text:
Grisar v. McDowell/Opinion of the Court

The premises, for the possession of which this action is brought, are situated within the city of San Francisco, in the State of California. The plaintiff claims to be seized in fee of them, and derives his title from the city of San Francisco under an ordinance of the common council for the settlement of land titles in the city, passed on the 20th of June, 1855, commonly known as the Van Ness ordinance, and the act of the legislature of the State ratifying and confirming the same.

The defendant is an officer in the army of the United States, commanding the military department of California, and as such officer entered upon the possession of the premises previous to the commencement of this action, and has ever since held them under the order of the Secretary of War, as part of the public property of the United States reserved for military purposes.

At the time the ordinance named was passed the city of San Francisco asserted title, as successor of a Mexican pueblo in existence on the acquisition of the country, to four square leagues of land, embracing the site of the present city, and had presented her claim for the same to the board of land commissioners created under the act of March 3d, 1851, and the board had confirmed the claim to a portion of the land, including the premises in question, and rejected her claim for the residue. Dissatisfied with the limitation of her claim, the city prosecuted an appeal from the decision of the board to the United States District Court, and this appeal was then pending an dundetermined. By the second section of the ordinance the city relinquished and granted all the title and claim, which she thus held to the land within her corporate limits, as defined by the charter of 1851, with certain exceptions, to the parties in the actual possession thereof, by themselves or tenants, on or before the 1st of January, 1855, provided such possession was continued up to the time of the introduction of the ordinance into the common council, or if interrupted by an intruder or trespasser, had been or might be recovered by legal process. In March, 1858, the legislature of the State ratified and confirmed this ordinance. The party, through whom the plaintiff traces his title, was in such actual possession of the premises in controversy both at the time designated by the ordinance and also on the passage of the confirmatory act of the legislature, and therefore acquired whatever right or title the city possessed; and he improved and cultivated the premises, and erected a building thereon, which was occupied by the plaintiff as his residence when he was ousted by the defendant.

On the other hand, the authorities of the United States, at the date of the ordinance, and long previous to that date, claimed the right to hold the premises as property of the United States, and as being a portion of a tract set apart for public purposes. As early as the 5th of November, 1850, President Fillmore made an order that certain parcels of land situated 'on the bay of San Francisco,' should be exempted and reserved from sale for such purposes. Notice of this order was soon afterwards communicated to the commissioner of the general land office, and in June following was transmitted by him to the surveyor-general of the United States for California, in whose office it has ever since remained on file.

On the 31st of December, 1851, this order was modified by the President in some particulars, and the first parcel reserved, or supposed to have been reserved by it, was divided into two separate tracts, each of which was described with precision. We do not deem it, therefore, of any consequence whether the description of the first parcel in the original order was defective and indefinite, as contended by counsel, or whether or not it included the premises in controversy. Nor is it of any consequence that the moi fication was made, as asserted, to avoid a possible contest with an adverse claimant to a portion of the original reservation. The reasons which may have governed the President cannot affect the validity of his action. He possessed the same authority in 1851 to modify the reservation of 1850, by enlarging or reducing it, that he possessed to make the reservation in the first instance. It is sufficient, in the view we take of this case, that one of the tracts described in the last order embraces the premises in controversy.

The question presented for determination is, therefore, between the title of the city of San Francisco, as it existed on the 1st day of January, 1855, and the title on that day of the United States.

It must be conceded that there was a pueblo of some kind at the site of the city of San Francisco upon the conquest of the country by the United States on the 7th of July, 1846. We say a pueblo of some kind, for the term, which answers generally to the English word town, may designate a collection of individuals residing at a particular place, a settlement or a village, or may be applied to a regular organized municipality. The historical evidence, to which we have been directed in the argument, shows that there was a pueblo at that site under the government of an ayuntamiento, composed of an alcalde, regidores, and other officers, as early as 1835, and that it continued in existence for some years under that government, and subsequently until, and for some time after the conquest, under the government of justices of the peace or alcaldes.

It must be conceded, also, that the pueblo, which thus existed, possessed some claim legal, or equitable to, or some interest in lands within the limits of four square leagues, to be assigned and measured off from the northern portion of the peninsula, upon which the city of San Francisco is situated, and that the city has succeeded to such claim or interest. This has been held by the Supreme Court of the State after the most elaborate and extended consideration. But what is of more consequence, and is conclusive upon this court, it has been so adjudged by the Circuit Court of the United States, and that adjudication has been made final, as we shall hereafter see, by the legislation of Congress, and the dismissal of the appeal to this court, which followed that legislation.

By the laws of Mexico, which prevailed in California at the date of the conquest, pueblos or towns, when once established and officially recognized, were entitled, for their benefit and the benefit of their inhabitants, to the use of lands, embracing the site of such pueblos or towns, and of adjoining lands within certain prescribed limits. This right, as we observed in Townsend v. Greeley, appears to have been common to the cities and towns of Spain from an early period in her history, and was recognized in the laws and ordinances for the settlement and government of her colonies on this continent. The same general system of laws for the establishment and government of pueblos, and the assignment to them of lands that prevailed under Spain, was continued in Mexico, with but little variation, after her separation from the motion country. These laws provided for the assignment to the pueblos, for their use and the use of their inhabitants, of land not exceeding in extent four square leagues. Such assignment was to be made by the public authorities of the government upon the original establishment of the pueblo, or afterwards upon the petition of its officers or inhabitants; and the land was to be measured off in a square or prolonged form, according to the nature and condition of the country. All lands within the general limits stated, which had previously become private property, or were required for public purposes, were reserved and excepted from the assignment.

Until the lands were thus definitely assigned and measured off, the right or claim of the pueblo was an imperfect one. It was a right which the government might refuse to recognize at all, or might recognize in a qualified form; it might be burdened with conditions, and it might be restricted to less limits than the four square leagues, which was the usual quantity assigned. Even after the assignment the interest acquired by the pueblo was far from being an indefeasible estate such as is known to our laws. The purposes to be accomplished by the creation of pueblos did not require their possession of the fee. The interest, as we had occasion to observe in the case already cited, amounted to little more than a restricted and qualified right to alienate portions of the land to its inhabitants for building or cultivation, and to use the remainder for commons, for pasture lands, or as a source of revenue, or for other public purposes. And this limited right of disposition and use was in all particulars subject to the control of the government of the country.

It is not pretended that any assignment of lands was ever made to the pueblo of San Francisco under the former government. Her claim or right to any lands being therefore an imperfect one, required the recognition and action of the new government before it could be turned into an absolute and indefeasible estate. Nor did it any the less require such recognition and action by reason of the presumption raised by the fourteenth section of the act of March 3d, 1851, of a grant of land to a city, town, or village, which was proved to have been in existence on the 7th of July, 1846. That section does not specify the extent of the grant which, for the purpose of determining the claim of the lot-holders, and of the city, was to be presumed to have been made; nor does it furnish any measure by which the limits of such grant could be fixed. The claim of the city had, therefore, as the law then stood, to undergo judicial investigation before the board of land commissioners created under the act of March 3d, 1851, and to depend for its validity and extent upon the determination of the board, and of the tribunals of the United States to which it could be carried. The authorities of the city so regarded the claim, and by their direction it was presented to the board in July, 1852. In December, 1854, the board confirmed the claim, as we have already stated, to a portion of the four square leagues, embracing the premises in suit, and rejected it for the residue. From the decision an appeal was taken by the filing of a transcript of the proceedings and decision of the board with the clerk of the District Court. The appeal was by statute for the benefit of the party against whom the decision was rendered; in this case of both parties-of the United States, which contested the entire claim, and of the city, which asserted a claim to a greater quantity than that confirmed-and both parties gave notice of their intention to prosecute the appeal. Subsequently, in February, 1857, the Attorney-General withdrew the appeal on the part of the United States, and in March following, the District Court, upon the stipulation of the district attorney, ordered that appeal to be dismissed, and gave leave to the city to proceed upon the decree of the board as upon a final decree. The counsel of the plaintiff contend that this decree closed the controversy between the city and the United States as to the lands to which the claim was confirmed. But in this view they are mistaken. Had the city accepted the leave granted, withdrawn her appeal, and proceeded under the decree as final, such result would have followed. But this course she declined to take. She continued the appeal for the residue of her claim to the four square leagues. This kept open the whole issue with the United States. The proceeding in the District Court, though called in the statute an appeal, was not in fact such. It was essentially an original suit, in which new evidence was given and in which the entire case was open. That this was the character of the proceeding in the District Court follows from the decision in the case of United States v. Ritchi. In that case it was contended that the act of Congress, in prescribing an appeal from the board of commissioners to the District Court, was unconstitutional, as the board was not a court under the Constitution, and could not be invested with any portion of the judicial power conferred upon the general government; but this court-Mr. Justice Nelson delivering the opinion-held that the suit was to be regarded as an original proceeding, and that the removal of the transcript papers and evidence into it from the board of commissioners was the mode provided for its institution in that court.

'The transfer, it is true,' said the court, 'is called an appeal. We must not, however, be misled by a name, but look to the substance and intent of the proceeding. The District Court is not confined to a mere re-examination of the case as heard and decided by the board of commissioners, but hears the case de novo upon the papers and testimony which had been used before the board, they being made evidence in the District Court, and also upon such further evidence as either party may see fit to produce.'

The dismissal of the appeal on the part of the United States did not, therefore, preclude the government from the introduction of new evidence in the District Court, or bind it to the terms of the original decree.

The authorities cited by counsel to show that when only one party appeals from a decree in a California land case, the other party cannot urge objections to the decree, or insist upon its modification, have no application. They are adjudications made in cases of appeal from the District Court to the Supreme Court, where the case is heard on the record from the court below, and where error upon the record alleged by the appellant is alone considered, or in cases where an attempt has been made upon supplementary proceedings on a survey of the land confirmed to deviate from the terms of the original decree. Thus, in Malarin v. United States, the District Court had affirmed the validity of the grant to the claimant, but had limited it to one square league. The claimant insisted that he was entitled under the grant to a confirmation of two square leagues, and therefore prosecuted an appeal. The United States were satisfied with the decree and did not appeal. The case, therefore, necessarily stood in this court upon the simple question whether the confirmation should have been for one or for two leagues; and the court said, that as the government had declined to appeal, the validity of the grant was not open for consideration. There is no analogy between this case and the so-called appeal from the board of commissioners to the District Court, which is only a mode, as we have said, for the institution of a new suit in that court.

In the case of United States v. Halleck, the decree of the board of commissioner described the land confirmed by specific boundaries. This decree became final by the withdrawal by the United States of the appeal taken on their behalf. But in the survey of the land an attempt was made to change the meaning of the language of the decree, by showing that the commissioners were ignorant of the course and direction of the American River, one of the boundaries prescribed, and, therefore, intended different lines from those specifically declared. To this the court said, that the decree was a finality, not only on the question of title, but as to the boundaries which it specified; that if it were erroneous in either particular the remedy was by appeal; but that the appeal having been withdrawn by the government, the question of its correctness was forever closed. In other words, the court held that a decree which had become final, could not be disregarded or deviated from in the subsequent proceedings taken for its execution. Between the doctrine here asserted and the doctrine contended for by the counsel of the plaintiff there is no analogy.

The case of the city remained i the District Court on her appeal until 1864. On the 1st of July of that year, Congress passed an act 'to expedite the settlement of titles to land in the State of California.' By the fourth section of this act the District Courts of California were authorized to transfer cases for the determination of claims to land under the act of March 3d, 1851, pending before them on appeal, to the Circuit Court of the United States, when they affected the titles of lands within the corporate limits of any city or town. Under this act, the District Court, in September following, transferred the city case to the Circuit Court, and in October, that court confirmed the claim of the city to four square leagues, subject to certain exceptions, among which were all such parcels of land as had been previously 'reserved or dedicated to public uses by the United States.' The decree upon this adjudication was finally settled and entered on the 18th of May, 1865. An appeal from it was taken by the United States to the Supreme Court; and the pendency of this appeal was made the ground of objection to the admissibility of the decree when it was offered in evidence. The appeal, it was contended, suspended the operation of the decree and took from it all efficacy as evidence of title. Such undoubtedly is the general effect of an appeal in these land cases; that is to say, the decrees rendered by the District Court cannot support the title of the confirmees or of parties claiming under them pending appeals therefrom, when by the judgment of the appellate court the claims of the confirmees in the premises in controversy may be defeated. But in this case no such result could have followed from any judgment of the Supreme Court. The objection of the plaintiff was prompted by the fact that the defendant contended, and, as we shall show, contended correctly, that the lands reserved by the decree from the confirmation to the city included the premises in controversy. Assuming that to have been the fact, the judgment of the Supreme Court could not have affected in any respect the title of the plaintiff. That court would have heard the case upon the record, and if it had not affirmed the decree, would have reversed it, or have modified it only in the particulars in which error was alleged by the appellant. A judgment in favor of the United States could only have had the effect either of defeating the entire claim of the city or of restricting its extent in a still greater degree: it could not have removed the exception made in it of the lands reserved for public uses.

But there is another and conclusive answer to the objection to the admissibility of the decree. By the action of Congress it had become, with some modifications, final. On the 8th of March, 1866, which was previous to the trial of this action, Congress passed an act 'to quiet the title to certain lands within the corporate limits of the city of San Francisco.' By this act all the right and title of the United States to the land situated within the corporate limits of San Francisco, confirmed to the city by the decree of the Circuit Court, were relinquished and granted to the city, and the claim of the city was confirmed, subject, however, to the reservations and exceptions designated in the decree, and upon the trust that all the land, not previously granted to the city, should be disposed of and conveyed by the city to parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of the act, in such quantities and upon such terms and conditions as the legislature of the State of California might prescribe, except such parcels thereof as might be reserved and set apart by ordinance of the city for public uses.

By this act the government has expressed its precise will with respect to the claim of the city of San Francisco to her lands, as it was then recognized by the Circuit Court of the United States. In the execution of its treaty obligations with respect to property claimed under Mexc an laws, the government may adopt such modes of procedure as it may deem expedient. It may act by legislation directly upon the claims preferred, or it may provide a special board for their determination, or it may require their submission to the ordinary tribunals. It is the sole judge of the propriety of the mode, and having the plenary power of confirmation it may annex any conditions to the confirmation of a claim resting upon an imperfect right, which it may choose. It may declare the action of the special board final; it may make it subject to appeal; it may require the appeal to go through one or more courts, and it may arrest the action of board or courts at any stage.

The act of March 3d, 1851, is a general act applying to all cases, but the act of March 8th, 1866, referring specially to the confirmation of the claim to lands in San Francisco, withdrew that claim, as it then stood, from further consideration of the courts under the provisions of the general act. It disposed of the city claim, and determined the conditions upon which it should be recognized and confirmed. The title of the city, therefore, rests upon the decree of the Circuit Court as modified by the act of Congress. The subsequent dismissal of the appeal, referred to in the case of Townsend v. Greeley, though made upon consent of parties, necessarily followed.

The decree thus modified excepts from confirmation to the city, as we have already observed, such parcels of land as had been previously 'reserved or dedicated to public uses by the United States.' By the parcels thus named, reference is had to the tracts reserved by the orders of President Fillmore. One of these tracts, as we have said, contains the premises in controversy. The decree therefore settles the title to them against the plaintiff. Whoever obtained conveyances from the city, or asserted title under the Van Ness ordinance, whilst the claim of the city to the land thus conveyed, or to which title was thus asserted, was pending before the tribunals of the United States, necessarily took whatever they acquired subject to the final determination of the claim. Their title stood or fell with the claim, for the decree took effect by relation as of the day when the petition of the city was presented to the board of land commissioners. It is to be treated in legal effect as if entered on that day.

It only remains to notice the objection taken to the authority of the President to make the reservations in question. The objection is twofold-first, that the lands reserved did not constitute any part of the public domain, but were the property of the city, and were not therefore the subject of appropriation, by order of the President, for public purposes; and second, if they did constitute a part of the public domain, they could only be reserved from sale and set apart for public purposes under the direct sanction of an act of Congress.

The first objection has been sufficiently answered in considering the nature of the claim of the city. It was not a claim to a tract which had been specifically defined; it was a claim only to a specific quantity, embracing, it is true, the site of the pueblo and adjoining lands, but which had yet to receive its precise limits and bounds from the officers of the government. Until this was done, the government was not precluded from setting apart and appropriating any portions of the lands claimed, which might be necessary for public uses. Until then the claim of the city was subservient to the right of the government in this respect.

On the other hand, if the lands were at the time a part of the public domain, as they must be considered to be, because they have been excluded from the lands confirmed to the city in satisfaction of the claim, it is of no consequence to the plaintiff whether or not the President possessed sufficient authority to make the reservations in question. It is enough that the title had not passed to the plaintf f, but remained in the United States. But further than this: from an early period in the history of the government it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses.

The authority of the President in this respect is recognized in numerous acts of Congress. Thus, in the Preemption Act of May 29th, 1830, it is provided that the right of pre-emption contemplated by the act shall not 'extend to any land which is reserved from sale by act of Congress, or by order of the President, or which may have been appropriated for any purpose whatever.' Again, in the Preemption Act of September 4th, 1841, 'Lands included in any reservation by any treaty, law, or proclamation of the President of the United States, or reserved for salines or for other purposes,' are exempted from entry under the act. So by the act of March 3d, 1853, providing for the survey of the public lands in California, and extending the pre-emption system to them, it is declared that all public lands in that State shall be subject to pre-emption, and offered at public sale, with certain specific exceptions, and among others 'of lands appropriated under the authority of this act, or reserved by competent authority.' The provisions in the acts of 1830 and 1841 show very clearly that by 'competent authority,' is meant the authority of the President, and officers acting under his direction.

The action of the President in making the reservations in question was indirectly approved by the legislation of Congress in appropriating moneys for the construction of fortifications and other public works upon them. The reservations made at the same time embraced seven distinct tracts of land, and upon several of them extensive and costly fortifications and barracks and other public buildings have been erected.

But it is sufficient, as we have already said, that the lands remained the property of the United States, whether or not they were by sufficient authority appropriated to public uses.

JUDGMENT AFFIRMED.

title: Grisar v. McDowell/Opinion of the Court


text: Talk:Grisar v. McDowell/Opinion of the Court

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


text:
The Victory (73 U.S. 382)

ERROR to the Supreme Court of the State of Missouri.

The twenty-fifth section of the Judiciary Act provides that a final judgment in the highest court of a State where is drawn in question the validity of a statute of any State, on the ground of its being repugnant to the Constitution of the United States, and the decision is in favor of such validity, may be re-examined in this court.

With this law in force, and under a statute of the State of Missouri, which authorized apparently a proceeding in rem against vessels for supplies furnished to them, Boylan filed a petition in one of the State courts of Missouri against the Steamboat Victory (which was made defendant to the suit), for supplies furnished in her home port at the request of her owner, and for which he claimed a lien on the vessel to the amount of $4214. The items of the account were set forth in a bill of particulars accompanying the petition, and the plaintiffs prayed for a warrant of seizure, on judgment, and for sale of the boat to satisfy their claim.

The owner of the vessel appeared and filed an answer, in which he admitted $500 of the claim to be due, and to be a lien on the boat, but denied that any other items or amounts were due or owing by the boat, or that they were a lien thereon. Testimony was also taken which showed that the contest was about the amount due, and the date at which some of it ceased to be a lien. But there was apparently nothing in the answer, or in the testimony, or in the instructions asked or given to the jury, from which an inference could be drawn, that it was denied that supplies of the character set fort were a lien on the vessel to which they were furnished, or that the statute which gave the lien was asserted to be void, or that the jurisdiction of the court to enforce it was controverted.

The State court ordered the vessel to be sold; and this judgment having been affirmed in the Supreme Court of the State, the case was brought here as within the twenty-fifth section of the Judiciary Act above quoted, and with a view of reversing that judgment; the ground of the expected reversal being, of course, that the case was one of admiralty cognizance, and was therefore exclusively within the jurisdiction of the District Courts of the United States; and because the statute of Missouri, which authorized the proceeding in the State court, was for that reason unconstitutional.

Mr. Wills now moved to dismiss the writ, on the ground that the record did not show that the question mentioned in the twenty-fifth section of the Judiciary Act was presented to, or decided by, the State court.

Mr. Dick opposed the motion, citing the cases of Craig v. The State of Missouri, and of The Bridge Proprietors v. The Hoboken Company, to show that it was not necessary that it should appear by express intendment that the question was decided, and arguing that as the authority of the State court rested wholly on the State statute, the validity of the statute was of necessity a point in judgment, and of course was passed on favorably to such validity.

The question of admiralty jurisdiction, and of the consequent validity of the State statute, he argued, was therefore completely before this court, and he asked that this court would decide it.

Mr. Justice MILLER delivered the opinion of the court.

title: The Victory (73 U.S. 382)


text: Talk:The Victory (73 U.S. 382)

title: Talk:The Victory (73 U.S. 382)


text:
The Victory (73 U.S. 382)/Opinion of the Court

The question which we are asked to decide-viz., whether such a case as this is one of admiralty cognizance, and is therefore exclusively within the jurisdiction of the courts of the United States, and whether the statute of Missouri, which authorized the proceeding, is for that reason void,-is an interesting one, and if it had been raised and decided in the court from which the record comes, we would be bound to decide it here. But we do not think it is a fair inference, from that record, that the question was presented to the court or was decided by it.

It has been repeatedly held by this court, that before it can entertain jurisdiction to revise the judgment of a State court, the point which we are called upon to review must have been raised, and must have been decided adversely to the plaintiff in error. This is so well established that it would be a useless labor to cite authorities to sustain it.

It is true we have said this need not appear by express averment, but if the record shows by necessary intendment that the point was decided, it is sufficient, and the cases of Craig v. The State of Missouri, and The Bridge Proprietors v. The Hoboken Company, are cited to sustain the proposition. It is one which does not need support. It is fully conceded.

But we are of opinion that it must appear that the point mentioned in the Judiciary Act was actually decided in the State court, that it received the consideration of the court, and it is not sufficient, that now, on fuller examination, with the aid of counsel here, we can see that it was a point which ought to have been raised, and which might have been decided. In the case of The Bridge Proprietors v. The Hoboken Company, cited by counsel for plaintiff, the court recites with approbation the following language from the previous case of Crowell v. Randell: 'It is not sufficient to show that the question might have arisen or been applicable to the case, unless it is further shown by the record that it did arise, and was applied by the State court to the case.'

It is insisted that inasmuch as the authority of the State court rests solely on the State statute, the validity f that statute was necessarily a point in its judgment, but it would contradict the experience of all who are familiar with courts to assume that every time a court acts under a statute, the validity of the statute or the jurisdiction of the court, receives its consideration. This is rarely so, unless the question is raised by one of the parties and called to the attention of the court.

The presumption from this record is entirely the other way. The defendant in his pleading admits impliedly the jurisdiction of the court, the validity of the statute, and the existence of the lien. He only denies that the full amount claimed is due, and no other question is raised or suggested by the bill of exceptions. Nor does it appear that any other question was raised in the Supreme Court of the State than that which was considered by the inferior court. There was, therefore, no occasion for the court to consider the question raised here by counsel.

WRIT OF ERROR DISMISSED.


text: Talk:The Victory (73 U.S. 382)/Opinion of the Court


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United States v. Hartwell

ON certificate of division in opinion between the judges of the Circuit Court for the District of Massachusetts.

The defendant was indicted in that court at Boston, for embezzlement. The indictment contained ten counts. The first three were founded upon the sixteenth section of the act of August 6th, 1846, known as the Sub-Treasury Act. This act in its fifth section provides for the appointment of 'four officers,' to be denominated assistant treasurers, at Boston and three other places named. It had already in a third section-after referring to certain buildings, rooms and safes in New York and Boston which had by a prior act been ordered to be prepared for other persons described-enacted, that 'the assistant treasurers from time to time appointed at those points, shall have the custody and care of the said rooms, vaults and safes respectively, and of all the moneys deposited within the same, and shall perform all the duties required to be performed by them in reference to the receipt, safe-keeping, transfer and disbursement of all moneys according to the provisions of this act.' Sections seven and eight provide for bonds, with sufficient surety, from assistant treasurers as often as the Secretary of the Treasury may require, and in sums as large as he may deem proper.

The sixth section declares that the 'Treasurer of the United States,' 'Treasurer of the Mint,' and 'all assistant treasurers,' &c., &c., 'and all public officers of whatever grade, be, and they are hereby, required to keep safely, without loaning, using, depositing in banks, or exchanging for other funds than as allowed by this act, all public money collected by them, or otherwise at any time placed in their possession and custody, till the same is ordered by the proper department or officer of the government to be transferred or paid out.'

The thirteenth section provides that 'the said officers, whose duty it is made by this act to receive, keep and disburse the public moneys, as the fiscal agents of the government, may be allowed any necessary additional expenses for clerks, fire-proof chests or vaults, or other necessary expenses of safe-keeping, transferring and disbursing said moneys,' &c.

The sixteenth section-a long section, and the one on which the first three counts were founded-ran, in its important parts, as follows:

'That all officers and other persons charged by this act or any other act with the safe-keeping, transfer and disbursement of the public moneys, are hereby required to keep an accurate entry of each sum received, and of each payment or transfer; and that if any one of the said officers shall loan any portion of the public moneys intrusted to him for safe-keeping, every such act shall be deemed an embezzlement; and if any officer charged with the disbursement of public moneys shall transmit to the Treasury Department to be allowed in his favor any receipt or voucher r om a creditor of the United States, without having paid to such creditor in such funds as he may have received for disbursement the full amount specified in the same, every such act shall be deemed a conversion by such officer to his own use of the amount specified in such voucher; and any officer or agent of the United States, and all persons advising or participating in such act, being convicted thereof before any court of competent jurisdiction, shall be sentenced to imprisonment for a term not less than six months, nor more than ten years, and to a fine equal to the amount of the money so embezzled. And upon the trial of any indictment against any person for embezzling public money under the provisions of this act, it shall be sufficient to produce a transcript, &c., as required in civil cases under the provisions of the act entitled, 'An act to provide,' &c., approved March 3d, 1797; and the provisions of this act shall be so construed as to apply to all persons charged with the safe-keeping, transfer or disbursement of public money, whether such persons be indicted as receivers or depositaries of the same,' &c.

So far as respects the act of 1846, on which the first three counts were founded.

The act of 1866 (June 14th), upon the third section of which the remaining seven counts of the indictment were founded, runs, in that section, thus:

'If any banker, broker, or any person, not an authorized depositary of public moneys, shall knowingly receive from any disbursing officer, or collector of internal revenue, or other agent of the United States, any public money on deposit or by way of loan or accommodation, with or without interest, or otherwise than in payment of a debt against the United States, or shall use, transfer, convert, appropriate or apply any portion of the public money for any purpose not prescribed by law, or shall counsel, aid or abet any disbursing officer or collector of internal revenue or other agent of the United States in so doing, every such act shall be deemed and adjudged an embezzlement of the money so deposited, loaned, transferred, used, converted, appropriated, or applied; [and any president, cashier, teller, director, or other officer of any bank or banking association who shall violate any of the provisions of this act shall be deemed and adjudged guilty of embezzlement of public money,] and punished as provided in section two of this act.'

It was admitted that the defendant was not a president or other officer of a bank.

The counts upon the act of 1846 alleged that the defendant, being an officer of the United States, to wit, a clerk in the office of the assistant treasurer of the United States, at Boston, appointed by the assistant treasurer, with the approbation of the Secretary of the Treasury, and as such charged with the safe-keeping of the public moneys of the United States, did loan a large amount of said moneys with the safe-keeping whereof he was intrusted in his capacity aforesaid. The names of the borrowers, and the amount and description of the moneys loaned, were set forth.

The succeeding counts-those namely on the act of 1866-alleged that the defendant, being a person, not an authorized depositary of the public moneys of the United States, to wit, a clerk in the office of the assistant treasurer of the United States, at Boston, appointed by him, with the approbation of the Secretary of the Treasury, having the care and subject to the duty to keep safely the public moneys of the United States, did knowingly and unlawfully appropriate and apply another portion of said public moneys, of which he had the care, and was subject to the duty safely to keep as aforesaid, for a purpose not prescribed by law, to wit, did loan the same. The particulars with reference to the loans were given as in the preceding counts.

The indictment averred the appointment of the defendant under the General Appropriation Act of July 23d, 1866, which authorized the assistat treasurer at Boston, with the approbation of the Secretary of the Treasury, to appoint a clerk at a salary of $2500.

The testimony being closed, the opinions of the judges were opposed upon the points:

(1) Whether the defendant was liable to indictment under the sixteenth section of the act of August 6th, 1846; and

(2) Whether there is any offence charged in the last seven counts under the third section of the act of June 14th, 1866, of which the court had jurisdiction.

Mr. Stanbery, A. G., and Mr. Ashton, special counsel for the United states:

1. As to the first question certified. No doubt the act of 1846 is applicable to officers alone, or to those charged with safe-keeping, transfer or disbursement of the public moneys. But the clerkship, in this case, is clearly an office. The duties are not temporary, but permanent. The person who fills the place does not act under contract, but under official obligation, and the office remains although the incumbent may die or resign. He does not stand in the relation of a deputy with a tenure of office depending on the principal who appointed him; but he remains in office notwithstanding his principal may retire. It is not possible to hold that such a clerkship is not an office, or that the incumbent is not an officer, unless it be held that he has not been legally clothed with the official duties, that he has not been legally appointed to such office. The statute which provides for the office, authorizes the assistant treasurer to appoint to the office with the approbation of the Secretary of the Treasury.

2. As to the second question. Of course, if such a construction is put upon the third section of the act of June 14th, 1866 (on which the question arises), as limits its operation to bank officers, then the question certified must be answered in the negative. Otherwise, it must be answered in the affirmative. The section is very loosely drawn, and, as to grammatical construction, is subject to criticism. The confusion arises from the awkward introduction of a clause near the end of it. If we read the section without that clause, or read it parenthetically, there will be no confusion. But this is mere verbal criticism. When we inquire what is the intent of this section; whether that intent is merely to punish bank officers, or to punish them and a larger class besides, there can be no difficulty in giving the answer.

Messrs. H. W. Paine and R. M. Morse, contra:

1. Was the defendant an officer or person 'charged with the safe-keeping of the public money' within the intent of the act of 1846? We submit that he was not.

Penal statutes are confessedly to be construed with strictness, and from an examination of all the sections of the statute of 1846, it appears that the assistant treasurer alone is designated as an 'officer,' while watchmen, messengers, clerks and fire-proof safes are classed together among the necessary expenses, which the assistant treasurer, with the approval of the Secretary of the Treasury, is authorized to incur. The defendant was a 'clerk.' No specific duties are imposed upon the clerk; he gives no bond to the government; he is merely a subordinate and assistant to the officer, and performs such service as he directs. The terms of the sixteenth section thus apply to principal officers alone; not to subordinates appointed by them. The cases cited on the other side, if applicable, are mostly nisi prius rulings; no 'authority' with this court. United States v. Hutchinson is directly opposed to them.

2. As to the second question. Is any penalty provided in the act of 1866 for the offence with which the defendant is charged, in the last seven counts of the indictment? We think that there is not, and therefore that the court has no jurisdiction of the case. If, indeed, the act were changed as Mr. Attorney would alter it, parts left out or read parenthetically, the indictment might possibly be sustained. But this court was recently said that it cannot amend or modify any legislative acts. It cannot examine questions as expedient or inexpedient, as politic or impolitic. It is unnecessary to speculate on the reasons which led Congress to omit to affix a penalty to the acts charged upon the defendant. It may have been that they believed that there was some general statute punishment embezzlement, or that it was punishable at common law, and specified the particular penalties in the act for the particularly serious cases of embezzlement therein stated.

Whatever may have been the reason, it is clear upon the well-established principles of construction, that they omitted to affix a penalty.

Mr. Justice SWAYNE delivered the opinion of the court.

title: United States v. Hartwell


text: Talk:United States v. Hartwell

title: Talk:United States v. Hartwell


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

This case comes before us upon a certificate of division in opinion of the judges of the Circuit Court of the United States for the District of Massachusetts.

As disclosed in the record the case is as follows:

The defendant was indicted for embezzlement. The indictment contains ten counts. The first three are founded upon the sixteenth section of the act of August 6th, 1846, the remaining seven upon the third section of the act of June 14th, 1866.

The counts upon the act of 1846 allege that the defendant, being an officer of the United States, to wit, a clerk in the office of the assistant treasurer of the United States, at Boston, appointed by the assistant treasurer with the approbation of the Secretary of the Treasury, and as such charged with the safe-keeping of the public moneys of the United States, did loan a large amount of said moneys, with the safe-keeping whereof he was intrusted in his capacity aforesaid. The names of the borrowers, and the amount and description of the moneys loaned, are set forth.

The succeeding counts allege that the defendant, being a person, not an authorized depositary of the public moneys of the United States, to wit, a clerk in the office of the assistant treasurer of the United States, at Boston, appointed by him with the approbation of the Secretary of the Treasury, having the care and subject to the duty, to keep safely the public moneys of the United States, did knowingly and unlawfully appropriate and apply another portion of said public moneys, of which he had the care, and was subject to the duty, safely to keep as aforesaid, for a purpose not prescribed by law, to wit, did loan the same. The particulars with reference to the loans are given in the preceding counts.

The testimony being closed, the opinions of the judges were opposed upon the points:

1. Whether the defendant was liable to indictment under the sixteenth section of the act of August 6th, 1846; and

2. Whether there is any offence charged in the last seven counts under the third section of the act of June 14th, 1866, of which the court had jurisdiction.

The section referred to in the act of 1846 describes in three places the persons intended to be brought within its scope. The language used in that connection is:

'All officers and other persons charged by this act, or any other act, with the safe-keeping, transfer and disbursement of the public money, are hereby required,' &c.

'If any officer charged with the disbursement of the public moneys shall accept or receive,' &c.

'The provisions of this act shall be so construed as to apply to all persons charged with the safe-keeping, transfer or disbursement of the public money, whether such persons be indicted as receivers or depoi taries of the same.'

Was the defendant an officer or person 'charged with the safe-keeping of the public money' within the meaning of the act? We think he was both.

He was a public officer. The General Appropriation Act of July 23d, 1866, authorized the assistant treasurer, at Boston, with the approbation of the Secretary of the Treasury, to appoint a specified number of clerks, who were to receive, respectively, the salaries thereby prescribed. The indictment avers the appointment of the defendant in the manner provided in the act.

An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.

The employment of the defendant was in the public service of the United States. He was appointed pursuant to law, and his compensation was fixed by law. Vacating the office of his superior would not have affected the tenure of his place. His duties were continuing and permanent, not occasional or temporary. They were to be such as his superior in office should prescribe.

A government office is different from a government contract. The latter from its nature is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other.

The defendant was appointed by the head of a department within the meaning of the constitutional provision upon the subject of the appointing power.

The sixth section of the act of 1846, after naming certain public officers specifically, proceeds:

'And all public officers, of whatever grade, be, and they are hereby required to keep safely, without loaning, using, depositing in banks, or exchanging for other funds than as allowed by this act, all public money collected by them, or otherwise at any time placed in their possession and custody, till the same is ordered by the proper department or officer of the government to be transferred or paid out.'

This clearly embraces the class of subordinate officers to which the defendant belonged.

We are also of the opinion that the act prescribes punishment for the offence with which the defendant is charged.

The first part of the sixteenth section declares, that if any officer to whom it applies shall convert to his own use, loan, deposit in bank, or exchange for other funds, except as permitted by the act, any of the public money intrusted to him, 'every such act shall be deemed and adjudged to be an embezzlement,' and is made a felony.

It next enacts that if any officer charged with the disbursement of public moneys shall take a false voucher, 'every such act shall be a conversion to his own use of the amount specified' in such voucher.

This clause then follows: 'And any officer or agent of the United States, and all persons participating in such act, being convicted thereof before any court of the United States of competent jurisdiction, shall be sentenced to imprisonment for a term of not less than six months nor more than ten years, and to a fine equal to the amount of the money embezzled.'

This clause is to be taken distributively. It applies, and was clearly intended to apply, to all the acts of embezzlement specified in the section-to those relating to moneys, in the first category, as well as to those relating to vouchers in the second. The context of the section and the language of the clause both sustain this view of the subject. If this be not the proper construction, then the consequence would follow that in this elaborate section, obviously intended to cover the whole ground of frauds by receivers, custodians, and disbursers of the public moneys, of every grade of office, punishment is provided for only one of the offences which the act designates. There is no principle, which, properly applied, requires or would warrant such a conclusion.

It is urged that the terms used in the sixteenth section to designate the persons made liable under it, are restrained and limited to principal officers, by requirements and provisions which are applicable to them, and are inapplicable to all those holding subordinate places under them. To this there are several answers. We think the only effect of these provisions is to operate, according to their terms, where such higher officers are concerned. They are without effect as to the subordinates, to whom they are inapplicable. They do not take offenders of that class out of the penal and other provisions of the statute, which must be conceded otherwise to embrace them. The broad language of the provision in the preceding sixth section, which has been referred to, is coupled with no qualification whatever, expressed or implied.

If the subordinates are not within the act, there is no provision in the laws of the United States for their punishment in such cases. So far as those laws are concerned they may commit any of the crimes specified with impunity. We think it clear that it was not the intention of Congress to leave an omission so wide and important in the act, and our minds have been brought satisfactorily to the conclusion that they have not done so.

We are not unmindful that penal laws are to be construed strictly. It is said that this rule is almost as old as construction itself. But whenever invoked it comes attended with qualifications and other rules no less important. It is by the light which each contributes that the judgment of the court is to be made up. The object in construing penal, as well as other statutes, is to ascertain the legislative intent. That constitutes the law. If the language be clear it is conclusive. There can be no construction where there is nothing to construe. The words must not be narrowed to the exclusion of what the legislature intended to embrace; but that intention must be gathered from the words, and they must be such as to leave no room for a reasonable doubt upon the subject. It must not be defeated by a forced and over-strict construction. The rule does not exclude the application of common sense to the terms made use of in the act in order to avoid an absurdity, which the legislature ought not to be presumed to have intended. When the words are general and include various classes of persons, there is no authority which would justify a court in restricting them to one class and excluding others, where the purpose of the statute is alike applicable to all. The proper course in all cases is to adopt that sense of the words which best harmonizes with the context, and promotes in the fullest manner the policy and objects of the legislature. The rule of strict construction is not violated by permitting the words of the statute to have their full meaning, or the more extended of two meanings, as the wider popular instead of the more narrow technical one; but the words should be taken in such a sense, bent neither one way nor the other, as will best manifest the legislative intent.

We think we have not transcended these principles in coming to the conclusions we have announced.

The determination of the second question certified depends upon the construction of the third section of the act to which it refers.

That section provides, 'that if any banker, broker, or other person not an authorized depositary of the public moneys,' shall do either of the acts therein specified, every such act shall be held to be an embezzlement.

The penal sanction with which the section concludes is as follows: 'And any president, cashier, teller, director, or othr officer of any bank or banking association, who shall violate any of the provisions of this act, shall be deemed and adjudged guilty of an embezzlement of public money, and punished as provided in section two of this act.'

This clause is limited in its terms to the officers named in it. There is nothing which extends it beyond them. It cannot, by construction, be made to include any others. It is confined to officers of banks and banking associations. The defendant is not brought within the act by the averments contained in the counts of the indictment, which are founded upon it. They describe him only as a clerk in the office of the assistant treasurer, at Boston. As such, the act does not affect him, and the court has no jurisdiction of the offences charged. These counts are, therefore, fatally defective.

The first point certified up will be answered in the affirmative and the second in the negative.

ANSWERS ACCORDINGLY.


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


text:
Stark v. Starrs

ERROR to the Supreme Court of Oregon.

A. and L. Starr, asserting themselves to be owners in possession of certain parcels of land in the city of Portland, Oregon, and derived by title from that city, filed a bill in equity in one of the State courts of Oregon, to quiet their title to the land against an ownership set up to it by one Stark, and to have a patent for it which had issued to Stark surrendered. The bill was founded on a statute of Oregon, which provides that 'any person in possession of real property may maintain a suit in equity against another who claims an estate or interest therein adverse to him, for the purpose of determining such claim, estate, or interest.'

The title which the bill asserted to be void, and which it sought to have declared so, arose as follows:

Previously to the treaty with Great Britain, of June 15th, 1846, by which the boundary line between the possessions of that country and the United States, west of the Rocky Mountains, was established, the region known as Oregon was claimed by both countries; and the emigrants there from the United States and from Great Britain held joint possession of the country under the treaty between the two nations, of October 20th, 1818, which was continued in force by the convention of August 6th, 1827.

In 185, the inhabitants of this Territory established a provisional government for purposes of mutual protection, and to secure peace and prosperity among themselves; and they adopted laws and regulations for their government until such time as the United States should extend their jurisdiction over them.

Under the provisional government each settler was entitled to claim 640 acres of land, upon complying with certain conditions of improvement, &c.

In 1848, Congress established the territorial government of Oregon. The fourteenth section of the act which did this, recognized and continued in force the laws adopted by the provisional government, and declared that the laws of the United States were extended over the Territory, so far as the same, or any provision thereof, may be applicable; but all laws granting or affecting lands were declared to be void. And Congress itself soon afterwards passed an act on the subject of titles. The act of September 27th, 1850, commonly called the Donation Act of Oregon, provided (§ 4), that there should be granted to settlers or occupants of the public lands, then residing in the said Territory, or who should become residents thereof on or before the first day of December, 1850, and who should have resided upon and cultivated the same for four consecutive years, and should otherwise conform to the provisions of the act, one-half section, or 320 acres of land, if a single man, and if married, or becoming married within one year from December 1st, 1850, one section, or 640 acres; provided, however, the donation should embrace the land actually occupied and cultivated by the settler on it.

The sixth section of this act required that the settler should notify to the surveyor-general the tract claimed under the law within three months after the survey had been made; and the seventh section provided, that within twelve months after the surveys had been made each person claiming a donation right under the act should prove to the satisfaction of the surveyor-general, the commencement of the settlement and cultivation required; and after the expiration of the four years from the date of such settlement, should prove, in like manner, by two disinterested witnesses, the continued residence and cultivation required by the fourth section of this act. The act went on:

'Upon such proof being made, the surveyor-general, or other officer appointed by law for that purpose, shall issue certificates, under such regulations as may be prescribed by the commissioner of the general land office, setting forth the facts in the case, and specifying the land. . . And the surveyor-general shall return the proof so taken, to the office of the commissioner of the general land office, and if the said commissioner shall find no valid objection thereto, patents shall issue for the land, according to the certificates aforesaid, upon the surrender thereof.'

In professed accordance with these provisions, and the regulations made by the general land office, the defendant, in May, 1852, within three months after the survey of the land had been made, gave to the surveyor-general notice of the tract claimed by him, and within twelve months after the survey proved, to the satisfaction of the surveyor-general, that the settlement and cultivation had been commenced on the 1st of September, 1849, and afterwards on the 10th of September, 1853, proved, in like manner, by two disinterested witnesses, the fact of his continued residence and cultivation for four years, which had previously expired; this having been done in the form and manner usual in the department.

In September, 1853, the surveyor-general issued to the party a donation certificate, reciting the claim of a donation right made by him to a tract of land described; that proof had been made to his satisfaction that the settlement was commenced on the 1st of September, 1849, four years previous to the date thereof, and that the fact of his continued resd ence and cultivation since that period had been established by two disinterested witnesses; and he forwarded the certificate to the commissioner of the general land office, accompanied by the proof of the facts recited, in order that a patent might issue to the claimant for the tract described, provided he found no valid objection thereto. No objection was found by the commissioner except a supposed application to the tract in question of an act of Congress of May 23d, 1844, commonly known as the Town Site Act, the nature of which will appear further on in stating the title on the other side, and which was relied on as in part making that title. The evidence of settlement, &c., was by him considered ample, and the certificate satisfactory; and a patent was issued thereon to Stark, the defendant.

Such was the title-a documentary one-sought to be put aside.

The documentary title of the Starrs, alleged by their bill to be superior to it, will be stated directly. Their bill not only, however, set up title in themselves, alleging it superior to the documentary title as presented by the other side, but it alleged that Stark had not made in point of fact any such settlement and cultivation as he had brought persons to swear to before the commissioner, and that the certificate on which he got this patent, was false, and his patent consequently void. This was a question of fact on which evidence was taken. The answer denied the allegations thus made.

The documentary case of the Starrs was thus:

An act of Congress passed September 4th, 1841, provides that every person who shall have made a settlement on the public lands 'which have been or shall have been surveyed prior thereto,' shall be authorized to enter any number of acres, not exceeding one hundred and sixty, upon paying the minimum price.

An act of May 23d, 1844, entitled 'An act for the relief of the citizens of towns upon the lands of the United States under certain circumstances' (the act already mentioned as the Town Site Act), provides as follows:

'Whenever any portion of the surveyed public lands has been or shall be settled upon and occupied as a town site, and therefore not subject to entry under the existing pre-emption laws, it shall be lawful, in case such town shall be incorporated, for the corporate authorities. . . to enter at the proper land office and at the minimum price, the land so settled and occupied,' &c.

On the 17th of July, 1854, Congress enacted that donations thereafter to be surveyed in Oregon Territory, claimed under the Donation Act of September 27th, 1850, should in no case include a town site or lands settled upon for purposes of business or trade and not for agriculture, and that all legal subdivisions included in whole or in part in such town sites or settled upon for purposes of business or trade and not for agriculture, should be subject to the operations of the Town Site Act of May 23d, 1844; whether such settlements were made before or after the surveys.

On the 1st of February, 1858, and while the claim of Stark was pending before the commissioner, the corporate authorities of the city of Portland made an entry under the Town Site Act of May 23d, 1844, of lands within the city limits to the extent of 307 49/100 acres, which included the premises in controversy, in trust for the several use and benefit of the occupants thereof, and presented to the commissioner a certificate of the register of the land office, in Oregon, of their having made full payment for the same. The commissioner accordingly issued a patent to them.

The patent to the city authorities was dated 7th December, 1860; that to Stark the day following; it having been intended that they should be issued on the same day. Each contained reciprocal reservations in favor of the rights conveyed by the other.

The court in which the bill was filed, granted the relief prayed for, and the Supreme Court of the State of Oregon having affirmd their decree, the case was now here under the twenty-fifth section of the Judiciary Act.

Messrs. M. Blair and F. A. Dick, for Stark, plaintiff in error:

1. The patent to the city was absolutely void-the act of 1844, under which it issued, not being in force in Oregon until after July 17th, 1854. The act of 1844 is but amendatory of the pre-emption law of 1841, which contains the provision upon which the act of 1844 operates. It applies only to surveyed lands, which are excepted from operation of the pre-emption law. But the pre-emption law was not in force in Oregon in 1850. There were not only no surveyed lands there at that date, but Congress had, in the donation law of 1850, made more liberal provision for settlers than even by the pre-emption act. The law of 1844 was inapplicable, from the condition of things in Oregon when the act of 1848, establishing the territorial government, or when the donation law of 1850, was passed.

2. If the Town Site Act was not in force in Oregon in 1853, the patent to the authorities of Portland is a nullity, and the defendants in error have no title of any description of which a court of justice can take cognizance. Mere possession of public land will not enable the party to maintain a suit against any one, especially not against persons holding possession under title derived from the proper officers of the government. The patent to Stark and the regularity of proceedings preliminary to it cannot, therefore, be here called in question.

3. In this view we need not discuss the issue of fact.

Mr. Wills, contra:

1. This is a suit in equity to quiet title, brought under a statute which allows any person in possession to maintain such a suit. Under any circumstances of title, the Starrs being in possession may maintain it.

2. Was the Town Site Act of 1844 in force in Oregon prior to the enactment of the donation law of 1850, by virtue of the fourteenth section of the act of August 14th, 1848, organizing the Territory of Oregon?

Unless the land laws of the United States, including the Town Site Act, were extended by the act to the Territory of Oregon, we have this anomaly, that by this law all land titles then existing were made null, and in a law organizing that Territory and providing for its settlement no means were provided whereby incipient title to lands could be acquired from the United States, their sole proprietor. The land laws of the United States in themselves, were as applicable to Oregon as to any other Territory of the United States; and that they were needed is demonstrated by the fact, that no other means was provided whereby title to land could be acquired in the Territory.

3. But if the Town Site Act was not extended to Oregon before the passage of the act of July 17th, 1854, certainly it was in force after the date of that law. Both patents were issued after the passage of that act, and at a time when the operation of the Town Site Act in that Territory cannot be disputed. If, then, Stark had not complied with the terms of the Donation Act, under which his patent was issued, it was void as against the prior patent issued to the city of Portland, under the act of 1844, at a time when the latter act was in force. This leads to the question of fact in the case. Our right in an equity proceeding, to go behind the patent and make the inquiry, is settled by numerous cases, especially by Garland v. Wynn, and Lindsey v. Hawes.

[The counsel then argued the point of fact on the evidence; a matter, however, which the court did not reach in its opn ion, the case being decided on the other ground.]

Mr. Justice FIELD delivered the opinion of the court.

title: Stark v. Starrs


text: Talk:Stark v. Starrs

title: Talk:Stark v. Starrs


text:
Stark v. Starrs/Opinion of the Court

This is a suit in equity to quite the title of the plaintiff to certain parcels of land situated in the city of Portland, in the State of Oregon. It is founded upon a statute of that State which provides that 'any person in possession of real property may maintain a suit in equity against another who claims an estate or interest therein adverse to him, for the purpose of determining such claim, estate, or interest.' This statute confers a jurisdiction beyond that ordinarily exercised by courts of equity, to afford relief in the quieting of title and possession of real property. By the ordinary jurisdiction of those courts a suit would not lie for that purpose, unless the possession of the plaintiff had been previously disturbed by legal proceedings on the part of the defendant, and the right of the plaintiff had been sustained by successive judgments in his favor.

The equity asserted in such cases had its origin in the prolonged litigation which the action of ejectment permitted. That action being founded upon a fictitious demise between fictitious parties, a recovery therein constituted no bar to a second similar action, or to any number of similar actions for the same premises. With slight changes in these fictions a new action might be instituted and conducted as though no previous action had ever been commenced. Thus the party in possession, though successful in every case, might be harassed if not ruined by the continued litigation. To prevent such litigation, after one or more trials, and to secure peace to the party in possession, courts of equity interposed upon proper application and terminated the controversy.

By the statute in question it is unnecessary in order to obtain this interposition of equity for the party in possession to delay his suit until his possession has been disturbed by legal proceedings, and judgment in those proceedings has passed in his favor. It is sufficient that a party out of possession claims an estate or interest in the property adverse to him. He can then at once commence his suit, and require the nature and character of such adverse estate or interest to be set forth and subjected to judicial investigation and determination, and that the right of possession as between him and the claimant shall be forever quieted.

We do not, however, understand that the mere naked possession of the plaintiff is sufficient to authorize him to institute the suit, and require an exhibition of the estate of the adverse claimant, though the language of the statute is that 'any person in possession, by himself or his tenant, may maintain' the suit. His possession must be accompanied with a claim of right, that is, must be founded upon title, legal or equitable, and such claim or title must be exhibited by the proofs, and, perhaps, in the pleadings also, before the adverse claimant can be required to produce the evidence upon which he rests his claim of an adverse estate or interest.

In this case the plaintiff asserts title to the premises in dispute under a patent of the United States, bearing date on the 7th day of December, 1860, purporting to be issued to the corporate authorities of the city of Portland, under the Town Site Act of Congress of May 23d, 1844, entitled 'An act for the relief of the citizens of towns upon the lands of the United States under certain circumstances;' and the defendant claims title to the premises under a patent of the United States, bearing date on the 8th day of December, 1860, purporting to be issued to him under the Donation Act of September 27th, 1850, entitled 'An act to create the office of surveyor-general of the public lands of Oregon, and to provide for the survey and to make donations to the settlers of the said public lands.'

By the fourth section of this Donation Act, a grant was made to every white settler or occupant of public land in Oregon, above the age of eighteen years-who was a citizen of the United States, or had made a declaration according to law of his intention to become a citizen, or should make such declaration on or before the 1st day of December, 1851, and who was at the time a resident of the territory, or might become a resident on or before the 1st of December, 1850, and who should reside upon and cultivate the land for four consecutive years, and otherwise conform to the provisions of the act-of three hundred and twenty acres of land, if a single man, or if a married man, or if he should become married within a year from the 1st of said December, then six hundred and forty acres, one-half to himself and the other half to his wife, to be held by her in her own right; the donation in all cases to embrace the land actually occupied and cultivated by the settler.

By the sixth section, the settler was required, within three months after the survey of the land was made, to notify to the surveyor-general of the United States the tract claimed by him under the act. By the seventh section any person claiming a donation right was required, within twelve months after the survey was made, or where the survey was made before the settlement, then within that period after the settlement commenced, 'to prove to the satisfaction of the surveyor-general,' or of such other officer as might be appointed by law for that purpose, the commencement of the settlement and cultivation required by the act, and after the expiration of four years from the date of such settlement, to prove in like manner, by two disinterested witnesses, the continued residence and cultivation required by the fourth section. And the act declared that upon such proof being made the surveyor-general, or other officer appointed by law for that purpose, should issue certificates, under such rules and regulations as might be prescribed by the commissioner of the general land office, setting forth the facts and specifying the land to which the parties were entitled; and that the surveyor-general should return the proof thus taken to the office of the commissioner of the general land office, and if the commissioner should find no valid objection thereto, patents should issue for the land according to the certificates, upon their surrender.

In pursuance of these provisions, and the regulations made by the general land office to carry the act into effect, the defendant, in May, 1852, within three months after the survey of the land had been made, gave to the surveyor-general notice of the tract claimed by him, and within twelve months after the survey proved, to the satisfaction of the surveyor-general, that the settlement and cultivation had been commenced on the 1st of September, 1849, and afterwards on the 10th of September, 1853, proved by two disinterested witnesses the fact of his continued residence upon and cultivation of the same for four consecutive years, which had then expired.

On the completion of this latter proof, on the 10th of September, 1853, the surveyor-general issued the required certificate, reciting therein the claim of a donation right made by Stark to a certain described tract of land; that proof had been made to his satisfaction that the settlement of Stark was commenced on the 1st of September, 1849, four years previous to the date thereof, and that the fact of his continued residence and cultivation since that period had been established by two disinterested witnesses; and he forwarded the certificate to the commissioner of the general land office, accompanied by the proof of the facts recited, in order that a patent might issue to the claimant for the tract described, if he found no valid objection thereto. No objection was found by him except such as arose from the supposed application to the tract in question of the Town Site Act of May 23d, 1844, which we shall presently examn e. The evidence was considered ample and the certificate satisfactory; and on the 8th of December, 1860, a patent was issued thereon to the defendant.

At the outset, however, the commissioner objected to the issue of this patent upon the ground that the land was brought under the operation of the Town Site Act by the organic law of August 14th, 1848, establishing the territorial government of Oregon, and was not subject to disposition under the Donation Act of 1850. And whilst the claim of Stark for a patent was pending before him, the corporate authorities of the city of Portland made an entry of the lands within the city limits to the extent of three hundred and seven acres and forty-nine hundredths of an acre, which included the premises in controversy, in trust for the several use and benefit of the occupants thereof, and presented to the commissioner a certificate of the register of the land office, in Oregon, of their having made full payment for the same. The commissioner accordingly issued a patent to them bearing date on the 7th of December, 1860, reserving, however, from its operation, any valid claims which might exist in virtue of the several donations to Stark and others.

The patent to Stark bearing date on the following day contains a reservation of a similar character in favor of the city of Portland. It grants the land subject to such rights as might exist in virtue of the entry by the city.

It was the intention of the commissioner of the general land office, and it was so directed by him, that the two patents should bear even date and be issued simultaneously. The omission to comply with his direction in this particular is, however, immaterial, for if the Town Site Act was not in force in Oregon before the right of Stark to a patent of his donation claim became perfected, the reservation of the patent was inoperative and void. That right became perfected when the certificate of the surveyor-general and accompanying proof were received by the commissioner of the general and office, and he found no valid objection to them. That is to say, if the Donation Act of 1850 was applicable to the lands, his right to a patent became perfect when the certificate of the surveyor and accompanying proof showed, in the judgment of the commissioner, a compliance with its requirements. That they were satisfactory to his judgment in this respect follows from the subsequent issue by him of the patent. His objection to the patent, as we have already said, arose, not from any defect in the certificate or proof, but from an opinion that the lands were subject to the provisions of the Town Site Act of 1844. That he was mistaken in this opinion we are entirely satisfied. The act of 1844 is only a part of the general land system of the United States, and is supplementary to the General Pre-emption Act of September, 1841. The act of 1841 confers the right of pre-emption upon individual settlers, reserving, however, from entry by them all lands selected as town sites; the act of 1844 allows the entry of lands thus selected to be made, if the town is incorporated, by the corporate authorities, and if not incorporated, by the judges of the county in which the town is situated; the entry to be made in trust for the several use and benefit of the occupants. Both acts limit the right of entry to surveyed lands. Neither individual nor city could claim this right with respect to any lands until they had been surveyed by the officers of the government. Every person, says the act of 1841, who shall make a settlement on the public lands 'which have been, or shall have been surveyed prior thereto,' shall be authorized to enter any number of acres, not exceeding one hundred and sixty, upon paying the minimum price.

'Whenever any portion of the surveyed public lands,' read the act of 1844, 'has been or shall be settled upon and occupied as a town site, and therefore not subject to entry under the existing pre-emption laws, it shall be lawful, in case such town shall be incorporated, for th corporate authorities, and if not incorporated, for the judges of the county in which such town may be situated, to enter at the proper land office and at the minimum price, the land so settled and occupied,' &c.

It is not pretended that any public surveys had been extended over Oregon previous to the act of 1850, or were ever authorized by the government. There were, therefore, no surveyed lands of which any entry could be made either by an individual or by any corporate authorities. The laws of Congress relating to pre-emption by individuals or entries by municipal authorities had, therefore, no application to the condition of things in Oregon at that time. The act of August 14th, 1848, organizing the Territory of Oregon, which declared that all laws of the United States should be in force in the territory, 'so far as the same, or any provision thereof, may be applicable,' did not extend over the country any portion either of the act of 1841 or of the act of 1844.

'It is well known,' says Mr. Justice Deady of the United States District Court of Oregon, in considering this subject, in Lownsdale v. The City of Portland, 'that at the time of the organization of Oregon Territory an anomalous state of things existed here. The country was extensively settled, and the people were living under an independent government, established by themselves. They were a community, in the full sense of the word, engaged in agriculture, trade, commerce, and the mechanic arts; had built towns, opened and improved farms, established highways, passed revenue laws and collected taxes, made war and concluded peace. As a necessity of their condition, and the corner-stone of their government and social fabric, they had established a 'land law' regulating the possession and occupation of the soil among themselves. That all this was well known to Congress at the time of the passage of the act of 1848, would be highly probable from its historic importance, and is certain to have been so from the language of the act itself.'

'The leading feature of the land law of the provisional government was that which provided that every male inhabitant of the country, over a certain age, should hold and possess 640 acres of land. The uses that the land might be put to were immaterial. The occupant might cultivate, pasture, it, or, if the possessed a good site, and had the thrift and enterprise, he might build a town upon it. In the disposition of the public lands this state of things called for peculiar legislation different in toto from that required in an unsettled country. Under these circumstances is is to be presumed that the act of 1844-an obscure and special provision of the then existing land system of the United States-was extended over this country, was the general provisions of the same contained in the Pre-emption Act of 1841 left behind? Nothing can be more unreasonable. It would tax the ingenuity of man to find a provision in the land system of the United States, as it stood in 1848, less applicable to the condition of the country, or that would have worked greater hardship, confusion and injustice than the act of 1844.'

The act of Congress of September 28th, 1850, 'to provide for extending the laws and the judicial system of the United States to the State of California,' declared, 'that all the laws of the United States, not locally inapplicable,' should have the same force and effect within that State as elsewhere in the United States, yet it was never supposed that this provision had the effect of extending over the State any portion of the land system of the United States in advance of the public surveys, upon which that system rested, and without which, as the law then stood, that system was inoperative. But, on the contrary, on the 3d of March, 1853, Congress, by special act, provided for the survey of the public lands in that State, and made them, so fr as individual pre-emption was concerned, with some exceptions, subject to the act of 1841; and when occupied as towns or villages, except when located on or near mineral lands, subject to the provisions of the act of 1944. This special legislation, with the exception of a few particulars, would have been unnecessary had those laws been extended over the State by force of the act of September 28th, 1850. So, too, the acts organizing the Territories of New Mexico, Kansas, and Nebraska, contained similar provisions, and extended the laws of the United States over them, so far as they were not locally inapplicable; yet subsequent special legislation was deemed necessary to extend any portion of the public land system over them.

The Donation Act of 1850 is of itself evidence that Congress did not then consider the acts of 1841 or 1844 applicable to Oregon. That law established no system of pre-emption, nor recognized any such system as having been previously in existence in the Territory. It substantially gave to every settler, upon certain conditions, the land which he occupied, excepting only mineral and saline lands, and such parcels as might be reserved by the President for forts, arsenals, and other public uses. The law, as well observes Mr. Justice Deady, in the able opinion from which we have already cited, 'was a system complete within itself, and admirably adapted to the condition of the people and the country as it found them,' and was 'a practical recognition and confirmation of the land law of the provisional government.'

A similar view of the subject was taken by the Supreme Court of the State, after full examination, in the case of Marlin v. T' Vault. That court concludes a well-considered opinion by stating that the people of the State had universally acted upon the belief that the act of 1844 was not in force there, and that the effect of a contrary rule would be to unsettle rights, and strike a blow at the prosperity of nearly every town in Oregon.

We are clear that the Town Site Act of 1844 was not extended to Oregon until the 17th of July, 1854; and even then that it only operated to exclude lands occupied as town sites, or settled upon for purposes of business or trade, from a donation claim, which had not been previously surveyed. Before the passage of this act the claim of the defendant, Stark, had been surveyed, and the required proof of his settlement and continued occupation and residence made, and such steps had been taken as to perfect his right to a patent. The lands embraced by his claim had then ceased to be the subject of purchase from the United States by any person, natural or artificial. The right to a patent once vested is treated by the government, when dealing with the public lands, as equivalent to a patent issued. When, in fact, the patent does issue, it relates back to the inception of the right of the patentee, so far as it may be necessary, to cut off intervening claimants.

It follows, from the views expressed, that the plaintiff derived no title or estate in the premises in dispute by force of the patent to the corporate authorities of the city of Portland. Although there was at the commencement of this suit no legislation by the State of Oregon for the execution of the trust, to which the act of 1844 contemplates that municipal authorities in receiving a patent shall be subjected, we have considered the case as though the trust had been executed, and the plaintiff, as one of the beneficiaries, had become invested with all the estate and right the authorities could possibly impart. Those authorities not having received any title or estate in the premises in controversy, could, of course, impart none to the plaintiff. His position is, therefore, reduced to that of a mere possessor without title. Such possession is entirely insufficient to justify the intero sition of equity for the determination of the defendant's title, even under the very liberal act of Oregon. The plaintiff must first show in himself some right, legal or equitable, in the premises before he can call in question the validity of the title of the defendant.

This case differs very materially from that of Garland v. Wynn, or that of Lindsay v. Hawes, and other cases to which the counsel of the plaintiff has referred. In Garland v. Wynn there had been a conflict between two claimants of a right of pre-emption to the same land under different statutes. The register and receiver of the local land office decided in favor of the assignor of Garland, and gave him a patent certificate. The commissioner of the general land office approved of the decision, and issued the patent to Garland. Wynn, the other claimant, whose entry was the oldest, and had been once allowed, thereupon filed his bill in equity, asserting his prior right to the land and his equitable title to the patent. The Supreme Court of Arkansas sustained the bill, and ordered the patentee to execute a conveyance of the land to the complainant, and on appeal this court affirmed the decision.

In Lindsay v. Hawes, the ancestor of the complainant had obtained a pre-emption right to the land in dispute, and received a patent certificate for the same. Some years afterwards the defendant, Hawes, claimed a like pre-emption right to the land, and received a similar certificate, upon which a patent was issued to him. The suit was brought by the heirs of the first pre-emptor to compel a conveyance of the legal title acquired by the patent from the patentee, and parties claiming under him with notice. This court held that the first pre-emptor had acquired the better right to the land, and was therefore entitled to a conveyance of the legal title.

These are only applications of the well-established doctrine that where one party has acquired the legal title to property to which another has the better right, a court of equity will convert him into a trustee of the true owner, and compel him to convey the legal title. The same observation will apply to the other cases cited by counsel. They have no pertinency to the case at bar, for here no prior or better right to the land in dispute is shown in the plaintiff.

The view we have taken has rendered it unnecessary to look into the evidence embodied in the record respecting the original settlement and residence of the defendant, or to consider how far it impeaches the proof presented by him to the surveyor-general in support of his donation claim.

The decree of the Supreme Court of Oregon must be REVERSED, and that court instructed to enter a decree directing the Circuit Court to dismiss the suit; and it is

SO ORDERED.

title: Stark v. Starrs/Opinion of the Court


text: Talk:Stark v. Starrs/Opinion of the Court


text:
Turton v. Dufief

ERROR to the Circuit Court for the District of Maryland.

Dufief, acting without compensation and merely as a friend of a certain Mrs. Fowler, then a widow, in July, 1851, lent for her $2000 (money belonging to her) to Wheeler, taking from him a note payable in one year, and a deed of trust or mortgage security amply sufficient to secure the sum lent. These were delivered to Mrs. Fowler some time previously to October, 1851. Mrs. Fowler received interest in three different payments, up to January, 1853, and in March of that year, $500 of the principal. Some time between this last date and August of the same year, 1853, she was married to one Turton, and in August and December, he, as her husband, received two payments of interest. Wheeler was a man in good credit and solvent when the money was lent, and continued so till 1855. In that year he executed another mortgage, or deed of trust, to one Linthicum, dated 20th December, 1854, which was put on record, May 4th, 1855. The mortgage of the plaintiff had never been put on record, and the security was out and lost on that account.

Tr ton, the husband, now sued Dufief for this loss.

The substance of the narr., when eliminated from various epithets which tended to give it the character of an action for deceit and not of one on contract, and which, as such, the court observed 'would be wholly unsupported by the evidence,' was as follows:

'That the defendant, having for the use of a certain M. R. Fowler (who hath since intermarried with the plaintiff) the sum of $2000, in consideration that she, the said M. R. F., would consent and agree that he, the said defendant, should lend the money to some person on good and sufficient security for the repayment thereof, and in consideration of the authority given by the said M. R. F., undertook and faithfully promised that he would diligently and carefully lend the said money to some person on good and sufficient security for the repayment thereof,' &c. 'Yet, that the said defendant contriving, &c., did not perform or regard his said promise, and did not diligently lend and invest the said sum of money to some person on good and sufficient security for the repayment thereof; but, on the contrary, lent the same to a certain Wheeler, and did not take good and sufficient security from him for the repayment of the same, whereby the same was wholly lost.'

The court below charged that if the jury should find that the note was given by the drawer to the defendant as agent of Mrs. Fowler, and that the defendant, with her consent, had lent the amount for which the note was given, from funds in his hands belonging to her, and that the defendant, shortly after the making of the note, and before it reached maturity, indorsed the same to Mrs. Fowler, and at the same time delivered to her the note so indorsed, with the deed of trust executed to secure its payment; and further, that at that time, and when the note became due, the drawer, Wheeler, was solvent, and fully able to pay the same, and that the security for its payment was at that time free from the incumbrance of any subsequent deed from Wheeler, and sufficient for the payment of the said note-then that the plaintiff could not recover, although the jury might find that the debt was lost by the failure to place the deed on record before the recording of the subsequent deed to Linthicum.

The case was now here on exception by Turton to that charge.

Messrs. Brent and Phillips, citing Coggs v. Bernard, contended that the bailee having entered upon the performance of his contract, had become liable for its discharge with diligence and correctness; that the contract here had been attended to with gross negligence; the recording of the papers having been obviously and indispensably essential to any 'good and sufficient security' for the money lent.

Mr. Bradley, Senior, contra, citing 'The American Jurist,' vol. xvi, p. 254, as containing true views of the liability of gratuitous as distinguished from paid bailees, contended, first, that there was no such consideration set forth in the declaration here as made a 'contract;' the act having been wholly for the ease and benefit of the bailor, and a mere burden to the bailee; that there was accordingly no 'contract' in legal sense in the case; that the defendant could be liable for nothing but fraud, of which there was none in the case; contending, secondly, that whatever engagement Dufief had entered into had been fully performed with due diligence, and as exactly as it was agreed to be.

Mr. Justice GRIER delivered the opinion of the court.

title: Turton v. Dufief


text: Talk:Turton v. Dufief

title: Talk:Turton v. Dufief


text:
Turton v. Dufief/Opinion of the Court

We do not consider it necessary vindicate our opinion in affirming the charg of the court below, to enter into a discussion of the law of bailment in general from Coggs and Bernard down to this time, or clearly to define the difference between negligence and gross negligence. The evidence clearly esa blishes the fact that the defendant 'did diligently and carefully lend and invest the sum of money intrusted to him on good and sufficient security for the repayment thereof.' It is the gravamen of the charge in the plaintiff's narr. that he did not do so.

The mortgage was a sufficient security without being recorded, and continued to be so for three years. It was in the possession of the plaintiff his wife. The plaintiff himself had it in his possession near four months before the second mortgage was put on record. The neglect to put it on record may more properly be imputed to himself than to the defendant.

We are asked to decide that the gentleman who did Mrs. Fowler the kindness to make the investment for her should have anticipated her negligence, and that also of her husband, and have anticipated the insolvency, also, of the mortgagor, and that he has been guilty of negligence, either simple or gross, which should make him liable in the present action.

We do not take this view of the case, and find no error in the charge of the court.

JUDGMENT AFFIRMED.

The CHIEF JUSTICE did not sit in this case.

title: Turton v. Dufief/Opinion of the Court


text: Talk:Turton v. Dufief/Opinion of the Court