text:
Tappan v. Beardsley/Opinion of the Court

IN error to the Circuit Court for the Southern District of New York; the case being this:

John Beardsley and Horace Beardsley, merchants of Norwalk, Huron County, Ohio, brought an action in the court below against Lewis Tappan, of New York, for a libel.

Tappan was the proprietor of what is now generally known as a 'Mercantile Agency,' the purpose of which is to collect information of the standing, character, and credit of merchants all over the country, and to communicate such information for reward to the business houses who may need it in their dealings with the former. And it was a communication made by Tappan to one of his customers concerning the plaintiffs, Beardsley & Co., that constituted the alleged libel.

The substance of that communication was that Beardsley & Co. had been sued, that J. Beardsley's wife was about to sue him for a divorce and alimony, in consequence of which he had put his property out of his hands, and that their store would probably be closed at once if the suit was brought.

To a declaration setting this out as the foundation of the action the defendant pleaded the general issue, and gave notice under the practice in New York of special matter to be offered in evidence. This special matter presented two defences: 1st, an attempt to bring the publication of the libellous words within the rule which protects privileged communications; and 2d, an assertion of the truth of the words published. This latter plea alone was the important one in the case as finally here decided.

On the trial the plaintiffs offered in evidence and proposed to read the whole record of a suit for divorce, brought in the name of John Beardsley's wife, against him, in Huron County, Ohio; a suit, which it seemed had been commenced some four or five months after the alleged publication of the libellous matter for which the suit below was brought, and some time also after the commencement of the suit itself. The petition of the wife in the record thus offered to be read, alleged adultery. An answer of Beardsley (not sworn to) followed, denying the adultery, and alleging that the suit was not instituted by his wife or for her benefit, but that it was instituted by Tappan himself and by his counsel (through one Kennan, who, it was alleged, had been the secret informer and agent in Norwalk, of Tappan and his commercial agency) for the sole purpose of making good the slander which Tappan had published against Beardsley on that subject. With this petition and answer were the depositions of several witnesses; most of the depositions tending to show that Beardsley's wife was a woman of most violent, jealous, and impracticable temper, partially insane, perhaps, and that there was no ground for her petition for divorce. Finally, as part of the record, came the order of court dismissing the petition.

The circumstances under which this dismissal was made, were thus disclosed in one of the depositions certified with the record in divorce, and offered with it:

'S. F. Taylor, the attorney for Mrs. Beardsley, moved a continuance of the cause on the ground that some of his material witnesses were not in attendance, and could not be found. The motion was opposed by John Beardsley, and he then stated to the court, as also to Mr. Taylor, that all the witnesses named in their subpoena, and particularly those whom Mr. Taylor said were absent, were then in court; that Beardsley said that he had good reason to believe that the suit was not intended to be brought to a hearing, and that at his own expense and trouble he had procured the attendance of all Mrs. Beardsley's witnesses, to prevent a continuance.

'The court then overruled motion for continuance, and said that if Mr. Taylor had no other reason for continuance, he must proceed to a hearing. Whereupon Mr. Taylor abandoned the suit, and it was ordered by the court to be discontinued.'

Another of the depositions appended to this record in divorce, and taken in that proceeding, was that of Mr. S. F. Taylor, the attorney for Mrs. Beardsley, above named, himself. It thus ran;

S. F. Taylor, of lawful age, being by me first duly sworn, as hereinafter certified, deposes as follows:

Question. Have you ever seen the complainant?

Answer. I cannot answer if it has any materiality in the case, without revealing what belongs to me exclusively, as counsel for complainant.

Question. I do not seek to draw out any confidential communications made to you as counsel; I simply want to know whether you have ever seen complainant?

Answer. I cannot answer without revealing such facts as might lead to the inference of other facts, that belong to me as counsel.

Question. Do you refuse to answer the question, 'Have you ever seen the complainant?'

Answer. I do, as her attorney.

Question. By whom were you retained as attorney for the complainant?

Answer. By the complainant, and by nobody else.

Question. Did she retain you in person, or by a third person?

Answer. I cannot answer that question without revealing facts which I have no right to reveal, as counsel.

Question. Have you ever seen the complainant before or since, or since the commencement of this suit?

Answer. I have seen her, or seen a person called Mrs. Beardsley.

Question. Where did you see her, and when?

Answer. I saw a lady that was called Mrs. Beardsley some time ago, but cannot tell the time when.

Question. How long ago?

Answer. I think about two years ago.

Question. Did you speak to her?

Answer. I did not.

Question. Have you ever spoken to her?

Answer. I cannot say that I have.

Question. Do you now recollect to have ever seen her except on the occasion above referred to?

Answer. I do not.

Question. Did you frame the bill in this case?Answer. I did.

Question. Were you employed by her personally, or by some other person for her as her agent?

Answer. I cannot answer this question, in my opinion, without revealing facts that belong to me alone as counsel, and which as an attorney I have no right to reveal.

Question. I do not ask you to reveal a single confidential communication. I simply wish to know whether you are retained by the complainant in this case in person, or by some other party having an interest therein?

Answer. I have not seen the complainant in person, and I know of no other person, and have heard of none other that has any interest in this suit.

Question. Were you requested by any person to file the bill in this case?

Answer. I was spoken to on that subject, and told that complainant wanted me to act as her attorney in this case. But I was never requested to act in the matter for or on account of any one else?

Question. By whom were you spoken to?

Answer. From the course taken in this examination, and from the declarations of defendant, I do not believe I can answer it without revealing facts that are my own property as counsel, and that I have no right to reveal.

Question. You say you were spoken to to file a bill in this case; was that request a verbal or a written one?

Answer. It was verbal.

''Question. Was the request made by a man or a woman?''

''Answer. It was a man''.

Question. Where does he reside?

Answer. In Norwalk.

Question. What is his profession?

Answer. I can answer no question tending to show his identity without, in my opinion, revealing facts that I have no right to reveal as attorney.

Question. Do you know whether the person who requested you to file this bill is now or ever has been the reporter of Lewis Tappan's Commercial Agency, or Cleveland's Commercial?

Answer. I do not know anything of either of these agencies.

Question. How do you know that the person was authorized by the complainant to employ you to file a bill in this case?Answer. I have no positive knowledge that she did authorize him.

Question. How then can you swear that you were retained by the complainant?

Answer. I can only say from the facts that I have been retained by nobody else, except in doing an errand, as I supposed that at my request the dates and circumstances necessary to file the bill, and that I think could not have been supplied by anybody else since finished, and that I have since received the names of witnesses and the facts to which they would attest in handwriting said to be hers, as I believe.

When this record in divorce, with the answer, depositions, &c., was offered in evidence on the part of plaintiff, the counsel of defendant objected on several grounds, which were overruled; and then when the plaintiff's counsel proposed to read the whole record the counsel of the defendant objected, and insisted that only so much thereof as showed the nature of the suit and the time of the commencement thereof could be read, and especially that the answer of John Beardsley, the defendant therein, could not be read against the defendant in this action. The objections were overruled, and the whole of the record was read to the jury, to which action of the court the defendant's counsel excepted.

In the suit below, also, the plaintiffs called as a witness one of the clerks of Tappan's own Mercantile Agency, and proposed to ask him whether Tappan had at the time of this alleged libel an agent or correspondent in Norwalk, Ohio; and if so, who he was. Tappan's counsel objected to the question, on the ground of immateriality to the issue; but the court overruling the objection, the question was put to him. The witness now declined to answer, for the reason, among others, 'that his answer would tend to accuse or criminate him [the correspondent?-REP.] in a charge of an indictable misdemeanor.' The bill of exceptions proceeded:

'But the judge ruled that the witness was bound to answer the question; and on his still declining so to do, he was adjudged by the court to be guilty of a contempt of court in the face of the court, and was sentenced to be committed to prison for his said offence, there to remain until discharged by due course of law.'

The jury found a verdict for the plaintiffs $10,000, and judgment was entered accordingly. The case was now here; the questions presented for review to this court arising from a bill of exceptions taken on the trial, and relating to the objections taken by defendant to the admission of evidence, and to the ruling of the court in instructing the jury.

Messrs. C. O'Connor and William Allen Butler, for the plaintiff in error; Messrs. Casey and Bartley, contra.

Mr. Justice MILLER delivered the opinion of the court.

In the admission of evidence we are of opinion that the court committed an error that must have contributed very largely to swell the amount of the verdict, which, without such testimony, was perhaps unusually and unjustifiably large, and might possibly have been for the defendant.

The error referred to was in the introduction of the record of the suit for divorce. The record thus read to the jury consisted of the petition of the wife of Beardsley for divorce, the answer of Beardsley, the depositions of several witnesses taken by Beardsley in that suit, and the order of the court dismissing the bill. The influence of this record on the verdict of the jury will be at once understood by a slight reference to its contents. It seems that the suit was commenced some four or five months after the alleged publication of the libellous matter for which this suit was brought, and some time after its commencement. Beardsley in his answer alleged that the suit was not instituted by his wife or for her benefit, but by Tappan, and by counsel employed by him, for the sole purpose of making good the slander which he had published against Beardsley on that subject.

The testimony of S. F. Taylor, who was the attorney that brought the divorce suit, is also a part of the record so read, and having been taken by Beardsley is as artfully contrived as it could possibly be made, to confirm the truth of Beardsley's answer, that the suit was brought at Tappan's request without the authority of the nominal plaintiff; and all this is confirmed by his final appearance and dismissal of the suit for want of prosecution.

In short, no one can read that record and believe it without being convinced that Tappan, having slandered Beardsley, and being called into account for it, entered into a still more disgraceful conspiracy to establish the truth of what he had said by using the name of Beardsley's wife in a suit against him for divorce without her authority, and without any shadow of justice.

The effect of this in aggravating the damages to be recovered is too plain to require comment. And yet Tappan was no party to that suit; had no right to control or influence the making of that record; could not cross-examine the witnesses, all of whom were Beardsley's, nor take any exceptions to or contradict Beardsley's answer. It is difficult to conceive upon what principle the record of that suit was admissible for any purpose whatever in the trial of this one. If the defendant had introduced any evidence to show that a suit for divorce had actually been brought, in support of his statement that there was a rumor that it would be done, then it might have been competent for the plaintiff to show when it was instituted, as some evidence that no such rumor existed when Tappan so reported. But it does not appear that Tappan attempted to show in this suit that the divorce suit had ever been instituted. All that comes from the plaintiff, and it is difficult to see what relevancy it had to any issue before the court. If, however, a state of case could possibly have existed to justify the introduction by the defendant of that record for that purpose, it could be used for no other, and the answer of Beardsley and the depositions of the witnesses were not only irrelevant to the issue then being tried, but they were forbidden by other well-established rules of evidence:

1. Beardsley's answer was not sworn to, and was made with a probable view to its use against Tappan in this suit, and was made when Tappan could neither contradict his statements nor cross-examine him.

2. As to Taylor's deposition, the fact that he was a competent witness in the present suit and could have been used by the plaintiff as such, is sufficient to exclude his deposition taken in another suit, even if Tappan had been a party to that suit. Still more forcible is the objection when the deposition was taken in a suit to which Tappan was no party, and on an occasion of which he had no notice, and when he had no right to cross-examine him or to controvert the truth of what he said.

Two inconsistent reasons are given in support of the ruling of the court on this point.

It is said first that the depositions do not constitute a part of the record of the divorce suit, and were, therefore, not read in the present suit. And it is true that such depositions not read on the trial of the divorce suit could in no just sense constitute a part of the record. But it is clear to us from examining the bill of exceptions of the present case that the depositions were read to the jury as a part of the record of the divorce suit, and were so read against the objection of the defendant.

It is said, on the other hand, that they should have been read because they were a part of the record, and that when one part of a record of a suit is read all must be read.

When one party introduces and reads from such a record that which suits his purpose, the other party may read for his own benefit all that relates to that subject, or require the party introducing the record to do so. But we know of no rule which, because a party may use a record or part of it to establish a fact that can only be established by record, authorizes the same party to use everything else which may be found in the record, however irrelevant to the issue on trial, or however it may violate other well-established principles of the law of evidence.

It is possible that the plaintiff had a right to show that the divorce suit against him was brought long after the publication of the slander and after Tappan had been sued for it; and that for this purpose the record was admissible. But this by no means establishes his right to bring before the jury the entire merits of the divorce suit, the depositions taken in that suit which bear hardly upon Tappan, who was no party to it, and the answer of Beardsley making charges against Tappan, when the latter could make no reply to them.

Upon this question the case of the Marine Insurance Co. v. Hodgson, Rutherford v. Geddes, and Laybourn v. Crisp, are directly in point; and the authorities cited by Mr. Taylor in his work on Evidence, fully sustain the proposition laid down by him, that depositions in chancery can only be read when the bill shows that the cause was against the same parties, or those claiming in privity with them.

For this error the judgment of the Circuit Court is

REVERSED, AND A NEW TRIAL AWARDED.


text: Talk:Tappan v. Beardsley/Opinion of the Court

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text:
Kimball v. The Collector

ERROR to the Circuit Court for Massachusetts; the case being this:The fifth section of an act of March 3, 1857, 'reducing the duties on importations and for other purposes,' imposes an ad valorem duty of 24 per cent. on unmanufactured wool, but exempts from duty such wool (being sheep's) 'of the value of 20 cents per pound or less, at the place of exportation.'

Another act of the same day, amendatory of an act of 1846, allows the importer to make such addition in the entry to the cost or value of the imports, given in the invoice, as in his opinion may raise the same to the true market value in the country whence exported. The collector is then to have them appraised, and if the appraised value exceeds by 10 per cent. the value declared as above on entry, a duty of 20 per cent. ad valorem is to be added to the duty imposed by law. And the act concludes:

'Provided, nevertheless, that under no circumstances shall the duty be assessed upon an amount less than the invoice or entered value, any law of Congress to the contrary notwithstanding.'

This enactment and this proviso being in force, Mr. Cobb, then Secretary of the Treasury, made in September, 1857, soon after the passage of them, a decision thus:

'In estimating the foreign value of wool, with reference to its exemption from or liability to duty, the appraisers can determine such value independently of the invoice, by prices current and other reliable means of information, of the value of the article in foreign markets, such as they employ in ascertaining the foreign values of other staple articles of import.'

In this state of things, Kimball bought at Cape Town, Africa, a quantity of wool of the sort above mentioned, at 10 pence sterling (somewhat more than 20 cents Federal money) a pound. He did not, however, ship it at once, but kept it on hand at Cape Town. Some months, afterwards, that is to say in June, 1861, he shipped it to the United States; the price of wool at the date of shipment having fallen to 8 1/2 pence per pound (less than 20 cents Federal money). The wool, however, was invoiced in accordance with the requirements of law, at its actual cost, 10 pence sterling per pound, and was entered according to the invoice value, which, of course, made it dutiable at the rate of 24 per cent. ad valorem.

The appraisers reported upon the invoice:

'Value correct in English weight, April 25, 1861.'

This report was in accordance with a custom prevailing in their department to make invoices in this manner, in which the price stated is high enough to cover the market value; and the duties, $15,651, were accordingly assessed upon it at this value.

After the appraisers had made their report, and duties had been estimated on the wool, but before payment of them by the importer, the collector requested the appraisers to make a re-examination of this wool, and a formal appraisement of its value. The appraisers, in reply, declined to make any appraisement of it at less than the invoice price, giving as a reason that they could not do this by law; but, at the collector's request, they made to him a statement in writing, which they expressly declared was not an official appraisement, in which they stated the market value of this wool in the principal markets of the country from which it was exported, to have been at the time of its exportation, 8 pence 3 farthings per pound, less than 20 cents Federal money, and a rate at which the wool would, of course, have been duty free.

The decision of Mr. Cobb was not brought to the knowledge of the appraisers at the time of their appraisement of this wool.

The importer having complied with all the technical and formal requirements necessary to enable him to maintain an action under the act of Congress, against the collector, for the recovery of duties illegally exacted, brought the suit below to recover these; it being agreed by the parties that if, upon the case stated, the value of this wool, as far as the laws of the United States were concerned, could be considered as less than its invoice price, then judgment should be for the importer; otherwise for the collector.

The court below gave judgment for the collector, and the importer brought the case here; the question, and the only question, being whether, taking into consideration the language of the first statute of 1857, and also that of the proviso to the other act of the same day, the collector should have allowed this wool to be entered free, when the price stated in the invoice was more than 20 cents, and its actual value was less.

Messrs. C. Cushing and W. E. Chandler, with a brief of Mr. W. E. Ingalls, for the importer, plaintiff in error:

1. The statement in the invoice, of the cost of the wool, was made as of course and in accordance with the law of Congress, of which the importer is obliged to state in the invoice the exact sum paid for the goods. But various other acts of Congress would indicate that it was the intention of that body that in determining whether wool was free or dutiable its actual value at the port and date of exportation should govern.

The act of 1832 is as follows:

'Wool unmanufactured, the value whereof at the place of exportation shall not exceed 8 cents per pound, shall be imported free of duty.'

That of 1857, under which this importation arose, is to the same effect.

A third, that of 1861, is thus: it exempts—

'Wool unmanufactured, the value whereof at the last port or place from whence exported to the United States shall be 18 cents or under per pound.'

This court, in Peaslee v. Sampson, decide that the day of sailing is the date when the value is to be taken.

2. Mr. Cobb's decision shows that the practice of the department under this very act was in harmony with this interpretation. Another decision, not presented in the case as stated, was issued June 15th, 1857, thus:

'On a question submitted to the department, it is decided that the time at which the value of wool at the port of exportation is to be estimated with a view to its exemption from duty under the tariff act of March 3d, 1857, is the date of exportation from the foreign port for the United States, as provided by law in reference to the appraisement of imports for the assessment of duties.'

Under these interpretations of the act by the Treasury Department, this importer acted, and the interpretation has been sustained as a true one in the 2d circuit (by Smalley, J.), in the case of Davison v. Draper.

title: Kimball v. The Collector


text: Talk:Kimball v. The Collector

title: Talk:Kimball v. The Collector


text:
Kimball v. The Collector/Opinion of the Court

3. Is the intent of Congress, as expressed in the first act of 1857, controlled by the proviso in the later act?

It being the rule in the construction of statutes, as declared by Lord Mansfield, that all which relates to the same subject must be taken to be one system and construed consistently construed also, another well-known rule tells us, ut res magis valeat quam pereat-no conflict is to be allowed if it be possible to prevent a conflict. Now here no conflict will exist if we interpret things under the guidance of these rules, and reasonably.

The two statutes relate to entirely different matters. The proviso is to the 2d statute, and operates only on the class of cases which it embraces.

The first statute provides a way to determine whether an article is free or dutiable. If it is found to be free when tried by this test, then the proviso does not apply, for there is no duty to be assessed. If, on the other hand, the wool is found when tested by the first statute to be dutiable, then the last statute applies and says upon what that duty shall be assessed.

For instance, suppose this wool had been invoiced at 22 cents, and when examined its value at the port and period of exportation had been found to be 21 cents. By this last report it was dutiable, and then by the proviso the dutiable value would be 22 cents, or the price stated in the invoice.

An opposite mode of interpretation involves us in great difficulties.

First. If the proviso does control the previous statute, then it practically defeats its operation, for the intention of Congress in the statute of 1857 is clear, as has been previously shown, that the value of the import shall govern. The court must avoid, if possible, a construction which makes Congress stultify itself.

Second. By holding that this proviso controls the previous statute you hold out an inducement to merchants to make fraudulent sales to avoid the effect of such a construction. If, for example, prices fall between the date of purchase and the date of exportation so far as to exempt from duty that which was charged with a heavy duty, the owner will make a fictitious transfer at the lower price to some friend, and the goods will be invoiced anew at the lower price. The court must avoid a construction which makes Congress guilty of legislation whose effect is to cause frauds on the revenue.

4. Every consideration of equity and justice is here upon the side of the importer, and this should have great weight when the law is doubtful.

5. But if the proviso is irreconcilable with the preceding statute, the proviso it is which must give way, not the enactment. The enactment is the principal thing; the proviso subsidiary and adjectitious. *

Mr. Akerman, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, contra:

1. It is not well argued, as argued by opposing counsel, that independently of the proviso, this wool should be assessed at its value at the date when exported.

The language of the statute of 1857, exempting certain wool from duty, is almost identical with that of the statute of 1832, exempting from duty wool not exceeding in value eight cents per pound. Under the statutes at that time in force, goods imported from the country of their production were appraised for the purpose of imposing duties at their value in that country 'at the time when purchased,' and this continued to be so until the statute of March 3d, 1851.

By the statute of 1842, it was enacted 'that in all cases where there is or shall be imposed any ad valorem rate of duty on any goods,' &c., 'imported, and in all cases where the duty imposed shall by law be regulated by or directed to be estimated or based upon the value of any specified quantity or parcel of such goods,' &c., 'it shall be the duty of the collector. . . to cause the actual market value, or wholesale price thereof at the time when purchased in the principal markets of the country from which they shall have been imported,. . . to be appraised, estimated, and ascertained,' and this value, with certain other charges specified, is made 'the true value at the port where the same may be entered, upon which duties shall be assessed.'

By the statute of 1851, it is enacted 'that in all cases where there is, or shall be imposed any ad valorem rate of duty on any goods,' &c., 'imported into the United States, it shall be the duty of the collector. . . to cause the actual market value, or wholesale price thereof, at the period of the exportation to the United States, in the principal markets of the country from which the same shall have been imported,. . . to be appraised, estimated, and ascertained,' and such value or price, with certain other specified charges, is made 'the true value at the port where the same may be entered, upon which duties shall be assessed.'

By this act, all acts and parts of acts inconsistent with its provisions are repealed.

Thus the statute of 1851 only applies to the first class of cases mentioned in the statute of 1842; namely, those cases 'where there is, or shall be imposed, any ad valorem rate of duty,' and omits all reference to the other class of cases; namely, 'those where the duty imposed shall by law be regulated by, or directed to be regulated by, or based upon the value of any specified quantity,' &c., of the goods. This omission is significant, and would seem to show that, as to this latter class of cases (within which ours falls), the value at the time when the goods were purchased is to be considered the true value at the port of importation, and not the value at the time when they were exported.

2. But, however this may be, the invoice price must be here regarded as conclusive evidence of the value.

Under the customs laws, the invoice is generally conclusive evidence of value as respects the importer, though not as respects the government.

By the statute of 1823, a true invoice, containing a just and faithful account of the cost of merchandise which has been purchased, and supported by oath, is required when goods are imported.

By section 17 of the tariff act of 1842, a penalty of fifty per cent. additional duty was imposed when the appraised value exceeded by ten per cent. the invoice value; and it was not until the statute of 1846 that the importer was allowed 'to make such addition in the entry to the cost of the value given in the invoice as in his opinion may raise the same to the true market value of such imports in the principal markets of the country whence the importation shall have been made:. . . Provided, nevertheless, that under no circumstances shall the duty be assessed upon an amount less than the invoice value, any law of Congress to the contrary notwithstanding.'

This act was amended in certain respects immaterial to the present discussion by the act of 1857, but the above quoted proviso was re-enacted in the same language.

By our revenue laws, therefore, the invoice is regarded, not as a mere bill of parcels, but as a solemn statement of the importer, supported by oath. For a long time, an innocent difference between the invoice value and the true value of imported goods, by which the latter exceeded the former ten per cent., was made the occasion for imposing a penalty of fifty per cent. additional duty, and the statutes which relieve the importer from this harsh burden expressly provide that under no circumstances shall the duty be assessed upon an amount less than the invoice value.

There is no authority for the idea of the other side, of making one appraisement for the purpose of determining if merchandise be exempt from duty, and if it is found to be dutiable, then of making another appraisement for the purpose of determining the value upon which ad valorem duties are to be assessed, and it would seem to follow that the invoice must be as binding in the one case as the other.

Revenue systems are largely artificial. The values in reference to which duties are assessed are often arbitrary. There is no hardship in enacting that particular imports of such a value shall be duty free; provided, however, that nothing less than what the party has deliberately sworn to as their cost shall be taken to be such value. At all events the hardship is no greater than it is in any case where the invoice value exceeds the real value. But whether greater or less, courts cannot remedy it.

Mr. Justice CLIFFORD delivered the opinion of the court.

Import duties, illegally exacted, if paid under written protest 'signed by the claimant,' setting forth distinctly and specifically the grounds of objection to the payment, may be recovered back in an action of assumpsit against the collector.

Recent enactments have annexed certain other conditions, of a very important character, to the right of action in such cases, but it is not necessary to enter into those details as none of the new provisions have any application in the case before the court.

Four hundred and ninety-one bales of wool were imported in the month of June, 1861, into the port of Boston by the plaintiff or his intestate, and the agreed statement shows that the wool was duly entered at that port for consumption. Duties were assessed upon the same to the amount of fifteen thousand six hundred and fifty-one dollars and eighty cents, and the plaintiff or his intestate paid the same, having first complied with all the formal conditions to enable him to maintain the present action.

Wool unmanufactured, of the value of twenty cents per pound or less at the port of exportation, was at that time entitled to be admitted to entry free of duty, but wool unmanufactured, 'imported from abroad,' of greater value than twenty cents per pound at the port of exportation, was subject to an ad valorem duty of twenty-four per cent., as imposed by the act reducing the duty on imports and for other purposes.

By the agreed statement it appears that the wool imported in this case was shipped in the barque Vatella, which sailed from Cape Town on the twenty-fifth of April prior to the importation, but it also appears that the wool was purchased by the shippers at that place several months before the barque sailed. They purchased it at ten pence sterling per pound, as stated in the invoice, and the parties agree that the price given in the entry at the custom-house is the same as that given in the invoice, and that both correspond with the actual cost of the wool at the place of exportation.

American ships bringing goods from any foreign port into the United States are required to have on board a manifest signed by the master describing the goods and the vessel, and giving the name of the port where the goods were shipped, and the name of the port to which they are consigned.

On arriving within four leagues of our coast the master of such ship is required, if the proper officer of the customs comes on board, to produce such manifest to such officer for his inspection, and he is also required, within twenty-four hours from the time the vessel arrives at a port of the United States where an officer of the customs resides, to report that fact to the collector or chief officer of the customs at that port.

Goods imported from any foreign port or place are required to be landed in open day, and the act of Congress provides that such goods shall not be landed or delivered from the ship without a permit from the collector and naval officer, if any, for such unlading and delivery. Authority to grant such a permit does not exist, if the goods are intended to be entered for consumption, until the duties are paid or secured to be paid, and the duties are never paid nor are they ever secured to be paid in such a case before the importation is complete and the goods are entered at the custom-house. Such an entry, that is, an entry for consumption, must be in writing, and must be made by the owner, consignee, or agent, to the collector of the district, within fifteen days from the time the master reports the arrival of the vessel, and the person making the entry must also produce to the collector the original invoice or invoices, or other documents received in lieu thereof, or concerning the same, in the same state in which they were received, with the bills of lading.

Examination of the entry, as presented by the owner, consignee, or agent, is usually made by the entry clerk, and if found to be correct the collector proceeds to estimate the duties 'on the invoice value and quantity,' and if the estimated amount of the duties is paid or secured to be paid, as required by law, the collector is then authorized to grant a permit for the discharge and landing of the cargo. Until those acts are performed no one has any authority to grant a permit or to remove the hatches, but the inspector remains in charge of the vessel.

Import duties, it will be observed, are estimated in the first place, if they are ad valorem, on the invoice value and quantity as shown in that document, unless additions are made to the same by the owner, consignee, or agent, in the entry at the custom-house, and in that state of the case the duties are estimated on the invoice value and quantity together with those additions to the same, but in either event the duties are estimated at that stage of the proceedings without any appraisal.

Evidently it must be so, as the estimated duties are required to be paid or to be secured to be paid before the permit is granted to remove the hatches, and before the goods are landed from the vessel.

Such duties so estimated may be paid at the time, or, what is more usual, they may be secured to be paid by depositing the amount in gold with the collector, subject to an equitable adjustment when the duties are liquidated and the correct amount of the same is ascertained by such subsequent proceedings as are prescribed by law for that purpose.

Subsequent proceedings are essential to the ends of justice, as computations based solely on the invoice value and quantity will seldom prove to be correct, as the values expressed in the invoice may be less than the true market value of such imports in the principal markets of the country whence the importation was made, or articles imported may have been omitted in the invoice, or articles contained in the invoice may have been lost during the voyage, or the actual quantities as ascertained by the weighers, gaugers, or measurers may differ from those given in the invoice and entry. Corrections of the kind are frequently necessary, but they are never made until the goods are landed and appraised.

Collectors are required by law to cause the dutiable value of imported goods subject to an ad valorem rate of duty to be appraised, estimated, and ascertained, and the provision is that if the appraised value shall exceed by ten per centum the value so declared in the entry, the goods are subject to a duty of twenty per cent. ad valorem on such appraised value in addition to the rate imposed where no such under-valuation is shown.

Penalties of the kind, however, may be avoided if the under-valuation in the invoice is corrected in the entry at the custom-house, as the same section provides that it shall be lawful for the owner, consignee, or agent of imports which have been actually purchased, or procured otherwise than by purchase, on entry of the same to make such addition in the entry to the cost or value in the invoice as in his opinion may raise the same to the true market value of such imports in the principal markets of the country whence the importation shall have been made.

Additions may be made to the cost or value of the goods as given in the invoice to raise the same to the true market value, but the additions, in order that they may have effect to avoid the additional duty of twenty per cent., must be made before or at the time of the entry, as no such corrections can be made afterwards, or, in other words, the additions, if any, must be made before the permit is granted and before the goods are landed, because if they are not made before those acts are performed the additions made to the cost or value given in the invoice would not become a part of the dutiable value in estimating the duties prior to the appraisal, and if the appraisers should report that the invoice value was correct the amount of the additions would escape taxation altogether. Nothing remains to be done subsequent to the granting of the permit and the landing of the goods except such acts as are required by law to correct any errors in the invoice and to liquidate the duties, as the express provision in the principal collection act is that all the duties on goods, wares, and merchandise shall be paid or be secured to be paid before a permit shall be granted for landing the same.

Before the permit is granted, it is the duty of the owner, consignee, or agent to present the invoice to the collector and make the entry in the form required by law, and thereupon the collector certifies the invoice and grants the permit in due form for the discharge and landing of the cargo, first designating the packages, at least one in ten, to be sent to the public store, and marks the same on the entry, invoice, and permit.

Packages intended for examination by the appraisers are usually sent to the public store for that purpose, but cumbrous articles may be examined on the wharf where they were landed, and samples may, in certain cases, be used for the same purpose instead of the packages from which they were selected by the sampler.

Pursuant to the usual practice the goods in this case were entered for consumption according to the invoice value, to wit, at ten pence sterling per pound, expressed in decimals, which made the wool dutiable at the rate of twenty-four per cent. ad valorem.

Tested by the facts of the case as given in the agreed statement, it is clearly to be inferred that the preliminary proceedings were correct; that the invoice was seasonably presented to the collector; that the entry of the goods was regularly made for consumption; that the duties were properly estimated on the invoice value and quantity; that the duties as thus estimated were duly paid or secured to be paid before the permit was granted; that the permit was subsequently granted in due form for the landing of the goods, and that one in ten of the packages was ordered to the public store for the examination of the local appraisers. Prior to that stage of the proceedings the appraisers have no jurisdiction of the case, and they have no duty to perform in the premises.

Beyond doubt, the collector may direct that all packages shall be examined, but he is required to designate on the invoice at least one package of the same, and one package at least of every ten packages of the importation, and the direction is that he shall order the same to the public stores to be opened, examined, and appraised. All those requirements having been fulfilled, the appraisers are furnished with the original invoice which contains the marks of the collector, designating the packages sent to the public stores for their examination.

Briefly stated, their duty is to appraise, estimate, and ascertain the true market value of such imports in the principal markets of the country whence such importation was made, and to report their doings to the collector. They examined the packages sent to the public stores, and the agreed statement shows that they reported upon the invoice 'value correct,' in accordance with the prevailing custom to mark invoices in that manner in cases where the price given in the invoice was high enough to cover the market value.

Complaint is made that the custom does not allow the appraisers to reduce the invoice value when it is greater than the true market value, but the decisive answer to that complaint is that the act of Congress authorizing the appraisal of the importation expressly provides 'that under no circumstances shall the duty be assessed upon an amount less than the invoice or entered value' of the importation. Where the entered value is the same as the invoice value the legal effect of the requirement is the same as it was in the prior act which did not contain the words entered value, but in cases where the owner, consignee, or agent makes additions to the value expressed in the invoice to avoid the penalty of twenty per cent., the words 'entered value' have a special application, and in those cases the duty cannot be assessed upon an amount less than the entered value, which includes the value expressed in the invoice and the additions made thereto by the owner, consignee, or agent before or at the time the goods were entered at the custom-house.

Ten pence sterling per pound was the actual cost of the wool at the time it was purchased, and the price actually paid for the wool is the value expressed in the invoice, and the same value is given in the entry made by the consignee, and the agreed statement shows that the appraisers reported that the invoice value was correct, and if the matter had stopped there the case would be too plain to admit of any controversy, as it would show that every requirement of law had been followed without the least departure, and that nothing had been done to which the plaintiff or his intestate objected at the time the act was performed, as he made the entry and gave therein the value expressed in the invoice as the true market value of the imports in the principal markets of the country whence the importation was made.

'Value correct,' was the report of the appraisers when they returned the invoice to the collector, and the duties were liquidated and assessed upon that amount as the true dutiable value of the goods, but before the duties were paid by the consignee as liquidated, the collector requested the appraisers to make a re-examination of the wool and 'a formal appraisement of its value,' but they declined to make any appraisement of it at less than the invoice price, giving as a reason that they could not do so by law, evidently referring to the provision in the appraisement act that under no circumstances shall the duty be assessed upon an amount less than the invoice or entered value. At the collector's request, however, they made a statement to him in writing, 'which they expressly declared was not an official appraisement, in which they stated' that the market value of the wool at the time it was exported, in the principal markets of the country where it was purchased, was eight pence and three farthings per pound, at which rate the wool would have been entitled to entry free of duty. Prices of wool had declined at that port subsequent to the purchase in this case and before the barque sailed, so that the wool might have been purchased at the time it was exported at the reduced price named by the appraisers.

Ad valorem duties were always estimated, prior to the act of the 20th of April, 1818, by adding a prescribed percentage, including charges and commissions, to the actual cost of the goods at the place where the same were purchased and exported, the actual cost being ascertained by the invoice.

Whenever, in the opinion of the collector, there was just ground to suspect that goods subject to an ad valorem duty, and imported into his district, had been invoiced below the true value of the goods in their actual state of manufacture at the place from which they were imported, the collector, by the act last cited, was authorized to direct that the goods should be appraised in the manner prescribed in the ninth section of that act, which was the first authority of the kind conferred in the acts of Congress in cases where the entry was accompanied by the invoice, as required by law. Such duties were required to be estimated, by the act of the first of March, 1823, by adding all charges except insurance and a prescribed percentage to the actual cost of the goods if the same were purchased, or by making the same additions to the actual value of the goods if they were procured otherwise than by purchase, or by making the same additions to the appraised value of the goods if the same were appraised, except in cases where the goods were subject to a certain penalty, and the express provision was that the rates of duties should be estimated on such aggregate amount. Goods imported from foreign countries could not be admitted to entry unless the invoice accompanied the entry, nor unless the invoice was verified by oath, and neither the act under consideration nor the first collection act gave the collector or the appraisers any authority to reduce the price or value of the goods as expressed in the invoice.

Dutiable values of imported goods, subject to an ad valorem rate of duty, were required by the act of the thirtieth of July, 1846, to be estimated and ascertained by appraisement, adding costs and charges as therein prescribed, but the provision was that under no circumstances 'shall the duty be assessed upon an amount less than the invoice value.'

Costs and charges, except insurance, were also required to be added to the appraised value by the act of the third of March, 1851; but the act vested no authority either in the collector or the appraisers to reduce the valuation of the goods below the invoice or entered value, and no such authority, applicable in this case, is found in any act of Congress passed prior to the time when the entry before the court was made at the custom-house.

On the contrary, the act of Congress under which the appraisers acted in this case expressly provides, as before explained, that under no circumstances shall the duty be assessed upon an amount less than the invoice or entered value, the substance of which provision has been in force for a quarter of a century.

Importers are required to make an entry of their importations, which should always be accompanied by the invoice, duly verified by oath, and when the entry is made and the permit granted the packages for appraisement are designated on the invoice by the collector who orders one in ten of them to the public store for the purpose of appraisal. Examination of the selected packages is then made by the appraisers, who report their doings to the collector, and if no appeal is taken from their appraisement, either to the general appraisers or to the Secretary of the Treasury, their decision in the premises is final and conclusive as to the dutiable value of the importation.

Appraisers, it is said, are to appraise, estimate, and ascertain the true market value of such imports, whether of greater or less value than that expressed in the invoice and entry; but the decisive answer to that suggestion is that their duties are regulated by the act of Congress under which they act, and inasmuch as it is provided that the duties shall not under any circumstances be assessed upon an amount less than the invoice or entered value, it is clear that the appraisers have no authority to make any such appraisement as that which they were requested to make by the collector. Redress for such a grievance, if it be one, must be sought in Congress, as Congress and not the courts possesses the power to lay and collect taxes, duties, imposts, and excises, and to pass all laws which shall be necessary and proper to carry that power into execution.

Extended remarks respecting the case of Rankin v. Hoyt need not be made, as the statement of the fact shows that the appraisers in that case added to the value expressed in the invoice, and the decision was founded upon the act of the fourteenth of July, 1832, which did not contain the provision that the duties should not under any circumstances be assessed upon an amount less than the invoice or entered value, and consequently it is not an authority which controls the present case.

Comment upon the fifth section of the tariff act under which the goods were imported in this case may also be omitted for reasons of a like character, as the section must be construed in view of the proviso of the amendatory act passed on the same day, which prohibits both the appraisers and the collector from making any reduction in the invoice or entered value in the assessment of ad valorem duties.

JUDGMENT AFFIRMED.


text: Talk:Kimball v. The Collector/Opinion of the Court


text:
The Clinton Bridge

APPEAL from the Circuit Court for the District of Iowa.

Gray filed a bill in equity in the court below against the Chicago, Iowa, and Nebraska Railroad Company, to enjoin them from building a railroad bridge across the Mississippi River, at the town of Clinton, situate on its banks on the Iowa or western side, and extending to a point opposite on the eastern or Illinois side. Railroads in each State came to the termini of the bridge. After setting out the interest which the complainant had in the free and unobstructed navigation of the river, and the serious danger and obstruction to the navigation by the erection of the bridge, the bill concluded with a prayer for a temporary injunction against the defendants, enjoining them from building the bridge until the final hearing of the cause, and for a perpetual injunction on the final hearing. Answers and replications were put in, and a large amount of proofs were taken by both parties. When the cause came on for a final hearing the counsel for the defendants objected to the proofs of the complainant being read, on the ground that, since the erection of the bridge, Congress had passed an act declaring it a lawful structure.

The act of Congress thus relied on as concluding the case, and which was passed 27th February, 1865, was entitled 'An Act declaring Clinton Bridge across the Mississippi River, at Clinton, in the State of Iowa, a post-route.' It ran thus:

'SEC. 1. The bridge across the Mississippi River, erected by the Albany Bridge Company and Chicago, Iowa, and Nebraska Railroad Company, under the authority of the States of Iowa and Illinois, between the towns of Clinton, Iowa, and Albany, Illinois, shall be a lawful structure, and shall be recognized and known as a post-route, upon which also no higher charge shall be made for the transmission over the same of the mails, the troops, and the munitions of war of the United States than the rate per mile paid for their transportation over the railroads or public highways leading to said bridge.

'SEC. 2. The draw of said bridge shall be opened promptly upon reasonable signal for the passage of boats, whose construction shall not be such as to admit of their passage under the permanent spans of said bridge, except when trains are passing over the same; but in no case shall unnecessary delay occur in opening said draw during or after the passage of trains.

'SEC. 3. In case of any litigation hereafter arising from any alleged obstruction to the free navigation of said river, the cause may be tried before the Circuit Court of the United States of any State in which any portion of said obstruction or bridge touches.

'SEC. 4. The right to alter or amend this act, so as to prevent or remove all material obstructions to the navigation of said river, by the construction of said bridge, is hereby expressly reserved.'

The bridge had been completed before the passage of the act.

The court below sustained the objection made to the reading of the plaintiff's proofs; holding that the act was conclusive of the case, and refused to hear any evidence going to prove that the bridge was a material obstruction to the navigation of the Mississippi, or to sustain any of the facts set out in the bill, and dismissed it accordingly. Thereupon the complainant brought the case here.

Mr. T. D. Lincoln, for the appellant:

The act did not intend to abate the suit. It is not usual for the legislature to pass statutes that shall dispose of particular cases pending. No act should be construed as doing this, unless no other fair construction can be given. And as here the third section of the very act provides for litigation thereafter to arise in reference to the bridge as an obstruction, the act can hardly be construed as preventing a right to litigate.

The statute did not intend to do more than to declare generally, that a bridge at the point named in it was a lawful structure for the purposes therein stated; the purposes, namely, of a post-route.

The object of the law, as declared by its title, was simply to provide that the bridge should be a post-route. Certainly, if anything more was intended it was not expressed in the title, of which the object in all statutes is to tell what the purpose and intent of the statute is.

Numerous acts have been passed from time to time establishing post-routes upon common and plank roads, upon waters (river, lake, canal, and ocean); and, what is more pertinent, of late upon railways; all this being done sometimes by acts embracing general classes of routes; sometimes by acts giving a description of the route by name.

One act respecting railroads was that of July 7th, 1838, by which it was declared 'that every railroad within the limits of the United States, which now is or hereafter may be completed, shall be a post-route, and the Postmaster-General shall cause the mail to be transported thereon,' &c.

Examination of these numerous statutes will show that their object was simply to make it lawful for the Postmaster-General to establish post-offices and to contract for carrying the mail, and that they had no other purpose whatsoever. Now the words here are not inapt words to express the idea of these laws. They do not necessarily mean more, especially when it is observed that the words 'lawful structure' are directly connected with the words 'and shall be recognized and known as a post-route;' and with these words, 'upon which also no higher charge shall be made for transmission over the same of the mails,' & c., 'than over the railroads and public highways leading to said bridge.' It must be remembered, too, that the roads leading to the bridge had been made post-roads by other acts.

Suppose Congress had passed a law entitled 'An act to establish post-roads,' and had in the first section thereof declared that all roads, turnpikes, plank-roads, railroads, and canals, and all the rivers of the United States, over which any interstate commerce is carried, shall be lawful structures, and be known and designated as post-roads, and that no greater toll should be paid than had heretofore been paid on the railroad from Washington to Baltimore,-such an act would not differ from the one in question. And would any one say that such an act was intended to legalize all the roads in the country (except to make them legal post-roads), and that the courts could not entertain a suit by an individual to abate some portion of one of these roads as a nuisance specially injurious to him; and that no judicial inquiry could be made as to the manner in which any of these roads had been constructed, or the bridges over the rivers made?

The sort of language which Congress employs when it wishes to make a bridge a lawful structure generally can be seen in the act respecting the Wheeling bridge. In that case this court had declared the bridge an obstruction to navigation upon the ground that the span over the main channel between Zane Island and Wheeling was too low to let the chimneys of steamers under, and it was ordered to be abated unless this span was raised to the given height.

Thereupon Congress, by an act whose title was for a fiscal purpose, specified and 'for other purposes,' enacted in its sixth section that the said bridges

'Are hereby declared to be lawful structures in their present position and elevation, and shall be so held and taken to be, anything in any law or laws of the United States to the contrary notwithstanding.'

The seventh section provided that the said bridges should be post-routes for the passage of the mails, and then proceeded:

'And that the Wheeling and Belmont Bridge Company are authorized to have and maintain their said bridges at their present site and elevation; and the officers and crews of all boats navigating the said river are required to regulate the use of said vessels and boats, and of any pipes and chimneys belonging thereto, so as not to interfere with the elevation and construction of said bridges.'

Such language leaves no room for doubt that the act was intended to reach the very question decided by the court.

It is not intimated in our statute that the bridge was to be maintained as it then was, or in its then condition, or that navigators must conform their boats to it. The fourth section is a plain intimation to the contrary. It leaves open the right to amend the act so as to prevent and remove all material obstruction to the navigation of the river, by the construction of the bridge.

Now what are the consequences of the construction set up? One is, that no suit by any such person for loss or damage occasioned to his property by the bridge can be maintained. Private rights are in effect taken away without compensation. This is a consequence in violation of common and public law; a consequence which, if it may follow precise and unequivocal terms, such as were used in regard to the Wheeling bridge, can never follow doubtful ones. No court would construe any statute to have these effects where it could well avoid it.

In its more immediate consequence the construction set up makes the act the exercise of at least a quasi judicial function. It works an abatement of a pending suit, so as to put an end to any further prosecution of it, and so as to put an end to any further inquiry as to the obstruction caused by the bridge. Whether this is not the exercise of a complete actual judicial function, and whether, if it be, it is not unconstitutional, is a point which we consider hereafter. But if it be less, and can be sustained, such legislation goes to the verge of the Constitution. It is unusual, doubtful, inexpedient, and not to be presumed to have passed, except a purpose to pass it be clearly indicated.

Possibly enough some artful person, interested in maintaining the existence of the bridge, may have dictated the language of the act, and did intend slyly to produce the exact effect which is now sought to be maintained; but if the words 'lawful structure,' relied on, have come into the law by the covert design of the draftsman, it needs no case to show of what value such an enactment is. The question is, what did Congress mean? Now, in the construction of laws, there are certain leading rules of interpretation. Among them are these:

1st. The title to the act may be resorted to in case of any doubt as to the true meaning of the law.

2d. The act shall be construed with reference to the laws upon the same subject, and to the declared purpose of the act.

3d. The whole statute must be construed together, and one part of it cannot be so construed as to be inconsistent with another part of it.

4th. The consequences of any given construction are to be considered where there is fair room for doubt.

5th. No act should be so construed as to take away private rights without compensation, if any other fair construction can be given it.

6th. No act should be so construed as to leave it of doubtful constitutionality where such construction can be fairly avoided.

Opposing counsel construe this statute so as to violate each one of these rules.

II. If our view in which the act is to be construed is wrong, and the construction set up on the other side is a right one, we deny that Congress had, constitutionally, power to pass such an act. Construed thus, it has found as a fact that the bridge, as it stands, is a lawful structure, in such sense as to prevent the plaintiff from prosecuting a suit which he had then pending against this railroad company. The law is not one affecting the jurisdiction of the court, or, as in the case Ex parte McArdle (a case which went to the verge of law), taking it away in a certain class of cases then pending. If it so finds the bridge a lawful structure as to put an end to this suit, it is the exercise of a judicial function, and in no sense a legislative act. A law is 'a rule of action prescribed by the supreme power in a state.' Now, if this law is to be construed as finding that the bridge is, in fact, a lawful structure in such sense as to require the court below to dismiss the suit, what is it but the finding precisely what the court itself was asked by one of the parties to find in the case; in other words, the determining a legal question between the parties to a suit then pending in the court? Suppose the court had, in the sense here contended for, decreed that the bridge was a lawful structure, would not that necessarily have ended the suit? Can Congress step in and make such decree by the words, 'shall be a lawful structure?' That is the exercise of a judicial function, which is placed by the Constitution in the courts of the United States. Such a decree Congress did make in effect; and the court below, in obedience to that view of the act, ordered the bill dismissed upon the force of the statute, refusing to inquire into the merits.

The law cannot be sustained as a law regulating commerce among the States. It is not, in any fair sense, a regulation of commerce. It does not prescribe any rule by which commerce shall be carried on. It does not provide that it shall or shall not be carried on over this bridge at all, or the conditions upon which it shall be so carried on. The only condition in the law relates to the price to be charged for carrying the mails.

Nor is the bridge, in any fair sense, an instrument of commerce. It is not like the vehicle or vessel in which commerce shall be or is carried on. Nor is it any provision as to the mode or manner in which the vessel shall be built, or manned or navigated; nor as to the kind of goods to be passed over the bridge, or any regulation for bringing this commerce under the revenue system of the government.

The court declined to hear argument from Messrs. J. H. Howe and E. Totlin, on the other side.

Mr. Justice NELSON delivered the opinion of the court.

title: The Clinton Bridge


text: Talk:The Clinton Bridge

title: Talk:The Clinton Bridge


text:
The Clinton Bridge/Opinion of the Court

The first section of the act of Congress provides, 'that the bridge across the Mississippi River, erected by the Albany Bridge Company and the Chicago, Iowa, and Nebraska Railroad Company, under the authority of the States of Iowa and Illinois, &c., shall be a lawful structure, and shall be recognized and known as a post route.'

We cannot doubt, upon a perusal of the section, but that it was the intention of Congress to legalize the bridge as then constructed across the river, and that the words used carry out fully this intent. It is declared 'a lawful structure;' that is, the bridge as built, with its abutments, piers, superstructures, draw, and height, should have the sanction of law, and be maintained and used in that state and condition until the law was altered by the reserved power in the last section.

The act of Congress in the case of the Wheeling Bridge, whose language it is sought to distinguish from that used in the present one, was more explicit, but not more comprehensive. In the Wheeling Bridge case the court had rendered a decree, directing the obstruction to be removed by elevating the bridge, or if not, by abatement. No doubt the existence of this decree, which was in the process of execution, led to the very specific terms of the act. But with all its particularity it is not more comprehensive or decisive in legalizing the bridges than the one before us.

The questions, whether or not it was competent for Congress to interfere and legalize the bridge under the power to regulate commerce, and whether or not the act put an end to the pending suit, were questions examined and settled in the affirmative in the case already referred to. The reasons for the conclusions arrived at will be there found, and need not be repeated.

The only difference between the case of the Wheeling Bridge and the present one is, that in the former a decree had been rendered by the court against the bridge, in the latter the cause was pending undecided. It was, in the former case, insisted on behalf of the complainant, that the act of Congress could not invalidate the decree of the court. But it was answered that the decree of abatement of the obstruction was executory, a continuing decree, which required not only the removal of the bridge, but enjoined the defendants against any reconstruction. And that whether or not it would be a future existing obstruction depended upon the question whether it interfered with the right of free navigation, and that if, in the meantime, this right had been modified by competent authority, so that the bridge was no longer an unlawful obstruction, the decree of the court could not be enforced. There was no longer any interference with the enjoyment of the public right inconsistent with law no more than there would be if the complainant himself had given his consent after the decree.

In the present case the act of Congress having passed pending the suit, it gave the rule of decision for the court at the final hearing upon the same principle that the act in the Wheeling Bridge case staid the execution of the decree directing its abatement. The court say in that case that if the remedy had been an action at law, and a judgment rendered in favor of the plaintiff for damages, the right to these would have passed beyond the power of Congress. And if, in the present case, the action had been at common law for damages alleged to have been done to the property of the plaintiff before the passage of the act of Congress, very different considerations would have arisen as to the effect of the act upon this private right of action from that upon a simple proceeding to enjoin the building of the bridge; or, if built, to abate it as a nuisance.

We think that the ruling of the court below was right, and that the judgment should be

AFFIRMED.

title: The Clinton Bridge/Opinion of the Court


text: Talk:The Clinton Bridge/Opinion of the Court


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Corbett v. Nutt

ERROR to the Supreme Court of Appeals of Virginia; the case being thus:

The seventh section of the act of June 7th, 1862, for the collection of direct taxes in insurrectionary districts, after directing the advertisement and sale of lands, upon which taxes due the United States remained unpaid, after a time specified, enacts --

By a first clause, that the owner of the land, or any loyal person of the United States having any interest in it, may at any time, within sixty days after the sale, appear before the board of tax commissioners, in proper person, and redeem it from sale upon paying the amount of the tax and penalty, with the interest and expenses prescribed, and taking an oath, if a citizen, to support the Constitution of the United States.

And by a second clause, that if the owner of the land be under a legal disability, the trustee, or other person having charge of the person or estate of such owner, may redeem at any time within two years after the sale.

An act of March 3d, 1865, amendatory of the act just mentioned, enacts that when a redemption is made the board of tax commissioners shall certify the fact to the Secretary of the Treasury, and that he shall repay the purchaser, by draft on the treasury, the principal and interest of the purchase-money; and that the purchaser shall deliver possession to the owner redeeming.

It also enacts, 'that no owner shall be entitled to redeem unless, in addition to the oath prescribed by existing laws, he shall swear that he has not taken part with the insurgents in the present rebellion, or any way given them aid or comfort, and shall satisfy the board of commissioners that the said oath is true.'

An act of July 17th, 1862, originating like the other two in the exigencies of the late civil war, and entitled 'An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,' enacts by its fifth section, that 'to insure the speedy termination of the present rebellion, it shall be the duty of the President of the United States to cause the seizure of all the estate and property, money, stocks, credits, and effects of the persons' thereinafter named, 'and to apply and use the same, and the proceeds thereof, for the support of the army of the United States.'

The section then enumerates six classes of persons whose property is thus made subject to seizure. The fourth class embraces persons 'who, having held an office of honor, trust, or profit under the United States, shall thereafter hold office in the so-called Confederate States.'

The sixth section enacts that if any person within any State or Territory of the United States, other than those named in the previous section, being engaged in armed rebellion against the United States, or aiding or abetting such rebellion, shall not, within sixty days after public warning and proclamation by the President of the United States, cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States, all the estate and property, money, stocks, and credits of such person shall be liable to seizure as aforesaid, and it shall be the duty of the President to seize and use them as aforesaid, or the proceeds thereof.

It continues:

'And all sales, transfers, or conveyances of any such property, after the expiration of the said sixty days from the date of such warning and proclamation, shall be null and void; and it shall be a sufficient bar to any suit brought by such person for the possession or the use of such property, or any of it, to allege and prove that he is one of the persons described in this section.'

[The proclamation of the President was made July 25th, 1862.]

The seventh section directs the proceedings to be instituted for the condemnation and sale of the property seized.

With these enactments of June and July, 1862, in force, Mrs. Louisa Hunter died, April, 1863, seized of a tract of land consisting of sixty acres, situated in the county of Alexandria, in the State of Virginia, leaving a last will and testament, by which she devised the premises, along with certain real estate in the city of Washington, to one W. D. Nutt, in trust for Marion Young, her adopted daughter, and Emily Featherstonaugh, her niece, both of whom were then and still are married women.

Prior to the war Mrs. Hunter resided in the county of Alexandria, in Virginia, but after the occupation of Alexandria by the forces of the United States, she went within the Confederate lines, and there remained until her death.

Immediately preceding the commencement of the war, Nutt held an office under the government of the United States. This he resigned in February, 1861, and in September following went within the Confederate lines, and took office under the Confederate government, which he held at the time of Mrs. Hunter's death.

On the 29th of February, 1864, the land in Virginia was sold for taxes due the United States under the first of the above quoted acts of Congress, the act, namely, of June 7th, 1862, providing for the collection of direct taxes in insurrectionary districts within the United States; and at the sale one W. P. Corbett became the purchaser, received the commissioners' certificate of sale, and took possession of the premises under the title thus acquired.

In July, 1865, the cestuis que trust, under the will of Mrs. Hunter, filed a bill in the Supreme Court of the District of Columbia to obtain the appointment of a new trustee in place of the one named in the bill, setting forth that the testatrix had left a large and valuable estate, the greater part of which lay within the District; that the settlement of the estate was impossible, by the terms of the will, without the intervention of the trustee named therein, or another in his stead, invested with his powers and duties; and that they were informed that the trustee named declined to qualify, or to accept the trusts reposed in him.

Nutt appeared to the suit and answered the bill, admitting that he was the person named in the will, and that he had declined to accept the trust thereunder. The court thereupon, at the hearing, adjudged that the complainants, the cestuis que trust, were entitled to the relief prayed, and by its decree appointed J. D. McPherson, of Washington, D. C., trustee, in 'the name, place, and stead,' 'clothed with all the powers and charged with all the duties reposed and vested in said Nutt as trustee, by the testatrix mentioned in the will,' first requiring of him the execution of a bond in the penal sum of ten thousand dollars, conditioned for the faithful performance of his trust.

On the 10th of February, 1866, McPherson, as trustee, appeared before the tax commissioners and paid to them the several sums required for the purpose of effecting a redemption of the property from the tax sale, and received from them a certificate of redemption, stating the payments made by him, and that he had taken an oath to support the Consitution of the United States; and that Marion Young and Emily Featherstonaugh, owners of the property, and married women at the time of the sale, and still under the same disability, had sworn that they had not taken part with the insurgents in the rebellion, or in any way given them aid or comfort, and had satisfied the commissioners that the oath was true.

Nutt, the trustee appointed by Mrs. Hunter's will, now brought suit in one of the State courts of Virginia to recover the property, and on the trial offered in evidence the certificate of redemption against the objection of the defendant that the redemption was illegal and did not sustain the claim of the plaintiff. The court admitted it. To this ruling of the court the defendant excepted.

The testimony being closed, the defendant requested instructions thus:

1. If the jury shall believe from the evidence that Nutt, the plaintiff, who sues as trustee, held a position under the government of the United States, and resigned said office, went voluntarily within the lines of the Confederate States, and accepted office under the Confederate government, and held said office at the time of the death of the testatrix, and that the said Louisa Hunter was a resident of the county of Alexandria at the time of the breaking out of the civil war, and after its breaking out went voluntarily into the Confederate lines and resided therein up to the time of her death, and that the premises in the summons described were at all times in the military lines and under the jurisdiction of the United States, then that said devise to the plaintiff was inoperative to pass or transfer any title to him, and he cannot therefore recover in this action.

2. That to enable the plaintiff to recover in this action, he must show that the certificate of redemption was forwarded to the Secretary of the Treasury, and the defendant repaid his purchase-money by draft drawn on the treasury of the United States.

The object of the instruction prayed, the defendant stated in his petition to the Court of Appeals of Virginia, was to raise the question as to the effect and meaning of the sixth section of the above-quoted act of Congress of the 17th of July, 1862, 'to suppress insurrection, punish treason,' &c.

The court refused to give the instructions thus asked for, and the defendant excepted. Verdict and judgment having gone for the plaintiff, the case was taken to the Supreme Court of Appeals of Virginia, which sustained the judgment. The case was now brought here under the 25th section of the Judiciary Act; the only ground of error alleged in this court being that there was drawn in question the construction of,

1st. The act of Congress of June 7th, 1862, 'for the collection of direct taxes in the insurrectionary districts within the United States, and for other purposes.'

2d. The act passed July 17th, 1862, 'to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.'

3d. The act of March 3d, 1865, amendatory of this last act.

And that the decision of the Supreme Court of Appeals of Virginia was adverse to the right and title claimed under the said acts.

Messrs. G. W. Brent and C. W. Wattles, for the plaintiff in error:

One of several points argued and passed on in the court below, was of course the point whether, after his answer in the Supreme Court of the District, that he had declined to accept the trusts under Mrs. Hunter's will, Nutt was still trustee and could maintain a suit to recover the land, even admitting that the redemption was rightly made. If that matter is open in this court, it deserves consinderation. Passing it by, however, we come to the matters excepted to.

1. As to the evidence. The certificate ought to have been excluded, for it proved on its face that the redemption was bad. It describes McPherson as 'trustee.' But he was not trustee of this land, for the court of the District of Columbia could not appoint a trustee for lands in Virginia; and as trustee of such land he had no power to redeem. It is in vain to say that he redeemed as a person 'having charge' of the person or estate of the owner. The case does not show that he had any charge of this land, in another State, still held in trust by a recognized trustee, if this suit is rightly brought by Nutt. On the contrary, as trustee of land in the District alone, he could have no lawful charge of the other land; and the fact of Nutt's now bringing suit, indicates rather that he, if any one, and not McPherson, had the care of it. There is nothing which shows any relation in McPherson to the two ladies except as he got it from the court in the District, which could not give him charge of lands out of it.

2. As to the instructions refused. The first one should have been given. The act of 17th July, to suppress insurrection, &c., makes by plain terms 'null and void' 'all sales, transfers, and conveyances' of persons 'aiding and abetting' the rebellion; and by it Mrs. Hunter was prevented from selling, transferring, or conveying any estate and Nutt from accepting any. When Mrs. Hunter left loyal territory to go, and went, into the rebel lines, she became a rebel, for it has been settled that all the citizens of the rebel 'government' became enemies to the United States. Moreover, a person holding by devise, holds, in the language of the law, 'by purchase.' Where there has been a purchase, there has, of necessity, been a sale. And, without resort to technical rules, a devise must be admitted to be 'a transfer.' It has been decided to be 'a conveyance.' We have thus the case of a rebel, 'selling, transferring, conveying;' and of an office-holder, who transfers the scene of his officeholding, attempting to take. But the statute declares all 'null and void.' It cannot be said that no one but the United States can object. The statute was a measure of war. It comes, and was meant to come like 'a tyrant;' its purpose was to inflict the greatest possible injury; to make war short, by making it sharp and decisive. Office found may be dispensed with by the sovereign; and under this statute it was dispensed with, and the invalidity of the transfer is allowed to be taken advantage of by any one concerned.

The second instruction refused should also have been given. The object of the provision in the amendatory act of March 3d, 1865, is twofold. First, to protect the treasury; secondly, to benefit the purchaser. It invests the secretary with a superintendency or revisory power over the tax commissioners. Before the owner is entitled to possession the secretary must be satisfied that the lands have been duly redeemed, and on being so satisfied he repays the purchaser, and not until then is the owner entitled to the possession.

Messrs. Carlisle and McPherson, contra:

The matter of Nutt's right to sue was a matter of local law decided affirmatively below, and not open as a Federal question for discussion here. We proceed to the exceptions.

1. Selling land for taxes with no actual notice to owners, is an extreme exercise of sovereign power; and as authorities show, the right of redemption being a right in favor of property, is to be liberally construed. Courts support it, and have presumed and intended against many probabilities in support of it. Now here it is sufficiently plain that McPherson had charge of this land. The oaths of the ladies made in furtherance of his purpose to redeem, show that at the time he redeemed he did have charge, and had it by their assent, for they were acting in furtherance of his purpose as he was of theirs. From the time of his appointment as trustee by the court of the District, his relation was necessarily confidential to them both. What so natural as that he, who had their moneys from the District property, should be in charge of property near it; the 'trustee' of it declining to take actual charge, and McPherson not being able under his appointment to act as trustee in his place? The statute does not speak of the time when the charge is to begin. If it be within two years, it is enough. The certificate was then rightly admitted.

2. The instructions asked for were rightly refused. There was no condemnation under the seventh section by the government. This justified the refusal of the first one. And the request for the second proceeds on a misconception of the act on which the request was founded.

Mr. Justice FIELD delivered the opinion of the court.

title: Corbett v. Nutt


text: Talk:Corbett v. Nutt

title: Talk:Corbett v. Nutt