text:
United States v. Russell (80 U.S. 623)/Opinion of the Court

Private property, the Constitution provides, shall not be taken for public use without just compensation, and it is clear that there are few safeguards ordained in the fundamental law against oppression and the exercise of arbitrary power of more ancient origin or of greater value to the citizen, as the provision for compensation, except in certain extreme cases, is a condition precedent annexed to the right of the government to deprive the owner of his property without his consent. Extraordinary and unforeseen occasions arise, however, beyond all doubt, in cases of extreme necessity in time of war or of immediate and impending public danger, in which private property may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner. Unquestionably such extreme cases may arise, as where the property taken is imperatively necessary in time of war to construct defences for the preservation of a military post at the moment of an impending attack by the enemy, or for food or medicine for a sick and famishing army utterly destitute and without other means of such supplies, or to transport troops, munitions of war, or clothing to reinforce or supply an army in a distant field, where the necessity for such reinforcement or supplies is extreme and imperative, to enable those in command of the post to maintain their position or to repel an impending attack, provided it appears that other means of transportation could not be obtained, and that the transports impressed for the purpose were imperatively required for such immediate use. Where such an extraordinary and unforeseen emergency occurs in the public service in time of war no doubt is entertained that the power of the government is ample to supply for the moment the public wants in that way to the extent of the immediate public exigency, but the public danger must be immediate, imminent, and impending, and the emergency in the public service must be extreme and imperative, and such as will not admit of delay or a resort to any other source of supply, and the circumstances must be such as imperatively require the exercise of that extreme power in respect to the particular property so impressed, appropriated, or destroyed. Exigencies of the kind do arise in time of war or impending public danger, but it is the emergency, as was said by a great magistrate, that gives the right, and it is clear that the emergency must be shown to exist before the taking can be justified. Such a justification may be shown, and when shown the rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government is bound to make full compensation to the owner.

Three steamboats, owned by the appellee, during the rebellion, were employed as transports in the public service for the respective periods mentioned in the record, without any agreement fixing the compensation to which the owner should be entitled. Certain payments for the services were made in each case by the government to the owner, but he claimed a large sum, and the demand being refused he instituted the present suit. Prior to the orders hereinafter mentioned the steamboats were employed by the owner in carrying private freights, and the findings of the court below show that he quit that employment in each case and went into the public service in obedience to the military order of an assistant quartermaster of the army. Reference to one of the orders will be sufficient, as the others are not substantially different. Take the second, for example, which reads as follows, as reported in the transcript: 'Imperative military necessity requires the services of your steamer for a brief period; your captain will report at this office at once in person, first stopping the receipt of freight, should the steamer be so doing.' Pursuant to that order, or one of similar import in substance and effect, the respective steamboats were impressed into the public service and employed as transports for carrying government freight for the several periods of time set forth in the findings of the court. Throughout the whole time the steamboats were so employed in the military service they were in command of the owner as master, or of some one employed by him and under his pay and control, and the findings of the court show that he manned and victualled the steamboats and paid all the running expenses during the whole period they were so employed. Unexplained and uncontradicted the findings of the court show a state of facts which plainly lead to the conclusion that the emergency was such that it justified the officers in each case in ordering the steamboat into the service of the United States, as the orders purport to have been issued from an imperative military necessity, and if so they show beyond all doubt that the officers who issued them were not trespassers, and that the government of the United States is bound to make full compensation to the owner for the services rendered.

Such a taking of private property by the government, when the emergency of the public service in time of war or impending public danger is too urgent to admit of delay, is everywhere regarded as justified, if the necessity for the use of the property is imperative and immediate, and the danger, as heretofore described, is impending, and it is equally clear that the taking of such property under such circumstances creates an obligation on the part of the government to reimburse the owner to the full value of the service. Private rights, under such extreme and imperious circumstances, must give way for the time to the public good, but the government must make full restitution for the sacrifice.

Beyond doubt such an obligation raises an implied promise on the part of the United States to reimburse the owner for the use of the steamboats and for his own services and expenses, and for the services of the crews during the period the steamboats were employed in transporting government freight pursuant to those orders. Indebitatus assumpsit is founded upon what the law terms an implied promise on the part of the defendant to pay what, in good conscience, he is bound to pay to the plaintiff, but the law will not imply a promise to pay unless some duty creates such an obligation, and it never will sustain any such implication in a case where the act of payment would be contrary to duty or contrary to law.

Tested by those rules it is quite clear that the obligation in this case to reimburse the owner of the steamboats was of a character to raise an implied promise on the part of the United States to pay a reasonable compensation for the service rendered, and if so, then it follows that the decree was properly made in favor, of the plaintiff, unless it appears that the adjustment of the claim belonged to Congress or to the executive department, and not to the Court of Claims.

Jurisdiction is vested in the Court of Claims, by the Act of Congress establishing the court, to hear and determine all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract express or implied with the government of the United States, which may be suggested to it by a petition regularly filed in the court. Express authority, therefore, is given to the court by that act to hear and determine claims founded upon a contract with the government of the United States, whether express or implied. Claims of the kind before the court would certainly be within the jurisdiction of that court were it not that Congress has passed a later act restricting to some extent the jurisdiction confreed by that provision. By the act of July 4th, 1864, it is provided that the jurisdiction of the Court of Claims shall not extend to or include any claim against the United States growing out of the destruction or appropriation of, or damage to, property by the army or navy, or any part of the army or navy, engaged in the suppression of the rebellion, from the commencement thereof to the close.

Special reference is made in behalf of the appellants to that provision, and the argument is that it is decisive to show that the decree in this case is erroneous. Support to tha proposition is chiefly drawn from the signification attributed to the word appropriation, and from certain remarks of this court in one of its recent decisions. Those remarks were made in respect to a claim where a military order was issued for the seizure of certain real estate for the purpose of compelling a lease of the premises, and the findings of the court show that the agreement for the lease was concluded under the pressure of that order. Apart from that it also appeared that the premises belonged to an insurgent in the rebel army, and the Court of Claims also found that the contract was void on that account. Applied as those remarks must be to the case then under consideration no doubt is entertained that they were correct, but they cannot be applied to the case before the court, as the conclusion to which they would tend would contradict the finding of the court below in matters of fact, which cannot be reviewed in this court.

Briefly stated, the findings of the court in that behalf are as follows: That the military officers did not intend to appropriate the steamboats to the United States, nor even their services; that they did intend to compel the masters and crews, with the steamers, to perform the services needed and that the United States should pay a reasonable compensation for such services, and that such was the understanding of the owner; that the steamers, as soon as the services for which they were required had been performed, were returned to the exclusive possession and control of the owner. They were equipped, victualled, and manned by the owner, and he, or persons by him appointed, continued in their command throughout the entire period of the service. He yielded at once to the military order and entered into the service of the government, and the court here fully concur with the Court of Claims that there was not such an appropriation of the steamboats or of the services of the masters and crews as prohibited the court below from taking jurisdiction of the case. On the contrary, the court is of the opinion that the findings of the Court of Claims show that the employment and use of the steamboats were such as raise an implied promise on the part of the United States to reimburse the owner for the services rendered and the expenses incurred, as allowed by the Court of Claims. Valuable services, it is conceded, were rendered by the appellee, and it is not pretended that the amount allowed is excessive. Neither of the steamers was destroyed nor is anything claimed as damages, and inasmuch as the findings show that an appropriation of the steamers was not intended and that both parties understood that a reasonable compensation for the services was to be paid by the United States, the court is of the opinion that the objection to the jurisdiction of the Court of Claims cannot be sustained, as the claim is not for 'the destruction or appropriation of, or damage to, property by the army or navy, or any part of the army or navy, engaged in the suppression of the rebellion.' Veiwed in that light, the case is free of all difficulty, as the jurisdiction of the court, by the express words of the act of Congress, extends to claims founded upon an implied contract as well as upon that which is express.

Certain other acts of Congress have been passed in respect to property impressed or employed in the suppression of the rebellion, but it is not necessary to refer to them, as they have no application to any question presented in this record.

DECREE AFFIRMED.

[See the next two cases.]


text: Talk:United States v. Russell (80 U.S. 623)/Opinion of the Court

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


text:
Pugh v. United States

APPEAL from the Court of Claims; the case being thus:

By the act of Congress of 1855, constituting the Court of Claims, jurisdiction is given to it to hear and determine all claims against the United States founded on any law of Congress, or upon any regulation of an executive department, or upon any contract express or implied with the government of the United States.

A subsequent act, however-that of July 4th, 1864-enacts that this jurisdiction 'shall not extend to or include any claim against the United States growing out of the destruction or appropriation of or damage to property by the army or navy engaged in the suppression of the rebellion from the commencement to the close thereof.'

An act of July 2d, 1864, amendatory of the Abandoned and Captured Property Act (an act which provides for taking possession and selling of captured and abandoned property and paying the net proceeds to loyal owners) enacts, by its second and third sections, that the Treasury agents shall take charge of and lease the abandoned lands and houses, &c., and pay the net amount of rents collected into the Treasury.

In this state of statutory law one Pugh filed his petition in the Court of Claims, the substantial averments of it being:

First. That the United States, during the late civil war, illegally, violently, and forcibly took possession of his plantation, in the State of Louisiana, on the false pretext that it had been abandoned by the owner, and held it until January, 1866, during which time the United States, and the agents placed in charge of the plantation, destroyed and carried away the property of the petitioner to the value of $42,508; and,

Secondly. That the United States, during the same period, rented the plantation to sundry persons, who made large crops, worth $15,000 or $30,000.

This petition was dismissed by the Court of Claims for want of jurisdiction, and the case was now here on appeal.

Mr. T. J. Durant, for the appellant:

1. The first part of the case, the claim for the $42,508, is founded on an implied contract; on that assumpsit or undertaking which the law raises, ex aequo et bono, against every one who carries off property rightly belonging to another, to restore it. It is not less plainly founded on a law of Congress. There is no allegation in the petition that it was the 'army or navy engaged in the suppression of the rebellion,' which destroyed or carried off the property to the value of the $42,508, and accordingly there is nothing to bring the case within the act of July 4th, 1864, which excludes destruction or loss from those sources.

2. But if that act is supposed to be a bar to the first part of the claim, certainly it is no bar to the second. The claim for the profits from leasing comes plainly within the act providing for the leasing of abandoned lands.

Mr. C. H. Hill, Assistant Attorney-General, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Pugh v. United States


text: Talk:Pugh v. United States

title: Talk:Pugh v. United States


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

The destruction of property complained of was during the war and in one of the States engaged in the rebellion, and the presumption, in the absence of inconsistent allegations, is that it was by the military forces of the United States. It is clear that a petition for compensation for injuries of this character could not be sustained in the Court of Claims, for the demand plainly grows 'out of the destruction or appropriation of or damage to property by the army or navy engaged in the suppression of the rebellion,' and is excluded from the cognizance of that court by the express terms of the act of July 4th, 1864.

But it is insisted that the court had at least jurisdiction of the case made by the petition in respect to the leasing of the plantation, under the amendment to the Captured and Abandoned Property Act made by the second and third sections of the act of July 2d, 1864. These sections provide for leasing abandoned lands by the agents of the Treasury Department, and the payment of the net amounts of rents collected into the Treasury. But the petition in this case makes the leasing an incident only to the unlawful appropriation and spoliation of the plantation. It does not allege any leasing by the agents of the Treasury Department, or that any rents were collected by them or paid into the Treasury.

It is plain, therefore, that the petition does not state a case within the jurisdiction of the Court of Claims. If the petitioner has any claim upon the government he must seek relief from Congress.

AFFIRMED.


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


text: United States v. Kimbal

title: United States v. Kimbal


text: Talk:United States v. Kimbal

title: Talk:United States v. Kimbal


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

APPEAL from the Court of Claims; the case being thus:

An act of March 3d, 1849, enacts that any person who shall sustain damage by the abandonment or destruction by order of the commanding general, quartermaster, of any horse, &c., while such property was in the service of the United States, either by impressment or contract. . . shall be allowed and paid the value thereof, at the time he entered the service. 'The claims provided for under this act,' continues the statute, 'shall be adjusted by the Third Auditor, under such rules as shall be prescribed by the Secretary of War,' &c.

A subsequent act (March 3d, 1863), extends these pro visions so as to include all 'steamboats and other vessels.'

Between the dates of these two acts, that is to say, in A.D. 1855, Congress constituted the Court of Claims, and by the act constituting it, made it its duty to hear and determine.

'All claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States.'

A subsequent act, however, that of July 4th, 1864, somewhat limited this jurisdiction; declaring by its first section that it should

'Not extend to nor include any claim against the United States growing out of the destruction or appropriation of, or damage to, any property, by the army or navy, or any part of the army or navy, engaged in the suppression of the rebellion, from the commencement to the close thereof.'

The second and third sections of the last-mentioned act provide that the claims of loyal citizens in loyal States for quartermaster's stores, and for subsistence furnished to the army, shall be submitted to the Quartermaster-General and the Commissary-General of Subsistence, and if found just, shall be reported to the Third Auditor of the Treasury with a recommendation for settlement.

After this came an act of February 21st, 1867, which enacted that the provisions of the act of 1864 should

'Not be construed to authorize the settlement of any claim for supplies taken or furnished for the use of the armies of the United States, nor for the occupation of or injury to real estate, nor for the appropriation or destruction of or damage to personal property, by the military authorities or troops of the United States, where such claim originated during the war for the suppression of the Southern rebellion, in a State or part of a State declared in insurrection.'

Finally, came a joint resolution of Congress, passed the 23d of December, 1869, resolving that the act of 1867 shall not be so construed as

'To debar the settlement of claims for steamboats or other vessels, taken without the consent of the owner or impressed into the military service of the United States during the late war, in States or parts of States declared in insurrection, provided the claimants were loyal at the time their claims originated, and remained loyal thereafter, and were residents of loyal States, and such steamboats or other vessels were in the insurrectionary districts by proper authority.'

As to the matter of loyalty, it was agreed in writing by the counsel on both sides, that the defendant 'had at all times borne true allegiance to the government of the United States, and had not in any way voluntarily aided, abetted, or given encouragement to rebellion against said government, and that proof of such fact was duly made upon trial in the Court of Claims, and might be regarded as of record in the findings now for hearing before the Supreme Court of the United States.'

In the state of the statutes above set forth, and of the Court of Claims' jurisdiction under them, the military authorities of the United States chartered the bark Annie Kimbal, on the 18th of April, 1865, to carry a cargo of 1061 tons of coal from Philadelphia to Port Royal, S.C.. By the terms of the bill of lading the coal was to be delivered to the quartermaster or his assignee. Freight was payable at the rate of $6.25 per ton, and demurrage $100 per day, allowing 21 days for discharging. In the margin of the bill were these two memoranda:

'If on the arrival of this vessel at the port of destination, the consignee should order her to another place to discharge, such order in all cases to be in writing on the bill of lading.

'Freight and demurrage payable only on certificate of quartermaster that the cargo has been received in good order.'

The marginal note, above italicized, on the bill of lading, was a printed direction placed by the Quartermaster's Department, intended for the convenience of the department, and as a direction to the officers thereof. There was no express evidence as to the intention of the parties concerning it; but such marginal note was placed on bills of lading by the United States officers in the Quartermaster's Department, and did not form a part of the body of the instrument as did certain other formal clauses and conditions.

The bark arrived at Port Royal with her freight on the 4th May, 1865, and immediately tendered it to the consignee, the quartermaster of the United States. The quartermaster, on the 6th of May, refused to receive the same, and ordered the master of the bark to proceed with it to Key West, and report to the quartermaster at that port, which additional service the master of the bark refused to perform, and notified to the quartermaster that the owners would hold the United States liable for all damages if such service was enforced. On the 8th May the master was compelled to undertake the additional voyage, and received notice from the quartermaster that in case of refusal he would be taken from the vessel and another master be substituted and sent in command of the vessel. The master then protested at being compelled to sail at the time specified by the quartermaster for the reason that it was not safe, as the tide had ebbed about two hours, and there would not be water enough on the bar to take the vessel safely over. The delay requested was refused, and the vessel was taken in tow by a government tug. She struck violently on the bar off Port Royal by reason of the low water, it being near the ebb, and sprang aleak. Being severely injured, she was towed back and beached to prevent her from foundering.

After the injury to the vessel, she was detained by the defendants' delay in discharging her freight at Port Royal until the 24th of June, 1865, the detention being owing to no fault of the master or crew. The vessel was then further detained at Port Royal by her injuries received as aforesaid, from and including the 25th June until the 11th July. She was then towed by the agents of the United States to Boston, which port she reached on the 18th July, 1865, when her crew were discharged. The damages suffered by the claimants for the loss of their vessel's service and her expenses was the sum of $100 per day, making the sum of $5300; that is to say:

30 days (from 24th May, when the 21 lay days expired, to

24th June, when she was formally discharged), 30 days at

$100,.................................. $

23 days (from June 25th to when the discharge was

completed till July 18th, when the vessel reached Boston),

23 days at $100,........................


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


text:
Page:Copyright, Its History And Its Law (1912).djvu/202

 song of any melody in an orchestral work. On the other hand, variations, transcriptions and so forth of a copyrighted work, made under authorization from the copyright proprietor, may be separately copyrighted as to that extent original works.

The Copyright Office Rules and Regulations say specifically: "(lo) 'Adaptations' and 'arrangements' may be registered as ' new works ' under the provisions of section 6. Mere transpositions into different keys are not expressly provided for in the copyright act; but if published with copyright notice and copies are deposited with application, registration will be made."

In Hein v. Harris in 1910, the U. S. Circuit Court awarded damages where the chorus of a song proved on transposition into the key of the copyright song to be practically a copy of the melody.

It is specifically provided (sec. 6) that "adaptations, arrangements, dramatizations ... or other versions of works in the public domain, ... shall be regarded as new works subject to copyright," and in the case of such versions copyright inheres in the dramatizer, adaptor or maker of a version, as in the case of a translator of a book, in the public domain. Thus a dramatic or musical work in the public domain may be dramatized or adapted freely and any individual dramatization or adaptation may be copyrighted by the dramatizer or adaptor, but he cannot prevent other dramatization or adaptation of the same work.

The American courts have fully upheld the control over dramatization under the right "to dramatize" specifically given in the law of 1891 and preserved under the new code. In 1895 in Harper v, Ranous, Judge Lacombe, in the U. S. Circuit Court in New York, enjoined a play, "Trilby," on the ground that the drama "presents characters, plot, incidents,


text:
White v. Hart

ERROR to the Supreme Court of the State of Georgia.

Mr. P. Phillips and Mr. Edwin N. Broyles argued the case fully and ably for the plaintiff in error.

No counsel appeared on the other side; the reliance of that party having apparently been on the argument contained in the opinion given by Brown, C. J., in behalf of the Supreme Court of Georgia.

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

title: White v. Hart


text: Talk:White v. Hart

title: Talk:White v. Hart


text:
White v. Hart/Opinion of the Court

The suit was instituted by the plaintiff in error on the 10th of January, 1866, in the Superior Court of Chattooga County. He declared upon a promissory note made to him by the defendants in error for twelve hundred and thirty dollars, dated February 9th, 1859, and payable on the 1st of March, A.D. 1860. The defendant pleaded in abatement that 'the consideration of the note was a slave,' and that 'by the present Constitution of Georgia, made and adopted since the last pleadings in this case, the court is prohibited to take and exercise jurisdiction or render judgment therein.' To this plea the plaintiff demurred. The court overruled the demurrer and gave judgment for the defendants. The plaintiff excepted and removed the case to the Supreme Court of the State, where the judgment was affirmed, and the plaintiff thereupon prosecuted this writ of error. The Constitution of Georgia of 1868, which is still in force, contains the following clause:

'Provided, that no court or officer shall have, nor shall the General Assembly give, jurisdiction to try, or give judgment on, or enforce any debt the consideration of which was a slave or the hire thereof.'

From the close of the rebellion until Georgia was restored to her normal relations and functions in the Union, she was governed under the laws of the United States known as the Reconstruction Acts. Under these laws her present constitution was framed, adopted, and submitted to Congress. Among the terms of her rehabilitation prescribed by the acts referred to it was made a fundamental condition that certain designated parts of the constitution so submitted should 'be null and void, and that the General Assembly of the State' should, 'by a solemn act, declare the assent of the State' to the required modification. The constitution was modified accordingly. When submitted it contained the proviso here under consideration. No objection was made to the proviso, and it has since remained a part of the instrument. With her constitution thus modified, Congress enacted 'that the State of Georgia, having complied with the Reconstruction Acts, and the fourteenth and fifteenth amendments to the Constitution of the United States having been ratified in good faith by a legal legislature of said State, it is hereby declared that the State of Georgia is entitled to representation in the Congress of the United States.' Her representatives and senators were thereupon admitted to seats in Congress. This act removed the last of the disabilities and penalties which were visited upon her for her share of the guilt of the rebellion. The condonation by the National government thus became complete.

The judgment we are called upon to review is ought to be maintained upon the following grounds: (1.) That when the constitution of 1868 was adopted Georgia was not a State of the Union; that she had sundered her connection as such, and was a conquered territory wholly at the mercy of the conqueror; and that hence the inhibition of the States by the Constitution of the United States to pass any law impairing the obligation of contracts had no application to her.

(2.) That her constitution does not affect the contract, but only denies jurisdiction to her courts to enforce it.

(3.) That her constitution was adopted under the dictation and coercion of Congress, and is the act of Congress, rather than of the State; and that, though a State cannot pass a law impairing the validity of contracts, Congress can, and that, for this reason also, the inhibition in the Constitution of the United States has no effect in this case.

The third of these propositions is clearly unsound, and requires only a few remarks. Congress authorized the State to frame a new constitution, and she elected to proceed within the scope of the authority conferred. The result was submitted to Congress as a voluntary and valid offering, and was so received and so recognized in the subsequent action of that body. The State is estopped to assail it upon such an assumption. Upon the same groungs she might deny the validity of her ratification of the constitutional amendments. The action of Congress upon the subject cannot be inquired into. The case is clearly one in which the judicial is bound to follow the action of the political department of the government, and is concluded by it. We may add, that if Congress had expressly dictated and expressly approved the proviso in question, such dictation and approval would be without effect. Congress has no power to supersede the National Constitution.

The subject presented by the first proposition has been considered under some of its aspects several times by this court. We need do little more upon this occasion than to reaffirm the views heretofore expressed, and add such further remarks as are called for by the exigencies of the case before us.

The National Constitution was, as its preamble recites, ordained and established by the people of the United States. It created not a confederacy of States, but a government of individuals. It assumed that the government and the Union which it created, and the States which were incorporated into the Union, would be indestructible and perpetual; and as far as human means could accomplish such a work, it intended to make them so. The government of the Nation and the government of the States are each alike absolute and independent of each other in their respective spheres of action; but the former is as much a part of the government of the people of each State, and as much entitled to their allegiance and obedience as their own local State governments-'the Constitution of the United States and the laws made in pursuance thereof,' being in all cases where they apply, the supreme law of the land. For all the purposes of the National government, the people of the United States are an integral, and not a composite mass, and their unity and identity, in this view of the subject, are not affected by their segregation by State lines for the purposes of State government and local administration. Considered in this connection, the States are organisms for the performance of their appropriate functions in the vital system of the larger polity, of which, in this aspect of the subject, they form a part, and which would perish if they were all stricken from existence or ceased to perform their allotted work. The doctrine of secession is a doctrine of treason, and practical secession is practical treason, seeking to give itself triumph by revolutionary violence. The late rebellion was without any element of right or sanction of law. The duration and magnitude of the war did not change its character. In some respects it was not unlike the insurrection of a county or other municipal subdivision of territory against the State to which it belongs. In such cases the State has inherently the right to use all the means necessary to put down the resistance to its authority, and restore peace, order, and obedience to law. If need be, it has the right also to call on the government of the Union for the requisite aid to that end. Whatever precautionary or penal measures the State may take when the insurrection is suppressed, the proposition would be a strange one to maintain, that while it lasted the county was not a part of the State, and hence was absolved from the duties, liabilities, and restrictions which would have been incumbent upon it if it had remained in its normal condition and relations. The power exercised in putting down the late rebellion is given expressly by the Constitution to Congress. That body made the laws and the President executed them. The granted power carried with it not only the right to use the requisite means, but it reached further and carried with it also authority to guard against the renewal of the conflict, and to remedy the evils arising from it in so far as that could be effected by appropriate legislation. At no time were the rebellious States out of the pale of the Union. Their rights under the Constitution were suspended, but not destroyed. Their constitutional duties and obligations were unaffected and remained the same. A citizen is still a citizen, though guilty of crime and visited with punishment. His political rights may be put in abeyance or forfeited. The result depends upon the rule, as defined in the law, of the sovereign against whom he has offended. If he lose his rights he escapes none of his disabilities and liabilities which before subsisted. Certainly he can have no new rights or immunities arising from his crime. These analogies of the county and the citizen are not inapplicable, by way of illustration, to the condition of the rebel States during their rebellion. The legislation of Congress shows that these were the views entertained by that department of the government.

In the several acts admitting new States the same formula substantially is used in all cases. It is, that the State named 'shall be and is hereby declared to be one of the United States of America, and is hereby admitted into the Union, upon an equal footing with the original States, in all respects whatsoever.' In the several Reconstruction Acts, the language used in this connection is, that the State in question 'shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom. 'Shall be entitled and admitted to representation in Congress as a State of the Union, when,' &c. And, lastly, in the final act as to Georgia-'It is hereby declared that the State of Georgia is entitled to representation in the Congress of the United States.'

The different language employed in the two classes of cases evinces clearly that, in the judgment of Congress, the reconstructed States had not been out of the Union, and that to bring them back into full communion with the loyal States, nothing was necessary but to permit them to restore their representation in Congress. Without reference to this element of the case, we should have come to the same conclusion. But the fact is one of great weight in the consideration of the subject. And we think it is conclusive upon the judicial department of the government.

Georgia, after her rebellion and before her representation was restored, has no more power to grant a title of nobility, to pass a bill of attainder, an ex post facto law, or law impairing the obligation of contracts, or to do anything else prohibited to her by the Constitution of the United States, than she had before her rebellion began, or after her restoration to her normal position in the Union. It is well settled by the adjudications of this court, that a State can no more impair the obligation of a contract by adopting a constitution than by passing a law. In the eye of the constitutional inhibition they are substantially the same thing.

The second proposition remains to be considered. When the note was executed and until the constitution of 1868 was adopted, the courts of the State had unquestionable jurisdiction to entertain a suit brought to enforce its collection, and if that jurisdiction ceased it was by reason of the provision of the constitution of the State, here under consideration.

The question presented by this proposition was fully considered by this court in Van Hoffman v. The City of Quincy. The city had sold its bonds under acts of the legislature of Illinois, which authorized their issue and required the assessment and collection of a special tax to meet the interest; and it was declared that the amount so raised should be applied to that object 'and to no other purpose whatsoever.' The legislature subsequently passed an act which prohibited any tax beyond the amount therein specified to be imposed. This tax yielded a sum barely sufficient to meet the municipal wants of the city-leaving nothing to be applied to the interest upon the bonds. This court held the prohibition, so far as it affected the special tax, to be void, and by a writ of mandamus ordered that tax to be collected and applied, as if the subsequent act had not been passed. It was said, 'the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. . . . Nothing can be more material to the obligation than the means of enforcement.' Without the remedy, the contract may indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties, which depend for their fulfilment wholly upon the will of the individual. The ideas of validity and remedy are inseparable and both are parts of the obligation which is guaranteed by the Constitution against invasion. The obligation of a contract 'is the law which binds the parties to perform their agreement.' It was said further, that the State may modify the remedy, but not so as to impair substantial rights; and that whenever this result 'is produced, the act is within the prohibition of the Constitution, and to that extent void.' When the contract here in question was entered into, ample remedies existed. All were taken away by the proviso in the new constitution. Not a vestige was left. Every means of enforcement was denied, and this denial if valid involved the annihilation of the contract. But it is not valid. The proviso which seeks to work this result, is, so far as all pre-existing contracts are concerned, itself a nullity. It is to them as ineffectual as if it had no existence. Upon the question as thus presented, several eminent State courts have expressed the same views.

As the case is disclosed in the record we entertain no doubt of the original validity of the note, nor of its validity when the decision before us was made. But as that question was not raised in this case, we deem it unnecessary to remark further upon the subject.

JUDGMENT REVERSED and the case remanded to the Supreme Court of Georgia, with directions to proceed

IN CONFORMITY TO THIS OPINION.

The CHIEF JUSTICE dissented from this judgment. See the next case, and his opinion at page 663, infra.

title: White v. Hart/Opinion of the Court


text: Talk:White v. Hart/Opinion of the Court

title: Talk:White v. Hart/Opinion of the Court


text:
Osborn v. Nicholson

In error to the Circuit Court for the District of Arkansas.

Mr. P. Phillips and Mr. A. H. Garland, for the plaintiff in error; Messrs. Watkins and Rose, contra.

The case was argued on both sides interestingly, and with ability and learning.

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

title: Osborn v. Nicholson


text: Talk:Osborn v. Nicholson

title: Talk:Osborn v. Nicholson


text:
Osborn v. Nicholson/Opinion of the Court

The plaintiff in error brought this suit on the 10th of February, 1869, in that court, and declared upon a promissory note made to him by the defendants in error for $1300, dated March 26th, A.D. 1861, and payable on the 26th day of December following, with interest at the rate of ten per cent. from date. The defendants pleaded that the instrument sued upon was given in consideration of the conveyance of a certain negro slave for life, and none other; and that at the time of the making of the instrument the plaintiff, by his authorized agent, executed to the defendant a bill of sale, as follows:

'March 20th, 1861.

'For the consideration of $1300 I hereby transfer all the right, title, and interest I have to a negro boy named Albert, aged about twenty-three years. I warrant said negro to be sound in body and mind, and a slave for life; and I also warrant the title to said boy clear and perfect.'

And that the said negro soon thereafter, to wit, on the 1st day of January, 1862, was liberated by the United States government, the said slave being then alive, and that the plaintiff ought not therefore to recover. The plaintiff demurred. The court overruled the demurrer, and the plaintiff electing to stand by it, the court gave judgment for the defendants. This writ of error has brought the case here for review.

The question presented for our determination is, whether the court erred in overruling the demurrer; or, in other words, whether the facts pleaded were sufficient to bar the action.

We lay out of view in limine the constitution of Arkansas of 1868, which annuls all contracts for the purchase or sale of slaves, and declares that no court of the State should take cognizance of any suit founded on such a contract, and that nothing should ever be collected upon any judgment or decree which had been, or should thereafter be, 'rendered upon any such contract or obligation.' It is sufficient to remark that as to all prior transactions the constitution is in each of the particulars specified clearly in conflict with that clause of the Constitution of the United States, which ordains that 'no State shall'. . . 'pass any law impairing the obligation of contracts.' Nor do we deem it necessary to discuss the validity of the contract here in question when it was entered into. Being valid when and where it was made, it was so everywhere. With certain qualifications not necessary to be considered in this case, this is the rule of the law of nations. Judge Story says: 'The rule is founded not merely on the convenience, but on the necessity of nations; for otherwise it would be impracticable for them to carry on an extensive intercourse and commerce with each other.'

It may be safely asserted that this contract when made could have been enforced in the courts of every State of the Union, and in the courts of every civilized country elsewhere. In the celebrated case of Somerset, Lord Mansfield said: 'A contract for the sale of a slave is good here; the sale is a matter to which the law properly and readily attaches, and will maintain the price according to the agreement. But here the person of the slave himself, is immediately the object of inquiry, which makes a very material difference.'

Nor is there any question as to an implied warranty, of title or otherwise. There being an express warranty, that must be taken to contain the entire contract on the part of the seller. This warranty embraces four points: that the slave was sound in body; that he was sound in mind; that he was a slave for life; and that the seller's title was perfect.

It is not averred or claimed that the warranty was false when it was given, in either of these particulars. The title to the slave passed at that time, and if the warranty were true then, no breach could be wrought by any after event. Let it be supposed that, subsequently, a lesion of the brain of the slave occurred, and that permanent insanity ensued, or that, from subsequent disease, he became a cripple for life or died, or that, by the subsequent exercise of the power of eminent domain, the State appropriated his ownership and possession to herself, can there be a doubt that neither of these things would have involved any liability on the part of the seller? He was not a perpetual assurer of soundness of mind, health of body, or continuity of title. A change of the ownership and possession of real estate by the process of eminent domain is not a violation of the covenant for quiet enjoyment. Nor is it such an eviction as will support an action for a breach of the covenant of general warranty. In Dobbins v. Brown, it was said by the court: 'It will scarcely be thought that a covenant of warranty extends to the State in the exercise of its eminent domain. Like any other covenant it must be restrained to what was supposed to be the matter in view. No grantor who warrants the possession dreams that he covenants against the entry of the State to make a railroad or a canal, nor would it be a sound interpretation of the contract that would make him liable for it. An explicit covenant against all the world would bind him; but the law is not so unreasonable as to imply it.'

In Bailey v. Miltenberger it was said: 'It has never been supposed that the vendor or vendee contemplated a warranty against the exercise of this power whenever the public good or convenience might require it.'

These remarks are strikingly apposite to the point here under consideration. As regards the principle involved we see nothing to distinguish those cases from the one before us. In all of them the property was lost to the owner by the paramount act of the State, which neither party anticipated, and in regard to which the contract was silent. Emancipation and the eminent domain work the same result as regards the title and possession of the owner. Both are put an end to. Why should the seller be liable in one case and not in the other? We can see no foundation, in reason or principle, for such a claim.

It was formerly held that there could be no warranty against a future event. It is now well settled that the law is otherwise. The buyer might have guarded against his loss by a guaranty againt the event which has caused it. We are asked, in effect, to interpolate such a stipulation and to enforce it, as if such were the agreement of the parties. This we have no power to do. Our duty is not to make contracts for the parties, but to administer them as we find them. Parties must take the consequences, both of what is stipulated and of what is admitted. We can neither detract from one nor supply the other.

Where an article is on sale in the market, and there is no fraud on the part of the seller, and the buyer gets what he intended to buy, he is liable for the purchase price, though the article turns out to be worthless. Thus, where certain railroad scrip had been openly sold in London for several months, but was subsequently repudiated by the directors of the company as having been signed and issued by the secretary without authority, it was held that the buyer could not set up as a defence a failure of consideration. These cases go further than it is necessary for us to go in order to sustain the liability of the defendants upon the contract here in question. There, as in this case, the buyer might have protected himself by a proper warranty, but had failed to do so.

But we think the exact point here under consideration was settled by the Court of Queen's Bench in Mittelholzer v. Fullarton. That case so far as it is necessary to state it was this: The contract was made at Burbice, in British Guiana. The plaintiff sold to the defendant the services of one hundred and fifty-three apprentice laborers who had been slaves, for 7800, payable in six annual instalments of  1300 each. The defendant paid four instalments. The apprentices were then declared free by the local governor and council. The defendant refused to pay the two last instalments. The suit was brought to recover them. The court held that the plaintiff was entitled to judgment, 'though the legislature had determined the apprenticeship before they became due.'

Lord Chief Justice Denman said: 'My Brother Weightman asked during the argument, what would have been the result, if at the end of a year the services had been determined by the act of God, and to this no sufficient answer was given. . . The plaintiff's right vested when the bargain was made. The subsequent interference of the colonial legislature does not prevent his recovering what was then stipulated for.'

Williams, Justice, said: 'The whole question is, who shall bear the loss occasioned by a vis major? and that depends much upon the question, who was the proprietor when that loss was occasioned? The property in the services of these laborers had been transferred to the defendant. Then the question is analogous to those which often arise in cases of loss by fire; as whether the goods were in transitu or the transit was ended. If the property had passed, and the residue of it was destroyed by a vis major, the loss must fall upon the proprietor of the thing, namely, of the services during the unexpired term.' The other justices expressed themselves to the same effect, and the judgment was unanimously given.

If all the buildings upon leasehold premises be destroyed by fire, the lessee is nevertheless liable for the full amount of the rent during the residue of the term. And if he has covenanted to repair, he must also rebuild. So, if a fire occur after the contract of sale, but before the conveyance is executed, the loss must be borne by the buyer.

All contracts are inherently subject to the paramount power of the sovereign, and the exercise of such power is never understood to involve their violation, and is not within that provision of the National Constitution which forbids a State to pass laws impairing their obligation. The power acts upon the property which is the subject of the contract, and not upon the contract itself.

Such also is the rule of the French law and such was the Roman law. The seller is not bound to warrant the buyer against acts of mere force, violence, and casualties, nor against the act of the sovereign. 'After the bargain is completed the purchaser stands to all losses.' The case is one in which the maxim applies, Res perit suo domino.

It has been earnestly insisted that contracts for the purchase and sale of slaves are contrary to natural justice and right, and have no validity unless sustained by positive law; that the right to enforce them rests upon the same foundation, and that when the institution is abolished all such contracts and the means of their enforcement, unless expressly saved, are thereby destroyed. Slavery was originally introduced into the American Colonies by the mother country, and into some of them against their will and protestations. In most, if not all of them, it rested upon universally recognized custom, and there were no statutes legalizing its existence more than there were legalizing the tenure of any other species of personal property. Though contrary to the law of nature it was recognized by the law of nations. The atrocious traffic in human beings, torn from their country to be transported to hopeless bondage in other lands, known as the slave trade, was also sanctioned by the latter code.

Where the traffic was carried on by the subjects of governments which had forbidden it, a different rule was applied. Humane and just sentiments upon the subject were of slow growth in the minds of publicists. The institution has existed largely under the authority of the most enlightened nations of ancient and modern times. Wherever found, the rights of the owner have been regarded there as surrounded by the same sanctions and covered by the same protection as other property. The British government paid for the slaves carried off by its troops from this country, in the war of 1812, as they did for other private property in the same category. The Constitution of the United States guaranteed the return of persons 'held to service or labor in one State under the laws thereof, escaping into another.' 'The object of this clause was to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves as property in every State in the Union, into which they might escape.' Historically it is known that without this provision, the Constitution would not have been adopted, and the Union could not have been formed.

But without considering at length the several assumptions of the proposition, it is a sufficient answer to say that when the thirteenth amendment to the Constitution of the United States was adopted, the rights of the plaintiff in this action had become lgally and completely vested. Rights acquired by a deed, will, or contract of marriage, or other contract executed according to statutes subsequently repealed subsist afterwards, as they were before, in all respects as if the statutes were still in full force. This is a principle of universal jurisprudence. It is necessary to the repose and welfare of all communities. A different rule would shake the social fabric to its foundations and let in a flood-tide of intolerable evils. It would be contrary to 'the general principles of law and reason,' and to one of the most vital ends of government. The doctrines of the repeal of statutes and the destruction of vested rights by implication, are alike unfavored in the law. Neither is to be admitted unless the implication is so clear as to be equivalent to an explicit declaration. Every doubt should be resolved against a construction so fraught with mischiefs. There is nothing in the language of the amendment which in the slightest degree warrants the inference that those who framed or those who adopted it intended that such should be its effect. It is wholly silent upon the subject. The proposition, if carried out in this case, would, in effect, take away one man's property and give it to another. And the deprivation would be 'without due process of law.' This is forbidden by the fundamental principles of the social compact, and is beyond the sphere of the legislative authority both of the States and the Nation. What would be the effect of an amendment of the National Constitution reaching so far-if such a thing should occur-it is not necessary to consider, as no such question is presented in the case before us.

Many cases have been decided by the highest State courts where the same questions arose which we have been called upon to consider in this case. In very nearly all of them the contract was adjudged to be valid, and was enforced. They are too numerous to be named. The opinions in some of them are marked by great ability.

Whatever we may think of the institution of slavery viewed in the light of religion, morals, humanity, or a sound political economy,-as the obligation here in question was valid when executed, sitting as a court of justice, we have no choice but to give it effect. We cannot regard it as differing in its legal efficacy from any other unexecuted contract to pay money made upon a sufficient consideration at the same time and place. Neither in the precedents and principles of the common law, nor in its associated system of equity jurisprudence, nor in the older system known as the civil law, is there anything to warrant the result contended for by the defendants in error. Neither the rights nor the interests of those of the colored race lately in bondage are affected by the conclusions we have reached. This opinion decides nothing as to the effect of President Lincoln's emancipation proclamation. We have had no occasion to consider that subject.

JUDGMENT REVERSED, and the cause remanded to the Circuit Court with directions to proceed

IN CONFORMITY TO THIS OPINION.

The CHIEF JUSTICE dissented in this case and in the preceding one of White v. Hart, on the grounds:

1st. That contracts for the purchase and sale of slaves were and are against sound morals and natural justice, and without support except in positive law.

2d. That the laws of the several States by which alone slavery and slave contracts could be supported, were annulled by the thirteenth amendment of the Constitution which abolished slavery.

3d. That thenceforward the common law of all the States was restored to its original principles of liberty, justice, and right, in conformity with which some of the highest courts of the late Slave States, notably that of Louisiana, have decided, and all might, on the same principles, decide, slave contracts to be invalid, as inconsistent with their jurisprudence, and this court has properly refused to interfere with those decisions.

4th. That the clause in the fourteenth amendment of the Constitution which forbids compensation for slaves emancipated by the thirteenth, can be vindicated only on these principles.

5th. That clauses in State constitutions, acts of State legislatures, and decisions of State courts, warranted by the thirteenth and fourteenth amendments, cannot be held void as in violation of the original Constitution, which forbids the States to pass any law violating the obligation of contracts.


text: Talk:Osborn v. Nicholson/Opinion of the Court


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Ex parte Russell

MOTION, by Mr. William Penn Clarke, for a writ of mandamus; the case being thus:

The second section of an act of June 25th, 1868, relating to the Court of Claims, thus enacts:

'That the said Court of Claims, at any time while any suit or claim is pending before or on appeal from said court, or within two years next after the final disposition of any suit or claim, may, on motion on behalf of the United States, grant a new trial in any such suit or claim, and stay the payment of any judgment therein, upon such evidence although the same may be cumulative or other) as shall reasonably satisfy said court that any fraud, wrong, or injustice in the premises has been done to the United States; but until an order is made staying the payment of a judgment, the same shall be payable and paid as now provided by law.'

It now appeared from the affidavit and exhibits on which this motion was based, that in October, 1867, Russell filed a petition in the Court of Claims to recover from the United States compensation for the use of certain steamboats, and that he obtained a judgment for $41,355 on the 6th of December, 1869, that afterwards an appeal was taken to this court on behalf of the United States, and the judgment of the Court of Claims was affirmed on the 20th of November, 1871, that, pending the appeal, the counsel for the United States applied to the Court of Claims for a new trial, but the motion was not argued until after the decision of the case here on the appeal, though it was argued before the mandate was issued; that the motion for a new trial failed by an equal division of the court; that the mandate from this court was filed in the Court of Claims on the 12th day of December, 1871, and on the next day that court ordered a rehearing of the motion for a new trial; and that, on the 29th of January, 1872, the Court of Claims dismissed the motion for a new trial as for want of jurisdiction, on the ground that, after it was made, the mandate of the Supreme Court had been filed affirming the judgment, and also on the ground that the motion had failed on the prior hearing by an equal division of the court. From this last decision the counsel for the United States appealed to this court, and the appeal was allowed by the Court of Claims. Thereupon the claimant moved that court to vacate the allowance of the appeal, but the court refused to do so. He now moves this court for a mandamus to compel the Court of Claims to vacate its order allowing the appeal. The grounds on which the application was made were:

First, that an appeal does not lie from an order refusing a new trial, because it is not a final judgment.

Secondly, that the granting of a new trial rests in the discretion of the court.

Thirdly, that the allowance of the appeal was a violation of the mandate of this court.

Mr. Clarke, in support of his motion, argued that the first and second reasons assigned needed no explanation. That the third one was well founded, and that the allowance of the appeal was a violation of the mandate of this court appeared on a right reading of the 2d section of the act of June 25th, 1868, under which the motion for the new trial was made. That section does but extend the time within which the government may exercise the right of appeal. The extension is:

1st. 'While any suit or claim is pending before or on appeal from said Court' (of Claims); OR,2d. 'Within two years next after the final disposition of any such suit or claim.'

'Final disposition.' Where? In the Court of Claims, of course. The act relates only to the Court of Claims, and the limitation is twofold. If the two limitations were united by the conjunction and, instead of the preposition 'or,' the section would then bear the construction contended for by the government. The case was not 'pending on appeal from said court' when the motion for a new trial was argued, and the court properly overruled the motion. Its jurisdiction over the cause terminated when the mandate of this court, showing that the judgment had been affirmed, was filed in that court, except so far as its action was required to carry the judgment into execution. And the cause not being pending there, the court had no power to grant the allowance of an appeal. To have done so, would have been to have allowed an appeal to the Court of Claims from this court. Having erred in allowing the appeal, the order should have been vacated on the motion of the claimants.

Mr. W. McMichael, Assistant Attorney-General, and Mr. B. H. Bristow, Solicitor-General:

1. The appeal is not from an interlocutory order, but is the final judgment of the court below in the case.

2. The refusal to grant a new trial was a decision of the case against the United States; it involved not a matter of discretion but one of right. The words 'final disposition' in the section under which this motion for a new trial was made do not relate alone to the action of the Court of Claims, but where cases are taken by appeal to the Supreme Court include the disposition of the case by the latter tribunal. A case which is thus taken to the Supreme Court cannot be regarded as finally disposed of until the court has expressed its judgment, and the two years recited in the statute are to be measured from that time. In the present case that limitation had not yet expired, and the motion for a new trial was not only made within it, but also within two years from the judgment of December 6th, 1869, in the Court of Claims.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Ex parte Russell


text: Talk:Ex parte Russell

title: Talk:Ex parte Russell


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Ex parte Russell/Opinion of the Court

We think that the Court of Claims erred in dismissing the motion for a new trial as for want of jurisdiction; that the counsel for the United States mistook their remedy in appealing from that decision; and that the claimant has equally mistaken his remedy in applying for a mandamus to vacate the allowance of the appeal.

The difficulty has arisen out of the anomalous provisions of the 2d section of the act of June 25th, 1868. The policy of this act was undoubtedly dictated by the fact that the government agents are at a great disadvantage in defending suits in the Court of Claims on account of their personal ignorance of the facts, and of the witnesses and evidence necessary to rebut the petitioner's case; for all which they have to depend on distant and uninterested parties, or parties whose sympathies and, perhaps, whose interests, are with the claimants, whilst the claimants have had years to prepare and get up their cases and to select the most favorable proofs to sustain them. From these causes, no doubt, the government is often greatly defrauded, and claims are proved and adjudged against it which have really no just grounds, or which have long since been settled and paid. But whatever reason Congress may have had for passing the act, of its right to pass it there is no question. The erection of the Court of Claims itself, and the giving to parties the privileg of suing the government therein, though dictated by a sense of justice and good faith, were purely voluntary on the part of Congress; and it has the right to impose such conditions and regulations in reference to the proceedings in that court as it sees fit.

The section in question was undoubtedly intended to give the government an advantage, which, in respect to its form, is quite unusual, if not unprecedented, but which Congress undoubtedly saw sufficient reason to confer. It authorizes the Court of Claims, on behalf of the United States, at any time while a suit is pending before, or on appeal from, said court, or within two years next after the final disposition of such suit, to grant a new trial upon such evidence as shall satisfy the court that the government has been defrauded or wronged. The question is, what is meant by the final disposition of the suit from which the two years of limitation is to date. And it seems to us there is hardly room for a doubt. Looking at the words in their collocation with the previous words, it seems evident that the final determination of the suit has reference to its final determination on appeal (if an appeal is taken), or, if none is taken, then to its final determination in the Court of Claims. The natural meaning of the words leads to the same conclusion. The final determination of a suit is the end of litigation therein. This cannot be said to have arrived as long as an appeal is pending. Neither the existence nor the determination of the appeal interferes with the right, on the part of the government, to apply for a new trial; and, of course, the mandate from this court cannot affect it.

It has been objected that the granting of a new trial after a decision by this court is, in effect, an appeal from the decision of this court. This would be so if it were granted upon the same case presented to us. But it is not. A new case must be made; a case involving fraud or other wrong practiced upon the government. It is analogous to the case of a bill of review in chancery to set aside a former decree, or a bill impeaching a decree for fraud.

We are of opinion, therefore, that the Court of Claims had jurisdiction to grant a new trial, notwithstanding the filing of the mandate of this court.

The other ground on which the court dismissed the motion, namely, that on the first hearing the court was equally divided, was no valid reason for not proceeding after an order for a rehearing had been made.

The next question is as to the proper remedy of the counsel for the United States upon the dismissal of their motion. To us it seems clear that they should have applied to this court for a mandamus. An appeal was not the proper remedy. The Court of Claims did not reach the consideration of the motion for a new trial on its merits; but stopped short of that point by reaching the conclusion that, under the circumstances, they had no jurisdiction to entertain the motion, and therefore they dismissed it. The only proper remedy, therefore, which was left to the United States was to move for a mandamus to direct the court to proceed with the motion. Where a court declines to hear a case or motion, alleging its own incompetency to do so, or that of the party to be heard, mandamus is the proper remedy. A writ of error or appeal does not lie; for what has the appellate court to review where the inferior court has not decided the case, but has refused to hear it? Where a final judgment or decree to which a writ of error or an appeal can be taken is based on a supposed want of jurisdiction, that question, as well as other questions, may be examined by the appellate court. But that, as we have shown, is not the case here.

If this view as to the proper course of proceeding is correct, it follows that the appeal taken by the counsel for the government was not well taken, and that this court would dismiss it upon proper application here.

But we cannot grant a mandamus to the Court of Claims to cause them to vacate their allowance of the appeal. That would be to use the writ for the purpose of compelling the inferior court to decide a case or question in a particular manner. If we should grant a mandamus in the case at all, it would be adverse to the claimants, namely, a mandamus to vacate the allowance of the appeal, and to proceed with the hearing of the motion for a new trial. Perhaps, on the principle of going back to the first error, we might do this; especially, as by their appeal, the defendants, though not in the proper mode, have asked us to do substautially the same thing by reversing the order dismissing their motion for new trial.

However, since the appeal has been actually allowed, and the court below has thus lost possession of the case, and as it is now within the control of this court, we think the more orderly and proper course would be for one or the other party to move to dismiss the appeal, and for the counsel of the United States, if they see fit, to move for a distinct mandamus to require the Court of Claims to proceed. A motion to dismiss the appeal where it has been improperly allowed is an adequate remedy, and this is an additional reason why a mandamus commanding the court below to vacate the allowance thereof should not be granted.

It is suggested that a party wishing to move the dismissal of an appeal is obliged to await the arrival of the term to which the record ought to be returned, which occasions great delay. But as the case is virtually in the possession and subject to the control of this court as soon as the appeal is effectively taken, we see no reason why the appellee should not at any time when the court is in session, apply to have the appeal dismissed, provided the question can be properly presented to the court. Of course the court whould not hear the motion without having the record before it; but that could be procured and presented by the appellee as is done where the appellant has failed to have the record filed in due time. In many cases the court might decline to hear the motion until the record were printed; but that could also be done by the appellee, if he desired to have a speedy hearing of the matter. Unless some unforeseen inconvenience should arise from the practice, we shall not refuse to hear a motion to dismiss before the term to which, in regular course, the record ought to be returned. It would be likely to prevent great delays and expense, and further the ends of justice.

DENIED.

If the counsel for the United States desire to dismiss their appeal and ask for a mandamus to the Court of Claims to proceed with the motion for a new trial, it will be granted. But probably counsel will be able, in view of the suggestions now made, to come to some mutual arrangement by which further process or delay may be avoided.

The CHIEF JUSTICE, with whom concurred CLIFFORD, J., dissented from the opinion of the court because they thought that the act of Congress did not warrant the granting of a new trial on a petition filed subsequent to an appeal and the return of the mandate from the court.

title: Ex parte Russell/Opinion of the Court


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


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Insurance Company v. Thwing

IN error to the Circuit Court of the United States for the District of Massachusetts.

This was an action of assumpsit for money had and received, brought by The Great Western Insurance Company, of New York, against W. Thwing, a citizen of Massachusetts, recover certain insurance money which the company had paid to him in ignorance (as they alleged) of a breach of warranty by him. They had made him a policy on his ship Alhambra, on a voyage from Liverpool to San Francisco, which policy was dated the 6th of October, 1863, and contained, amongst other things, this clause:

'Warranted not to load more than her registered tonnage with lead, marble, coal, slate, copper ore, salt, stone, bricks, grain, or iron, either or all, on any one passage.'

The registered tonnage was 1285 tons, and the vessel took on board at Liverpool, among other things, 1064 tons of iron, 6 tons of brick, and 238 tons of cannel coal, being an excess over the registered tonnage of 23 tons. The ship having sustained a partial loss on the voyage, the insurance company paid the money in question in ignorance of the amount of cargo, and based their claim to recover it back on the ground that the payment was made under a mistake of fact.

The defence set up was, that the 238 tons of cannel coal was not cargo, but dunnage.

The defendant showed a charter-party with James Starkie, of Liverpool, by which the charterer was to have the full reach of the vessel's hold, and was to pay 51 shillings for every ton of freight put on board; that the master agreed with the charterer, in addition to the agreement in the charter-party, that the latter should furnish 250 tons of cannel coal for dunnage of the ship for the voyage, and that under this agreement he received the said 238 tons as dunnage, and that it was used and placed along the ship's bottom, fore and aft, as dunnage; that the captain signed a bill of lading for it; that it was on his freight list; that he collected freight, 51 shillings per ton, for it, and delivered it in San Francisco the same as he did the rest of his cargo; that it was better for dunnage than plack. The defendant also offered evidence of experts to show that a cargo was not properly stowed unless properly dunnaged, and that in cargoes from Liverpool cannel coal is frequently used for dunnage, and, when so used for certain cargoes, is liable to be crushed; that when cannel coal is received for cargo it is usually, though not always, stowed in a different manner from what it is when used as dunnage, and that it is sometimes taken as dunnage on ship's account, and then is sold at the port of discharge on ship's account.

Upon this testimony the plaintiffs' counsel asked the court to instruct the jury that, if freight was received and paid for this coal, it came within the warranty, although used as dunnage. The court declined so to rule; but ruled that if the jury believed, from the evidence, that the cannel coal was received and used as dunnage, and not as cargo, it would not amount to a loading under the clause of the policy referred to, and the plaintiffs could not recover. Under this ruling the jury found for the defendant. The bill of exceptions brought up the question as to the correctness of this ruling.

The case was very well argued; orally by Mr. R. H. Dana (briefs of Messrs. M. E. Ingalls and C. L. Woodbury being filed), and by Mr. Sydney Bartlett on a brief, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Insurance Company v. Thwing


text: Talk:Insurance Company v. Thwing

title: Talk:Insurance Company v. Thwing


text:
Page:Copyright, Its History And Its Law (1912).djvu/203

 dramatic situations and dialogue appropriated from Du Maurier's copyrighted novel," while denying protection against the mere use of the title. In the same year and in respect to the same novel, in Harper v. Ganthony, the Harpers, as owners of the copyright of "Trilby," also obtained from Judge Lacombe an injunction against Miss Ganthony, who had presented at the Eden Mus6e a series of monologues in costume following the plot of the story, which the judge held to constitute a dramatic version and therefore an infringement. A story, "The transmogrification of Dan," purchased by the Smart Set for $85, copyrighted as part of that periodical and assigned back to the author, was dramatized by Paul Armstrong and produced by the defendants under the name of "The heir to the Hoorah," retaining the central incident of the story, though with modification and extension of the characters, situation and dialogue. In 1908 Judge Hazel, in Dam v. Kerke La Shelle Co., in the U. S. Circuit Court in New York, awarded the full profits from the dramatic representation as damages to the executor of Dam, the author of the story; which decision was fully upheld in 1910 by the Circuit Court of Appeals through Judge Noyes. Thus the new American code specifically enacts into statute law previous decisions of the American courts.

Under English law, on the contrary, the right of dramatization has not been included under copyright; the mere copyrighting of a book could not prevent its dramatization, but the copyrighting of a work in dramatized form before its publication as a novel practically prevented other dramatization of the literary work in so far as the one drama was a reproduction of the features of the other. As stated by Colles and Hardy in their recent work (1906) on " Playright and copyright in all countries," "a novel is not a


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

There is considerable analogy between dunnage and ballast. The latter is used for trimming the ship, and bringing it down to a draft of water proper and safe for sailing. Dunnage is placed under the cargo to keep it from being wetted by water getting into the hold, or between the different parcels to keep them from bruising and injuring each other. Webster's definition of dunnage is 'fagots, boughs, or loose materials of any kind, laid on the bottom of a ship to raise heavy goods above the bottom, to prevent injury by water in the hold; also, loose articles of merchandise wedged between parts of the cargo to prevent rubbing, and to hold them steady.' Lord Tenterden says: 'It is, in all cases, the duty of the master to provide ropes, &c., proper for the actual reception of the goods in the ship. . . . The ship must also be furnished with proper dunnage (pieces of wood placed against the sides and bottom of the hold) to preserve the cargo from the effects of leakage, according to its nature and quality.'

It seems to be conceded by the plaintiffs that if the cannel coal can be regarded as dunnage, there was no breach of the warranty. In other words, it is conceded that when the assured warranted 'not to load more than her registered tonnage,' ballast and dunnage were not included in the warranty. And it is not pretended that the cannel coal used on this occasion was more than was proper for dunnage. Had some useless articles been employed for that purpose, such as chips or blocks of wood, though weighing precisely what this coal weighed, and had no freight been paid for it, the insurance company could not have complained.

It is the master's duty to provide both ballast and dunnage when necessary for the safe and proper transportation of his cargo. And it has been held that, in selecting materials for these purposes, even when he has chartered the entire capacity of his ship for articles which require ballast or dunnage, he is not precluded from taking articles on which he can realize freight. Thus, in the case of Towse v. Henderson, where, upon a charter-party, it was agreed that the vessel should proceed from Singapore to Whampoa, and there load from the agents of the affreighters a full and complete cargo of tea, and the master took in as ballast eighty tons of antimony ore, for which he received freight as merchandise, it was held that, if it occupied no more space than ballast would have done, he was entitled to do it. In that case a full cargo of tea (which was all that the charterer stipulated for) still needed ballast, which it was the duty of the shipmaster to supply. Hence it could make no difference to the charterer what material was used for ballast, if it did not encroach upon the loading capacity of the vessel for tea.

The question still recurs, however, whether merchandise used for the purpose of ballasting a ship, or for the purpose of dunnage, and paying freight as merchandise, can be considered as part of the ship's loading within the meaning of a warranty against an excess of loading beyond a limited amount, it being conceded that an equal quantity of ballast or dunnage proper would not be so regarded? Has the court a right to import into the contract an implied qualification that a reasonable amount of merchandise proper for ballast or dunnage shall not be reckoned as loading within the meaning of the contract? It is clear that the law does make the implied qualification that ballast and dunnage shall not be regarded as loading within the contract. Is it reasonable to extend that qualification to merchandise used as ballast or dunnage? If so, then, in the case of a cargo consisting of only one article, which needed no ballast or dunnage, the ship-owner would be entitled to deduct a reasonable amount for those purposes; and if there were a government regulation, that no ship should carry more cargo in weight than the amount of her registered tonnage, she would on the same principle be entitled not only to carry ballast and dunnage (properly such) in addition to her legal amount of cargo, but, where ballast and dunnage could be dispensed with, she would be entitled to carry an additional amount of cargo, beyond the legal allowance, equivalent to reasonable ballast and dunnage.

Such a construction could not be a sound one. It would be an arbitrary modification of the words of a law or contract. If the legislature in the one case, or the parties in the other, were willing that such a qualification should be made, it would always be very easy to make it in express terms. It would seem to be a dangerous practice for the court to make it for them.

It is not every cargo that requires ballast. Many cargoes will themselves sufficiently ballast the ship Cargo may be so assorted that certain portions of it may act as ballast. And where a ship is doing a miscellaneous carrying business, it would seem to be the dictate of sound business judgment so to assort and arrange the cargo (if practicable) as to dispense with the use of ballast properly so called. For by this means the whole carrying capacity of the ship is saved for cargo. And when this idea is acted on, those portions of the cargo which are selected and used for trimming and settling the ship, may, in a loose and popular sence, be called ballast. But, nevertheless, they are not ballast in a legal or proper sence. They remain cargo.

Precisely the same may be said with regard to dunnage. Many kinds of cargo require no dunnage whatever. They are composed of articles which will not be injured by water, nor by contact with each other. A cargo may be so assorted that some portions of it may be placed so as to keep the other portions dry, or prevent them from coming into mutual collision. It is manifest in this case, as in that of ballast, that a prudent and skilful master of a vessel will (if practicable) so assort and arrange his cargo as to dispense with dunnage proper. And yet, in a loose sense, the articles of merchandise which he uses to perform the office of dunnage, may be called dunnage. Still they are not legally nor properly such. If they are merchandise, they are cargo, and form part of the vessel's lading. They will be subject to duties, and they will be covered by insurance on the cargo.

It is true that ballast or dunnage, even when clearly such, as shingle from the beach, wooden slabs, chips, or brush, may be sold for some small sum after the voyage is ended; but that will not make it any the less ballast or dunnage as contradistinguished from merchandise. No person of ordinary intelligence would find any difficulty in making the distinction. Had such articles been used in the case before us, though of the same weight as the cannel coal, the insurance company could not have complained; for it would not have been cargo. But when merchandise is used in lieu of dunnage, or to perform the office of dunnage, it does not lose its character as cargo; and the insurance company have the right to treat it as cargo. And it is evident that no form of words which the captain and the charterer might use on the subject can affect the rights of the insurance company. It would be res inter alios acta.

In view of these considerations it seems to us that the charge of the court was calculated to mislead the jury on the question at issue. It was 'that if they believed that the coal was received and used as dunnage, and not as cargo, it would not amount to a loading under the warranty of the policy.'

The evidence justified and required the instruction asked by the plaintiff, namely, that if freight was received and paid for the coal, it was cargo, and came within the warranty. Here was an admitted fact, which gave character to the article, stamping it as merchandise. Freight is never paid for mere dunnage, any more than for the sails and rigging of the ship.

The argument that it made no difference to the insurance company whether coal or any other article was used as dunnage, is unsound. It does make this difference: if coal paying freight is merchandise, it is within the warranty; if mere dunnage were used, it would not be within the warranty. And the company were entitled to the benefit of those re sults which the mutual self-interest of the parties would lead them to adopt. The company made their contract in view and in anticipation of all these considerations.

Our attention has been called to another case between the same parties on the same policy of insurance, decided by the Supreme Court of Massachusetts, and reported in 103 Massachusetts Reports, p. 401, in which a decision was made adverse to the views which we have expressed. With all due respect for that intelligent and learned tribunal, and after giving full consideration to the views presented in the opinion given in that case, we cannot bring ourselves to a different conclusion from that to which we have come.

JUDGMENT REVERSED, with instructions to issue a

VENIRE DE NOVO.

Mr. Justice CLIFFORD, with whom concurred the CHIEF JUSTICE and Mr. Justice SWAYNE, dissenting.


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


text:
Insurance Company v. Thwing/Dissent Clifford

Mr. Justice CLIFFORD, with whom concurred the CHIEF JUSTICE and Mr. Justice SWAYNE, dissenting.

Unable to concur in the views of the majority of the court in this case, and regarding the question presented as one of considerable practical importance, I deem it proper to state very briefly the grounds of my dissent.

Insurance was obtained by the defendant on his ship Alhambra, from Liverpool to San Francisco; she received injuries by perils of the sea during the voyage, and the plaintiffs, as insurers, paid the loss under protest and brought this suit to recover back the amount. The policy contained the warranty described in the opinion of the court, and the claim to recover back the amount paid for the loss is based solely upon the fact that the ship took on board twenty-three tons of the excepted articles mentioned in the warranty, in excess of her registered tonnage. Two hundred and thirty-eight tons of the loading consisted of cannel coal, which the proofs showed was often used as dunnage, and that much more in quantity of the coal than the excess mentioned was used for dunnage on this occasion. Dunnage is required in every case, and it is not shown nor pretended that any more was used in loading the cargo than was necessary for the purpose. Deduct from the loading the amount of the coal used as dunnage, and it is conceded that the loading of the ship did not exceed her registered tonnage, and the jury have found that the excess beyond her registered tonnage was used as dunnage, and I have no doubt it was properly so used.

Beyond doubt the ship-owner in ballasting his chartered vessel may take freight-paying merchandise for the purpose, provided the merchandise occupies no more space than the ballast would have done if ordinary ballast had been used instead of merchandise paying freight, and I am of the opinion that the same rule should be applied in respect to the dunnage used in stowing the cargo. Such was also the opinion of the Supreme Court of Massachusetts in a suit between these same parties which arose out of an insurance on the same voyage.

Much discussion of the question is unnecessary, as the views which I entertain and the authorities to support them are very fully given in that opinion and in the opinion of the district judge, in which I also concur.


text: Talk:Insurance Company v. Thwing/Dissent Clifford


text: Watson v. Jones

title: Watson v. Jones


text: Talk:Watson v. Jones

title: Talk:Watson v. Jones