text:
United States v. Vallejo (63 U.S. 416)

THIS was an appeal from the District Court of the United States for the northern district of California. It was similar, in many of its circumstances, to the two preceding cases. The state of the title is set forth in the argument of the Attorney General.

It was argued by the Attorney General and Mr. Stanton for the United States, and by Mr. Phillips for the appellee.

The Attorney General thus explained the title:

This is a claim for a tract of land called Yulupa, containing three square leagues, more or less. The claim rests upon an alleged grant by Governor Micheltorena to Miguel Alvarado, dated November 23, 1844. The claim was rejected by the board, but confirmed by the District Court. In support of this claim, a paper, purporting to be a titulo is produced, signed, 'Manuel Micheltorena,' and attested by 'Francisco Arce, Secretary Int. It is accompanied by no expediente, nor any record evidence. No petition, reference, report, decree of concession, or other official act prior to the grant, appears. The attesting witness was not called. The only proof of execution is the testimony of Jos e de la Rosa as to the handwriting of Micheltorena and Arce. But another paper is produced by the claimant, bearing the names of Pico and Corvarubias, and purporting to be a certificate that he grant was confirmed on the 18th of February, 1845, by the Departmental Assembly. But there is no proof of the authenticity of this paper, save the testimony of Jos e de la Rosa as to the handwriting of Pico, the Governor, and Corvarubias, the attesting secretary. Neither of them was called.

The usual effort is made to supply the defect of legal proof by testimony of occupation and possession.

There is no expediente on file. The grant is not found in Jimeno's Index. The claim rests upon the production of two papers and proof of handwriting. It is not supported by any legal evidence requisite to establish a valid claim.

The following specific objections are made to confirmation:

1. No expediente or official record of the proceedings required by the Mexican laws in granting lands is produced, nor any record evidence whatever.

2. The law required the titulo to be authenticated by the secretary of the Department. Jimeno was the secretary; and if, from any cause, Arce acted as secretary ad interim, the fact should have been shown, and he should have been called to prove the execution of the instrument by the Governor.

3. Handwriting is secondary evidence, and competent only when, from the nature of the case, primary evidence by the attesting witness cannot be obtained.

4. The paper bearing the names of Pico and Corvarubias is nothing more than a private certificate by those persons. No proof is made as to when it was given, and it affords no evidence of the action of the Departmental Assembly, which should be shown by their own journal. The journal of the Assembly for 1845 shows no session on the 18th of February, 1845, the day that the certificate states the confirmation to have been made. If there was a session on that day, the fact might be, and should have been, proved.

5. If this grant were genuine, it would have appeared regularly numbered and entered in Jimeno's index, with a corresponding expediente, on file in the archives. It would also have been noted in the Toma de Razon of that year, but there is no mention of it. Every claimant is bound to establish his claim by legal proof, in conformity with the Mexican laws and usages in granting lands. The whole burden of proof is upon him; and unless that burden is fully discharged, he has no right to a decree of confirmation. The absence of an expediente, or any record evidence of the grant, is unaccounted for. No excuse is shown or ground laid for secondary evidence. The confirmation by the District Court affords no presumption in favor of the claim, for an appeal to the Supreme Court was allowed because of errors that might be committed in the court below; and this case was confirmed before any organized system of fabricating land grants in California had become known. Until the decree of the Supreme Court in Cambuston's case, very little regard was paid to the evidence offered in support of private land claims, and confirmations were made without scrutiny, and sometimes against the manifest impression of the court that the claim was fabricated and false.

For the reasons that have been mentioned, and apparent upon this record, it is submitted that the claim should not be confirmed.

Mr. Phillips stated the title and evidence as follows:

The present claimant derives his title under a deed of warranty in consideration of $3,000 from Miguel Alvarado, dated 20th February, 1849, for 'three sitios de ganado mayor, which I have granted to me by the Departmental Government of this territory, approved by the Assembly of the same.'

This deed is witnessed by Castenada and Salvador Vallejo, and is acknowledged before the alcalde on 22d February, 1849.

The title on which confirmation is rested is a grant from Micheltorena to Miguel Alvarado, dated at Monterey, 23d November, 1844.

In this formal grant the following facts are recited:

1. That Alvarado had solicited the land.

2. That the proper measures and examinations had been made.

3. That the land is shown by the map attached to the expediente.

4. That the intent was to confirm him in the ownership of the title, which he had obtained from the Senor director, &c., Don Mariano Vallejo.

If the court is satisfied that this grant is genuine, then these facts are established by their recital.

Besides the grant, there is the approval of the Departmental Assembly, signed by Pio Pico and Jos e M. Corvarubias.

These were produced as original documents, and the signatures of all the parties proved.

No objection can be made in this court that they were not proved by competent evidence.

'No objection shall be hereafter allowed to be taken to the admissibility of any deposition, deed, grant, or other exhibit found in the record as evidence, unless objection was taken in the court below, and entered of record.' (13th Rule.)

In addition to this proof of genuineness, we have the evidence of Caetano Juarez, who was the alcalde of the district, that he heard of the grant in 1844.

Salvador Vallejo testifies that, 'in 1844 or 1845, Miguel Alvarado made a petition to the Government for the rancho Yulupa, and received a grant for it; I knew of it at the time.'

Julio Carillo says he first heard of the grant, he 'thinks, in 1845; I heard of it from some of the neighbors, and he told me himself.'

Still stronger evidence as to the verity of this transaction is to be found in the proof of occupation and improvement.

Jos e de la Rosa: 'Miguel Alvarado first occupied it in 1843 or 1844. He had a house on it, and culitvated a small garden. He also had a corral on it, and over 100 cattle and horses. The house is still standing. In 1849, he sold it to General Vallejo, who has occupied it since with cattle and horses.'

Jasper O. Farrell: 'In 1847 or 1848, one Roulette held a mill site and a portion of red-wood land under M. G. Vallejo; in 1848 or 1849, to the best of my belief, I saw the mill-dam and mill built by him.'

Julio Carillo: Alvarado 'commenced the occupation thereof in 1842 or 1843. At this time he built a house on the place; a corral. He had cattle and horses on it; he had a small field enclosed; he continued to occupy the land until the time he sold to the present claimant, which, I believe, was in 1848 or 1849. The present claimant has since that time, and now does, occupy said land.'

Caetano Juarez: 'I have heard that Alvarado has had possession of it ever since (1844.) In 1845, he had a house and corral on the place.'

Salvador Vallejo: 'At that time Alvarado had possession (1844 or 1845.) Since that time I do not know who has had possession of it. I know Alvarado sold it.'

The genuineness of the title was established to the satisfaction of the board of commissioners, who rejected the claim, on the ground that the quantity of land was not sufficiently designated.

The decree of Judge Hoffman shows that this defect was cured by the evidence of other witnesses, 'whose testimony, taken on appeal, in our opinion, establishes the identity of the land granted to Alvarado, and removes the only objection urged to a confirmation of the claim.'

The absence of record evidence, either in the archives or in Jimeno's index, can amount to no more than cause of suspicion. It cannot of itself invalidate the title.

The attempt to raise the question as to the bona fides of the grant is condemned by the decision of this court.

'It has been urged, has grant is a fictitious one, &c. Our answer to this suggestion is, that no objection to the bona fides of the grant was taken before either of the tribunals below, where it should have been made, if relied on by the Government, so as to have given the complainants an opportunity to have met it. To permit it to be taken in the appellate court for the first time, where there is no opportunity for explanation, would be a surprise upon them of which they may justly complain.'

Larkin's case, 18 How., 561.

Mr. Phillips proceeded to argue that possession was the strongest proof of title, because title always followed possession without fee or reward being required. If there was possession and no title, it would be an exceptional case. We have proved possession in Alvarado from 1842-'43 to 1849, when he sold. This court must go by the record; four witnesses prove possession, and the United States do not deny this evidence. If the authority of the Governor be denied, the United States ought to show that he had no authority, and not require us to prove that it existed.

Mr. Stanton replied to the argument of possession, that if the grant was valid, the party would have had judicial possession. The law required this. Sometimes this court has excused the absence of judicial possession, as in Fremont's case; but there is no excuse here. The rule requiring a point to be taken below before it can be argued here, does not apply to these California cases.

Mr. Justice NELSON delivered the opinion of the court.

title: United States v. Vallejo (63 U.S. 416)


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1670

 SEVENTIETH CONGRESS. SEss. II. Cs. 706. 1929. 1619 For contr ol of biolog ic pro ducts, Publi c Healt h Serv ice, $ 30. For Quarantine Service, $32. For maintenance, hygienic laboratory, Public Health Service, 78 cents. For preventing the spread of epidemic diseases, $1,948 .15. For pay of assistant custodians and janitors, $90 .50. For general expenses of public buildings, $3 .10. For mechanical equipment for public buildings, $169 .97. For repairs and preservation ofppublic buildings, $10.82. For operating force for public buildings, $30. For operating supplies for public buildings, $369 .75. For furniture and repairs of same for public buildings, $60 .38. For vaults and safes for public buildings, $9. WAR DEPARTMENT For registration and selection for military service, $8 .70. For pay, and so forth, of the Army (longevity Act January 29, 1927), $50,340 .10. For pay, and so forth, of the Army, $67,850 .78. For pay of the Army, $8,325 .42. For pay, and so forth, of the Army (estates of deceased soldiers), $285,064 .21. For pay, and so forth, of the Army, war with Spain, $74 .39. For arrears of pay, bounty, and so forth, $4 .01. For mileage to officers and contract surgeons, $36 .44. For mileage of the Army, $202 .75. For increase of compensation, War Department, $581 .39. For increase of compensation, military establishment, $39,139 .44. For Army transportation, $4,075 .02. For barracks and quarters, $6,137.62. For clothing and equipage, $263 .81. For construction and repair of hospitals, $673 .75. For gene ral appro priat ions, Qua rterm aste r Cor ps, $ 73,67 5 .3 7. For horses for C avalry, Arti llery, Engine ers, a nd so forth, $5. 15 . For incidental expenses of the Army, $155.57. For regular supplies of the Army, $781 .71. For shooti ng gal leries and r anges, $100. For national security and defense, War Department, $49,496 .30. For subsistence of the Army, $73 .80. For supplies, services, and transportation, Quartermaster Corps, $54,798 .14 . For supplies, services, and transportation, Quartermaster Corps, Act June 15, 1917, $27,104 .79. For compensation for land and damages, Camp Knox, Ky ., $336 .53. For replacing medical supplies, $886.27. For Signal Service of the Army, $2,852 .56. For medical and hospital department, $3,461 .74. For engineer operations in the field, $112 .97. For ordnance stores and supplies, Act June 15, 1917, $10,250 .05. For o rdnanc e stor es and suppl ies, $ 38,212 .8 2. For manufacture of arms, $20 .13. For armament of fortifications, $6.41. For field artillery armament, $135 .63. For terminal storage and shipping buildings, $6,550 .63. For arming, equipping, and training the National Guard, Act May 22, 1928, $387 .94. For arming, equipping, and training the National Guard, $3,248 .41. For pay of the National Guard for armory drills, $21 .23. For civilian military training camps, $11 .51. War Department. Vol. 44, p. 1054. Vol. 40, p. 196. Vol. 40, p. 197. Ante, p.704. .

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text: Talk:United States v. Vallejo (63 U.S. 416)


text:
United States v. Vallejo (63 U.S. 416)/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the northern district of California.

The appellee, Vallejo, presented to the board of land commissioners a claim for three square leagues of land, known by the name of Yulupa, situate in the county of Sonoma, California, having derived his title from Miguel Alvarado, the original grantee.

The documentary evidence of the title is: 1st. A grant in due form, dated Monterey, 23d November, 1844, purporting to be signed by Micheltorena, Governor, and Francisco Arce. secretary, with a memorandum by the secretary: 'Note has been made of this title in the proper book;' and 2d. A certificate of approval by the Departmental Assembly, bearing date at the city of Los Angeles, 18th February, 1845, signed by Pio Pico, Governor, and Jose M. Corvarubias, secretary.

Neither the grant nor the certificate of approval has been found among the Mexican archives, nor the record of them upon any book of records. Both papers came from the hands of the claimant. The genuineness of the title depends upon proof of the official signatures, and some evidence of possession.

The board rejected the claim; but on appeal to the District Court, and the production of further proof of possession, that court affirmed it.

The case falls within the views of the court in the United States v. Teschmaker and others, decided this term.

Decree reversed, and the case remanded for further evidence.


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1671

 1620 SEVENTIETH CONGRESS. SEss. II. Cu. 706 . 1929 . For O rgani zed R eser ves, $61 .67. For Reserve Officers' Training Corps, $40 .02. For headstones for graves of soldiers, $51 .71. For National Home for Disabled Volunteer Soldiers, Central Bran ch, $21 .33. For National Home for Disabled Volunteer Soldiers, Northwest- ern Branch, $14.93. For Washington-Alaska military cable and telegraph system, $18 .33 . For Geological Survey (Interior transfer to War, Act May 21, 1920), $4,335.42. POST OFFI CE DEPAR TMENT Audited claims. (Out of th e post al rev enues) Post Office Depart. m Fo r con ting ent e xpens es, P ost Offic e Dep artm ent, teleg raphi ng, $35 .85. For balances due foreign countries, $4,927 .74. For city delivery carriers, $308 .74. For clerks, first and second class post offices, $836 .76. For compensation to assistant postmasters, $76 .66. For compensation to postmasters, $199 .51. For freight, express, or motor transportation of equipment, and so forth, $1 .30. For foreign mail transportation, $47 .68. For indemnities, domestic mail, $3,754 .43. For indemnities international registered mail $172 .80. For indemn ities, inter nation al mai l, $675 .27. For labor-saving devices, $6. For mail messenger service, $40 .99. For miscellaneous items, first and second class post offices, $31 .95. For personal or property damage, $592 .29. For post-office equipment and supplies, $8. For railro ad tra nsport ation and ma il mess enger servic e, $1, 064. 96 . For railway postal clerks, travel allowances, $45 .70. For rent, light, and fuel, $1,375 .50. For rural delivery service, $176 .98. For separating mails, $270 .06. For shipment of supplies, $20 .97. For special-delivery fees, $40 .56. For temporary clerk hire, $52 .18. For vehicle service, $41. For village delivery service, 90 cents. Additional to meet increases in rates of Total, audited claims, section 2, $939,092 .75, together with such exchange. additional sum due to increases in rates of exchange as may be neces- sary to pay claims in the foreign currency as specified in certain of the settlements of the General Accounting Office. AUDITED CLAIMS Payment of addi- tional. SEC. 3. That for the payment of the following claims, certified to be due by the General Accounting Office under appropriations the balances of which have been carried to the surplus fund under the vol .18, Cod e, P. 110 u. . io2 2 provisions of section 5 of the Act of June 20, 1874 (U . S . C. .S. P . > p. 1022, sec. 713), and under appropriations heretofore treated as permanent, being for the service of the fiscal year 1926 and prior years, unless otherwise stated, and which have been certified to u sCo ap.43. Congress under section 2 of the Act of July 7, 1884 (U. S. C., p. 43, sec 266) as fully set forth in Senate Document Numbered 195, Seventieth Congress, there is appropriated as follows

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text:
United States v. White

 * United States v. White (64 U.S. 249), (  15 L.Ed.     560 ), (  23 How.   249 )
 * United States v. White (322 U.S. 694), ( 88 L.Ed.    1542 ), (  64 S.Ct. 1248 )
 * United States v. White (401 U.S. 745), ( 28 L.Ed.2d   453 ), (  91 S.Ct. 1122 )
 * United States v. White (??? U.S. ???), ( ?? L.Ed.     ??? ), (  ?? S.Ct.  ??? )
 * United States v. White (??? U.S. ???), ( ?? L.Ed.     ??? ), (  ?? S.Ct.  ??? )

 * listing incomplete

 * See Similar:
 * White v. United States (Disambiguation)

title: United States v. White


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1672

 SEVENTIETH CONGRESS. SEss. II. CII. 706. 1929 . 1621 INDEPENDENT OiICES For housing for war needs, $1,782. For salaries, General Accounting Office, $7 .50. For salaries and expenses, Board of Tax Appeals, $3. For increase of compensation, Veterans' Bureau, $1,071 .33. For salar ies an d expe nses, Vetera ns' Bu reau, $ 322 .5 5. For vocational rehabilitation, Veterans' Bureau, $1,538 .68. DEP ART MENT OF AG RIC ULT URE For genera l expe nses, Forest Servi ce, $30 9 .22. cuDtepe tment of Agri. For general expenses, Bureau of Agricultural Economics, $12 .18. For salaries and expenses, Federal Horticultural Board, $3 .21. DEPARTMENT OF COMMERCE For district and cooperative office service, Department of Com- m DCe artment of Com- merce, $6.58. For inves tigati ng min e acci dents, $126 .5 7. DEPARTMENT OF INTERIOR For Geological Survey, $42. For Wind Cave National Park, $30. For Army pensions, $155. For relieving distress and prevention, and so forth, of diseases among Indians, $18. For Indian schools, support, $130.72. For support and civilization of Indians, $189. For support of Indians in California, $2 .63. DEPARTME NT OF JU STICE For salaries, fees, and expenses of marshals, United States courts, t, apartment of Jus- $1295.73 . For salaries and expenses, district attorneys, $111 .83. For salaries and expenses of clerks, United States courts, $4,293 .00. DEPARTMENT OF LABOR For miscellaneous expenses, Bureau of Naturalization, $1. Fo r sala ries a nd exp enses, Commi ssione rs of C oncili ation, $4 .5 0. For general expenses, Children's Bureau, $6 .05. For expenses of regulating immigration $281 .64. For miscellaneous expenses, Bureau of Labor Statistics, $1 .90. NAVY DEPARTMENT Independent offices. Interior Department . DepartmentofLabor. For pay, miscellaneous, $43 .81. Navy Department. For increase of compensation, Naval Establishment, $1 .74. For transportation, Bureau of Navigation, $295 .03. For engineering, Bureau of Engineering, $42. For pay of the Navy, $2,626 .11. For provisions, Navy, Bureau of Supplies and Accounts, $75 .11. For maintenance, Bureau of Supplies and Accounts, $81 .29. For freight, Bureau of Supplies and Accounts, $62 .93. Fo r avia tion, Navy, $5,657 .5 0. For pay, Marine Corps, $166 .61. For general expenses, Marine Corps, $132 .73. For maintenance, Quartermaster's Department, Marine Corps, $243 .48 . For scr apping of na val ve ssels, $3,59 0 .76.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1673

 Department of State. 1622 SEVENTIETH C ONGRESS. SEss. II. CH. 706. 1929. For Air Service, Army (War transfer to Navy Act May 21, 1920), $5,657 .50. DEPARTMENT OF STATE For contingent expenses, United States consulates, $101 .26. For water boundary, United States and Mexico, $6 .68. TRE ASUR Y DE PAR TMEN T War Department. Vol. 44, p. 1054. Post Office Depart- ment. Treasury Depart- For con ting ent exp ense s, T reas ury Dep artm ent, mis cell ane ous meat. items, $57.33. For stationery, Treasury Department, $1 .50. For collecting the revenue from customs, $2 .56. For enforcement of Narcotic and National Prohibition Acts, $295.08 . For Coast Guard, $50. For re pairs to Coa st Gua rd ves sels, $384 .15. For re pairs to Coa st Gua rd cut ters, $345 .12. For pay of personnel and maintenance of hospitals, Public Health Service, $10 .04. WAR DEPARTMENT For Army War College, $210 .97. For pay, and so forth, of the Army (longevity Act January 29, 1927), $78,330 .22. For pay, and so forth, of the Army, $7,569 .96. For pay of the Army, $1,206 .90. For increase of compensation, War Department, $50 .60. For increase of compensation, Military Establishment, $5,873 .64. For Army transportation, $405 .33. For barracks and quarters, $2,660. For clothing and equipage, $18 .04. For general appropriations, Quartermaster Corps, $33,734 .79. For regular supplies of -the Army $51 .78. For supplies, services, and transportation, Quartermaster Corps, $11,049 .37. For replacing ordnance and ordnance stores, $193 .91. For supplies for seacoast defenses, 13 cents. For Ordnance Service, $2 .15. For ordnance stores, ammunition, $92 .03. For armament of fortifications, $155 .57. For field artillery armament, $41 .35. For proving grounds, Army, $79 .64. For terminal storage and shipping buildings, $3. For arm ing, e quippi ng, an d trai ning t he Nati onal G uard, $4,413 .5 9. For arms, uniforms, and equipment for field service, National Guard, $1,267 .91. For organized reserves, $103 .54. PO ST OFFICE DEPARTMENT-POSTAL SERVICE (Out of the postal revenues) For indemnities, domestic mail, $645 .77. For indemnities, international registered mail, $9 .65. For ind emniti es, in ternat ional mail, $182. 30 . For railroad transportation, $109 .74. For rent, light, and fuel, $120. For rural delivery service, $35 .06. For vehicle service, $77 .45.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1674

 SEVENTIETH CONGRESS. SEss. II. Cns. 706, 707. 1929 . 1623 Total, audited claims, section 3, $180,371 .43, together with such in Addi tion l to meet in rates of additional sum due to increases in rates of exchange as may be nec- exchange. essary to pay claims in the foreign currency as specified in certain of the settlements of the General Accounting Office. SEC. 4. For the payment of claims allowed by the General Account- ce slalorma lymasa i l: ing Office under the provisions of Private Act N umbere d 47 6, loved: 44, p. 1828. approved March 3, 1927 (44 Stat ., pt. 3, p . 1828), and certified to the Seventieth Congress, in House Document Numbered 461, $69 .33. SEC. 5 . For the payment of the claim allowed by the General Pan yment k ray. Accounting Office under the provisions of Private Act Numbered Post, p. 2024. 279, approved May 29, 1928 (45 Stat ., pt. 2, p . 324), and certified to the Seventieth Congress, in Senate Document Numbered 196, $3,000 . SEC. 6. This Act may be cited as the " First Deficiency Act, fiscal year 1929 ." Approved, March 4, 1929. CHAP. 707 .-An Act Making appropriations to supply deficiencies in certain appropriations for the fiscal year ending June 30, 1929, and prior fiscal years, to provide supplemental appropriations for the fiscal years ending June 30, 1929, and June 30, 1930, and for other purposes. Be it enacted by the Senate and Howe o f Representatives o f the United States o f America in Congress assembled, That the following sums are appropriated, out of any money in the Treasury not other- w ise appr opri ated, to sup ply defi cien cies in cert ain appr opri atio ns for the fiscal year ending June 30, 1929, and prior fiscal years, to provide supplemental appropriations for the fiscal y ears e nding June 30, 1929, and June 30, 1930, and for other purposes, namely TITLE I LEGISLATIVE SENATE To pay William A. Folger for extra and expert services rendered the Committee on Pensions during the second session of the Seven- tieth Congress as assistant clerk to said committee, by detail from the Bureau of Pensions, fiscal year 1929, $1,200. For payment to Guy E. Ives for services rendered the Senate and committees thereof, fiscal year 1929, $600. HOUSE OF REPRESENTATIVES March 4, 1929. [H. R. 17223.] [Public, No. 1035.] Second Deficiency Act, 1929. S enate. William A. Folger. Services. Guy E. Ives. Services. House of Representa- tives. To pay the father of Charles L. Faust, late a Representative from Charles L. Faust. the State of Missouri, $10,000. Pay to father. To pay the widow of Edward J. King, late a Representative from Edward J. King. the State of Illinois, $10,000. Pay to widow. To pay the widow of William A. Oldfield, late a Representative William A. Oldfield. from the State of Arkansas, $10,000. Pay to widow. To pay the widow of John Jacob Rogers, late a Representative John Jacob Rogers. from the State of Massachusetts, $7,472 .22. Pay to widow. The four preceding appropriations shall be disbursed by the Ser- gea nt at Arms of the House. Contested-election expenses : For payment to James M. Beck for Con tes ted election expenses. expenses incurred in defense of his right to a seat in the House of James M. Beck. Representatives, as audited and recommended by the Committee on Elections Numbered 2, $2,000. For payment to Conrad G. Selvig for expenses incurred as con- Conrad G. selvig. testee in the contested-election case of Wefald against Selvig, as audited and recommended by the Committee on Elections Numbered 2,$1,000.

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text: Thompson v. Roe

title: Thompson v. Roe


text: Talk:Thompson v. Roe

title: Talk:Thompson v. Roe


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1675

 1624 SEVENTIETH CONGRESS. SEss. II. Cir. 707. 1929 . For pay ment to Evere tt Kent for ex penses incurr ed in presenti ng the case against the right of James M. Beck to a seat in the House of Representatives, as audited and recommended by the Committee on Elections Numbered 2, $422 .33. The three preceding appropriations shall be disbursed by the Clerk of the House. Committee on Agri- Committee on Agriculture : Those members of the Committee on culture. Members elect of71st Agriculture of the House of Representatives of the Seventieth Con- Congress authorized to ress who are Members elect to the Sevent y-first Congress, or a hold meetings, employ g experts, etc ., to gather majority of them, after March 4, 1929, and until the meeting of the information in prepara- tion of bills for farm first session of the Seventy-first Congress are authorized, by subcom- re lief. mittee or otherwise, to hold such hearings and to sit at such times and places within the United States, to employ such expert, clerical, and stenographic services, and to gather such information, through Government agents or otherwise, as to them may seem fit in the preparation of a bill or bills for farm relief ; and they are authorized to have such printing and binding done (notwithstanding any limita- tion in existing law as to number of copies of any document) and to incur such ot her expenses as may be deem ed necessary ; all su ch exp enses (except for printing and binding, which shall b e charged to the appropriation for printing and binding for Congress), not to exceed $2,500 to be paid out of the Contingent Fund of the House on the usual vouchers approved as now provided by law. Joint Committee on JOINT COMMITTEE ON PRINTING Printing. to YCongressional Direc - Fo Fo r e xp eeiin compilin,preparing pre and i ndexg th the C ongres - si ona sional Direfor the first session of the Seventy-first Congress, $800, one half to be disbursed by the Secretary of the Senate and the other half to be disbursed by the Clerk of the House. ARCHITECT OF THE CAPITOL Capitol Buildings : For necessary expenditures for the Capitol Building under the jurisdiction of the Architect of the Capitol, including the same objects specified under this head in the Legis- lative Appropriation Act for the fiscal year 1929, to cover the purchase and installation of incinerators, $2,500. Everett Kent. Architect of the Cap- itol. Capitol buildings. Incinerators. Ante, p. 525. Library of Congress. Printing and bind- ing, Bienn ial In dex o f State legislation. Vol. 44, p.1066. U.S. Code, Supp.I, p.4. Gov ern men t Print- ing Office. Samuel Robinson, Willia m Madden, Jo- seph De Fontes, a nd Preston L. George. Congressional Rec. ord. Additional cata- loguer. LIBRARY OF CON GRESS Printing and binding : For printing and binding the indexes and digests of State legislation required to be prepared by the Act of February 10, 1927 (U . S . C ., Supp. I, p. 4, sets . 164, 165), fiscal years 1929 and 1930, $5,000. GOV ERNMENT P RINTING OFFICE To pay Samuel Robinson, William Madden, Joseph De Fontes, and Preston L. George, messengers on night duty during the second session of the Seventieth Congress, $900 each, fiscal year 1929, $3,600. The appropriations " Public printing and binding, Government Printing Office, 1929," and " Public printing and binding, Govern- ment Printing Office, 1930," are hereby made available for the em- ployment of one additional cataloguer, at $5 per diem, to prepare, under the direction of the Joint Committee on Printing, the semi- monthly and session indexes of the Congressional Record for the first sessio n of t he Seve nty-fir st Con gress.

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text:
Thompson v. Roe/Opinion of the Court

THIS case was brought up by writ of error from the Circuit Court of the United States for the District of Columbia.

The facts of the case and instruction given by the Circuit Court are stated in the opinion of the court.

It was argued by Mr. Carlisle, upon a brief filed by himself and Mr. Badger, for the plaintiffs in error, who claimed under the tax title, and Mr. Brent and Mr. Tyler for the defendants, upon which side there was also a brief by Mr. Marbury and Mr. Redin.

Those parts of the arguments upon both sides which relate to the construction of the charter of 1820, and the subsequent act of 1824, will be noticed, omitting all those which referred to the ordinances of the corporation. It was agreed that the last charter of the city in 1848 had nothing to do with this case, the sale having been made in 1835.

Mr. Carlisle gave the following construction to the charter of 1820 and act of 1824:

1. By the 10th section of the charter of 1820, (3 Stat., 589,) 'real property, whether improved or unimproved,' might be sold for taxes. The only restriction was in the proviso (p. 590) 'that no sale shall be made, in pursuance of this section, of any improved property whereon there is personal property of sufficient value to pay the said taxes.'

By the 12th section, (p. 590,) power is given to collect taxes by 'distress and sale of the goods and chattels of the person chargeable therewith.'

Both these sections contemplated that the property should be assessed to the true owner. The 10th section distinguished, in the term of notice required, between resident and non-resident owners. The 12th section subjected to the payment of taxes the 'goods and chattels of the person chargeable therewith.'

No person could be 'chargeable' with the taxes, except by their being assessed to him. The corporation charged by assessment.

These provisions were found to be practically inefficient for the collection of taxes. It was absolutely necessary that the corporation should be relieved from the duty of ascertaining the true owner, and assessing the land to him. Accordingly, the act of Congress of 1824, (4 Stat., 75,) supplementary and amendatory to the act of 1820, was passed.

By its 1st section, the provisions of the act of 1820, so far as 'inconsistent with the provisions of this act,' are repealed.

By its 2d section, it is provided that 'no sale of real property for taxes, hereafter made, shall be impaired or made void by reason of such property not being assessed or advertised in the name or names of the lawful owner or owners there of.'

The same section abolished the distinction between residents and non-residents, in respect to the advertisement, and prescribed a uniform term in all cases, irrespective of ownership.

The provisions of the act of 1820, requiring the corporation to ascertain the person chargeable with the taxes, was inconsistent with the provision of the act of 1824, which made it unnecessary to assess the property to the 'lawful owner or owners thereof,' and therefore the former were repealed.

For it cannot be maintained that a mere stranger, having no interest in the land, could be chargeable personally with the taxes, so as to subject his goods and chattels to distress. And yet the land might be assessed to such person, (e. g., a former owner,) and advertised in his name; and the real owner might be wholly unknown, and the sale of the land would not 'be impaired or made void thereby.'

The effect of the act of 1824 was to authorize the corporation to proceed in rem, the tax being assessable directly and exclusively upon the lands, and not to any person.

This is understood to be the construction upon which this court proceeded in Holroyd v. Pumphrey, (18 Howard, 69.) There the Circuit Court of this District had holden the tax sale void, because the property was assessed to a dead man, it having been, for previous years, assessed upon the books of the corporation to his heirs. This court reversed the judgment, declaring, in effect, that under the charter of 1824 it was immaterial to what person, or whether to any existing person, the land was assessed.

It would seem to be hardly defensible to assert, that there being but one assessment-and that being sufficient to pass the land, irrespective of the true ownership-there is, nevertheless, to be imputed to the corporation another assessment, ascertaining 'the person chargeable' with the taxes, so as to compel a resort to the personalty, or otherwise to avoid the sale.

This view may be further illustrated by the case of Mason v. Fearson, referred to in the opposite brief. There it was held, in effect, that if A, owning fifty lots, and having them all assessed to him, sell and convey forty-nine of them, but the whole fifty remain assessed to him, one lot (and it may be the only one belonging to him) must be sold for the taxes on the whole. But if the doctrine of the court below be right, it would seem to follow, that in order to make the sale of such a lot valid, the personal property of the owner must first be exhausted by distress, thus making him personally chargeable with the taxes on all the lots assessed to him.

2. This view of the question, founded mainly upon the amended charter of 1824, is wholly disregarded by the brief on the other side, which merely remarks that the act of 1824 'makes some changes in the charter of 1820, but not necessary to be noticed.' In our apprehension, these changes are conclusive of the matter, even if, by the true construction of the charter of 1820, it was imperative that recourse should be first had to the goods and chattels of the owner.

But was such primary recourse required by the act of 1820 itself?

It is submitted that it was not. Nor, in the multitude of tax titles which have been tried in the court below, was the point ever suggested until the present case in 1857.

The whole argument in its support depends upon the assumption that the language of the 12th section, declaring that 'the person or persons appointed to collect,' &c., 'shall have authority to collect the same by distress and sale of the goods and chattels of the person chargeable therewith,' is mandatory upon the corporation, requiring a distress in all instances. This is assumed because of the well-settled law, that, in certain cases, the word 'may,' and other equivalent expressions, will be construed 'must,' in order to give effect to the intention of the Legislature, as in Mason v. Fearson.

But is this such a case?

In Mason v. Fearson, the charter had provided for the sale of one lot to pay the taxes on all; and this court held that the corporation was bound to exercise the power so conferred, and that, the first two lots having produced more than enough to pay the taxes on the whole, the subsequent sales were void. This is not at all analogous to the present case, which is that of the express grant of co-ordinate remedies, to be exercised optionally. The sale of one lot for the taxes due on all those owned by the same person, instead of unnecessarily selling them all, each for its own taxes, is manifestly for the benefit of the owner. But is it manifestly for his benefit that the summary remedy of a distress warrant shall be applied to his household furniture, rather than that a vacant lot lying in commons shall be sold?

The exemption clause in the bankrupt act of 1841, and the homestead and exemption acts in the States, indicate a pre vailing idea to the contrary; and no stronger individual case can be put for illustration than that of the venerable gentleman who owned this property in 1835.

This precise matter has been adjudicated by the Supreme Court of New Jersey, in the case of Martin v. Carron, 2 Dutcher, 230. There the clauses in the charter of Newark were identical with those in this charter of 1820. This same objection was taken. But the court held that 'the remedies are co-ordinate. It is not necessary that the goods and chattels of the owner or occupant of the lot be exhausted before proceeding against the land.'

Martin v. Carron, 2 Dutch., 230.

Mr. Marbury and Mr. Redin, for the defendants in error, contended that, under the tenth and twelfth sections of the charter of 1820, there is no discretion in the corporation or collector; but that it is mandatory upon them, under the provisions of that act, first to take the personal property of the owner, possessed by him within the corporation, for taxes claimed, before resorting to his real estate.

The tenth and twelfth sections of the charter of 1820 relate to the same subject, and must be taken together. The tenth section (which authorizes the sale of real property) is not independent, but must be construed in connection with the twelfth section (which provides for the seizure and sale of the goods of the owner;) and thus taken and construed, the two sections mean, that if the owner of the real property has personal property upon the premises, or anywhere else in his possession within the corporate limits, sufficient to pay the taxes claimed, it shall be taken for them, and the real property, whether improved or unimproved, saved from sale therefor. The taxes to be collected were those which should be 'imposed by virtue of the powers granted by the act.' The taxes which the act authorized to be imposed were taxes on unimproved as well as improved lots. And all the taxes so imposed, on all descriptions of property, were, by the terms of the act, to be collected out of the goods of the persons chargeable with the tax; 'the person appointed to collect any tax imposed by virtue of the powers granted by this act shall have authority to collect the same by distress and sale of the goods and chattels of the person chargeable therewith.' If he had goods upon the property on which the tax was imposed, they were to be taken there. If he had no goods thereon, but possessed them elsewhere within the corporate limits, it was not meant that the real property upon which the tax was imposed should be sold, but that such goods should be taken wherever they were found in his possession within the jurisdiction of the corporation. It is the same as to both descriptions of property, improved and unimproved: taxes are imposed equally upon both, 'by virtue of the same act;' and are, as to both, to be alike collected in the same way, out of the goods of the person chargeable with the tax. The real property might be resorted to in the contingency of there being no personal property; but not 'until all the other means of collection, prescribed in the act, had been tried, and failed.' The twelfth section may be read as a further proviso to the previous tenth section; and the third proviso of the tenth section, as to improved property, may be considered to have been inserted merely from abundance of caution as to that particular description of property, and not as any restriction upon the duty required by the twelfth section, viz: to take goods for all taxes imposed by virtue of the act, wherever the party possessed them within the corporate limits. The twelfth section of itself was sufficient to protect both descriptions of property, improved as well as unimproved. This construction produces harmony, and protects all the real property from sale, where the owner possessed personal property sufficient for the taxes claimed within the corporation, which the collector could find, and which, when taken, would be protected from replevin by the last clause of the twelfth section. It effects, it is submitted, the intent, and secures the rights of all parties, the corporation as well as the citizen; whereas a contrary construction, limiting the protection from sale to the improved property only, would leave the unimproved exposed, although the owner might have abundant personal property for all the taxes claimed, and would violate the intent.

Similar sections of the act of Congress of the 14th of July, 1798, to lay and collect a direct tax, were thus placed together and construed by this court, in the case of Parker v. Rule's Lessee, 9 Cra., 67. The thirteenth section of that act, which authorized the sale of lands, was held not to be independent of the ninth and eleventh sections of the same act, which provided for the publication of certain notices previous to the distress and sale of goods; but that, 'taking the whole statute together, and looking to the policy required,' and the obvious 'solicitude to collect the tax by distress and sale of personal property, rather than by a sale of the land itself,' the thirteenth section was construed in subordination to the direction to distrain and sell personal property contained in the ninth and eleventh sections, and the notices required by those sections, before such distress could be made, not having been given, the sale made of the land, under the thirteenth section, was declared void; the Chief Justice holding the language above quoted, that 'all the means of collection prescribed by the act must have been tried, and must have failed, before a sale of the land can be made.'

The solicitude expressed by the court runs through all our decisions and legislation; not only is it manifested in the act of Congress of 1798, but also in the legislation of Maryland existing at the time this District was laid out, whose tax acts contained a similar section to the twelfth section of the charter of 1820. So did the first charter in 1802, and, from abundance of caution, a prohibition against the sale of unimproved lots for taxes. The policy of the law has ever been to make the personal estate the primary fund for the payment of debts, and especially of encumbrances and charges for taxes. The authorities are numerous; but in addition to Parker and Rule's Lessee, and the act of Congress of 1798, reference is merely made to Blackwell on Tax Titles, pages 205, 209, 213; 12 Ala. Rep., 617; Scales v. Avis, the Tax Acts of Maryland, 1785, chap. 83, sec. 8; 1797, chap. 90, sec. 1; and 2 Gill and John., 376, Mayor of Baltimore v. Chase-all going to establish that personal property must be resorted to before the real estate.

In the case at bar, the lot was unimproved, and the owner at the time of the sale, and at all times, possessed abundant personal property. The fact that he had such was known to the corporation and its officers; the quantity, value, and description, and the particular locality where to be found, being all entered upon their own books. The fact that he possessed such, and that the collector could have taken it, is found by the jury.

'Taking the whole statute together,' therefore, and 'looking to the policy required,' the duty to take such personal property, and abstain from the sale of the unimproved real property, was imperative and mandatory upon the corporation and collector, under the provisions of this charter of 1820.

Mason v. Fearson, 9 Howard, is a direct authority in support of the view that it was mandatory. The duty, if not precisely the same, was of the same character in both cases, and the words are equivalent. In the act of 1824, they are, (sec. 4,) 'it shall be lawful for the corporation, where several lots are assessed to the same person, to sell one or more for the taxes and expenses due on the whole.' In the charter of 1820, (sec. 12,) the person appointed to collect any tax 'shall have authority to collect the same by distress and sale of the goods and chattels of the person chargeable therewith.'Upon these sections ten and twelve, then, of the charter of 1820 alone, and independent of the corporation ordinance of July, 1824, we submit that it was imperative first to take the personal property possessed by Mr. Carroll at the time of the sale; and that there was no discretion, in corporation or collector, first to resort to the unimproved real estate.

Mr. Brent, upon the same side made, the following point upon this branch of the case:

First Point. The act of 1820, ch., 104, sec. 10, (3 Stat. at Large, p. 589,) gives the corporation of Washington no power to sell real estate until after two years' taxes are due and in arrear, but no such limitation is found in regard to the liability of personal property for taxes, which may be distrained on and sold the moment they are assessed, and upon ten days' notice, according to the 12th section of this act.

The 7th section of the act of 1820 authorizes the corporation 'to lay and collect taxes upon the real and personal property within the city.'

It is therefore clear that Congress looked to the personal property of the debtor as the primary fund for the immediate and available revenues of the city, and to the realty as only secondarily or ultimately chargeable.

The power to collect taxes by distress on the goods, &c., is compulsory, and not optional, on the part of the city.

Mason v. Fearson, 9 How., 248.

Parker v. Rule, 9 Cranch, 67.

The only difficulty is occasioned by the third proviso of the 10th section of the act of 1820, which forbids a sale of improved property, whereon there is personal property sufficient to pay the taxes.

An argument is based on this proviso, to the effect that recourse need not be had to personal property, primarily, except where it is found on improved real estate; but we consider this proviso as merely designed to subject primarily all personal property on the real estate, irrespective of its ownership.

It might happen that the owner of the improved real estate had no personal effects liable to distress and sale, and hence the legislative purpose to subject personal effects of the tenant or a stranger found on the improved real estate, primarily, to the payment of the taxes, and in exoneration of the real estate.

This proviso, in connection with the 12th section of the same act, manifestly shows that quoad taxes on real estate, if improved, the personal effects (even of a stranger) found on the premises were to be considered as the goods, &c., of a 'person chargeable with said taxes.'

But if we are wrong in the construction of the act of 1820, we maintain that the proviso in the 8th section of the act of 1824, chapter 195, (4 Statutes at Large, p. 77,) runs through all the tax sales referred to in the law, because there is no reason for a distinction in tax sales in Georgetown, Alexandria, and Washington, and the principle of primary resort to personal property of 'the owner or tenant' equally applies to all tax sales in any city. This view is confirmed by the confused and irregular manner in which the sections and clauses of this act are interwoven, without reference to order or division of subject matter.

But, be this as it may, the corporation of Washington had the right of pursuing, at its election, either the remedy by distress or by sale of unimproved real estate, and this is held on the authority of the adverse case cited on the other side.

Martin v. Carson, 2 Dutcher Rep., 228.

The ordinance of 3d July, 1824, (Rothwell's Laws, p. 169,) is a conclusive election by the city to require the collector to exhaust the personal effects of debtors before selling the real estate.

This ordinance is conclusive to show a want of authority on the part of the collector who made the sale.

Mr. Justice GRIER delivered the opinion of the court.

The lessors of the plaintiffs below claim to recover a lot of ground in the city of Washington, the title to which was admitted to have been in their ancestor in 1835. In that year it was sold for taxes by the corporate authorities. The plaintiffs in error claim through mesne conveyances of the tax title.

The lot in question was assessed as vacant and unimproved; but the owner, Mr. Carroll, resided in Washington city. He owned a large number of unimproved lots, the taxes on which amounted to $5,690. He had personal property in and about his house, estimated at between five and six thousand dollars.

On the trial, but a single defect was alleged against the tax title, which raised the question, 'Whether, upon the true construction of the charter of 1820, as amended by the act of 1824, it was a condition to the validity of the sale of unimproved lands for taxes, that the personal estate of the owner should have been previously exhausted by distress.'

The court instructed the jury: 'That if Carroll resided within the limits of the corporation of Washington, and had in his possession personal property sufficient to pay all taxes due by him, which might have been seized and subjected to distress and sale, it was the duty of the corporation, through their collector, to resort first to such personal property; which not being done, the sale of the lot in question was illegal and void.'

The correctness of this instruction is the only question presented by the record for our consideration.

The authority granted to the city and the mode of its exercise is to be found in the 10th section of the act 'to incorporate the city of Washington,' passed on the 15th of May, 1820. It provides 'that real property, whether improved or unimproved, on which two or more years' taxes shall have remained unpaid, may be sold at public sale, to satisfy the corporation therefor;' with this proviso, that no sale 'shall be made in pursuance of this section of any improved property, whereon there is personal property of sufficient value to pay the taxes,' &c.

It is the obvious intent of this law, that the thing or property shall be held liable for the tax assessed upon it, and that the tax is a lien in rem, which may be sold to satisfy it. It seems to assume, also, that the property should be assessed to some person as owner, for it provided for a longer or shorter notice by advertisement, according to the residence of the owner, whether in or out of the District or of the United States. Where the owner is out of the jurisdiction of the corporation, the assessment can impose no personal liability on him. But where he resides in the city, he may be considered as personally liable for the taxes assessed against his property, and 'charged to him;' and though not liable to an action of debt, the 12th section of the act provides an additional remedy for the corporation. Besides that of proceeding in rem, under the provisions of the 10th section, it enacts that 'the person or persons appointed to collect any tax imposed by virtue of the powers granted by this act shall have authority to collect the same by distress and sale of the goods and chattels of the person chargeable therewith, &c.

The act of May 26th, 1824, which modifies and changes some of the provisions of this act, provides, among other things, 'that no sale for taxes shall be void by reason of such property not being assessed or advertised in the name of the lawful owner.'

Without inquiring whether this act repeals the 12th section of the previous act by implication, it shows plainly that the property assessed is considered as primarily liable for the tax, without regard to ownership. But assuming that the owner, residing in Washington, is still personally liable for taxes assessed on his unimproved lots, there is nothing to be found in this law that, by any fair construction, requires that the remedy against the person must be exhausted before that against the property charged with the tax can be resorted to. It is not necessary to the validity of the assessment and sale of the property taxed, that the name of the true owner be ascertained. The collector, therefore, cannot be bound to search for him, or to distrain the personal property of one who may or may not be the owner, even when named as such in his assessment list.

The remedy given by the twelfth section to the corporation is co-ordinate or cumulative, but is not imperative as a condition precedent to the exercise of the authority to sell the property assessed. It is a power conferred on the officer, to be used at his discretion-not a favor to the owner. If he is unable to pay the taxes assessed on his property, it may not be a very desirable measure for him to have his household furniture distrained and sold on ten days' notice, when the remedy against his land cannot be pursued till two years' taxes are due and unpaid; and the owner has then two years more to redeem his land after the sale. A construction of this act, which made it the imperative duty of the collector to distrain the personal property, might be ruinous to the proprietor, and deprive him of an important privilege.

The city of Washington was laid out on an immense scale. But a very small portion of the lots and squares were improved or productive. Their value to the owners was, in a great measure, prospective, while the present burden of taxes, to those who owned large numbers of them, was oppressive. As we see in the present case, if the collector had levied on the personal property of the owner for the taxes charged on his vacant and unproductive lots, it would have left him without furniture in his house, or servant to wait on him. Hence, a four years' delay was to him a valuable privilege. It demonstrates, too, the evident policy of the act of Congress is not compelling a sale of the owner's personal property before the lands charged could be sold. In Georgetown and Alexandria, old-charged towns, where the lots were nearly all improved, and yielding profit to the owners, the statute adopted a different policy. By the proviso to the eighth section of the act of 1824, which applies exclusively to those towns, the collector is not permitted to sell real property where the owner charged with the tax has sufficient personal estate, out of which to enforce the collection of the debt due.

The case of Mason v. Fearson (9 How., 248) has been urged in the argument as an example of the construction of this statute, which should be followed in this case, and where the word may is construed to mean must. But that case has no analogy to the present. It is only where it is necessary to give effect to the clear policy and intention of the Legislature, that such a liberty can be taken with the plain words of a statute. But there is nothing in the letter, spirit, or policy, of this act, which requires us to put a forced construction on its language, or interpolate a provision not to be found therein.

In this case, the owners of the tax title have had the possession, paid the taxes, built and made valuable improvements on the lot, in the presence of the former owners, for near twenty years. That which was of comparatively small value at first, has now become valuable. Under such circumstances, a court of justice should be unwilling to exercise any judicial ingenuity to forfeit even a tax title, where the former owners have been so slow to question its validity.

The counsel for the appellees have endeavored to support this instruction of the court, by a reference to certain ordinances of the corporation, which, among other things, direct the collector to levy first on the personal property of the person charged with the tax, unless such person shall give consent in writing to the contrary. This direction to the collector is a very proper one. It leaves the election of this remedy to the person charged, and not to the officer. But the power to sell the lands for taxes is to be found in the acts of Congress, not in the ordinances of the corporation. They can neither increase nor vary it, nor impose any terms or conditions, (such as evidence of the owner's election,) which can affect the validity of a sale made within the authority conferred by the statute.

The purchaser of a tax title is not bound to inquire further than to know that the sale has been made according to the provisions of the statute which authorized it. The instructions or directions given by the corporation to their officers may be right and proper, and may justly be presumed to have been followed; but the observance or non-observance of them cannot have the effect of conditions to affect the validity of the title.

The question argued by the counsel of appellees, again bringing up the endless controversy as to the terminus a quo, in the computation of time, and which was noticed by this court in the case of Griffith v. Bogert, (18 How., 162,) is not in the case as presented by the record, and we cannot anticipate its decision.

Judgment reversed, and venire de novo.

title: Thompson v. Roe/Opinion of the Court


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1676

 SEVENTIETH C ONGRESS. SEss. II. C H. 707. 1929 . EXECUTIVE Executive Mansion : For the care, maintenance, protection, and repair of the premises known as Mount Weather, in the counties of Loudoun and Clarke, in the State of Virginia, comprising approximately eighty-four and eighty-one one-hundredths acres of land, including buildings and other improvements thereon and all machinery, tools, equipment, and supplies used or for use in connec- tion therewith, and including the alteration, refurnishing, improve- ment, heating, lighting, electric power and fixtures for buildings and grounds, and including traveling expenses, to be expended, in the discretion of the President, by contract or otherwise as he may determine, fiscal years 1929 and 1930, $48,000 : Provided, That the care, custody, maintenance, and alteration of the premises are hereby transferred from the Secretary of Agriculture to the Director of Public Buildings and Public Parks of the National Capital : Pro- vided further, That $2,000 of the appropriation " Salaries and expenses, Weat her Bureau, 1930," shall be transferred to this appro- priation : Provided further, That the Act entitled "An Act author- izing the Secretary of Agriculture to sell the Weather Bureau station known as Mount Weather, in the counties of Loudoun and Clarke, in the State of Virginia," approved March 13, 1928 (45 Stat., p . 311), is hereby repealed. Protection of interests of United States in leases on oil lands in former naval reserves : For expenses arising in connection with carrying into effect the public resolution entitled " Joint resolution directing the President to institute and prosecute suits to cancel certain leases of oil lands and incidental contracts, and for other purposes," approved February 8, 1924 (43 Stat., p. 6), and for the same purpose s authorized in the public resolution en titled "Joint resolution to provide an appropriation for the prosecution of suits to cancel certain leases, and for other purposes," approved February 27, 1924 (43 Stat ., p. 16), fiscal year 1930, $100,000, and in addition thereto the unexpended balance of the appropriation of $90,000 for such purposes, contained in the First Deficiency Act, fiscal year 1928, is continued available until June 30, 1930. Protection of interest of the United States in matters affecting oil lands on former naval reserves : For compensation and expenses of special counsel and for all other expenses, including employment of experts and other assistants at such rates as may be authorized or approved by the President, in connection with carrying into effect the joint resolution directing the Secretary of the Interior to insti- tute proceedings touching sections 16 and 3 6, to wnship 30 south, range 23 east, Mount Diablo meridian, approved February 21, 1924, fiscal years 1929 and 1930 (43 Stat., p . 15), $55,000, to be expended by the President. CIVIL SERVICE COMMIS SION Executive. 1625 Mount Weather, Va. Maintenance, etc. Provisos. Care, etc ., of, trans- ferred to Director of Publi c Bu ildin gs, etc . Transfer of Weather Bureau funds . Ante, p. 119 4. Sale of, repealed. Ante, p. 311,repealed. Naval oil lands. Expenses can cel ing leases, etc. Vol.43,p5. Vol.43,p.16. Ante, p .5. Salaries- For an additional amount for personal services in the salaries. District of Columbia and in the field, fiscal years 1929 and 1930, $1 61,0 00. Traveling expenses : For an additional amount for traveling expenses, including the same objects specified under this head in the Independent Offices Appropriation Act for the fiscal year 1929, fiscal years 1929 and 1930, $34,500. Contingent expenses : For an additional amount for contingent expenses, including the same objects specified under this head in the Independent Offices Appropriation Act for the fiscal year 192 9, fiscal years 1929 and 1930, $4,500. Naval oil reserves, Californi a. Expenses establish- ing title to. Vol. 43, p.15. civil Service Com- mission. Traveling expenses . Conti ngent expens es.

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Page:A lover's tale (Tennyson, 1879).djvu/29

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Dalton v. United States

THIS was an appeal from the District Court of the United States for the southern district of California.

The title of Dalton to the land which he claimed is set forth in the opinion of the court.

The board of commissioners confirmed the title, but the District Court reversed the decree, apparently upon the ground stated in the following exception:

Upon the trial of this cause, the United States district attorney offered to prove, by Daniel Sexton and J. S. Mallard, witnesses called on the part of the United States, that Henry Dalton, the appellee in this case, was not, at the time of the grant of the land to him in this case, a citizen of Mexico, but was an alien and a subject of Great Britain, which proof was objected to by J. R. Scott, counsel for appellee; but his honor the judge overruled the objection, and permitted the evidence to be given; to which the appellee, by his counsel, excepted, and prays the court to sign this his bill of exceptions, and make the same part of the record in the case, which is accordingly done.

The evidence of these two persons upon this subject was as follows:

Daniel Sexton sworn, and says:

1. Question. What is your name, age, place of residence, and occupation?

Answer. My name is Daniel Sexton; my age, about 37; I reside in San Gabriel; I am a farmer.

2. Q. How long have you lived in California?

A. I have lived in this part of California, county of Los Angeles, since the fall of 1841.

3. Q. Do you know or not Henry Dalton, the appellee in this case?

A. I do.

4. Q. How long have you known him?

A. I have known him since the latter part of 1844, or beginning of 1845.

5. Q. Do you know how long he has resided in California?

A. Yes; since the latter part of 1844 or beginning of 1845.

6. Q. Do you know the country of his birth?

A. He has frequently told me he was an Englishman.

7. Q. Do you recollect the last time he told you so?

A. Yes-in May, I think it was, in 1847; I was coming, in company with Mr. Dalton, from Azusa to Santanita; he told me that he was an Englishman; that he never was a Mexican citizen, and never intended to be an American citizen.

J. S. Mallard:

My name is J. S. Mallard; residence, San Gabriel; my age is 39, and a merchant by occupation; I have resided in California five years, and in Los Angeles county the same length of time, with the exception of four months. I know Henry Dalton, and have known him since January, 1850, as a resident of Los Angeles city.

Question. Do you know the rancho of San Francisquito?

Answer. I don't know that I do, only from report.

Q. Do you know the country of Mr. Dalton's birth?

A. I do not.

Q. Do you know whether or not Mr. Dalton, the appellee in this case, is a native of Mexico? And if not, state generally how you know the fact.

A. Some time in the year 1853, I heard Mr. Dalton say that he claimed not to be a citizen of the United States, nor of Mexico. I know it was in a court of justice, and think he was called as a juror; (the court reserved their decision.) I think he was under oath, but am not certain. I think it was in the Court of Sessions, whilst I was sitting as an associate justice; but I am not certain if it was in that court, or in a justice's court, whilst I was a judge of both courts. I think he was excused on that ground.

Q. Did you ever hear Mr. Dalton say, on any other occasion, that he was not a naturalized citizen of Mexico?

A. I do not recollect that I ever did. Cross-examined by Claimant's Counsel.

Question. Did he say anything more than that he claimed not to be a citizen?

Answer. My answer is, that he did. My recollection is, that he stated, that while in Mexico, he had either applied to become a citizen, or had some papers made out; and that, from some reason, which I do not recollect, the business of his naturalization was not completed.

Q. Did he not say this, that the papers had been made out in Mazatlan, but that they had not reached him?

A. It might have been so; but my recollection was, that the action on his application had not been completed, and that, for that reason, he (Dalton) said he did not consider himself a Mexican citizen.

It was argued in this court by Mr. Brent for the appellant, and by Mr. Black (Attorney General) for the United States.

The arguments upon the point whether or not Dalton, if a foreigner, could hold lands in California, are omitted. Upon the question of the evidence bearing upon this fact, Mr. Brent remarked as follows:

II. It is submitted that there is no sufficient evidence in the record to show that he was an alien to Mexico.

All the evidence in the record upon the subject of alienage is in the deposition of J. S. Mallard, and answers in the deposition of Sexton.

The substance of the deposition of Mallard, on the point of alienage, is simply this-that the appellant, with the object of avoiding jury service, made loose declarations that he did not claim or consider himself to have been a citizen of Mexico. The witness, Mallard, nowhere says that Dalton admitted that he was born in England, but only that he did not claim to be an American or Mexican citizen. He may very well have been a Mexican citizen, and not have claimed to be one; but would that destroy his citizenship? The testimony of the other witness, Sexton, shows that, in 1847, Dalton declared he was not a Mexican citizen, and that he never intended to be an American citizen. The court will recollect that, in 1847, we were at war with Mexico that our forces were overrunning California in every direction, and that, even supposing Mr. Dalton to have been a naturalized Mexican citizen, it may not have been suitable for his interest to avow that fact, in the midst of the clamor of the war; or there may have existed a hundred motives why he would not have proclaimed the fact to the American, Sexton.

None of these declarations of Dalton are in a positive form. They were made to third parties, under circumstances not affecting this litigation, and they are not sufficient to rebut the presumptions that he was a Mexican citizen. If the court deem that a material presumption to sustain this grant against these loose declarations of his, we have the positive patent of the Mexican authorities, not issued improvidently by the Governor, but after near two months' consideration, and after due report from the municipal authorities that there was no impropriety in the grant. It seems to be a conclusive presumption from a genuine grant, that the grantee was naturalized, or otherwise competent to take.

3 Pick., 224.

United States v. Reading, 18 How., 8, 9.

The Attorney General contended that the alienage of Dalton was clearly and satisfactorily proved.

Mr. Justice GRIER delivered the opinion of the court.

title: Dalton v. United States


text: Talk:Dalton v. United States

title: Talk:Dalton v. United States


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

The title of Dalton is found in the archives, and its authenticity is not disputed. The expediente exhibits:

1st. A petition of Henry Dalton, dated March 12th, 1845, at Los Angeles, setting forth that he is a resident of that city; that he is endeavoring to increase the number of cattle on the premises which he possessed, called Azusa, but that he lacked more land for that purpose; that the mission of San Gabriel owned a large plain adjoining his tract of Azusa, which was useless to them. It was accompanied with a diseno or map of the land. The quantity desired was two sitios.

On the 13th of March, Pio Pico, acting Governor, makes the usual marginal order for information, referring the petition to Father Thomas Estinega, minister to the mission of San Gabriel, to report.

March 26th. Estinega reports, that the tract solicited is one of those which the mission cannot cultivate, because it is deficient in water; and considering that Dalton offers to deliver him, as a gift for the Indians, five hundred dollars, he consents that a grant of the land be made to Dalton.

This petition was referred also the municipal counsel of Los Angeles, who reported in favor of the grant, and on the 14th of April certified their approval to the Governor.

On the 26th of May, 1845, Governor Pico orders a grant to be made out for two sitios, and sent to the Departmental Assembly for their approval.

June 9th, 1845. The Departmental Assembly, upon report of the committee on waste lands, to whom the expediente had been referred, approve the grant as in conformity with the law of August 18th, 1824, and the regulations of 21st of November, 1828.

In pursuance of this grant, judicial possession was delivered to Dalton, February 14, 1846, in due form, with a regular survey of the boundaries.

The only objection urged in this court to this title, as justifying its rejection, is, that Henry Dalton was a foreigner, and had not been naturalized, and was therefore incapable of taking a grant of land.

The counsel for the plaintiff in error deny both the law and the fact as assumed in this objection.

1st. They contend that it was no part of the policy of the Spanish or Mexican Government to exclude foreigners from holding lands; that the colonization law of 1824 invites for eigners to 'come and establish themselves within the Mexican territory, and gives them privileges against taxation,' &c., &c.; and provides that, until after 1840, the General Congress shall not prohibit any foreigner as a colonist, unless imperious circumstances should require it with respect to individuals of a particular nation.

2d. They contend, also, that the regulations of 1828 require the Governor to obtain the necessary information as to whether the petitioner is a person within the conditions required to receive a grant; that the expendiente found in the record shows a full compliance with the law; that the definitive title, which is a valid patent, recites that the petitioner was 'in the actual possession, by just title, of a rancho' known by the name of Azusa; that this is a legislative adjudication of the fact of the grantee's capacity to hold land, and per se a naturalization, if he had previously been an alien; that, at least, it affords a prima facie if not a conclusive presumption of the grantee's capacity to receive a further grant of lands.

3d. They contend, also, that any legislation repugnant to this policy of the Government of Mexico since that time originated in, perhaps, a just jealousy of their American neighbors, and was aimed wholly at them, and intended to apply only to the colonies bounding on the United States; that this is apparent from the edict of Santa Anna of 1842, which permits foreigners not citizens, residing in the Republic, to acquire and hold lands, and excepts only the Departments upon the frontier and bordering upon other nations; that California was never treated as within this category, as the colonized and settled portion of it is separated a thousand miles from the frontier or border of any nation, and was at that time almost a terra incognita to the rest of the world.

4th. They contend that, by the Spanish as well as by the common law, a foreigner is not incapable of taking a grant of land, but holds it subject to be denounced in the one case, and forfeited by an inquest of escheat in the other; that the grant in this case being complete, neither the United States land commissioners, nor the courts authorized to adjudicate the Mexican title under the treaty, can exercise the functions either of denouncers or escheators.

5th and lastly. It is contended, that even if the court considered itself bound to declare this grant void by reason of the alleged incapacity of the grantee to take or hold, yet that there is no sufficient evidence to establish the fact of alienage against the strong presumption of the contrary, arising from the face of the expediente and definitive title.

The court do not intend to express any opinion upon the first four of these propositions, as the last suggests a sufficient reason for the confirmation of this grant.

In all cases, the testimony of admissions or loose conversations should be cautiously received, if received at all. They are incapable of contradiction. They are seldom anything more than the vague impressions of a witness of what he thinks he has heard another say-stated in his own language, without the qualifications or restrictions, the tone, manner, or circumstances, which attended their original expression. If a complete record title with ten years' possession could be divested by such testimony, its tenure would be very precarious, especially where the owner is surrounded by a population of settlers interested in defeating it. All the evidence on the record on the subject of alienage, besides that of a brother who proved himself an alien, is in the deposition of two witnesses. One states that Dalton, in order to avoid serving as a juryman, said 'he did not claim to be an American or Mexican citizen.' He might well have been a citizen, although he was not desirous of setting up such a claim on that occasion. The other states that in 1847, during the war, when the country was occupied by the American forces, he said 'he was not a Mexican, and never intended to become an American citizen.' At such a time, he may have had many motives prompting him to make such a representation. The Mexican Government had ceased to protect him, and the treaty of Guadalupe Hidalgo had not then made him an American citizen.

Now, assuming that these witnesses have remembered and reported the precise words used by the claimant in these loose conversations, they contain no positive assertion that he had never been naturalized, or was born out of Mexico. Such testimony ought not to be received to outweigh the prima facie (if not conclusive) presumptions arising from the exrediente and definitive title.

In this respect, this case closely resembles the case of United States v. Reading. (18 How., 1.)

The decree of the District Court is reversed, and the title of the claimant to the land in question is hereby confirmed.


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


text: Fuentes v. United States

title: Fuentes v. United States


text: Talk:Fuentes v. United States

title: Talk:Fuentes v. United States