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Hall & Long v. The Railroad Companies/Opinion of the Court

It is too well settled by the authorities to admit of question that, as between a common carrier of goods and an underwriter upon them, the liability to the owner for their loss or destruction is primarily upon the carrier, while the liability of the insurer is only secondary. The contract of the carrier may not be first in order of time, but it is first and principal in ultimate liability. In respect to the ownership of the goods, and the risk incident thereto, the owner and the insurer are considered but one person, having together the beneficial right to the indemnity due from the carrier for a breach of his contract or for non-performance of his legal duty. Standing thus, as the insurer does, practically, in the position of a surety, stipulating that the goods shall not be lost or injured in consequence of the peril insured against, whenever he has indemnified the owner for the loss, he is entitled to all the means of indemnity which the satisfied owner held against the party primarily liable. His right rests upon familiar principles of equity. It is the doctrine of subrogation, dependent not at all upon privity of contract, but worked out through the right of the creditor or owner. Hence it has often been ruled that an insurer, who has paid a loss, may use the name of the assured in an action to obtain redress from the carrier whose failure of duty caused the loss. It is conceded that this doctrine prevails in cases of marine insurance, but it is denied that it is applicable to cases of fire insurance upon land, and the reason for the supposed difference is said to be that the insurer in a marine policy becomes the owner of the lost or injured property by abandonment of the assured, while in land policies there can be no abandonment. But it is a mistake to assert that the right of insurers in marine policies to proceed against a carrier of the goods, after they have paid a total loss, grows wholly, or even principally, out of any abandonment. There can be no abandonment where there has been total destruction. There is nothing upon which it can operate, and an insured party may recover for a total loss without it. It is laid down in Phillips on Insurance, sec. 1723, that 'a mere payment of a loss, whether partial or total, gives the insurers an equitable title to what may afterwards be recovered from other parties on account of the loss,' and that 'the effect of a payment of a loss is equivalent in this respect to that of abandonment.' There is, then, no reason for the subrogation of insurers by marine policies to the rights of the assured against a carrier by sea which does not exist in support of a like subrogation in case of an insurance against fire on land. Nor do the authorities make any distinction between the cases, though a carrier may, by stipulation with the owner of the goods, obtain the benefit of insurance.

In Gales v. Hailman, it was ruled that a shipper, who had received from his insurer the part of the loss insured against, might sue the carrier on the contract of bailment, in his own right, not only for the unpaid balance due to himself, but as trustee for what had been paid by the insurer in aid of the carrier, and that the court would restrain the carrier from setting up the insurer's payment of his part of the loss as partial satisfaction. So in Hart et al. v. The Western Railroad Company, it was held that where underwriters had paid a loss by fire caused by a locomotive of a railroad corporation, the owner might recover also from the corporation for the use of the underwriters, and that he could not release the action brought by them in his name. There is also a large class of cases in which attempts have been made by insurers who had paid a loss to recover from the party in fault for it, by suit in their own right, and not in the right of the assured. Such attempts have failed, but in all the cases it has been conceded that suits might have been maintained in the name of the insured party for the use of the insurers. And such is the English doctrine settled at an early period.

It has been argued, however, that these decisions rest upon the doctrine that a wrong-doer is to be punished; that the defendants against whom such actions have been maintained were wrong-doers; but that, in the present case, the fire by which the insured goods were destroyed was accidental, without fault of the defendants, and therefore that they stood, in relation to the owner, at most in the position of double insurers. The argument will not bear examination. A carrier is not an insurer, though often loosely so called. The extent of his responsibility may be equal to that of an insurer, and even greater, but its nature is not the same. His contract is not one for indemnity, independent of the care and custody of the goods. He is not entitled to a cession of the remains of the property, or to have the loss adjusted on principles peculiar to the contract of insurance; and when a loss occurs, unless caused by the act of God, or of a public enemy, he is always in fault. The law raises against him a conclusive presumption of misconduct, or breach of duty, in relation to every loss not caused by excepted perils. Even if innocent, in fact, he has consented by his contract to be dealt with as if he were not so. He does not stand, therefore, on the same footing with that of an insurer, who may have entered into his contract of indemnity, relying upon the carrier's vigilance and responsibility. In all cases, when liable at all, it is because he is proved, or presumed to be, the author of the loss. There is nothing, then, to take the case in hand out of the general rule that an underwriter, who has paid a loss, is entitled to recover what he has paid by a suit in the name of the assured against a carrier who caused the loss.

REMANDED FOR FURTHER PROCEEDINGS.


text: Talk:Hall & Long v. The Railroad Companies/Opinion of the Court

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


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Salt Company v. East Saginaw

ERROR to the Supreme Court of Michigan; the case being thus:

The East Saginaw Salt Manufacturing Company filed a bill in the court below against the city of East Saginaw, in Michigan, to restrain the city from levying and enforcing any tax on certain real estate owned in the said city by it, and for a decree establishing the exemption claimed. The company founded its exemption on an act passed by the legislature of Michigan, on the 15th of February, 1859, for encouraging the manufacture of salt. The act was as follows:

'SECTION 1. The people of the State of Michigan enact, that all companies or corporations formed or that may be formed for the purpose of boring for and manufacturing salt in this State, and any and all individuals engaged or to be engaged in such manufacture, shall be entitled to the benefits of the provisions of this act.

'SECTION 2. All property, real and personal, used for the purpose mentioned in the first section of this act, shall be exempt from taxation for any purpose.

'SECTION 3. There shall be paid from the treasury of this State, as a bounty, to any individual, or company, or corporation, the sum of 10 cents for each and every bushel of salt manufactured by such individual, company, or corporation, from water obtained by boring in this State: Provided, that no such bounty shall be paid until such individual, company, or corporation shall have at least 5000 bushels of salt manufactured.'

The bill alleged that in April, 1859, after the passage of the above act, the salt company was organized as a corporation under the general laws of Michigan, for the purpose of manufacturing salt from salt water to be obtained in the State of Michigan; that prior to the act the State had been engaged in experiments, and had spent large sums of money to ascertain whether salt could be manufactured as aforesaid, but without any satisfactory results, and that the act was passed to encourage private parties to engage in the same experiments.

The bill proceeded:

'Your orator further shows that the persons associating, as hereinbefore stated, to form the East Saginaw Salt Manufacturing Company, were solely induced thereto, as your orator believes, by the encouragement held out in said act; and had not said last mentioned act been passed no such corporation would have been formed, nor any experiment made to determine whether salt could be profitably made in Michigan. Your orator further shows that after spending some time in erecting the necessary buildings, and in procuring the requisite machinery therefor, a well was commenced by the said association near the Saginaw River, in the county of Saginaw, in June, 1859, and that drilling continued almost constantly from that time until early in the year 1860; at which time a depth of 669 feet was reached, where brine was found of sufficient strength and purity to warrant the company in proceeding to the manufacture of salt.

'That, relying in good faith upon the benefits promised in said act of the legislature of 1859, the said company proceeded at once to erect works for the manufacture of salt from the brine found in said well, such manufacture commencing the last of June, or the first part of July, 1860, and from that date to 9th March, 1861, there was actually manufactured by said corporation, from salt water obtained in the State of Michigan 6348 barrels of salt, each containing five bushels. Your orator claims and avers the fact to be, that in consequence of the facts hereinbefore stated, the property of your orator used for the purpose of boring for and manufacturing salt in this State is exempt from taxation; and that the right to such exemption from taxation became and was a vested right, which it is not competent for the legislature to take away without your orator's consent.

'Your orator further shows that your orator is still engaged in the manufacture of salt, and has purchased and is using all its property for that purpose; said manufacture continuing at the place where it was first commenced by your orator.'

The bill then gave a description of the land owned by the complainant in East Saginaw, declaring that it had been in use by it for the purpose aforesaid, and stated the assessment thereof for taxes by the city authorities, and the threatened collection of the same, and prayed for an injunction and decree as before stated.

To this bill a demurrer was filed.

The court below overruled the demurrer, and sustained the prayer of the bill; but the Supreme Court of Michigan reversed this decree, and dismissed the bill. This decree of the Supreme Court was based upon an act of the legislature of Michigan, passed on the 15th of March, 1861, by which the act of 1859 was amended as follows: the first section, by adding a proviso limiting its benefits to those who should be actually engaged in the manufacture of salt prior to 1st of August, 1861; the second section, by limiting the exemption from taxation to five years from the organization of the company or corporation; and the third section (which granted a bounty of 10 cents per bushel), by limiting the bounty moneys that should be paid to any one individual, company, or corporation, to the sum of $5000. The Supreme Court of Michigan stated that it regarded the statute set up for a contract as a bounty law, and nothing more. From this decree the case was now here on error.

Mr. M. H. Carpenter, for the plaintiff in error, contended that the amendatory act, as applied to the salt company, was unconstitutional and void by reason of its impairing the validity of a contract; that the act of 1859 held out an inducement or offer to private parties to embark in the business of manufacturing salt in Michigan, and that when such parties did subsequently engage in that business, and actually produced and manufactured more than 5000 bushels of salt within the State, the act became a contract between the State and such parties, which the legislature could not consitutionally revoke or repeal.

Mr. B. J. Brown, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Salt Company v. East Saginaw


text: Talk:Salt Company v. East Saginaw

title: Talk:Salt Company v. East Saginaw


text:
Salt Company v. East Saginaw/Opinion of the Court

It is unnecessary at this time to discuss the question of power on the part of a State legislature to make a contract exempting certain property from taxation. Such a power has been frequently asserted and sustained by the decisions of this court.

The question in this case is, whether any contract was made at all; and, if there was, whether it was a contract determinable at will, or of perpetual obligation?

Had the plaintiff in error been incorporated by a special charter, and had that charter contained the provision, that all its lands and property used in the manufacture of salt should forever, or during the continuance of its charter, be exempt from taxation, and had that charter been accepted and acted on, it would have constituted a contract. But the case before us is not of that kind. It declares, in purport and effect, that all corporations and individuals who shall manufacture salt in Michigan from water obtained by boring in that State, shall be exempt from taxation as to all property used for that purpose, and, after they shall have manufactured 5000 bushels of salt, they shall receive a bounty of 10 cents per bushel. That is the whole of it. As the Supreme Court of Michigan says, it is a bounty law, and nothing more; a law dictated by public policy and the general good, like a law offering a bounty of fifty cents for the killing of every wolf or other destructive animal. Such a law is not a contract except to bestow the promised bounty upon those who earn it, so long as the law remains unrepealed. There is no pledge that it shall not be repealed at any time. As long as it remains a law every inhabitant of the State, every corporation having the requisite power, is at liberty to avail himself, or itself, of its advantages, at will, by complying with its terms, and doing the things which it promises to reward, but is also at liberty, at any time, to abandon such a course. There is no obligation on any person to comply with the conditions of the law. It is a matter purely voluntary; and, as it is purely voluntary on the one part, so it is purely voluntary on the other part; that is, on the part of the legislature, to continue, or not to continue, the law. The law in question says to all: You shall have a bounty of 10 cents per bushel for all salt manufactured, and the property used shall be free from taxes. But it does not say how long this shall continue; nor do the parties who enter upon the business promise how long they will continue the manufacture. It is an arrangement determinable at the will of either of the parties, as much so as the hiring of a laboring man by the day.

If it be objected that such a view of the case exposes parties to hardship and injustice, the answer is ready at hand, and is this: It will not be presumed that the legislature of a sovereign State will do acts that inflict hardship and injustice.

The case differs entirely from those laws and charters which have been adjudged to be irrevocable contracts.

Charters granted to private corporations are held to be contracts. Powers and privileges are conferred by the State, and corresponding duties and obligations are assumed by the corporation. And if no right to alter or repeal is reserved, stipulations as to taxation, or as to any other matter within the power of the legislature, are binding on both parties; and, so corporations formed under general laws in place of special charters, like the Ohio banks under the general banking law of that State, are entitled to the benefit of specific provisions and exemptions contained in those laws, which are regarded in the same light as if inserted in special charters. 'The act is as special to each bank,' says Justice McLean, delivering the opinion of this court, 'as if no other institution were incorporated under it.' In such cases the scope of the act takes in the whole period for which the corporation is formed. The language means that, during the existence of any corporation formed under the act, the stipulation or exemption specified in it is to operate.

The act under consideration cannot be interpreted on this principle. It applies to individuals as well as corporations, and to all corporations having power to manufacture salt. Now, in the case of individuals, must it be construed to mean that, as long as the individual lives and manufactures salt, the State will pay him the bounty of ten cents on the bushel, and exempt his property from taxation? Can the law never be repealed as to those who have once commenced the manufacture? Such a construction could never have been intended. In its nature it is a general law, regulative of the internal economy of the State, and as much subject to repeal and alteration as a law forbidding the killing of game in certain seasons of the year. Its continuance is a matter of public policy only; and those who rely on it must base their reliance on the free and voluntary good faith of the legislature. For the benefit of sheep-growers in some States dogs are subjected to a severe tax. Could not the legislature repeal such a law? If Congress establishes a tariff for the protection of certain manufactures, does that amount to a contract not to change it?

In short, the law does not, in our judgment, belong to that class of laws which can be denominated contracts, except so far as they have been actually executed and complied with. There is no stipulation, express or implied, that it shall not be repealed. General encouragements, held out to all persons indiscriminately, to engage in a particular trade or manufacture, whether such encouragement be in the shape of bounties or drawbacks, or other advantage, are always under the legislative control, and may be discontinued at any time.

JUDGMENT AFFIRMED.


text: Talk:Salt Company v. East Saginaw/Opinion of the Court


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Slaughter's Administrator v. Gerson

APPEAL from the Circuit Court for the District of Maryland.

This was a suit in equity to enforce the lien of two mortgages upon two steamers. The case was thus:

On the 12th of July, 1864, one Slaughter, since deceased, purchased of the complainant, Gerson, a steamboat named the George Law, for the consideration of $40,000. Of this sum he paid $15,000 in cash, and for the balance gave to Gerson his bond, conditioned to pay the same in two instalments of $12,500 each in three and six months thereafter. To secure the payment of these sums he at the same time executed to Gerson two mortgages, one upon the steamboat which he purchased, and the other upon a steamboat named the Chester, which he formerly owned. The first instalment on the boat not being paid at its maturity, the present bill was filed to enforce the mortgages by a sale of the steamboats, and the application of the proceeds to the demand of the complainant.

The answer of the defendant admitted the execution of the bond and mortgages, but set up, as a defence to their enforcement, that they were obtained from him by misrepresentation and fraud, and set forth the particulars in which such alleged misrepresentation and fraud consisted.

The substantial averments in this respect were those: That the defendant had established a line of steamboats from Baltimore to various landings on Chester River, on the Eastern Shore of Maryland, and landings on tributaries to that river; that the most important of these landings was at Queenstown; that no boat drawing more than 3 1/2 feet of water could reach the wharf at this place except in case of an extraordinary high tide; that he purchased the George Law of the complainant for this route, upon a representation that it drew only this number of feet when fully laden; that this representation was false and fraudulent, and that the steamer, when placed on the route, grounded upon her first trip in 5 feet of water; and that, so soon as precise information was obtained of this fact, the defendant called upon the complainant to cancel the contract, offering at the same time to return the steamboat purchased, but that the complainant refused to comply with this proposition.

A great deal of evidence was taken in the case bearing upon these allegations of misrepresentation and fraud. This was in many particulars conflicting. Some of it tended to show that when the negotiation was first entered upon, Slaughter did particularly state that it was indispensable to his purpose that the boat should not draw more than 3 1/2 feet water; that upon Gerson's saying that the boat was cheap at the price proposed for her, Slaughter said that he did not want her at any price if she drew more than 3 1/2 feet; that Gerson repeatedly said that she did not draw more; and that if she did, Slaughter should have her for nothing. On the other hand there was evidence which-if any conversation with Gerson, himself, had taken place at all-went to show that he never stated more than that according to the representation of the captain of the boat, she drew no more than the desired depth of water; and that it was plain that Gerson spoke only on the strength of what thus came to him.

But whatever did or did not thus take place in the origin of matters, it appeared that before the contract for the sale was executed, and with the intention of examining the vessel, in view of a purchase, Slaughter himself went to New York from Baltimore, where he resided, taking with him two shipcarpenters and a square to measure the steamer; his son, who afterwards was captain of the boat, accompanying the party. Whilst these persons were in New York, every opportunity which they desired was given to them to examine the vessel from one end to the other; and they made an extended and careful examination accordingly. They made a trip on her to one of the ports where she was running, and measured her draft on two occasions; once amidships, and once at the stern and bow. Gerson accompanied them on board, on their arrival in New York, and told them to look for themselves, and to go anywhere they pleased about the boat; that he was not 'a steamboat man,' and that he got all his information from the captain of the boat, to whose statements he referred them. One of the carpenters who accompanied Slaughter made a measurement of the boat while she was lying at the dock without any load, and reported that she drew 4 feet 6 inches at midships. The other of the carpenters made a measurement forward and aft, and reported that the boat drew at both places 3 feet 6 inches. Both of these measurements were communicated to Slaughter, and the latter was accompanied with the declaration that the boat drew too much water for his purposes. The captain of the boat also took the defendant on to the dock where she was lying, and showed him that she was coppered three feet and nine inches from the keel, and that she showed her copper three inches out of water.

The bill of sale given to Slaughter contained a detailed description of the steamer, but did not state her draught.

The Circuit Court gave a decree for the complainant, and from it the defendant appealed to this court.

Mr. William Schley, for the appellant:

All knew that Mr. Slaughter wanted a boat to ply on a specified route, drawing, when laden, not more than 3 1/2 feet water. The captain, of course, knew well that the draught much exceeded this, and that the boat would not suit at all. The doctrine of caveat emptor ought not to be applied. Unless the sea was calm-which does not appear-it was impossible to make an accurate measurement of the draught of water. Besides this, the rule of caveat emptor, however potent in actions ex contractu, is, comparatively, of small force in an action based on fraudulent misrepresentations.

But if there was no fraud on the part of Gerson or his agent, still it is clear, from the testimony, that Slaughter would not have purchased the boat at any price, if he had known that she would not answer the purpose for which he wished to procure a boat. Upon the hypothesis that Gerson was acting honestly, the case presented is one of mutual mistake. Coming, as he has done into a court of conscience, Gerson submits himself to its power to make him do what is right, or to be left to his remedy at law. Foreclosure of a mortgage is in the nature of a specific performance of a contract, which will be refused, where the defendant has, by mistake, not originating in mere carelessness, entered into a contract framed differently from his own intention.

Mr. B. W. Huntington, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Slaughter's Administrator v. Gerson


text: Talk:Slaughter's Administrator v. Gerson


text:
Slaughter's Administrator v. Gerson/Opinion of the Court

A large amount of evidence was taken in this case bearing upon the averments in the answer of misrepresentation and fraud on the part of the complainant; and it is, in many respects conflicting. But the rules of law applicable to cases of alleged misrepresentation by a vendor with respect to property sold are well settled, and render of easy solution the questions upon which this case must turn.

The misrepresentation which will vitiate a contract of sale, and prevent a court of equity from aiding its enforcement, must not only relate to a material matter constituting an inducement to the contract, but it must relate to a matter respecting which the complaining party did not possess at hand the means of knowledge; and it must be a misrepresentation upon which he relied, and by which he was actually misled to his injury. A court of equity will not undertake, any more than a court of law, to relieve a party from the consequences of his own inattention and carelessness. Where the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say that he has been deceived by the vendor's misrepresentations. If, having eyes, he will not see matters directly before them, where no concealment is made or attempted, he will not be entitled to favorable consideration when he complains that he has suffered from his own voluntary blindness, and been misled by overconfidence in the statements of another. And the same rule obtains when the complaining party does not rely upon the misrepresentations, but seeks from other quarters means of verification of the statements made, and acts upon the information thus obtained.

The facts disclosed by the uncontradicted testimony of both parties bring this case clearly within the principle here stated. Previous to the execution of the contract of purchase, and with the view of examining the steamboat, the defendant went from Baltimore to New York, taking with him his son, who subsequently became captain of the boat, and two shipcarpenters, and a square to measure her draught of water. Whilst there every opportunity was given him to examine the boat with his carpenters, and a most thorough and careful examination was made by them. On two occasions they measured the draught of the boat, and they witnessed her speed by accompanying her on one of her trips. The owner went with them to the boat on their arrival in New York, and told them to look for themselves, and to go anywhere they pleased about her. If, under these circumstances, the defendant did not learn everything about her, and ascertain her true draught, it was his own fault, and it would be against the plainest principles of justice to allow him to set up, in impeachment of the validity of his contract, loose statements respecting the draught before its execution, even though they were false in point of fact.

In Attwood v. Small, a case which received great consideration in the House of Lords, the defendant had sold to the complainants, constituting a company of numerous persons, certain freehold and leasehold property, including mines and ironworks, and had made certain statements respecting the capabilities of the property. The purchasers, not relying upon these statements, deputed some of their directors, together with experienced agents, to ascertain the correctness of his statements. These persons examined the property and works and the accounts kept by the defendant, receiving from him and his agents every facility and aid for that purpose, and they reported that the defendant's statements were correct. Upon a bill filed to rescind the contract, on the ground of fraud, the House of Lords decided that the contract could not be rescinded, reversing, in that respect, the decree of the Court of Exchequer, not merely because there was no proof of fraud, but because the purchasers did not rely upon the vendor's statements, but tested their accuracy; and, after having knowledge, or the means of knowledge, declared that they were satisfied of their correctness, holding that if a purchaser, choosing to judge for himself, did not avail himself of the knowledge, or means of knowledge, open to him or to his agents, he could not be heard to say he was deceived by the vendor's representations, the doctrine of caveat emptor applying in such case, and the knowledge of his own agents being as binding as his own knowledge.

The doctrine, substantially as we have stated it, is laid down in numerous adjudications. Where the means of information are at hand and equally open to both parties, and no concealment is made or attempted, the language of the cases is, that the misrepresentation furnishes no ground for a court of equity to refuse to enforce the contract of the parties. The neglect of the purchaser to avail himself, in all such cases, of the means of information, whether attributable to his indolence or credulity, takes from him all just claim for relief.

We have thus far assumed that the evidence in the case before us discloses false representations on the part of the vendor, but justice to him requires us to say that the evidence is insufficient to warrant this conclusion. The vendor stated to the purchaser that he was not a steamboat man, meaning evidently, from the context, that he was not familiar with the particulars in regard to which the purchaser desired information, and referred him to the statements of the captain, at the same time inviting him and his party to examine the boat in every particular. The measurement made by one of his carpenters showed that the boat drew four feet and six inches of water at midships whilst lying unloaded at the dock. The measurement by the other carpenter showed that the boat then drew, forward and aft, three feet and six inches, and both of these measurements were reported to the defendant, and the latter was accompanied by the declaration that the boat drew too much water for his purpose. The captain of the boat also took the defendant on to the dock, by which the boat was lying, and pointed out to him that she was coppered three feet and nine inches from the keel, and that she then showed only three inches out of water, and, of course, that she then drew, forward and aft, unloaded, three feet and six inches. The purchase was thus made by the defendant, with his eyes open, after every opportunity had been afforded him for the inspection of the vessel.

DECREE AFFIRMED.


text: Talk:Slaughter's Administrator v. Gerson/Opinion of the Court


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Alexander v. Roulet

ERROR to the Circuit Court for the District of California.

Alexander brought ejectment against Roulet and others in the court below to recover a piece of land in San Francisco, California. The title was thus: The conquest of California was complete, as decided by this court, July 7th, 1846. On the 12th of January, 1850, Horace Hawes, at that time, by virtue of an appointment from the then military governor of the then Territory of California, and an election by the people of the district, acting as the prefect of the district embracing the then pueblo, now city of San Francisco, granted to Edward Carpenter the premises in controversy. The title of Carpenter, thus acquired, became vested in the plaintiff. The premises were within the limits of the said pueblo, now city of San Francisco.

The court gave judgment for the defendant, holding, among other things, that although each prefect of California, while the same was part of the Mexican territory, had power to make grants of the common and unappropriated lands of the pueblos within their jurisdiction, yet that from and after the conquest and acquisition of the country by the United States they ceased to have such power, and, consequently, that the grant of Prefect Hawes was void.

On error here, among the questions raised were these:

1. Whether, while California was still part of the Mexican territory, prefects there had power to make grants of the common or unappropriated lands of pueblos within their jurisdiction.

2. Assuming that they had the power while the region was under Mexican rule, whether prefects elected by the people as well as appointed by military governors of the United States, after the cession and conquest, had the same power.

Messrs. W. Irvine and S. Heydenfelt, for the plaintiff in error; Mr. Hall McAllister, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Alexander v. Roulet


text: Talk:Alexander v. Roulet

title: Talk:Alexander v. Roulet


text:
Alexander v. Roulet/Opinion of the Court

It has been repeatedly decided by this court that a recovery cannot be had in an action of ejectment in the Federal courts except on a legal title, and the inquiry is, whether the plaintiff in this case is clothed with such a title.

This title rests on the authority of Horace Hawes, acting as prefect of the district, embracing the then pueblo of San Francisco, under the appointment of the military governor of California and an election by the people of the district, to grant a part of the common lands of the pueblo.

It is not necessary for the purposes of this suit to decide whether prefects of California, while the same was a part of the Mexican territory, were authorized to make grants of the common or unappropriated lands of the pueblos within their jurisdiction, because in this case the grant was after the conquest and acquisition of the country by the United States, and if the prefect had such authority before that event it clearly ceased with the changed relations of the people. By the conquest of the country, Mexican rule was displaced and with it the authority of Mexican officials to alienate the public domain, and as a necessary consequence of this conquest, the Constitution of the United States, which gives to Congress the disposition of the public lands, was extended over the territory of California. Until Congress provided a government for the country it was in charge of military governors, who, with the aid of subordinate officers, exercised municipal authority; but the power to grant land or confirm titles was never vested in these military governors, nor in any person appointed by them.

It is contended, however, that Hawes's election by the people of the pueblo to the office of prefect on the retirement of the Mexican officials, gave him all the power a Mexican prefect would have had if the country had not been conquered. Is this position maintainable? Pueblos or towns, by the laws of Mexico, were entitled to a certain quantity of lands adjoining them, which were held in trust for the benefit of their inhabitants. The nature and extent of these pueblo rights have been the subject of a great deal of controversy since the acquisition of California, and came before this court for consideration in the case of Townsend v. Greeley. Mr. Justice Field, in delivering the opinion of the court in that case, says: 'It may be difficult to state with precision the exact nature of the right or title which the pueblos held in these lands. It was not an indefeasible estate; ownership of the lands in the pueblos could not in strictness be affirmed. It amounted in truth to little more than a restricted or 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. This right of disposition and use was in all particulars subject to the control of the government of the country.' Manifestly, if this right of disposition and use were subject to Mexican control while Mexican rule prevailed, it was equally subject to the control of our government when this rule was changed. It must be conceded that these pueblos had an equitable right to have their common lands confirmed to them, but they did not hold them as a private individual does his estate, and it needed legislative action to ripen this equitable right into a legal title. Congress has acted upon this subject and confirmed the lands of the pueblo of San Francisco, including the demanded premises, and this confirmation could not enure to the benefit of any one claiming under a grant by an American prefect, unless there were an express declaration to that effect. As there is no pretence that the grant in this case was protected by legislation, it follows that the plaintiff has no title of any sort to rest upon.

JUDGMENT AFFIRMED.


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Page:Copyright, Its History And Its Law (1912).djvu/195

 shows, sleight-of-hand performances, acrobatic or circus tricks of any kind; descriptions of moving pictures or of settings for the production of moving pictures. (These, however, when printed and published, are registrable as 'books.')

"9. Dramatico-musical compositions include principally operas, operettas, and musical comedies, or similar productions which are to be acted as well as sung.

"Ordinary songs, even when intended to be sung from the stage in a dramatic manner, or separately published songs from operas and operettas, should be registered as musical compositions, not dramaticomusical compositions.

"10. (e) Musical compositions, including other vocal and all instrumental compositions, with or without words.

"But when the text is printed alone it should be registered as a ' book,' not asa ' musical composition.' "

To dramatic and musical authors are given (sec. l) in addition to the general right, granted in subsec tion " (a) To print, reprint, publish, copy and vend the copyrighted work," the specific exclusive rights:

"(b) ... to dramatize it if it be a non-dramatic work; to convert it into a novel or other non-dramatic work if it be a drama; to arrange or adapt it if it be a musical work; ...

"(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce.


text:
The Siren (80 U.S. 389)

APPEAL from the District Court for the District of Massachusetts; the case being thus:

Prior, and up to the morning of the 17th of February, 1865, a naval force of the United States, composed of the Gladiolus, and twenty-six other vessels of war, were blockading the port of Charleston and assisting to reduce the city; a force operating also by land in the same general designs. During the night of the 16th and 17th, the rebel forces evacuated the forts about the harbor, and abandoned the city. At 9 o'clock on the morning of the 17th, an officer of the land force raised the national flag upon Forts Sumter, Ripley, and Pinckney. At 10 a military officer reached Charleston; and the city surrendered itself, and the rebel stores, arms, and property there to him. Contemporaneously with these transactions the army approached the city, and the fleet moved towards its wharves. As the latter came near to land, a boy on shore gave information that the Siren, a blockade-runner, a vessel of force inferior to the Gladiolus, had run in during the night, and was lying in Ashley River; which makes a west entrance inland from the bay where the blockading fleet was stationed. The Gladiolus, one of the leading vessels of the fleet, dispatched a boat's crew towards the vessel. When they got there they found that her crew learning of the success of the Federal arms, and seeing the Gladiolus coming, had cut the injection-pipes of the vessel, set her on fire, and abandoned her. She was now in flames, filling with water, and surrounded by boats filled with negroes from the shore. The Gladiolus, herself, arrived at the scene soon after her boat's crew got there; and, with the people about, managed to put out the fire and tow the vessel to shallow water, where after great effort her leaks were stopped. She was then taken to Boston, and condemned as a prize of war, and sold; all questions as to the distribution of the proceeds being reserved. From the proceeds in the registry (less a certain sum, which on libel filed had been decreed to the owners of a vessel that the prize-crew of the Siren in bringing her into Boston for condemnation, had carelessly ran into and injured), the Gladiolus claimed both salvage and prize-money; claiming as the latter one-half of the proceeds. The other vessels named as part of the blockading force, set up a right to participate in the proceeds as captors with the Gladiolus.

The statute under which the claim of all the vessels was made is in these words:

'The net proceeds of all property condemned as prize when the prize was of superior or equal force to the vessel or vessels making the capture, shall be decreed to the captors; and when of inferior force to the vessel or vessels making the capture, one-half shall be decreed to the United States and the other half to the captors.'

There was no statute which provided for joint captures by the army and navy.

The court below decreed in favor of the claim of the Gladiolus for salvage, and gave the residue of the proceeds, after paying the sum decreed as damages for the collision, to the United States alone. From this decree, depriving them of all prize-money, the present appeal was taken by certain of the blockading vessels.

Messrs. Charles Cowley, and Charles Levi Woodbury, for the appellants; Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

title: The Siren (80 U.S. 389)


text: Talk:The Siren (80 U.S. 389)

title: Talk:The Siren (80 U.S. 389)


text:
The Siren (80 U.S. 389)/Opinion of the Court

In the English maritime jurisprudence the jurisdiction of the admiralty court on the instance side, and the jurisdiction in prize, are entirely distinct and independent of each other. When exercising one, it is called the instance court, and the prize court when exercising the other. The rules of procedure and adjudication in the latter are said to be no more like those which prevail in the former, than they are like those of any court in Westminster Hall. But from time immemorial both jurisdictions have been exercised by the same judge. As judge of the admiralty or instance court he is appointed by a commission under the great seal. This commission specifies fully and particularly the subjects of his jurisdiction, but is wholly silent as to prize. To give that jurisdiction, and bring it into activity, a commission under the great seal, in every war, was issued to the lord high admiral, to require the judge of admiralty to take cognizance of all captures, seizures, prizes, and reprisals of all ships and goods that should be taken, and to hear and determine according to the course of the admiralty and the law of nations. A special warrant was thereupon issued by the admiral. Since the reign of Elizabeth it does not appear that any special authority has been given to the judge. He has exercised exclusive jurisdiction in prize under his commission from the king, or under the power inherent in his office, or by virtue of both

Prize was wholly the creature of the crown. No one could have any interest but what he took as the gift of the king. Beyond this he could claim nothing. The reasons upon which the rule was founded were: that right of making war and peace was exclusively in the sovereign; that the acquisitions of war must, therefore, belong to him, and that their disposal might be of the utmost importance for the purposes both of war and peace. It was held that it must be presumed from these considerations that the government did not intend to divest itself of this important attribute, except in so far as such a purpose was clearly and unequivocally expressed. The right is not the private property of the sovereign, but a trust confided to him for the public good. In private grants the construction is most strongly against the grantor. In all concessions touching capture the opposite rule prevails. A presumption arises against the grant, and it can only be rebutted by language so explicit as to leave no room for doubt upon the subject.

The lord high admiral exists now only in contemplation of law. It was deemed expedient to assign to him a certain portion of the rights of the crown to maintain the dignity and splendor of his office. Hence the doctrines of droits of the admiralty, and of captured property which belonged to the king, virtute coronae. The lord high admiral is now represented by the king, who holds the office, but in a capacity distinct from his regal character, and the droits which belonged to the office, so far as they still subsist and are not otherwise disposed of, have in the progress of time become reattached to the crown.

To the legal scholar the subject is full of the interest of antiquarian research, but its examination is not necessary to the decision of the present case. The proper limits of this opinion forbid us to pursue the inquiry further.

While the American colonies were a part of the British empire, the English maritime law, including the law of prize, was the maritime law of this country. From the close of the Revolution down to this time it has continued to be our law, so far as it is adapted to the altered circumstances and condition of the country, and has not been modified by the proper national authorities. In our jurisprudence there are, strictly speaking, no droits of admiralty. The United States have succeeded to the rights of the crown. No one can have any right or interest in any prize except by their grant or permission. All captures made without their express authority enure ipso facto to their benefit. Whenever a claim is set up its sanction by an act of Congress must be shown. If no such act can be produced the alleged right does not exist. The United States take captured property, not as droits, but strictly and solely jure reipublicae.

During the late civil war a land and naval force of the United States were beleaguring Charleston in South Carolina. The rebel fortifications and forces kept both at bay. This had been the condition of things for a considerable period. In the night of the 17th February, 1865, the insurgent troops evacuated the neighboring forts and abandoned the city. This became known the next morning. The fleet thereupon approached the city by water and the army by land. The Gladiolus, a steam propeller of the navy, was one of the leading vessels. When she was off the Battery at Charleston, a boy from the shore gave information that a blockaderunner was lying near by in Ashley River. A boat's crew from the Gladiolus was dispatched in quest of her. They found her on fire and surrounded by boats filled with colored people from the shore. The crew of the boat and others present proceeded to put out the fire. The Gladiolus reached the scene a few minutes after the arrival of the boat. The fire was extinguished; the crew of the Gladiolus assisted in putting it out. It was found that the pipes of the vessel had been cut and that she was filling with water. The Gladiolus towed her to shallow water and her leaks were stopped. She was the Siren, a side-wheeled steamer of about one hundred and fifteen tons burden, and had run the blockade the night before. That morning her crew had cut her pipes, set her on fire, and abandoned her. She was sent to Boston for trial as prize of war. On her way she collided with another vessel. She was libelled by the United States in the District Court of Massachusetts. On the 7th of April, 1865, she was condemned as lawful prize and subsequently sold. All questions as to the distribution of the proceeds were left open by the decree for future adjudication. The owners of the vessel collided with, intervened and claimed damages. They were allowed by this court on appeal. Salvage was claimed in behalf of the Gladiolus. One-half of the proceeds of the sale was also claimed for that vessel as prize money. The other appellant vessels of war claimed to participate with her. A decree of distribution was made on the 3d of July, 1869. The court allowed the claim for salvage, and ordered that the residue of the fund, less the sums decreed for damages arising from the collision, should be paid over to the United States. The appellants have brought this decree before us for review.

Four acts of Congress have been passed allowing captors to participate in the fruits of the property captured. They are the act of 1799, that of 1800; that of 1862, and that of 1864. It is necessary in this case to consider only one clause of the 10th section of the act last mentioned, which is as follows: 'The net proceeds of all property condemned as prize, when the prize was of superior or equal force to the vessel or vessels making the capture, shall be decreed to the captors. And when of inferior force, one-half shall be decreed to the United States and the other half to the captors.'

No provision is found in any of these statutes touching joint captures by the army and navy. They are wholly silent as to the military arm of the service. It results from this state of things, according to the principles we have laid down, that such captures enure exclusively to the benefit of the United States. In the English law they are held not to be within the prize acts, and are provided for by statutes passed specially for that purpose. In the Genoa and its dependencies, Lord Stowell, speaking of the word 'prize,' says: 'It evidently means maritime capture effected by maritime force only,-ships and cargoes taken by ships.'. . . 'What was taken by a conjunct expedition was formerly erroneously considered as vested in a certain proportion of it, in the capturing ships under the prize acts; but in a great and important case lately decided, it was determined that the whole was entirely out of the effect of those prize acts, and in so deciding, determined by direct and included consequence, that the words 'prizes taken by any of her Majesty's ships or vessels of war,' cannot apply to any other cases than those in which captures are made by ships only.'

In Booty in the Peninsula, the same great authority, referring to 'a conjunct expedition,' held this language: 'It may be difficult, and perhaps perilous, to define it negatively and exclusively. It is more easy and safe to define it affirmatively, that that is a conjunct expedition which is directed by competent authority, combining together the actions of two different species of force, for the attainment of some common specific purpose.'

The opinion of the court below proceeded upon the ground that the present case is one of this character. Whether it was or was not is the question presented for our determination. The application of Lord Stowell's test leaves no room for doubt as to its proper solution.

We have already adverted to the ingress of the navy into the harbor of Charleston on the morning of the 17th of February. At nine o'clock that morning an officer of the land forces hoisted the national flag over the ruins of Fort Sumter. Flags were also raised over Forts Ripley and Pinckney. At ten o'clock a military officer reached Charleston. The mayor surrendered the city to him. Four hundred and fifty pieces of artillery, military stores, and much other property were captured with it. Contemporaneously with these things was the seizure of the Siren by the Gladiolus, and the approach and arrival of the rest of the fleet.

The two forces were acting under the orders of a common government, for a common object, and for none other. They were united in their labors and their perils, and in their triumph they were not divided. They were converging streams toiling against the same dike. When it gave way both swept in without any further obstruction. The consummation of their work was the fall of the city. Either force, after the abandonment of their defences by the rebels, could have seized all that was taken by both. The meritorious service of the Gladiolus was as salvor, and not as a captor. Precedence in the time of the arrival of the respective forces is an element of no consequence. Upon principle, reason, and authority we think the judgment of the District Court was correctly given. The decree of condemnation committed the court to nothing as to the distribution. The course pursued was eminently proper under the circumstances, and according to the course of practice in proceedings in prize. The allowance of salvage by the court below was not objected to in the argument here.

It has been suggested that the capture was within the 7th section of the act of the 2d of July, 1864, which declares that 'no property seized or taken upon any of the inland waters of the United States by the naval forces thereof shall be regarded as maritime prize,' &c. The aspect in which the case has been examined, and the conclusions reached, render it unnecessary to consider that proposition, and we express no opinion upon the subject.

DECREE AFFIRMED.


text: Talk:The Siren (80 U.S. 389)/Opinion of the Court


text:
Tarble's Case

ERROR to the Supreme Court of Wisconsin.

This was a proceeding on habeas corpus for the discharge of one Edward Tarble, held in the custody of a recruiting officer of the United States as an enlisted soldier, on the alleged ground that he was a minor, under the age of eighteen years at the time of his enlistment, and that he enlisted without the consent of his father.

The writ was issued on the 10th of August, 1869, by a court commissioner of Dane County, Wisconsin, an officer authorized by the laws of that State to issue the writ of habeas corpus upon the petition of parties imprisoned or restrained of their liberty, or of persons on their behalf. It was issued in this case upon the petition of the father of Tarble, in which he alleged that his son, who had enlisted under the name of Frank Brown, was confined and restrained of his liberty by Lieutenant Stone, of the United States army, in the city of Madison, in that State and county; that the cause of his confinement and restraint was that he had, on the 20th of the preceding July, enlisted, and been mustered into the military service of the United States; that he was under the age of eighteen years at the time of such enlistment; that the same was made without the knowledge, consent, or approval of the petitioner; and was, therefore, as the petitioner was advised and believed, illegal; and that the petitioner was lawfully entitled to the custody, care, and services of his son.

The writ was directed to the officer thus named, commanding him to have Tarble, together with the cause of his imprisonment and detention, before the commissioner, at the latter's office, in the city of Madison, immediately after the receipt of the writ.

The officer thereupon produced Tarble before the commissioner and made a return in writing to the writ, protesting that the commissioner had no jurisdiction in the premises, and stating, as the authority and cause for the detention of the prisoner, that he, the officer, was a first lieutenant in the army of the United States, and by due authority was detailed as a recruiting officer at the city of Madison, in the State of Wisconsin, and as such officer had the custody and command of all soldiers recruited for the army at that city; that on the 27th of July preceding, the prisoner, under the name of Frank Brown, was regularly enlisted as a soldier in the army of the United States for the period of five years, unless sooner discharged by proper authority; that he then duly took the oath required in such case by law and the regulations of the army, in which oath he declared that he was of the age of twenty-one years, and thereby procured his enlistment, and was on the same day duly mustered into the service of the United States; that subsequently he deserted the service, and being retaken was then in custody and confinement under charges of desertion, awaiting trial by the proper military authorities.

To this return the petitioner filed a reply, denying, on information and belief, that the prisoner was ever duly or lawfully enlisted or mustered as a soldier into the army of the United States, or that he had declared on oath that he was of the age of twenty-one years, and alleging that the prisoner was at the time of his enlistment under the age of eighteen years, and on information and belief that he was enticed into the enlistment, which was without the knowledge, consent, or approval of the petitioner; that the only oath taken by the prisoner at the time of his enlistment was an oath of allegiance; and that the petitioner was advised and believed that the prisoner was not, and never had been, a deserter from the military service of the United States.

On the 12th of August, to which day the hearing of the petition was adjourned, the commissioner proceeded to take the testimony of different witnesses produced before him, which related principally to the enlistment of the prisoner, the declarations which he made as to his age, and the oath he took at the time, his alleged desertion, the charges against him, his actual age, and the absence of any consent to the enlistment on the part of his father.

The commissioner, after argument, held that the prisoner was illegally imprisoned and detained by Lieutenant Stone, and commanded that officer forthwith to discharge him from custody.

Afterwards, in September of the same year, that officer applied to the Supreme Court of the State for a certiorari, setting forth in his application the proceedings before the commissioner and his ruling thereon. The certiorari was allowed, and in obedience to it the proceedings had before the commissioner were returned to the Supreme Court. These proceedings consisted of the petition for the writ, the return of the officer, the reply of the petitioner, and the testimony, documentary and parol, produced before the commissioner.

Upon these proceedings the case was duly argued before the Supreme Court, and in April, 1870, that tribunal pronounced its judgment, affirming the order of the commissioner discharging the prisoner. This judgment was now before this court for examination on writ of error prosecuted by the United States.

The opinion of the court below was sent up with the transcript of the record in the case. It went largely and elaborately into the grounds of its judgment. The sacredness of the right to personal liberty, and 'the high, searching, and imperative character' of the writ of habeas corpus were presented and enforced. The right of any State court to liberate a party in custody under sentence of the Federal courts, when such Federal court had jurisdiction, was not, indeed, asserted, even where the Federal court might err in what it did; but, contrariwise, such right by any State court was disclaimed. But the right of the State courts to decide whether the Federal court had jurisdiction to pass upon the subject at all, was considered by the court below as perfectly within its competence to pass upon; and, if on full consideration of the case, the State court was satisfied that the Federal court had no jurisdiction at all in the matter, in such a case the court below asserted that the duty of the State court was to disregard what the Federal court had done. The court below, in illustration of its position, said:

'This court (the Supreme Court of Wisconsin), in a civil suit, recently passed on the jurisdiction of the Federal court to render a decree for the sale of a railroad on the foreclosure of a mortgage. There was no suggestion from any quarter that in doing so it was exercising any unwarrantable or unusual power, or assuming any authority to control, revise, or annul the judgments of that court. Nor was it. It is a power constantly exercised by all courts. But it is precisely the same power that is exercised in a proceeding by habeas corpus when the validity of a judgment under which the party is imprisoned is drawn in question. A judgment in a civil suit disposes of the title to property. A judgment in a criminal suit disposes of the prisoner's right to liberty. A civil suit involving the title to that property is the appropriate proceeding in which the jurisdiction of the court to render the one judgment may be drawn in question collaterally. A proceeding by habeas corpus may appropriately have the same effect as to the other. But the right of the State court to decide on the validity of the judgment in the latter case is as clear as its right in the former. It rests upon the same principles and stands or falls by the same reasoning.'

Mr. B. H. Bristow, Solicitor-General, contra, and for the United States, cited as conclusive the cases of Ableman v. Booth and United States v. Booth, in this court, in which cases the action of the Supreme Court of Wisconsin-the same court to which the writ of error in the present case had gone-in disregarding the action of the Federal courts or their officers under the act of Congress known as the Fugitive Slave Law-because, as the Wisconsin court held, the act was unconstitutional and void, and could therefore give the Federal court no jurisdiction-was overruled, and itself held unconstitutional and void.

The present case, Mr. Bristow argued, was covered in principle by the decisions cited, and those decisions had been applied in instance by several State courts to the case of an enlisted soldier in the army of the United States.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

title: Tarble's Case


text: Talk:Tarble's Case

title: Talk:Tarble's Case


text:
Tarble's Case/Opinion of the Court

The important question is presented by this case, whether a State court commissioner has jurisdiction, upon habeas corpus, to inquire into the validity of the enlistment of soldiers into the military service of the United States, and to discharge them from such service when, in his judgment, their enlistment has not been made in conformity with the laws of the United States. The question presented may be more generally stated thus: Whether any judicial officer of a State has jurisdiction to issue a writ of habeas corpus, or to continue proceedings under the writ when issued, for the discharge of a person held under the authority, or claim and color of the authority, of the United States, by an officer of that government. For it is evident, if such jurisdiction may be exercised by any judicial officer of a State, it may be exercised by the court commissioner within the county for which he is appointed; and if it may be exercised with reference to soldiers detained in the military service of the United States, whose enlistment is alleged to have been illegally made, it may be exercised with reference to persons employed in any other department of the public service when their illegal detention is asserted. It may be exercised in all cases where parties are held under the authority of the United States, whenever the invalidity of the exercise of that authority is affirmed. The jurisdiction, if it exist at all, can only be limited in its application by the legislative power of the State. It may even reach to parties imprisoned under sentence of the National courts, after regular indictment, trial, and conviction, for offences against the laws of the United States. As we read the opinion of the Supreme Court of Wisconsin in this case, this is the claim of authority asserted by that tribunal for itself and for the judicial officers of that State. It does, indeed, disclaim any right of either to interfere with parties in custody, under judicial sentence, when the National court pronouncing sentence had jurisdiction to try and punish the offenders, but it asserts, at the same time, for itself and for each of those officers, the right to determine, upon habeas corpus, in all cases, whether that court ever had such jurisdiction. In the case of Booth, which subsequently came before this court, it not only sustained the action of one of its justices in discharging a prisoner held in custody by a marshal of the United States, under a warrant of commitment for an offence against the laws of the United States, issued by a commissioner of the United States; but it discharged the same prisoner when subsequently confined under sentence of the District Court of the United States for the same offence, after indictment, trial, and conviction, on the ground that, in its judgment, the act of Congress creating the offence was unconstitutional; and in order that its decision in that respect should be final and conclusive, directed its clerk to refuse obedience to the writ of error issued by this court, under the act of Congress, to being up the decision for review.

It is evident, as said by this court when the case of Booth was finally brought before it, if the power asserted by that State court existed, no offence against the laws of the United States could be punished by their own tribunals, without the permission and according to the judgment of the courts of the State in which the parties happen to be imprisoned; that if that power existed in that State court, it belonged equally to every other State court in the Union where a prisoner was within its territorial limits; and, as the different State courts could not always agree, it would often happen that an act, which was admitted to be an offence and justly punishable in one State, would be regarded as innocent, and even praiseworthy in another, and no one could suppose that a government, which had hitherto lasted for seventy years, 'enforcing its laws by its own tribunals, and preserving the union of the States, could have lasted a single year, or fulfilled the trusts committed to it, if offences against its laws could not have been punished without the consent of the State in which the culprit was found.'

The decision of this court in the two cases which grew out of the arrest of Booth, that of Ableman v. Booth, and that of The United States v. Booth, disposes alike of the claim of jurisdiction by a State court, or by a State judge, to interfere with the authority of the United States, whether that authority be exercised by a Federal officer or be exercised by a Federal tribunal. In the first of these cases Booth had been arrested and committed to the custody of a marshal of the United States by a commissioner appointed by the District Court of the United States, upon a charge of having aided and abetted the escape of a fugitive slave. Whilst thus in custody a justice of the Supreme Court of Wisconsin issued a writ of habeas corpus directed to the marshal, requiring him to produce the body of Booth with the cause of his imprisonment. The marshal made a return, stating that he held the prisoner upon the warrant of the commissioner, a copy of which he annexed to and returned with the writ. To this return Booth demurred as insufficient in law to justify his detention, and, upon the hearing which followed, the justice held his detention illegal, and ordered his discharge. The marshal thereupon applied for and obtained a certiorari, and had the proceedings removed to the Supreme Court of the State, where, after argument, the order of the justice discharging the prisoner from custody was affirmed. The decision proceeded upon the ground that the act of Congress respecting fugitive slaves was unconstitutional and void.

In the second case, Booth had been indicted for the offence with which he was charged before the commissioner, and from which the State judge had discharged him, and had been tried and convicted in the District Court of the United States for the District of Wisconsin, and been sentenced to pay a fine of $1000, and to be imprisoned for one month. Whilst in imprisonment, in execution of this sentence, application was made by Booth to the Supreme Court of the State, for a writ of habeas corpus, alleging in his application that his imprisonment was illegal, by reason of the unconstitutionality of the fugitive slave law, and that the District Court had no jurisdiction to try or punish him for the matter charged against him. The court granted the application, and issued the writ, to which the sheriff, to whom the prisoner had been committed by the marshal, returned that he held the prisoner by virtue of the proceedings and sentence of the District Court, a copy of which was annexed to his return. Upon demurrer to this return, the court adjudged the imprisonment of Booth to be illegal, and ordered him to be discharged from custody, and he was accordingly set at liberty.

For a review in this court of the judgments in both of these cases, writs of error were prosecuted. No return, however, was made to the writs, the clerk of the Supreme Court of Wisconsin having been directed by that court to refuse obedience to them; but copies of the records were filed by the Attorney-General, and it was ordered by this court that they should be received with the same effect and legal operation as if returned by the clerk. The cases were afterwards heard and considered together, and the decision of both was announced in the same opinion. In that opinion the Chief Justice details the facts of the two cases at length, and comments upon the character of the jurisdiction asserted by the State judge and the State court; by the State judge to supervise and annul the proceedings of a commissioner of the United States, and to discharge a prisoner committed by him for an offence against the laws of the United States; and by the State court to supervise and annul the proceedings and judgment of a District Court of the United States, and to discharge a prisoner who had been indicted, tried, and found guilty of an offence against the laws of the United States and sentenced to imprisonment by that court.

And in answer to this assumption of judicial power by the judges and by the Supreme Court of Wisconsin thus made, the Chief Justice said as follows: If they 'possess the jurisdiction they claim, they must derive it either from the United States or the State. It certainly has not been conferred on them by the United States; and it is equally clear it was not in the power of the State to confer it, even if it had attempted to do so; for no State can authorize one of its judges or courts to exercise judicial power, by haveas corpus or otherwise, within the jurisdiction of another and independent government. And although the State of Wisconsin is sovereign within its territorial limits to a certain extent, yet that sovereignty is limited and restricted by the Constitution of the United States. And the powers of the General government and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. And the sphere of action appropriated to the United States, is as far beyond the reach of the judicial process issued by a State judge or a State court, as if the line of division was traced by landmarks and monuments visible to the eye. And the State of Wisconsin had no more power to authorize these proceedings of its judges and courts, than it would have had if the prisoner had been confined in Michigan, or in any other State of the Union, for an offence against the laws of the State in which he was imprisoned.'

It is in the consideration of this distinct and independent character of the government of the United States, from that of the government of the several States, that the solution of the question presented in this case, and in similar cases, must be found. There are within the territorial limits of each State two governments, restricted in their spheres of action, but independent of each other, and supreme within their respective spheres. Each has its separate departments; each has its distinct laws, and each has its own tribunals for their enforcement. Neither government can intrude within the jurisdiction, or authorize any interference therein by its judicial officers with the action of the other. The two governments in each State stand in their respective spheres of action in the same independent relation to each other, except in one particular, that they would if their authority embraced distinct territories. That particular consists in the supremacy of the authority of the United States when any conflict arises between the two governments. The Constitution and the laws passed in pursuance of it, are declared by the Constitution itself to be the supreme law of the land, and the judges of every State are bound thereby, 'anything in the constitution or laws of any State to the contrary notwithstanding.' Whenever, therefore, any conflict arises between the enactments of the two sovereignties, or in the enforcement of their asserted authorities, those of the National government must have supremacy until the validity of the different enactments and authorities can be finally determined by the tribunals of the United States. This temporary supremacy until judicial decision by the National tribunals, and the ultimate determination of the conflict by such decision, are essential to the preservation of order and peace, and the avoidance of forcible collision between the two governments. 'The Constitution,' as said by Mr. Chief Justice Taney, 'was not framed merely to guard the States against danger from abroad, but chiefly to secure union and harmony at home; and to accomplish this end it was deemed necessary, when the Constitution was framed, that many of the rights of sovereignty which the States then possessed should be ceded to the General government; and that in the sphere of action assigned to it, it should be supreme and strong enough to execute its own laws by its own tribunals, without interruption from a State, or from State authorities.' And the judicial power conferred extends to all cases arising under the Constitution, and thus embraces every legislative act of Congress, whether passed in pursuance of it, or in disregard of its provisions. The Constitution is under the view of the tribunals of the United States when any act of Congress is brought before them for consideration.

Such being the distinct and independent character of the two governments, within their respective spheres of action, it follows that neither can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of the National government to preserve its rightful supremacy in cases of conflict of authority. In their laws, and mode of enforcement, neither is responsible to the other. How their respective laws shall be enacted; how they shall be carried into execution; and in what tribunals, or by what officers; and how much discretion, or whether any at all shall be vested in their officers, are matters subject to their own control, and in the regulation of which neither can interfere with the other.

Now, among the powers assigned to the National government, is the power 'to raise and support armies,' and the power 'to provide for the government and regulation of the land and naval forces.' The execution of these powers falls within the line of its duties; and its control over the subject is plenary and exclusive. It can determine, without question from any State authority, how the armies shall be raised, whether by voluntary enlistment or forced draft, the age at which the soldier shall be received, and the period for which he shall be taken, the compensation he shall be allowed, and the service to which he shall be assigned. And it can provide the rules for the government and regulation of the forces after they are raised, define what shall constitute military offences, and prescribe their punishment. No interference with the execution of this power of the National government in the formation, organization, and government of its armies by any State officials could be permitted without greatly impairing the efficiency, if it did not utterly destroy, this branch of the public service. Probably in every county and city in the several States there are one or more officers authorized by law to issue writs of habeas corpus on behalf of persons alleged to be illegally restrained of their liberty; and if soldiers could be taken from the army of the United States, and the validity of their enlistment inquired into by any one of these officers, such proceeding could be taken by all of them, and no movement could be made by the National troops without their commanders being subjected to constant annoyance and embarrassment from this source. The experience of the late rebellion has shown us that, in times of great popular excitement, there may be found in every State large numbers ready and anxious to embarrass the operations of the government, and easily persuaded to believe every step taken for the enforcement of its authority illegal and void. Power to issue writs of habeas corpus for the discharge of soldiers in the military service, in the hands of parties thus disposed, might be used, and often would be used, to the great detriment of the public service. In many exigencies the measures of the National government might in this way be entirely bereft of their efficacy and value. An appeal in such cases to this court, to correct the erroneous action of these officers, would afford no adequate remedy. Proceedings on habeas corpus are summary, and the delay incident to bringing the decision of a State officer, through the highest tribunal of the State, to this court for review, would necessarily occupy years, and in the meantime, where the soldier was discharged, the mischief would be accomplished. It is manifest that the powers of the National government could not be exercised with energy and efficiency at all times, if its acts could be interfered with and controlled for any period by officers or tribunals of another sovereignty.

It is true similar embarrassment might sometimes be occasioned, though in a less degree, by the exercise of the authority to issue the writ possessed by judicial officers of the United States, but the ability to provide a speedy remedy for any inconvenience following from this source would always exist with the National legislature.

State judges and State courts, authorized by laws of their States to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case where a party is alleged to be illegally confined within their limits, unless it appear upon his application that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of that government. If such fact appear upon the application the writ should be refused. If it do not appear, the judge or court issuing the writ has a right to inquire into the cause of imprisonment, and ascertain by what authority the person is held within the limits of the State; and it is the duty of the marshal, or other officer having the custody of the prisoner, to give, by a proper return, information in this respect. His return should be sufficient, in its detail of facts, to show distinctly that the imprisonment is under the authority, or claim and color of the authority, of the United States, and to exclude the suspicion of imposition or oppression on his part. And the process or orders, under which the prisoner is held, should be produced with the return and submitted to inspection, in order that the court or judge issuing the writ may see that the prisoner is held by the officer, in good faith, under the authority, or claim and color of the authority, of the United States, and not under the mere pretence of having such authority.

This right to inquire by process of habeas corpus, and the duty of the officer to make a return, 'grows necessarily,' says Mr. Chief Justice Taney, 'out of the complex character of our government and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its power, and each within its sphere of action, prescribed by the Constitution of the United States, independent of the other. But, after the return is made, and the State judge or court judicially apprised that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner is within the dominion and jurisdiction of another government, and that neither the writ of habeas corpus nor any other process issued under State authority can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offence against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, their judicial tribunals can release him and afford him redress.'

Some attempt has been made in adjudications, to which our attention has been called, to limit the decision of this court in Ableman v. Booth, and The United States v. Booth, to cases where a prisoner is held in custody under undisputed lawful authority of the United States, as distinguished from his imprisonment under claim and color of such authority. But it is evident that the decision does not admit of any such limitation. It would have been unnecessary to enforce, by any extended reasoning, such as the Chief Justice uses, the position that when it appeared to the judge or officer issuing the writ, that the prisoner was held under undisputed lawful authority, he should proceed no further. No Federal judge even could, in such case, release the party from imprisonment, except upon bail when that was allowable. The detention being by admitted lawful authority, no judge could set the prisoner at liberty, except in that way, at any stage of the proceeding. All that is meant by the language used is, that the State judge or State court should proceed no further when it appears, from the application of the party, or the return made, that the prisoner is held by an officer of the United States under what, in truth, purports to be the authority of the United States; that is, an authority, the validity of which is to be determined by the Constitution and laws of the United States. If a party thus held be illegally imprisoned it is for the courts or judicial officers of the United States, and those courts or officers alone, to grant him release.

This limitation upon the power of State tribunals and State officers furnishes no just ground to apprehend that the liberty of the citizen will thereby be endangered. The United States are as much interested in protecting the citizen from illegal restraint under their authority, as the several States are to protect him from the like restraint under their authority, and are no more likely to tolerate any oppression. Their courts and judicial officers are clothed with the power to issue the writ of habeas corpus in all cases, where a party is illegally restrained of his liberty by an officer of the United States, whether such illegality consist in the character of the process, the authority of the officer, or the invalidity of the law under which he is held. And there is no just reason to believe that they will exhibit any hesitation to exert their power, when it is properly invoked. Certainly there can be no ground for supposing that their action will be less prompt and effect in such cases than would be that of State tribunals and State officers.

It follows, from the views we have expressed, that the court commissioner of Dane County was without jurisdiction to issue the writ of habeas corpus for the discharge of the prisoner in this case, it appearing, upon the application presented to him for the writ, that the prisoner was held by an officer of the United States, under claim and color of the authority of the United States, as an enlisted soldier mustered into the military service of the National government; and the same information was imparted to the commissioner by the return of the officer. The commissioner was, both by the application for the writ and the return to it, apprised that the prisoner was within the dominion and jurisdiction of another government, and that no writ of habeas corpus issued by him could pass over the line which divided the two sovereignties.

The conclusion we have reached renders it unnecessary to consider how far the declaration of the prisoner as to his age, in the oath of enlistment, is to be deemed conclusive evidence on that point on the return to the writ.

JUDGMENT REVERSED.

I cannot concur in the opinion just read. I have no doubt of the right of a State court to inquire into the jurisdiction of a Federal court upon habeas corpus, and to discharge when satisfied that the petitioner for the writ is restrained of liberty by the sentence of a court without jurisdiction. If it errs in deciding the question of jurisdiction, the error must be corrected in the mode prescribed by the 25th section of the Judiciary Act; not by denial of the right to make inquiry.

I have still less doubt, if possible, that a writ of habeas corpus may issue from a State court to inquire into the validity of imprisonment or detention, without the sentence of any court whatever, by an officer of the United States. The State court may err; and if it does, the error may be corrected here. The mode has been prescribed and should be followed.

To deny the right of State courts to issue the writ, or, what amounts to the same thing, to concede the right to issue and to deny the right to adjudicate, is to deny the right to protect the citizen by habeas corpus against arbitrary imprisonment in a large class of cases; and, I am thoroughly persuaded, was never within the contemplation of the Convention which framed, or the people who adopted, the Constitution. That instrument expressly declares that 'the privilege of the writ of habeas corpus shall not be suspended, unless when, in case of rebellion or invasion, the public safety may require it.'

title: Tarble's Case/Opinion of the Court


text: Talk:Tarble's Case/Opinion of the Court

title: Talk:Tarble's Case/Opinion of the Court


text:
Kitchen v. Bedford

ERROR to the Circuit Court for the District of Missouri.

Kitchen, a citizen of Arkansas, brought trover in the court below against a certain Bedford and one Webber, for the conversion of one hundred and nineteen bonds of the Cairo and Fulton Railroad Company, for $1000 each, dated October 1st, 1857, and payable in New York in 1882, with semi-annual interest represented by interest warrants annexed to the bonds. The conversion was laid as on the 1st of December, 1866. Plea, 'Not guilty.' A jury being waived, the cause was tried by the court in May, 1870, and judgment rendered for the defendants. A bill of exceptions was taken, however, from which it appeared that on the trial evidence was given tending to establish the following facts, to wit:

The plaintiff, on the 16th of March, 1866, being owner of the bonds described in the declaration, gave them to his wife, and put them in the hands of one W. C. Rayburn, on the terms and for the purposes set out in the following writing, which Rayburn executed under seal, to wit:

'WALCOT, ARKANSAS, March 16th, 1866.

'Received from Martha Kitchen, the sum of one hundred and nineteen thousand dollars in bonds of the Cairo and Fulton Railroad Company of Missouri, and I also received fifty thousand four hundred and five dollars of coupons or interest warrants, due and owing by said company, amounting in the aggregate to the sum of one hundred and sixty-nine thousand four hundred and five dollars, which said sum I promise to expend in the purchase of lands from John Moore, John Wilson, and Albert G. Waterman, trustees of the said railroad company of Missouri, at or near the average price of five dollars per acre, taking the deeds in my own name; and I further promise to sell all the lands purchased as aforesaid, as soon as possible, at such prices as the said Kitchen may direct, and if I should fail to sell all said lands, as soon as said Kitchen may desire, then I promise to sell the same at public auction, whenever so directed by the said Kitchen, and after deducting the expenses of stamps and necessary travelling expenses, to pay unto the said Martha Kitchen, or her legal representatives, seven-eighths of all the money that I may sell the said lands for. Given under my hand and seal the date above written.

[SEAL]

'W. C. RAYBURN.'

Rayburn having received the bonds for the purpose thus indicated, in December, 1866, sold and delivered them to the defendant Bedford, for $10,000, and he sold and delivered them to defendant Webber, who afterwards sold them for $26,340, each knowing, when purchasing, the purposes for which Rayburn held them, as expressed in the writing. A demand for the bonds and coupons, was made by the plaintiff of the defendants before the suit was brought.

The court declared that, on this evidence the plaintiff could not recover, and the plaintiff having excepted, now brought the case here accordingly

Messrs. Carlisle and McPherson, for the plaintiff in error:

The bonds were those of the Cairo and Fulton Railroad Company, and were 'put in the hands' of Rayburn 'to expend in the purchase of lands from the trustees of the company;' a most natural use of them; since in so using them, they could be used as money, and their full or best value got; the only way it is obvious in which they could be so used, or such value could be got. The case, then, is that of a delivery of a thing in trust upon an agreement to conform to the purpose of the trust. But this is the definition of a bailment, not of a sale. The transaction indeed has no aspect of a sale.

These bonds having been disposed of in a way different from the specific one for which they were given to Rayburn, there has been a conversion, and trover lies.

Mr. T. T. Gantt, contra:

1. A fair construction of the paper is, that the bonds and coupons were absolutely sold to Rayburn at par, and that he stipulated to invest this par value in lands, as prescribed in the bond. It is declared expressly that he has received two sums of money amounting to $169,405, which said sum he promises to expend in the purchase of lands, &c.; that is to say, he takes the bonds, charges himself with their par value, and agrees to invest that amount or 'sum' in the purchase of lands.

The case shows nothing of the value of the bonds in December, 1866; nor anything to show that the price at which-as we suppose Rayburn took them, was not their then true market price. It is obvious from the difference between the price at which Bedford bought them and that at which he sold them, that the bonds were bonds having what is known as 'a speculative value;' an immense class of bonds in this country. If $169,405 was a fair market value, every presumption is in favor of a sale, rather than of a bailment. If this view is right, and Rayburn has not invested-a matter not shown on the other side, nor by us admitted-then a suit for breach of covenant lies against him; but not trover against his vendees.

But certainly if there was a trust, it was a trust with a power to sell, and invest proceeds. The sale has been made, and non constat but that the proceeds have been invested. Embezzlement is not to be presumed; and it is not proved. Whether invested or not invested-no charge of fraud at all being made as respects them-suit cannot be maintained against the vendees for making a purchase under a sale authorized and obligatory. As matter of fact, there is no proof that the prices paid by both Bedford and Webber-great as the difference between them was-were not both true market prices at this time. In 'fancy stocks' fluctuations are violent.

2. But Kitchen had given the bonds to his wife, and Rayburn receives them from her. The husband does not once appear in the history, after his gift. The wife should have been joined with the husband as plaintiff.

Reply: The husband had owned the bonds, and he it was who 'put them in the hands of Rayburn.' As between husband and wife, no valid gift could be made to her; and if the bonds had been delivered to her when the husband resumed possession they would become his own. The receipt is to be construed in connection with the rest of the evidence, which shows that the bonds were received from the plaintiff, and were his property, and were intended to be dedicated to his wife's use in the manner provided in the receipt. But all this is unimportant. The husband alone can bring trover for conversion of the wife's chattels.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Kitchen v. Bedford


text: Talk:Kitchen v. Bedford

title: Talk:Kitchen v. Bedford


text:
Kitchen v. Bedford/Opinion of the Court

Supposing the facts upon the evidence of which the court below declared that the plaintiff could not recover, to have been sufficiently proven, it seems to us that the court erred in taking the view of the case which it did. Rayburn had possession of the bonds for the purpose of purchasing therewith, for the benefit or Mrs. Kitchen, lands of the railroad company which had issued them, 'at or near the average price of five dollars per acre.' Instead of doing this, as he was bound, he sold them to Bedford for six cents on the dollar; and Bedford sold them to Webber at a hundred and fifty per cent. advance, both knowing the object for which Rayburn held the bonds. A clearer case of fraudulent breach of trust, it is difficult to conceive, and the defendants being participes criminis, were bound to deliver the bonds and coupons to the plaintiff when he demanded them.

It is contended that by the fair construction of the paper, Rayburn was to sell the bonds for what he could get, and invest the proceeds in lands, and non constat that he has not done so; or at all events, the defendants, as purchasers from Rayburn, have good title to the bonds, because he was invested with a trust to sell them. But the paper does not so read. It declares that Rayburn had received 'the sum of one hundred and nineteen thousand dollars in bonds of the Cairo and Fulton Railroad Company, and fifty thousand four hundred and five dollars of coupons, &c., amounting in the aggregate to the sum of one hundred and sixty-nine thousand four hundred and five dollars, which said sum, I promise to expend in the purchase of lands, &c., at or near the average price of five dollars per acre.' In other words, he was to purchase lands with the bonds and coupons at five dollars per acre, not with the proceeds of them, after being sold at a nominal price. He was to procure an acre for every five dollars of the bonds and coupons. That was the trust which he assumed. If he was unable to perform it, he should have returned the bonds, and not have sold them at six cents on the dollar. The defendants, when they bought them under these circumstances, did so at their peril, and were bound to restore the bonds to the plaintiff. Having refused to do this, they were liable to him for the fair value of the bonds at the time of the demand

Mrs. Kitchen was not a necessary party to the suit. The bonds were never hers in law. By the laws of Arkansas, a husband cannot legally make a gift to his wife during the marriage. He could not do so at the common law, and the statute of Arkansas which enables a married woman to take and hold property in her own right, expressly provides that no conveyance from a man to his wife, directly or indirectly, shall entitle her to any benefits or privileges of the act.

Perhaps he might have made an equitable gift for her benefit. But in this case, the husband had not parted with the legal title to the bonds, and had a right to call any person to account who unlawfully converted them.

JUDGMENT REVERSED, with directions to award a venire denovo.

Mr. Justice STRONG stated that he was unable to construe the contract upon which the plaintiff relied, as it was construed by a majority of the court, and for that reason, among others, he dissented from the judgment.

title: Kitchen v. Bedford/Opinion of the Court


text: Talk:Kitchen v. Bedford/Opinion of the Court


text:
Page:Copyright, Its History And Its Law (1912).djvu/196

 or reproduce it in any manner or by any method whatsoever;

"(e) To perform the copyrighted work pubHcly for profit if it be a musical composition and for the purpose of public performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced"; — to which provision of subsection (e), in respect to copyright control of mechanical records, are added provisos that such control shall not extend to compositions published and copyrighted before July 1, 1909, and works of foreigners whose state does not grant similar right to American citizens, and shall be subject to compulsory license arrangements, requiring that if the author permits any mechanical reproduction, he shall license any manufacturer under conditions stated in detail in the act, all of which exceptions and conditions are fully stated in the chapter on mechanical music provisions.

An exception to these exclusive rights is, however, made in the proviso (sec. 28) "Provided, however: That nothing in this Act shall be so construed as to prevent the performance of religious or secular works, such as oratorios, cantatas, masses, or octavo choruses by public schools, church choirs, or vocal societies, rented, borrowed, or obtained from some public library, public school, church choir, school choir, or vocal society, provided the performance is given for charitable or educational purposes and not for profit."

This proviso is singularly defective in phraseology, as the phrase "octavo choruses" has no musical significance and uses a music-trade term to designate