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Lessee of Parrish v. Ferris./Opinion of the Court

This is a writ of error to the Circuit Court of the United States for the Southern District of Ohio.

The action was ejectment to recover possession of certain parcels of land situate in the county of Hamilton.

On the trial the lessor of the plaintiff claimed title to the premises under the will of ndrew Ferris and Elizabeth A. Parrish, his wife, who was a daughter and only child of Andrew Ferris.

The defendants by way of defence, claimed title also under the same will; and in addition, set up in bar of a recovery a previous suit between the same parties in the Courts of the State of Ohio, involving the same title, and in which a judgment or decree was rendered in their favor.

By a Statute of Ohio, it is provided that 'an action may be brought by any person in possession, by himself or tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse estate or interest.'

In 1853, Francis A. Parrish, under whom the present lessor claims title, being in possession of the premises, instituted proceedings under this statute against the present defendants in the Court of Common Pleas of the County of Hamilton; and in his bill or complaint set forth that he was in possession, holding the same as absolute owner in fee simple, and with the legal title thereto of the premises in question, describing them, and charging that the defendants claimed to have some estate or interest in the same and prayed that the defendants might be compelled to show what estate or interest in the lands they or any of them might have; that the Court might determine and declare that the defendants, nor any of them, had any valid interest or estate therein; and would order that the title of the plaintiff and his possession be established and quieted.

To this bill of complaint the defendants answered, and admit the possession of the plaintiff, but deny that he hold the same as absolute owner in fee simple, and with the legal title thereto; and then set up title in themselves under the will of Andrew Ferris.

This is the substance of the issue made between the parties. It is very much amplified by the form of the pleadings adopted, which set out the evidence of the facts, instead of the facts themselves. The Court, however, look to the substance of the issue, and by that it appears that each party claimed title derived from the will of Andrew Ferris-the plaintiff claiming by devise through his wife, the only child of the testator; the defendants as his brothers and sisters, or their heirs. The title, whether in the one or the other, turned upon a construction of the will of Andrew Ferris, the common source of title.

The Court, after consideration, held that the plaintiff took the legal title in the premises, and that the defendants had no title or interest in the same, and gave judgment accordingly; whereupon the defendants appealed to the District Court, which, on account of the case involving difficult and important questions of law, sent it to the Supreme Court for determination.

That Court, after holding that no estate passed to the plaintiff under the will of Andrew Ferris and the devise of his wife, and that it passed to the defendants, the brothers and sisters, reversed the decision of the Court of Common Pleas and decreed a dismissal of the bill or complaint and remanded the cause to the District Court to have this decree carried into effect.

It will be seen from the above statement of the issue that the precise question in the former suit between these parties, or those under whom they claim, was involved and decided that is presented in the present one; and, further, that the decision of the Court could not have been rendered in favor of the defendants in that suit without determining it. In the former suit the question turned upon the construction of the will of Andrew Ferris, which is the question again sought to be raised in the present one and clearly upon well settled principles this adjudication by a Court of concurrent jurisdiction must be regarded as final and conclusive between the same parties, unless some special ground is shown to take the case out of the rule.

It has been insisted by the counsel for the plaintiffs in error, that this Court is not bound by the decisions of the State Courts up n the construction of wills especially, unless that construction has, by the repeated decision of the Courts, become a fixed rule of property in the State; and several authorities have been referred to in support of the position. Without expressing any opinion on this question, it is a sufficient answer to say, even admitting the position contended for, it could not help the plaintiff, as it has no application to the present case. This Court acknowledges the rule, and has uniformly applied it, of the conclusiveness of a judgment of a Court of concurrent jurisdiction between the same parties or their privies upon the same question.

It has also been contended that the power conferred upon the Courts by the Statute of Ohio, under which the proceedings in the former suit took place, did not enable the Court to pass a definitive judgment between the parties upon the legal title. We have not been furnished with any construction of this statute by the Supreme Court of Ohio as to the extent and effect of this jurisdiction. We can only regret this, and give to the act such an interpretation as seems to us best warranted by its terms, aided by the practical construction derived from the present litigation in the State Courts.

The statute authorizes any person in possession of real property to institute a suit against any one who claims an estate or interest therein adverse to him for the purpose of determining such adverse estate or interest. Now it is quite apparent that the title of the defendant to the lands in question is involved under this act, and that the determination of the Court must be conclusive against him and all claiming under him as between the parties. If not, the act is of no effect. And it is difficult to see how this determination can take place without at the same time necessarily involving the determination of the plaintiff's title. The estate to be determined by the very terms of the act is an estate adverse to the plaintiff, thus raising an issue between the estate or titles of the respective parties to the lands in controversy. Again, suppose the determination be, as it was in this case, in favor of the adverse estate, is the adjudication of no effect? Is it binding only when against this estate? We suppose not.

We have said we have been aided upon this point by the practical construction given to the statute in the proceedings of the Court below. The pleadings put in issue the legal title to the premises in dispute between the parties-each set up a claim to the title and relied solely upon it. The Court of Common Pleas passed upon this title, and upon nothing else, as did the Supreme Court on the appeal. It seems quite clear that both the counsel and the Courts in these proceedings understood the jurisdiction conferred upon them, as we have endeavored to explain it.

The Court of Common Pleas, which decided the question in favor of the plaintiff, not only adjudged that he had the legal title, but that the defendants had not. The Supreme Court, on the appeal, having reversed this judgment, directed that the proceedings be remitted to the Court below, and there be dismissed.

It was a dismissal of the plaintiff's suit upon the merits, and, of course, as conclusive upon the rights of the parties as any other judgment that might have been rendered in the case.

Judgment of the Court affirmed.


text: Talk:Lessee of Parrish v. Ferris./Opinion of the Court

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United States v. Grimes

Appeal from the District Court of the United States for the Northern District of California.

On the first of March, 1853, Hiram Grimes filed his petition in the California Land Commission, on his own behalf, and as executor of Eliab Grimes, deceased, praying confirmation of a title to certain lands, derived from Mexico through and under John A. Sutter. On the 15th of January, 1856, the Land Commissioners rejected the claim, whereupon Grimes appealed to the District Court. On the 6th of March, 1857, that Court made its decree, reversing the decision of the Land Commission and co firming the title. From this decree the United States appealed. The facts necessary to an understanding of the case are stated in the opinion of the Court.

Mr. Wills, of Washington City, for Appellants.

No counsel appeared for Appellee.

Mr. Justice GRIER.

title: United States v. Grimes


text: Talk:United States v. Grimes

title: Talk:United States v. Grimes


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United States v. Grimes/Opinion of the Court

The petitioner is assignee of John A. Sutter 'of a part of the place called New Helvetia.' Under this name Sutter claimed title to two several grants from the Mexican Government; one for eleven leagues, granted to him by Juan B. Alvarado on 18th of June, 1841, the other for twenty-two leagues, called his 'Sobrante grant,' purporting to be issued by Micheltorena at Santa Barbara on the 5th of February, 1845. Many persons had purchased portions of this great tract. A separate application from each of those vendees to the Commissioners for a several confirmation of the portion assigned to him, would have caused great expense, trouble and delay. Accordingly, Sutter, very properly, filed his petition for the confirmation of these two grants, for the benefit of himself and his several assignees. His title has been fully considered and decided by this Court. (See 21 Howard, 178.) The first grant of eleven leagues was adjudged valid, the other was rejected. The patent to Sutter for the eleven leagues will, of course, enure to the benefit of all his vendees. Those who claim under the Sobrante title will take nothing. Whether the portions sold will be found within either or neither of these grants to Sutter, must depend upon surveys made, or to be made, since the confirmation of his grant by this Court. It is true, the assignee of a Mexican title may present his case before the Commissioners; and where he is assignee of the whole claim there may be no impropriety in it. But, if the land claimed has been divided out among a thousand vendees, as in this case, the proper party to the proceeding is the original grantee, who can produce the documents of title, and who best knows how to establish it. As in the case of Neleigh, (1 Black., 298), who claimed a part of the grant to Castro, which had been rejected by this Court, we may say, that though the assignee is not absolutely estopped by a decree of the Court to which he was not a party, yet, as he has furnished no new evidence to show that decree erroneous, he cannot expect the Court to change it. If any part of the land for which he has petitioned is within the eleven leagues, the patent which has or will be given to Sutter will confirm his title, and further proceedings in this suit would be wholly superfluous. The Government cannot be required to give two patents for the same land, one to the vendor and another to the vendee. Where there are divers vendees under one original title, and the Mexican grantee has filed his petition before the Commissioners for a confirmation of his title, and there are others, his assignees, who have petitioned also, the Commissioners should have consolidated all the cases. The law does not require them to locate the boundaries of the several grantees or settle any disputes between them, or to give a thousand different patents to every several claimant of a town lot. It is their duty to establish the boundary as well as validity of the Mexican grant as between him and the Government, and not to arbitrate the disputes of the several assignees.

The Court below confirmed the whole claim of the petitioner, because it was within the thirty-three leagues which they had already confirmed to Sutter. But, as that judgment was reversed as to twenty-two leagues, the judgment in this case must have the same course. If any portion of his claim be found within the eleven leagues, he needs no further title; if it does not, he can have none.

The judgment and decree of the Court below is reversed.


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


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Rothwell v. Dewees

Appeal from the Circuit Court of the United States for the District of Columbia.

Mr. Bradley, of Washington City, for A pellants.

Mr. Swan, of the District of Columbia, for Defendants.

Mr. Justice MILLER.

title: Rothwell v. Dewees


text: Talk:Rothwell v. Dewees

title: Talk:Rothwell v. Dewees


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Rothwell v. Dewees/Opinion of the Court

The appellees in this case, who were the defendants in the Circuit Court, hold the real estate, which is the subject of this controversy, by inheritance from their father, William Dewees. The title of Dewees was a deed from the Corporation of Washington City, made August 29th, 1836, on a sale for taxes. It seems to be admitted on all sides that this deed vested the legal title in Dewees, and that it is valid in his heirs, unless the plaintiffs shall be permitted to redeem from said sale, and have the deed set aside for reasons set forth by them in their bill.

The property in question was conveyed by Robert Morris, in 1796, to Joseph Ball and Standish Forde. Forde was then doing business in Philadelphia as a merchant, in partnership with one John Reed, and died about the year 1806 or 1807, leaving the mercantile firm insolvent. Shortly after Forde's death, Reed, the surviving partner, conveyed all the partnership property to William Paige, of Philadelphia, by deed of assignment for the benefit of creditors; and in the schedule attached to the instrument of assignment is included the property thus conveyed by Morris to Ball & Forde. This instrument is dated December 12th, 1807.

On the 18th of September, 1833, William Paige, as assignee of Reed, surviving partner of Reed & Forde, entered into a written agreement with William Dewees, the defendants' ancestor, in reference to this property; the substance of which is briefly this: Dewees was to take charge of the property, and redeem it from any tax sales which had already been made, and for which the time of redemption had not expired. He was to pay all future taxes, and all the expenses incident to sales of lots to be made by himself, for which he was furnished, with a power of attorney by Paige. The money for all these taxes and expenses he was to advance, except a sum of about two or three hundred dollars, which was supposed to be in the hands of the Treasurer of Washington City, belonging to Reed & Forde, arising in some way out of sales for taxes already made. His compensation for all this was, that, after deducting his advances and interest from the proceeds of sales made by him, he was to have one-third of the remainder of such proceeds.

It appears that Dewees acted fairly under this arrangement for about three years; making advances to redeem the property where it had been sold for taxes, and paying the accruing taxes, until he had advanced about $900. He then not having sold any of the property, nor realized anything from it in any other way, permitted it to be sold for taxes and bought it in himself, and took the corporation deed already mentioned of the 29th of August, 1836. He died on the 3d of September following. On the 10th of April, 1837, Paige, the assignee, by regular power of attorney, appointed Andrew Rothwell, one of the complainants, his agent, with authority to sell lots, to procure partition, and to make settlement with the heirs and representatives of Dewees. In 1841, Robert Smith was, by a decree of Court, appointed assignee in place of Paige, who had died; and in 1846 said Smith quit claimed, and released to Rothwell all the right, title, and interest which he had as such assignee, in the property now in dispute. The complainant, Rothwell, also procured deeds of conveyance to himself and his co-plaintiffs, Naylor and Smith, from several persons describing themselves as heirs of Standish Forde, of their interest in the same property.

Rothwell Smith, and Naylor then filed their bill in Chancery against the defendants, one of whom is Rothwell's wife, praying to be permitted to pay the sum with interest which William Dewees had paid for his tax deed, and to have said deed set aside.

After the suit had progressed for some time, the other appellant, Robert S. Forde, filed a petition to be admitted as a party plaintiff, on the ground that he was a grandson and an heir-at-law of Standish Forde, and entitl d to redeem for his share.

The Court dismissed or overruled the petition of Robert S. Forde to be made a party, and, on final hearing, it dismissed the bill as to complainants, Naylor and Smith, and decreed that Rothwell, in his purchase from Robert H. Smith, the assignee of John Reed, should be held to be trustee for himself and wife, and the other defendants, heirs of Dewees; and that the defendants should make contribution to him, in payment of the sum so paid by him to Smith, and for taxes afterward paid by him on the property.

From this decree Robert S. Forde and the original complainants appeal.

The first question to be considered arises from the action of the Court in dismissing Forde's petition. It is clear that if Forde had any title or interest in the property, it was a legal title, and no obstruction is seen to the assertion of that legal title against the defendants, in a Court of law.

That Court is the appropriate one to settle the conflict growing out of the legal title derived by Robert S. Forde from his ancestor, and the title claimed by defendants under the tax deed from the City of Washington. If he has any right to redeem from the sale for taxes it must be a legal right, which he can exercise without the aid of a Court of Chancery. In his petition asking to be made a party, he claims that Dewees must be considered as the agent of Forde's heirs, as well as the agent of Reed's assignee, under his agreement with Paige. This claim, however, cannot be sustained. The partnership of Reed & Forde was insolvent. The assignment was made for the benefit of creditors, and the claim of the assignee to the lots in question was adverse to the claim of Forde's heirs. The assignee had thus claimed them for nearly thirty years, when Dewees became the agent of Paige. There can be no pretence then that Dewees was agent for Forde's heirs, or occupied towards them any relation of trust or confidence. No ground of equitable jurisdiction is perceived on which Robert S. Forde could assert his title in a Court of Chancery against the defendants, and his petition was properly overruled.

The next objection to the decree, namely, the dismissal of the bill as to complainants, Naylor and Smith, is based upon almost the same ground as that just considered. These parties have conveyances from individuals, who describe themselves in the deeds as heirs of Standish Forde, and in addition to this the bill alleges that they were partners in the purchase made by Rothwell from the assignee of Reed. If it be admitted that the parties who made the conveyance to Naylor and Smith were the heirs of Standish Forde, it would not place those complainants in any other or better position than that of Robert S. Forde. But Naylor and Smith being original plaintiffs, had an opportunity to prove their case at the final hearing, and failed to produce any evidence that their grantors were the heirs of Forde. It cannot be pretended that the recital of that fact in their deeds can be evidence against parties not claiming under them, and we have failed to discover any other evidence of it in the record.

Nor is there any evidence that these parties were interested in the purchase made by Rothwell from Smith, the assignee, if that fact, however, were established, we do not see that they could claim to occupy any better position than Rothwell, since they permitted him to take the conveyance to himself, without any mention of their rights in the purchase.

We come now to consider that portion of the decree which concerns Rothwell and the defendants. This must be supported, if at all, upon the two-fold operation of the principle that a purchase of an outstanding title or interest in property, by a person sustaining certain relations to others interested in the same property, should, at the option of the latter, enure to their benefit; the application being in this case made, first, to the purchase of the tax title by Dewees, agent for Paige, the assignee; and, secondly, to the purchase made by Rothwell from the as ignee, he being the husband of one of the tenants in common who held the property as heirs of Dewees.

So far as the tax title acquired by Dewees is concerned, there can be no doubt that the principle is correctly applied. As the agent of Paige, it was his duty to pay these taxes, and to prevent the sale of the lots. In violation of this duty he permitted the lots to be sold, and himself became the purchaser. Besides his general duty as agent, he had expressly covenanted, in writing, that he would, out of his own funds, advance the money and pay these taxes. There is nothing in law or morality plainer than that his purchase must be held to be in trust for the benefit of his principal, on repayment of the sum advanced by him. 1 Story Eq., sections 315, 1211, 1211a; Story on Agency, sections 210, 211; 8 Vesey R., 337. The defendants, who are his heirs, can stand in no better condition than he would if he were alive.

In regard to the application of the principle to the purchase of Rothwell from Smith, the successor of Paige in the assignment, it is claimed by defendants, that Rothwell is to be treated as having a common interest with them in the title derived from Dewees, and that his purchase of the outstanding equity of Reed's assignee, must enure to the common benefit of the cotenants of that title.

In the case of Van Horne vs. Fonda, (5 Johns. Chy. R., 407, the rule is very fully laid down by Chancellor Kent, that where two devisees or tenants in common hold under an imperfect title, and one of them buys in the outstanding title, such purchase will enure to their common benefit upon contribution made to repay the purchase-money. The same point is also decided in Farmer and Arnold vs. Samuels, et al., (4 Littell R., 187.) The soundness of the principle is not denied by counsel for plaintiff, as applicable to persons strictly tenants in common, or joint tenants, or others having an equality of interest or estate; but it is said that the complainant in this case is not tenant in common, but that his interest is at most only tenant by the courtesy of his wife's interest, and that even that is doubtful; and that there is no equality of interest as between him and the defendants. In this connection much stress is laid by counsel upon the language of the Court in Van Horne vs. Fonda, to the effect, that in that case there was an equality of estate between the co-devisees. It does not appear to us, however, that any particular force was given to that fact by the learned judge, but rather that the rule was based on a community of interest in a common title, which created such a relation of trust and confidence between the parties, that it would be inequitable to permit one of them to do any thing to the prejudice of the other, in reference to the property so situated. It seems to us that the true reason of the rule applies as forcibly to the husband of a tenant in common, as to one of the immediate co-tenants. This seems also to have been the opinion of the Court of Appeals of Kentucky in the case of Lee and Graham vs. Fox, (6 Dana's R., 176.) It was decided in that case that the husband of a co-heiress, who had purchased an outstanding incumbrance on the lands of the heirs should be held to have purchased for the benefit of all the tenants, upon condition only that they should contribute their respective proportion of the consideration actually paid for the incumbrance.

We are quite satisfied with this as a rule of equity, sustained as it is by authority and sound principles of morality, and as the decree of the Circuit Court was in conformity to it, it must be affirmed.

title: Rothwell v. Dewees/Opinion of the Court


text: Talk:Rothwell v. Dewees/Opinion of the Court


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New York v. Commissioners of Taxes for the City and County of New York

Error to the Court of Appeals for the State of New York.

The Bank of Commerce, a corporation in the City of New York, rendered its statement, according to law, to the Tax Commissioners, o which the latter were to fix the sum or valuation of property on which the taxation of the Bank was to be made. By this it appeared that their whole capital was nine millions one hundred and forty-eight thousand four hundred and eighty dollars, ($9,148,480.00). Of this sum three hundred and ninety-two thousand two hundred and fourteen dollars and eighty-three cents (392,214.83) was invested in real estate, and the balance, eight millions seven hundred and fifty-six thousand two hundred and sixty-five dollars and seventeen cents, was all invested in stocks, bonds and securities of the United States, which the Bank claimed to be exempt from taxation. The Tax Commissioners reported the Bank as subject to assessment and taxation for the value of its stock, (deducting the value of its real estate and $20,000 undisputed exemption), at $8,736,265.00, without regard to its being invested in the public debt of the United States, but adding that this was not an assessment upon such public debt, but upon the bank capital.

Thereupon a certiorari was issued to them, according to a statute of New York, and these facts appeared in the Supreme Court, and the questions being debated, the Court was of opinion:

1. As to the public debt held by the Bank, issued to them prior to the Act of Congress of February 25, 1862, or contracted for by the Bank with the Government prior to that date, although issued afterwards, the Bank was liable to taxation, and ordered the report of the Tax Commissioners to be confirmed to that extent.

2. As to the public debt issued after that date, (not contracted for before,) the Bank was not liable; and the Court ordered the report in this respect to be annulled and corrected.

The taxable amount of the capital was fixed at $7,341,265.00, according to these principles.

From the judgment the Bank appealed to the Court of Appeals, who, on hearing, affirmed the judgment of the Supreme Court, and a writ of error was thereupon brought to this Court.

Mr. Lord, of New York, for Plaintiff in Error.

The Commissioners of Taxation were bound to look into the components of the capital of the Bank, to ascertain its value and taxable condition.

And as the Bank was taxable not for its capital specifically, but for its property, real and personal, the character of that property could not be overlooked by the Tax Commissioners.

And if the United States debt be, in fact, free of State taxation, it would be mere evasion to tax it in fact, under the general notion that it was taxed as property merely, and not as United States debt.

And the plaintiffs in error respectfully insist that the questions in this case are completely covered by the decision of this Court in Wetson vs. The City of Charleston, (2 Peters' Reports, 449).

But, subject to this claim as to the extent and effect of this prior decision, and treating the questions as open to discussion, in deference to the Court of Appeals of New York, the defendants in error submit that, on principle, the public debt of the United States held by the relators was not subject to taxation, as was done.

The certificates, bonds, and public debt of the United States, issued under the power of Congress to borrow money, were means and instruments whereby Congress exercised that power under the Constitution. The money lent while yet held by the United States would clearly be free of State taxation in whatever form. This amount, therefore, is clearly out of the State power of taxation. The action of the Tax Commissioners is to bring this back under the State taxation by taxing the creditor's title to its repayment or return. And this title and right is distinctly a means whereby the United States procure the use of the money or property which they obtain.

Being a means adopted by Congress to carry out one of its sovereign powers, the State power of taxation does not extend to it. Brown vs. State of Maryland, (12 Wheat. R., 419); McCulloch vs. State of Maryland, (4 Wheat. R., 316, p. 425); Osborn vs. Bank of United States, (9 Wheat. R., 738, p. 859); Dobbins vs. Erie County, (16 Pet. R., 435).

If the State power extended to the means of carrying out the United States power, not only would a conflict of powers be possible; but, if the State power be admitted, that of the United States might be defeated.

It is not a case of concurrent powers, either of borrowing or of taxing. The power exercised by the United States is that of borrowing; there is no conflict with the State power of borrowing.

There is no conflict in the powers respectively of taxing; both the United States and the State may tax all articles of taxation to which their powers extend.

But the conflict is, that the State attempts to apply its power of taxing in restraint and diminution of the United States power of borrowing. Unless it shall be claimed that the State power of taxing may reach all property within its geographical limits, whether owned by the United States or others, so that there can be no property whatever within State limits out of its reach, such power must be deemed a limited one, and excluded from all application to the property of the United States. The State power of taxation is a sovereign power within the scope to which it extends, and within this limit it admits of no supervision or control. See The People vs. City of Brooklyn, (4 Coms. R., 422, based on 4 Pet. R., 514, p. 553, and 4 Wheat. R., 430). If, therefore, it embrace within its limits the means of carrying out the powers of the United States, it could tax them in any mode it might choose, partially or otherwise, specifically or otherwise. But it must be conceded that a partial or specific taxation would be extra vires, and it would then rest with the Courts of the United States to try the matter of the due and proper execution of a sovereign power of a State. This could not be done; for if the State power be a sovereign power, the sovereign body decides for itself both as to the occasion and mode of its exercise. Accordingly, it is the clearly established law of the Federal Constitution, in order to avoid all such conflicts, that the powers of the States are not held to apply to the subjects embraced in the execution of the powers of the United States. The power of borrowing money by the United States being a sovereign power, Congress alone is to determine the occasions on which it is to be executed, and also the modes and means of so doing. The only limit is to be looked for in the Constitution itself; and no such limit is violated in the present case. Congress may make its securities under seal negotiable; no State law could prevent it. Congress could make its obligations valid without stamps; no State could impose a stamp act on them. Congress can make its obligations bear any rate of interest it might think fit; no State could render them invalid as usurious. In all these and numerous other illustrations, the State power of legislation itself is a sovereign power; and it is only restricted by reason of the subject being without its limits by its being the exercise of a power of the United States. As to the body having a sovereign power being the sole judge of the occasion of using it, see Martin vs. Mott, (12 Wheat. R., p. 29). The mode of exercising the power to borrow money by Congress or the occasion of its exercise, the necessity or propriety of the means, within the limits of the Constitution, are not open to inquiry in the Courts. Therefore, all the United States securities held or procured or contracted for either before or after the Act of February 25th, 1861, should have been left out of the valuation for assessment of taxes. By a sound exposition of the Tax Laws of New York, securities of the public debt of the United States were not subject to be included in the report of valuation for taxation. The Tax Statutes of New York, whereby real and personal property within the State are subjected to taxation, in terms embrace such property owned by indivi uals or corporations; now the United States were neither an individual nor a corporation within the terms of this law. So that the real and personal property of the United States itself were not within the express terms of the act nor taxable under it. The statutes, however, proceed to say, that the liability of property to taxation shall be subject to certain exemptions. In sec. 4, the stating of the exempted property commences with 'all property, real or personal, exempted from taxation under the Constitution of the United States,' and this is followed by an express exemption 'of all lands belonging to the United States.' Now there was no other property exempted from taxation under the Constitution of the United States, than the means of carrying out its powers, and there were none of these then in existence or in contemplation, except the certificates of its public debt. This statute with its present general phrase of exemption, was adopted in 1829. This was the year when the case of Weston vs. City of Charleston was decided, after the severe and able opposition of Mr. Justice Thompson, the Associate Justice for the circuit in which New York was embraced. Cotemporaneous history thus leaves no doubt, that the exemption of property under the Constitution of the United States had special reference to the United States public debt, the taxation of which by South Carolina had been so decisively annulled. The Act of Congress of February 25th, 1862, sec. 2, providing 'That all stocks, bonds, and other securities of the United States, held by individuals, corporations, or associations within the United States, shall be exempt from taxation by or under State authority, was effectual to exempt all existing as well as future issues of public debt.' See Acts of 1861, '62, p. 346. The act in its terms is clearly sufficient to embrace existing United States securities without any exception.

This clause was evidently produced by the decision of the Court of Appeals of New York in the case of the Bank of the Commonwealth, then just decided, and now under review in this Court. It is in exact affirmance of the decision in the case of Weston vs. City of Charleston. And Congress in it does not speak merely as contractors, but as legislators, in the assumption of its fullest powers as such.

It was a declaratory act in affirmance of a principle never denied since 1829, for more than thirty years. This act is not to be construed as the assertion of any general power to withdraw any kind whatever of property from State taxation at the election of Congress; but is to be construed according to the circumstances under which it was passed. Congress having reference to a means which had been employed in carrying out its power to borrow, and with the public knowledge that these securities had been held as not under State taxation, it was but protecting and asserting the supremacy of its power to pass this statute. If the issuing of this United States debt be within the scope of the power to borrow, and to determine the means of its exercise, it was a proper act of legislation. The subject being within one of the powers of Congress, they alone were judges of the fitness of its exercise and of its extent.

It was within the principle of the numerous Acts of Congress, withdrawing from State jurisdiction questions arising under the Laws of the United States, and titles taken and acts done under such laws. The act violates no provision of the Constitution of the United States; it does not interfere with any vested right. It is in affirmance of a right universally recognized prior to the decision of the Court of Appeals of New York, then just made.

The judgment of the Court of Appeals in the matter complained of should be reversed, and the proceedings remitted to that Court, there to be proceeded on according to the law as it shall be declared by this Court.

Mr. Develin and Mr. Brady, of New York, for Defendants in Error.

The surplus of stock which was taxed in the case now before the Court is supposed to be protected by an Act of Congress of February 25th, 1862, which provides that 'all stocks, bonds and other securities of the United States, held by individuals, corporations or associations within the United States, shall be exempt from taxation by or under State authority.'

The Act of 1862 introduces no new rule. It is a mere affirmation of what was decided in the cases of the Bank of McCullough against the State of Maryland and others of a similar nature. It exempts from specific taxation all stocks, & c., of the United States, but does not provide that no taxation shall be imposed by a State upon the surplus or capital of a bank, to the extent to which such surplus is represented by United States Stocks, &c., composing such capital. If this act could bear the latter construction, it would be unconstitutional and void as a direct attempt by the general government to interfere with the exclusive power of taxation by a State over corporations created by it, and property of individuals residing within the State, sharing the benefits and liability to the burdens of government. If such an exemption could be extended to the United States Stock by an absolute Act of Congress, there is no reason why it might not also apply to any other property of the United States, though sold by the general government in the ordinary course of trade to a purchaser; and for such exercise of power there is no warrant or pretext under the Federal Constitution. The Federal Government has no powers except such as are delegated to it by the Constitution or necessarily implied in powers granted; in all other respects the States are sovereign. Federalist, Nos. 30 and 33; The Passenger Cases; ''The Ohio Life Ins. and Trust Co. vs. De Bolt'', (16 How., 428.) The Constitution itself provides in its tenth amendment, that 'Powers not delegated by the United States in the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people.' The general and State governments have respectively the power to levy taxes for their own appropriate uses without in any way interfering or having the right to interfere with the just powers of each other. (1 Story on the Constitution, Sec. 1034.)

There is nothing in the State Laws repugnant to the power of Congress to borrow money.

The exercise of this power involves three elements, a borrower, a lender, and an agreement as to the terms of the loan. The loan is a matter of contract and Congress may acquire the means of payment by the exercise of its power 'to levy and collect taxes, duties, imposts, and excises,'-a power given for the express purpose of paying the debts and other charges of the Federal Government. The power of Congress to borrow money in terms is limited to borrowng 'on the credit of the United States,' and does not include the right to use the credit of, nor create a charge upon, nor restrict the means of self support of any State. The authority of Congress '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' to the Federal Government cannot effect this question. This is not an independent power to do something not otherwise provided for, but a delegation which includes all the necessary and proper means of carrying it into execution. (Story on the Constitution, Sec. 1237 and 1243.) It cannot be maintained that in exercising the power to borrow money on the credit of the United States it is necessary to take away from a State a vital power to levy taxes for maintaining its authority and for the support of its government.

The general clause of the Constitution just referred to is in fact a restriction prohibiting extreme means, and limiting the government to those which are necessary and proper. The Act of 1862 is enacted uno flatu. It is incapable of division and must upon its terms and just construction stand or fall in all its provisions. It extend to all stocks, &c., though they might have been issued and acquired by individuals years before the passage of the law, and is equally retro-active and prospective in its operation. The State banks cannot claim an exemption under the law of 1862. The condition of their existence is that they shall bear a share of the public burdens. They were formerly taxed on the nominal amount of their capital stock, however it might be invested, or whatever might become of it, and now are taxable on the value of that stock. The Legislature might have required the banks to pay a specified sum annually for their privileges, though five times as much as their share of the public burdens, and clearly Congress would have no power to interfere. Providence Bank vs. _____, (4 Peters, pp. 561 and 562); State Bank of Ohio vs. Knoop, (16 Peters, p. 387.)

The judgment of the Supreme Court should be affirmed except as to the point that stocks issued after the passage of the Act of 1862 are exempt from taxation.

Mr. Justice NELSON.


text: Talk:New York v. Commissioners of Taxes for the City and County of New York


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New York v. Commissioners of Taxes for the City and County of New York/Opinion of the Court

This is a writ of error to the Court of Appeals of the State of New York.

The question involved in this case is, whether or not the stock of the United States, constituting a part or the whole of the capital stock of a bank organized under the banking laws of New York, is subject to State taxation. The capital of the bank is taxed under existing laws in that State upon valuation like the property of individual citizens, and not as formerly on the amount of the nominal capital, without regard to loss or depreciation.

According to that system of taxation it was immaterial as to the character or description of property which constituted the capital, as the tax imposed was wholly irrespective of it. The tax was like one annexed to the franchise as a royalty for the grant. But since the change of this system, it is agreed the tax is upon the property constituting the capital.

This stock then is held by the bank the same as such stocks are held by individuals, and alike subject to taxation, or exemption by State authority. On the part of the bank it is claimed that the question was decided in the case of Weston, et als. vs. The City Councils of Charleston, (2 Peters, 449,) in favor of exemption. In that case the stocks were in the hands of individuals which were taxed by the city authorities under a law of the State. The Court held the law imposing the tax unconstitutional. This decision would seem not only to cover the case before us, but to determine the very point involved in it.

It has been argued, however, that the form or mode of levying the tax under the ordinance of the City of Charleston was different from that of the law of New York, and hence may well distinguish the case and its principles from the present one. This difference consists in the circumstance that the tax in the former case was imposed on the stock, eo nomine, whereas in the present it is taxed in the aggregate of the tax payer's property, and to be valued at its real worth in the same manner as all other items of his taxable property. The stock is not taxed by name, and no discrimination is made in favor or against it, but is regarded like any other security for money or chose in action.

It is true that the ordinance imposing the tax in the case of Weston vs. The City of Charleston, did discrininate between the stock of the United States and other property-that is, the ordinance did not purport to impose a tax upon all the property owned by the tax payers of the City, and specially excepted certain property altogether from taxation. The only uniformity in the taxation was, that it was levied equally upon the articles enumerated, and which were taxed. To this extent it might be regarded as a tax on the stock eo nomine.

But does this distinction thus put forth between the two cases distinguish them in principle? The argument admits that a tax eo nomine, or one that distinguishes unfavorably the tock of the United States from the other property of the tax payer, cannot be upheld. Why? Because, as is said, if this power to discriminate be admitted to belong to the State it might be exercised to the destruction of the value of the stock, and consequently of the power or function of the Federal Government to issue it for any practical uses.

It will be seen, therefore, that the distincton claimed rests upon a limitation of the exercise of the taxing power of the State; that if the tax is imposed indiscriminately upon all the property of the individual or corporation, the stock may be included in the valuation; if not, it must be excluded or cannot be reached. The argument concedes that the Federal stock is not subject to the general taxing power of the State, a power resting in the discretion of its constituted authorities as to the objects of taxation, and the amount imposed. It is true that in many, if not in all of the Constitutions of the States, provisions will be found confining the power of the Legislature to the passage of uniform laws in the taxation of the real and personal property within her jurisdiction. But this is a restraint upon the power imposed by the State itself. In the absence of any such restriction discrimination in the tax would rest in the discretion of the Legislature. Whether regulated by the Constitution or by the Act of the Legislature is a question of State policy, to be determined by the people in convention or by the Legislature. In either case the power to discriminate or not is in the State. How then can this limitation upon the taxing power of a State, which the argument assumes may be used to discriminate against the Federal stocks be enforced? The power to enforce it must be independent of the State to be effectual. There can be but one answer to this question, and that is: by the supreme judicial tribunal of the Union. But is this Court a fit tribunal to sit in judgment upon the question whether the Legislature of a State has exercised its taxing power wisely or unwisely over objects of taxation confessedly, as the argument assumes, within its discretion?

And is the question a judicial question? We think not. There is and must always be a considerable latitude of discretion in every wise Government in the exercise of the taxing power, both as to the objects and the amount, and of discrimination in respect to both. Property invested in religious institutions, seminaries of learning, charitable institutions, and the like, are examples. Can any Court say that these are discriminations which, upon the argument that seeks to distinguish the present from the case of Weston vs. The City of Charleston, would or would not take it out of that case? A Court may appropriately determine whether property taxed was or was not within the taxing power, but if within, not that the power has or has not been discreetly exercised. We cannot, therefore, yield our assent to the soundness of the distinction taken by the counsel between this case and the one referred to.

Upon looking at the case of Weston vs. The City of Charleston, it will be seen that the decision of a majority of the Court was not at all placed upon the distinction we have been considering, but upon ground much broader and wholly independent of it.

The tax upon the stocks was regarded as a tax upon the exercise of the power of Congress 'to borrow money on the credit of the United States.' The exercise of this power was interfered with to the extent of the tax imposed by the City authorities, that the liability of the certificates of stock to taxation by a State in the hands of an individual affected their value in the market, and the free and unrestrained exercise of the power. The Chief Justice observes, that 'if the right to impose a tax exists, it is a right which, in its nature acknowledges no limits. It may be carried to any extent within the jurisdiction of the State or corporation which imposes it, which the will of each State or corporation may prescribe.'

He then refers to the taxing power of the State, its importance, and extensive operation, and the delicacy and difficulty of fixing any limit to its exercise; and that in the performance of this duty, which had, in other cases, devolved on the Court it was considered as a necessary consequence of the supremacy of the Federal Government that its action in the exercise of its legitimate powers should be free and unembarrassed by any conflicting powers of the States, and that the powers of a State cannot rightfully be so exercised as to impede and obstruct the free course of those measures which this Government may rightfully adopt.

He further observed, that 'the sovereignty of a State extends to every thing which exists by its own authority or is introduced by its permission, but not to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States. The attempt to use the power of taxation on the means employed by the Government of the Union in pursuance of the Constitution, is itself an abuse, because it is the usurpation of a power which the people of a single State cannot give,' and the Chief Justice then adds, 'a contract made by the Government in the exercise of its powers to borrow money on the credit of the United States is undoubtedly independent of the will of any State in which the individual who lends may reside, and is undoubtedly an operation essential to the important objects for which the Government was created.'

It is apparent in studying this opinion in connection with the opinions of the Court in the cases of McCullough vs. The State of Maryland, (4 Wh., 116), and of Osborne vs. The United States, (9 Wh., 732), that it is but a corollary from the doctrines so ably expeounded by the Chief Justice in the two previous cases in the interpretation of an analogous power in the Constitution.

The doctrine maintained in those cases is, that the powers granted by the people of the States to the General Government, and embodied in the Constitution, are supreme within their scope and operation, and that this Government may exercise these powers in its appropriate departments, free and unobstructed by any State legislation or authority. That within this limit this Government is sovereign and independent, and any interference by the State governments, tending to the interruption of the full legitimate exercise of the powers thus granted, is in conflict with that clause of the Constitution which makes the Constitution and the Laws of the United States passed in pursuance thereof 'the supreme law of the land.'

The result of this doctrine is, that the exercise of any authority by a State Government trenching upon any of the powers granted to the General Government is, to the extent of the interference, an attempt to resume the grant in defiance of constitutional obligation; and more than this, if the encroachment or usurpation to any extent is admitted, the principle involved would carry the exercise of the authority of the State to an indefinite limit, even to the destruction of the power. For, as truly said by the Chief Justice in the case of Weston vs. The City of Charleston, in respect to the taxing power of the State, 'if the right to impose the tax exists, it is a right which, in its nature, acknowledges no limit, it may be carried to any extent within the jurisdiction of the State or corporation which imposes it, which the will of each State and corporation may prescribe.'

An illustration of this principle in respect to the powers of the judicial department of this Government, is found in the case of the United States vs. Peters, (5 Cranch, 115). There the Legislature of the State of Pennsylvania attempted to annul the judgment of a Court of the United States, and destroy all rights acquired under it. It was quite apparent, if the exercise of that power could be admitted, the principle involved might annihilate the whole power of the Federal Judiciary within the State. The Act of the Legisla ure did not profess to exercise this power generally, but only in the particular case, on the ground that the Court had no jurisdiction. But the Chief Justice, in giving the opinion of the Court, very naturally observes, that the right to determine the jurisdiction of the Courts was not placed by the Constitution in the State Legislatures, but in the supreme judicial tribunal of the nation. If time allowed, many other cases might be referred to, illustrating the principle in respect to other departments of this Government.

The conclusive answer to the attempted exercise of State authority in all these cases is, that the exercise is in derogation of the powers granted to the General Government, within which, it is admitted, it is supreme. That Government whose powers, executive, legislative or judicial, whether it is a Government of enumerated powers like this one, or not, are subject to the control of another distinct Government, cannot be sovereign or supreme, but subordinate and inferior to the other. This is so palpable a truth that argument would be superfluous. Its functions and means essential to the administration of the Government, and the employment of them, are liable to constant interruption and possible annihilation. The case in hand is an illustration. The power to borrow money on the credit of the United States is admitted. It is one of the most important and even vital functions of the General Government, and its exercise a means of supplying the necessary resources to meet exigencies in times of peace or war. But of what avail is the function or the means if another Government may tax it at discretion. It is apparent that the power, function, or means, however important and vital, are at the mercy of that Government. And it must be always remembered, if the right to impose a tax at all exists on the part of the other Government, 'it is a right which in its nature acknowledges no limits.' And the principle is equally true in respect to every other power or function of a Government subject to the control of another.

In our complex system of government it is oftentimes difficult to fix the true boundary between the two systems, State and Federal. The Chief Justice, in McCullough vs. the State of Maryland, endeavored to fix this boundary upon the subject of taxation. He observed, 'if we measure the power of taxation residing in a State by the extent of sovereignty which the people of a single State possess, and can confer on its government, we have an intelligible standard applicable to every case to which the power may be applied. We have a principle which leaves the power of taxing the people and property unimpaired, which leaves to a State the command of all its resources, and which places beyond its reach all those powers which are conferred by the people of the United States on the Government of the Union, and all those means which are given for the purpose of carryiny those powers into execution. We have a principle which is safe for the States and safe for the Union.' All will agree that this is the enunciation of a true principle, and it is only by a wise and forbearing application of it that the operation of the powers and functions of the two Governments can be harmonized. Their powers are so intimately blended and connected that it is impossible to define or fix the limit of the one without at the same time that of the other in respect to any one of the great departments of Government. When the limit is ascertained and fixed, all perplexity and confusion disappear. Each is sovereign and independent in its sphere of action, and exempt from the interference or control of the other, either in the means employed or functions exercised, and influenced by a public and patriotic spirit on both sides, a conflict of authority need not occur or be feared.

Judgment of the Court below is reversed.


text: Talk:New York v. Commissioners of Taxes for the City and County of New York/Opinion of the Court


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Appleton v. Bacon North

This was an appeal from the Circuit Court for the District of Columbia.

On the 7th of December, 1858, the appellants, Appleton, filed their bill in the Circuit Court of the United States for the District of Columbia for an injunction to restrain the defendant, Bacon, from using, selling or trading with, or otherwise employing a certain patent right for a new and improved mode of folding paper invented by defendant, North, which had been issued by the Patent Office to the defendant, Bacon, on the 10t of August, 1858. And also from constructing or authorizing to be constructed any machine or machines, having or containing the said improvement, &c., as aforesaid patented to him, until the further order of the Court; that he be decreed to surrender and deliver up the said letters-patent to be cancelled, that they be declared void, and for general relief on the ground that the complainants were assignees of the invention, and the patent should have been issued to them, but the defendant, Bacon, had fraudulently procured it to be issued to himself.

The defendant, North, admitted all the facts stated in the bill. The defendant, Bacon, denied all fraud and set up title in himself by reason of certain contracts alleged to have been made by North, (the inventor,) with a Company called the American Book and Paper Folding Company, which he alleged had been assigned to him, and that North had recognized and was acting under the said assignments at the time he made the said improvements.

No replication was filled, but evidence was taken on both sides. North was examined as a witness by complainants, under an agreement saving exceptions to his competency, and his testimony was by the Court ruled to be inadmissible.

The Court held that when part of the improvements were made by North he was in the employment of Bacon, under some agreement, (either express or implied,) and that all improvements made by him while so employed should be the property of Bacon. As to those improvements, they decreed that they rightfully belonged to Bacon, and as to those discovered after he went out of Bacon's employment, they belonged to the complainants.

From this decree cross-appeals were taken by the respective parties to the Supreme Court.

Mr. Bradley and Mr. McCalla, of Washington City, for Appellants, Bacon and North.

Mr. Carlisle and Mr. Webb, of Washington City, contra.

Mr. Justice NELSON.

title: Appleton v. Bacon North


text: Talk:Appleton v. Bacon North

title: Talk:Appleton v. Bacon North


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Appleton v. Bacon North/Opinion of the Court

This is an appeal from the Circuit Court of the United States for the District of Columbia.

The bill was filed by the plaintiffs against the defendant, Bacon, to compel him to surrender and cancel letters patent for a new and useful machine for folding paper, granted 10th of August, 1858. Both parties set up a claim to the invention as assignees of John North, the inventor. The assignments to the plaintiffs were made under the dates of 12th of August, 1858, and 7th July, 1859. The defendant claims under an agreement made between North and the American Book and Paper Folding Company, dated 6th of February, 1854, and between the same Company and Newell and John North, 2d of May, 1854, and by a subsequent verbal agreement between the defendant and John North sometime in May, 1856.

According to the terms of the two written agreements between North and the American Company the former stipulated to engage in the service of the Company, and devote himself to the making of improvements in paper-folding machines for a compensation mentioned; and, further, that all improvements and inventions made or discovered should be the property of the Company; and that he would take all proper steps for the purpose of procuring patents for said improvements. It was further stipulated that this agreement may be terminated by North on giving three months' notice after having served one year, and the Company at any time on giving thirty days' notice.

This Company, having subsequently resolved to close their business, gave a written notice to North on the 30th of May 1857, that his services would be no longer required. And about the same time, sold, at auction, among other things, their interest in the improvements made by North in paper-folding machines, including a patent issued 15th of April, 1856, to North, and another issued to E. N. Smith, 27th of November, 1849, and reissued 7th of January, 1851, which interests and property were purchased by one Anson Hardy. And, on the 1st of July, 1856, said Hardy assigned all his interest in the property to Bacon the defendant.

The defendant, after his purchase of these machines, made a verbal arrangement with North to enter into his service and devote himself to making improvements in folding-machines upon the same terms and conditions as those under which he had been previously engaged with the Company. This arrangement continued till about the middle of July, 1857, when he left the service of the defendant and engaged in the manufacture of sewing machines. Now, it is claimed, by the defendant, that the inventions or improvements embraced in the paper-folding machine in question were the fruits of the labors of North while engaged in his, the defendant's, service, and when he was entitled to the benefit of his discoveries, or, when he (North) was engaged in the service of the American Paper-folding Company who were entitled to the benefit of these discoveries and which passed to him, the defendant, by assignment. The right, as thus derived, constitutes the title of the defendant to the invention and patent in controversy.

It has already been stated, that, among the property which passed to the defendant from the American Company through Hardy, was the patent to North for a paper-folding machine issued 15th of April, 1856. The labors of North, while in the service of the defendant, were devoted to improvements upon this machine, and it is this machine as improved in July, 1857, when North left the service of the defendant, that it is claimed embodied the invention and improvements in question, and for which a patent was issued to the defendant 10th of August, 1858. The circumstances under which this patent was issued will be stated hereafter. For the present, our inquiry is, whether or not North made these discoveries while engaged in the service of the defendant, or in the service of the American Folding Company.

North, who was made a defendant and a party on the record, was called as a witness on the part of the plaintiffs, and very fully examined on both sides. No objection is taken to the competency of his testimony before the officer taking it, nor in the brief in this Court, and we must regard it, therefore, as admitted by consent. This witness, after giving a history of the machine, of its exhibition at the fair of the American Institute in the fall of 1856, and also at Appletons' bindery in Franklin street, in the city of New York, in February, 1857, and of some improvements made upon it at that place, states that about the first of June, 1857, he removed the machine to a shop in Middletown, Connecticut, and worked upon it there some six weeks endeavoring to improve it, but with no good results; gave up the effort and went into other business-making sewing machines. This was about the middle of July, 1857.

The difficulties in the working of the machine while at Appletons', and at Middletown, were in the adjustment to correspond with the different signatures-the register, also, was imperfect-and a fulness in the sheet which wrinkled it.

This machine was afterwards removed to Colt's armory in Hartford, Connecticut; and we have the testimony of E. K. Root-a witness for the defendant, and mechanical engineer-who examined it there, and saw it in operation. He was asked-'Of the sheets you have seen folded on that machine what proportion were crimped or wrinkled, and to what amount?' Answer: 'My impression is that about one-half were wrinkled more or less-pretty much all on one side of the machine-so much as to be objectionable.' 'To what extent, if at all, would you consider the amount of wrinkling you observed as affecting of itself the practical value of the machine?' Answer: 'I should say it would prevent its use on all good book work.'

This testimony is confirmed by two other witnesses, Gavet and Mathews.

The machine to which these witnesses refer and speak of embodied all the improvements ever made upon it by North. Indeed, it is admitted he made none after the middle of July, 1857, and it is quite clear from the evidence that it was an unsuccessful experiment as a practical folding machine, and abandoned by him as such.

In the spring of 1858, North, at the solicitation of Mathews, who had charge of the bindery department of the Appletons, turned his attention to the invention of a machine that would fold the size of duodecimo sheets, all the previous machines that had been constructed having been adapted only to the folding of octavo volumes. As five-sixths of the business of book-folding was of the small size the invention was regarded as a great desideratum. This is the machine afterwards produced by North, and for which he applied to the Patent Office for a patent. The necessary papers, model, and certificate of payment of the patent fee were forwarded to the office 27th of May, 1858. The machine will fold books of both octavo and twelvemo size with entire success.

The papers and model were filed in the Patent Office 10th June, 1858, and the patent issued to S. T. Bacon, the defendant, instead of to John North, the inventor, on the 10th of August following, and this without any provious notice to him. How this happened in the Commissioner's office has not been explained. It was a very grave irregularity. The specification on file was in the name of North, the application in his name, and the patent fee paid by him. We have seen the defendant, to whom it was issued, had no right to it, legal or equitable. The officer must have been imposed upon by the use of the old machine of 1856, which we have seen was but an unsuccessful experiment, and abandoned. The plaintiffs, as assignees of North, have made out a clear right to the patent, and the decree of the Court below must be reversed and the cause remitted, with instructions to enter a decree for the plaintiffs, directing the defendant to surrender the patent to be cancelled.


text: Talk:Appleton v. Bacon North/Opinion of the Court


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De Krafft v. Barney

Appeal from the Circuit Court of the United States for the District of Columbia.

The appellant, De Krafft, by two petitions filed in the Orphans' Court of the District of Columbia, on the 2d of October, 1860, and the 7th of September, 1861, alleged that by reason of a decree of divorce rendered by the District Court of Jasper County, Iowa, on the 18th day of September, 1860, divorcing from the appellee his wife, Mary De Krafft Barney, since deceased, and allotting the custody and control of their infant children to the latter, the appellee was not entitled to the guardianship of the persons and estates of said infant children; and that even if so entitled the appellee was an unfit person to have the custody of the children and their estates, and ought to be removed; and the petition prayed the appointment of some suitable guardian to take charge of the children, and their estates. The answers of the appellee to these petitions, filed on the 3d of November, 1860, and the 11th of September, 1861, denied the validity of the alleged divorce because the appellee was not a party to the proceedings wherein the decree was alleged to have been rendered, and because said decree was obtained by fraud. The answers further denied the alleged unfitness of the appellee to act as guardian, and pleaded to the jurisdiction of the Court to remove a guardian by nature. Here the pleadings ended. Evidence was taken at great length. The Iowa record showed on its face that the appellee was a non-resident of Iowa, was not served with process and did not appear, either in person or by attorney. Evidence was also produced showing that he was beyond the United States during the prosecution of the suit and had no notice that it was pending.

On the 25th of January, 1862, the Judge of the Orphans' Court delivered his opinion in which he held that by the 4th Article of the Constitution of the United States, Sec. I., and the Acts of Congress passed in pursuance thereof, the decree of the District Court of Jasper County was final and conclusive. The Court then rendered a decree appointing Dr. Harvey Lindsley guardian of the children, and requiring him to give bond with sureties, to be approved by the Court, in the sum of $30,000, which bond was accordingly given. The appellee appealed from this decree to the Circuit Court. The Circuit Court, at October Term, 1862, reversed the decree of the Orphans' Court, and directed said Court to cite the appellee 'for the purpose of entering into bond with good and sufficient security for the performance of his trust as natural guardian of the estate of his infant children,' &c. From this order De Krafft, in open Court prayed an appeal to this Court.

The case was submitted by counsel upon briefs, on a motion to dismiss for want of jurisdiction.

Mr. Davidge and Mr. Ingle, of the District of Columbia, in support of the motion.

In order to give this Court jurisdiction to re-examine a judgment, order or decree of a Circuit Court, (1st,) the matter in dispute must be money, or something whose value in money can be calculated and ascertained; (2dly,) the plaintiff in error, or appellant, must be deprived of such matter in dispute by the judgment, order or decree sought to be reversed; and (3dly,) the judgment, order or decree must be final.

As to the first requisite: It must be admitted and the right of revision exists only when questions of property are involved. Such is the only standard known to the law. By the Constitution of the United States, the appellate jurisdiction of this Court exists only when it is conferred by acts of Congress. The language of those acts is plain and unambiguous; the matter in dispute must be of the value of $1,000. The test of jurisdiction is a money or property test.

Applying this test to the present case; What is the value of the matter in dispute? What is the controversy? It is a controversy as to the right of a father to the custody, comfort and society of his children. The pretensions of the appellant, as set out in his petitions filed in the Orphans' Court, are that the appellee was deprived of this right by the decree of the Iowa Court, or, if not so deprived of it, ought to be by the Orphans' Court. In either case the matter in dispute is the right of the father.

What is the value of that right? It is plain it cannot be computed in money-it is not the subject of pecuniary estimation. It is in no sense a money or property right; and hence it is not within the grant of appellate jurisdiction to this Court.

The subject is not new in this Court. In Barry vs. Mercien, (5 How., 103), the controversy was between the father and mother of an infant daughter, each claiming her custody. To the judgment of the Circuit Court of New York, denying the writ of habeas corpus prayed for by the father against his wife, who had possession of the child, he sued out a writ of error. A motion was made to dismiss for the want of jurisdiction; and this Court held that it had appellate jurisdiction only when rights of property were concerned, and that the matter in dispute was utterly incapable of being reduced to a money standard; and hence dismissed the cause. And to the same effect are Grant vs. McKee, (1 Pet. 248); Ritchie vs. Prentiss, (2 Pet. 243); Scott vs. Lunt, (6 Pet. 349); Ross vs. Prentiss, (8 How. 772); United States, ex rel., Crawford vs. Addison, (22 How. 174, 181); and numerous other cases.

But secondly: Even if the character of the subject matter in dispute in this cause were not conclusive against the jurisdiction of this Court, how is the appellant aggrieved or otherwise affected by the order of the Circuit Court? Of what right or claim, touching the matter in dispute, is he deprived? The order of the Circuit Court appealed from confides the custody of the children to the father, and gives him also the management of their property, on his giving adequate security. What is taken from the appellant by such order? He never had any claim, or pretence of claim, either to the children or to the management of their property. By the law of the District of Columbia, if there be no natural guard an, the selection of the guardian rests wholly in the discretion of the Orphans' Court. One man has no more right or title to the office than another. Nobody has any such right or title. It is again asked of what right or claim has the appellant been deprived by the order of the Circuit Court? As regards the persons and property of the children, does not the appellant, since the order, stand precisely as he did before? In the second petition he disclaims any desire to be appointed guardian.-He has not, therefore, even disappointment, much less the invasion of any legal right, to complain of. He may prefer that the father should not have the custody of the children and their property, and that the guardian appointed by the Orphans' Court should; but such preference furnishes no ground of jurisdiction.

If this appeal, therefore, be regarded as taken by De Krafft in his individual character, it is plain he has sustained no injury, as even the costs are directed by the Circuit Court to be paid out of the estate of the children; and the petitions are filed by him in his individual character, and the appeal so prayed. He nowhere appears as prochein ami. But assuming that he acted as such, and that the suit is, in legal contemplation, the suit of the children: the argument is the same. What injury, it is asked, has been sustained by them? They must have some guardian for their persons and property; and that guardian is legally entitled to his commissions. What have they lost by the establishment of the legal right of their father? What legal right or claim is there to which they were entitled under Lindsley and are not now equally entitled to? It seems absurd to say that, as regards the children, there is anything more involved than the choice between two persons, for some guardian they must have; and assuming that they prefer Lindsley to their father, (which is not the fact,) such preference will not give jurisdiction to this Court.

Thirdly: The order is not a final order. It does not put an end to the whole controversy. Whilst it affirms the father's right to the custody of the persons of the children, it directs the Orphans' Court to cite him to give security for the management of the property. A portion of the controversy is therefore left undisposed of. If he fails to give security, a special guardian is to be appointed to take charge of the property. The suit in the Orphans' Court continues: that Court alone can dismiss the petitions. The suit goes on there, subject to the direction of the Circuit Court; but relief may be still granted under the petitions. They are, at all events, to be disposed of by the Orphans' Court. It is true that the judgment of the Orphans' Court has been reversed; but a reversal of judgment does not dispose of the matter in dispute. Mayberry vs. Thompson, (5 How. 121.)

Very similar to the present case was that of Van Ness vs. Van Ness, (6 How., 62.) There letters of administration on the estate of John P. Van Ness were claimed by a party alleging herself to be his widow. The next of kin denied that she was such, and under the Act of Assembly of Maryland, (1798, c. 101,) the Orphans' Court directed an issue to be sent for trial to the Circuit Court. At the trial, numerous exceptions were taken. The finding of the jury was ordered by the Circuit Court to be certified to the Orphans' Court, and from this order the writ of error was sued out. Under the above act the finding and order were conclusive; and the Orphans' Court could not do otherwise than render judgment in conformity with them. This Court held that the order of the Circuit Court was not a final order, and dismissed the writ of error.

Mr. Coxe and Mr. Blount, of the District of Columbia, in opposition to the motion.

The appellee contends, that to give this Court jurisdiction the matter in dispute must be money, or something which admits of a pecuniary valuation.

The subject of controversy is then stated to be 'the right of father to the custody, comfort, and society of his children.'

It is somewhat singular that in the order of the Circuit Court not a word is said of the guardianship of the persons of the children, or of their custody, comfort, or society.

Appellee is to be cited to give bond for the performance of his trust as natural guardian of the estate of the children, and upon his neglect or refusal then to appoint a fit and proper person to take care of and manage the estate and property of the infants.

It may be questioned whether the phraseology employed by the Orphans' Court is not more technically accurate than that used by the Circuit Court. The former, pursuing the precise language of the Maryland statute, appoints a guardian of the infant children, the word as clearly indicated by the whole scope of the statute, and especially by the proximate context including the guardianship of the person as well as property. The superior Court, while limiting the responsibility of the father's bond entirely to the estate of his children, and in case of his refusal to give the bond required the substitution of another guardian, equally limited in authority and responsibility, wholly omits to provide for the maintenance, education, and especially that which it is now insisted constitutes the entire subject of controversy, 'the custody, comfort, and society of the children.' It may be surmised that the paramount consideration in the mind of the party or counsel who drafted the order, hastily and inconsiderately adopted by the Court, was not rather the estate of these minors than their physical, moral, intellectual or religious well-being.

Indeed, it may well be doubted whether the phrase natural guardian of an estate is not utterly unknown in the law. In the complicated system of the Enlish common law there were a variety of guardians-by nature, by nurture, in socage, chivalry, &c. The father was guardian by nature, but that guardianship extended only over the person, and did not continue until the infant attained his majority. The abrogation of some of the feudal rights and prerogatives necessarily annulled some of these species of guardianship and by the Statute of 12 Car. II., c. 24, authorizing a father by will or deed to appoint a guardian, such guardian might be continued until the infant attained the age of twenty-one. Vide, Co. Litt. 106, a. s. 123; Hag, n., ad idem, 67, 68; 2 Fonbl. 240, 244.

If these views be correct, it necessarily results that the matter in controversy in this case is not, as the learned counsel contends, the simple 'right of a father to the custody, comfort, and society of his children.'

Even were this the real aspect and character of the case, it by no means follows that this Court is incompetent to exercise an appellate jurisdiction.

The language of the Act of April 2, 1816, which limits the right of appeal from the Circuit Court of this district to cases in which the matter in dispute is of the value of $1,000, has received a judicial construction in this Court. 8 Peters, 44, Lee vs. Lee. It was the case of a petition for freedom. On p. 48, the Court says: 'The matter in dispute is the freedom of the petitioner. The judgment of the Court below is against their claims to freedom. The matter in dispute is, therefore, to the plaintiffs in error the value of their freedom, and that is not susceptible of pecuniary valuation.' The Court entertained no doubt of its jurisdiction.

If in this case on the part of the appellee the matter in controversy was the right of the father to the 'custody, comfort, and society of his children,' as is contended, it is at least equally apparent that on the other side the case involves, so far as a guardian can control, mismanage, or impair the estate of his wards, the misapplication and misappropriation of the income resulting from it, their maintenance and support, their domestic, family, and religious education and training, either by precept or example, considerations of infinitely weightier importance than any of a purely pecuniary character. If the value of freedom to one held as a slave, although not susceptible of valuation in money, constitutes a value which, as the Court says, in Lee vs. Lee, leaves no doubt as to the appellate jurisdiction of this Court, surely the physical well-being, the proper maintenance, moral, intellectual, and religious training of four infant children, two males and two females, most imperatively invoke the exercise of all the authority of this Court in their behalf and for their protection.

It is also attempted to be shown, that the appellant has no legal or equitable interest in the matter in controversy; that he has none of a personal kind, inasmuch as he declined the position of guardian; none in a representative character, as 'he nowhere appears as prochein ami.' In a pecuniary point of view, he has no interest, and he has presented none. But he is the only near male relative to the late Mary De Krafft, and on the mother's side of the children of the deceased. Moreover, it appears, both from the language of his petitions to the Orphans' Court as well as from the opinion of that Court, that he appeared as prochein ami.' It is manifest that not De Krafft, in his individual character, asserting any individual interest, is the appellant in this cause, but the four orphan children, as with an allowable departure from the precise meaning of the word orphan, they sometimes appear to be designated on this record, through his instrumentality, as their prochein ami and relative,' are the parties to this suit.

As regards them, the matter in controversy is the management and control over their property, the value of which is not less than 60,000 dollars-the providing them a proper maintenance, an education suitable to their circumstances and situation in life. The case as presented in the Orphans' Court, and now appearing on this record, involves the question whether this appellee, the father, is not alleged and proved to be from all his antecedents utterly unfit to assume such high responsibilities. The decree of the Orphans' Court has adjudged him to be wholly disqualified, and it appears from the opinions appended to the appellee's brief on this motion, that the order of reversal by the Circuit Court proceeded on the ground that the Orphans' Court had no jurisdiction in the case.

This, it is alleged, is not a final judgment. It is manifest that it is not an interlocutory judgment, order or decree. It is equally obvious that it is a most singular one on the facts presented on the record. A petition is presented by these minor children through their next friend, averring the unfitness of their father to perform the office of guardian, and asking the Court to appoint some suitable individual to that office. The Orphans' Court, after a laborious investigation, adjudge the allegations against the father to be substantiated by the testimony, and proceed in conformity with the prayer of the petition to appoint a gentleman of the most unexceptionable character to the position of guardian. The Circuit Court reverse this order, on the ground that the Orphans' Court under the laws of Maryland, now in force in this District, had no jurisdiction to entertain such an application, or to grant the prayer as desired.

One accustomed to the ancient and well established course of proceeding in analogous cases, would have supposed that the Orphans' Court being thus adjudged to have assumed a jurisdiction not conferred upon it by law, would simply have been directed to dismiss the petition. It would certainly have been a fair inference that if the petitioner was improperly before that Court, if he had no case on which that Court could rightfully act, if the petition asked that which the Court could not legally grant, the only proper course would be to dismiss it.

Unfortunately for the case of the appellee, the most careful examination of the record discloses not the shadow of evidence showing that he ever did apply 'to be permitted to give bond for the p rformance of his trusts as natural guardian of the estates of his infant children,' or any other bond for any purpose whatever; nor does the final decree, or any other order or decree to be found in this record, convey the slightest idea that any such application had been made or rejected.

The order of the Court, as given in the record, is wholly silent as to both these points. Unless, however, this appellee did present his case in some form or other, and the decision of the Orphans' Court had, as the one version of the decree of the Circuit Court assumes, it is plain that no such directions as are contained in them, as to what the Orphans' Court should do, can be maintained as right. It may be incidentally noticed here, that the power which the statute confers upon the Orphans' Court to require a bond from the father as natural guardian of his children, can only be exercised 'on the application of any friend of the infant.' See Act of 1798, c. 101, S.C.. 12 sec. 3. No such application has been made by any one; the Court cannot, ex mero motu, cite the father to give such bond; the order of the Court is therefore warranted by no law.

It is argued in the brief that this decree or order is not final, because further proceedings are directed.

In a large proportion of the cases brought before this Court by writ of error or appeal, there are further proceedings in execution of the judgment of this Court. The order in this cause, however, effectually puts this appellant and the case out of Court. He can have, and the cause he represents can have, no longer a standing in Court. It is impossible to conceive of a decision against him more decidedly a final one.

It is unnecessary to show any actual abuse of his authority as natural guardian by Barney.

2 Story Eq. Jur., § 341, note 4. Guardianship, by nature, is of the heir apparent (at common law.) It belongs to the father or mother. It extends no farther than the custody of the infant's person. Guardianship by nurture lasts only till fourteen, and extends only over the person.

Mr. Chief Justice TANEY.

title: De Krafft v. Barney


text: Talk:De Krafft v. Barney

title: Talk:De Krafft v. Barney


text:
De Krafft v. Barney/Opinion of the Court

This case cannot be distinguished from the case of Barry vs. Mercein, (5 How., 103). The controversy in that case was between a husband and his divorced wife, respecting the guardianship of a child of the marriage who was still an infant.

The were living apart, and each of them claimed the right to the guardianship. And after full argument, the Court held that in order to give this Court jurisdiction under the 22d section of the Judiciary Act of 1789, the matter in dispute must be money, or some right, the value of which could be calculated and ascertained in money. And as the matter in controversy between the parties was not money, nor a right which could be measured by money, but was a contest between the father and mother of the infant upon other considerations, the appeal was dismissed for want of jurisdiction.

In the case before the Court, it is admitted that Dr Kraft, the appellant, has no pecuniary interest in the controversy. He appears as prochein ami for the children of Barney, whose wife is dead, and from whom the children inherited a large property. De Krafft alleges that Barney, from his character and habits, is unfit to be trusted with the guardianship of the persons or property of his children, and prays that some other persons suitable and trustworthy may be appointed by the Orphans' Court. The guardianship of the persons and property of the children is, therefore, the only matter in dispute, not on account of any pecuniary value attached to the office, but upon other considerations. The case is the same in principle with that of Barry vs. Mercein, above referred to, and the appeal to this Court, for the same reason, must be dismissed for want of jurisdiction.


text: Talk:De Krafft v. Barney/Opinion of the Court


text:
Koehler v. Black River Falls Iron Company

Appeal from the District Court of the United States for the District of Wisconsin.

Mr. Carlisle of Washington City for appellant.

Mr. Doolittle of Wisconsin. Contra.

Mr. Justice DAVIS.


text: Talk:Koehler v. Black River Falls Iron Company