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Stairs v. Peaslee/Opinion of the Court

This case comes before the court upon a certificate of division in opinion between the judges of the circuit court of the United States for the district of Massachusetts.

It is an action for money had and received, brought by the plaintiffs, who are merchants, resident and doing business at Halifax, Nova Scotia, to recover of the defendant, the collector of customs for the port of Boston, money alleged to have been illegally exacted on payment of duties on fifty bags of cutch, shipped by the plaintiffs at Halifax, consigned to Messrs. Clark, Janes, and Co., of Boston.

The invoice was dated at Halifax, November 10, 1853, and the cutch was entered at the custom-house, Boston, on the 16th of the same month, at the invoice value.

The value of the cutch, as appraised by the United States appraisers, exceeded by ten per centum the invoice value; and the plaintiff appealed, and a reappraisement was had by two merchant's appraisers, and their appraisement also exceeded by ten per centum the invoice value; whereupon the defendant assessed a duty of ten per centum ad valorem on the appraised value, and also an additional duty or penalty of twenty per centum on the same value, under the 8th section of the tariff act of July 30, 1846.

It was proved that the cutch was the product of the East Indies only, and that Calcutta was the great market of the country of production. And it appeared on the trial that this fact was known to the appraisers when the appraisement was made. It was also proved that London and Liverpool were the principal markets of Great Britain, exclusive of India, for said article; and, so far as appeared at the trial, this cargo was the only one known to have been sold in, or exported from, Halifax.

It was also proved that the appraisers appraised the cutch at its market value in London and Liverpool, and not at Halifax or Calcutta, at the period of its exportation from the port of Halifax to the United States.

The case coming on to be tried, it occurred as a question:--

1. Whether the tariff act of March 3, 1851, repealed so much of all former laws as provided that merchandise, when imported from a country other than that of production or manufacture, should be appraised at the market value of similar articles at the principal markets of the country of production or manufacture, at the period of the exportation to the United States.

On which question the opinions of the judges were opposed.

2. Whether, in estimating the dutiable value of the cutch, the appraisers should have taken the value at the market of Calcutta, or London and Liverpool, or Halifax, at the period of the exportation from Halifax.

On which question the opinions of the judges were also opposed.

3. Whether, if the appraisements were legally made, the additional duty of twenty per centum, under the 8th section of the tariff act of July 30, 1846, was rightfully exacted by the defendant.

On which question the opinions of the judges were opposed.

Wherefore, upon the motion of the plaintiffs, the points were certified to this court for final decision.

The first question certified by the circuit court depends altogether upon the construction of the act of 1851, 9 Stats. at Large, 629.

The language of this act of congress is general, and embraces all importations of goods that are subject to an ad valorem duty; and directs that their value shall be estimated and ascertained by the wholesale price at the period of exportation to the United States, in the principal markets of the country from which they are imported. The time and the place to which the appraisers are required to look, when making their appraisement, are both distinctly specified in the law-the time being the period of exportation, and the place the country from which they were imported into the United States. It makes no reference to their value in the country of production, or the time of purchase. And as there is no ambiguity in the language of the act, and it embraces all goods subject to an ad valorem duty, the court would hardly be justified in giving a construction to it narrower than its words fairly import.

It is true, as urged by the counsel for the plaintiff, that in the previous laws upon the same subject, the country of production or manufacture was the place to which the appraisers were referred in order to ascertain their value. And undoubtedly the previous acts of congress, and the policy which they indicate, are proper to be considered in interpreting the act of 1851, and might influence its construction, if its language was found to be ambiguous. But that is not the case in the present instance. The law taken by itself will admit of but one construction-and that is, the appraisement must be made, by the value of the goods in the principal markets of the country from which they are exported, at the time of such exportation to the United States. And, so far as these provisions are inconsistent with the provisions of previous laws, they show that congress had changed its policy in this respect, and intended to repeal the laws by which it had been established.

As regards the second point certified, the word country in the revenue laws of the United States has always been construed to embrace all the possessions of a foreign State, however widely separated, which are subject to the same supreme executive and legislative control. The question was brought before the treasury department in 1817; and, on the 29th of September in that year, instructions were issued by the department, in a circular addressed to the different collectors, in which the construction above stated is given to the word. The practice of the government has ever since conformed to this construction; and it must be presumed that congress, in its subsequent legislation on the subject, used the word according to its known and established interpretation.

Apart, however, from this consideration, we regard the construction of the treasury department as the true one. Congress certainly could not have intended to refer to mere localities or geographical divisions, without regard to the state or nation to which they belonged. For, if the word country were used in that sense, the law furnishes no certain and fixed limits to guide the appraisers in determining what are its principal markets; and it would often be difficult to decide whether the market selected by appraisers, to regulate the value, was actually within the limits of the country from which the exportation was made. And, moreover, if the construction contended for by the plaintiff could be maintained, it would soon be found that goods would not generally be exported directly to the United States, from the principal market where they were procured, but sent to some other place where they were not in demand, to be shipped to this country, and invoiced far below their real value. The case before us shows what may be done to evade the payment of the just amount of duty; and neither the words of any revenue law, nor any policy of the government, would justify a construction alike injurious to the public and to the fair and honest importer.

It follows, therefore, as the cutch in question was shipped and invoiced from Halifax, that it was the duty of the appraisers to estimate and appraise it according to its value in the principal markets of the British dominions. What markets within these dominions were the principal ones for an article of this description was a question of fact, not of law, and to be decided by the appraisers, and not by the court. They, it appears, determined that London and Liverpool were the principal markets in Great Britain for the goods in question, and appraised the cutch according to its value in these markets. And as the appraisers are by law the tribunal appointed to determine this question, their decision is conclusive upon the importer as well as the government.

The third point presents a question of more difficulty.

By the act of congress of 1842, (5 Stats. at Large, 563,) it was provided that in cases where goods purchased were subject to an ad valorem duty, if the appraisement exceeded the value at which they were invoiced by ten per cent., or more, then in addition to the duty imposed by law on the same, there should be levied and collected on the same goods, wares, and merchandise, fifty per cent. of the duty imposed on the same when fairly invoiced.

It would seem, however, that this provision was found by experience to operate, in some instances, unjustly upon the importer; and that it sometimes happened that, under favorable opportunities of time or place, goods were purchased in a foreign country for ten per cent. less than their market value in the principal markets of the country from which they were imported into the United States. And if they were so invoiced, the importer was liable for the above-mentioned penal duty, although he was willing and offered to make the entry at their dutiable value. The fact that the invoice value was ten per cent. below the standard of value fixed by law, subjected him to the penal duty; and he had no means of escaping from it.

The 8th section of the tariff act of 1846 was obviously intended to relieve the importer from this hardship. It provides that the owner, consignee, or agents of imports which have been actually purchased, may, on entry of the same, make such addition in the entry, to the cost or value given in the invoice, as, in his opinion, may raise the same to the true market value of such imports in the principal markets of the country whence the importation shall have been made, or in which the goods imported shall have been originally manufactured or produced, as the case may be; and to add thereto all the costs and charges which, under existing laws, would form a part of the true value, at the port where the same may be entered, upon which the duties should be assessed. And the section further provides that if the appraised value shall exceed by ten per cent., or more, the value so declared on the entry, then, in addition to the duties imposed by law, there should be levied a duty of twenty per centum ad valorem on such appraised value-with a proviso that in no case should the duty be assessed upon an amount less than the invoice value.

The difficulty has arisen upon the construction of this act. It appears that the goods in question were entered at the value stated in the invoice, without any addition by the importer. That value, upon the appraisement, was found to be more than ten per cent. below their dutiable value. And it has been argued, on behalf of the plaintiff, that the penal duty imposed by this law is incurred in those cases only, in which the importer makes an addition to the invoice value; and that this provision does not embrace cases in which the goods are entered at the invoice cost or value, although that value should be more than ten per cent. below the appraisement.

We think this construction cannot be maintained. It is the duty of the importer to enter his goods at their dutiable value ascertaining it according to the rules and regulations prescribed by law. The entry required is not a mere list of the articles imported. It must also state their value. And if he enters them at the value stated in the invoice, it is a declaration on his part that such and no more is the amount upon which the ad valorem duty is to be paid. It is the value declared on the entry, as much so as if he had availed himself of the privilege conferred by this act of congress, and entered them at a higher value. He is, consequently, subject to the penal duty, if the value declared in the invoice is ten per cent. below the appraisement. And this construction is strengthened by the proviso in the same section, which directs that in no case should the duty be assessed upon a less amount than the invoice value. This provision, it would seem, was introduced upon the principle that the party having admitted the value in the invoice which he produces, (and which he is bound to produce when he makes the entry,) shall not be permitted to deny the truth of the declaration he thus makes, and enter them at a lower value.

Indeed, the plain object and policy of the law would be defeated by the construction contended for. It was evidently the purpose of this section of the act of 1846 to relieve the importer from the hardship to which he was exposed by the act of 1842, where the undervaluation in the invoice arose from error, or from ignorance of the mode of valuation prescribed by the revenue laws of the United States. For, while it gives him the privilege of relieving himself from the penal duty, by entering them at their true dutiable valuation, it would, according to the construction claimed by the plaintiff, hold out to him, at the same time, the strongest temptation not to avail himself of it-as a much higher penal duty would be exacted, when he added to the value in the invoice, if he still fell ten per cent. below the appraisement, than if he had stood upon the invoice itself. For, in the former case, he would be subject to a penal duty of twenty per cent. on the dutiable value of the goods, and, in the latter, would be liable to only fifty per cent. on the amount of duty which he would be required to pay. It would be difficult to assign a reason for such a distinction; and we think none such is made by the law, and that the importer is liable to the penal duty of twenty per cent. wherever the goods are undervalued in the entry; and it matters not whether this undervaluation is found in an entry made according to the value in the invoice, or in an entry at a higher valuation by the importer.

The treasury department in carrying into execution the act of 1846, has given to it the same construction that the court now place upon it; and the penal duty of twenty per cent. has been constantly exacted for an undervaluation in cases where the entry was according to the value stated in the invoice, as well as in cases where an addition had been made by the importer.

In the case of Bartlett v. Kane, (reported in 16 How. 263,) the entry was at the invoice price, and as that was found by the appraisers to be ten per cent. below its dutiable value, the penal duty was exacted by the government officers. A portion of the goods were warehoused, and afterwards entered for exportation. And the owner demanded a return of the twenty per cent. as a portion of the duty he had paid, and which he was entitled to have refunded upon the exportation of the goods. The demand being refused, the suit above mentioned was brought against the collector to recover it. But this court held that this penal duty was legally levied by the collector, and legally retained, and the plaintiff failed to recover.

It will be observed that the right of the collector to demand and retain this penal duty for an undervaluation in the invoice, was directly in question in that suit; and if the act of 1846 does not embrace cases of that description, the plaintiff was undoubtedly entitled to recover. But the point now made was not suggested in the argument, nor noticed in the opinion of the court, nor was any distinction in this respect taken between an undervaluation, in an entry at the invoice value, and an undervaluation where the importer added to the value.

We do not refer to this case as a judicial decision of the question before us; because, although it was in the case, the attention of the court was not called to it. But it certainly may fairly be inferred from it that in 1853, when this case was decided, no doubt had been suggested as to the construction of the act of 1846, and that the mercantile community, and the members of the bar to whom their interests were confided, concurred with the secretary in his construction of the law. And after that construction had been thus sanctioned, impliedly, in a judicial proceeding in this court, and acted on for so many years by all the parties interested, the court think it ought to be regarded as settled, and that what has been done under it ought not to be disturbed, even if this construction was far more doubtful than it is. We shall therefore certify to the circuit court:--

1. That the tariff act of March 3, 1851, repealed so much of the former laws as provided that merchandise, when imported from a country other than that of production or manufacture, should be appraised at the market value of similar articles at the principal markets of the country of production or manufacture at the period of the exportation to the United States.

2. That in estimating the value of the cutch, it was the duty of the appraisers to determine what were the principal markets of the country from which it was exported into the United States, and their decision that London and Liverpool were the principal markets for that article is conclusive.

3. The appraisement appearing to have been legally made, the additional duty of twenty per cent., under the 8th section of the tariff act of July 30, 1846, was rightfully exacted by the defendant.

title: Stairs v. Peaslee/Opinion of the Court


text: Talk:Stairs v. Peaslee/Opinion of the Court

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


text:
Hudgins v. Kemp (59 U.S. 530)

THESE two cases were appeals from the circuit court of the United States for the eastern district of Virginia. Being exactly alike, it will only be necessary to state the first.

A motion was made to dismiss the first case upon the following grounds, and was argued by Mr. Robinson, and Mr. Pallon in support thereof, and opposed by Mr. Johnson and Mr. Lyons.

The counsel for the motion filed the following certificate:--

I, Philip Mayo, clerk of the United States court for the fourth circuit and eastern district of Virginia, do certify that, in a suit in chancery in the said court between Wyndham Kemp, assignee in bankruptcy of John L. Hudgins, a bankrupt plaintiff, and Elliott W. Hudgins and John L. Hudgins, defendants, a final decree was rendered on the twenty-seventh day of June 1855; that the term of the court at which the same was rendered, ended on the twenty-eighth day of that month; that afterwards in the vacation of the said court, to wit, on the 16th of October, 1855, there was filed in my office, a writing under the hand of R. B. Taney, judge of the said court, bearing date on the thirteenth of that month, whereby it was 'ordered that the appeal in this case, which was taken in open court when the decree was pronounced, be entered accordingly on the order book of the court of the last term, to wit: of May term, 1855;' that in view of this order, the clerk on its being so filed wrote on the order book of the court, at the foot of the decree of the 27th of June, 1855, the following words: 'And from the foregoing decree the defendants prayed an appeal, which was granted them on giving bond and security to be approved by the court in double the amount of said decree, conditioned for their prosecuting the said appeal;' and that at the time of filing the said vacation order of the judge, there was also filed in the clerk's office, bond and security approved by the said judge in double the amount of said decree, conditioned for their prosecuting the said appeal. Given under my hand this 21st day of April, 1856.

P. MAYO, Clerk.

And then made the following points for dismissal:--

I. It cannot take jurisdiction of the appeals as having been allowed by the court, when the record as it stood at the end of the term, and as it was then signed by the presiding judge, shows no allowance of such appeals. In Burch, & c. v. White, 3 Rand. 104, cited in 1 Rob. Pract. 642, (old edit.,) it appeared that at the preceding term the appeal was prayed and bond and security then given; but the clerk of the court had omitted to enter on the records thereof the appeal so granted. The supreme court of appeals of Virginia decided that this omission could not be remedied by an amendment of the record made after the term had ended; and the appeal was therefore dismissed. Though the appeal bond was filed with the clerk, it was considered there was nothing in the record to amend by. A fortiori, it must be so in these cases, when no appeal bond was given during the term; and there was nothing whatever to amend by.

II. If the appeal had been duly allowed, the appeal bond has not been properly given.

Under the act of congress of March 3, 1803, (2 Story, 905,) appeals are 'subject to the same rules, regulations, and restrictions as are prescribed in law in cases of writs of error.' One of the rules as to a writ of error is, that it 'shall be a supersedeas and stay execution in cases only where the writ of error is served, by a copy thereof being lodged for the adverse party in the clerk's office, where the record remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of.' 1 Story, 61, § 23; Wallen v. Williams, 7 Cranch, 278. Now it is well established that an appeal in chancery cannot operate as a supersedeas, unless the appeal be perfected by giving an appeal bond within the ten days. Adams, &c. v. Law, 16 How. 148. And it is clear that we are entitled to process to carry these decrees into effect. S.C.. 17 How. 417. But perhaps it may be said that in other cases-in cases where there is no supersedeas-the mode of taking the security, and the bond for perfecting it, are matters of discretion to be regulated by the court granting the appeal; and that when its order is complied with, the whole has relation back to the time when the appeal was prayed. The Dos Hermanos, 10 Wheat. 306. Still, if we are to take the regulation of the court granting the appeal from its order on the record book of the court, even as it now appears, since the alteration of the record, that order has not been complied with; for according to that order, the appeal was granted on giving bond and security, to be approved by the court, and the bond and security given have not been approved by the court in term, but only by the judge in vacation.

III. If the appeals could be allowed in vacation, and could in these cases be regarded as so allowed, still, the appeals would be defective for want of citation and notice. Ex parte Crenshaw, 15 Pet. 119; Villabolos v. United States, 6 How. 90; Hogan v. Ross, 9 Ib. 602.

The propriety of the rules above insisted on, is strikingly illustrated by what in fact took place in these cases; for here the assignee, immediately after the term was ended, procured copies of the decrees; there was nothing either in these copies or in the record itself to inform him of there being appeals, no such information was afterwards obtained by means of citation or notice, and he proceeded to make sale according to the decrees.

The counsel, in opposition to the motion to dismiss, filed the following certificates:--

I, P. Mayo, clerk of the United States court for the fourth circuit and eastern district of Virginia, hereby certify that in the case of Wyndnam Kemp, assignee in bankruptcy of John L. Hudgins, against Robert Hudgins, John L. Hudgins, Elliott W. Hudgins, and Albert G. Hudgins, lately decided in the said court, an appeal was granted the defendants from the decree entered against them on the 27th of June, 1855, and that their said appeal was entered among the minutes of the proceedings of that day, but was omitted to be entered in the order book, by the inadvertence of the clerk; but was subsequently entered therein, as of the date when entered in the minutes; by the order of Chief Justice Taney, to wit, Wednesday, June 27, 1855.

title: Hudgins v. Kemp (59 U.S. 530)


text: Talk:Hudgins v. Kemp (59 U.S. 530)

title: Talk:Hudgins v. Kemp (59 U.S. 530)


text:
Hudgins v. Kemp (59 U.S. 530)/Opinion of the Court

Given under my hand this 23d day of April, 1856.

P. MAYO, Clerk.

Filed, 2d May.

Nos. 239 and 240.

In the clerk's office of the circuit court of the United States for the fourth circuit and eastern district of Virginia.

I, P. Mayo, clerk of the circuit court of the United States for the fourth circuit and eastern district of Virginia do hereby certify that the term of the said circuit court at which the cases of Kemp, assignee v. Hudgins were decided, adjourned the next day after the decrees in those cases were entered, until the next term of the court, and that the district judge, the Hon. James D. Halyburton, had previously declined to sit in those cases because he was a party interested in them. And I do further certify that the bonds, required to be given on the appeals granted in those cases, were filed in this office on the 16th day of October 1855.

Given under my hand this 29th day of April, 1856.

P. MAYO, Clerk.

Filed, 2d May.

Mr. Chief Justice TANEY delivered the opinion of the court.

This case has been brought up to this court by appeal from the decree of the circuit court of the United States, from the district of Virginia; and a motion is made on behalf of the appellee to dismiss it, upon the ground that it has not been removed in the manner the law requires, and that therefore we have no jurisdiction over it. And certificates and statements of the clerk, outside of the record, and given since it was certified and transmitted to this court, have been filed as evidence of the irregularity of the removal.

This evidence is not admissible upon the present motion. The record transmitted to this court, certified by the clerk of the circuit court, states that the appeal was taken in open court. This is sufficient evidence of that fact. And upon a motion to dismiss, as well as on the hearing on the merits, no evidence dehors the record, as certified and returned by the clerk of the circuit court, can be received here to impeach its verity, or to show that the certificate ought not to have been given. The case, as therein set forth, is the case before this court. And if from inadvertence or mistake of the clerk of the court below, or from any other cause, the record transmitted in this case is defective or incorrect, the errors or omissions should have been suggested in this court, and a certiorari moved to bring up a correct and true transcript of the proceedings.

It is true an amendment may be made here by consent, as was done in the case of Fletcher v. Peck, 6 Cranch, 87. And so also, where it appeared by the certificate of the clerk that he had committed a clerical error in the transcript, in the form in which he had entered a judgment, in ejectment, and it was evident, from the declaration, that it was a mere clerical error, the court suffered it to amended here, without sending a certiorari to the circuit court to have it corrected. Woodward v. Brown, 13 Pet. 1.

But in the case before us, there is no consent to amend, and the errors alleged are of a very different character, from the mere formal error in the case of Woodward v. Brown. And if it were otherwise, still, there should have been a motion to amend, by inserting in the transcript the certificates above mentioned of the clerk, before the motion was made to dismiss. But no such motion has been made, and the transcript now before the court is the one originally certified, without any amendment here by consent or by order of the court. And the motion is made to dismiss the case, not for any irregularity apparent in the record, but by testimony aliunde, offered to show that the transcript is incorrect. It is very clear that such testimony cannot be received to support this motion. And the record, as it stands when the motion is heard, presents the case which this court is called upon to decide; and nothing outside of it can be introduced to affect the decision.

Neither is it of any importance as concerns this motion whether the appeal does or does not operate as a supersedeas. A writ of error or appeal does not operate as a supersedeas under the act of congress, unless security is given sufficient to cover the amount recovered within ten days after the judgment or decree is rendered. But yet, if the party does not give the bond within the ten days, he may, nevertheless, sue out his writ of error or take his appeal, as the case may be, at any time within five years from the date of the decree or judgment, upon giving security sufficient to cover the costs that may be awarded against him in the appellate court. And his omission to give the security in ten days is no ground for dismissing the appeal.

In this case, certainly, the appeal did not operate as a supersedeas. The security was given and approved long after the time limited by the act of congress. Nor was any supersedeas moved for, or awarded by the circuit court, or the judge of the supreme court, who approved the bonds. Nor could any have been awarded by any court or judge. And, upon the expiration of the ten days, the plaintiff had a right to proceed on his decree and carry it into execution, notwithstanding the pendency of the appeal in this court.

But if a supersedeas had been awarded, this motion could not be sustained. The motion should have been to discharge the order, not to dismiss the appeal. And the propriety or impropriety of an order granting a supersedeas could not be considered on a motion to dismiss. The order for the supersedeas might be discharged, and the appeal still maintained.

The decision of these points dispose of the motion. But in order to avoid any further controversy on the subject, it is proper to add that if the facts offered in evidence were inserted in the record, they would furnish no ground for dismissing the appeal.

They are substantially as follows:--

The district judge had an interest in the issue of the case, and withdrew from the bench, and the chief justice of the supreme court sat alone at the trial. The decree was passed on the 27th of June, 1855, and the appellant on the same day, in open court, appealed to this court, and his appeal was entered by the clerk among the minutes of the proceedings of that day, by order of the court; and on the next day, June 28, the court closed its session, and adjourned to the next term.

It is the practice in the state courts of Virginia, for the clerk to make written minutes of the proceedings in court as they occur during the day; and after the court adjourns for the day, they are all written out in full in what is called the order book, and presented to the court when it meets next morning, and read; and if found to be correct, is signed by the presiding judge, as evidence that the proceedings are therein correctly stated. This practice has been followed by the circuit court of the United States when sitting in Virginia; and according to this practice, it seems the clerk supposed that the appeal ought to have been entered in the order book, but omitted it through inadvertence; and did not discover the omission until after the term had closed. The fact was brought to the attention of the chief justice, by a certificate from the clerk, when the appeal bonds were presented for approval, which was in October, 1855; and when he approved the bonds, he at the same time sent a written direction to the clerk to enter the appeal in the order book, as having been made in open court; and as of the day when it was actually made and entered in the minutes. It may be proper to say, that the penalty of the appeal bond presented for approval was much larger than necessary; because, as the appeal could not then operate as a supersedeas, the act of congress required such security only as would cover the costs of the appellee in case the decree should be affirmed. But it certainly could be no ground of objection when the bond was offered for approval, that the penalty was larger than it need have been.

These are the material facts, as they appear in the certificates of the clerk, produced and relied on in the argument. And the appellees contend that the order book is the only record of the proceedings of the court; that this record could not lawfully be amended by the order of the judge after the term was over; that the entry of the appeal made by his direction, is not legally a record; and that as there is no record of an appeal in open court on the 27th of June, 1855, the clerk had no legal authority for certifying that such an appeal was made; that his certificate on that account is erroneous; and the case, therefore, is not removed to, and is not in this court, according to law.

The counsel for the appellee, in support of these objections, has referred to a decision of the court of appeals of Virginia, and to the practice in the courts of that State in case of appeal. The answer, however, to this argument is obvious. The power of making amendments, and the mode of removing a case from an inferior to an appellate court of the United States, are regulated by acts of congress, and do not depend upon the laws or practice of the State in which the court may happen to be held. The decisions or practice of the courts of Virginia, cannot therefore have any influence in deciding the motion before us.

Neither is it necessary to inquire, whether the entry made in the order book is to be regarded as a part of the record-or merely a memorandum to preserve the history of the case, by entering the appeal in the book where it is usually found, and would naturally be looked for by the party interested. In either view this entry was not necessary to give validity to the appeal. In making the appeal, the party exercised a legal right. It was made in open court, and the clerk had official knowledge of the fact. And it would have been his duty, even if no written memorandum of it had been made, to certify it to this court, when the security was approved by the judge and the appeal allowed. And his certificate of the fact is all that is required in the appellate tribunal. He does not certify it as a copy from the record. The appeal is made orally, and the entry usually made on the minutes or in the order book, is to preserve the evidence of the act, and is not necessary to give it validity.

The act of congress does not require an appeal to be made in open court-or to be in writing-or entered on the minutes of the court-or to be recorded. It is often made before a judge in vacation, when it cannot be recorded in the order book as a part of the proceedings of the court. And the law makes no difference, as to the form in which it is to be made, whether it be taken in court or out of court before a judge. In either case it may be made orally or in writing. And the only difference is, that this court has decided that where the appeal is made in open court, during the term at which the decree is passed, no citation is necessary to the adverse party. He is presumed to be in court, and therefore to have notice. But when the appeal is taken out of court, the citation is necessary to give him notice. In all other respects the same rules apply to either mode of taking an appeal. Reilly v. Lamar, 2 Cranch, 344; Yestor v. Lenox, 7 Pet. 220.

The act of March 3, 1803, which authorizes the appeals, provides that they shall be subject to the same rules, regulations, and restrictions as are prescribed by law in cases of writs of error. And in the case of Innerarity v. Byrne, 5 How. 295, where the record transmitted to this court did not show that a citation had been issued and served, it was held to be no ground for dismissing the case, and that the fact might be proved aliunde. It is not necessary that all of the steps required to give this court jurisdiction should even be on file in the court below, and certainly need not appear to be of record in that court. Masten v. Hunter, 1 Wheat. 304.

We think it evident, therefore, that the want of record evidence in the circuit court that the appeal was prayed, would be no ground of dismissal; and the certificate of the clerk that it was so prayed, is all that is required in this court.

The objection that the entry on the minutes, and also in the order book, required that the bond should be approved by the court, and that the approval by the judge out of court is therefore not sufficient, is equally untenable.

No copy of the order of the judge directing the entry in the order book has been produced. But the clerk states in his certificate that the order directed him to enter the appeal as of the day on which the decree passed; and without doubt he states it correctly. And in executing that order he appears to have followed the form he had adopted in his entry on the minutes. The same form may perhaps be used in other circuits, and is in some cases probably borrowed from the formulas used in like cases in the state courts. But the appellant had legal rights, and he cannot be deprived of them by any irregularity in a clerical entry. Strictly speaking, nothing ought to have been entered either in the minutes or on the order book as of the day the decree was passed, except the appeal itself. And this, indeed, would appear to have been all the judge ordered. For the appeal could not have been allowed on that day, because an order of a court, or a judge allowing an appeal, is in effect nothing more than an order to send the transcript of the record to the appellate court. It is the clerk's authority for making the return to the superior court. And that order could not be legally given until the security required by law was offered and approved. But, when the appeal was taken, the approval of the court could not be made the only condition upon which it should be allowed. He had a right by law to carry up his appeal, if the security he offered was approved by the judge, out of court, in vacation; and no entry of the clerk, and indeed no order of the court, could deprive him of this right. Neither could the amount of the security be then prescribed. For he had a right to produce his security within the ten days, if he desired to do so, and thereby supersede the judgment, until the decision of this court was had in the premises. And in order to obtain the supersedeas, the law requires that the security given shall be sufficient to cover the whole amount of the sum recovered against him. But, if he preferred carrying up his case without superseding, the law does not exact security to the amount recovered. Security is required in that case for no greater amount than will cover the costs that may be recovered against him in the superior court. Such were the legal rights of the appellant when he made his appeal; and he cannot be deprived of them by the form adopted by the clerk in entering it. The approval of the security by the judge, as it appears in the certificates offered in evidence, is sufficient, and the objection that it was not approved by the court cannot be maintained.

Upon the whole, we see no ground for dismissing the appeal; and the motion to dismiss is overruled.


text: Talk:Hudgins v. Kemp (59 U.S. 530)/Opinion of the Court


text:
De La Solidad v. United States

THESE were appeals from the district court of the United States for the northern district of California.

The facts are stated in the opinion of the court.

They were argued by Mr. Jones, with whom were Mr. Benton and Mr. Strode, for the claimants, and by Mr. Gillett, for the United States, upon which side there was also a brief filed by Mr. Cushing, (attorney-general.)

Mr. Justice GRIER delivered the opinion of the court.

title: De La Solidad v. United States


text: Talk:De La Solidad v. United States

title: Talk:De La Solidad v. United States


text:
De La Solidad v. United States/Opinion of the Court

The claimants in this case presented their petition to the commissioners for settling private land claims in California, praying to have their title confirmed 'to a certain tract of land called the 'Rancho de las Pulgas." They allege that this tract contains twelve square leagues of land, having a front on the bay of San Francisco of four leagues, bounded southerly by a creek called San Francisquito, and northerly by the San Mateo, and extending back from the bay some three leagues to the sierra or range of mountains, so as to include the valley, or Ca nada de Raymundo.

The commissioners confirmed the claim to the extent of four leagues in length between said creeks, and one league in breadth, excluding the valley Raymundo, and bounded by it on the west. This decision of the commissioners was confirmed by the district court, and both parties have appealed to this court.

We shall first consider the appeal of the claimants.

Have they shown a title to more than the four leagues confirmed to them by the commissioners and the court below?

The appellants represent the heirs of Don Luis Arguello, who died about the year 1830.

1. They allege that Don Jos e Dario Arguello, father of Don Luis, being one of the founders of the country, and in its military service as commandant e of the Presideo at San Francisco, was the owner of a tract called 'Las Pulgas,' by virtue of some title or license derived from Don Diego Borica, then governor of the province, who was in possession of it as early as 1795; that this early title has been lost, and remains only in tradition.

2. That, in 1820 or 1821, Don Pablo Vincent e de Sola made a new title to Don Luis Arguello, who had succeeded his father, Don Jos e, in the possession.

3. That after the death of Don Luis, in 1830, his family remained in possession; that in August, 1835, one Alvisu petitioned the governor for a grant of the 'Ca nada de Raymundo,' and, it being found that the heirs of Arguello claimed that valley to be within the bounds of their rancho Pulgas, notice was ordered to be given to the widow and heirs, of Alvisu's petition. That they appeared by their attorney, Estrada, before the governor, and protested against the grant to Alvisu; and that the governor, on inquiry, acknowledged the justice of the claim of the Arguello, and refused to grant the valley to Alvisu.

4. That in October, 1835, Estrada, the executor of Luis Arguello, and acting as agent for the family, made application to the governor, setting forth their long possession and praying a corresponding title to be issued in their names; and that the governor, after examining into the justice of their claim, issued a decree of concession dated 26th of November, 1835, which was approved by the territorial assembly on the 10th of December following.

This last-mentioned decree or grant thus approved is the only documentary evidence of title exhibited by the claimants. If it includes within its boundaries the 'Ca nada de Raymundo,' as part of 'Las Pulgas,' it will follow that the claimants have shown a complete title thereto; and our inquiry would end here. Therefore, though last in order in the claimants' deraignment of their title, we shall consider it first.

On the 27th of October, 1835, Don Jose Estrada, executor of Don Luis Arguello, presented his petition on behalf of the widow and heirs, to Don Jose Castro, the governor, praying for a grant of the 'rancho of Las Pulgas,' and describing its boundaries as 'from the Creek of San Matteo to the Creek of San Francesquito, and from the Estheros, (the estuary or bay,) to the Sierra, or mountains.' The petition alleged also that the Arguellos had 'been in possession of the same since 1800, as is publicly and notoriously known, but the papers of possession had been mislaid.'

The rough draft (diseno) accompanying this petition represents a range of hills designated as 'Lomeria baja,' and parallel to these a range of loftier character marked 'Sierra;' between these ranges is a ca nada, or valley; this is the Valley Raymundo. The claim of the petition is evidently intended to include it.

On the 26th of October, 1835, the governor made the usual order requiring the alcald e of San Francisco de Assiz to take information as to the land, and make return of the expediente. The alcald e made a report, accompanied by the testimony of three witnesses, who proved an occupancy of the rancho of Las Pulgas by the Arguellos for many years as a cattle range. One describes it as extending from east to west (evidently a mistake for north to south) four leagues, and from the estuary to the hills (lomas) situate at the west of Monte Redondo and Canada 'Raymundo.' This would include the valley now claimed. But the second witness describes it as 'about four leagues' from creek to creek, and 'one league' from the estuary to the mountains covered with trees.' The third as 'four leagues from creek to creek and one league from the estuary to the mountains covered with trees, of the Ca nada Raymundo.' The petitioner did not exhibit any documentary evidence of a prior grant of any given quantity of land, or setting forth any certain boundary, nor did the witnesses pretend to have ever seen any.

When the report was returned to the governor, he made the following order, dated 26th November, 1835:--

'Monterey, November 26, 1835.

'In view of the petition with which this espediente begins, and the information of three competent witnesses, and in conformity with the laws and regulations of the subject, the minor orphans of the deceased citizen, Don Louis Arguello, at the petition of Jose Estrada, citizen, are declared the owners in property of the tract known under the name of 'Las Pulgas;' reserving the approval of the M. E. territorial deputation, to which this espediente shall be sent, the corresponding patent to be signed, and recorded in the corresponding book, delivering it to the interested parties for its suitable uses. Senor Don Jose Castro, senior member (vocal) of the M. E. territorial deputation, and political chief, ad interim, of Upper California, thus ordered, decreed, and signed; to which I certify.'

On the next day (27th of November, 1835), the governor executed the following document to serve as a title or letters-patent. It is signed by the governor and secretary, and recorded in the archives.

'Whereas, citizen Jose Estrada has petitioned in the name of his wards, Jose Ramon and Luis Arguello, and the girls M'a Concepcion and M'a Josefa, minors and legitimate children of the deceased citizen, Luis Arguello, having previously taken the deposition of proper witnesses, and they having declared the land called 'Las Pulgas' to have been their property of the deceased ever since the year of 1800, whereof the limits are on the south, the Arrogo of San Francisquito, on the north, that of San Matteo, on the east the estuaries, and on the west the Ca nada de Raimundo; and using the faculties which are conferred on me by decree of this day, and in the name of the Mexican nation, I have come to declare him the owner thereof by the present letters, this grant being understood as made in entire conformity with the disposition of the laws with the reservation of the approval of the most excellent territorial deputation. The land herein mentioned is four leagues in latitude and on in longitude. In consequence, I order that the present, serving as a title to him, and to be held as firm and valid, be recorded in the book thereto corresponding, and be delivered to the petitioner for his security and other purposes.'

The claimants rely upon the first document, dated November 26, which gives no definite boundary or quantity; and argue that, the grant being thus approved by the assembly, the power of the governor over it ceased, and, consequently, that the document, dated on the 27th, which defines the boundaries and quantity of the concession, is not the definitive grant described in the rules and regulations of 1828. But a glance at these rules and at the contents of these documents will show the fallacy of this assumption.

The first section of these regulations gives the authority to governors (gef e politico) to grant vacant lands. The second directs the form and manner in which those who solicit such grant shall address the governor. The third requires the governor to obtain the necessary information required by the laws of 1824, and consult the municipal authorities, whether there are any objections to making such concession. By the 4th section, the governor being thus informed may 'accede or not' to the prayer of the petition. This was done in two ways-sometimes he expressed his consent by merely writing the word 'concedo' at the bottom of the expediente; at other times it was expressed with more formality, as in the present case. But it seldom specified the boundaries, extent, or conditions of the grant. It is intended merely to show that the governor has 'acceded' to the request of the applicant, and as an order for a patent or definitive title in due form to be drawn out for execution. It is not itself such a document as is required by the 8th section, which directs 'that the definitive grant asked for being made, a document signed by the governor shall be given to serve as a title to the parties interested.'

The document of the 26th has none of the characteristics of a definitive grant. It shows only that the governor assents that the petitioner shall have a grant of a tract of land called 'Las Pulgas.' It describes no boundary, and ascertains no quantity. It contemplates a 'corresponding patent,' and does not purport itself to be such document.

On the contrary, the document of the 27th has all the formalities of a definitive title, and purports on its face to be made for that purpose. It gives the boundaries of the tract known as 'Las Pulgas,' namely: 'On the south the creek San Francisquito, on the north the San Matteo, on the east the estuary, on the west the Can nada de Raimundo, four leagues in length and one in breadth.'

The Mexican authorities have themselves given a construction to this grant in 1840, when they granted the Ca nada de Raimundo to Coppinger, calling for 'Las Pulgas' as its eastern boundary. Moreover, jurisdical possession was given to the Arguellos, establishing the western boundary of the Las Pulgas, one league west of the estuary or bay of San Francisco.

The commissioners and the court below having confirmed the claim of the appellants to the extent of this legal title, the question on their appeal is, whether they have shown any title to the valley of Raimundo, or for any land west of the boundary adjudged to Las Pulgas by the Mexican authorities, so many years ago. In support of their claim the appellants rely upon a supposed grant from Governor Borrica to Don Jose Arguello, at an early day, and a regrant or new title to Don Luis Arguello in 1820 or 1821, by De Sola.

Much parol testimony, and some historical documents, have been introduced on this subject. The value and effect of this evidence has been very fully discussed by the commissioners and the court below. We fully concur in their conclusions on this subject, but do not think it necessary to indicate our opinion by a special and particular examination of it. It will be sufficient to state the results at which we arrived after a careful consideration.

1. There is no sufficient evidence to satisfy our minds, that any grant was ever made by Governor Borrica, or by De Sola. The archives of government show no trace of evidence of such a grant from either of them. They have not proved the existence of it by the testimony of any one who had seen it; they assume the existence and loss of the documents, from the fact that none can now be found.

Without stopping to inquire, whether, by the Spanish law, a subject could claim against the king by prescription, we will assume, for the purposes of this case, that as a presumption of fact, the court would be justified in presuming a grant on proof of fifty years continuous, notorious, adverse possession of a tract of land having certain admitted and well defined boundaries; and inquire whether we have such evidence as regards this valley of Raimundo, and the eight additional leagues of land now claimed to belong to the ranches of Las Pulgas.

Don Jose Arguello was, for many years, commandant of the Presidio of San Francisco; after his death he was succeeded in the command by his son Don Luis. As early as 1797, the king's horses were pastered and herded on this rancho. As early as 1804 soldiers, under the command of Don Jose, resided in huts on the land included in the grant made to appellants in 1835, and had charge of cattle said to belong to the commandant Don Jose. The sheep of the neighboring mission of Santa Clara were sometimes pastured on it. The king's cattle, as well as those of the commandant, were pastured on it as late as 1821. After the death of Don Jose, his son and successor in office, Don Luis, continued the occupation of it, by his herds and herdsmen. The cattle on this rancho, at some seasons, wandered over the valley of Raimundo, and to the foot of the western sierra. Don Luis also cut timber at one time on the hills west of said valley.

About 1821, Governor Sola had the king's cattle removed, and permitted Don Luis to remain in possession of the rancho, which he continued to claim as his own up to the time of his death; though he took no steps towards obtaining a definitive title. As to the extent of his claim; his eastern, northern, and southern boundaries by the creek and the estuary, were well known and ascertained. The western, though said to be the hills, or mountains, and, in one sense, a fixed boundary, was very uncertain. It might be at one league from the bay to the first range of woody hills, or four leagues to the highest summit of the main ridge of the sierra. Not one of the witnesses who attempt to establish this title by tradition can state what number of square leagues it contained.

No inference of an adverse claim or grant can be drawn from the fact that the commandant of a post pastured his own cattle with those of the king, or that the son and successor in office should continue in possession of the rancho by permission of the governor after the king's cattle were removed. The fact that the cattle of Arguello wandered to the mountains and over this valey afford no necessary presumption that he claimed it or owned it. And in a frontier country the cutting of timber is very equivocal evidence of even a claim of ownership of the land. The evidence shows also an unequivocal denial of Don Luis that his claim extended beyond the bounds of the grant since made to his heirs, or included the Ca nada Raymundo.

The fact that the governor, in 1835, refused to grant this valley to Alvisu, because it belonged or was claimed by the heirs of Arguello, cannot operate to give a title to them by way of estoppel. The only inferences that can be drawn from these proceedings are: 1. That Alvisu applied for the land. 2. That the Arguellos claimed it. 3. That the governor refused, for that reason, to grant it to Alvisu. It has always been the wise and just policy of the Mexican government to avoid granting litigious titles. Hence the caution shown in refusing to grant to Alvisu till the true extent of the Arguello claim was established. Estrada, who acted on that occasion for the widow and heirs, reserved to himself the right 'to further develop their claim.' This was immediately done by his application to the governor for a title, and the proceedings thereon in 1835, which have been already noticed. This proceeding was instituted for the purpose of having a direct adjudication on the claim of the Arguellos, and the extent and boundaries of Las Pulgas, which they then occupied as a rancho. Here we have the first proceeding which can operate as an estoppel on either party. The king may be estopped by his deed, and the appellants by accepting as a definitive title to the Las Pulgas a deed excluding the valley of Raymundo, are estopped from asserting that it is included in their grant. Here, for the first time, we have a juridical investigation to ascertain and fix the boundaries of Las Pulgas. A name which represented heretofore an unknown quantity has been reduced to certainty. This grant has been registered among the public archives, accepted by the claimants, and possession delivered accordingly. Having thus, by a regular jurisdical proceeding, ascertained the boundaries and quantity of land represented by the name of Las Pulgas, the valley of Raymundo being without the boundary so fixed, is, in 1840, granted as public land to Coppinger.

There is no evidence to show either fraud or mistake in these proceedings. The appellants have got Las Pulgas by a valid title, according to the boundaries ascertained by the proper public authorities, and cannot now be permitted to recur to vague tradition of a vague and uncertain boundary, to unsettle the titles to a large territory since granted to others.

The case of the United States v. Roselius, 15 How. 31, bears a strong resemblance to the present. There it was decided, that, 'when a part of the land claimed under a Spanish title was granted to and accepted by the claimant, without any saving of his claim, this must be taken to have satisfied his whole claim upon the equity of the government.' It is, say the court, in the nature of a compromise, and conclusive as to the rights of the claimant.

In the case before us, the equity of the claimant was adjudicated after an investigation of the claim, and an ascertainment of its boundary and quantity. But, whether it be treated as res judicata or as a compromise, it is equally conclusive as to the claims of the appellant on the equity of the government.

2. We come now to the consideration of the appeal entered on behalf of the United States.

The authenticity of the patent or concession to the claimants for Las Pulgas, in 1835, is not disputed; but it is contended that it is void, 'because, under the regulations of 1824, lands lying within the littoral leagues could not be granted by territorial governors, but only by the supreme government.'

On the contrary, it is contended by the counsel for the claimants, 'that this clause in the colonization laws is not intended as a general prohibition of grants of land within those boundaries, but refers only to foreign colonization; and is applicable to States only, and not to the territories of the republic.' It is evident from an inspection of this act of 1824, and consequent regulations of 1828, that they contemplate two distinct species of grants. 1. Grants to impresarios, or contractors, sometimes called pobladores, who engaged to introduce a body of foreign settlers. 2. The distribution of lands to Mexican citizens, 'families or single persons.'

While these countries were under the dominion of Spain, the governors had authority to make grants of the latter description, while those of the former required the sanction of the king. As examples of such colonization contracts in Louisiana, those of the Marquis of Maison Rouge and the Baron de Bastrop may be referred to. They came under the consideration of this court in the cases of the United States v. King and Coxe, 7 How. 833, and the United States v. Philadelphia, 11 How. 609. These contracts were executory. They designated a certain tract of country, which was 'appropriated' to be gratuitously distributed among the colonists, but did not confer an absolute or immediate title to the whole tract to be colonized by the contractor. 'As the object of these grants was to obtain a body of foreign agriculturists, who would settle together under one common leader, in whom the governments could confide, liberal terms were offered. A body of such colonists, besides opening, cultivating, and improving, the wild lands, served as a protection against the Indians, and created inducements to others of their countrymen to join them, and thus promote the early settlement of the province.'

The same policy was pursued by the Mexican government. Besides the desire of fortifying themselves against apprehended attempts at subjugation by Spain, they had before their eyes the prosperous growth of the United States consequent on the liberal encouragement of European immigration. But, while anxious to encourage immigration of foreigners, they nevertheless entertained some jealousy, well founded, perhaps, that in case of conflict with a powerful neighbor, their sympathies and allegiance might not be safely relied on.

Hence, the caution exhibited in requiring the approval of the supreme government 'to grants made to impresarios for them to 'colonize with many families.' But while a judicious policy might forbid the settlement of large bodies of foreigners on the boundaries and sea-coast, we cannot impute to them the weakness, or folly, of confining their native citizens to the interior, and thus leaving their sea-coast a wilderness without population. On the contrary, the same considerations of policy which excluded foreigners, would encourage the settlement of natives within those bounds. The statute frontiers; proffering gratuitous grants of land and of agricultural implements-expenses of their voyage-maintenance for a year-and leave to import certain articles free of duty. The military posts in the territory were on the sea-coast; and it would be strange policy indeed which would isolate the posts intended for the protection of settlers, and compel them to dwell among the savages without protection. Numerous enactments, also, exhibit their cautious jealousy with respect to foreigners, and especially their coterminous neighbors on the north. An act of 1828 directs all Spaniards living on the coast of the Mexican gulf to retire twenty leagues from it. Another, of 1830, prohibits settlements of foreigners from coterminous nations on any part of their border states.

A careful examination of this decree of 1824, and regulations of 1828, will show that their letter conforms to this policy, pursued with so much solicitude. The title to the decree shows its subject to be 'colonization.' The term colonization implies immigration in numbers. The first section speaks of the subjects of such colonizaion as 'foreigners.' It guarantees to them security of person and property. The second and third describe the lands open to such colonists, and requires the states to make rules and regulations for colonization within their limits. The fourth (whose construction is now under consideration) forbids the colonization of the territory comprehended within twenty leagues of the boundaries of any foreign state, and within ten leagues of the sea-coast, without the consent of the supreme executive power. The sixth section provides that no duties shall be imposed on the entrance of 'foreigners.' The seventh forbids the immigration of 'foreigners' to be prohibited prior to 1840, except of some particular nation, and under peculiar circumstances. The seventh indicates the possibility that the government may find it necessary to take measures of precaution for the security of the federation with respect to foreigners who come to colonize.

These are all the sections of the act which refer directly to colonization. The subjects of it are called 'foreigners' throughout. They are the only persons to whom the fourth section has any reference or application.

The 9th section first speaks of the 'distribution of lands' to individuals and families, as distinguished from colonists, and provides that Mexican citizens should be preferred, without distinction of classes, except as to those who have rendered special service to their country.

Thus we have seen that the first eight sections apply wholly to colonists and foreigners. It would be contrary to every canon of construction to apply the provisions made for them to the subject introduced for the first time in the 9th section, or to select the 4th section as applicable to native citizens, while the other seven are confined by their terms to 'foreigners.'

The regulations of 1828, made for the purpose of carrying into execution the law of 1824, evidently give this construction to that act. It makes a clear distinction between empresario contracts for colonization, and grants to Mexican citizens. In conformity with the 4th section of that act, it requires grants to empresarios to have the sanction of the supreme government, while those made to individuals or families, need only the approval of the territorial deputation. This may be said to be a legislative construction of the act of 1824, and demonstrates that this restraint of grants within the lateral leagues, had no application except to colonies of foreigners.

If any thing further were wanted to fortify this construction, the uniform practice of the territorial governors to make grants to individuals and families within those bonds would be conclusive.

The petition of Jimeno in 1840, praying the governor to apply to the supreme government for a confirmation of these grants, confirms the views we have taken. It shows what had been the antecedent practice on the subject, and that, although Jimeno had doubts about its legality, others had not.

On the whole, we are of opinion that the judgment of the district court is correct, and it is adjudged that the said claim of the petitioners is valid as to that portion of the land described in the petition, which is bounded as follows, to wit: On the south by the Arroyo, or creek of San Francisquito, he on tnorth by the creek San Matteo, on the east by the Esteras, or waters of the bay of San Francisco, and on the west by the eastern borders of the valley known as the 'Ca nada de Raimundo,' said land being of the extent of four leagues in length and one in breadth, be the same more or less, and it is therefore hereby decreed that the said land be, and the same is hereby confirmed to them; and it is further adjudged and decreed that the said petitioners have and hold the same under this confirmation in the following shares or proportions, to wit: Maria de la Solidad Ortega Arguello, one equal undivided half thereof; Jose Ramon Arguello, one equal undivided fourth part thereof; Luis Antonio Arguello, one equal undivided tenth part thereof; and S. M. Mezes three equal undivided twentieth parts of said premises.

And as to the portion of the premises described in said petition, which is not included within the boundaries above mentioned, the claim of the petitioners is adjudged not to be valid.

No. 77. ARGUELLO et al. v. THE UNITED STATES.

No. 78. THE UNITED STATES v. ARGUELLO et al.

No. 92. THE UNITED STATES v. CERVANTES.

No. 94. THE UNITED STATES v. VACA AND PENA.

No. 99. THE UNITED STATES v. LARKIN AND MISSROON.


text: Talk:De La Solidad v. United States/Opinion of the Court


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United States v. Cervantes

THIS was an appeal from the district court of the United States for the northern district of California.

The nature of the claim is stated in the opinion of the court.

The decree of the district court was as follows:--

This cause came on to be heard at the above-stated court, on the transcript and evidence and the arguments of counsel for the United States, and for the claimant Cruz Cervantes being. It is hereby ordered, adjudged, and decreed, that the decision and decree of the board of commissioners, for the ascertainment and settlement of private land claims in claim of the appellant, Cruz Cervantes, be and the same is hereby confirmed, to the extent of two square leagues or sitios de ganado mayor, and for no more; being the same land described in the grant and expediente referred to therein, and of which judicial possession was given to him, as appears by the evidence; provided that the said quantity to him granted and now to him confirmed, be contained within the boundaries called for in said grant, and map to which the grant refers, and, if there be less than two square leagues, or sitios de ganado mayor, within the said bounds, then there is confirmed to him the said less quantity.

M. H. M'ALLISTER, Circuit Judge.

OGDEN HOFFMAN, JR., District Judge.

From this decree, the United States appealed to this court.

It was argued by Mr. Cushing, (attorney-general,) for the United States, and by Mr. Jones, for the appellee.

Mr. Justice GRIER delivered the opinion of the court.

title: United States v. Cervantes


text: Talk:United States v. Cervantes

title: Talk:United States v. Cervantes


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Page:Syria, the land of Lebanon (1914).djvu/152

SYRIA, THE LAND OF LEBANON little observed among the poor, hard-working peasants and the desert Bedouins; and in the cities the universal characteristics of the female sex have not been entirely obliterated by the law of Islam. An unusually thin gauze almost always reveals a remarkably beautiful face, and I have seen veils coquettishly dropped—of course by accident—even in the bazaars of fanatical Damascus. Yet among the upper classes the thought of social intercourse between the sexes is so repellent that no good Moslem ever willingly alludes to his wife. If he is absolutely forced to speak of her, he apologizes by saying Ajallak!—"May God lift you up!"—that is, from the degradation of having to hear such a thing mentioned. He uses the identical expression when he refers to anything else unfit to be spoken of in conversation between gentlemen. "Men are superior to women on account of the qualities with which God hath gifted the one above the other," said the Prophet. There is no place for female suffrage in the world of Islam!

If we think of Damascus as the port of the desert, then its wharves lie along the Meidan. This narrow handle of the spoon-shaped city, which stretches far southward en both sides of the Derb el-Haj or "Pilgrim Road" to Mecca, is a comparatively modern quarter; but it is most akin to the wilderness, and its one long avenue is thronged with Children [ 114 ]


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United States v. Cervantes/Opinion of the Court

The appellee, Cruz Cervantes, having complied with the provisions required by law, obtained a grant from Nicholas Guterriez, then governor of California, 'of a parcel of land known by the name of San Joaquin, bounded on the north by San Felipe, on the south by Santa, on the west by the plain of San Juan, and on the east by the hills of the same name,' containing the quantity of two leagues.

This concession, dated April 1, 1836, was presented to the departmental assembly for confirmation. The committee reported in favor of the grant-'on the 12th of July it was returned to the committee for its reformation.' This concludes the expediente as certified from the archives. It does not appear whether any further action was taken on the subject by the assembly; nor do the books exist among the archives from which any further facts can be ascertained.

The land granted was reported to be within the ten littoral leagues, and as having at one time appertained to the mission of San Juan Bautista-on a reference of the expediente made to the steward of the mission, their consent was certified, that 'the place to be adjudicated to the petitioner so far as the hills, without touching the oak grove,' &c.

Within the space of two years Cervantes entered on the land, built on it, and cultivated it, and continues so to do. On the 10th of February, 1841, juridical possession was delivered to him by metes and bounds with the customary formalities.

The objections to the validity of this grant are: 1. That it was not approved by the departmental assembly. 2. That the land is within the ten littoral leagues. 3. That it belonged to a mission, and it was therefore unlawful to grant it.

1. The first objection, if true in fact, has been disposed of by this court in the case of United States v. Reading, decided at this term. Besides, so far as the archives show any action of the assembly on this grant, it is an approval of it; and as there is no evidence that it was rejected or annulled, or any further report made on it, the grantee should have the benefit of the presumption of a decision in his favor.

2. The objection that the land lies within the ten littoral leagues, has just been disposed of, in the case of The United States v. Arguello.

3. As to the objection that the land had belonged to the mission.

The large tracts of land appurtenant to the mission establishments, were never vested in the church, or any other corporation or individual, by any grant of a legal title. The missionaries and Indians had an usufruct or occupancy of the land, at the will of the sovereign. The record shows, that though the lands now in question had formerly been occupied by the mission, they were not so at the time this grant was made. It was made, also, with the assent of the mission, who set up no claim to further occupancy.

The 17th section of the regulations of 1828 forbid lands 'occupied' by missions from being made the subject of 'colonization grants for the present,' &c., and can therefore have no application to lands not so occupied, and not made the subject of 'colonization.' Besides, in 1833 and 1834, the government of Mexico passed laws to secularize the missions; since which time, the public authorities have granted these lands to individuals in the same manner as other public lands; as has been decided by this court in the case of United States v. Ritchie, 17 How. 525.

The judgment of the district court is, therefore, affirmed.

Mr. Justice DANIEL dissented.

For the reasons of his dissent see the preceding case of Arguello v. The United States.


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


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United States v. Vaca

THIS was an appeal from the district court of the United States for the northern district of California.

The facts are stated in the opinion of the court.

It was argued by Mr. Cushing, (attorney-general,) for the United States, and by Mr. Jones, with whom was Mr. Strode, for the appellees.

Mr. Justice GRIER delivered the opinion of the court.

title: United States v. Vaca


text: Talk:United States v. Vaca

title: Talk:United States v. Vaca


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

On the 27th January, 1843, the claimants and appellees in this case, Juan Manuel Vaca and Jose Phelipe Pena, (the latter under the name of Armijo,) received a grant of land from Micheltorena, then governor; the boundaries of which, as stated in the grant, are the Sacramento River on the east, on the west the Sierra of Napa; at the north, the Creek of Lihuaytos, (which was also given as the name by which the tract should be designated,) and the extent ten sitios de ganado mayor. Prior to this grant, a sketch or map was furnished, according to the law, as is shown in the recitals of the grant.

The grant was made, as expressed in it, subject to 'the measurements to be made of contiguous ranchos,' and the juridical possession to be given after the confirmation of the grant.

Among the contiguous ranchos, on the same creek or river, and which had not been measured, was that of William Wolfskill. Between the claimants and Wolfskill a dispute of boundary arose, which prevented the lands of either from being measured, which continued till 1845.

In 1845, the dispute was settled by proceedings had before the proper authorities, in which it was agreed that Wolfskill should remain with the lands that he claimed on the upper part of the creek, and Vaca and Pena should take theirs adjoining his on the east.

Vaca and Pena petitioned to Governor Pico for a new grant, corresponding to the agreement, and producing the former grant as a foundation for it.

The governor made the grant according to the agreement, bounding the rancho by the eastern limits of Wolfskill, and subject to the measurement to be made of the contiguous ranchos previously conceded.

The prior proceedings and decree of concession were passed to the departmental assembly, and the concession was approved, under the condition that within four months they should put in the hands of the governor a proper map of the land.

The grant by Paco designated the tract as 'Los Putos.' The stream of Los Putos is the same called in the former grant 'Lihuaytos.'

It is not worth while to inquire whether the departmental assembly had any authority to annex new conditions to the grant thus approved by them. It is a condition subsequent, which, at the worst, only left the title of the grantee open to be denounced. But as the claimant was hindered from performing it by the revolutionary state of the country, the non-fulfilment of it will not work a forfeiture of his title.

The chief objection urged to this grant, is the want of a survey, and that there is no sufficient designation of boundaries to sever it from the public domain. It is a sufficient answer to this-that the quantity is defined and the general locality. The claimant had been in possession before applying for the grant under a license from Vallejo; the tract was known by the designation of 'Los Putos,' or 'Lihuaytos.' It was to be located on the eastern boundary of Wolfskill, and on the margin of the river.

The district court confirmed the grant on the authority of the case of Fremont v. United States, 17 How. 542. As that case is directly in point and overrules the objections made to this grant, we do not think it necessary to pursue the subject further.

The decree of the district court is affirmed.

Mr. Justice DANIEL dissented.

For the reasons of his dissent see the preceding case of Arguello v. The United States.


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


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United States v. Larkin (59 U.S. 557)

THIS was an appeal from the district court of the United States for the northern district of California.

The facts are stated in the opinion of the court.

It was argued by Mr. Cushing, (attorney-general,) for the United States, and by Mr. Lawrence, with whom was Mr. Goold, for the appellees.

Mr. Justice NELSON delivered the opinion of the court.

title: United States v. Larkin (59 U.S. 557)


text: Talk:United States v. Larkin (59 U.S. 557)


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United States v. Larkin (59 U.S. 557)/Opinion of the Court

This is an appeal from a decree of the district court of the United States for the northern district of California, in which a land claim was confirmed to the appellees, and which had been previously confirmed by the board of commissioners.

The grant was made to Manuel Jimeno, who was at the time secretary of the government of California, by Governor Micheltorena, on the 4th November, 1844.

The petition for the same is as follows:--

'EXCELLENT SIR GOVERNOR:

'I, Manuel Jimeno Cassarin, a resident of this department, represent before Y. E., with due respect, that, inasmuch as it suits my interests to establish a rancho about (port) the Sacramento River, according to the accompanying sketch, I entreat Y. E. to be pleased to grant to me, since it lies completely unoccupied, and nobody has petitioned for it, the land, as it is made apparent by the general map, formed this year by the Land Surveyor Bidwell. By which grace I will receive mercy from Y. E.

(Signed) MANUEL JIMENO.

'Monterey, November the 1st, 1844.'

And on the same day the governor made the following memorandum:--

'Monterey, November 1, 1844.

'The party concerned not being able to report, on account of his being at a time concerned, party and secretary of government, I order that, whatever it may be convenient to have in mind, for the purpose of coming to a determination, be brought to my knowledge.

(Signed) MICHELTORENA.'

And on the next day directions were given for the issuing of the patent, as follows:--

'Monterey, November the 2d, 1844.

'After having seen the petition at the head of this record of proceedings, the uncultivated state in which the land petitioned for lies, according to the general map which has been formed of the Sacramento River, and whatever else it was found convenient to attend to, in conformity with the laws and regulations on the subject, I declare Don Manuel Jimeno the owner of eleven square leagues ('Sitios de Ganado Mayor') between Sacramento River, the ranch which the children of Senor Larkin have applied for, and the vacant lands lying south, as the respective sketch shows. Let the corresponding patent be issued; let it be entered in the respective book; and let it be delivered to the party concerned, for his security, and other ends.

(Signed) MICHELTORENA.'

And on the 4th November the patent was issued, in the following terms:--

'[L. S.]

[Maritime Custom House, Monterey.]

The citizen Manuel Micheltorena, general of brigade of the Mexican army, adjutant-general of the staff of the same, governor, commandant-general, and inspector of the department of Californias.

'[L. S.]

[Govern't of the department of the Californias.]

Whereas Don Manuel Jimeno has petitioned for his personal benefit for the tract of land which is unoccupied between the ranch which has been granted to the children of Don Tomas O. Larkin, the River Sacramento, and the uncultivated lands which are on the side of the south, entirely in conformity with the showing in the corresponding plan. The necessary preliminaries and investigations having been gone through with, as directed by the laws and regulations on the subject; exercising the authority in me vested, in the name of the Mexican nation, I have just granted to him the said land, subject to the following conditions:--

'1. He may inclose it without prejudice to the cross-ways, roads, and right of way; he shall enjoy it freely and exclusively, destining it to the use and cultivation which best suits him.

'2. He shall solicit the proper judge to give him juridical possession of it, in virtue of this grant, for the which boundaries thereof shall be marked out, within the limits of which, besides the usual landmarks, he shall plant some fruit-bearing or some forest trees of some utility.

'3. If he shall contravene these conditions he will lose his right to the land.

'Wherefore, I order this title, being of itself duly firm and valid. Record thereof shall be taken in the proper book, and that it be delivered to the party interested for his security, and for other purposes.

'Given in Monterey, this fourth day of November, one thousand eight hundred and forty-four.

(Sg'd) MAN'L MICHELT'A.

(Sg'd) FRANC'O ARCE, First Official.

'The record of this grant has been taken in the proper book, folio.

FRANC'O ARCE.'

On the 21st April, 1846, Jimeno made application to the departmental assembly for a confirmation of his grant.

'To the excellent departmental assembly:--

'I, Manuel Jimeno, represent before Y. E., with all due respect, that by the adjoined title is proved the grant, made in my favor, of a tract of land on the margins of the Sacramento ('corresponde') River, and, inasmuch as it pertains (correspond) to Y. E., to give Y. E. approval.

'I beg Y. E. to deign to grant it to me, whereby I will receive grace and mercy. I swear so; and Y. E. will be pleased to excuse my usage of common paper, there being none of the corresponding paper.

(Signed) MANUEL JIMENO.

'Monterey, April the 21st, 1846.'

And on the 3d June, the same year, that body acted upon the application of which we have the following record:--

'Angeles, June the 3d, 1846.

'Account having been given in to-day's session to the excellent departmental assembly, with this instancy, it was ordered to be referred, together with the respective record of proceedings, to the committee on vacant lands.

(Signed) AUGUSTIN OLIVERA.' Jimeno and his wife conveyed all their interest in the land to the appellees on the 30th August, 1847; soon after which the grantees took actual possession, and have occupied and possessed the same ever since.

The petition to the governor was accompanied with a sketch or map giving the location, and boundaries of the tract solicited, and referred, also, to a general map of the valley of the Sacramento River, made by Bidwell, a land surveyor, the same year. The quantity of land was not specifically designated in the petition. Neither does the patent itself designate the quantity, but refers to the sketch accompanying the petition. But the concession and direction by the governor to the proper officer to issue the patent, limits the quantity to eleven square leagues, and which cocession and direction constitute a part of the evidence of the title, or, according to the Mexican vocabulary, a part of the 'expediente,' and therefore may well qualify and limit the quantity to this number, even if the number of leagues within the boundaries, as given by the rough sketch, exceeded it; especially should this construction be given as the power of the governor to grant to a single person was limited so as not to exceed this quantity, according to the 12th section of the decree of the Mexican congress of the 18th August, 1824.

The decree of the commissioners, and also of the district court, very properly limited the confirmation to the extent only of eleven square leagues, provided the quantity should be contained within the sketch called for by the patent, and if there should be less than that quantity, then no more than this lesser quantity is confirmed.

No question appears to have been made as to the practicability of locating the grant in the tribunals below; nor do we see any ground upon which such a question could have been properly raised in the case.

The plan or sketch found in the expediente in connection with the description given in the grant furnishes all the materials essential to determine the boundaries. Three sides are given, and the quantity will guide the surveyor in closing the lines by running the fourth.

It has been suggested on the argument here, that this grant is a fictitious one, made by the governor to the secretary of the territory according to the forms of law, for the purpose of defrauding the United States. One answer to the suggestion is, that no objection as to the bona fides of the grant was taken before either of the tribunals below, where it should have been made, if relied on by the government, so as to have given the claimants an opportunity to have met it. To permit it to be taken in the appellate court for the first time, where there is no opportunity for explanation, would be a surprise upon them, of which they might justly complain. The commissioners say, 'the grant is fully proven, and we find no cause to doubt its genuineness.' And the judges of the district court observe, 'that the grant is fully proved; nor is its genuineness called in question.'

Besides this answer to the suggestion, even were we to entertain the question, we see nothing in the record to justify the imputation. The grant was made 4th November, 1844, at a time when California was in the full possession of the Mexican authorities, and more than a year previous to any hostile entry of the forces of the United States, and more than three years before the cession of the country to this government. The fact that seems most to be relied on to maintain the suggestion is, that Jimeno, the grantee, was the secretary of the territory at the time, and hence the grant an act of favoritism. But there is nothing in the decree of 18th August, 1824, of the Mexican congress, or in the regulations of the 21st November, 1828, forbidding such grants. On the contrary, it is known to be the usual mode of remuneration to an officer of the government for meritorious public services. A preference is given to such officers in the distribution of the public lands by the 9th article of decree of 1824, above referred to.

It is also objected that the grant does not contain the condition of confirmation by the departmental assembly; and also that there has been no confirmation by that body.

The 5th regulation of November, 1828, provides, that grants to individuals or families shall not be definitively valid without the previous approbation of the departmental assembly to which the respective 'expedientes' shall be referred. There is nothing in this or any other regulation that requires this condition to be inserted in the patent.

It appears from the records in the case, that the grant was submitted to this body by Jimeno on the 21st April, 1846; and that that body, on the 3d June following, referred it to the committee on vacant lands; but, for aught that appears, no further action was had upon it. The expediente, however, which was before this body, seems afterwards to have been returned to the appropriate office for the keeping of these records, and was found in the government archives.

The 6th regulation of 1828 provides that, 'if the governor does not obtain the approval of the departmental assembly, he shall report the same to the supreme government,' together with the 'expediente,' for its decision. Inasmuch as the record of the title was found returned by the governor to the government archives, and not forwarded to the supreme government, it is insisted, on behalf of the claimants, that the fair presumption is, that the grant had been approved; otherwise, it would not have been returned to government archives.

However this may be, it is not important to determine, as it was settled, after full consideration, in the case of Fremont v. United States, 17 How. 542, 563, that the omission to procure the confirmation under circumstances existing similar to those attending this case did not operate to defeat or avoid the title.

The grant, in that case, to Alvarado, was made by the same governor, and in the same year of the present grant, and we may add that the grantee was a military officer of the government at the time; the present grantee was a civil officer.

The same case also furnishes a full answer to the objections, that judicial possession was not taken of the land. We refer to the grounds there stated without repeating them, as the facts in this case fully warrant the view there presented.

It is also objected that the grant does not contain the usual condition of cultivation and habitation within the year. Neither the act of the Mexican congress of 1824 nor the regulations of 1828, prescribe any particular form of grants or patents of the public lands. And there appears to have been no uniformity in the conditions annexed in those issued by the different political chiefs, nor even as it respects those issued by the same individual. Great latitude seems to have been exercised in prescribing these conditions, both as to the number and the nature of them; also, in respect to the time within which the possession was to be taken when inserted as a condition. It is understood that the condition was usually dispensed with in cases where the grantee was in actual possession at the time of the grant. It was probably dispensed with in the present case; as the grantee was the secretary of the territory, and his services required at the seat of government; especially, as it appears that a civil disturbance had broken out between the political authorities, and which continued down until possession was taken of the country by the United States in 1846 and 1847.

We think it would be going further than required by any of the provisions of the law of 1824, or regulations of 1828, to hold the grant void for the want of this condition of possession within a limited time; more especially, as it appears that actual possession was taken of the land as soon as the state and condition of the country would admit, and which has been held ever since. And we are the more bound to hold this construction in respect to this particular condition, as the court have already held, after the fullest consideration, that, even in cases where the condition is contained in the grant, the non-compliance with its terms will not necessarily have the effect to avoid the title. Circumstances may excuse the omission.

Upon the whole, we are satisfied that the judgment of the court below was right, and should be affirmed.

Mr. Justice DANIEL and Mr. Justice CAMPBELL, dissented. For the reasons of Mr. Justice Daniel's dissent, see the preceding case of Arguello v. The United States.


text: Talk:United States v. Larkin (59 U.S. 557)/Opinion of the Court


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Dennistoun v. Stewart (59 U.S. 565)

The case was before the court at the preceding term, and is reported in 17 How. 606.

The certificate of division commenced as follows, namely:-- Certificate of Division of Opinion.

CIRCUIT COURT OF THE U.S., Southern Dist. of Ala.

A. DENNISTOUN AND CO.   }

v. }

JAMES REID AND CO. }

Upon the trial of this cause in the circuit court aforesaid, the defendant, among other defences to the case of the plaintiffs, insisted that the plaintiffs had surrendered, to one Byrne, a bill of lading for ten hundred and fifty-eight bales of cotton on The Windsor Castle, whereby the said Byrne was enabled to dispose of the said cotton, and apply the proceeds otherwise than for the payment of the bill upon which this suit was brought, against the rights and interests of the said defendant, whereby he was injured to the whole amount of the bill. And upon the point of this defence the depositions of Joseph Bramwell, Robert Barrett, Robert Winthrop, A. E. Byrne, Orlando Jones, Andrew Stewart, Charles Livingston, Moses Joynson, T. D. Anderson, and Wm. Moreland, which are hereunto attached, were read to the jury, and formed the testimony relied on by the parties in reference to such defence. And upon the instructions proper to be given to the jury upon the said defence, the following questions arose, and upon which the members of the court were opposed and divided in opinion:--

(Then followed the questions as they are stated in the opinion of the court.)

The case was argued by Mr. Phillips, for the plaintiffs, and submitted on a printed argument by Mr. Stewart, for himself.

Mr. Justice DANIEL delivered the opinion of the court.

title: Dennistoun v. Stewart (59 U.S. 565)


text: Talk:Dennistoun v. Stewart (59 U.S. 565)