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Meister v. Moore

ERROR to the Circuit Court of the United States for the Western District of Pennsylvania.

This was ejectment, brought Oct. 9, 1873, by Bernard L. Meister, for the possession of certain lots of ground in Pittsburg, Pa.

Both parties claimed under William Mowry, the plaintiff, as the alience of the alleged wife and daughter of said William, and the defendants, as the vendees of his mother, in whom the title of the property vested, if he died unmarried and without issue.

The plaintiff, to maintain the issue on his part, introduced evidence tending to prove that, some time in the year 1844 or 1845, said William went from Pittsburg to the Saginaw Valley, in the State of Michigan, and there became acquainted with Mary, the daughter of an Indian named Pero; that, in the latter part of the year 1845, Mowry and Mary were married, and thereafter lived and cohabited together as man and wife, and had one child born to them, named Elizabeth; that said Mowry died intestate, some time in 1852, at Pittsburg, leaving no issue living at his death save said Elizabeth, who afterwards married one Isaacs; and that they, Aug. 27, 1873, conveyed the demanded premises to the plaintiff.

The defence was—

1. That the plaintiff's evidence, even if true, did not, under the statute of Michigan, regulating the solemnization of marriage, establish a valid marriage between William Mowry and the Indian woman.

2. That that evidence utterly failed to establish a valid marriage at common law.

The Revised Statutes of Michigan upon the subject of the solemnization of marriages, adopted in the year 1838, and in force at the time of the alleged marriage, enact as follows:--

'SECT. 6. Marriages may be solemnized by any justice of the peace in the county in which he is chosen; and they may be solemnized throughout the State by any minister of the gospel who has been ordained according to the usages of his denomination, and who resides within this State, and continues to preach the gospel.'

'SECT. 8. In the solemnization of marriage no particular form shall be required, except that the parties shall solemnly declare, in the presence of the magistrate or minister and the attending witnesses, that they take each other as husband and wife. In every case there shall be at least two witnesses, besides the minister or magistrate, present at the ceremony.'

'SECT. 14. No marriage solemnized before any person professing to be a justice of the peace or a minister of the gospel shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of jurisdiction or authority in such supposed justice or minister: Provided, that the marriage be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.

'SECT. 15. The preceding provisions, so far as they relate to the manner of solemnizing marriages, shall not affect marriages among the people called Friends, or Quakers, nor marriaged among the people called Menonists; but such marriages may be solemnized in the manner heretofore used and practised in their respective societies.' Rev. Stat. 1838, pp. 334, 335.

The court below charged the jury that the validity of the alleged marriage must be determined by the laws of Michigan; and that, if they found that neither a minister nor a magistrate was present thereat,-and such was the plaintiff's proof,-it was invalid under the statute of that State, and their verdict should be for the defendants.

There was a verdict for the defendants. Judgment was rendered accordingly, whereupon the plaintiff brought the case here.

Mr. H. W. Weir for the plaintiff in error.

A statute regulating the forms of marriage is merely directory, and, unless it contains an express clause of nullity, a marriage per verba de praesenti is valid. 1 Bishop, Mar. & Div., sects. 277 a, 279, 280, 283 et seq.; The State v. Worthington, Chicago Legal News, June 16, 1877; Commonwealth v. Jackson, 11 Bush (Ky.), 679; 2 Greenl. Evid., sects. 461, 462. Such is the ruling of the Supreme Court of Michigan. Hutchins v. Kimmell, 31 Mich. 126; Proctor v. Bigelow, Jan. Term, 1878, not yet reported.

Mr. M. W. Acheson, contra.

The judgment below is not erroneous. People v. Slack, 15 Mich. 198; Holmes v. Holmes, 1 Abb. (U.S.) 525; Milford v. Worcester, 7 Mass. 48; Ligonia v. Buxton, 2 Me. 95; Roche v. Washington, 19 Ind. 53; The State v. Samuel, 2 Dev. & B. (N. C.) Eq. 177; State v. Patterson, 2 Ired. (N. C.) L. 346; Bashaw v. State of Tennessee, 1 Yerg. (Tenn.) 177; Grisham v. State of Tennessee, 2 id. 589; Robertson v. The State, 42 Ala. 509.

Affirmative statutes which introduce a new rule or prescribe a specific mode of doing a thing imply a negative of all that is not within their purview. Slade v. Drake, Hob. 298; Stradling v. Morgan, Plowd. 206.

A contract in contravention of statutory provisions which contain nothing from which its validity can be inferred, is void. Mitchell v. Smith, 1 Binn. (Pa.) 118; Bank v. Haldeman, 7 Watts & S. (Pa.) 233.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Meister v. Moore


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Talk:Meister v. Moore

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title: Talk:Meister v. Moore


text:
Meister v. Moore/Opinion of the Court

The learned judge of the Circuit Court instructed the jury, that, if neither a minister nor a magistrate was present at the alleged marriage of William A. Mowry and the daughter of the Indian Pero, the marriage was invalid under the Michigan statute; and this instruction is now alleged to have been erroneous. It certainly withdrew from the consideration of the jury all evidence, if any there was, of informal marriage by contract per verba de praesenti. That such a contract constitutes a marriage at common law there can be no doubt, in view of the adjudications made in this country, from its earliest settlement to the present day. Marriage is everywhere regarded as a civil contract. Statutes in many of the States, it is true, regulate the mode of entering into the contract, but they do not confer the right. Hence they are not within the principle, that, where a statute creates a right and provides a remedy for its enforcement, the remedy is exclusive. No doubt, a statute may take away a common-law right; but there is always a presumption that the legislature has no such intention, unless it be plainly expressed. A statute may declare that no marriages shall be valid unless they are solemnized in a prescribed manner; but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded by a license, or publication of banns, or be attested by witnesses. Such formal provisions may be construed as merely directory, instead of being treated as destructive of a common-law right to form the marriage relation by words of present assent. And such, we think, has been the rule generally adopted in construing statutes regulating marriage. Whatever directions they may give respecting its formation or solemnization, courts have usually held a marriage good at common law to be good notwithstanding the statutes, unless they contain express words of nullity. This is the conclusion reached by Mr. Bishop, after an examination of the authorities. Bishop, Mar. and Div., sect. 283 and notes. We do not propose to examine in detail the numerous decisions that have been made by the State courts. In many of the States, enactments exist very similar to the Michigan statute; but their object has manifestly been, not to declare what shall be requisite to the validity of a marriage, but to provide a legitimate mode of solemnizing it. They speak of the celebration of its rite rather than of its validity, and they address themselves principally to the functionaries they authorize to perform the ceremony. In most cases, the leading purpose is to secure a registration of marriages, and evidence by which marriages may be proved; for example, by certificate of a clergyman or magistrate, or by an exemplification of the registry. In a small number of the States, it must be admitted, such statutes have been construed as denying validity to marriages not formed according to the statutory directions. Notably has this been so in North Carolina and in Tennessee, where the statute of North Carolina was in force. But the statute contained a provision declaring null and void all marriages solemnized as directed, without a license first had. So, in Massachusetts, it was early decided that a statute very like the Michigan statute rendered illegal a marriage which would have been good at common law, but which was not entered into in the manner directed by the written law. Milford v. Worcester, 7 Mass. 48. It may well be doubted, however, whether such is now the law in that State. In Parton v. Henry (1 Gray (Mass.), 119), where the question was, whether a marriage of a girl only thirteen years old, married without parental consent, was a valid marriage (the statute prohibiting clergymen and magistrates from solemnizing marriages of females under eighteen, without the consent of parents or guardians), the court held it good and binding, notwithstanding the statute. In speaking of the effect of statutes regulating marriage, including the Massachusetts statute (which, as we have said, contained all the provisions of the Michigan one), the court said: 'The effect of these and similar statutes is not to render such marriages, when duly solemnized, void, although the statute provisions have not been complied with. They are intended as directory only upon ministers and magistrates, and to prevent as far as possible, by penalties on them, the solemnization of marriages when the prescribed conditions and formalities have not been fulfilled. But, in the absence of any provision declaring marriages not celebrated in a prescribed manner, or between parties of certain ages, absolutely void, it is held that all marriages regularly made according to the common law are valid and binding, though had in violation of the specific regulations imposed by statute.' There are two or three other States in which decisions have been made like that in 7th Massachusetts.

We will not undertake to cite those which hold a different doctrine, one in accord with the opinion we have cited from 1 Gray. Reference is made to them in Bishop, Mar. and Div. sect. 283 et seq.; in Reeve's Domestic Relations, 199, 200; in 2 Kent, Com. 90, 91; and in 2 Greenleaf on Evidence. The rule deduced by all these writers from the decided cases is thus stated by Mr. Greenleaf:--

'Though in most, if not all, the United States there are statutes regulating the celebration of marriage rites, and inflicting penalties on all who disobey the regulations, yet it is generally considered, that, in the absence of any positive statute declaring that all marriages not celebrated in the prescribed manner shall be void, or that none but certain magistrates or ministers shall solemnize a marriage, any marriage, regularly made according to the common law, without observing the statute regulations, would still be a valid marriage.'

As before remarked, the statutes are held merely directory; because marriage is a thing of common right, because it is the policy of the State to encourage it, and because, as has sometimes been said, any other construction would compel holding illegitimate the offspring of many parents conscious of no violation of law.

The Michigan statute differs in no essential particular from those of other States which have generally been so construed. It does not declare marriages void which have not been entered into in the presence of a minister or a magistrate. It does not deny validity to marriages which are good at common law. The most that can be said of it is, that it contains implications of an intention that all marriages, except some particularly mentioned, should be celebrated in the manner prescribed. The sixth section declares how they may be solemnized. The seventh describes what shall be required of justices of the peace and ministers of the gospel before they solemnize any marriage. The eighth declares that in every case, that is, whenever any marriage shall be solemnized in the manner described in the act, there shall be at least two witnesses present beside the minister or magistrate. The ninth, tenth, eleventh, sixteenth, and seventeenth sections provide for certificates, registers, and exemplifications of records of marriages solemnized by magistrates and ministers. The twelfth and thirteenth impose penalties upon justices and ministers joining persons in marriage contrary to the provisions of the act, and upon persons joining others in marriage, knowing that they are not lawfully authorized so to do. The fourteenth and fifteenth sections are those upon which most reliance is placed in support of the charge of the Circuit Court. The former declares that no marriage solemnized before any person professing to be a justice of the peace or minister of the gospel shall be deemed or adjudged to be void on account of any want of jurisdiction or authority in such supposed minister or justice, provided the marriage be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage. This, it is argued, raises an implication that marriages not in the presence of a minister or justice, or one professing to be such, were intended to be declared void. But the implication is not necessarily so broad. It is satisfied if it reach not beyond marriages in the mode allowed by the act of the legislature.

The fifteenth section exempts people called Quakers, or Friends, from the operation of the act, as also Menonists. As to them the act gives no directions. From this, also, an inference is attempted to be drawn that lawful marriages of all other persons must be in the mode directed or allowed. We think the inference is not a necessary one. Both these sections, the fourteenth and the fifteenth, are to be found in the acts of other States, in which it has been decided that the statutes do not make invalid common-law marriages.

It is unnecessary, however, to pursue this line of thought. If there has been a construction given to the statute by the Supreme Court of Michigan, that construction must, in this case, be controlling with us. And we think the meaning and effect of the statute has been declared by that court in the case of Hutchins v. Kimmell (31 Mich. 126), a case decided on the 13th of January, 1875. There, it is true, the direct question was, whether a marriage had been effected in a foreign country. But, in considering it, the court found it necessary to declare what the law of the State was; and it was thus stated by Cooley, J.: 'Had the supposed marriage taken place in this State, evidence, that a ceremony was performed ostensibly in celebration of it, with the apparent consent and co-operation of the parties, would have been evidence of a marriage, even though it had fallen short of showing that the statutory regulations had been complied with, or had affirmatively shown that they were not. Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations. This has become the settled doctrine of the American courts; the few cases of dissent, or apparent dissent, being borne down by the great weight of authority in favor of the rule as we have stated it;' citing a large number of authorities, and concluding, 'such being the law of this State.' We cannot regard this as mere obiter dicta. It is rather an authoritative declaration of what is the law of the State, notwithstanding the statute regulating marriages. And if the law in 1875, it must have been the law in 1845, when, it is claimed, Mowry and the Indian girl were married; for it is not claimed that any change of the law was made between the time when the statute was enacted and 1875. The decision of the Michigan Supreme Court had not been made when this case was tried in the court below. Had it been, it would doubtless have been followed by the learned and careful circuit judge. But, accepting it as the law of Michigan, we are constrained to rule there was error in charging the jury, that, if they found neither a minister nor a magistrate was present at the alleged marriage, such marriage was invalid, and the verdict should be for the defendants.

It has been argued, however, that there was no evidence of any marriage good at common law, which could be submitted to the jury, and, therefore, that the error of the court could have done the plaintiff no harm. If all the evidence given or legally offered were before us, we might be of that opinion; but the record does not contain it all, and we are unable, therefore, to say the ruling of the court was immaterial. The case must, therefore, go back for a new trial. We do not consider the other questions presented. They may not arise on the second trial.

Judgment reversed, and new trial ordered.

NOTE.-In Meister v. Bissell, which embraced the same facts as did the preceding case, and which was argued at the same time and by the same counsel as was that case, MR. JUSTICE STRONG, in delivering the opinion of the court, remarked that the opinion given in that case controlled this.

Judgment reversed, and new trial ordered.

title: Meister v. Moore/Opinion of the Court


text: Talk:Meister v. Moore/Opinion of the Court


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Insurance Company v. McCain

ERROR to the Circuit Court of the United States for the Southern District of Alabama.

This was an action on a policy of insurance issued by the Southern Life Insurance Company, a corporation created by the laws of Tennessee, upon the life of Adam S. McCain, commencing on the tenth day of December, 1868. The insurance was for the sum of $5,000, and was effected by the wife of the insured, for the sole use of herself and children. The policy was received from an agent of the company, one B. F. Smith, who was appointed to solicit applications for policies and collect premiums for a district of country embracing a part of Mississippi and also a part of Alabama, in which the insured resided. To him the first premium was paid. The second premium, due on the 10th of December, 1869, was paid on the 5th, of that month, to his sub-agent, who, before the 10th, handed him the amount, and it was credited in his account rendered to the company in April following. The account disclosed the fact that the amount was received upon the policy in question. After its receipt, no communication was made by the company to the assured that Smith was not its agent at the time of the payment, nor was any objection made to the sufficiency of the payment. The insured died in June, 1870, and this action was commenced in January, 1873, in a State court, and, on application of the defendant, was transferred to the Circuit Court of the United States. The proper preliminary proof of the death of the insured was made, and the case turned upon the sufficiency of the second payment.

The company, in its defence, denied the authority of Smith to receive the premium, contending that his agency had previously ceased, under the rules and regulations of the company, by his accepting the agency of another insurance company; and, further, that its agents were only empowered to collect renewal premiums upon special receipts, sent out from the office of the company for each case, signed by its president and secretary, and countersigned by the agent. The evidence established the existence of such regulations, and tended to show that the agent had resigned his agency previous to the 1st of December. It appeared also that no renewal receipt, signed as required, was given in the case. But the court held, and in substance instructed the jury, that if Smith was the general agent of the company, and as such had authority to bind the company by a receipt of the renewal premium before the tenth day of December, 1869, a payment to him was sufficient, unless previously to such payment the assured had notice that the agent's authority had been revoked; and that though, as a general rule, a person dealing with an agent must inquire into his authority, yet that the powers of an agent were prima facie coextensive with the business intrusted to his care, and would not be narrowed by limitations from his principal not communicated to the person with whom he dealt; and that, unless the assured was informed that a payment would not be good in the absence of a particular form of receipt, a payment by him within the time prescribed by the policy was sufficient, though a different form of receipt was used.

The court also held, and instructed the jury, in substance, that if the company received, in April, 1870, a statement of the agent Smith, showing a receipt by him of the renewal premium payable on the 10th of December, and the company did not notify the assured, who lived more than a month afterwards, that it repudiated the transaction, it would be a fraud on its part to repudiate the payment after his death, and that the payment would bind the company. The jury found a verdict for the plaintiff, upon which judgment was entered; and the insurance company brought the case here on writ of error.

Mr. John D. McPherson for the plaintiff in error.

Mr. P. Phillips, contra.

MR. JUSTICE FIELD, after stating the facts of the case, delivered the opinion of the court.

title: Insurance Company v. McCain


text: Talk:Insurance Company v. McCain

title: Talk:Insurance Company v. McCain


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Insurance Company v. McCain/Opinion of the Court

The law embraced by the instructions to the jury is clearly and correctly stated. No company can be allowed to hold out another as its agent, and then disavow responsibility for his acts. After it has appointed an agent in a particular business, parties dealing with him in that business have a right to rely upon the continuance of his authority, until in some way informed of its revocation. The authorities to this effect are numerous, and will be found cited in the treatises of Paley and Story on Agency.

The law is equally plain, that special instructions limiting the authority of a general agent, whose powers would otherwise be coextensive with the business intrusted to him, must be communicated to the party with whom he deals, or the principal will be bound to the same extent as though such special instructions were not given. Were the law otherwise, the door would be open to the commission of gross frauds. Good faith requires that the principal should be held by the acts of one whom he has publicly clothed with apparent authority to bind him. Story, Agency, sects. 126, 127, and cases there cited.

The law on the silence of the company, after receiving the statement of the agent that the premium had been paid, is also free from doubt. Silence then was equivalent to an adoption of the act of the agent, and closed the mouth of the company ever afterwards. It does not appear that the company ever objected to the payment of the premium to him until after the death of the insured. It was then too late. As pertinently said by counsel, the company cannot be permitted to occupy the vantage ground of retaining the premium if the party continued in life, and repudiating it if he died.

Judgment affirmed.


text: Talk:Insurance Company v. McCain/Opinion of the Court


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McAllister v. Kuhn

ERROR to the Supreme Court of the Territory of Utah.

This action was brought, Sept. 9, 1873, in the District Court of the third judicial district of the Territory of Utah, by Bertrand Kuhn, against John D. T. McAllister, for the wrongful conversion of certain shares of stock.

Kuhn alleged in his complaint that, on the first day of September, 1873, he was the owner of two hundred and fifty shares, unassessable, of the paid-up capital stock of the North Star Silver Mining Company, a corporation existing under the laws of the Dominion of Canada, which were represented by five certificates, for fifty shares, each signed by the secretary, treasurer, and president of said company, and that said shares were then of the value of $12,000.

That on or about that day, while he was such owner and lawfully entitled to their possession, the defendant, at Salt Lake City, without his consent and wrongfully, took said shares, and converted them unlawfully and wrongfully to his own use.

That before the commencement of this action he demanded of the defendant possession of the said stock, but that the defendant refused to return the same, and still retains possession thereof.

Summons was served upon the defendant in person Sept. 10, 1873, and on the 18th he appeared and filed a demurrer.

April 15, 1874, the application of the defendant for leave to withdraw his demurrer and for ten days within which to answer was granted; but, on the 28th, no answer having been filed, his default was entered.

Oct. 13, the plaintiff having introduced his proofs, the court assessed his damages, and entered judgment in his favor for $3,300, with interest and costs.

The defendant having moved to vacate the judgment, the court overruled the motion; whereupon he appealed to the Supreme Court of the Territory, where, June 30, 1875, the judgment below was affirmed.

McAllister then sued out this writ, and here assigns for error:--

1. Shares of stock being intangible, and only representing the right of the owner to receive dividends of profit, and, at the dissolution of the company, portions of the surplus, if any there be, cannot, against the will of the owner, be wrongfully taken and converted to the use of another. Therefore, the averment that McAllister wrongfully took and converted the shares of the plaintiff to his use, is an averment of an impossibility, and tenders no issuable fact.

2. The averment that said shares were contained in and represented by five certificates signed as alleged, is only a conclusion of law.

3. The corporation is governed by the laws of the Dominion of Canada; and there is no averment showing in what manner its shares could be transferred to McAllister, or he could obtain a right to them against the consent of Kuhn.

4. The court erred in assessing the damage without submitting that question to a jury.

5. The court erred in refusing, on McAllister's motion, to open the judgment, set aside the default, and grant him leave to defend the action.

6. The Supreme Court of the Territory erred in affirming the judgment of the District Court.

Mr. Z. Snow for the plaintiff in error.

Mr. James H. Mandeville, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: McAllister v. Kuhn


text: Talk:McAllister v. Kuhn

title: Talk:McAllister v. Kuhn


text:
McAllister v. Kuhn/Opinion of the Court

Upon a writ of error to reverse a judgment by default, such defects in the declaration or complaint as could have been taken advantage of before judgment by general demurrer may be brought under review. If the judgment would have been arrested on motion, if made, because the declaration did not state facts sufficient to constitute a cause of action, it may be reversed for the same reason upon error.

In this case, the complainant alleges a wrongful conversion by McAllister to his own use of certain shares of the capital stock of a foreign corporation owned by Kuhn, which were represented by certificates of stock that had come into the possession of McAllister. There can be no doubt that shares of stock in a corporation may be transferred by means of an assignment and delivery of certificates. It is true that a certificate of stock is not the stock itself; but it is documentary evidence of title to stock, and may be used for the purposes of symbolical delivery, as the stock itself is incapable of actual delivery. A blank indorsement of a certificate may be filled up by writing an assignment and power of attorney over the signature indorsed, and in this way an actual transfer of the stock on the books of the corporation may be perfected. A wrongful use of such an indorsed certificate for such a purpose may operate as a conversion of the stock.

If the statements contained in the petition are true, and McAllister had actually converted the stock to his own use, Kuhn was entitled to his damages. By his default, whatever had been properly pleaded was confessed. Had issue been joined upon the averment of conversion, it would have been necessary to show the existence of facts which in law constituted a conversion; but, for the purposes of pleading, the ultimate fact to be proven need only be stated. The circumstances which tend to prove the ultimate fact can be used for the purposes of evidence, but they have no place in the pleadings. We think the complaint does state all the facts necessary to constitute a cause of action.

By the Code of Practice in Utah, the failure of McAllister to appear at the time of the assessment of damages was a waiver by him of an assessment by a jury.

This court has no power to re-examine the action of the territorial courts in refusing to set aside the judgment by default.

We find no error in the record.

Judgment affirmed.

title: McAllister v. Kuhn/Opinion of the Court


text: Talk:McAllister v. Kuhn/Opinion of the Court


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King v. Pardee

ERROR to the Circuit Court of the United States for the Western District of Pennsylvania.

The facts are fully stated in the opinion of the court.

Mr. George W. Biddle for the defendant in error.

No counsel appeared for the plaintiffs in error.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: King v. Pardee


text: Talk:King v. Pardee

title: Talk:King v. Pardee


text:
King v. Pardee/Opinion of the Court

This is an action of ejectment brought in the court below in June, 1871, by James Turnbull, Jr., a subject of Mexico, against Ario Pardee, a citizen of Pennsylvania, to recover one undivided eighth part of a tract of land in Hazel Township, Luzerne County, Pennsylvania, containing four hundred and thirty-nine and one-half acres, known as the Mary Kunkle tract. Turnbull having died pendente lite, King and other heirs-at-law were substituted in his stead. Edward Roberts and the executors of Algernon S. Roberts, deceased, were admitted to defend with Pardee as his landlord of the premises in question. Plea, general issue.

On the trial, evidence was given tending to show that Alexander Turnbull died seised of the premises in question on the tenth day of July, 1826, leaving a widow and four children his heirs-at-law; namely, James, Alexander, Jane, and Margaret, all of full age. The widow died in 1832. Alexander Turnbull, Jr., one of the heirs, died in Philadelphia, in 1835, leaving the plaintiff, his son and sole heir-at-law, then in the thirteenth year of his age. It thus appeared that the plaintiff, as heir-at-law of his father, was entitled to any interest in the lands in question of which his father may have died seised. He left Philadelphia for Mexico in 1850, in the twenty-eighth year of his age.

The defendants gave in evidence a judgment on bond and warrant, rendered in the Court of Common Pleas of Luzerne County on the twenty-second day of February, 1827, against James Turnbull and Alexander Turnbull, Jr. (two of the heirs of Alexander Turnbull), at the suit of William Drysdale, administrator of Alexander Turnbull, Sen., for the sum of $4,980: also, a ''fi. fa. and venditioni exponas'' issued on said judgment; a levy under said writs upon the premises in question; a return by the sheriff of a sale thereof for the sum of $25 on the fourth day of August, 1827; and a deed in pursuance of such sale, to John N. Conyngham, the attorney of the plaintiff in the judgment, bearing date the 14th of April, 1828: also, a deed from Conyngham to Drysdale, the administrator, and plaintiff in the judgment, for a like consideration, dated the 10th of July, 1828. Both of these deeds were recorded on the thirteenth day of January, 1832. The sheriff's deed purported to convey all the right, title, and interest of James Turnbull and Alexander Turnbull, Jr., in and to the premises in question; and the deed from Conyngham conveyed all his title and interest to Drysdale. The interest thus levied on and sold was, of course, one undivided half of the premises in dispute. The claim of the plaintiff is, that this purchase at sheriff's sale by the attorney of the administrator inured, in equity, to the benefit of the heirs or distributees of his grandfather, by way of a resulting trust, which would give him a right to one undivided eighth part of the property.

Jane Turnbull, one of the heirs-at-law of Alexander Turnbull, bull, Sen., was the wife of William Drysdale, the administrator aforesaid. Therefore, at this period, July, 1828, the legal title acquired by William Drysdale in the shares of James and Alexander, together with that of his wife and her sister Margaret, who was unmarried, made up the entire legal title to the premises in dispute.

The defendant then gave in evidence a warranty deed in feesimple for the whole premises from William Drysdale and his wife and Margaret Turnbull to the defendant Edward Roberts, and Algernon S. Roberts, now deceased, for the consideration of $46,500, which deed was recorded Nov. 23, 1846; and also extracts from the assessment-books of Hazel Township, Luzerne County, showing the assessment of the property to the Robertses from 1847 down to the commencement of the suit. Evidence was also given tending to show continued notorious and adverse possession of the property by the defendants from 1846 to the commencement of the suit, by opening and working coal-mines thereon, building coal-breakers, railroads, houses, and other structures, and cutting wood over the whole tract.

The question raised in this case was, whether the resulting trust which it is contended arose in favor of the heirs or distributees of Alexander Turnbull, Sen., upon the purchase made by Drysdale, his administrator, through his attorney, Conyngham, under the judgment and execution against James and Alexander Turnbull, was still valid and in force at the commencement of this action, or whether it was barred by efflux of time.

The associate justice who tried the cause charged the jury as follows:--

'1. That though William Drysdale acquired the legal title to the land in controversy by the deed of John N. Conyngham to him, dated July 16, 1828, and recorded Jan. 13, 1832, yet he held in trust for the estate of which he was administrator, or rather for the heirs of the estate (there being no creditors), and held one undivided eighth part thereof for Alexander Turnbull, Jr., or his assigns; that this was not an express trust; that it was not declared in the deed of Conyngham, or to Drysdale, but that it was a trust which the law implied, growing out of the relation of the parties. Drysdale, then, was the legal owner, while at the same time there was an equitable right in the heirs of the elder Turnbull to require him to convey the property to them, or, if he had sold it at an advance, to require him to account for the proceeds of his sale.'

'The right of Alexander Turnbull, Jr., and that of the plaintiff, who claims as his heir, is merely an equitable one. I will not, however, now instruct you that the plaintiff cannot recover in this ejectment solely for that reason, but I call your attention to the question, whether the equity which arose when the sheriff's sale was made to Conyngham, and subject to which Drysdale took the land, survived until this suit was brought. Such rights do not live for ever. If they are not asserted within a reasonable time, they die, and generally what is a reasonable time is determined in analogy to the Statute of Limitations. If it be an implied equitable right to land, ordinarily it cannot be enforced after twenty-one years.'

'It is true, if a party in whom such a right is vested has no knowledge of its existence, or means of knowledge, the law admits of longer delay in asserting the right.' Reference was then made to the evidence which the jury was directed to consider, with the instruction, that if they found 'the plaintiff's father, Alexander Turnbull, Jr., or the plaintiff, had knowledge in 1828, when the trust arose, or in 1832, when the deed to Drysdale was recorded, or at any time more than twenty-one years before 1871, when this suit was brought, or that they, or either of them, had means of knowledge that Drysdale, the administrator, had taken the title to himself, and therefore held it in trust, the claim was too stale, that any equity in the plaintiff's favor that may once have existed cannot now be enforced, and that the plaintiff cannot recover.'

2. The jury was further instructed, 'that, by the Act of Assembly of April 22, 1856, entitled, 'An Act for the greater certainty of title and more secure enjoyment of real estate,' it was enacted that no right of entry shall accrue or action be maintained to enforce any implied or resulting trust as to realty but within five years after such equity or trust accrued, with the right of entry, unless such trust shall have been acknowledged by writing to subsist by the party to be charged therewith within the said period; with a proviso, that, as to any one affected with a trust by reason of his fraud, the limitation shall begin to run only from the discovery thereof, or when by reasonable diligence the party defrauded might have discovered the same; and with a further proviso, that any person who would sooner be barred by the act should not be thereby barred for two years after its passage.' This act, the jury were instructed, embraced such a trust as the plaintiff is seeking to enforce in this action; and they were charged, that if they found Drysdale was guilty of no fraud in taking the deed to himself, as he did, or even if he became a trustee by reason of his fraud, if they found that his fraud was discovered by the party defrauded, or might have been discovered by reasonable diligence more than five years before 1871, the action could not be maintained, and the verdict should be for the defendants.

3. The jury were also instructed as follows:--

'The defendants also insist that they are protected by the general Statute of Limitations.'

'The evidence tends to show, that when Messrs. Roberts bought the land, in 1846, they put Pardee and Fell immediately in possession, as their tenants, and that these tenants have continued in possession ever since. You have heard the evidence; what it proves is for you. It is not contradicted that these tenants sunk coal-shafts and slopes on the land, built railroads, coal-breakers, numerous houses, a saw-mill, and cut timber over the whole tract. Was this an adverse, exclusive, notorious, hostile, and continued possession for twenty-one years before the suit was brought? If it was, the plaintiff cannot recover: he is barred by the Statute of Limitations.'

'It is true, no length of possession will protect a party against the entry or action of one in subordination to whom the possession has been held; and if the entry was in subordination to the title or right of another, the possession is presumed to be continued subordinate until notice of adverse claim is brought home to the holder of the paramount title. But I see no evidence that the defendants entered in subordination to any right of the plaintiff. When we speak of a subordinate title, we mean that the inferior title is in privity with another, as in case of a tenancy for years, life, at will, &c. There was no such entry in this case. The Messrs. Roberts put upon record, at the beginning, a deed declaring the entire interest to be in themselves; and there is no evidence that either they or their tenants, Pardee and Fell, ever acknowledged a superior right, or any right, in the plaintiff.'

'It is also true, that the possession of one tenant in common is generally regarded as the possession of his co-tenant until an ouster has taken place; and an ouster must be proved or presumed from facts in proof. It is argued on behalf of the plaintiff, that he was a tenant in common with the Messrs. Roberts in 1846, when they entered by their tenants. Certainly he was not of the legal estate; but if he was then a tenant in common with them, what is the legitimate effect of the evidence? It has been decided by the Supreme Court of this State, that, when one tenant in common enters on the whole and takes the profits, and claims the whole exclusively for twenty-one years, the jury ought to presume an ouster, though none be proved. 10 S. & R. 182; 9 Pa. St. 226; 13 S. & R. 356; 3 W. 77.'

'The jury are, therefore, instructed that if they find from the evidence that the defendants entered upon the property in 1846, by themselves or their tenants, claiming it as their own exclusively, receiving its profits, and that they have maintained notorious, adverse, exclusive, hostile, and uninterrupted possession of the entire tract ever since, the verdict should be for the defendants.'

4. The court also charged the jury that the plaintiff, claiming as he does as heir of his father, stands in no better situation than his father would stand in were he living and had this action been brought by him.

To each proposition of this charge in favor of the defendants the plaintiff excepted; and the question here is, whether it contained any error prejudicial to him. After giving due attention to the laws and judicial decisions of Pennsylvania, we are satisfied that the charge was as favorable to the plaintiff as could be asked. Each of its positions seems to be abundantly sustained by authority. A leading case on the first point is Strimpfler v. Roberts (18 Pa. St. 283), which adopts the general rule, that a resulting trust, resting in parol, is to be regarded as extinguished after the lapse of twenty-one years. This case has frequently been affirmed by subsequent cases cited in the defendants' brief. In Fox v. Lyon (33 id. 474), it is said: 'In Strimpfler v. Roberts, it was decided, on great consideration, and reaffirmed in Brock v. Savage (31 Id. 401), that where a warrant is issued to one person, and the purchase-money is paid by another, and the patent is afterwards taken out by the nominal warrantee, the right of him who paid the purchase-money is gone, unless he takes possession of the land, or brings ejectment to recover it, within twenty-one years from the date of the warrant; and after that lapse of time he cannot recover, no matter how clearly he may be able to prove that the legal owner was, in the beginning, a trustee for him.' And this decision was followed in the said case of Fox v. Lyon. It was also followed and reaffirmed in the subsequent cases of Halsey v. Tate (52 id. 311), and in Lingenfelter v. Richey (62 id. 123). In the latter case, it was claimed that a deed absolute on its face was nevertheless in trust. The court, following and relying on the cases of Strimpfler v. Roberts, and other cases to the same effect, with reference to the parties claiming the benefit of the said trust, said: 'As they claimed title to the land against the express language of the deed, they were bound to show, by clear and satisfactory evidence, that there was a resulting trust in favor of Sparks, and that he had taken such possession of the land, or exercised such exclusive acts of ownership over it, within twenty-one years from the time the trust arose, as would prevent its extinguishment.'

It is, therefore, an undoubted rule of law in Pennsylvania, that a resulting trust in land, if not sought to be enforced for a period of twenty-one years, and is not reaffirmed or continued, will, under ordinary circumstances, be extinguished. This rule is especially applicable where the party having the legal title has, during the required period of twenty-one years, been in notorious and adverse possession, paying the taxes and exercising all the usual rights of ownership, and his title has, for the whole period, been on record in the proper office. On this point, therefore, we think the charge was correct and unexceptionable.

We are also of opinion that the statute of 1856 and the general Statute of Limitations were applicable to the case upon the facts as submitted to the jury. As these points are fully explained in the charge itself, we deem it unnecessary to discuss them.

The fourth point needs no remark.

Judgment affirmed.

title: King v. Pardee/Opinion of the Court


text: Talk:King v. Pardee/Opinion of the Court


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Davidson v. New Orleans

ERROR to the Supreme Court of the State of Louisiana.

On the 7th of December, 1871, the petition of the city of New Orleans and the administrators thereof was filed in the Seventh District Court for the Parish of Orleans, setting forth an assessment on certain real estate, made under the statutes of Louisiana, for draining the swamp lands within the parishes of Carroll and Orleans; and asking that the assessment should be homologated by the judgment of the court. The estate of John Davidson was assessed for various parcels in different places for about $50,000. His widow and testamentary executrix appeared in that court and filed exceptions to the assessment; and the court refused the order of homologation, and set aside the entire assessment, with leave to the plaintiffs to present a new tableau.

On appeal from this decree, the Supreme Court of Louisiana reversed it, and ordered the dismissal of the oppositions, and decreed that the assessment-roll presented be approved and homologated, and that the approval and homologation so ordered should operate as a judgment against the property described in the assessment-roll, and also against the owner or owners thereof. Mrs. Davidson then sued out the writ of error by which this judgment is now brought here for review.

Mr. James D. Hill and Mr. John D. McPherson for the plaintiff in error.

The legislation of Lquisiana, under which the judgment below was rendered, deprives the plaintiff in error of her property without due process of law. The jurisdiction of this court is, therefore, established. Bank of Columbia v. Okely, 4 Wheat. 244; Loan Association v. Topeka, 20 Wall. 655; United States v. Cruikshank, 92 U.S. 542; Munn v. Illinois, 94 id. 113; People v. Hurlbut, 24 Mich. 44; Cooley, Taxation, 486, 487.

The legislature cannot impose upon the owner of lands a personal obligation to pay an assessment which is a charge upon them. Taylor v. Palmer, 31 Cal 240; Neenan v. Smith, 50 Mo. 525, followed in 56 id. 286, 350.

The legislature, by employing a private corporation to do the drainage of the city of New Orleans, on account of which the assessment was made, fixing the price and requiring that warrants therefor shall be issued and indorsed, compelled the city to make a contract. This was beyond the legislative power. Atkins v. Randolph, 31 Vt. 226; Hampshire v. Franklin, 16 Mass. 76; Taylor v. Porter, 4 Hill (N. Y.), 143; Brummer v. Litchfield, 2 Greenl. (Me.) 28; People v. Detroit, 28 Mich. 228; Sharpley v. Philadelphia, 21 Pa. 165; Washington Avenue Case, 69 id. 362; Sleight v. People, 7 Chic. Leg. News, 292; The People v. The Mayor, 57 Ill. 18; People v. Salomon, id. 38; People v. Chicago, id. 582; Madison County v. People, 58 id. 463; Hessler v. The Drainage Commissioners, 53 id. 105; Livingston v. Wider, id. 302.

The assessment was made before any work had been done. The only ground, however, on which special assessments are imposed is that the property assessed is benefited. Wright v. Boston, 9 Cush. 232, 241; Schinly v. Commonwealth, 30 Pa. 29, 57; Sharp v. Speir, 4 Hill, 82; Matter of Opening Streets, 20 La. Ann. 497; Reeves v. Treasurer Wood County, 8 Ohio St. 338.

In this case, no benefit whatever inured to the plaintiff in error, and the price was exorbitant.

Mr. Philip Phillips, contra.

The fifth amendment to the Constitution, which declares that no person shall be 'deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation,' is a limitation on the powers granted by that instrument to the Federal government, and not a restraint upon the States. Barron v. The Mayor and City Council of Baltimore, 7 Pet. 243; Withers v. Buckley et al., 20 How. 84; Twitchell v. The Commonwealth, 7 Wall. 321.

The fourteenth amendment, which operates on the legislation of the several States, in no wise affects their police power. Commonwealth v. Alger, 7 Cush. (Mass.) 84; Thorpe v. Rutland Railroad, 27 Vt. 149; Slaughter-House Cases, 16 Wall. 36; Cooley, Const. Lim. 509; Dillon, Corp., sect. 598.

The power here in question is of that character, and the mode of exercising it presents no matter which can be reexamined here.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Davidson v. New Orleans


text: Talk:Davidson v. New Orleans

title: Talk:Davidson v. New Orleans


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Davidson v. New Orleans/Opinion of the Court

The objections raised in the State courts to the assessment were numerous and varied, including constitutional objections to the statute under which the assessment was made, and alleged departures from the requirements of the statute itself. And although counsel for the plaintiff in error concede, in the first sentence of their brief, that the only Federal question is, whether the judgment is not in violation of that provision of the Constitution which declares that 'no State shall deprive any person of life, liberty, or property without due process of law, the argument seems to suppose that this court can correct any other error which may be found in the record.

1. It is said that the legislature had no right to organize a private corporation to do the work, and, by statute, to fix the price at which the work should be done.

2. That the price so fixed is exorbitant.

3. That there may be a surplus collected under the assessment beyond what is needed for the work, which must in that event go into the city treasury.

Can it be necessary to say, that if the work was one which the State had authority to do, and to pay for it by assessments on the property interested, that on such questions of method and detail as these the exercise of the power is not regulated or controlled by the Constitution of the United States?

Of a similar character is the objection much insisted on, that, under the statute, the assessment is actually made before, instead of after, the work is done. As a question of wisdom,-of judicious economy,-it would seem better in this, as in other works which require the expenditure of large sums of money, to secure the means of payment before becoming involved in the enterprise; and if this is not due process of law, it ought to be,

There are other objections urged by counsel which may be referred to hereafter, but we pause here to consider a moment the clause of the Constitution relied on by plaintiff in error. It is part of sect. 1 of the fourteenth amendment. The section consists of two sentences. The first defines citizenship of the States and of the United States. The next reads as follows:--

'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.'

The section was the subject of very full and mature consideration in Slaughter-House Cases, 16 Wall. 36. In those cases, an act of the Louisiana legislature, which had granted to a corporation created for the purpose the exclusive right to erect and maintain a building for the slaughter of live animals within the city, was assailed as being in conflict with this section. The right of the State to use a private corporation and confer upon it the necessary powers to carry into effect sanitary regulations was affirmed, and the decision is applicable to a similar objection in the case now before us. The argument of counsel and the opinion of the court in those cases were mainly directed to that part of the section which related to the privileges and immunities of citizens; and, as the court said in the opinion, the argument was not much pressed, that the statute deprived the butchers of their property without due process of law. The court held that the provision was inapplicable to the case.

The prohibition against depriving the citizen or subject of his life, liberty, or property without due process of law, is not new in the constitutional history of the English race. It is not new in the constitutional history of this country, and it was not new in the Constitution of the United States when it became a part of the fourteenth amendment, in the year 1866.

The equivalent of the phrase 'due process of law,' according to Lord Coke, is found in the words 'law of the land,' in the Great Charter, in connection with the writ of habeas corpus, the trial by jury, and other guarantees of the rights of the subject against the oppression of the crown. In the series of amendments to the Constitution of the United States, proposed and adopted immediately after the organization of the government, which were dictated by the jealousy of the States as further limitations upon the power of the Federal government, it is found in the fifth, in connection with other guarantees of personal rights of the same character. Among these are protection against prosecutions for crimes, unless sanctioned by a grand jury; against being twice tried for the same offence; against the accused being compelled, in a criminal case, to testify against himself; and against taking private property for public use without just compensation.

Most of these provisions, including the one under consideration, either in terms or in substance, have been embodied in the constitutions of the several States, and in one shape or another have been the subject of judicial construction.

It must be confessed, however, that the constitutional meaning or value of the phrase 'due process of law,' remains to-day without that satisfactory precision of definition which judicial decisions have given to nearly all the other guarantees of personal rights found in the constitutions of the several States and of the United States.

It is easy to see that when the great barons of England wrung from King John, at the point of the sword, the concession that neither their lives nor their property should be disposed of by the crown, except as provided by the law of the land, they meant by 'law of the land' the ancient and customary laws of the English people, or laws enacted by the Parliament of which those barons were a controlling element. It was not in their minds, therefore, to protect themselves against the enactment of laws by the Parliament of England. But when, in the year of grace 1866, there is placed in the Constitution of the United States a declaration that 'no State shall deprive any person of life, liberty, or property without due process of law,' can a State make any thing due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the States is of no avail, or has no application where the invasion of private rights is effected under the forms of State legislation. It seems to us that a statute which declares in terms, and without more, that the full and exclusive title of a described piece of land, which is now in A., shall be and is hereby vested in B., would, if effectual, deprive A. of his property without due process of law, within the meaning of the constitutional provision.

A most exhaustive judicial inquiry into the meaning of the words 'due process of law,' as found in the fifth amendment, resulted in the unanimous decision of this court, that they do not necessarily imply a regular proceeding in a court of justice, or after the manner of such courts. Murray's Lessee et al. v. Hoboken Land and Improvement Co., 18 How. 272. That was an action of ejectment, in which both parties asserted title under Samuel Swartwout: the plaintiff, by virtue of an execution, sale, and deed, made on a judgment obtained in the regular couise of judicial proceedings against him; and the defendant, by a seizure and sale by a marshal of the United States, under a distress-warrant issued by the solicitor of the treasury, under the act of Congress of May 20, 1820.

When an account against an officer who held public money had been adjusted by the proper auditing officer of the treasury, and the party who was found indebted neglected or refused to pay, that statute authorized the solicitor of the treasury to issue a distress-warrant to the marshal of the proper district, which, from the date of its levy and the record thereof in the District Court, should be a lien on the property on which it was levied for the amount due; and the marshal was required to collect the amount, by sale of said property, or that of the sureties on his official bond. It was argued that these proceedings deprived Swartwout of his property without due process of law. 'The objections,' says the court, 'raise the questions whether, under the Constitution of the United States, a collector of the customs, from whom a balance of account has been found to be due by accounting officers of the treasury, designated for that purpose by law, can be deprived of his liberty or property, in order to enforce payment of that balance, without the exercise of the judicial power of the United States, and yet by due process of law, within the meaning of those terms in the Constitution; and, if so, secondly, whether the warrant in question was such due process of law.'

The court held that the power exercised was executive, and not judicial; and that the issue of the writ, and the proceedings under it, were due process of law within the meaning of the Constitution. The history of the English mode of dealing with public debtors and enforcing its revenue laws is reviewed, with the result of showing that the rights of the crown, in these cases, had always been enforced by summary remedies, without the aid of the usual course of judicial proceedings, though the latter were resorted to in the Exchequer Court, when the officers of the government deemed it advisable. And it was held that such a course was due process of law within the meaning of that phrase as derived from our ancestors and found in our Constitution.

It is not a little remarkable, that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the Federal government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion. But while it has been a part of the Constitution, as a restraint upon the power of the States, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the fourteenth amendment. In fact, it would seem, from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded. If, therefore, it were possible to define what it is for a State to deprive a person of life, liberty, or property without due process of law, in terms which would cover every exercise of power thus forbidden to the State, and exclude those which are not, no more useful construction could be furnished by this or any other court to any part of the fundamental law.

But, apart from the imminent risk of a failure to give any definition which would be at once perspicuous, comprehensive, and satisfactory, there is wisdom, we think, in the ascertaining of the intent and application of such an important phrase in the Federal Constitution, by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded. This court is, after an experience of nearly a century, still engaged in defining the obligation of contracts, the regulation of commerce, and other powers conferred on the Federal government, or limitations imposed upon the States.

As contributing, to some extent, to this mode of determining what class of cases do not fall within its provision, we lay down the following proposition, as applicable to the case before us:--

That whenever by the laws of a State, or by State authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be for the whole State or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections.

It may violate some provision of the State Constitution against unequal taxation; but the Federal Constitution imposes no restraints on the States in that regard. If private property be taken for public uses without just compensation, it must be remembered that, when the fourteenth amendment was adopted, the provision on that subject, in immediate juxtaposition in the fifth amendment with the one we are construing, was left out, and this was taken. It may possibly violate some of those principles of general constitutional law, of which we could take jurisdiction if we were sitting in review of a Circuit Court of the United States, as we were in Loan Association v. Topeka (20 Wall. 655). But however this may be, or under whatever other clause of the Federal Constitution we may review the case, it is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has, by the laws of the State, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case. This was clearly stated by this court, speaking by the Chief Justice, in Kennard v. Morgan (92 U.S. 480), and in substance, repeated at the present term, in McMillan v. Anderson (95 id: 37).

This proposition covers the present case. Before the assessment could be collected, or become effectual, the statute required that the tableau of assessments should be filed in the proper District Court of the State; that personal service of notice, with reasonable time to object, should be served on all owners who were known and within reach of process, and due advertisement made as to those who were unknown, or could not be found. This was complied with; and the party complaining here appeared, and had a full and fair hearing in the court of the first instance, and afterwards in the Supreme Court. If this be not due process of law, then the words can have no definite meaning as used in the Constitution.

One or two errors assigned, and not mentioned in the earlier part of this opinion, deserve a word or two.

It is said that the plaintiff's property had previously been assessed for the same purpose, and the assessment paid. If this be meant to deny the right of the State to tax or assess property twice for the same purpose, we know of no provision in the Federal Constitution which forbids this, or which forbids unequal taxation by the States. If the act under which the former assessment was made is relied on as a contract against further assessments for the same purpose, we concur with the Supreme Court of Louisiana in being unable to discover such a contract.

It is also said that part of the property of plaintiff which was assessed is not benefited by the improvement. This is a matter of detail with which this court cannot interfere, if it were clearly so; but it is hard to fix a limit within these two parishes where property would not be benefited by the removal of the swamps and marshes which are within their bounds.

And lastly, and most strongly, it is urged that the court rendered a personal judgment against the owner for the amount of the tax, while it also made it a charge upon the land. It is urged with force,-and some highly respectable authorities are cited to support the proposition,-that while for such improvements as this a part, or even the whole, of a man's property connected with the improvement may be taken, no personal liability can be imposed on him in regard to it. If this were a proposition coming before us sitting in a State court, or, perhaps, in a circuit court of the United States, we might be called upon to decide it; but we are unable to see that any of the provisions of the Federal Constitution authorizes us to reverse the judgment of a State court on that question. It is not one which is involved in the phrase 'due process of law,' and none other is called to our attention in the present case.

As there is no error in the judgment of the Supreme Court of Louisiana, of which this court has cognizance, it is

Affirmed.


text: Talk:Davidson v. New Orleans/Opinion of the Court


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Arthur v. Morrison

ERROR to the Circuit Court of the United States for the Southern District of New York.

Morrison and others brought this suit to recover the sum exacted from them by Arthur, the collector of the port of New York, in excess of what they protested was the lawful duty upon certain imported veils.

The portion of the eighth section of the act of June 30, 1864, c. 171, 13 Stat. 210, applicable to the case, is as follows:

'That on and after the day and year aforesaid, in lieu of the duties heretofore imposed by law on the articles hereinafter mentioned, there shall be levied, collected, and paid, on the goods, wares, and merchandise enumerated and provided for in this section, imported from foreign countries, the following duties and rates of duties; that is to say,. . . on silk vestings, pongees, shawls, scarfs, mantillas, pelerines, handkerchiefs, veils, laces, shirts, drawers, bonnets, hats, caps, turbans, chemisettes, hose, mitts, aprons, stockings, gloves, suspenders, watch-chains, webbing, braids, fringes, galloons, tassels, cords, and trimmings,-sixty per cent ad valorem. On all manufactures of silk, or of which silk is the component material of chief value, not otherwise provided for, fifty per cent ad valorem.'

The collector pleaded that the moneys sued for were a part of the lawful duty of sixty per cent ad valorem for 'silk veils' imported by the plaintiffs. They replied, that the veils were not 'silk veils,' but a manufacture of silk, and were 'crape veils;' that at the time of the passage of the act of June 30, 1864, they were commercially known among importers and dealers, and were bought and sold, as 'crape veils,' and never otherwise, and were liable to a duty of fifty per cent ad valorem as a manufacture of silk. The defendant demurred to the replication. The demurrer was overruled, and judgment rendered for the plaintiffs. The defendant sued out this writ of error.

Mr. Assistant-Attorney-General Smith for the plaintiff in error.

Mr. Edward Hartley, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Arthur v. Morrison


text: Talk:Arthur v. Morrison

title: Talk:Arthur v. Morrison


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Arthur v. Morrison/Opinion of the Court

It was undisputed upon the pleadings that the veils in question were commercially known among importers and dealers, and were bought and sold, as 'crape veils,' and never otherwise.

The question of law thus presented is, whether veils, which are not commonly called 'silk veils,' but are veils manufactured of silk, and are known commercially as 'crape veils,' and not otherwise, are liable to a duty of sixty per cent.

The argument of the government is, that the statute in question is a comprehensive one, intended to include all articles made of silk, or of which silk is the component material of chief value, specifically enumerating in its first branch a variety of subjects on which should be imposed a duty of sixty per cent, and further providing, that on all manufactures from that material not otherwise provided for a duty of fifty per cent should be levied and collected. Silk veils, it is said, are specifically enumerated as being liable to a duty of sixty per cent, and the articles in question being veils of which the material is silk, are within the enumerating clause of the statute.

If this were all, the argument would be a strong one. But the fact that the veils in question are universally known and recognized among merchants and importers as crape veils, and not otherwise, and are never called or known as silk veils, is to be taken into the account. Although crape is shown to be a material of silk, to which a certain resinous substance has been applied, neither the merchant nor the ordinary buyer understands them to be identical. Neither the merchant who should order a case of crapes and receive one of silk goods, or who should order silk and receive crape, nor the individual purchaser who should order a dress of silk and receive one of crape, or should order crape for mourning and receive silk, would deem that the order had been properly filed. The general understanding concurs in this respect with that of the trader and importer, and must determine the construction to be given to the language of the statute. Especially should this view prevail as to laws made for the government of the importer. His business is regulated by them; and it is but reasonable that, like the language of marine policies and the terms of the law-merchant, supposed to be especially applicable to this class, these laws should be construed as universally understood by the importer and trader. Obsolete words, or those whose meaning is differently understood by the writer and the reader, produce disorder and confusion. Importations from foreign countries are necessarily made with reference to the duties to be paid upon their entry into the ports of this country. If these are not reasonably uniform, and cannot be ascertained, the transaction of business will be impossible. No man can determine whether his venture will enrich him, or make him a bankrupt. In Lattimer v. Smythe, it is said, 'Where general terms are used, the terms are to be taken in their ordinary and comprehensive meaning, unless it is shown that they have, in their commercial use, acquired a special and restricted meaning.' 17 Int. Rev. Rec. 12. In that case, and in Jaffray v. Murphy (19 id. 143), which is to the same effect, the question arose under the silk section of the act of 1864.

In the present case, it is admitted by the demurrer that the goods in question are never understood by merchants and importers to be silk veils. They cannot, therefore, be said to fall within the enumerating clause of the statute, but come under the head of such as are not otherwise provided for, and are subject to the duty of fifty per cent only. Homer v. The Collector, 1 Wall. 486; Reiche v. Smythe, 13 id. 162; Movius v. Arthur, 95 U.S. 144; United States v. Two Hundred Chests of Tea, 9 Wheat. 430; Elliott v. Swartwout, 10 Pet. 137; Curtis v. Martin et al., 3 How. 106; Maillard v. Lawrence, 16 id. 251.

In the last case, Mr. Justice Daniel says: 'The popular or received import of words furnishes the general rule for the interpretation of public laws, as well as of private and social transactions; and when the legislature adopts such language to define and promulgate their action, the just conclusion must be, that they not only themselves comprehended the meaning of the language they have selected, but have chosen it with reference to the known apprehension of those to whom it is delivered, and for whom it is designed to constitute a rule of conduct,-namely, the community at large.'

In Curtis v. Martin et al. (supra), Chief Justice Taney says: 'The question brought up by this exception cannot now be considered an open one. In the case of United States v. Two Hundred Chests of Tea (9 Wheat. 430), the court decided, that in imposing duties Congress must be understood as describing the articles upon which the duty is imposed, according to the commercial understanding of the terms used in the law, in our own markets. This doctrine was reaffirmed in the case of the United States v. One Hundred and Twelve Casks of Sugar (8 Pet. 277), and again in 10 Pet. 151, in the case of Elliott v. Swartwout. It follows that the duty upon cotton bagging must be considered as imposed upon those articles only which are known and understood as such in commerce in the year 1832, when the law was passed imposing the duty.'

That Congress intended duties under the act of 1864 to be imposed according to their commercial designation, and that it understood this to be the rule of construing statutes, is also manifest from the first section of the act of Feb. 8, 1875 (18 Stat. 307), upon the subject we are considering.

A duty of sixty per cent is there imposed 'on all goods, wares, and merchandise, not herein otherwise provided for, made of silk, or of which silk is the component material of chief value, irrespective of the classification thereof for duty by or under previous laws, or of their commercial designation.' It was, no doubt, within the power of Congress to abolish a well-known rule of construction, as it did in the act of 1875; but, until so abolished, it remained in force.

The case was well decided. The judgment must be affirmed; and it is

So ordered.

title: Arthur v. Morrison/Opinion of the Court


text: Talk:Arthur v. Morrison/Opinion of the Court


text:
Arthur v. Lahey

ERROR to the Circuit Court of the United States for the Southern District of New York.

In the years 1872 and 1873, Lahey & Co. imported from France certain articles of silk manufacture, on which Arthur, the collector of the port of New York, imposed and collected a duty of sixty per cent, under the eighth section of the act of June 30, 1864. 13 Stat. 210. Among the articles so imported was a quantity of laces which the importers insisted were commercially known as 'thread laces,' and liable to a duty of only thirty per cent ad valorem, under the nineteenth section of the act of March 2, 1861 (12 id. 190), as amended by the sixth section of the act of July 14, 1862 (id. 550). Having paid, under protest, the duty exacted, the importers brought this action for the excess beyond thirty per cent. The judge at the trial submitted to the jury the question, whether the articles were commercially known as 'thread laces;' and the jury having found that they were, there was a verdict for the plaintiffs. Judgment was rendered thereon, and the collector sued out a writ of error.

Mr. Assistant-Attorney-General Smith, for the plaintiff in error.

Mr. Edwards Pierrepont and Mr. William Stanley, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Arthur v. Lahey


text: Talk:Arthur v. Lahey

title: Talk:Arthur v. Lahey


text:
Arthur v. Lahey/Opinion of the Court

Referring to the case of Arthur v. Morrison (supra, p. 108) for a fuller explanation of the views of the court, we assume, at this point, as established, the following propositions. A citation and examination of some of the authorities are given hereafter.

1. The commercial designation of an article among traders and importers, where such designation is clearly established, fixes its character for the purpose of the tariff laws.

2. When Congress has designated an article by a specific name, and by such name imposed a duty upon it, general terms in a subsequent act, or in a later part of the same act, although sufficiently broad to comprehend such article, are not applicable to it. Homer v. The Collector, 1 Wall. 486; Reiche v. Smythe, 13 id. 162; Smythe v. Fiske, 23 id. 374; Movius v. Arthur, 95 U.S. 144.

The section of the act is fully set forth in the preceding case.

The government now contends that this section of the tariff act of June, 1864, was intended to embrace every article made of silk; that the concluding clause, laying a duty of fifty per cent upon all manufactures of silk not otherwise provided for, means not otherwise provided for in this section; and that every article of which silk was the component of chief value was intended to be covered by the section. Hence it is argued that recourse cannot be had to preceding statutes to determine the duty payable upon lace made of silk, however it might be commercially designated.

Under the authorities to which we have referred, this view cannot be maintained. A specific designation eo nomine must prevail over general words, and a commercial designation is the standard by which the dutiable character of the article is fixed.

It was proved by the witnesses, and found by the jury, that, although made of silk, the laces in question were commercially known as thread laces. Whether an article is thread lace, it was shown, depended upon the mode of its manufacture,-as upon a cushion, from thread wound on bobbins moved by hand; and that it was equally thread lace whether made of cotton or silk, and whether white or black; and that there are also articles commercially known as silk laces, and articles commercially known as cotton laces; and that thread lace made of linen had been practically unknown for many years.

These distinctions are also well known and recognized in the tariff laws of the country, of which the following is an illustration. In the years mentioned, acts were passed in which the articles were named as here stated, with the different duties upon each.

JULY 30, 1846.

Cotton laces 25 per cent.

Thread laces 20 per cent.

9 Stat. 46, 47.

MARCH 3, 1857.

Cotton laces 19 per cent.

Thread laces 15 per cent.

11 id. 192.

MARCH 2, 1861.

Silk laces 30 per cent.

Cotton laces 20 per cent.

Thread laces 20 per cent.

Cotton lace, colored 30 per cent.

12 id. 186, 189, 190, 191.

AUG. 5, 1861.

Silk laces 40 per cent.

id. 293.

Thread laces 30 per cent.

Cotton laces 20 per cent.

Id. 550, 556, sects. 6, 13.

JUNE 30, 1864.

Silk lace 30 per cent.

Cotton lace 35 per cent.

13 id. 209, 210.

REV. STAT.

Cotton lace, colored 35 per cent.

Cotton lace 35 per cent.

Thread lace 30 per cent.

Silk laces 60 per cent.

Rev. Stat., pp. 464, 466, 472.

FEB. 8, 1875.

18 Stat. 307.

Congress here plainly recognizes the distinction made by the importers and traders, and establishes one rate of duty for silk laces and another for thread laces. The distinctions have run through the acts of Congress for more than thirty years; and we do not see how the judge at the trial could have adopted any other rule than the one complained of, to leave it to the jury whether the article was thread lace, a known commercial article, liable to duty as such, eo nomine.

The same reasoning will settle the question as to the application of the fifty per cent duty under the residuary clause of the act of 1864.

The case of Smythe v. Fiske (supra) is relied upon by the appellant. That case was not intended to overrule Homer v. The Collector or Reiche v. Smythe (supra), or the cases referred to in those authorities, nor was Movius v. Arthur (supra) understood to be in conflict with it. Smythe v. Fiske simply decided that silk ties, not being specifically enumerated in any of the acts, either of 1864 or of preceding years, the rate fixed by the act of 1864 was the correct rate for their assessment. To this we now hold.

It is not necessary to the correctness of that decision to hold that the act of 1864 forbids a reference to any previous acts to determine the duty upon articles mentioned in such acts eo nomine, and not specifically named in the act of 1864.

That such reference is proper was held in Homer v. The Collector, supra. The tariff act of 1840 had imposed a duty of forty per cent upon the articles enumerated in the schedule referred to, among which were 'almonds,' by name. By the first section of the tariff act of 1857, these duties were reduced to thirty per cent. The second section made 'fruits, green, ripe, or dried,' liable to a duty of eight per cent only. In holding that almonds were liable to the duty of thirty per cent, and were not embraced in the general terms of the second section, Mr. Justice Nelson says: 'The argument is, that almonds are dried fruit, and hence are provided for in the second section of the act of 1857; and evidence was offered to show that such was the commercial sense of the term. But this inquiry had nothing to do with it,. . . for certainly such proof could not exister or be found, in the sense of commercial usage, under any of the tariff acts, as duty had been imposed on almonds eo nomine almost immemorially, at least since the duty act of 1804, and continued in the duty acts of 1816, 1832, 1842, 1846. . . . Full effect can be given to the term 'fruit' 'dried,' without the very forced construction to bring within it the article in question.' The effect of both the acts was thus continued in force.

The same principle of reference to the former statute was sustained in Reiche v. Smythe, supra. The case was this: The twenty-third section of the act of March 2, 1861, provided that 'animals living, of all kinds; birds, singing and others; land and water fowls,'-shall be exempt from duty.

The act of May, 1866, provided that a duty of twenty per cent ad valorem should be imposed 'on all horses, mules, cattle, sheep, hogs, and other live animals.' After the passage of this act, and by virtue of it, the collector exacted the duty of twenty per cent upon a lot of canary birds, which was paid under protest, and the question was as to its legality.

In delivering the opinion of the court, Mr. Justice Davis said: The act of 1866 is comprehensive enough to include birds; and if there had been no previous legislation, there would be justification for the position that Congress did not intend to narrow the meaning of the words. The act of 1861, he says, intended birds to be admitted free of duty, and the acts of 1866 must be limited to animals ejusdem generis with cattle, sheep, and horses. The two acts, he says, are in pari materia, both remaining in force,-that of 1861 admitting birds free of duty, and that of 1866 imposing the duty on horses and like animals, notwithstanding the general terms of the latter. The birds were, therefore, held to be exempt from duty.

In Movius v. Arthur (supra), the same principle of construing both acts in pari materia, to remain of force, prevailed. The act of 1861 (12 Stat. 192) imposed a duty of thirty per cent on 'japanned leather' eo nomine. By the act of 1862 (12 id. 556), an additional duty of five per cent was imposed upon the same article by name. The act of 1872 (17 id. 230) enacted that, in lieu of existing duties, there should be imposed on 'skins dressed and finished' ninety per cent only of the duties by law imposed, 'it being the intent of this section to reduce the duties ten per cent on all leather not herein otherwise provided for.' Although this act contained the words, 'not herein otherwise provided for,'-that is, not provided for in this act or this section,-it was held that the two statutes must be construed as both to be in force, and that 'japanned leather,' being eo nomine described in the former act, was not taken out of it by the general words of the later act, and that the larger duties of the acts of 1861 and 1862 were legally chargeable.

It will be observed, that, in two other sections, besides the eighth, of the act of 1864, manufactures of silk are referred to, indicating that the entire subject was not intended to be disposed of in that section. Thus, in sect. 5, p. 208, a duty of ten per cent is imposed on 'lastings of mohair, silk, twist,' &c. Again, in the same section, p. 207, a duty of fifty per cent ad valorem is imposed 'on flannels composed in part of silk.' See Stewart v. Maxwell (16 How. 150, 160) and Penington v. Core (2 Cranch, 33), on the point that the revenue acts are one system, and are to be read together.

By the twenty-second section of the act of 1864, it is enacted, 'that all acts and parts of acts repugnant to the provisions of this act be, and the same are hereby, repealed;. . . and provided further, that the duties upon all goods, wares, and merchandise imported from foreign countries, not provided for in this act, shall be and remain as they were, according to existing laws prior to the 29th of April, 1864.' 13 Stat. 216.

This may well be construed to retain duties on articles specifically enumerated in former acts, different from those imposed by the act of 1864, but not specifically named therein, and although the same class of subjects may be referred to in the act of 1864.

The judgment must be affirmed, upon the grounds following:

1. The commercial designation of an article among traders and importers, when clearly established, fixes its character for the purpose of the tariff laws.

2. When Congress has designated an article by its specific name, and imposed a duty upon it by such name, general terms in a subsequent act, or in a later part of the same act, although sufficiently broad to comprehend such article, are not applicable to it.

3. That the expression, 'not otherwise provided for,' in the eighth section of the act of 1864, does not deprive these rules of their ordinary application.

Judgment affirmed.

title: Arthur v. Lahey/Opinion of the Court


text: Talk:Arthur v. Lahey/Opinion of the Court


text:
Arthur v. Unkart

ERROR to the Circuit Court of the United States for the Southern District of New York.

In May, 1873, Unkart & Co. imported into New York certain merchandise, upon which the plaintiff in error, the collector of the port, assessed and collected a duty of sixty per cent, under the eighth section of the act of June 30, 1864 (13 Stat. 210), which imposed a duty of sixty per cent on various articles of clothing made of silk; naming hats, gloves, &c. The concluding clause of the section is as follows: 'On all manufactures of silk, or of which silk is the component of chief value, not otherwise provided for, fifty per cent ad valorem.'

Against the imposition of that rate of duty the importers protested in due form, upon the ground that such merchandise, being gloves and similar articles made on frames, not otherwise provided for, is only liable to duty under the twenty-second section of the act of March 2, 1861, and the thirteenth section of the act of July 14, 1862, at the rate of thirty-five per cent ad valorem, less ten per cent; under the second section of the act of June 6, 1872, as a manufacture of cotton, or of which cotton is the component part of chief value.

Upon the trial of this action, which was to recover the excess so paid, it was conceded that the articles in question were gloves; that they were commercially known as 'silk-plaited gloves,' or 'patent gloves;' that they were manufactured in part of silk and in part of cotton, and were made on frames.

The court charged the jury, that, while the burden of proof was upon the plaintiffs to show that they had fulfilled all the formal, ordinary prerequisites to bringing their action, it was upon the defendant to justify his exaction of the duty imposed, so that it was for them to be satisfied that the evidence fairly preponderated in favor of the defendant, that the materials which were the component of chief value in the gloves in question were silk; otherwise, the plaintiffs were entitled to a verdict, there being no question on the evidence but that the prerequisites in regard to which the burden rested upon the plaintiffs had been complied with. The jury found that cotton was the chief component of value in the gloves, and that the value of the silk therein was less than that of the cotton, and gave their verdict for the plaintiffs.

Mr. Assistant-Attorney-General Smith for the plaintiff in error.

Mr. Stephen G. Clarke, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Arthur v. Unkart


text: Talk:Arthur v. Unkart

title: Talk:Arthur v. Unkart


text:
Arthur v. Unkart/Opinion of the Court

The twenty-second section of the act of March 2, 1861 (12 Stat. 191), provided a duty of thirty per cent on many articles, and, among them, 'caps, gloves, leggins, mits, socks, stockings, wove shirts and drawers, and all similar articles made on frames, of whatever material composed, worn by men, women, or children, and not otherwise provided for.'

The thirteenth section of the act of July 14, 1862 (id. 556), increases this duty by the same descriptive terms, five per cent ad valorem.

By the act of June 6, 1872 (17 id. 230), the duties upon manufactures of cotton, having cotton as the component of chief value, were reduced ten per cent.

The articles in question did not come within the general terms of the eighth section of the act of 1864, for these reasons: 1st, They were not silk gloves, by reason of their component materials being composed of silk and cotton, the latter material preponderating; 2d, they were commercially known as 'plaited gloves,' or 'patent gloves,' and not as silk gloves.

They did not fall within the concluding clause, because silk was not the component of chief value. The facts here stated are founded upon the concessions of the parties at the trial and upon the verdict of the jury.

Not being included in the act of 1864, the articles are dutiable under the acts of 1861 and 1862, where they are enumerated as gloves made on frames, and by the act of 1862, which adds five per cent to the duty of 1861.

The suggestion is made that the articles may be taxed under the similitude clause of the act of Aug. 30, 1842. 5 Stat. 565; Rev. Stat., sect. 2499. This provision, by its terms, applies to non-enumerated articles only (Stuart v. Maxwell, 16 How. 150); and no such claim was made on the trial that it applied to this case. Among the ten carefully prepared points presenting the views of the government, there is no reference made to the similitude act of 1842. Neither the collector in imposing the tax, nor the counsel at the trial, professed to act under or to demand any advantage from the act of 1842. The right of the government was placed exclusively upon the act of 1864. Upon the point of the rate of duties to which the goods were liable, we are of the opinion that the importers were right, and were entitled to a return of the excess paid by them.

There is, however, a further question in the case. The counsel for the defendant requested the court to charge, that, in this action to recover for an alleged illegal exaction of duties, it devolved upon the plaintiff to make out his case, by showing the illegality complained of; that the burden of proof was on the plaintiff to satisfy the jury, by a fair preponderance of evidence, as to the character of the materials of the gloves. The court refused this request, but charged the jury 'that the burden of proof is upon the defendant to justify his exaction of the duty imposed, so that it is for you to be satisfied that the evidence fairly preponderates in favor of the defendant, that the materials which are the component of chief value are silk, otherwise the plaintiffs are entitled to a verdict.'

It is not doubted that it was the duty of the collector, in the first instance, to decide whether the articles imported were dutiable, and at what rate. The statute makes it his duty. Neither can it be doubted that unless protest is made within ten days, and unless an appeal is taken to the Secretary of the Treasury within thirty days after such decision, the decision of the collector on these points is final and conclusive. The statute expressly declares that it shall be so. The decision of the Secretary upon such appeal is also declared by the statute to be final and conclusive, unless a suit be brought to recover any alleged excess of duties within ninety days after such decision, or within ninety days after the payment of duties, if payment be made after such decision. No suit can be maintained until the decision of the Secretary has been had as to any transaction at a point east of the Rocky Mountains, unless his decision has been delayed for more than ninety days. 13 Stat. 214, sect. 14; Rev. Stat., sect. 2931. Express authority to maintain the action is given by the statute of 1845 and the Revised Statutes. 5 Stat. 727; Rev. Stat., sect. 3011.

When an appeal is taken from his decision, the decision of the collector ceases to be conclusive; and the same is true of the decision of the Secretary of the Treasury. These officers are, however, selected by law for the express purpose of deciding these questions: they are appointed and required to pronounce a judgment in each case; and the conduct, management, and operation of the revenue system seem to require that their decisions should carry with them the presumption of correctness. This rule is not only wise and prudent, but is in accordance with the general principle of law, that an officer acting in the discharge of his duty, upon the subject over which jurisdiction is given to him, is presumed to have acted rightly.

The case may be likened to that of a sheriff who levies upon the property of a debtor, who claims that a portion of it is exempt from seizure upon execution. It is not sufficient that the debtor shall claim the exemption, but he must, be proof of registry when necessary, or that the articles seized are those named in the statute, or are required to make up the amount of the exemption, or in some other mode, prove that articles were exempt, and that thus the seizure was illegal. Both the sheriff and collector have power to act in the first instance upon the question in dispute, and he who insists that such action is in violation of law must make the proof to show it. Griffin v. Lathulu, 14 Barb. (N. Y.) 456; Tuttle v. Buch, 41 id. 417; Van Sickler v. Jacobs, 14 Johns. (N. Y.) 434.

The importers here bring their suit, alleging in their complaint not merely that there was an exaction of duties, but that such exaction was excessive and illegal. The burden of proof is upon the party holding the affirmative of the issue. Johns v. Plowman, 49 Barb. 472. Mr. Roscoe says: 'When the issue involves the charge of culpable omission, it is incumbent on the party making the charge to prove it, although he must prove a negative, for the other party shall be presumed to be innocent until proved to be guilty.' Roscoe, Evid. 52, cited 15 Pick. 317, where the issue was upon the materiality of a fact not communicated to the underwriter.

In Bank of the United States v. Davis (2 Hill (N. Y.), 451), where the question was whether a discount had been made in bills procured from the old Bank of the United States, the court say, that the party alleging the illegality of a contract has the burden of proof, there being nothing illegal upon its face. To the same purport see Cuyler v. Sanford, 8 Barb. (N. Y.) 225.

So, on an application to vacate an assessment for a local improvement on the ground of fraud, the burden of proof is on the applicant. Matter of Petition of Sarah Bassford et al., 50 N. Y. 509.

In an action against public officers for a non-feasance, the burden of proof is on the plaintiff. Mintlan v. Rochfeller, 6 Conn. 276.

Mr. Greenleaf (Greenl. Evid., sect. 80) thus lays down the rule: 'So where the negative allegation involves a criminal neglect of duty, official or otherwise, or fraud, or the wrongful violation of actual lawful possession of property, the party making the allegation must prove it; for in these cases the presumption of law, which is always in favor of innocence and quiet possession, is in favor of the party charged;' and many instances are cited.

Again, it is to be observed that in the case of the articles in question, as with most other importations, they were admitted to be liable to some duty. Simply holding the goods for duty was not, therefore, of itself an illegality. It was only when they were held for more duty than the law justified that it became duress and illegal; and, to entitle himself to recover for the illegality, the plaintiff must show such excessive charge. If the collector had no authority in the premises, and could hold the goods for no amount whatever, a different question would arise. But here the very issue was as to amount, and the proof, therefore, of illegal amount rested upon the plaintiff.

The case of Wilkinson v. Greeley (1 Curt. 63) is cited to sustain the ruling we are considering. It is true that the circuit judge, on the trial of that case, charged that the burden of proof was on the collector to show that the articles were not truly described in the invoice, and were, therefore, subject to the higher duty, and that, on the motion for a rehearing before Mr. Justice Curtis, he assumed that to be the law. It does not, however, appear that the point was made and argued by counsel, or that it received from the learned judge that consideration which would entitle it to be held as an authority. The ruling has never been followed in the circuit where made, so far as we can learn, and during the last fifteen years we have the authority of Mr. Justice Clifford for saying that the law has always been held in that circuit to be otherwise.

For this error the judgment must be reversed and a venire de novo awarded; and it is

So ordered.

title: Arthur v. Unkart/Opinion of the Court


text: Talk:Arthur v. Unkart/Opinion of the Court