text:
Natural Resources Defense Council v. Train/Opinion of the Court

[p322] SMITH, Circuit Judge:

The Environmental Protection Agency, ("EPA"), and its Administrator, Russell Train, appeal from an order of the United States District Court for the Southern District of New York, Charles E. Stewart, Jr., Judge, in an action under § 304 of the Clean Air Act, as amended, 42 U.S.C. § 1857h-2 (a), requiring the Administrator of the EPA, within thirty days, to place lead on a list of air pollutants under § 108(a)(1) of the Clean Air Act, as amended, 42 U.S.C. § 1857c-3(a)(1), ("the Act"). We affirm the order of the district court.

The Clean Air Act, as amended in 1970

The 1970 Clean Air Act Amendments provide two different approaches for controlling pollutants in the air. One approach, incorporated in §§ 108-110, 42 U.S.C. §§ 1857c-3 to c-5, provides for the publication of a list of pollutants adverse to public health or welfare, derived from "numerous or diverse" sources, the promulgation of national ambient air quality standards for listed pollutants, and subsequent implementation of these standards by the states. The second approach of the Act provides for control of certain pollutants at the source, pursuant to §§ 111, 112, 202, 211 and 231 (42 U.S.C. §§ 1857c-6, c-7, f-1, f-6c, f-9).

The relevant section of § 108 reads as follows:

(a)(1) For the purpose of establishing national primary and secondary ambient air quality standards, the Administrator shall within 30 days after December 31, 1970, publish, and shall from time to time thereafter revise, a list which includes each air pollutant -

(A) which in his judgment has an adverse effect on public health or welfare;

(B) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources; and

(C) for which air quality criteria had not been issued before December 31, 1970, but for which he plans to issue air quality criteria under this section.

Once a pollutant has been listed under § 108(a)(1), §§ 109 and 110 of the Act are [p323]  automatically invoked. Section 109, 42 U.S.C. § 1857c-4 provides in relevant part:

SEC. 109. (a)(1) The Administrator -

(A) within 30 days after the date of enactment of the Clean Air Amendments of 1970, shall publish proposed regulations prescribing a national primary ambient air quality standard and a national secondary ambient air quality standard for each air pollutant for which air quality criteria have been issued prior to such date of enactment; and

(B) after a reasonable time for interested persons to submit written comments thereon (but no later than 90 days after the initial publication of such proposed standards) shall by regulation promulgate such proposed national primary and secondary ambient air quality standards with such modifications as he deems appropriate.

(2) With respect to any air pollutant for which air quality criteria are issued after the date of enactment of the Clean Air Amendments of 1970, the Administrator shall publish, simultaneously with the issuance of such criteria and information, proposed national primary and secondary ambient air quality standards for any such pollutant. The procedure provided for in paragraph (1)(B) of this subsection shall apply to the promulgation of such standards.

(b)(1) National primary ambient air quality standards, prescribed, under subsection (a) shall be ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health. Such primary standards may be revised in the same manner as promulgated.

Section 110, 42 U.S.C. § 1857c-5, provides in pertinent part:

SEC. 110. (a)(1) Each State shall, after reasonable notice and public hearings, adopt and submit to the Administrator, within nine months after the promulgation of a national primary ambient air quality standard (or any revision thereof) under section 109 for any air pollutant, a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region (or portion thereof) within such State. In addition, such State shall adopt and submit to the Administrator (either as a part of a plan submitted under the preceding sentence or separately) within nine months after the promulgation of a national ambient air quality secondary standard (or revision thereof), a plan which provides for implementation, maintenance, and enforcement of such secondary standard in each air quality control region (or portion thereof) within such State. Unless a separate public hearing is provided, each State shall consider its plan implementing such secondary standard at the hearing required by the first sentence of this paragraph.

(2) The Administrator shall, within four months after the date required for submission of a plan under paragraph (1), approve or disapprove such plan or each portion thereof. The Administrator shall approve such plan, or any portion thereof, if he determines that it was adopted after reasonable notice and hearing and that -

(A)(i) in the case of a plan implementing a national primary ambient air quality standard, it provides for the attainment of such primary standard as expeditiously as practicable but (subject to subsection (e)) in no case later than three years from the date of approval of such plan (or any revision thereof to take account of a revised primary standard); and (ii) in the case of a plan implementing a national secondary ambient air quality standard, it specifies a reasonable time at which such secondary standard will be attained;

. ..

(c) The Administrator shall, after consideration of any State hearing record, promptly prepare and publish proposed regulations setting forth an implementation plan, or portion thereof, for a State if -

(1) the State fails to submit an implementation plan for any national ambient air quality primary or secondary standard within the time prescribed,

(2) the plan, or any portion thereof, submitted for such State is determined by the Administrator not to be in accordance with the requirements of this section, or

(3) the State fails within 60 days after notification by the Administrator or such longer period as he may prescribe, to revise an implementation plan as required pursuant to a provision of its plan referred to in subsection (a)(2)(H).

. ..

(e)(1) Upon application of a Governor of a State at the time of submission of any plan implementing a national ambient air quality primary standard, the Administrator may (subject to paragraph (2)) extend the three-year period referred to in subsection (a)(2)(A)(i) for not more than two years for an air quality control region if after review of such plan the Administrator determines that -

. . . These sections require that for any pollutant for which air quality criteria are issued under § 108(a)(1)(C) after the date of enactment of the Clean Air Amendments of 1970, the Administrator must simultaneously issue air quality standards. Within nine months of the promulgation of such standards, [p324]  states are required to submit implementation plans to the Administrator. § 110(a)(1). The Administrator must approve or disapprove a state plan within four months. § 110(a)(2). If a state fails to submit an acceptable plan, the Administrator is required to prepare and publish such a plan himself. § 110(c). State implementation plans must provide for the attainment of primary ambient air quality standards no later than three years from the date of approval of a plan. § 110(a)(2)(A)(i). Extension of the three-year period for attaining the primary standard may be granted by the Administrator only in very limited circumstances, and in no case for more than two years. § 110(e).

The EPA concedes that lead meets the conditions of §§ 108(a)(1)(A) and (B) - that it has an adverse effect on public health and welfare, and that the presence of lead in the ambient air results from numerous or diverse mobile or stationary sources. The EPA maintains, however, that under § 108(a)(1)(C) of the Act, the Administrator retains discretion whether to list a pollutant, even though the pollutant meets the criteria of §§ 108(a)(1)(A) and (B). The Agency regards the listing of lead under § 108(a)(1) and the issuance of ambient air quality standards as one of numerous alternative control strategies for lead available to it. Listing of substances is mandatory, the EPA argues, only for those pollutants for which the Administrator "plans to issue air quality criteria." He may, it is contended, choose not to issue, i.e., not "plan to issue" such criteria, and decide to control lead solely by regulating emission at the source, regardless of the total concentration of lead in the ambient air. The Administrator argues that if he chooses to control lead (or other pollutants) under § 211, he is not required to list the pollutant under § 108(a) (1) or to set air quality standards.

The EPA advances three reasons for the position that the Administrator has discretion whether to list a pollutant even when the conditions of § 108(a)(1)(A) and (B) have been met: the plain meaning of § 108(a)(1)(C); the structure of the Clean Air Act as a whole; and the legislative history of the Act.

The issue is one of statutory construction. We agree with the district court and with appellees, National Resources Defense Council, Inc., et al., that the interpretation of the Clean Air Act advanced by the EPA is contrary to the structure of the Act as a whole, and that if accepted, it would vitiate the public policy underlying the enactment of the 1970 Amendments as set forth in the Act and in its legislative history. Recent court decisions are in accord, and have construed § 108(a)(1) to be mandatory if the criteria of subsections A and B are met.

I. Section 108(a)(1) and the Structure of the Clean Air Act
Section 108(a)(1) contains mandatory language. It provides that "the Administrator [p325]  shall . . . publish . . . a list . . . ." (Emphasis added.) If the EPA interpretation were accepted and listing were mandatory only for substances "for which [the Administrator] plans to issue air quality criteria . . .", then the mandatory language of § 108(a)(1)(A) would become mere surplusage. The determination to list a pollutant and to issue air quality criteria would remain discretionary with the Administrator, and the rigid deadlines of § 108(a)(2), § 109, and § 110 for attaining air quality standards could be bypassed by him at will. If Congress had enacted § 211 as an alternative to, rather than as a supplement to, §§ 108-110, then one would expect a similar fixed timetable for implementation of the fuel control section. The absence of such a timetable for the enforcement of § 211 lends support to the view that fuel controls were intended by Congress as a means for attaining primary air quality standards rather than as an alternative to the promulgation of such standards. Section 211, 42 U.S.C. § 1857f-6c provides:

SEC. 211. (a) The Administrator may by regulation designate any fuel or fuel additive and, after such date or dates as may be prescribed by him, no manufacturer or processor of any such fuel or additive may sell, offer for sale, or introduce into commerce such fuel or additive unless the Administrator has registered such fuel or additive in accordance with subsection (b) of this section.

(b)(1) For the purpose of registration of fuels and fuel additives, the Administrator shall require -

(A) the manufacturer of any fuel to notify him as to the commercial identifying name and manufacturer of any additive contained in such fuel; the range of concentration of any additive in the fuel; and the purpose-in-use of any such additive; and

(B) the manufacturer of any additive to notify him as to the chemical composition of such additive.

(2) For the purpose of registration of fuels and fuel additives, the Administrator may also require the manufacturer of any fuel or fuel additive -

(A) to conduct tests to determine potential public health effects of such fuel or additive (including, but not limited to, carcinogenic, teratogenic, or mutagenic effects), and

(B) to furnish the description of any analytical technique that can be used to detect and measure any additive in such fuel, the recommended range of concentration of such additive, and the recommended purpose-in-use of such additive, and such other information as is reasonable and necessary to determine the emissions resulting from the use of the fuel or additive contained in such fuel, the effect of such fuel or additive on the emission control performance of any vehicle or vehicle engine, or the extent to which such emissions affect the public health or welfare. Tests under subparagraph (A) shall be conducted in conformity with test procedures and protocols established by the Administrator. The results of such tests shall not be considered confidential.

(3) Upon compliance with the provisions of this subsection, including assurances that the Administrator will receive changes in the information required, the Administrator shall register such fuel or fuel additive.

(c)(1) The Administrator may, from time to time on the basis of information obtained under subsection (b) of this section or other information available to him, by regulation, control or prohibit the manufacture, introduction into commerce, offering for sale, or sale of any fuel or fuel additive for use in a motor vehicle or motor vehicle engine (A) if any emission products of such fuel or fuel additive will endanger the public health or welfare, or (B) if emission products of such fuel or fuel additive will impair to a significant degree the performance of any emission control device or system which is in general use, or which the Administrator finds has been developed to a point where in a reasonable time it would be in general use were such regulation to be promulgated.

(2)(A) No fuel, class of fuels, or fuel additive may be controlled or prohibited by the Administrator pursuant to clause (A) of paragraph (1) except after consideration of all relevant medical and scientific evidence available to him, including consideration of other technologically or economically feasible means of achieving emission standards under section 202.

(B) No fuel or fuel additive may be controlled or prohibited by the Administrator pursuant to clause (B) of paragraph (1) except after consideration of available scientific and economic data, including a cost benefit analysis comparing emission control devices or systems which are or will be in general use and require the proposed control or prohibition with emission control devices or systems which are or will be in general use and do not require the proposed control or prohibition. On request of a manufacturer of motor vehicles, motor vehicle engines, fuels, or fuel additives submitted within 10 days of notice of proposed rulemaking, the Administrator shall hold a public hearing and publish findings with respect to any matter he is required to consider under this subparagraph. Such findings shall be published at the time of promulgation of final regulations.

(C) No fuel or fuel additive may be prohibited by the Administrator under paragraph (1) unless he finds, and publishes such finding, that in his judgment such prohibition will not cause the use of any other fuel or fuel additive which will produce emissions which will endanger the public health or welfare to the same or greater degree than the use of the fuel or fuel additive proposed to be prohibited.

(3)(A) For the purpose of obtaining evidence and data to carry out paragraph (2), the Administrator may require the manufacturer of any motor vehicle or motor vehicle engine to furnish any information which has been developed concerning the emissions from motor vehicles resulting from the use of any fuel or fuel additive, or the effect of such use on the performance of any emission control device or system.

(B) In obtaining information under subparagraph (A), section 307 (a) (relating to subpenas [sic]) shall be applicable.

(4)(A) Except as otherwise provided in subparagraph (B) or (C), no State (or political subdivision thereof) may prescribe or attempt to enforce, for the purposes of motor vehicle emission control, any control or prohibition respecting use of a fuel or fuel additive in a motor vehicle or motor vehicle engine -

(i) if the Administrator has found that no control or prohibition under paragraph (1) is necessary and has published his finding in the Federal Register, or

(ii) if the Administrator has prescribed under paragraph (1) a control or prohibition applicable to such fuel or fuel additive, unless State prohibition or control is identical to the prohibition or control prescribed by the Administrator.

(B) Any State for which application of section 209(a) has at any time been waived under section 209(b) may at any time prescribe and enforce, for the purpose of motor vehicle emission control, a control or prohibition respecting any fuel or fuel additive.

(C) A State may prescribe and enforce, for purposes of motor vehicle emission control, a control or prohibition respecting the use of a fuel or fuel additive in a motor vehicle or motor vehicle engine if an applicable implementation plan for such State under section 110 so provides. The Administrator may approve such provision in an implementation plan, or promulgate an implementation plan containing such a provision, only if he finds that the State control or prohibition is necessary to achieve the national primary or secondary ambient air quality standard which the plan implements.

(d) Any person who violates subsection (a) or the regulations prescribed under subsection (c) or who fails to furnish any information required by the Administrator under subsection (b) shall forfeit any pay to the United States a civil penalty of $10,000 for each and every day of the continuance of such violation, which shall accrue to the United States and be recovered in a civil suit in the name of the United States, brought in the district where such person has his principal office or in any district in which he does business. The Administrator may, upon application therefor, remit or mitigate any forfeiture provided for in this subsection and he shall have authority to determine the facts upon all such applications.

The EPA Administrator himself initially interpreted § 108(a)(1) as requiring inclusion on the initial list to be issued of those pollutants for which air quality criteria had not been issued but which he had already found in his judgment to have an adverse effect on public health or welfare and to come from sources specified in § 108(a) (1)(B). 36 Fed. Reg. 1515 (1971).

We agree with Judge Stewart that it is to the initial list alone that the phrase "but for which he plans to issue air quality criteria" is directed.

II. Legislative History
When a specific provision of a total statutory scheme may be construed to be in conflict with the congressional purpose expressed in an act, it becomes necessary to examine the act's legislative history to determine whether the specific provision is reconcilable with the intent of Congress. Because state planning and implementation under the Air Quality Act of 1967 had made little progress by 1970, Congress reacted by "taking a stick to the States in the form of the Clean Air Amendments of 1970 . . . ." Train v. Natural Resources Defense Council, 421 U.S. 60, 64, 43 L. Ed. 2d 731, 95 S.C.t. 1470 (1975). It enacted § 108(a)(1) which provides that the Administrator of the Environmental Protection Agency "shall" publish a list which includes each air pollutant which is harmful to health and originates from specified sources. Once a pollutant is listed under § 108(a)(1), §§ 109 and 110 are to be automatically invoked, and promulgation of national air quality standards and implementation thereof by the states within a limited, fixed time schedule becomes mandatory.

The EPA contention that the language of § 108(a)(1) (C) "for which [the Administrator] plans to issue air quality criteria" is a separate and third criterion to be met before § 108 requires listing lead and issuing air quality standards, thereby leaving the decision to list lead within the discretion of the Administrator, finds no support in the legislative history of the 1970 Amendments to the Act. The summary of the provisions of the conference agreement furnished the Senate by Senator Muskie contained the following language:

"[p326] The agreement requires issuance of remaining air quality criteria for major pollutants within 13 months of date of enactment."

and

"Within the 13-month deadline, the Congress expects criteria to be issued for nitrogen oxides, fluorides, lead, polynuclear organic matter, and odors, though others may be necessary."

The section-by-section analysis of the National Air Standards Act of 1970 in the Senate Report on S. 4358, 91st Cong., 2d Sess., contains this language describing § 108 (formerly designated § 109):

This new section directs the Secretary to publish (initially 30 days after enactment) a list of air pollution agents or combination thereof for which air quality criteria will be issued. He can add to the list periodically. The agents on the initial list must include all those pollution agents or combinations of agents which have, or can be expected to have, an adverse effect on health and welfare and which are emitted from widely distributed mobile and stationary sources, and all those for which air quality criteria are planned.

Twelve months after such initial list is published, the Secretary must issue air quality criteria for those listed agents.

The Secretary must also issue information on air pollution control techniques.

This section continues in effect those air quality criteria and information on pollution control techniques published prior to this section.

This section provides that such criteria and information shall be published in the Federal Register and be available to the public.

The same Senate Report contains the following explicit language regarding §§ 108 and 109 (formerly § 109 and § 110):

Air quality criteria for five pollution agents have already been issued (sulfur oxides, particulates, carbon monoxide, hydrocarbons, and photochemical oxidants). Other contaminants of broad national impact include fluorides, nitrogen oxides, polynuclear organic matter, lead, and odors. Others may be added to this group as knowledge increases. The bill would require that air quality criteria for these and other pollutants be issued within 13 months from enactment. If the Secretary subsequently should find that there are other pollution agents for which the ambient air quality standards procedure is appropriate, he could list those agents in the Federal Register, and repeat the criteria process.

. ..

Within 30 days after enactment the Secretary would be required to publish proposed national air quality standards for those pollutants covered by existing air quality criteria (sulfur oxides, particulate matter, carbon monoxide, hydrocarbons, and photochemical oxidants). Since these criteria have been available for some time, it is realistic to expect that proposed national standards for these five pollution agents would be published within the 30-day period. Proposed national air quality standards for pollutants for which criteria would be issued subsequent to enactment would be published simultaneously with the issuance of such criteria. These pollutants would include nitrogen oxides, lead, polynuclear organics, odors, and fluorides.

(Emphases added.)

Language relating to the issuance of new source performance standards makes it clear that the Senate intended these standards to be supplementary to, not in lieu of, ambient air quality standards:

"The committee recognizes that the construction of major new industrial facilities [p327] in some regions may conflict with implementation plans for national air quality standards and goals - even where such new facilities are designed, equipped, and operated so as to comply with applicable Federal standards of performance. This is most likely to occur in places where existing levels of air pollution are excessive. Accordingly, the bill would provide that new-source certification procedures must include preconstruction review of the location as well as the design of affected new facilities so that certified new sources would not hinder the implementation of air quality standards and goals."

While the literal language of § 108(a)(1)(C) is somewhat ambiguous, this ambiguity is resolved when this section is placed in the context of the Act as a whole and in its legislative history. The deliberate inclusion of a specific timetable for the attainment of ambient air quality standards incorporated by Congress in §§ 108-110 would become an exercise in futility if the Administrator could avoid listing pollutants simply by choosing not to issue air quality criteria. The discretion given to the Administrator under the Act pertains to the review of state implementation plans under § 110, and to § 211 which authorizes but does not mandate the regulation of fuel or fuel additives. It does not extend to the issuance of air quality standards for substances derived from specified sources which the Administrator had already adjudged injurious to health.

III. Judicial Interpretations
The Supreme Court in Union Electric Co. v. Environmental Protection Agency, 427 U.S. 246, 96 S.C.t. 2518, 2525, 49 L. Ed. 2d 474 (1976), referred to the 1970 Amendments of the Clean Air Act as "a drastic remedy to what was perceived as a serious and otherwise uncheckable problem of air pollution." In the same opinion the Court described the three-year deadline for achieving primary air quality standards as "central to the Amendments' regulatory scheme." Id. at 258. Previously the Court had referred to the attainment of the national air quality standards within three years from the date of approval of state implementation plans as "the heart of the 1970 Amendments." Train v. Natural Resources Defense Council, 421 U.S. 60, 66, 43 L. Ed. 2d 731, 95 S.C.t. 1470 (1975). The EPA, the Court stated, "is plainly charged by the Act with the responsibility for setting the national ambient air standards. Just as plainly, however, it is relegated by the Act to a secondary role in the process of determining and enforcing specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met." Id. at 79. Reference by the Court to EPA authority to regulate emissions at the source, under §§ 111, 202, 211, and 231, is restricted to a footnote. Id. at 79, n. 16.

The Court's language in Train and Union Electric lends no support to appellants' position that the EPA Administrator may order emission source controls instead of promulgating ambient air quality standards for substances, such as lead, which meet the criteria of §§ 108(a)(1)(A) and (B). Under the scheme of the Act, emission source control is a supplement to air quality standards, not an alternative to them.

"When 'interpreting a statute, the court will not look merely to a particular clause [p328] in which general words may be used, but will take in connection with it the whole statute . . . and the objects and policy of the law, as indicated by its various provisions, and give to it such a construction as will carry into execution the will of the Legislature . . . .'"

Chief Justice Burger, in Kokoszka v. Belford, 417 U.S. 642, 650, 41 L. Ed. 2d 374, 94 S.C.t. 2431 (1974), reh. denied, 419 U.S. 886, 95 S.C.t. 160, 42 L. Ed. 2d 131 (1974) (citation omitted).

The structure of the Clean Air Act as amended in 1970, its legislative history, and the judicial gloss placed upon the Act leave no room for an interpretation which makes the issuance of air quality standards for lead under § 108 discretionary. The Congress sought to eliminate, not perpetuate, opportunity for administrative foot-dragging. Once the conditions of §§ 108(a)(1)(A) and (B) have been met, the listing of lead and the issuance of air quality standards for lead become mandatory.

The order of the district court is affirmed.


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Franklin Branch Bank v. Ohio/Opinion of the Court

The single question in this case is, whether the 60th section of the statute of Ohio, entitled 'An act to incorporate the State Bank of Ohio and other banking companies,' passed February 24, 1845, constitutes a contract for a fixed amount and mode of taxation; and whether the statute of Ohio, passed April 5, 1859, entitled 'An act for the assessment and taxation of all the property in this State, and for levying taxes thereon, according to its value in money,' impairs that contract.

The amount of tax due from the Franklin Branch, &c., &c., upon the basis of the 60th section, was $1,216 42 for the year 1859; the amount assessed against it, under the act of the 24th February, 1855, was $1,076 30 for the same year. The case, of course, turns upon the true construction of the 60th section; and this court has just said, in the case of the Jefferson Branch of the State Bank of Ohio, &c., vs. Skelly, (No. 143,) that the 60th section contains a contract for a fixed rule of taxation, and that the act of April 15, 1853, which attempts to assess a larger tax, by a differentrule, was unconstitutional. See also the cases of Knoop vs. Piqua Bank, (16 Howard, 369;) Dodge vs. Woolsey, (18 Howard, 331;) Mechanics and Traders' Bank vs. Debolt, (ibid., 380.) In all of these cases this court held, that the 60th section was a contract, and that the various State laws, which attempted to change the rule of taxation fixed by such contract, were void.

We affirm again the unconstitutionality of the law of Ohio under which the tax was assessed and levied against the Franklin Bank, and direct the reversal of the judgment of the Supreme Court of the State of Ohio now before us by a writ of error.

The clerk of this court will, under the direction of this court, issue the proper mandate.

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text: Talk:Franklin Branch Bank v. Ohio/Opinion of the Court


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Leonard v. Davis

Error to the Circuit Court of the United States for the district of Michigan.

This was assumpsit brought in March, 1858, in the Circuit Court of the United States for the district of Michigan, by F. B. Leonard and C. P. Ives, citizens of the State of New York, against C. Davis, a citizen of Michigan, A. E. Loomis and J. C. Dore, citizens of Illinois, and T. Newell, a citizen of Connecticut, partners in the lumber business at Muskegon, in the State of Michigan, under the firm name of C. Davis & Co. The suit was brought on a written contract for certain saw-logs. The defendants pleaded the general issue, with notice of the set-off, averring that but a part of the logs ever came to their possession, and of this part but a few were merchantable, the balance of them being worthless, and claiming damages for the inferior quality of the logs. Verdict and judgment for defendants, with costs. Motion for new trial denied. A writ of error to the Supreme Court of the United States was sued out by plaintiff.

The facts in controversy are stated very fully in the opinion of Mr. Justice Clifford.

Mr. Russell, of Michigan, for plaintiffs in error.

Mr. Van Arman, of Illinois, for defendants in error.

Mr. Justice CLIFFORD.

title: Leonard v. Davis


text: Talk:Leonard v. Davis

title: Talk:Leonard v. Davis


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Leonard v. Davis/Opinion of the Court

This is a writ of error to the Circuit Court of the United States for the district of Michigan.

Some brief reference to the pleadings in the cause will be necessary, in order that the precise nature of the controversy may be clearly understood. It was an action of assumpsit brought by the present plaintiffs, and the declaration contained two special counts, framed upon a certain written agreement signed by the parties.

According to the allegations of the first count, the defendants, on the 6th day of November, 1856, brought of the plaintiffs a certain described parcel or lot of pine saw-logs, situated in and about the Muskegon river and lake, in the county of Ottowa, and State of Michigan, and the claim as there made was for the entire amount agreed to be paid as the consideration for the purchase and sale of the lumber.

Referring to the second count, it will be seen that it was, in all respects, substantially the same as the first, except that the pleader assumed throughout that the agreement between the parties was executory; and, consequently, alleged that the plaintiffs agreed to sell, and that the defendants agreed to purchase the same parcel or lot of pine saw-logs as that described in the first count, averring readiness to perform on the part of the plaintiffs, and default on the part of the defendants.

Process was duly served upon the defendants, and on the 30th day of March, 1858, they appeared and pleaded the general issue, giving notice in writing at the same time of certain special matters to be given in evidence under that plea.

Among other things, they alleged in the notice, that not more than seven hundred thousand feet of the saw-logs agreed to be furnished by the plaintiffs ever came to their hands, and that not more than one-fourth part of the quantity so received was merchantable; and that, through that default and wrong of the plaintiffs, they, the defendants, suffered damages to the amount of five thousand dollars, for which amount they claimed to recoup the damages demanded by the plaintiffs. They also averred, that the plaintiffs were indebted to them in the sum of three thousand dollars for money lent and money paid and advanced; and they also gave notice that they would prove such indebtedness at the trial, by way of set-off to the damages claimed by the plaintiffs, as more fully set forth in the transcript. Such was the substance of the pleadings on which the parties went to trial.

Before proceeding to state the evidence, and the rulings and instructions of the court, it becomes necessary to advert to the situation of the saw-longs, and the surrounding circumstances at the time the agreement was made. Both parties agree that the lot or parcel of logs in controversy had been cut in the forest during the winter preceding the date of the contract by one A. B. Furnam, and had been by him transported to the river and upper waters of the lake, and driven down the same to the association boom, so called, where the larger portion of the logs were situated at the time the agreement was executed. Divers persons own timber lands bordering on the upper waters of that lake, and during the winter season of the year cut saw-logs, either for sale or to be transported over those waters to their mills, to be manufactured into boards. Such logs are usually branded with the initials of the owner's name, or some other mark by which the property of one owner may be distinguished from that of another; and all the logs thus collected during the winter season, although belonging to different individuals, are floated down the river during the spring freshet in one 'drive,' so called, and secured in the association boom, which is in the lake, and is large enough to contain the whole quantity, and afford ample space to enable the different owners to select their own marks and arrange the logs in rafts to be transported to their private booms.

Claim was made by the plaintiffs for the entire amount of the consideration agreed to be paid for the logs specified in the contract. To maintain the issue on their part, the plaintiffs introduced the contract described in the declaration, and offered evidence tending to prove the situation and quantity of the logs; and that the defendants, or one them, had admitted that they had neglected to measure and scale the logs according to the agreement. One of the defendant was the treasurer of the association or incorporation owning the boom, where the logs, or the principal portion of them, lay at the time the con tract was made.

Prior to the date of the contract, the same defendant had presented a draft to the plaintiffs for the price or charge of driving down the river and into the boom of the association a certain quantity of saw-logs, equal in board measure to fourteen hundred and forty-four thousand feet. Said logs belonged to the plaintiffs, and they offered the draft, with the receipt of the defendant thereon, to show that the defendants, or some of them, and knowledge of the quantity and locality of the logs at the date of the agreement.

To the admission of that evidence the defendants objected, and the court excluded it, and to that ruling the plaintiffs excepted. Various other exceptions also were taken by the plaintiffs to the rulings of the court in the course of the trial, to which more particular reference will presently be made.

Five prayers for instruction were presented by the plaintiffs, but the court refused the entire series, and instructed the jury substantially as follows: That the contract declared on was executory; that the title to the logs did not pass till after admeasurement; that admeasurement was equally for the benefit of both parties; and that the boom-master was made the common agent for that purpose. That if the jury found from the evidence that it was impracticable for the boom-master to do the scaling alone, and it was the custom of the association for him to have assistant, then the scaling in this case might be lawfully done by such assistants under his orders. That it was equally incumbent upon the plaintiffs and defendants to have the logs scaled and measured, and that the plaintiffs could only recover for such logs as had been scaled and come to the possession of the defendants. That the contract imported a warranty that the logs were merchantable, and that the defendants were entitled to a reasonable opportunity to ascertain the quality of the logs. That if the jury found that the quality could not be determined till after the logs had been refted up and taken to the defendants' boom, and then only by sawing them up, or chopping into them, they, the defendants, had a right to do so; and further, that if the jury found that the unmerchantable logs were entirely worthless, the defendants were entitled to recoup their damages for such defects, without returning the logs, or giving notice to the plaintiffs.

Under the instructions of the court, the jury returned their verdict in favor of the defendants, and the plaintiffs excepted both to the refusal of the court to instruct as requested and to the instructions given.

Comparing the terms of the contract with the instructions given to the jury, it is obvious that the former was misconstrued by the court, and that injustice has been done to the plaintiffs.

Referring to the contract, it will be seen that the first sentence thereof declares that the defendants 'bought of' the plaintiffs 'a quantity of pine saw-logs, got out last winter by A. B. Furnam, supposed to be about fourteen hundred and forty-four thousand feet, in board measure, at the rate of four dollars and fifty cents per thousand for those afloat in the booms and bayous near the head of the lake, and four dollars and twenty-five cents per thousand feet for those on the bank, or in marsh near the lake and boom.'

All of the logs sold were to be counted, measured, and scaled by the boom-master, meaning the person in charge of that business at the association boom, where the logs, or the principal portion of them, were situated when the contract was made, or by such other person as the parties might agree on, as the logs were rafted up preparatory to be transported to the private boom of the defendants.

Recurring again to the agreement, it will be seen that it bears date on the sixth day of November, 1856, and by its terms the defendants were to pay for all the logs rafted up that fall, on the fifteenth day of December following; and for all such as were not rafted up until the next spring, they were to pay monthly at the end of each month during the rafting season of the suceeding year. But it is evident that the parties well understood, that a certain portion of the logs included in the sale would remain back, even after the close of the next rafting season; and they accordingly provided that the balance, not then rafted up, should be settled for by the defendants as soon as they could be measured and the 'scaling' completed.

By the terms of the contract, the defendants were to take all the merchantable logs in the described lot or parcel; and inasmuch as the time and amount of the payments would be affected by the promptitude or negligence of the defendants in rafting up the logs, it was expressly stipulated that they should raft up and secure as many of the logs as they could that fall, and as many as possible of the residue during the next spring, before the annual 'drive' came down.

Beyond question these provisions were inserted in the contract for the benefit of the plaintiffs, and it is quite obvious that they were necessary to the protection of the rights of the plaintiffs, because the defendants were not required to make payments any faster than they could raft up and secure the logs, so as to render them available for the purpose for which they were purchased. Such of the logs as remained back, after the annual 'drive' of the succeeding spring came down, were to be scaled where they lay, whether on the banks, in the booms or bayous, and were to be paid for by the defendants at the contract price, without further delay to raft them up. Whether the logs were merchantable or not, was to be determined by the boom-master, who was specially designated in the contract to count, measure, and scale them for the parties. He might perform that duty himself, or if he had deputies who usually assisted him in performing that work, and that custom was known to these parties at the time the contract was made, then he might properly cause the work to be done by such deputies under his direction; and such a performance of the duty assigned to him in the contract would be a lawful performance of the same, and would be obligatory upon both of these parties.

All the logs, however, were to be counted, measured, and scaled by the boom-master, or such other person as the parties might agree on; and unless the boom-master had regular deputies who were accustomed to assist him in such duties, and that custom was known to the parties at the time the contract was made, then it is clear that the work could only be done by the person designated in the contract, unless the parties substituted another in his place.

Merchantable logs only were bought and sold by the parties, but it is a great mistake to regard that provision as a warranty of the logs on the part of the plaintiffs. Unless the parties were desitute of all experience, they must have known that in so large a lot of logs there would be some, and perhaps many, that would not scale as merchantable; and it was doubtless from that consideration that the provision was inserted, that the defendants should take all of that description, and, of course, they were not bound to take any of inferior grades. Regarded in that light, it is evident that the provision was for the benefit of both the seller and purchaser, as it furnished a clear and unmistakable description of what was bought and sold: we say bought and sold, because it is evident from what has already been said that the title to the logs passed to the defendants. Most of the logs were in the association boom at the time the contract was made; and as they were floating in the water, the law did not require an actual delivery, in order to vest the title in the defendants. While floating in the water, they were only in the constructive possession of the owner; and, under such circumstances, a symbolical delivery is all that can, in general, be expected, and is amply sufficient to pass the title. Ludwig vs. Fuller, (17 Me., 166;) Boynton vs. Veazie, (24 Me., 288;) 2 Kent's Com., 492; Macomber vs. Par ker, (13 Pick., 175;) Hutchings vs. Gilchrist, (23 Vt., 88;) Gibson vs. Stevens, (8 How., 384.)

When the terms of sale are gareed on, and the bargain is struck, and everything the seller has to do with the goods is complete, the contract of sale, says Chancellor Kent, becomes absolute as between the parties, without actual payment or delivery, and the property and the risk of accident to the goods vests in the buyer. He is entitled to the goods on payment or tender of the price, and not otherwise, when nothing is said at the sale as to the time of delivery, or the time of payment. But if the goods are sold upon credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is immediately entitled to the possession, and the right of property vests at once in him. 2 Kent's Com., (9th ed.,) 671; Bradeen vs. Brooks, (22 Me., 470;) Davis vs. Moore, (13 Me., 427.)

Nothing in fact remained to be done in this case, so far as the sale and purchase were concerned. Defendants bought and plaintiffs sold, without condition or reservation, and the measurement was simply to ascertain the amount to be paid by the defendants. Sellers had nothing to do but to receive the agreed price, unless the boom-master refused to act, which contingency did not happen him in the case. Cushman vs. Holyoke, (34 Me., 292;) Riddle vs. Varnum, (20 Pick., 280.)

It is clear, therefore, that the title in the logs passed to the defendant at the time the contract was executed. Cunningham vs. Ashbrook, (20 Mi., 553;) Cole vs. ''Transp. Co.'', (26 Vt., 87.)

Having stated our views as to the construction of the contract constituting the foundation of the suit, the errors in the instructions given to the jury will be manifest without any additional explanations; and we need only say, in this connection, that they are of a character to affect the merits of the controversy, and lead necessarily to the reversal of the judgment.

Some of the rulings at the trial, to which exceptions were also taken by the plaintiffs, present, directly or indirectly, the same legal questions as those involved in the instructions given to the jury, and in respect to all such the explanations already given will furnish a proper guide at the next trial. That remark, however, does not apply to the first and third exceptions, which were well taken upon other and distinct grounds. Evidence was offered under both those exceptions, tending to show the quantity of the logs, which was a material matter in dispute at the time.

It cannot be doubted that the evidence offered had some tendency to support the issue; and if so, it was the duty of the court to receive it, and allow it to be weighed by the jury. We forbear to remark upon the other exceptions, because the explanations already given as to the true construction of the contract will sufficiently demonstrate the error in the rulings.

In view of the whole case, we are of the opinion that the rulings and instructions of the Circuit Court we erroneous. The judgment is accordingly reversed, with costs, and the cause remanded, with direction to issue a new venire.

title: Leonard v. Davis/Opinion of the Court


text: Talk:Leonard v. Davis/Opinion of the Court


text:
United States v. Jackalow

This was an indictment against John, alias Johnny, alias John Canoe, alias Jackalow, a native of the Loo Choo Islands, for piracy on the high seas, found and tried in the Circuit Court of the United States for the district of New Jersey, and came into the Supreme Court on a certificate of the judges that they were divided in opinion.

The jury, in a special verdict, found that the offence charged in the indictment was committed by the prisoner at a certain place described and designated, but did not find whether that place was within the jurisdiction of any State, within any district of the United States, or upon the high seas. Did this verdict authorize the Circuit Court to pronounce judgment of death against the prisoner? That was the question on which the judges divided.

Mr. Bates, Attorney General, and Mr. Keasley, of New Jersey, for the United States.

No counsel appeared for Jackalow.

Mr. Justice NELSON.

title: United States v. Jackalow


text: Talk:United States v. Jackalow

title: Talk:United States v. Jackalow


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

This case comes before us on a division of opinion of the judges of the Circuit Court of the United States for the district of New Jersey.

The first count in the indictment charges that the prisoner, with force and arms, on the high seas, in waters within the admiralty and maritime jurisdiction, on board of an American vessel called the 'Spray,' piratically, feloniously, and violently did assault one John F. Leete, the master of the vessel, putting him in bodily fear, and did feloniously, &c., seize, take, and carry away thirty pieces of gold coin, &c., of the goods and effects of the said master, contrary to the form of the statute, &c. The indictment also avers that the district of New Jersey is the district in which the prisoner was found and first apprehended for the offence.

The jury found a special verdict, that the offence charged in the first count was committed by the prisoner on board the 'Spray,' which at the time was lying in the waters adjoining the State of Connecticut, between Norwalk harbor and Westchester county, in the State of New York, at a point five miles eastward of Lyons's Point, (which is the boundary between the States of New York and Connecticut,) and one mile and a half from the Connecticut shore at low-water mark.

The indictment was found under the 3d section of the act of Congress of May 15, 1820, which enacts that if any person shall, upon the high seas, or in any open roadstead, or any haven, basin, or bay, or in any river, &c., commit the crime of robbery in or upon any ship or vessel, or upon any of the ship's company, &c., or the lading thereof, &c., on being convicted before the Circuit Court of the United States for the district into which he shall be brought, or on which he shall be found, shall suffer death.

There is a proviso which declares that nothing in the section shall be construed to deprive any particular State of its jurisdiction over the offence, when committed within the body of a county, or authorize the courts of the United States to try such offenders after conviction or acquittance for the same offence in a State court.

The 2d section of the 3d article of the Constitution provides that 'the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.'

A material question in this case, in view of this provision of the Constitution, was, whether or not the offence was committed out of the jurisdiction of any particular State, because, if not, inasmuch as it was not committed within the State of New Jersey, the Circuit Court of the district of that State had no jurisdiction. That jurisdiction depends upon two facts: first, that the offence was committed out of the jurisdiction of any other of the States of the Union; and, second, that the prisoner was first apprehended in the district of New Jersey.

Crimes committed against the laws of the United States out of the limits of a State are not local, but may be tried at such place as Congress shall designate by law, but are local if committed within the State. They must then be tried in the district in which the offence was committed. (15 How., 488, 6th amendment of the Constitution of U.S.)

In many of the statutes prescribing offences against the laws of the United States, there is an express limitation excluding offences committed within the jurisdiction of a State. The acts of 1790 and 1825 are of this description.

Under these statutes the question presented in this case could not arise, as the offence could not be committed within the limits of the State.

We agree, however, that the omission of the limitation in the act of 1820 constitutes no objection to the legality and force of the act, as it is competent for Congress to prescribe the punishment of offences committed on the high seas, open roadsteads, in any haven, basin, or bay, or in any river where the sea ebbs and flows, as there described, although within the limits of a State. But in these cases, as we have seen from the constitutional provision referred to, the indictment and trial must be in a district of the State in which the offence was committed.

Now, the special verdict finds that the offence in this case was committed upon the 'Spray,' lying in waters adjoining the State of Connecticut, between Norwalk harbor and Westchester county, in New York, at a place five miles eastward of Lyons's Point, and a mile and a half from the Connecticut shore. Whether this place thus described is out of the jurisdiction of a State or not, is not found, and is, of course, necessarily left to the court to determine. The learned judge of the District Court, sitting in the circuit with the presiding judge, in a very carefully considered examination of the question, came to the conclusion that the place where the offence was committed was within the jurisdiction of New York; and it appears that two of the eminent judges of the highest court of the State of New York entertained different opinions on this question. (3 Seldon, 295.)

We have not referred to this boundary of New York for the purpose of determining it, or even expressing an opinion upon it, but for the purpose of saying that the boundary of a State, when a material fact in the determination of the extent of the jurisdiction of a court, is not a simple question of law. The description of a boundary may be a matter of construction, which belongs to the court; but the application of the evidence in the ascertainment of it as thus described and interpreted, with a view to its location and settlement, belongs to the jury. All the testimony bearing upon this question, whether of maps, surveys, practical location, and the like, should be submitted to them under proper instructions to find the fact.

We do not think the special verdict in this case furnishes ground for the court to determine whether or not the offence was committed out of the jurisdiction of a State, and shall direct that it be certified to the Circuit Court, to set aside the special verdict, and grant a new trial.


text: Talk:Natural Resources Defense Council v. Train


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


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Flanigan v. Turner

This was an admiralty suit in personam, commenced by the libel of Andrew Flanigan, John S. Beacham, George P. Beacham, Lenox Beacham, and Samuel Beacham, partners trading as A. Flanigan & Co., against Robert Turner, owner of the steamboat Susquehannah, in the District Court of the United States for the district of Maryland. The libellants claimed $2,762 for work done and materials furnished in repairs to the Susquehannah at the request of Turner, who was either owner or agent for the owner. Turner answered that Flanigan & Co. were joint owners of the boat with him and others, and, therefore, had no right to recover against him for the work. He also alleged and showed that a bill was pending in a State court, brought by himself against these libellants and others, to dissolve the partnership, sell the vessel, and after paying expenses, &c., divide the proceeds ratably among the several owners. This cause was then suspended until that in the State court should be decided. The last mentioned proceeding went on, the vessel was sold under it, and Turner claimed the proceeds as sole owner; the other parties consented, and the court so ordered. The present cause was then pressed in the District Court, and a decree made there in favor of the libellants for the amount found to be due for their work and materials-$2,665 73, with interest from 1st July, 1857, and costs. Turner, the respondent, appealed to the Circuit Court, where the decree was changed to $2,827 88. Turner appealed to the Supreme Court, and attempted to reverse the decree of the Circuit Court upon the grounds which will be found stated in the opinion of Judge Nelson.

Mr. Barrol, of Maryland, for respondent.

Mr. Perrine, of Maryland, for libellants.

Mr. Justice NELSON.

title: Flanigan v. Turner


text: Talk:Flanigan v. Turner

title: Talk:Flanigan v. Turner


text:
Flanigan v. Turner/Opinion of the Court

This is an appeal from a decree in admiralty of the Circuit Court of the United States for the district of Maryland.

The libel was filed by the appellees against Turner, the appellant, in personam, for materials and repairs on the steamboat Susquehannah, in the port of Baltimore. It was filed 25th February, 1858.

The respondent set up, by way of plea, that he had previously filed a bill in equity against the libellants and others in the Circuit Court for Baltimore city, as joint owners and partners with him in the Susquehannah, for the purpose, among other things, of charging them with their proportionate share of the expenses of the repairs claimed; that the defendants in that bill had put in their answers, and that the suit was still pending. This plea was overruled; and the respondent answered the libel, setting up, substantially, the same matters as stated in the bill of complaint.

Further proceedings in the admiralty suit were suspended, by an order of the district judge, to await the result of the suit in equity in the Baltimore court, that suit having been first commenced, and jurisdiction of that court over the subject-matter having first attached.

A receiver was appointed in the equity suit, and, under an interlocutory order of the court, the vessel was sold and proceeds brought into the court, to abide the result of the litigation.

Subsequently, Turner, the complainant, appeared in court and dismissed his bill in equity, and then claimed the fund in court, the proceeds on the sale of the Susquehannah, as belonging to him, he being the only person interested or entitled to it. There being no opposition to the application, as, indeed, there could not be, the defendants, in the bill in equity, in their answers, having not only denied any joint interest in the vessel, but insisted that the complainant was the owner, the application was granted, and the proceeds paid over.

After the bill in the Baltimore City court was dismissed, the suit in the admiralty proceeded, and, on the 4th January, 1859, a decree was rendered by the District Court in favor of the libellants, for $2,665 73, and interest, which, on appeal to the Circuit Court, was affirmed, with some modifications as to the amount.

The principal ground of the defence to the libel was, that the libellants were joint owners of the vessel with Turner, and hence the court had no jurisdiction of the case, either to settle the partnership accounts, or to adjust in any way the equities of the joint owners.

But the answer to this defence is, that the proofs in the case are full to show, that the libellants were not joint owners of the Susquehannah; but, on the contrary, that she was owned solely by the respondent. She was purchased by him from the Philadelphia, Wilmington, and Baltimore Railroad Company 7th November, 1856, and the conveyance taken in his own name. He afterwards attempted to sell the vessel to an association in Baltimore, of which the libellants, or a part of them, were members, but failed to complete the sale. The dismissal of the bill in equity, in which he attempted to charge these libellants, among others, for the expenses of the purchase and repairs of the Susquehannah, and receiving the proceeds of her sale, which were in court, upon the allegation that he was solely interested in the fund, go far to confirm the other proofs in the case, that the libellants had no interest in the vessel, as owners, at the time of the repairs; and, as is admitted, they were made at his request, that they were made on his credit.

The expenses of the repairs and of the materials furnished the vessel were satisfactorily proved, and, unembarrassed with the attempt to prove the joint ownership, the case is a very simple and plain one. That attempt having failed, the decree below was right, and should be affirmed.

Decree of the Circuit Court affirmed.

title: Flanigan v. Turner/Opinion of the Court


text: Talk:Flanigan v. Turner/Opinion of the Court


text:
Water Witch

Appeal from the Circuit Court of the United States for the southern district of New York.

Sheldon filed his libel in the District Court of the United States for the southern district of New York against the brig Water Witch. The libellant claimed to be the consignee of two hundred and two bales of cotton, which had been shipped on board of that vessel at Lavacca, Texas, for transportation to New York, there to be delivered to him on payment of freight. The libel alleged that through the negligence of those in charge of the vessel, bad stowage and other careless management, the cotton was greatly injured. The answer put in issue the various allegations of the libel, and alleged affirmatively that the 'contract mentioned in the libel did not, nor could in anywise, bind the said vessel, nor was the same authorized or assented to,' and the same had expired.

This cause, with two others-one against the vessel for damage to other portions of the cotton belonging to another party, and the other by the owner of the brig against the entire cargo, to recover freight and primage-were tried together, before the District Court, which decided that the vessel was liable for the 'sea damage' to the cotton consigned to the libellant. An interlocutory decree was accordingly entered, and after reference to a commissioner the parties agreed upon the amount of the 'sea damage,' and the commissioner made his report accordingly; upon the coming in of which, a final decree was entered for the damages so ascertained, deducting therefrom the amount of freight chargeable upon the libellant's cotton.

The claimant appealed from this decree (and the decrees in the other cases) to the Circuit Court, and the three causes were again heard together before Mr. Justice Nelson, who modified the decrees below, and decreed the whole amount of the damages, without deducting the freight on the cotton. The claimant appealed to the Supreme Court.

The facts of the case are briefly as follows: In May, 1854, the brig Water Witch, the property of Clifton, but at that time chartered by a firm in New Orleans, lay in the Bay of Matagorda, Texas, waiting for a cargo. A quantity of cotton having offered for shipment, a special contract was made between the shipper at Lavacca and one Mitchell, who represented the charterers. By this contract the shipper was to deliver the cotton at Lavacca, to be received on lighters by Mitchell, and placed by him, at his expense, on board the vessel, to be carried to New York, for the freight of one and a quarter cents per pound. The vessel lay at the port of Indianola, situate in the same bay as Lavacca, but several miles distant from that place. The cotton was carried on lighters from Lavacca to the vessel. After it was delivered from the lighters, and received on board, the master refused to sign the bills of lading, upon the ground that the cotton was not in good order and condition. The agent also objected to the bills of lading, because they did not contain a stipulation that part of the cotton might be shipped on deck. The shipper refused to admit such a stipulation, as it was not contained in the agreement between the parties. Pending the dispute, the master sailed for New York with his cargo. The shipper, on learning that the vessel had sailed, leaving the bills of lading unsigned, forwarded them to the consignees named in them, with a letter stating the circumstances. The consignees made advances upon the cotton. On the arrival of the vessel at New York, the master notified the consignees, and discharged his cargo, but in a badly damaged condition. He also demanded his freight, which they refused to pay. Whereupon the several parties instituted their suits.

Mr. Donohue, of New York, for appellant. The libellants, Sheldon & Co., show no title or interest in the cotton to sustain their libel. They were not owners or shippers of the cotton nor assignees of any contract, by bill of lading or otherwise, on the part of the vessel or its owners, which brought them into any relation of contract with, or claim against, the vessel. They made no advances upon the faith of any bill of lading or other contract of the vessel, and there is no evidence that their advances, in whatever shape, exceed the value of the cotton as it came to their hands. The whole right or claim for damage is still vested in the owners of the cotton, and the relation of these libellants to those owners would not bar the latter from an independent or subsequent suit. For these reasons, irrespective of the merits of the controversy, the libels for damage should be dismissed.

The owners and shippers of the cotton (supposing the libellants to represent them) have no claim for damages against the vessel or its owners, unless such damage arises from some breach of contract with, or duty towards the shippers, obligatory on the vessel and its owners. No such contract or duty can arise, unless entered into or assumed by the owners of the vessel, directly or through some authorized agent.

Mitchell, the party who made this contract, was the agent or broker of the charterers, and had no employment for, or authority from, the vessel or its owners. It was competent for the charterers to make such contract as they saw fit with shippers, and they would be bound by it. The vessel they had no authority to bind. But, if the contract in any way affected the vessel or its owners by way of contract or duty, nor breach of contract or duty thereunder has been shown by the libellants. The vessel took proffered cargo to the extent of its capacity, stowing its hold full, and then taking a deck load. If the shippers were unwilling to ship cargo on deck subject to all the risks of such lading, and the contract with Mitchell entitled them to under-deck lading of the whole quantity named, they should have withheld the cargo, and sought indemnity for not taking it. As the vessel gave no admission of good order on receipt of the cotton; as, by all the evidence, it appears that the cotton was badly damaged when put on board, and as the voyage shows marine disaster, which accounts for all the sea damage, the burden is on the shippers to show both bad stowage and damage therefrom. The Circuit Court clearly erred in increasing the claim of the libellants on their damage. There was no appeal by them, and the Circuit Court could not increase the damage.

Mr. Owen, of New York, for respondent. The respondent was the consignee of the cotton in question, and entitled, not only to receive the same, but also to maintain this action for the damage which it sustained on the voyage to New York. No reasonable doubt could be entertained upon this subject if the bills of lading which were transmitted by the shipper to the respondent had been signed by the master of the vessel, or by some person lawfully authorized. Lawrence vs. Minturn, (17 How., 100;) McKinlay vs. Morrish, (21 How., 343.) The fact that the bills of lading were not so signed does not, under the circumstances of this case, affect the question, for the respondent was, in fact, the consignee, and was so recognised and treated by both parties. A bill of lading, duly signed by the master, is not essential to a legal and valid consignment. Goods may be consigned verbally, as well as by writing. The Peytona, (2 Curtis, 26, 27.) Even admitting that the respondent was not a consignee created in the customary way, still he was the agent of the shipper, and expressly authorized 'to recover the cotton, and proceed against the vessel for damages,' which authority, coupled with his interest in the cotton, by reason of the advance made thereon, entitled him to maintain this suit. Louseman vs. The North Carolina, (15 Peters, 40, 49;) Fritz vs. Ball, (12 How., 466;) McKinlay vs. Morrish, (21 How., 343;) Lawrence vs. Minturn, (17 How., 100.)

Having received the cotton on board, the vessel became responsible for its proper stowage and protection during the voyage. The contract, though silent as to the place where the cargo is to be carried, clearly implies that it was to be carried under deck. Such is the legal effect of bills of lading where nothing is mentioned on the subject. Vernard vs. Hudson, (3 Sumn., 405;) The Peytona, (2 Curtis, 21.) In the absence of any express agreement upon the subject the law determines the question between the parties, and requires the cargo to be carried under deck. The Rebecca, (Ware, 188;) The Paragon, (Ware, 326.)

The vessel was liable, under the circumstances, for all damages, except such as arose from the 'act of God.' The water which accumulated in the hold was not simply an act of God, but it arose from the 'fault or negligence of man.' The Rebecca, (Ware, 188;) Crosby vs. Grinnell, (9 Leg. Obs., 281;) (2 Greenl. Ev., p. 212, § 219;) The Reeside, (2 Sumn., 267.)

Mr. Justice GRIER.

title: Water Witch


text: Talk:Water Witch

title: Talk:Water Witch


text:
Water Witch/Opinion of the Court

The decree in favor of the libellant in the Circuit Court was for a much larger sum than that rendered in the District Court, and as there was no cross appeal by the libellant, the decree of the Circuit Court is now challenged as erroneous for that reason; but this apparent inconsistency will be found not to exist in reality, by a short reference to the history of the case, as exhibited by the record.

The libellant claimed as consignee of two hundred bales of cotton shipped on board the Water Witch, to be carried from Lavacca, in Texas, to New York. The libel charged that the cotton had been greatly injured by reason of bad stowage and want of care on the part of the master and crew of the vessel.

As an excuse for not tendering freight, the libel alleged that the damage to the cotton far exceeded the freight and primage. Another consignee filed his libel at the same time for that portion of the cotton consigned to him, with the same allegations, and the claimants of the ship filed their libel against the cotton for freight and primage. These three suits, all depending on the same facts, were tried as one.

The great question of the case was, whether the damage, which it was admitted the cargo had received, was caused by the fault of the vessel, or before it was received on board-that is, whether it was sea damage, or country damage; and, if sea damage, whether the vessel was liable for it. The District Court decided that the vessel was liable for the sea damage, and sent the cases to a master to report the amount of sea damage suffered by the cotton, and the sums severally due by the consignees for freight. Having these data by the report, that court, instead of entering a decree for each libellant for the sum found due to him, made a set-off of the freight due the ship against the amount of damage suffered by the cotton, giving a decree for each consignee for the balance, deducting freight, and dismissing the libel of the owners. The claimant of the ship appealed, in all the cases, to the Circuit Court. The several amounts found due by the master's report were adopted by that court, and the decree in each case corrected, so that the decree for the several consignees was for the whole damage, without set-off, and a decree in favor of the ship for freight found to be due on the cotton, leaving the set-off to be made by the parties, or by order of the District Court. The amendment made by the Circuit Court was in fact beneficial to the owners of the ship, as they recovered costs in their own suit. The court rightly decided 'that the parties could not split up the claim for damages by applying a portion in extinguishing the freight money, and then ask a decree for the excess of this sum.'

The appellants have, therefore, no reason to complain of the decree on this ground.

The amount of sea damage, as assessed in the report, was admitted to be correct. The refusal of the master of the ship to sign bills of lading could not affect the case. The ship having received the cargo, and carried it to the consignees in New York, and then libelled the cargo for freight, is estopped to deny her liability to deliver in like good order as received, with the usual exceptions.

It has been contended, that the language of the written contract between Mitchell and Forbes permitted the cargo to be carried on deck, and that the phrase capacity of the vessel admitted of such construction; but the fact that the owners of cargo refused to have such an agreement made a part of the bills of lading, and the agreement to pay under-deck freight, repel any such doubtful inference from the phrase. The evidence does not support the allegation of any agreement by the shippers, that the cotton, or any portion of it, should be carried on deck. The objection that Sheldon was not consignee, or if so, had no title to support the action, has no foundation in fact or in law. The claimants treated him as such, and as such he had made advances on the cargo.

Whether this sea damage was caused, as charged in the libel, by the fault of the master or the ship, was a question of fact, and encumbered, as usual, with a mass of conflicting testimony and opinions. The weight of the testimony, as decided by the judges of both courts, inclined in favor of the libellant, and we see no reason to differ from them. The weight of testimony is not always with numbers, and this court should not have their time spent in hearing arguments whether the eleven deponents on one side ought to be believed rather than ten on the other. In such cases, the concurrent finding of two courts ought to satisfy the losing party.

The decree of the Circuit Court is affirmed, with costs.

title: Water Witch/Opinion of the Court


text: Talk:Water Witch/Opinion of the Court

title: Talk:Water Witch/Opinion of the Court


text:
White's Administrator v. United States

Thomas B. Valentine, for himself and other parties in interest, presented his petition to the Supreme Court setting forth that he held the title of Juan Miranda, to whom a grant was made by the Mexican Government of a tract of land in California known by the name of the Arroyo de San Antonio; that one Ellen E. White, administratrix of Charles White, deceased, petitioned the Land Commission for confirmation to herself of another title derived from Manuel Ortega for the same land, and her proceeding came by appeal into this court, where an order was made remanding the cause to the District Court, so that the claimants under Miranda might have an opportunity to contest the claim of White agreeably to the 13th section of the act of 1851; that the mandate was filed in the District Court and a motion made by the petitioner for leave to intervene, which was refused by the District Court in disregard of the order of this court. The petitioner, being without other remedy, prays for a mandamus.

Mr. Black, of Pennsylvania, and Mr. Green, of Missouri, for the relator.

Mr. Cushing, of Massachusetts, for White.

Mr. Bates, Attorney General, for the United States.

Mr. Justice GRIER.

title: White's Administrator v. United States


text: Talk:White's Administrator v. United States


text:
White's Administrator v. United States/Opinion of the Court

The motion for a mandamus in this case is founded on a mistaken apprehension of the judgment of this court as it is reported in 23 Howard, 249.

Ortega had married the daughter of Miranda; they lived as one family, and entered into possession of the land claimed. Ortega's title purported to be founded on a petition to Governor Alvarado, dated 12th June, 1840; a reference report and marginal decree signed by Alvarado, 10th of August, 1840, 'which was returned to him to serve as a security during the other operations indicated.' It was never completed by a final grant, and was not to be found among the archives, but its execution was proved by Alvarado himself. Miranda, in 1844, petitioned for a grant of the same land, alleging that he had been in possession of the land for more than four years. This inform e was in the usual form, and is found among the archives. The court being divided in opinion as to the authenticity of the Ortega title, (and a majority expressing a doubt,) at first decided to send the record back to the District Court, to have the conflicting claims of the father and son-in-law settled by a proceeding under the 13th section of the act of 1851. But our attention was afterwards drawn to the fact, that the proceeding, under the proviso in this section, was intended only for cases where both parties claimed under a confirmed Mexican grant by derivative titles, and as Ortega and Miranda claimed under several and distinct titles, the case did not come within the provisions of the 13th section. The court then reversed the decree of the District Court, and not being fully satisfied on the evidence as to the genuineness of Ortega's papers, sent the case back for further examination. There was no order that a stranger to the record should be allowed to interplead and set up another grant, as a reason why the claimant's title should not be confirmed, for it appears from the opinion of the court that they objected to the proceeding because the Miranda grant had been used to combat that of Ortega in this proceeding. The first decree did not order the court below to allow the claimants under Miranda to interplead in this suit; and if it had done so, it was wholly annulled and set aside by the order and decree afterwards made on the 1st of May, 1860. It was like a judgment in a common law case, where a judgment is reversed and a venire de novo ordered; and the reason given by the court was, 'that the District Court might not be trammeled in their future consideration of the case on all its merits.'

The motion for a mandamus is therefore refused.


text: Talk:White's Administrator v. United States/Opinion of the Court


text:
Ex Parte Gordon

This was an application by Nathaniel Gordon for an alternative writ of prohibition to the judges of the Circuit Court of the United States for the southern district of New York, and its officers, and the United States marshal, to restrain them from further proceeding in a case wherein the said Gordon had been found guilty of piracy and sentenced to death; and also for a writ of certiorari commanding the judges to send up the papers, process, and all proceedings in the said cause, to this court. The facts averred by the petitioner are substantially stated by the Chief Justice in the opinion of the court.

Mr. Dean, of New York, presented the petition and moved for an alternative writ of prohibition, and also for a certiorari to bring up the proceedings.

Mr. Chief Justice TANEY.

title: Ex Parte Gordon


text: Talk:Ex Parte Gordon

title: Talk:Ex Parte Gordon


text:
Collier's New Encyclopedia (1921)/Schlegel, August Wilhelm von

SCHLEGEL, AUGUST WILHELM VON (schlā'gel), German author, born in Hanover, Prussia, Sept. 8, 1767. He was Professor of Literature in the University of Bonn. His most notable works in literary and art criticism are: “Lectures on Dramatic Art and Literature” (3 vols. 1809-1811), translated into nearly all the languages of western Europe; “On the Theory and History of the Plastic Arts” (1827). In the field of Orientalism he wrote “Reflections on the Study of the Asiatic Languages” (1832), and prepared editions of several Indian classics. He translated many of the plays of Shakespeare and made the English dramatist a German classic. He translated Dante, Calderon, Camoens, and other foreign masters of literature. He wrote sonnets, an elegy, “Rome” (1812), and other poems. He died in Bonn, Germany, May 12, 1845.


text:
Ex Parte Gordon/Opinion of the Court

Nathaniel Gordon has filed a petition to this court, stating that he has been indicted and convicted in the Circuit Court of the United States for the southern district of New York of the crime of piracy, under the act of Congress prohibiting the African slave trade, and sentenced to death by the court, and a warrant issued and placed in the hands of the marshal of that district, commanding him to carry the sentence into execution on the seventh day of this month; that there were irregularities and errors in the proceedings against him, and that he had moved for an arrest of judgment in the Circuit Court, which motion had been overruled; and had also moved to have the case certified to this court as upon a division of opinion, in order that the proceedings against him might be revised here, but this application had also been refused; that the president of the United States has granted him a respite of the sentence until the twenty-first day of this month, and he fears that it will be carried into execution on that day unless it is prevented by the interposition of this court; and, upon this statement, he, by his counsel, moves for an alternative writ of prohibition directed to the Circuit Court and its officers; and also for a certiorari, returnable at the same time, directing the Circuit Court to return the papers, process, and proceedings in the case.

This motion cannot be sustained. It appears by the statement in the petition, that the party has been tried, and found guilty of the crime of piracy, and sentenced to be executed by a court of the United States, possessing competent jurisdiction, and from whose judgment no appeal is allowed, by law, to this tribunal; for, in criminal cases, the proceedings and judgment of the Circuit Court cannot be revised or controlled here, in any form of proceeding, either by writ of error or prohibition, hibition, and, consequently, we have no authority to examine them by a certiorari. And the only case in which this court is authorized even to express an opinion on the proceedings in a Circuit Court in a criminal case is, where the judges of the Circuit Court are opposed in opinion upon a question arising at the trial, and certify it to this court for its decision. But, certainly, the party had no right to ask for such a certificate, nor could it have been granted consistently with the duty of the court if the judges agreed in opinion, and did not think there was doubt enough to justify them in submitting the question to the judgment of this court.

But this motion asks the court to do even more than exercise an appellate power where none is given by law, for the case has now passed out of the hands of the court, and the warrant is in the hands of the marshal commanding him to execute the judgment of the court. The Circuit Court itself has not now the power to recall it, and, certainly, it would be without precedent in any judicial proceeding to prohibit a ministerial officer from performing a duty which the Circuit Court had a lawful right to command, and had by its process, regularly issued, commanded him to perform, and in a case, too, where no appellate power is given to this court to revise or control in any respect the judgment or proceedings of the Circuit Court. We are not aware of any case in which a similar motion has heretofore been made in this court in a criminal case. In a civil case, Ex Parte Christie, (3 How., 292,) a motion was made for a prohibition to be issued to the District Court of the United States for the district of Louisiana, to prohibit it from further proceedings in a certain case of bankruptcy then before it, upon the ground that it had transcended its jurisdiction in entertaining these proceedings. But this court was of opinion that it had not exceeded its jurisdiction, and the question as to its power to issue the writ was not necessarily involved in the decision of the case. In the conclusion of the opinion, however, after a very elaborate argument on the powers of the District Court, under the bankrupt law, the court said, (page 322,) that although the question was not absolutely necessary to be decided, yet they deemed it proper to say, as the point had been fully argued, that this court possessed no revising powers over the decrees of the District Court sitting in bankruptcy; that the District Court had not interfered with, nor in any manner evaded or obstructed, the appellate authority of this court by its proceedings, and the court knew of no case where the court is authorized to issue a writ of prohibition to a District Court, except in the cases expressly provided for by the 13th section of the judiciary act of 1789-that is to say, where the District Courts are proceeding as courts of admiralty and maritime jurisdiction.

The result of this opinion is, that a prohibition cannot issue from this court in cases where there is no appellate power given by law, nor any special authority to issue the writ. We concur in this opinion, and the rule applies with equal force to the case before us as it did in the case referred to.

Motion refused.

title: Ex Parte Gordon/Opinion of the Court


text: Talk:Ex Parte Gordon/Opinion of the Court


text:
Foster v. Goddard

Cross appeals from the Circuit Court of the United States for the district of Massachusetts.

The facts, pleadings, and points of this case are so fully stated by Mr. Justice Swayne, that any other report of them cannot be made without repeating what he has said in his opinion.

Messrs. Bartlett and Sohier, of Massachusetts, for complainant.

Mr. Goodrich, of Massachusetts, for respondent.

Mr. Justice SWAYNE.

title: Foster v. Goddard


text: Talk:Foster v. Goddard

title: Talk:Foster v. Goddard