laws, to enumerate the subdivisions of those powers, or to specify all the means by which they may be carried into execution. Chief Justice MARSHALL, after dwelling upon this view, as required by the very nature of the constitution, by the language in which it is framed, by the limitations upon the general powers of congress introduced in the ninth section of the first article, and by the omission to use any restrictive term which might prevent its receiving a fair and just interpretation, added these emphatic words: 'In considering this question, then, we must never forget that it is a constitution we are expounding.' 4 Wheat. 407. See, also, page 415.

The breadth and comprehensiveness of the words of the constitution are nowhere more strikingly exhibited than in regard to the powers over the subjects of revenue, finance, and currency, of which there is no other express grant than may be found in these few brief clauses:

'The congress shall have power—

'To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States.

'To borrow money on the credit of the United States.

'To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.'

'To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.' The section which contains the grant of these and other principal legislative powers concludes by declaring that the congress shall have power—

'To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.'

By the settled construction and the only reasonable interpretation of this clause the words 'necessary and proper' are not limited to such measures as are absolutely and indispensably necessary, without which the powers granted must fail of execution, but they include all appropriate means which are conducive or adapted to the end to be accomplished, and which, in the judgment of congress, will most advantageously effect it. That clause of the constitution which declares that 'the congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States,' either embodies a grant of power to pay the debts of the United States or presupposes and assumes that power as inherent in the United States as a sovereign government. But, in whichever aspect it be considered, neither this nor any other clause of the constitution makes any mention of priority or preference of the United States as a creditor over other creditors of an individual debtor. Yet this court, in the early case of U.S. v. Fisher, 2 Cranch, 358, held that, under the power to pay the debts of the United States, congress had the power to enact that debts due to the United States should have that priority of payment out of the estate of an insolvent debtor which the law of England gave to debts due to the crown. In delivering judgment in that case, Chief Justice MARSHALL expounded the clause giving congress power to make all necessary and proper laws, as follows: 'In construing this clause, it would be incorrect, and would produce endless difficulties, if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose, it might be said, with respect to each, that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution. The government is to pay the debt of the Union, and must be authorized to use the means which appear to itself the most eligible to effect that object.' 2 Cranch, 396.

In McCulloch v. Maryland he more fully developed the same view, concluding thus: 'We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.' 4 Wheat. 421. The rule of interpretation thus laid down has been constantly adhered to and acted on by this court, and was accepted as expressing the true test by all the judges who took part in the former discussions of the power of congress to make the treasury notes of the United States a legal tender in payment of private debts. The other judgments delivered by Chief Justice MARSHALL contain nothing adverse to the power of congress to issue legal tender notes.

By the articles of confederation of 1777, the United States, in congress assembled, were authorized 'to borrow money or emit bills on the credit of the United States;' but it was declared that 'each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this confederation expressly delegated to the United States in congress assembled.' Article 2; art. 9, § 5; 1 St. 4, 7. Yet, upon the question whether, under those articles, congress, by virtue of the power to emit bills on the credit of the United States, had the power to make bills so emitted a legal tender, Chief Justice MARSHALL spoke very guardedly, saying: 'Congress emitted bills of credit to a large amount, and did not, perhaps could not, make them a legal tender. This power resided in the states.' Craig v. Missouri, 4 Pet. 410, 435. But in the constitution, as he had before observed in McCulloch v. Maryland, 'there is no phrase which, like the articles of confederation, excludes incidental or implied powers, and which requires that everything granted shall be expressly and minutely described. Even the tenth amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word 'expressly,' and declares only that the powers 'not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people;' thus leaving the question, whether the particular power which may become the subject of contest has been delegated to the one government or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments.' 4 Wheat. 405, 406. The sentence sometimes quoted from his opinion in Sturges v. Crowninshield had exclusive relation to the restrictions imposed by the constitution on the powers of the states, and especial reference to the effect of the clause prohibiting the states from passing laws impairing the obligation of contracts, as will clearly appear by quoting the whole paragraph: 'Was this general prohibition intended to prevent paper money? We are not allowed to say so, because it is expressly provided that no state shall 'emit bills of credit;' neither could these words be intended to restrain the states from enabling debtors to discharge their debts by the tender of property of no real value to the creditor, because for that subject also particular provision is made. Nothing but gold and silver coin can be made a tender in payment of debts.' Id. 122, 204.

Such reports as have come down to us of the debates in the convention that framed the constitution afford no proof of any general concurrence of opinion upon the subject before us. The adoption of the motion to strike out the words 'and emit bills' from the clause 'to borrow money and emit bills on the credit of the United States' is quite inconclusive. The philippic delivered before the assembly of Maryland by Mr. Martin, one of the delegates from that state, who voted against the motion, and who declined to sign the constitution, can hardly be accepted as satisfactory evidence of the reasons or the motives of the majority of the convention. See 1 Elliot, Deb. 345, 370, 376. Some of the members of the convention, indeed, as appears by Mr. Madison's minutes of the debates, expressed the strongest opposition to paper money. And Mr. Madison has disclosed the grounds of his own action by recording that 'this vote in the affirmative by Virginia was occasioned by the acquiescence of Mr. Madison, who became satisfied that striking out the words would not disable the government from the use of public notes, so far as they could be safe and proper, and would only cut off the pretext for a paper currency, and particularly for making the bills a tender, either for public or private debts.' But he has not explained why he thought that striking out the words 'and emit bills' would leave the power to emit bills, and deny the power to make them a tender in payment of debts. And it cannot be known how many of the other delegates, by whose vote the motion was adopted, intended neither to proclaim nor to deny the power to emit paper money, and were influenced by the argument of Mr. Gorham, who 'was for striking out, without inserting any prohibition,' and who said: 'If the words stand, they may suggest and lead to the emission.' 'The power, so far as it will be necessary or safe, will be involved in that of borrowing.' 5 Elliot, Deb. 434, 435, and note. And after the first clause of the tenth section of the first article had been reported in the form in which it now stands, forbidding the states to make anything but gold or silver coin a tender in payment of debts, or to pass any law impairing the obligation of contracts, when Mr. Gerry, as reported by Mr. Madison, 'entered into observations inculcating the importance of public faith, and the propriety of the restraint put on the states from impairing the obligation of contracts; alleging that congress ought to be laid under the like prohibitions;' and made a motion to that effect; he was not seconded. Id. 546. As an illustration of the danger of giving too much weight, upon such a question, to the debates and the votes in the convention, it may also be observed that propositions to authorize congress to grant charters of incorporation for national objects were strongly opposed, especially as regarded banks, and defeated. Id. 440, 543, 544. The power of congress to emit bills of credit, as well as to incorporate national banks, is now clearly established by decisions to which we shall presently refer.

The words 'to borrow money,' as used in the constitution, to designate a power vested in the national government, for the safety and welfare of the whole people, are not to receive that limited and restricted interpretation and meaning which they would have in a penal statute, or in an authority conferred, by law or by contract, upon trustees or agents for private purposes. The power 'to borrow money on the credit of the United States' is the power to raise money for the public use on a pledge of the public credit, and may be exercised to meet either present or anticipated expenses and liabilities of the government. It includes the power to issue, in return for the money borrowed, the obligations of the United States in any appropriate form, of stock, bonds, bills or notes; and in whatever form they are issued, being instruments of the national government, they are exempt from taxation by the governments of the several states. Weston v. Charleston City Council, 2 Pet. 449; Banks v. Mayor, 7 Wall. 16; Bank v. Sup'rs, 7 Wall. 26. Congress has authority to issue these obligations in a form adapted to circulation from hand to hand in the ordinary transactions of commerce and business. In order to promote and facilitate such circulation, to adapt them to use as currency, and to make them more current in the market, it may provide for their redemption in coin or bonds, and may make them receivable in payment of debts to the government. So much is settled beyond doubt, and was asserted or distinctly admitted by the judges who dissented from the decision in the Legaltender Cases, as well as by those who concurred in that decision. Veazie Bank v. Fenno, 8 Wall. 533, 548; Hepburn v. Griswold, Id. 616, 636; Legaltender Cases, 12 Wall. 543, 544, 560, 582, 610, 613, 637. It is equally well settled that congress has the power to incorporate national banks, with the capacity, for their own profit as well as for the use of the government in its money transactions, of issuing bills which, under ordinary circumstances, pass from hand to hand as money at their nominal value, and which, when so current, the law has always recognized as a good tender in payment of money debts, unless specifically objected to at the time of the tender. U.S. Bank v. Bank of Georgia, 10 Wheat. 333, 347; Ward v. Smith, 7 Wall. 447, 451. The power of congress to charter a bank was maintained in McCulloch v. Maryyland, 4 Wheat. 316, and in Osborn v. U.S. Bank, 9 Wheat. 738, chiefly upon the ground that it was an appropriate means for carrying on the money transactions of the government. But Chief Justice MARSHALL said: 'The currency which it circulates, by means of its trade with individuals, is believed to make it a more fit instrument for the purposes of government than it could otherwise be; and, if this be true, the capacity to carry on this trade is a faculty indispensable to the character and objects of the institution.' 9 Wheat. 864. And Mr. Justice JOHNSON, who concurred with the rest of the court in upholding the power to incorporate a bank, gave the further reason that it tended to give effect to 'that power over the currency of the country which the framers of the constitution evidently intended to give to congress alone.' Id. 873.

The constitutional authority of congress to provide a currency for the whole country is now firmly established. In Veazie Bank v. Fenno, 8 Wall. 533, 548, Chief Justice CHASE, in delivering the opinion of the court, said: 'It cannot be doubted that under the constitution the power to provide a circulation of coin is given to congress. And it is settled by the uniform practice of the government, and by repeated decisions, that congress may constitutionally authorize the emission of bills of credit.' Congress, having undertaken to supply a national currency, consisting of coin, of treasury notes of the United States, and of the bills of national banks, is authorized to impose on all state banks, or national banks, or private bankers, paying out the notes of individuals or of state banks, a tax of 10 per cent. upon the amount of such notes so paid out. Veazie Bank v. ''Fenno, supra; Nat. Bank v. U.S.'' 101 U.S. 1. The reason for this conclusion was stated by Chief Justice CHASE, and repeated by the present chief justice, in these words: 'Having thus, in the exercise of undisputed constitutional powers, undertaken to provide a currency for the whole country, it cannot be questioned that congress may, constitutionally, secure the benefit of it to the people by appropriate legislation. To this end, congress has denied the quality of legal tender to foreign coins, and has provided by law against the imposition of counterfeit and base coin on the community. To the same end, congress may restrain, by suitable enactments, the circulation as money of any notes not issued under its own authority. Without this power, indeed, its attempts to secure a sound and uniform currency for the country must be futile.' 8 Wall, 549; 101 U.S. 6.

By the constitution of the United States, the several states are prohibited from coining money, emitting bills of credit, or making anything but gold and silver coin a tender in payment of debts. But no intention can be inferred from this to deny to congress either of these powers. Most of the powers granted to congress are described in the eighth section of the first article; the limitations intended to be set to its powers, so as to exclude certain things which might otherwise be taken to be included in the general grant, are defined in the ninth section; the tenth section is addressed to the states only. This section prohibits the states from doing some things which the United States are expressly prohibited from doing, as well as from doing some things which the United States are expressly authorized to do, and from doing some things which are neither expressly granted nor expressly denied to the United States. Congress and the states equally are expressly prohibited from passing any bill of attainder or ex post facto law, or granting any title of nobility. The states are forbidden, while the president and senate are expressly authorized, to make the treaties. The states are forbidden, but congress is expressly authorized, to coin money. The states are prohibited from emitting bills of credit; but congress, which is neither expressly authorized nor expressly forbidden to do so, has, as we have already seen, been held to have the power of emitting bills of credit, and of making every provision for their circulation as currency, short of giving them the quality of legal tender for private debts, even by those who have denied its authority to give them this quality. It appears to us to follow, as a logical and necessary consequence, that congress has the power to issue the obligations of the United States in such form, and to impress upon them such qualities as currency for the purchase of merchandise and the payment of debts, as accord with the usage of sovereign governments. The power, as incident to the power of borrowing money, and issuing bills or notes of the government for money borrowed, of impressing upon those bills or notes the quality of being a legal tender for the payment of private debts, was a power universally understood to belong to sovereignty, in Europe and America, at the time of the framing and adopting of the constitution of the United States. The governments of Europe, acting through the monarch or the legislature, according to the distribution of powers under their respective constitutions, had and have as sovereign a power of issuing paper money as of stamping coin. This power has been distinctly recognized in an important modern case, ably argued and fully considered, in which the emperor of Austria, as king of Hungary, obtained from the English court of chancery an injunction against the issue in England, without his license, of notes purporting to be public paper money of Hungary. Austria v. Day, 2 Giff. 628, and 3 De Gex, F. & J. 217. The power of issuing bills of credit, and making them, at the discretion of the legislature, a tender in payment of private debts, had long been exercised in this country by the several colonies and states; and during the revolutionary war the states, upon the recommendation of the congress of the confederation, had made the bills issued by congress a legal tender. See Craig v. Missouri, 4 Pet. 435, 453; Briscoe v. Bank of Kentucky, 11 Pet. 257, 313, 334-336; Legal-tender Cases, 12 Wall. 557, 558, 622; Phillipps on American Paper Currency, passim. The exercise of this power not being prohibited to congress by the constitution, it is included in the power expressly granted to borrow money on the credit of the United States.

This position is fortified by the fact that congress is vested with the exclusive exercise of the analogous power of coining money and regulating the value of domestic and foreign coin, and also with the paramount power of regulating foreign and interstate commerce. Under the power to borrow money on the credit of the United States, and to issue circulating notes for the money borrowed, its power to define the quality and force of those notes as currency is as broad as the like power over a metallic currency under the power to coin money and to regulate the value thereof. Under the two powers, taken together, congress is authorized to establish a national currency, either in coin or in paper, and to make that currency lawful money for all purposes, as regards the nation government or private individuals. The power of making the notes of the United States a legal tender in payment of private debts, being included in the power to borrow money and to provide a national currency, is not defeated or restricted by the fact that its exercise may affect the value of private contracts. If, upon a just and fair interpretation of the whole constitution, a particular power or authority appears to be vested in congress, it is no constitutional objection to its existence, or to its exercise, that the property or the contracts of individuals may be incidentally affected. The decisions of this court, already cited, afford several examples of this.

Upon the issue of stock, bonds, bills, or notes of the United States, the states are deprived of their power of taxation to the extent of the property invested by individuals in such obligations, and the burden of state taxation upon other private property is correspondingly increased. The 10 per cent. tax, imposed by congress on notes of state banks and of private bankers, not only lessens the value of such notes, but tends to drive them, and all state banks of issue, out of existence. The priority given to debts due to the United States over the private debts of an insolvent debtor diminishes the value of these debts, and the amount which their holders may receive out of the debtor's estate. So, under the power to coin money and to regulate its value, congress may (as it did with regard to gold by the act of June 28, 1834, c. 95, and with regard to silver by the act of February 28, 1878, c. 20) issue coins of the same denominations as those already current by law, but of less intrinsic value than those, by reason of containing a less weight of the precious metals, and thereby enable debtors to discharge their debts by the payment of coins of the less real value. A contract to pay a certain sum in money, without any stipulation as to the kind of money in which it shall be paid, may always be satisfied by payment of that sum in any currency which is lawful money at the place and time at which payment is to be made. 1 Hale, P. C. 192-194; Bac. Abr. 'Tender, B. 2;' Poth. Cont. No. 416; Pardessus Droit Commercial, Nos. 204, 205; Searight v. Calbraith, 4 Dall. 325. As observed by Mr. Justice STRONG, in delivering the opinion of the court in the Legal-tender Cases, 'Every contract for the payment of money, simply, is necessarily subject to the constitutional power of the government over the currency, whatever that power may be, and the obligation of the parties is, therefore, assumed with reference to that power.' 12 Wall. 549.

Congress, as the legislature of a sovereign nation, being expressly empowered by the constitution 'to lay and collect taxes, to pay the debts and provide for the common defense and general welfare of the United States,' and 'to borrow money on the credit of the United States,' and 'to coin money and regulate the value thereof and of foreign coin;' and being clearly authorized, as incidental to the exercise of those great powers, to emit bills of credit to charter national banks, and to provide a national currency for the whole people, in the form of coin, treasury notes, and national bank bills; and the power to make the notes of the government a legal tender in payment of private debts being one of the powers belonging to sovereignty in other civilized nations, and not expressly withheld from congress by the constitution; we are irresistibly impelled to the conclusion that the impressing upon the treasury notes of the United States the quality of being a legal tender in payment of private debts is an appropriate means, conducive and plainly adapted to the execution of the undoubted powers of congress, consistent with the letter and spirit of the constitution, and therefore within the meaning of that instrument, 'necessary and proper for carrying into execution the powers vested by this constitution in the government of the United States.'

Such being our conclusion in matter of law, the question whether at any particular time, in war or in peace, the exigency is such, by reason of unusual and pressing demands on the resources of the government, or of the inadequacy of the supply of gold and silver coin to furnish the currency needed for the uses of the government and of the people, that it is, as matter of fact, wise and expedient to resort to this means, is a political question, to be determined by congress when the question of exigency arises, and not a judicial question, to be afterwards passed upon by the courts. To quote once more from the judgment in McCulloch v. Maryland: 'Where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground.' 4 Wheat. 423.

It follows that the act of May 31, 1878, c. 146, is constitutional and valid, and that the circuit court rightly held that the tender in treasury notes, reissued and kept in circulation under that act, was a tender of lawful money in payment of the defendant's debt to the plaintiff.

Judgment affirmed.


text: Talk:The Legal-Tender Cases/Opinion of the Court


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State of Lowa v. McFarland State of Illinois

These are petitions filed in this court by each of the states of Iowa and Illinois, at the relation of its governor, relying upon the provision of an act of congress relating to its admission into the Union, by which it was agreed that 'five per cent. of the net proceeds' of lands lying within the state, and afterwards 'sold by congress,' should be appropriated for certain public uses of the state; contending that the state was thereby entitled to 5 per cent. of the value, computed at the rate of $1.25 per acre of lands disposed of by congress in satisfaction of military land warrants, and praying for a writ of mandamus to the commissioner of the general land-office, to compel him, in accordance with section 456 of the Revised Statutes, to state an account between the United States and the state, for the purpose of ascertaining the sum of money so due to the state, and to transmit the account to the comptroller of the treasury for his examination and action, to the end that that sum might be allowed and paid by the United States.

The provisions of the acts of congress, on which the petitioners rely, are as follows: The sixth section of the act of congress of March 3, 1845, c. 76, supplemental to the act of the same day by which the state of Iowa was admitted into the Union, contained, among the propositions offered to the legislature of the state for its acceptance or rejection, and which, if accepted under the authority conferred on the legislature by the convention which framed the constitution of the state, should be obligatory upon the United States, the following:

'Fifth. That five per cent. of the net proceeds of sales of all public lands lying within the said state, which have been or shall be sold by congress from and after the admission of said state, after deducting all the expenses incident to the same, shall be appropriated for making public roads and canals within the said state, as the legislature may direct: provided, that the five foregoing propositions herein offered are on the condition that the legislature of the said state, by virtue of the powers conferred upon it by the convention which framed the constitution of the said state, shall provide, by an ordinance, irrevocable without the consent of the United States, that the said state shall never interfere with the primary disposal of the soil within the same by the United States, nor with any regulations congress may find necessary for securing the title in such soil to the bona fide purchasers thereof; and that no tax shall be imposed on lands the property of the United States; and that in no case shall non-resident proprietors be taxed higher than residents; and that the bounty lands granted, or hereafter to be granted, for military services during the late war, shall, while they continue to be held by the patentees or their heirs, remain exempt from any tax laid by order or under the authority of the state, whether for state, county, township, or any other purpose, for the term of three years from and after the date of the patents, respectively.' 5 St. 790.

The sixth section of the act of congress of April 18, 1818, c. 67, to enable the people of the Illinois territory to form a constitution and state government, and for the admission of the state of Illinois into the Union, contained, among the propositions offered to the convention of the territory, and which, if accepted by the convention, should be obligatory upon the United States, the following: 'Third. That five per cent. of the net proceeds of the lands lying within such state, and which shall be sold by congress from and after the first day of January, one thousand eight hundred and nineteen, after deducting all expenses incident to the same, shall be reserved for the purposes following, viz., two-fifths to be disbursed, under the direction of congress, in making roads leading to the state, the residue to be appropriated, by the legislature of the state, for the encouragement of learning, of which one-sixth part shall be exclusively bestowed on a college or university: provided always, that the four foregoing propositions, herein offered, are on the conditions that the convention of the said state shall provide, by an ordinance, irrevocable without the consent of the United States, that every and each tract of land sold by the United States from and after the first day of January, one thousand eight hundred and nineteen, shall remain exempt from any tax laid by order or under any authority of the state, whether for state, county or township, or any other purpose whatever, for the term of five years from and after the day of sale; and further, that the bounty lands granted, or hereafter to be granted, for military services during the late war, shall, while they continue to be held by the patentees or their heirs, remain exempt, as aforesaid, from all taxes, for the term of three years from and after the date of the patents respectively; and that all the lands belonging to citizens of the United States, residing without the said state, shall never be taxed higher than lands belonging to persons residing therein.' 3 St. 430, 431.

By the act of congress of March 2, 1855, c. 139, entitled 'An act to settle certain accounts between the United States and the State of Alabama,' it was enacted as follows: 'That the commissioner of the general land-office be, and he is hereby, required to state an account between the United States and the state of Alabama, for the purpose of ascertaining what sum or sums of money are due to said state, heretofore unsettled, under the sixth section of the act of March second, eighteen hundred and nineteen, for the admission of Alabama into the Union; and that he be required to include in said account the several reservations under the various treaties with the Chickasaw, Choctaw, and Creek Indians within the limits of Alabama, and allow and pay to said state five per centum thereon, as in case of other sales.' 10 St. 630.

By the act of June 3, 1857, c. 104, entitled 'An act to settle certain accounts between the United states and the state of Mississippi and other states,' it was enacted as follows:

'Section 1. That the commissioner of the general land-office be, and he is hereby, required to state an account between the United States and the state of Mississippi, for the purpose of ascertaining what sum or sums of money are due to said state, heretofore unsettled, on account of the public lands in said state, and upon the same principle of allowance and settlement as prescribed in the 'Act to settle certain accounts between the United States and the state of Alabama,' approved the second March, eighteen hundred and fiftyfive; and that he be required to include in said account the several reservations under the various treaties with the Chickasaw and Choctaw Indians, within the limits of Mississippi, and allow and pay to the said state five per centum thereon, as in case of other sales, estimating the lands at the value of one dollar and twenty-five cents per acre.

'Sec. 2. That the said commissioner shall also state an account between the United States and each of the other states upon the same principles, and shall allow and pay to each state such amount as shall thus be found due, estimating all lands and permanent reservations at one dollar and twenty-five cents per acre.' 11 St. 200.

Each petition alleged that the state had accepted the propositions, and faithfully kept and performed on its part the conditions set forth in the act of admission; that, prior to the dates of the passage of the acts of 1855 and 1857 respectively, the 5 per cent. on the cash sales of the public lands lying within the states of Alabama and Mississippi had been regularly and periodically paid to those states respectively, so that at those dates there were no unsettled accounts, growing out of the 5 per cent. clause of the acts for the admission of those states into the Union, except for lands entered and purchased with military land warrants; and that by the act of 1857 it was the duty of the commissioner of the general land-office, when required to do so, to state an account between the United States and each state upon the same principles of allowance as prescribed in the act of 1855, and by that act it was his duty, upon proper application, to state such an account for the purpose of ascertaining what sum or sums of money, theretofore unsettled under the act for the admission of the state into the Union, were due to it on account of lands lying within the state, disposed of by the United States for, or in the satisfaction and redemption of, military land warrants issued by the United States for military services. Each petition further alleged that the government of the United States, in disposing of the public lands by sale in this and other western states, adopted two methods,-one for cash; the other for the redemption of its outstanding military warrants or obligations, calling for a specific quantity of land, issued to the soldiers who had enlisted and served in the different wars of the country, under statutes enacted in advance of their enlistments, and as a compensation for their military services. Each petition suggested that by the act of August 14, 1848, c. 180, (9St. 332,) military land warrants were made receivable, at the rate of $1.25 per acre for the number of acres therein contained, in payment for any of the public lands subject to private entry; and that by the act of March 22, 1852, c. 19, (10 St. 3,) all military land warrants theretofore and thereafter issued were made assignable by the persons to whom they were issued, and also made receivable from their assignees, at the rate aforesaid per acre, in payment for any of the public lands located and taken up under the pre-emption laws of the United States. Each petition further alleged that the 5 per cent. had been allowed and paid to the petitioner, at stated and proper periods, on sales for cash, but had been withheld on lands located and purchased with military land warrants; that the sum so withheld amounted to $881,006.60 in the case of Iowa, and $595,853.31 in the case of Illinois; that the respondent, though formally requested, had refused to state an account as prayed for; and that the duty of stating such an account was purely ministerial and mandatory in its character, leaving no room for the exercise of his own judgment and discretion in its performance.

Upon each of these petitions a rule to show cause was granted at the last term. The commissioner of the general land-office at this term filed an answer, in the nature of a return to each rule, admitting that upon the facts stated in the petition, as modified and explained by the facts set forth below, he refused to state the account prayed for, and alleging that the grounds of his refusal were these: First, that neither the act of congress relating to the admission of the state into the Union, nor the acts of 1855 and 1857, authorized the state to claim a percentage upon public lands disposed of by the United States to the holders of bounty land warrants; second, that the meaning of those statutes had been established as between the parties, by the contemporaneous and continuous construction thereof by the general land-office and the state in numerous and important transactions, each of which suggested a question, if one existed, as to their construction.

In the case of the state of Iowa, the answer alleged that between August, 1848, and July, 1858, 11 different settlements had been made in the general land-office for the percentage due to the state, convering in all the sum of $580,710.49, in none of which was the present claim suggested, although from time to time during that period large amounts of the public lands lying within the state had been disposed of by the United States to the holders of such warrants; that this contemporaneous practical construction had governed all transactions with the 19 states interested in the statutory provision under consideration; that on September 7, 1858, the state of Iowa made a formal demand upon the secretary of the interior, as the official superior of the then commissioner of the general land-office, to be allowed the percentage now claimed; and that its demand was refused, for the reason stated by the secretary in the following letter to the governor of Iowa: 'DEPARTMENT OF THE INTERIOR, September 20th, 1858.

'In reply to your letter of the seventh instant in relation     to the application for an allowance of five per centum      claimed to be due the state of Iowa on military land-warrant      locations, I have the honor to state that in my opinion the      act of 1847 to which you refer is a bounty land act, and that      no distinction can properly be made between locations made      under it and those made under other bounty land laws. The     location of warrants issued under the act of 1847 is not      considered as constituting a sale of the public lands as      contemplated by the act admitting Iowa into the Union. That     act appropriated five per cent. of the net proceeds of sales     of all public lands for making public roads and canals within      the state. There being no net proceeds accruing from     locations by military land-warrants, the allowance of five      per centum on such locations cannot be regarded as having      been appropriated or provided. for by law.

J. THOMPSON, Secretary.

'Governor R. P. Lowe, Iowa.'

The answer in the case of the state of Iowa further alleged that this was the only demand ever made by the state of Iowa or by any other state upon the secretary of the interior, or upon the commissioner of the general land-office, in accordance with the claim now set up; and that the state of Iowa had ever since practically acquiesced in the construction suggested by the secretary of the interior, and had confined its efforts to applications to congress for a change in the statutes.

In the case of the state of Illinois, the answer alleged that from November, 1830, to September, 1863, 33 different settlements had been made, covering in all the sum of $711,744.82, and of which that made in 1863, for $1,565.80, was for Indian reservations only, in none of which was the present claim suggested, although from time to time, during 15 or more years of that period, large amounts of the public lands lying within the state were disposed of by the United States to holders of bounty land-warrants.

Each answer concluded by denying that the petitioner, in any view of the case, was entitled to a writ of mandamus.

S. Shellabarger, A. G. Thurman, W. M. Evarts, R. P. Lowe, and W. W. Wilshire, for petitioners.

''Sol. Gen. Phillips'', for respondent.

GRAY, J.


text: Talk:State of Lowa v. McFarland State of Illinois


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State of Lowa v. McFarland State of Illinois/Opinion of the Court

The first question argued in each of these cases may be shortly stated thus: Is the state, under the compact made with it by congress at the time of its admission into the Union, by which 'five per cent. of the net proceeds' of public lands lying within the state, and 'sold by congress' after such admission, shall be reserved and appropriated for the benefit of the state, entitled to a percentage on the value of lands not sold by the United States for cash, but disposed of by the United States in satisfaction of military landwarrants? This question is rendered important by the large sums of money involved, and by the fact that similar stipulations are contained in acts passed by congress relating to 17 other western or southern states, beginning with section 7 of the act of April 30, 1802, c. 40, for the admission of the state of Ohio into the Union. 2 St. 175. Upon full consideration of the question, with the aid of the able arguments of counsel, the court is of opinion that lands disposed of by the United States in satisfaction of military land-warrants are not sold, within the meaning of the statutes upon which the petitioners rely. A sale, in the ordinary sense of the word, is a transfer of property for a fixed price in money or its equivalent. When property or money is transferred or paid as a compensation for service, the property or money may be said to be the price of the service; but it can hardly be said that the service is the price of the property or money, or that the property or money is sold to the person performing the service. Nor can it be said that the pay of an officer or soldier in the army or navy is sold to him by the government in consideration of a price paid by him. Land or money, other than current salary or pay, granted by the government to a person entering the military or naval service of the country, has always been called a bounty; and while it is by no means a gratuity, because the promise to grant is one of the considerations for which the soldier or sailor enters the service, yet it is clearly distinguishable from salary or pay measured by the time of service. For example, it was held by Lord MANSFIELD and the court of king's bench, in 1784, that though the master of an apprentice was entitled by the act of parliament of 2 & 3 Anne, c. 6, § 17, to the wages of his apprentice enlisting into the navy, yet the apprentice's share of prize money belonged to himself, and not to his master, because it was not wages, but the bounty of the crown. Carsan v. Watts, 3 Doug. 350; Eades v. Vandeput, 4 Doug. 1. Upon like grounds it has been held that bounty money paid by the United States, or by a state, city, or town, upon the enlistment of a minor as a soldier, during the recent war, belonged to him, and not to his father or master. Banks v. Conant, 14 Allen, 497; Kelly v. Sprout, 97 Mass. 169. See, also, Alexander v. Wellington, 2 Russ. & M. 35, 56, 64.

The learned counsel for the state of Iowa referred to Gen. Washington's circular letter of June 8, 1783, to the governors of the states, and especially to the passage in which he insisted that the half pay and commutation promised by the congress of the confederation to the officers of the army during the war of the revolution, 'should be viewed, as it really was, a reasonable compensation offered by congress, at a time when they had nothing else to give, to the officers of the army for services then to be performed; it was the only means to prevent a total dereliction of the service; it was a part of their hire; I may be allowed to say, it was the price of their blood and your independency; it is therefore more than a common debt; it is a debt of honor; it can never be considered as a pension or gratuity, nor be canceled until it is fairly discharged.' But in the very next paragraph he spoke of 'the bounties many of the soldiers have received,' 'besides the donation of lands.' The question before us is not whether the promise by the government of a bounty in land or money to persons entering the military service is a contract for valuable consideration, but whether, when carried into effect, it constitutes a sale by the government; and it is quite clear that land granted by way of reward for military services has never been treated, in the legislation of the United States upon the subject, as sold, but has always been considered as analogous to money paid in a gross sum by way of bounty. By the resolution of September 16, 1776, the congress of the confederation resolved that 'twenty dollars be given as a bounty' to each non-commissioned officer and private soldier enlisting to serve during the war, and that 'congress make provision for granting lands' to officers and soldiers in certain proportions; 'such lands to be provided by the United States,' and any necessary expenses in procuring them to be paid and borne by the United States in the same proportion as the other expenses of the war. 2 Jour. Cong. 357.

The act of Virginia of December 20, 1783, to cede the Northwest Territory to the United States, and the deed of cession of March 1, 1784, were upon the following conditions: That the territory so ceded should be laid out and formed into states, to be admitted members of the federal Union. That 'a quantity, not exceeding one hundred and fifty thousand acres of land, promised by this state, shall be allowed and granted' to Gen. George Rogers Clarke, and his officers and soldiers. 'That in case the quantity of good lands on the southeast side of the Ohio, upon the waters of Cumberland river, and between the Green river and Tennessee river, which have been reserved by law for the Virginia troops upon continental establishment, should, from the North Carolina line bearing in further upon the Cumberland lands than was expected, prove insufficient for their legal bounties, the deficiency should be made up to the said troops in good lands, to be laid off between the rivers Scioto and Little Miami, on the north-west side of the river Ohio, in such proportions as have been engaged to them by the laws of Virginia. That all the lands within the territory so ceded to the United States, and not reserved for or appropriated to any of the before-mentioned purposes, or disposed of in bounties to the officers and soldiers of the American army, shall be considered as a common fund for the use and benefit of such of the United States as have become or shall become members of the confederation or federal alliance of the said states.' 1 Const. & Chart. 427, 428.

The acts of congress under the constitution, containing grants of land or money to soldiers, have habitually and repeatedly spoken of them as bounties, using the words 'bounty of three months' pay and one hundred and sixty acres of land;' 'military bounty lands;' 'military land bounties;' 'bounty in money and land;' 'money bounty;' 'bounty of one hundred and sixty acres of land;' 'bounty in land;' 'bounty right;' 'bounty land;' and 'military land bounty.' Acts of December 24, 1881, c. 10, § 2; January 11, 1812, c. 14, § 12; May 6, 1812, c. 77; December 12, 1812, c. 4, § 3, (2 St. 669, 673, 729, 788;) January 28, 1814, c. 9, § 2; February 10, 1814, c. 11, § 4; December 10, 1814, c. 10, §§ 3-5, (3 St. 96, 97, 147;) February 11, 1847, c. 8, § 9; September 28, 1850, c. 85, (9 St. 125, 520.) See, also, Lessee of French v. Spencer, 21 How. 228; Maxwell v. Moore, 22 How. 185. They have never spoken of such grants of lands as sales, or of the lands granted as sold.

The very provisions of the acts for the admission of the states of Illinois and Iowa into the Union, which are the foundation of the claims now urged, clearly mark the distinction between lands sold for money and bounty lands granted for military services. In the Illinois act the agreement on the part of the United States is that 'five per cent. of the net proceeds of the lands lying within such state, and which shall be sold by congress,' 'shall be reserved,' part 'to be disbursed,' under the direction of congress, in making roads leading to the state, and the rest 'to be appropriated,' by the legislature of the state, for the encouragement of learning. And among the conditions to be performed on the part of the state are-First, 'that every and each tract of land sold by the United States' shall remain exempt from all state taxation for 'five years from and after * the day of sale;' second, 'that the bounty lands granted or hereafter to be granted for military services during the late war shall, while they continue to be held by the patentees or their heirs,' be exempt from state taxation for 'three years from and after the date of the patents respectively.' To hold that 'lands sold by congress' included 'bounty lands granted for military services' would make these two conditions contradictory of each other; for 'every and each tract of land sold by the United States' was to be absolutely exempt from state taxation for five years, whereas military bounty lands were to be exempt only while held by the patentees or their heirs, and not exceeding three years. The Iowa act manifests the same distinction; for, while it omits the provision exempting 'lands sold by the United States' from state taxation, it retains the provision exempting from taxation 'bounty lands granted for military services;' and it emphasizes the meaning of the leading clause of the proposition by inserting therein the words 'of sales,' so as to read 'five per cent. of the net proceeds of sales of all public lands lying within the said state, which have been or shall be sold by congress from and after the admission of said state, after deducting all the expenses incident to the same, shall be appropriated for making public roads and canals within the said state, as the legislature may direct.' When each of these acts speaks of lands 'sold by congress,' 'five per cent. of the net proceeds' of which shall be reserved, and be 'disbursed' or 'appropriate' for the benefit of the state in which the land lies, it evidently has in view sales in the ordinary sense, from which the United States receive proceeds, in the shape of money payable into the treasury, out of which the 5 per cent. may be reserved and paid to the state; and does not intend to include lands promised and granted by the United States as a reward for military service, for which nothing is received into the treasury. The question depends upon the terms in which the compact between the United States and each state is expressed, and not upon any supposed equity extending those terms to meaning. meaning.

From the very beginning of our existence as a nation, the reward of military service has been treated as a national object and a public use, to which the national domain might justly and lawfully be applied. As new states have been successively formed out of the territory of the United States and admitted into the Union, the acts of admission have reserved, for the making of public highways and other public uses of the state, a twentieth part of the net proceeds of public lands lying within the state, and afterwards sold by the United States. But public lands taken up on military land-warrants issued under general laws, passed for the national object of encouraging and rewarding military service, and not limited to any particular state, have no more been regarded as lands sold, for any portion of the value of which the national government should account to the state in which the lands are actually taken up, than lands reserved and used for forts, arsenals, or light-houses.

Some reliance is placed by the petitioners upon the acts of congress of August 14, 1848, c. 180, and March 22, 1852, c. 19, by which military land-warrants are made assignable, and are also made receivable, either from the original grantee or from his assignee, in payment for public lands, at the rate of $1.25 per acre. But the promise of the United States is made to the soldier at the time of his entering the service, and the grant, in execution of that promise, is made when the warrant is issued to him, and in consideration of services then already performed. At that time no particular land is transferred to him, nor even the state designated in which the land shall be. The selection of the land, which first determines the state where it is to be taken up, is the act, not of the government, but of the holder of the warrant. The government receives no new consideration, and makes no new promise or grant, when the warrant is assigned by the soldier, or when it is actually located by himself or his assignee, and the land and the state in which it lies thereby for the first time designated; and never, at any stage of the transaction, receives into the treasury any money from any person. The fact that the registers and receivers of the land-office, performing services in locating military bounty land warrants, are authorized by section 2 of the act of 1852 to demand and receive for their services, from the assignees or holders of such warrants, the same compensation 'to which they are entitled by law for sales of the public lands for cash, at the rate of one dollar and twenty-five cents per acre,' has no tendency to show that the United States, under their agreement to pay to the state 5 per cent. of the net proceeds of lands sold by congress, are bound to pay 5 per cent. on the value of lands which they have never sold, and for which they have received no money. The acts of March 2, 1855, c. 139, and March 3, 1857, c. 104, requiring 5 per cent. to be paid to the states on the value of lands included in reservations under treaties with the Indian tribes, had reference only to lands reserved to the Indians by stipulations in such treaties. The fact that the words 'as in case of other sales' are used in speaking of lands reserved for that purpose, and have never been so applied to lands disposed of in satisfaction of military land-warrants, appears to us, so far as it has any bearing, to imply an intention to exclude the latter from the class of lands sold, rather than to include them in this class.

That class of decisions of which U.S. v. Watkins, 97 U.S. 219, is an example, in which, under an act of congress providing that in case lands within territory ceded to the United States, claimed under grants previously made by foreign governments and since confirmed, should be sold by the United States before the confirmation, or could not be surveyed and located, the claimant should be entitled to so much public land in lieu thereof, it was held that lands granted by the United States to settlers thereon were included, rests upon the reasons that the claimant had been deprived of so much of his private property by the act of the United States, and that the statutes in pari materia used the words 'sold or disposed of.' Neither of those reasons is applicable to the cases before us.

The conclusion to which the court is brought, upon a consideration of the language of the statutes relied on, and of the nature of the subjects to which they refer, accords with the contemporaneous and uniform construction given to them by the executive officers charged with the duty of putting them in force. If the court had a doubt of the true meaning of their provisions, this practical construction would be entitled to great weight. Edwards' Lessee v. Darby, 12 Wheat. 206; U.S. v. State Bank of North Carolina, 6 Pet. 29; U.S. v. MacDaniel, 7 Pet. 1; Surgett v. Lapice, 8 How. 48; Smythe v. Fiske, 23 Wall. 374; U.S. v. Moore, 95 U.S. 760; U.S. v. Pugh, 99 U.S. 265; Swift Co. v. U.S. 105 U.S. 691, 695.

The petitioners failing to prove any lawful claim against the United States, it becomes unnecessary to determine the further question, discussed at the bar, whether the writ of mandamus is an appropriate remedy in such cases.

Petitions dismissed.


text: Talk:State of Lowa v. McFarland State of Illinois/Opinion of the Court


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Pennsylvania Company v. Locomotive Engine Safety Truck Company

''A. McCallum, Geo. Harding, and Francis T. Chambers'', for appellant.

Samuel S. Hollingsworth and Edmund Wetmore, for appellee.

GRAY, J.


text: Talk:Pennsylvania Company v. Locomotive Engine Safety Truck Company


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Pennsylvania Company v. Locomotive Engine Safety Truck Company/Opinion of the Court

This is an appeal by the defendant below from a decree against it upon a bill in equity for the infringement of letters patent granted on February 11, 1862, to Alba F. Smith, for an improvement in trucks for locomotive engines, the specification annexed to which, except the drawings and the letters referring to them, and the formal beginning and conclusion, was as follows: 'Several laterally-moving trucks have heretofore been made and applied to railroad cars. My invention does not relate broadly to such laterally-moving trucks; but my said invention consists in the employment, in a locomotive engine, of a truck or pilot wheels provided with pendant links, to allow of a lateral movement, so that the driving wheels of the locomotive engine continue to move correctly on a curved track in consequence of a lateral movement allowed by said pendant links, the forward part of the engine traveling as a tangent to the curve, while the axles of the drivers are parallel, or nearly so, to the radical line of the curve. In the drawing I have represented my improved truck itself. The mode of applying the same to any ordinary locomotive engine will be apparent to any competent mechanic, as my truck can be fitted in the place of those already constructed, or the same may be altered to include my improvement.'

The specification then refers to the drawings, showing the wheels, the axles, and the frame of any ordinary locomotive truck, made in any usual manner, with the center cross-bearing plate or platform, of two thicknesses of iron plate riveted together, strengthened by cross-bars beneath, and embracing at its ends the upper bars of the frame; a bolster made of a flanged bar, the king-bolt passing through the center of the bolster, and also through an elongated opening in the plate, so as to allow of lateral motion to the truck beneath the bolster, and at the same time becoming a connection to hold the truck to the engine, the bolster taking the weight of the engine in the middle, and itself suspended at the ends of bars attached to the moving ends of pendent links attached by bolts at their upper ends to brackets on the frame, and the distance between the bars, transversely of the truck, slightly more than between the bolts, so that the pendent links diverge slightly. The specification then proceeds: 'When running upon a straight road the engine preserves great steadiness, because any change of position transversely of the track, in consequence of the engine moving over the truck, or the truck beneath the engine, is checked by the weight of the engine hanging upon the links, and, in consequence of their divergence, any side movement causes the links on the side towards which the movement occurs to assume a more inclined position, while the other links come vertical, or nearly so; hence the weight of the engine acts with a leverage upon the most inclined links to bring them into the same angle as the others, greatly promoting the steadiness of the engine in running on a straight line. As the pilot or truck wheels enter a curve, a sidewise movement is given to the truck, in consequence of the engine and drivers continuing to travel as a tangent to the curve of the track. This movement, and the slight turn of the whole truck on the kingbolt, not only causes the wheels to travel correctly on the track, with their axles parallel to the radical line of the curve of track, but also elevates the outer side of the engine, preventing any tendency to run off the track upon the outer side of the curve. Upon entering a straight track the truck again assumes the central position, and in case of irregularity in the track, or any obstruction, the truck moves laterally, without disturbing the movement of the engine. I do not claim laterally-moving trucks, nor pendent links, separately considered, but what I claim, and desire to secure by letters patent, is the employment, in a locomotive engine, of a truck or pilot wheels fitted with the pendent links, to allow of lateral motion to the engine, as specified, whereby the drivers of said engine are allowed to remain correctly on the track, in consequence of the lateral motion of the truck, allowed for by said pendent links when running on a curve, as set forth.'

The invention, then, as claimed, is for the combination, with a locomotive engine, of a truck, of which the king-bolt, forming the connection to hold the truck to the engine, passes through a bolster, and through an elongated opening in the plate or platform of the truck, so as to allow the truck to have a lateral motion beneath the bolster; and the bolster takes the weight of the engine in the middle, and is suspended from the frame of the truck by pendent and slightly divergent links, so that any movement of the engine or truck sidewise, as in entering upon or passing over a curve of the track, causes the links on the side towards which the engine moves to assume a more inclined position, and the other links to become nearly vertical, and the weight of the engine, hanging upon the links, checks its own lateral movement, and tends to bring both sets of links back to their original angle. In railroad cars, the trucks were allowed to swivel around the king-bolt before 1841; the transverse slot and pendent links, allowing a lateral motion, were used by Davenport and Bridges in 1841; in 1859 Kipple and Bullock made the pendent links divergent; and at the time of Smith's invention the trucks of railroad cars had all the elements of the truck put by him under the front of a locomotive engine. The question, therefore, is, whether employing, as the forward truck of a locomotive engine with fixed driving wheels, a truck already in use on railroad cars, has the novelty requisite to sustain a patent. After carefully considering the evidence and arguments in this case, and the reasons assigned for sustaining Smith's patent, in the opinion of the court below, reported in 1 Ban. & A. 470, and in the opinion rendered by the circuit court in the Second circuit, in Locomotive Engine Safety Truck Co. v. ''Erie Ry. Co.'', reported in 6 Fisher, Pat. Cas. 187, and in 10 Blatchf. 292, this court finds itself unable to escape from the conclusion that the application of the old truck to a locomotive engine neither is a new use, nor does it produce a new result. In both engine and car the increased friction against the rails and the danger of being thrown off the track, in entering upon or passing along a curve, are due to the impulse of forward motion in a direction tangential to the curve, and to the influence of centrifugal force. In the engine, as in the car, the object and the effect of the transverse slot, allowing a slight lateral motion, and of the divergent pendent links, by means of which the weight of the engine or car itself helps to keep it upon the track, and to secure steadiness and safety by lessening the friction against the rails and the danger of being thrown off the track. The only difference is, that by reason of the fixed position of the driving wheels of the engine, the truck, which has before been applied at each end of a car, can only be applied at the forward end of the engine, and therefore the accommodation of the movement of the engine to the curve of the track may be less complete than in the case of the car. The effect of the invention upon the engine, as compared with its effect upon the car, is the same in kind, though perhaps less in degree.

It is settled by many decisions of this court, which it is unnecessary to quote from or refer to in detail, that the application of an old process or machine to a similar or analogous subject, with no change in the manner of application, and no result substantially distinct in its nature, will not sustain a patent, even if the new form of result has not before been contemplated. Hotchkiss v. Greenwood, 11 How. 248; Phillips v. Page, 24 How. 164, 167; Jones v. Morehead, 1 Wall. 155, overruling S.C.. ''nom. Livingston v. Jones'', 1 Fisher, Pat. Cas. 521; Hicks v. Kelsey, 18 Wall. 670; Smith v. Nichols, 21 Wall. 112; Brown v. Piper, 91 U.S. 37; Roberts v. Ryer, Id. 150; Keystone Bridge Co. v. Phoenix Iron Co. 95 U.S. 274, 276; Planing-machine Co. v. Keith, 101 U.S. 479, 491; Pearce v. Mulford, 102 U.S. 112; Heald v. Rice, 104 U.S. 737, 754-756; Atlantic Works v. Brady, 107 U.S. 192; [S.C.. 2 SUP. CT. REP. 225.]

In the well-known case of Crane v. Price, in which the English court of common pleas upheld a patent for using anthracite, instead of bituminous coal, with the hot blast in smelting iron ore, the evidence, as Chief Justice TINDAL remarked, proved beyond doubt that, in the result of the combination of the hot-air blast with the anthracite, not only was the yield of the furnace more, and the expense of making the iron less, but 'the nature, properties, and quality of the iron were better' than under the former process by means of the combination of the hot-air blast with bituminous coal. 4 Man. & G. 580, 604; 5 Scott, N. R. 338, 389; 1 Webs. Pat. Cas. 393, 410. And the decision rests, as was pointed out by Chief Baron POLLOCK and Baron PARKE, in Dobbs v. Penn, 3 Exch. 427, 432, 433, and by Mr. Justice BRADLEY, in Hicks v. Kelsey, supra, upon the ground that a new metal or composition of matter was produced. As observed by Mr. Justice BRADLEY, 'in compositions of matter a different ingredient changes the nature of the compound, whereas an iron bar in place of a wooden one, and subserving the same purpose, does not change the identity of a machine.' 18 Wall. 674. So in Smith v. Goodyear Dental Vulcanite Co., in this court, as was observed by Mr. Justice STRONG, in delivering its judgment: 'A new product was the result, differing from all that had preceded it, not merely in degree of usefulness and excellence, but differing in kind, having new uses and properties.' 93 U.S. 486, 494. See, also, Goodyear Dental Vulcanite Co. v. Davis, 102 U.S. 222.

Upon the principles which must govern this case, the decision of this court and of the highest courts of England are in full accord, as will appear by referring to three cases, fully argued and considered, all of which were carried to the exchequer chamber, and two of which were finally decided in the house of lords.

In Bush v. Fox, a patent for constructing the interior of a caisson or cylinder with successive chambers to work in, 'in such manner that the work-people may be supplied with compressed air, and be able to raise the material excavated, and to make or construct foundations and buildings,' under water, when a similar apparatus had already been used for working underground on land, was held by Chief Baron POLLOCK, by the court of exchequer chamber, and by the house of lords, to be void for want of novelty, after able arguments in support of the patent by Sir ALEXANDER COCKBURN, then attorney general, and by Mr. Webster, the accomplished patent counsel, at the successive stages of the case. Macrory, Pat. Cas. 152, 167, 179; 9 Exch. 651; 5 H. L. Cas. 707.

So the court of queen's bench held that the finishing of yarns of wool or hair by a process previously applied to yarns of cotton and linen, by subjecting them, while distended and kept separate, to the action of rotatory beaters or burnishers, by which they would be burnished or polished on all sides, was not the subject of a patent, because, as Lord CAMPBELL said, in order to sustain a patent for the application of an old process to a new purpose, 'there must be some invention in the manner in which the old process is applied;' 'here there is no novelty in the mode of application,' 'but merely the application of a known process by a known means to another substance.' Brook v. Aston, 27 Law J. (N. S.) Q. B. 145; S.C.. 4 Jur. (N. S.) 279; S.C.. (with the opinion less fully reported,) 8 El. & Bl. 478. The judgment was unanimously affirmed in the exchequer chamber. Of the opinions there delivered, it is sufficient to quote from that of Baron MARTIN, who, after expressing his concurrence in the statement of Mr. Justice WILLES, in Patent Bottle Envelope Co. v. Seymer, 28 Law J. (N. S.) C. P. 22, 24; S.C.. 5 C. B. (N. S.) 164, 173, that 'the application of a well known tool to work previously untried materials, or to produce new forms, is not the subject of a patent,' added, 'When a machine is well known, it becomes in fact a tool.' 28 Law J. (N. S.) Q. B. 175, 176; 5 Jur. (N. S.) 1025, 1027.

But perhaps the most important English case is that of Harwood v. ''Great Northern Ry. Co.'' 2 Best & S. 194, 222, and 11 H. L. Cas. 654. In that case a patent was obtained for 'improvements in fished and fish-joints for connecting the rails of railways.' In the specification the patentee stated that in securing the joints of rails it had been found advantageous to attach to each side of the rails, by means of bolts and rivets, pieces of iron commonly called 'fishes;' and described his invention as consisting in making the fishes with a groove or recess in their outer surfaces, so as to receive the square heads of the bolts or rivets, and to prevent them from turning round while the nuts on the other side were being screwed on or off, and also to avoid the danger of the flanges of the wheels of the carriages striking against the heads; and he claimed 'the constructing fishes for connecting the rails of railways, with a groove adapted for receiving the heads of the bolts or rivets employed for securing such fishes, and the application of such fishes for connecting the rails of railways.' In an action for the infringement of that patent, it appeared that fishes for connecting the rails of railways had never before been made with a groove or recess in their outer surfaces, so as to receive the square heads of the bolts. But it was proved that in the construction of several railway bridges, beams of timber had been laid horizontally, one above the other, and fastened or bolted together with bolts and nuts; horizontal bars or plates of iron placed beneath, parallel to and in contact with the beams, and fastened or bolted by the same bolts and nuts, and each of these bars or plates of iron constructed with a groove in its under surface, which received the square heads of the bolts, and which served the double purpose of strength and of preventing the heads of the bolts from turning round. In those bridges there were no joints to be fished by the bars or plates of iron, nor were there corresponding bars or plates of iron above the horizontal beams of timber. But it was also proved that a bridge, known as the Hackney bridge, having too great a span to be conveniently crossed by a single beam, had been constructed with two horizontal longitudinal beams of timber on each side, the ends of which met and were joined together in the middle of the bridge by scarf-joints; that beneath those beams were transverse planks, constituting the flooring of the bridge, and beneath the planks were bars of grooved iron, like those used in the other bridges, carried under the scarfjoints, and under the whole length of the horizontal beams; that above and immediately over each scarf-joint, extending 18 inches beyond each end of the joint, and resting immediately upon the longitudinal beam, was a horizontal flat plate of iron 13 feet in length; and that the bolts passed upwards through the grooved iron bars, the tranverse planking, and the longitudinal beams, and also, at the middle of the bridge, through the plates of iron over the scarf-joints.

A verdict supporting the patent was obtained under the rulings of Lord Chief Justice COCKBURN, and affirmed by the court of queen's bench. But its judgment was unanimously reversed in the exchequer chamber in a considered judgment delivered by Mr. Justice WILLES; and the judgment of reversal was affirmed by the house of lords, in accordance with the opinions of Lord Chanchellor WESTBURY, Lord CRANWORTH, and Lord WENSLEYDALE, and of a majority of the judges who attended, upon the ground, as stated by the lord chancellor, that the application of the channelled iron horizontally under the timbers of a bridge being well known, 'the channelled iron was applied in a manner which was notorious, and the application of it to a vertical fish would be no more than the application of a well-known contrivance to a purpose exactly analogous or corresponding to the purpose to which it had been previously applied.' 11 H. L. Cas. 683. And all who gave opinions in the house of lords concurred with the court of exchequer chamber in the proposition of law that the mere application of an old contrivance in an old way to an analogous subject, without any novelty in the mode of applying such old contrivance to the new purpose, is not a valid subject-matter of a patent. 2 Best & S. 228; 11 H. L. Cas. 666, 672, 682, 684, 685.

In the case at bar, the old contrivance of a railroad truck, with the swiveling king-bolt, transverse slot, and pendent divergent links, already in use under railroad cars, is applied in the old way, without any novelty in the mode of applying it, to the analogous purpose of forming the forward truck of a locomotive engine. This application is not a new invention, and therefore not a valid subject of a patent.

The decree of the circuit court must therefore be reversed, and the case remanded, with directions to dismiss the bill.


text: Talk:Pennsylvania Company v. Locomotive Engine Safety Truck Company/Opinion of the Court