text:
Smoot's Case/Opinion of the Court

Mr. Smoot claims of the United States a large sum of money for the profits which he might have made out of two contracts with Quartermaster Eakin, for delivering cavalry horses for the use of the army-two thousand five hundred at St. Louis and two thousand at Chicago. It is neither alleged nor proved that he ever tendered a horse at either place, or attempted otherwise to perform his contract, or that he was ready to do so, or that he owned any horses, or had expended a dollar in preparing to fulfil his contract. The proposition on which the claimant rests his right to these speculative profits is not on account of anything he had done, or offered to do towards performance, or any actual loss suffered, but that after the contract was made, the cavalry bureau of the War Department adopted and published rules governing the inspection of horses purchased for that service, differing from those in use at the time the contract was made. It is not asserted that these rules required a higher or more difficult standard of quality in the horses, but that the mode in which that standard was to be ascertained was so changed as to impose a greater hardship, or burden, upon the contractor. Nor is it claimed that these new regulations were adopted with special reference to their application to Smoot's contracts. They were a new regulation of the business of inspection of a general character. The contracts sued on, which are identical, except in the number of horses and the place of delivery, provided for an inspection. But it is argued that the new regulations were not only a departure from those in use when the contracts were made, and imposed an additional burden on the contractor, but that conceding the right of the bureau to make proper and reasonable regulations for inspection, these were unreasonable and improper. The two points of difference in the new and the old mode of inspection most earnestly pressed in the argument are:

1. That by the new regulations the horses offered must remain at the expense of the contractor twenty-four hours in the inspection yard, into which no other person than the inspector and his assistants shall be permitted to enter until the inspection is completed.

2. That all horses presented for inspection that are manifestly an attempt at fraud on the government, because of incurable disease, or any purposely concealed defect whatever, shall be branded on the left shoulder with the letter R.

The argument founded on these rules is presented under two propositions:

1. That the adoption of them by the cavalry bureau rendered it impossible for the contractor to perform his contract, because no owner of horses would sell to him subject to have them branded as a fraud by inspectors of whom he knew nothing, and who might be incompetent or oppressive.

2. That the application of these rules to horses tendered under claimant's contract absolved him from the obligation of performance, or tender, or offer to perform, and left him at full liberty to sue for the profits which he had done nothing to earn beyond making the contract.

There is in a large class of cases coming before us from the Court of Claims a constant and ever recurring attempt to apply to contracts made by the government, and to give to its action under such contracts, a construction and an effect quite different from those which courts of justice are accustomed to apply to contracts between individuals. There arises in the mind of parties and counsel interested for the individual against the United States a sense of the power and resources of this great government, prompting appeals to its magnanimity and generosity, to abstract ideas of equity, coloring even the closest legal argument. These are addressed in vain to this court. Their proper theatre is the halls of Congress, for that branch of the government has limited the jurisdiction of the Court of Claims to cases arising out of contracts express or implied-contracts to which the United States is a party in the same sense in which an individual might be, and to which the ordinary principles of contracts must and should apply.

It would be very dangerous, indeed, to the best interests of the government-it would probably lead to the speedy abolition of the Court of Claims itself-if, adopting the views so eloquently urged by counsel, that court, or this, should depart from the plain rule laid down above, and render decrees on the crude notions of the judges of what is or would be morally right between the government and the individual.

In illustration of this course of observation the proposition that the regulation concerning branding the horses fraudulently presented for inspection made it impossible for the contractor to perform his contract, may be well cited.

As between individuals, the impossibility which releases a man from the obligation to perform his contract must be a real impossibility, and not a mere inconvenience. And while such an impossibility may release the party from liability to suit for non-performance, it does not stand for performance so as to enable the party to sue and recover as if he had performed.

The argument on this branch of the subject in the case before us loses sight of these principles.

There was no impossibility. It is a mere inconvenience. If the contractor has the money and purchases his horses before he offers them for inspection, there is presented no obstruction whatever, by the rules of inspection, in obtaining the required number of horses. It is only because he desires to transfer the risk and loss of rejection from himself to the parties of whom he purchases, that he has difficulty. The government made no agreement with him to protect him in this way. His ability to buy horses that would pass inspection was a part of the responsibility that he assumed, and which it was by no means impossible to perform, if he had the money and was ready to pay when he bought the horses of their original owners. Certainly no such circumstance as this would be set up for a moment in an ordinary suit between individuals as an impossibility, which released the party from his contract.

But suppose the contract had been between private parties, and an epidemic had prostrated every horse in the country with disease for the forty days allowed to buy and deliver sound horses by this contract. Will any one assert that this would authorize the contractor to sue for the profits he could have made, if no epidemic had occurred, though he neither then nor afterwards bought, or delivered, or tendered a horse? While such a public misfortune might possibly (we do not say it would) have been a defence to a suit against him for non-performance, it could be the foundation of no claim on his part to recover as if he had performed.

Perhaps no class of contracts has been more frequently the subject of judicial consideration than those for the future delivery of personal chattels. Such a contract is this. A contract in which the delivery is a condition precedent to payment; for the provision is that the delivery is to be at Chicago and St. Louis, and the payment made afterwards at Washington; and the time of payment is expressly made dependent upon appropriations made or to be made by Congress.

In approaching the inquiry into the effect which the action of the bureau of cavalry, in adopting these new rules for inspection, had upon the rights of the parties to this contract, let us endeavor to free ourselves from the consideration that the government was one party to the contract, and that it was for a large number of horses; for we hold it to be clear that the principles which must govern the inquiry are the same as if the contract were between individuals, and the number of horses one or a dozen instead of four thousand. The increased difficulty arising from the number to be delivered in a given time was voluntarily assumed by the contractor, and he had the right, during the forty or fifty days allowed him, to deliver any number, smaller or greater, at one time.

We are also to remember that the question to be considered is not whether the action of the cavalry bureau would have been a defence if the claimant had been sued for a failure to perform his part of the contract, but whether it was sufficient to authorize him to abandon the contract himself, and as a plaintiff recover against the other party the profits which he would have made if it had been fully performed.

With these views before us the regulations adopted can only have the effect claimed upon one or two grounds; namely, as a notification by the government that it refused to receive the horses according to the terms of the contract, by which refusal the other party was released from his obligation to tender; or that the government had disabled itself from complying, and therefore the other party was not bound to tender. The most recent work, and a very able one, on 'The law of sales of personal property,' lays down the rule on this subject as follows: 'A mere assertion that the party will be unable, or will refuse to perform his contract, is not sufficient; it must be a distinct and unequivocal absolute refusal to perform the promise, and must be treated and acted upon as such by the party to whom the promise was made; for if he afterwards continue to urge or demand a compliance with the contract, it is plain that he does not understand it to be at an end.' The English cases cited abundantly sustain the proposition. Avery v. Bowden, in the Court of Exchequer, affirmed in the Exchequer Chamber, is very much in point. It was an action arising out of a charter-party, one of the covenants in which was that the vessel should be at Odessa, and lay there forty running days, within which time the shipper was to furnish her cargo, unless war should be sooner declared between Russia and Great Britain. The vessel came to Odessa on the 11th March, and sailed away in ballast on the 17th April. It was proved that at four different times during this period the officers of the ship applied to the agent of the charterer for cargo, who said, 'We have none for you,' and at last said, 'I have no cargo for you; you had better go away.'

On this testimony a verdict was taken for the plaintiff, the ship-owner, subject to the judgment of the court on the law of the case. The judges, both in the Exchequer Court and in the Exchequer Chamber, were unanimous in the opinion that this conduct of the agent did not relieve the plaintiff from the obligation to remain the forty days, and that on that count he could not recover.

In the case of Phillpotts v. Evans, the defendant, who had agreed to receive and pay for wheat, notified the plaintiff, before the time of delivery, that he would not receive it. The plaintiff tendered the wheat at the proper time, and the only question raised was, whether the measure of damages should be governed by the price of wheat at the time of the notice or at the time of the tender. Baron Park said: 'I think no action would have lain for the breach of the contract at the time of the notice, but that plaintiff was bound to wait until the time of delivery to see whether the defendant would then receive it. The defendant might have chosen to taken it and would have been guilty of no breach of contract. Him contract was not broken by his previous declaration that he would not accept.'

And though some of the judges in the subsequent case of Hochsteer v. De La Tour disapprove very properly of the extreme ground taken by Baron Park, they all agree that the refusal to accept, on the part of the defendant, in such case, must be absolute and unequivocal, and must have been acted on by the plaintiff.

In the case before us there was no such refusal. The officers of the government required of the plaintiff at all times the delivery of the horses of the kind and quality which he had agreed to deliver. And so far from refusing to accept, or intending to release the plaintiff from his obligation to deliver, it is found as a fact in the case that he was arrested and imprisoned by the military authorities for refusing to deliver the horses.

Nor can it be maintained that those regulations disabled the government from performing its contract. They were just as ready to accept and as able to pay for the horses, notwithstanding the regulation. It may be said that the regulation tied the hands of the government officers so that they could only accept horses inspected under it, and that to such inspection the plaintiff was not bound to submit. But to this proposition the remark of Baron Park is peculiarly applicable. The government was not bound to apply to horses furnished under a previous contract these subsequent regulations. They were general in their terms and were not adopted with a special view to these contracts. And the declarations of certain officers that they would be governed by them bound nobody. The correctness of this view is strikingly illustrated in this case, for the Court of Claims finds that the officers receiving cavalry horses at St. Louis did receive horses on all contracts made previous to the adoption of the new regulations under the old mode of inspection, and did not apply to them the objectionable rules, and for that reason they reject Smoot's claim as to the contract to deliver at St. Louis.

We think it was equally his duty to have tendered horses at Chicago, and if the new regulations would have relieved him at all from that duty, it would have been after he had made a tender, and objected to the application of the new rule of inspection, and the proper officer had refused to receive the horses without subjecting them to those rules. Until then he could not justly claim that the government had violated its contract.

In Mr. Smoot's case, he never had any declaration made to him or his agent from any one in charge of the execution of those contracts on the part of the government, that the rule would be applied to him or his contract. He accepted and acted upon declarations made to other parties and not to himself.

We do not, however, believe that this would have varied the matter. It would have been no great hardship for him to have so far attempted compliance with his contract as to have tendered twenty or fifty horses under it, and tested the action which the government officers would take when he was thus attempting to fulfil his contract and objecting to the application of the new rule. Then the officers of the government would have been legally called on to determine whether they would apply them or not. Until that time they were under no obligation and had no right to commit themselves or others irrevocably on that subject.

On these grounds we think that the claimant had no right to recover on either of the contracts sued on. It follows that the judgment of the Court of Claims in favor of Smoot on the Chicago contract is REVERSED, and the case remanded for judgment in favor of the United States; and the judgment of that court on the St. Louis contract, the subject of the appeal by Smoot, is

AFFIRMED.

AT the same time was adjudged-it having been previously argued by Mr. C. H. Hill, Assistant Attorney-General, for the United States, and by Mr. James Hughes, contra-the case of the

the facts of which were very similar to those of Smoot's case, above reported. Judgment had been given below in favor of Spicer. The court now announced that the principles set forth in Smoot's case, which they had just decided, must govern Spicer's case also. The judgment in it was accordingly reversed, with directions to the Court of Claims to render judgment

IN FAVOR OF THE UNITED STATES.

title: Smoot's Case/Opinion of the Court


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

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

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


text:
Kearney v. Denn

ERROR to the Circuit Court for the District of Maryland; the case being thus:

Dr. David Crawford, of Prince George's County, Maryland, died there in 1859, a bachelor, leaving a large personal and real estate, but neither father or mother, brother or sister, or the descendants of either to inherit it. A first cousin named Blackburne, who was in possession of his realty, applied for administration on the personalty. A counter application was made by one George T. Crawford, of Maryland, son of Thomas B. Crawford, a brother of the intestate, who had died before him. The application of George T. Crawford was opposed by Blackburne, on the ground that he, the said George, was not a legitimate child of the said Thomas; but with three other children, his illegitimate offspring from a connection with one Elizabeth Taylor.

Thereupon the Orphans' Court of Prince George's County, where the application of both parties was made and the contest was pending, directed an issue to settle the question,

'Whether the said Thomas was ever lawfully married to Elizabeth Taylor, either before or after the birth of the said George.'

The jury found a verdict against the legitimacy; and judgment was entered accordingly; a judgment afterwards affirmed in the Court of Appeals of Maryland.

In this state of things George T. Crawford, who had lost the administration, and his three sisters, all of Maryland, brought ejectment in the court below against Blackburne for the real estate. On that trial Blackburne offered in evidence as proof of the illegitimacy of the plaintiffs, a transcript of the record of the Orphans' Court of Prince George's County, on the application for administeration, and the Circuit Court rejected it. Verdict and judgment having been given for the Crawfords, the defendant, Blackburne, brought the case here on error, where the ruling was declared to have been in part erroneous. This court then said:

'The transcript was competent evidence against George T. Crawford. As to him it was an estoppel and barred his right of action. But it did not affect the other defendants in error, who were not parties to the proceedings.'

The judgment was accordingly reversed, and a venire de novo ordered.

George T. Crawford, one of the plaintiffs, now died. He had children, but they were not made parties to the case; which went on in the names of the other plaintiffs. After some continuances and before the case came on to be retried, the attorneys of the plaintiffs suggested to the court, that since the last continuance, Blackburne, the defendant, had died, and they, therefore, moved for leave, which was granted, to let new parties, to wit, Mary Kearney, and J. L. Henry, and Kate Kearney Henry, his wife (nothing being said about their citizenship), appear and defend; these three persons, as was admitted by an agreement of counsel on both sides, filed, being 'alone interested as defendants;' and it being further agreed by the counsel that 'the original pleadings shall stand mutatis mutandis.'

The cause was then continued till the next term, when the defendants filed a motion in writing to dismiss the case, for the reason that Mary Kearney was, at the time of the commencement of the suit, and had been ever since, a resident and citizen of the District of Columbia, and that J. L. Henry, and Kate Kearney Henry, his wife, had been during the same period, citizens and residents of the State of Maryland, and that the court had, therefore, no jurisdiction to hear and decide the cause. No proof appeared to have been offered of these facts. The court overruled the motion, but upon what ground did not appear. It was noted on the record that the defendants 'reserve their exception to the decision of the court.' This was all that the record contains on the matter.

The cause was then afterwards tried on its merits, when the defendants offered a transcript of the record of the Orphans' Court to show the illegitimacy of all the new plaintiffs, the sisters of George T. Crawford as well as of himself The court below refused to receive it, and the defendants excepted. Verdict and judgment having again gone for the plaintiffs the defendants brought the case here, the two questions now being,

1st. Had the court below jurisdiction; in other words was the suit after the substitution of the new defendants an original suit, or merely a continuation of the old one?

2d. Was the rejection of the transcript of the record of the Orphans' Court, which had been offered to show the illegitimacy of the now plaintiffs, the sisters of George T. Crawford, rightly rejected?

Mr. T. J. Durant, for the plaintiff in error; a brief of the late Mr. William Schley having been filed:

1. That new defendants, when they appeared to the suit, did not come in under Blackburne, as successors to his rights; but came in professing to be next of kin and heirs of the intestate, Dr. David Crawford. In some senses it was a right adverse to Blackburne's.

Now if, on the day when these new defendants appeared to this suit, an original suit had been begun against them by the plaintiffs in that suit, the Circuit Court would have had no jurisdiction; because all the plaintiffs and two of the defendants are citizens of Maryland, and the other defendant is a citizen of the District of Columbia.

But the court below disposed of the motion by the remark, that the question of jurisdiction related to the state of case which existed at the commencement of the suit. This supposed rule, however, is not sanctioned by the decisions of this court; it is qualified by the condition that the parties remain the same. Subsequent change of domicile does not, per se, take away jurisdiction rightfully acquired.*

2. The transcript of the record of the Orphans' Court should have been admitted, for the sisters of G. T. Crawford were virtually parties to the suit in the Orphans' Court in which he claimed the administration. The same right was in question in the two cases.

In addition, the verdict and judgment in the record offered in evidence was directly upon the status of the immediate ancestor of all the plaintiffs in this suit.

Messrs. T. T. Crittenden (with whom had been the late Mr. R. J. Brent) and D. Clarke, contra.

Mr. Justice SWAYNE recapitulated certain parts of the case and delivered the opinion of the court.

title: Kearney v. Denn


text: Talk:Kearney v. Denn

title: Talk:Kearney v. Denn


text:
Kearney v. Denn/Opinion of the Court

In this case our attention has been called to two alleged errors:

I. That the court below overruled the motion of the plaintiffs in error to dismiss the suit.

After the case was remanded from this court to the Circuit Court, the plaintiffs' lessors appeared in that court and suggested the death of Richard S. Blackburne, the original defendant, and prayed leave to make new defendants. Leave was given accordingly. This was done on the first Monday of April, 1868, and the cause was thereupon continued to the first Monday of November following. On the latter day a written agreement, signed by William Schley, Esq., as the counsel for the plaintiffs in error, and by R. J. Brent, Esq., as the counsel for the lessors of the plaintiffs, was filed in court. It was to the effect that the death of the defendant, Blackburne, having been suggested, and the plaintiffs in error (naming them) being interested on the part of the defendant, Blackburne, in the property mentioned in the declaration, the clerk was requested to enter their appearance by Mr. Schley, as their attorney, 'they being alone interested as defendants in said property.' A further agreement was signed and filed by the same counsel 'that the original pleadings shall stand mutatis mutandis.' The case was thereupon further continued to the first Monday of April, 1869, when it was again continued to the first Monday of November following. On that day the plaintiffs in error appeared by their counsel and filed a motion in writing to dismiss the case, for the reason that Mary Kearney was, at the time of the commencement of the suit, and had been ever since, a resident and citizen of the District of Columbia, and that J. L. Henry, and Kate Kearney Henry, his wife, had been during the same period, citizens and residents of the State of Maryland, and that the court had, therefore, no jurisdiction to hear and decide the cause. The court overruled the motion, but upon what ground does not appear. It is noted on the record that the plaintiffs in error 'reserve their exception to the decision of the court.' This is all that the record contains touching the motion. For aught that appears to the contrary, the court may have overruled it, because the facts of the residence of the defendants as stated in the motion were not proved, or because it was proved that they resided in a State or States other than Maryland. Error must be shown. It is never presumed. We cannot take cognizance of the exception reserved upon the record, any more than we could of an exception noted in like manner to the admission of improper testimony or misdirection by the judge to the jury, in the trial of a cause. In order to bring the facts properly before us a bill of exception, setting forth what was proved and the decision of the court, should have been taken. As the record stands we cannot examine the subject. We have, therefore, not had occasion to consider the learned arguments submitted by the counsel of the respective parties upon the merits of the motion.

We are all of the opinion that the introduction of the new defendants was an elongation of the original action, and not the institution of a new suit.

II. The second alleged error relates to the transcript of the record in the Orphans' Court of Prince George's County.

It appeared by the transcript that Blackburne, as the next of kin to Thomas B. Crawford, deceased, applied to the court for letters of administration upon the estate of the decedent. George T. Crawford, claiming to be the son of the deceased, made a like application. The court ordered to be tried an issue involving the question whether Thomas B. Crawford and Elizabeth Taylor, the mother of George T. Crawford, were ever lawfully married. The jury found in the negative, and judgment was entered accordingly. The case was removed to the Court of Appeals of the State, and that court affirmed the judgment. When this case, as it is now before us, was tried in the court below, George T. Crawford had died, and his children were not made parties to the suit. Upon the trial the plaintiffs in error offered the transcript in evidence as bearing upon the question of the marriage of Elizabeth Taylor and the legitimacy of her other children. The court excluded it from going to the jury, and the plaintiffs in error excepted.

The effect of the verdict and judgment here in question were fully considered when this case was formerly before us. We then held that they were an estoppel as to George T. Crawford and barred his right of action, but that they did not in anywise affect the rights of the other children, because they were not parties to the proceeding. #fn-s-s-s We have no doubt of the soundness of these conclusions, and we feel no disposition to review or reverse them. It is unnecessary to pursue the subject further. No error was committed in rejecting the transcript.

JUDGMENT AFFIRMED.

title: Kearney v. Denn/Opinion of the Court


text: Talk:Kearney v. Denn/Opinion of the Court


text:
Maddox v. United States

APPEAL from the Court of Claims; the case being thus:

H. A. Risley, treasury agent at Norfolk for the purchase of the products of insurrectionary States, in November, 1864, contracted in writing to purchase from Maddox and certain persons associated with him, loyal citizens of the United States, a large quantity of tobacco, rosin, and turpentine, situated in the States of Virginia and North Carolina, to be delivered in Norfolk or New York, and sold at certain points mentioned, under the same conditions as other sales of like public property.

With the contract Risley delivered to Maddox and his associates a request for safe-conduct and means of transportation.

This request was presented to the President of the United States, who indorsed on it that the property to be transported under the contract should be free from seizure or detention, and that the military and naval authorities be requested to furnish the necessary facilities for getting the products within our lines. These products, at the time the contract was made, and the military safe-conduct delivered, were not owned or controlled by Maddox and the others, but they expected to procure them in or about the city of Richmond, in the State of Virginia. In the months of January and February, 1865, they succeeded, in part performance of their contract, in purchasing a large number of boxes of tobacco-less, however, than they had agreed to do-which were subsequently either burned by our military forces, appropriated by them to the use of the United States, or destroyed in the fires in Richmond at the time it was captured, in April, 1865.

Hereupon Maddox and his associates filed a petition in the Court of Claims for an alleged breach of contract, and praying judgment for $735,644, with interest.

The United States demurred and the court sustained the demurrer. To reverse that decision this appeal was prosecuted.

Mr. C. H. Hill, Assistant Attorney-General, in support of the ruling below, argued that the cae was similar to the United States v. Lane, in which it was held, after a review of the statutory provisions and the treasury regulations concerning the purchase of products of insurrectionary States, that a purchasing agent, acting in behalf of the United States, had no authority to negotiate with any one in relation to the purchase of such products, unless at the time of the negotiation the party either owned or controlled them; in other words, that they were not designed to protect a speculation; that independently of this the petition did not allege, and the facts did not show, that the contractors were ready and willing, or were even in a condition to perform fully the contract on their part; that is to say, to deliver the whole of the products contracted for.

And, finally, that if the claim had any foundation at all, it was the damage sustained in consequence of the action of the military authorities; a claim not within the jurisdiction of the Court of Claims.

Messrs B. R. Curtis and James Hughes, contra, for the appellants, argued—

1st. That the United States v. Lane did not rule this case, because: 1st. The facts were different in this case, Lane in his case having had far greater facilities, and he having been allowed to carry an outward cargo. The point resolved in the case was that carrying an outgoing cargo was without authority of law or regulations pursuant to law.

2d. That all comments of the court made in the Lane case, which do not apply to this case, were obiter dicta and subject to be reviewed and reconsidered in this case.

Mr. Justice DAVIS delivered the opinion of the court.

title: Maddox v. United States


text: Talk:Maddox v. United States

title: Talk:Maddox v. United States


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

The United States are called on to make good the loss caused by the alleged wrongful conduct of their military officers, and the inquiry is, can they be required to do it in this suit?

The main question involved in this inquiry is important, on account of the large pecuniary interests at stake, but is freed from all difficulty since the decision of this court in United States v. Lane. The cases are not distinguishable. In both the right to recover was based on contracts made by the same treasury agent with private citizens, for the purchase from them of products which were within the lines held by the insurrectionary forces. In each case the agent requested safe-conduct for the parties and their necessary means of transportation through the Federal military lines. In neither case were the products owned, or even under the control, of those who had contracted to sell them, but in each case the parties expected, after they had secured their contracts, to go within the rebel lines and obtain the products which they had agreed to deliver. It is true, in Lane's case there were greater facilities for the execution of the contract and better security for its performance, for Lane was allowed to take out a cargo of goods to exchange for the cotton to be purchased, and this cargo was in charge of a sub-agent, under instructions not to deliver it until treble its valud in cotton should be put on board the vessel.

But these proceedings were intended only as a means to an end. The performance of the contract was the principal thing to be effected, and the license to take out a cargo of goods, under certain retrictions, was, of necessity, given for the mere purpose of securing a desired result. If Maddox did not enjoy the advantage of a similar license, he had the use of other means not accorded to Lane, which were expected to accomplish a similar result. It is easy to see that he could have few things better adapted to fortify him against failure than the certificate of the President that the products moved by him should be free from seizure, accompanied by an order on the commandants of military districts and naval stations to aid him in his enterprise. Whether the facilities extended to Lane were more ample than those which Maddox possessed is an immaterial subject of inquiry. It is enough to say that the difference in the character of these facilities constitutes the only distinction between the cases, and that this difference is incidental merely-not necessary to the chief purpose in each, and in no wise affecting the validity of the contracts. If this be so, there is an end of this litigation, for the entire subject embraced in this contract was before us in Lane's case and passed on. Lane, in his petition to the Court of Claims, stated that he made a contract with Risley, the treasury agent, at Norfolk, similar to the one in controversy, and for the purpose of executing it purchased a steamer at great cost, with which he proceeded to Chowan River, North Carolina, and loaded with cotton procured there, and that on the return voyage the steamer and cargo were forcibly seized by the naval authorities, and the cotton appropriated to the use of the United States. For this alleged wrongful seizure of the vessel and appropriation of the cotton he claimed that his contract was violated, and that he was entitled to remuneration. Nothing is said in the petition about an outward cargo, but the Court of Claims found, as one of the facts of the case, that Lane had a license to take out in his steamer certain articles, a schedule of which was attached to the safe-conduct given by the military commander. Manifestly, from this statement of the case, the contract was the foundation of the whole proceeding, and if made without authority of law, the vessel and cargo were not protected, but were subject to seizure and detention.

It was therefore necessary, in order to see whether the citizen had the privilege of trading with the enemy in the manner contemplated by this contract, to review the statutory provisions, treasury regulations, and executive orders concerning the purchase of the products of insurrectionary States. This was done, and after careful consideration we held that a purchasing agent, acting on behalf of the United States, had no authority to negotiate with any one in relation to the purchase of such products, unless at the time of the negotiation the party either owned or controlled them; that neither was the law nor were the regulations through which it was administered, designed to protect a speculation wherein the products contracted to be sold were to be procured by the contractor within the rebel lines after the contract was made. Besides this, we decided that private citizens were prohibited from trading at all in the insurrectionary districts; that the object of the law, and the regulations made to carry it into effect, was to encourage the insurgents themselves to bring their products to us.

There were other elements of decision, but as they are not applicable to this suit they will not be noticed. It is unnecessary to restate the argument in support of the judgment in Lane's case. At the time the subject received our best thoughts, and reflection has only served to confirm the correctness of the decision.

These claimants occupy exactly the status of Lane. Risley, therefore, in his character of treasury agent, had no power to deal with them at all; but if it were otherwise, the contract which he did make was unlawful, for they were not the owners of the tobacco in question, nor did they control it even at the time the contract was made, purchased it long afterwards within the Confederate lines.

JUDGMENT AFFIRMED.


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


text:
Gray v. Darlington

ERROR to the Circuit Court for the Eastern District of Pennsylvania.

An act of Congress of March 2d, 1867, provides that

'There shall be levied, collected, and paid annually upon the gains, profits, and income of every person,. . . whether derived from any kind of property, rents, interest, dividends, or salaries, or from any profession, trade, employment, or vocation,. . . or from any other source whatever,. . . a tax of five per centum on the amount so derived over $1000. . .. And the tax herein provided for shall be assessed, collected, and paid upon the gains, profits, and income for the year ending the 31st of December next preceding the time for levying, collecting, and paying said tax.'

The same section also provides (with some exceptions not important to be mentioned), that

'In estimating the gains, profits, and income of any person, there shall be included all incomes derived from interest upon notes, bonds, and other securities of the United States, profits realized within the year from sales of real estate purchased within the year, or within two years previous to the year for which income is estimated,. . . and all other gains, profits, and income derived from any source whatever.'

In this state of statutory law, W. Darlington brought the present action against W. C. Gray, collector of internal revenue, to recover the sum of $1000, alleged to have been illegally assessed and collected under the said law as gains, profits, and income of him, the said Darlington, for the year 1869. It appeared from the allegations of the declaration, that in 1865 the plaintiff, being then the owner of certain United States treasury notes, exchanged them for United States five-twenty bonds; that in 1869 he sold these bonds at an advance of $20,000 over the cost of the treasury notes, and that upon this amount the assistant assessor of the United States for the collection district in Pennsylvania within which the plaintiff resided, assessed a tax of five per cent., alleging it to be gains, profits, and income of the plaintiff for that year; that on appeal to the assessor of the district, and to the Commissioner of Internal Revenue, this assessment was affirmed, and was transmitted to the defendant, as collector of the district, for enforcement; and that upon the latter's demand, with notice that, unless paid, he would collect the same with penalty and interest, the tax was paid by the plaintiff under protest.

To the declaration, setting forth substantially the facts above stated, the defendant demurred. The demurrer was overruled by the Circuit Court, and judgment given in favor of the plaintiff for the amount paid by him, with in terest and costs. The defendant brought the case to this court on writ of error, and assigned as error the overruling of the demurrer.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, for the plaintiff in error; Messrs. Blair, Dick, and Darlington, propri a person a, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Gray v. Darlington


text: Talk:Gray v. Darlington

title: Talk:Gray v. Darlington


text:
Gray v. Darlington/Opinion of the Court

In 1865 the plaintiff, being the owner of certain United States treasury notes, exchanged them for United States five-twenty bonds. In 1869 he sold these bonds at an advance of twenty thousand dollars over the cost of the treasury notes, and upon this amount the assistant assessor of the United States for the collection district in Pennsylvania, within which the plaintiff resided, assessed a tax of five per cent., alleging it to be gains, profits, and income of the plaintiff for that year. On appeal to the assessor of the district, and to the Commissioner of Internal Revenue, this assessment was affirmed, and it was transmitted to the defendant, as collector of the district, for enforcement. Upon the latter's demand the tax was paid by the plaintiff under protest, and the present action was brought to recover back the money.

The question presented is whether the advance in the value of the bonds, during this period of four years, over their cost, realized by their sale, was subject to taxation as gains, profits, or income of the plaintiff for the year in which the bonds were sold. The answer which should be given to this question does not, in our judgment, admit of any doubt. The advance in the value of property during a series of years can, in no just sense, be considered the gains, profits, or income of any one particular year of the series, although the entire amount of the advance be at one time turned into money by a sale of the property. The statute looks, with some exceptions, for subjects of taxation only to annual gains, profits, and income. Its general language is 'that there shall be levied, collected, and paid annually upon the gains, profits, and income of every person,' derived from certain specified sources, a tax of five per cent., and that this tax shall be 'assessed, collected, and paid upon the gains, profits, and income for the year ending the 31st of December next preceding the time for levying, collecting, and paying said tax.' #fn-s-s This language has only one meaning, and that is that the assessment, collection, and payment prescribed are to be made upon the annual products or income of one's property or labor, or such gains or profits as may be realized from a business transaction begun and completed during the preceding year. There are exceptions, as already intimated, to the general rule of assessment thus prescribed. One of these exceptions is expressed in the statute, and relates to profits upon sales of real property, requiring, in the estimation of gains, the profits of such sales to be included where the property has been purchased, not only within the preceding year, but within the two previous years. Another exception is implied from the provision of the statute which requires all gains, profits, and income derived from any source whatever, in addition to the sources enumerated, to be included in the estimation of the assessor. The estimation must, therefore, necessarily embrace gains and profits from trade and commerce, and these, for their successful prosecution, often require property to be held over a year. In the estimation of gains of any one year the trader and merchant will, in consequence, often be compelled to include the amount received upon goods sold over their cost, which were purchased in a previous year. Indeed, in the estimation of the gains and profits of a trading or commercial business for any one year, the result of many transactions have generally to be taken into account which originated previously. Except, however, in these and similar cases, and in cases of sales of real property, the statute only applies to such gains, profits, and income as are strictly acquisitions made during the year preceding that in which the assessment is levied and collected.

The mere fact that property has advanced in value between the date of its acquisition and sale does not authorize the imposition of the tax on the amount of the advance. Mere advance in value in no sense constitutes the gains, profits, or income specified by the statute. It constitutes and can be treated merely as increase of capital.

The rule adopted by the officers of the revenue in the present case would justify them in treating as gains of one year the increase in the value of property extending through any number of years, through even the entire century. The actual advance in value of property over its cost may, in fact, reach its height years before its sale; the value of the property may, in truth, be less at the time of the sale than at any previous period in ten years, yet, if the amount received exceed the actual cost of the property, the excess is to be treated, according to their views, as gains of the owner for the year in which the sale takes place. We are satisfied that no such result was intended by the statute.

JUDGMENT AFFIRMED.

Dissenting: The CHIEF JUSTICE, and Justices CLIFFORD and BRADLEY.

[NOTE.-In view of the divided state of the court in giving judgment in the above case, it may not be uninteresting to the reader to know that from a letter, entitled to credit, in the possession of the Reporter, it appears that the point decided in the case, had been ruled in the same way in the Third Circuit, by the late Mr. Justice GRIER, in the case of Bennet v. Baker, Collector, tried on the 7th of April, 1865; the late honored Justice having been, says the letter, 'very clear and emphatic in his opinion.']

title: Gray v. Darlington/Opinion of the Court


text: Talk:Gray v. Darlington/Opinion of the Court


text:
Tarver v. Keach

ON motion to dismiss a writ of error to the Supreme Court of the State of Texas.

The suit below was upon a note payable in common currency circulating in the State of Texas at its maturity, that is, on the 27th day of November, 1863. This common currency was Confederate notes, and the note in question was given for the purchase of land.

The Supreme Court of the State held that the transaction was a gambling one, and dismissed the suit on that ground. The case being then brought here under an assumption that it came within the 25th section of the Judiciary Act, quoted supra, p. 3, the present motion was made.

The CHIEF JUSTICE delivered the opinion of the court.

title: Tarver v. Keach


text: Talk:Tarver v. Keach

title: Talk:Tarver v. Keach


text:
Tarver v. Keach/Opinion of the Court

In Delmas v. The Insurance Company, decided at last term, we held that when 'a decision holding a contract void is made by the highest court of a State upon the general principles by which courts determine that a transaction is good or bad on principles of public policy, the decision is one we are not authorized to review.' We are entirely satisfied with that judgment and with the grounds assigned for it, and do not think it necessary to restate them. It follows that the writ of error to the Supreme Court of Texas must be

DISMISSED.

title: Tarver v. Keach/Opinion of the Court


text: Talk:Tarver v. Keach/Opinion of the Court


text:
Page:Dictionary of National Biography volume 59.djvu/33

Waldric of Italy in 1816–17; with a brief Account of Travels in various parts of France and Switzerland’ (London, 1820, 4 vols. 8vo). On 20 Oct. of that year she married Captain (afterwards Rear-Admiral) George Augustus Watts of Langton Grange, Staindrop, Darlington (cf., Naval Biography, p. 1260), where, after losing her only child, she died on 6 July 1826.

A miniature painted by M. Dupuis, a French prisoner at Kelso, when she was about twenty years of age, is a good likeness; after her death Edmonstone painted her portrait from two indifferent miniatures. These portraits were at Hendersyde Park in 1859.

[Burke's Landed Gentry, 1868 s.v. ‘Waldie,’ 1898 s.v. ‘Eaton;’ Gent. Mag. 1826 ii. 184, 1859 i. 655; Catalogue of Pictures, &c., at Hendersyde Park, 1859; Bell's Introduction to Waterloo Days, 1888.]  WALDRIC (d. 1112), bishop of Laon. [Seo .]

WALDRON, FRANCIS GODOLPHIN (1744–1818), writer and actor, was born in 1744. He became a member of Garrick's company at Drury Lane, and is first heard of on 21 Oct. 1769, when he played a part, probably Marrall, in ‘A New Way to pay Old Debts.’ On 12 March 1771 he was Dicky in the ‘Constant Couple.’ He made little progress as an actor, and his name rarely occurs in the bills. Garrick gave him, however, charge of the theatrical fund which he established in 1766, and he was at different times manager of the Windsor, Richmond, and other country theatres. On 25 April 1772 he was the original Sir Samuel Mortgage in Downing's ‘Humours of the Turf.’ On 17 May 1773 Waldron took a benefit, on which occasion he was the original Metre, a parish clerk, in his own ‘Maid of Kent,’ 8vo, 1778, a comedy founded on a story in the ‘Spectator’ (No. 123). On 12 May 1775, for his benefit and that of a Mrs. Greville, he produced his ‘Contrast, or the Jew and Married Courtezan,’ played once only and not printed. Tribulation in the ‘Alchemist’ followed, and on 22 or 23 March 1776 he was the original Sir Veritas Vision in Heard's ‘Valentine's Day.’ His ‘Richmond Heiress,’ a comedy altered from D'Urfey, unprinted, was acted at Richmond in 1777, probably during his management of the theatre. On 19 Feb. 1778 he was, at Drury Lane, the first Cacafatadri in Portal's ‘Cady of Bagdad.’ He also played Shallow in the ‘Merry Wives of Windsor.’ His ‘Imitation,’ a comedy, unprinted, was brought out at Drury Lane for his benefit on 12 May 1783 and coldly received. It is a species of reversal of the ‘Beaux' Stratagem,’ with women substituted for men and men for women. On the occasion of its production Waldron played Justice Clack in the ‘Ladies' Frolic.’ The same year Waldron published, in octavo, ‘An Attempt to continue and complete the justly admired Pastoral of the Sad Shepherd’ of Ben Jonson. The notes to this are not without interest. ‘The King in the Country,’ a two-act piece, 8vo, 1789, is an alteration of the underplot of Heywood's ‘King Edward the Fourth.’ It was played at Richmond and Windsor in 1788, after the return of George III from Cheltenham, and is included by Waldron in his ‘Literary Museum.’ ‘Heigho for a Husband,’ 8vo, 1794, is a rearrangement of ‘Imitation’ before mentioned. It was more successful than the previous piece, was played at the Haymarket on 14 July 1794, and was revived at Drury Lane in 1802. Its appearance had been preceded on 2 Dec. 1793 at the Haymarket by that of the ‘Prodigal,’ 1794, 8vo, an alteration of the ‘Fatal Extravagance,’ which is provided with a happy conclusion. In the preface to this Waldron, who had become the prompter of the Haymarket under the younger Colman, says he made the alteration at Colman's desire. At the Haymarket Waldron was the first Sir Matthew Medley in Hoare's ‘My Grandmother’ on 16 Dec. 1793. He was still occasionally seen at Drury Lane, where he played Elbow in ‘Measure for Measure,’ and the Smuggler in the ‘Constant Couple.’ On 9 June 1795 he was, at the Haymarket, the first Prompter in Colman's ‘New Hay at the Old Market.’ For his benefit on 21 Sept. were produced ‘Love and Madness,’ adapted by him from Fletcher's ‘Two Noble Kinsmen,’ and ‘'Tis a wise Child knows its own Father,’ a three-act comedy also by him. Neither piece is printed. The ‘Virgin Queen,’ in five acts, an attempted sequel to the ‘Tempest,’ was printed in octavo in 1797, but unacted. It is a wretched piece which the ‘Biographia Dramatica’ declares ‘very happily executed.’ The ‘Man with two Wives, or Wigs for Ever,’ 8vo, 1798, was acted probably in the country. The ‘Miller's Maid,’ a comic opera in two acts, songs only printed with the cast, was performed at the Haymarket on 25 Aug. 1804, with music by Davy. It is founded on a ‘Rural Tale’ by Robert Bloomfield [q. v.], was played for Mrs. Harlowe's benefit, and was a success. Until near the end of his life Waldron made an occasional appearance at the Haymarket, at which, as young Waldron, his son also appeared, his name being


text:
Cheney v. Van Arsdale

ERROR to the Circuit Court for the Eastern District of Wisconsin, in which court a certain Van Arsdale brought suit against Cheney, collector of internal revenue, to recover duties paid the said collector on certain iron castings, cast for thimble-skeins and pipe-boxes; matters used in the construction of the running-gear of vehicles for the road. The case was thus:

An act of June 30th, 1864, to provide internal revenue to support the government, to pay interest on the public debt, and for other purposes, amended by an act of March 3d, 1865, laid duties on nearly every sort of manufacture, including pig iron, railroad iron, all iron advanced beyond blooms, slabs, or loops, on iron castings used for bridges or other permanent structures, on stoves and hollow-ware, on steel in ingots, bars, sheet, or wire, &c., &c.

An act of July 13th, 1866, entitled 'An act to reduce internal taxation and to amend an act entitled 'An act to provide internal revenue to support the government, to pay interest on the public debt, and for other purposes,' approved June 30th, 1864, and acts amendatory thereof,' in its 9th section imposes—

'On all iron, not otherwise provided for, advanced beyond muckbar, blooms, slabs, or loops, and not advanced beyond bars, and band, hoop, and sheet iron, &c., a tax of $3 per ton.

'On plate iron, &c., and cut nails and spikes, &c., a tax of $5 per ton.

'On steel made directly from muckbar, blooms, slabs, or loops, a tax of $3 per ton.

'On stoves and hollow castings in all conditions, whether rough, tinned, or enamelled, and on castings of iron, not otherwise provided for, a tax of $3 per ton.'

The act in that same section imposes—

'On all manufactures, not otherwise provided for, of cotton. . . wood. . . iron. . . steel, or of other materials, a tax of 5 ''per cent. ad valorem''.'

The same act in a subsequent, its 10th, section exempts—

'Castings for iron bridges, malleable iron castings unfinished, and castings of all descriptions made specially for locks, safes, looms, spinning machines, steam engines, hot air and hot water furnaces, and sewing machines, and not sold or used for any other purpose, and upon which a tax was assessed and paid on the article of which the casting was part.

'Steel made from iron advanced beyond muckbar, blooms, slabs, or loops in ingots, bars, rails made and fitted for railroads, sheet, plate, coil or wire, hoop-skirt wire, covered or uncovered; car-wheels, thimble-skeins and pipe-boxes, and springs, tire and axles made of steel used exclusively for vehicles, cars, or locomotives; and clock springs, faces, and hands.'

We have thus far last spoken of an act of July 13th, 1866.

By an act of March 2d, 1867, it was enacted,

'That on and after March 1st, 1867, in addition to the articles now exempt by law, the articles and products hereinafter enumerated shall be exempt from internal tax, namely, thimble-skeins and pipe-boxes made of iron.'

With these statutes on the statute-book Van Arsdale, a manufacturer of iron castings, &c., brought the suit already referred to. The question presented by the suit was whether iron castings, cast for thimble-skeins and pipe-boxes, between the first day of September, 1866, and the first day of March, 1867, were subject to an internal tax under the act of Congress of July 13th, 1866.

Evidence having been given tending to show that up to July, 1866, thimble-skeins and pipe-boxes had not been made of steel, but only of iron, the court instructed the jury that the act in question 'exempted from taxation thimble-skeins and pipe-boxes, whether made of steel or iron, cast or wrought.'

Verdict and judgment having been given for the plaintiff, the collector, whose counsel had contended that the exemption applied only when the articles were made of steel, brought the case here.

Mr. J. W. Cary, for the manufacturer, and in support of the charge:

To sustain the construction given by the government, the word 'steel' at the beginning of the clause of the second paragraph of the 10th section of the act of July 13th, 1866, commencing 'steel made from iron,' &c., must necessarily operate upon and qualify every article specified in the clause.

Does it? We think not. First, observe the punctuation; after the word 'uncovered,' there is a semicolon, and then follows 'car-wheels, thimble-skeins, and pipe-boxes,' articles that are never made of steel, and then comes the following: 'and springs, tire, and axles made of steel.' Now if the intention was to have the word 'steel' at the beginning of the clause qualify every article named in the clause, why did Congress deem it necessary to again use the word 'steel,' so as to say that only 'springs, tire, and axles made of steel' should be exempt? Is not this the explanation,-that having exempted car-wheels, thimble-skeins, and pipe-boxes, articles never made of steel, and which were to be exempt without reference to the material of which they were made, that they deemed it necessary to subsequently use the word 'steel' so as to confine the exemption of certain articles afterwards named to such only as should be made of steel.

Again, it must be presumed that Congress in exempting thimble-skeins and pipe-boxes, intended to exempt something which had an existence and was liable to taxation; otherwise, why the necessity of the exemption? It is a fact beyond question that these articles were never made of steel, but of iron. Then must we not necessarily come to the conclusion that it was the intention to exempt thimble-skeins and pipe-boxes made of iron?

The act of March 2d, 1867, exempting 'thimble-skeins and pipe-boxes made of iron,' is but to make more clear the exemption meant to be given by the 10th section of the act of July 13th, 1866.

Mr. G. H. Williams, Attorney-General, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: Cheney v. Van Arsdale


text: Talk:Cheney v. Van Arsdale

title: Talk:Cheney v. Van Arsdale


text:
Cheney v. Van Arsdale/Opinion of the Court

The question in controversy arises under the act of July 13th, 1866. That was an act 'to reduce internal taxation, and to amend an act entitled 'An act to provide internal revenue to support the government, to pay interest on the public debt, and for other purposes; approved June 30th, 1864, and acts amendatory thereof." By its ninth section it was enacted that there should be assessed, collected, and paid 'on stoves and hollow ware in all conditions, whether rough, tinned, or enamelled, and on castings of iron, not otherwise provided for, a tax of three dollars per ton.' This included iron castings of every kind, except castings for iron bridges, unfinished malleable iron castings, and castings made specially for locks, safes, looms, spinning machines, steam engines, hot air and hot water furnaces, and sewing machines, and not sold or used for any other purpose, and upon which a tax was assessed and paid on the article of which the casting was a part. All these were exempted from tax by the tenth section, and special provision was therefore made for them. It is, therefore, clear that castings made for thimble-skeins and pipe-boxes, between September 1st, 1866, and March 1st, 1867, were subject to a tax of three dollars per ton, unless they were specially exempted. This we do not understand to be controverted. But it is insisted that they were exempted by the tenth section of the act. That section, it should be borne in mind, had reference to the provisions of the revenue act of June 30th, 1864, as amended by the act of March 3d, 1865, which imposed taxes upon most, if not all, of the articles which, in 1866, it was proposed to put upon the free list. It carried out the design avowed in the title, a reduction of taxation. It mentioned in detail and in alphabetical order certain products, articles, and classes of articles which had been previously taxed, and it declared that they should be exempt from internal taxation. Among these was 'steel made from iron, advanced beyond muckbar, blooms, slabs, or loops, in ingots, bars, rails made and fitted for railroads, sheet, plate, coil or wire, hoop-skirt wire, covered or uncovered, carwheels, thimble-skeins, and pipe-boxes, and springs, tires, axles made of steel used exclusively for vehicles, cars, or locomotives, and clock-springs, faces, and hands.' But was this an exemption of all thimble-skeins and pipe-boxes, as ruled in the court below, or only of those articles when made of steel? Waiving consideration of the question whether the exempting clause did not refer to the ad valorem tax of five per cent., which the act imposed on all manufactures not otherwise provided for, wholly or in part of cotton,. . . wood,. . . iron, steel,. . . or other materials, rather than to the specific tax upon the materials of which those manufactures, when finished, were wholly or in part composed, we think the exemption cannot be construed beyond thimble-skeins and pipe-boxes made of steel and used for vehicles, cars, or locomotives, and, consequently, that it did not include thimble-skeins and pipe-boxes made of iron. It is quite evident to us that all the articles enumerated in this clause of the exempting section were steel articles. If this is not so, the act is plainly self-contradictory. Its tenth section must be construed in connection with its other sections, and so construed, if possible, that effect shall be given to every part. But if we look at the ninth section it will be seen that the act imposed a specific tax upon bars, upon rails for railroads, upon sheet iron, plate iron, coil and wire, upon castings of iron for which no special provision was made, as also upon all steel made directly from muckbar, blooms, slabs, or loops. The act of 1864 had taxed all steel, but the act of 1866 was, in this particular, less comprehensive. It, however, imposed a tax upon all steel made directly from muckbar, blooms, slabs, or loops. It is in view of these provisions of the ninth section, and in harmony with them, that the exemptions made by the tenth section are to be construed. It cannot be admitted that the same act which taxed specifically certain varieties of iron in one section, expressly exempted them in the next. Such inconsistency is not to be attributed to Congress. Nor is it at all necessary. The imposition of taxes and the declared exemptions are perfectly consistent with each other if the exempting clause is construed, as it may be, to include only articles made of steel. Thus steel itself is taxed when made directly from muckbar, blooms, slabs, or loops, and exempt when made from more advanced iron. Bars and rails are taxed when made of iron, as are sheet iron, plate iron, iron coil and wire, but they are exempt when made of the described variety of steel. Such a construction, and such alone, preserves the consistency of the act and gives effect to every part. And it is the natural construction. The excepting clause includes three classes of articles. The first is steel made from iron in an advanced state, whether, when made, it be ingots, bars, rails for railroads, sheet, plate, coil, or wire, or hoop-skirt wire, whether covered or uncovered. The second class is car-wheels, thimble-skeins, and pipe-boxes, and springs, tires, and axles, made of steel, used exclusively for vehicles, cars, or locomotives. The third class is clock-springs, faces, and hands.

But why, it is asked, if only steel articles were intended to be embraced in the clause, repeat the qualification? Why add to the words 'springs, tires, and axles,' the superfluous words 'made of steel?' The reason will be evident when the whole act is considered. It is to be observed that the articles mentioned in the first class are those made of a particular kind of steel, namely, that made of iron advanced beyond muckbar, blooms, slabs, or loops. Upon such steel no tax was imposed by the ninth section, though one had been by the act of 1864. It is true, as we have said, the ninth section levied a tax upon steel, but it was upon such steel only as was made directly from muckbar, blooms, slabs, or loops, not from iron in a higher state of advancement. The second class embraces articles made of steel generally, used exclusively for vehicles, cars, or locomotives. They are exempt, if made of steel, no matter what the kind of steel may be, whether made from muckbar, blooms, slabs, or loops, or from iron advanced beyond those stages. It was therefore necessary to repeat the qualification 'made of steel,' for had it not been repeated, only those car-wheels, thimble-skeins and pipe-boxes, and springs, tires, and axles, or the last three named of them, which were made of a particular kind of steel, would have been exempted. The repetition enlarged the list. Thus there is no force in the argument that the use of the words 'made of steel' was superfluous and unmeaning, if the exempting clause was designed to include only steel articles.

It is further said that when the act was passed thimble-skeins and pipe-boxes were not made of steel, and witnesses testified that they never knew that material employed for such articles. From this it is argued that Congress must have intended to exempt them when made of iron, for they must be presumed to have intended an exemption of something that had an existence. There is some plausibility in the argument, but it is more specious than sound. Congress must have known that of late years the uses of steel as a substitute for iron had been rapidly increasing. It was but a short time before that steel rails, tires, and axles had come into use. Thimble-skeins and pipe-boxes are used in connection with axles, and it would seem, therefore, to have been not an unreasonable presumption that Congress contemplated the probable substitution of steel in their manufacture, even if they were aware that the substitution had not already been made. The exemption itself was an encouragement to the use of steel.

It may be added that our opinion respecting the meaning of the exemption and its extent has some confirmation in the fact that in 1867 Congress, by a new enactment, expressly exempted thimble-skeins and pipe-boxes 'made of iron.' Such legislation indicates, at least, a conviction on their part that those articles were not placed in the free list by the act of 1866.

We think, therefore, the Circuit Court erred in instructing the jury that the act of 1866 exempted from taxation thimble-skeins and pipe-boxes, whether made of steel or iron, cast or wrought, and that no taxation on them could be lawfully assessed.

JUDGMENT REVERSED, AND A VENIRE DE NOVO AWARDED.

AT the same time with the preceding case was adjudged another from the same circuit, on the same general subject, and depending on certain parts of the statute already quoted; the new case having, however, two additional questions. It was the case of


text: Talk:Cheney v. Van Arsdale/Opinion of the Court


text:
Erskine v. Van Arsdale

IN this suit Van Arsdale sued Erskine, a collector of internal revenue, to recover back certain taxes paid by him after March 2d, 1867, on thimble-skeins and pipe-boxes made of iron. Upon the trial-there having been evidence tending to show that thimble-skeins and pipe-boxes are made from castings, or, in other words, undergo a process of manufacture before they become these articles in a completed or finished state-the court instructed the jury that, 'by the act approved March 2d, 1867, thimble-skeins and pipe-boxes made of iron are exempted; these articles are exempt, whether cast or wrought, and that no tax could be legally assessed after the date of that act.'

Passing to another part of the case, the court also instructed the jury, that 'if the collecting officer had notice at the time of payment from the taxed person that the tax was illegal, and that he would take measures to recover it back, the action may be maintained for all the taxes paid.'

The court also instructed the jury, that if they found for the plaintiff they might add interest.

To these instructions exception was taken, and the question whether any of them were erroneous was now before this court by writ of error.

Mr. G. H. Williams, Attorney-General, for the plaintiff in error; Mr. J. W. Carey, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Erskine v. Van Arsdale


text: Talk:Erskine v. Van Arsdale

title: Talk:Erskine v. Van Arsdale


text:
Erskine v. Van Arsdale/Opinion of the Court

In regard to the first instruction given, it is not denied that the act of March, 1867, did exempt thimble-skeins and pipe-boxes. But it is claimed that the taxes paid were assessed upon them as castings, and that the charge was calculated to mislead the jury.

We think otherwise. It is true that by the act of July 13th, 1866, a duty of three dollars a ton was imposed on castings of iron not otherwise provided for. By the same act, however, castings for iron bridges, malleable iron castings, and certain other castings, were exempt. Under this act, we have already decided that thimble-skeins and pipe-boxes of iron were subject to duty; but by the act of March 2d, 1867, these articles were expressly exempted, and we think it would be too narrow a construction to say that the castings were liable, the articles themselves being exempt. This disposes of the first exception.

We think, as respects the second one, that there is no error in the charge prejudicial to the defendants. Taxes illegally assessed and paid may always be recovered back, if the collector understands from the payer that the taxes are regarded as illegal and that suit will be instituted to compel the refunding of them.

The third exception is to the instruction, that if the jury found for the plaintiff they might add interest. This was not contested upon the argument, and we think it clearly correct. The ground for the refusal to allow interest is the presumption that the government is always ready and willing to pay its ordinary debts. Where an illegal tax has been collected, the citizen who has paid it, and has been obliged to bring suit against the collector, is, we think, entitled to interest in the event of recovery, from the time of the illegal exaction.

JUDGMENT AFFIRMED.


text: Talk:Erskine v. Van Arsdale/Opinion of the Court


text:
The Yosemite Valley Case

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

On the 30th of June, 1864, Congress passed an act, granting to the State of California the cleft, or gorge, in the Sierra Nevada Mountains, situated in the county of Mariposa in that State, Known as the Yosemite Valley, with its branches and spurs, in estimated length fifteen miles, and in width one mile, with the stipulation that the State should accept the grant upon the express condition that the premises should be held for public use, resort, and recreation, and should be inalienable for all time, except that leases for portions of the premises for periods not exceeding ten years might be made, the income derived therefrom to be expended in the preservation and improvement of the premises, or the roads leading thereto. The act provided that the boundaries of the grant should be established, at the cost of the State, by the Surveyor-General of the United States for California, whose official plat, when affirmed by the Commissioner of the General Land Office, should constitute the evidence of the locus, extent, and limits of the cleft, or gorge; and that the premises should be managed by the governor of the State, with eight other commissioners to be appointed by him, who should receive no compensation for their services.

By the same act Congress also granted to the State the tract of land embracing the grove of mammoth trees in Mariposa, known as 'the Mariposa Big Tree Grove,' the grant to be accepted upon similar conditions as the grant of the Yosemite Valley, and the premises to be held for like public use, resort, and recreation, and to be also inalienable for all time, but with the same privilege as to leases.

At the first session of the legislature of California, subsequently held, an act was passed by which the State accepted the grant thus made of the Yosemite Valley and Big Tree Grove, upon 'the conditions, reservations, and stipulations' contained in the act of Congress, and the governor and eight commissioners, who had previously been appointed by him during the recess of the legislature, were constituted a board of commissioners, 'with full power to manage and administer the grant made, and the trust created by the act of Congress,' and to make rules and regulations for the government, improvement, and preservation of the premises. The act also provided for the appointment by the commissioners of a guardian of the premises, and made it a penal offence in any one to commit wilfully any trespass thereon, to cut down or girdle the trees, to deface or injure the natural objects, to fire the wood or grass, or to destroy or injure any bridge or structure thereon, or other improvement.

On the 19th of May, 1864, six weeks previous to the passage of the act of Congress making the grant to the State, Hutchings entered the valley of the Yosemite and settled upon lands therein, with the intention, according to his declarations, and the findings of the court, to acquire the title to the same under the pre-emption laws of the United States. There were then on the premises a house, outhouses, and a fence inclosing about three acres. These improvements Hutchings purchased of the previous occupant, and he had ever since resided upon the premises, and had improved and cultivated them. The valley at the time was unsurveyed, and no other acts than the settlement thus made and continued had ever been done by him to acquire the title, unless soliciting the State and Congress to recognize his claim can be called such acts. At the time of his settlement, Hutchings was possessed of all the qualifications required of settlers under the pre-emption laws of the United States.

The principal one of these laws, and the one to which all subsequent acts refer, is the act of September 4th, 1841, entitled 'An act to appropriate the proceeds of the sales of the public lands, and to grant pre-emption rights.' The tenth section of this act provides that any person of the class designated therein, who shall make a settlement upon the public lands, to which the Indian title has been extinguished, and which has been previously surveyed, and shall inhabit and improve the same, and shall erect a dwelling thereon, shall be authorized to enter with the register of the proper land office, by legal subdivisions, one quarter section of land, to include the residence of the claimant, upon paying to the United States the minimum price of said land, subject to certain specified exceptions, among which is that no lands included in any reservation by any treaty, law, or proclamation of the President, or reserved for salines, or for the support of schools, or for other purposes, shall be liable to entry. By other sections various provisions are enacted for the determination of conflicting claims, and the preservation of proofs of settlement and improvement. When all the prerequisites are complied with, and the claimant has paid the price of the land, he is entitled to a certificate of entry from the register and receiver, and after a reasonable time to enable the land officers to ascertain whether there are any superior claims, and whether the claimant has complied, in all respects, with the law, he is entitled to a patent of the United States.

By the sixth section of the act of Congress of March 3d, 1853, entitled 'An act to provide for the survey of the public lands in California, the granting of pre-emption rights therein, and for other purposes,' all the public lands of the United States in California, whether surveyed or unsurveyed, are made, with certain exceptions, subject to the above act of September 4th, 1841, 'with all the exceptions, conditions, and limitations therein,' with a proviso that when unsurveyed lands are claimed by pre-emption notice of the claim shall be filed within three months after the return of the plats of surveys to the land offices, and proof and payment shall be made prior to the day appointed by the President's proclamation for the commencement of the sale including such lands; the entry of such claims to be made by legal subdivisions according to the United States survey; and also that settlement on unsurveyed lands shall be authorized only where the settlement is made within one year after the passage of the act. This last limitation was subsequently extended by act of Congress two years from March 1st, 1854.

In some of the States and Territories, by acts of Congress, settlemtnts are authorized on unsurveyed lands, and by the 7th section of the act of May 30th, 1862, 'to reduce the expenses of the survey and sale of the public lands of the United States,' this privilege was extended to California.

Under this last act, Hutchings conceived that he had a right to settle upon the unsurveyed lands of the United States in the Yosemite Valley, and by the above acts of 1841 and 1853 could acquire and had acquired such a vested interest in the premises, to the extent of one hundred and sixty acres, that the United States could not transfer their title to the State, or dedicate the land to any public use. He therefore refused to surrender the possession to the commissioners appointed by the State. The defendant also refused to take a lease form the commissioners, though offered to him at a mere nominal rate for ten years. They accordingly, in November, 1867, brought the present action, alleging in their complaint that the State was owner in fee of the premises, and that they were entitled to the possession as commissioners of the State.

Pending the action, and on the 20th of February, 1868, the legislature of California passed an act granting to the defendant and one Lamon, each, one hundred and sixty acres of land in the Yosemite Valley; the part granted to the defendant containing his improvements and the premises in controversy. The second section of the act provided that the act should take effect from and after its ratification by Congress. It had never been thus ratified. A bill to ratify it passed the House of Representatives, but failed in the Senate.

The District Court of the State, in which the action was commenced, adjudged that the defendant was right in his view of his interest, and accordingly gave judgment in his favor. The Supreme Court of the State reversed the judgment, and ordered judgment for the possession of the premises in favor of the commissioners. The defendant now brought the case here for review.

Mr. G. W. Julian, for the plaintiff in error:

The question is, whether Congress, in granting the valley to the State of California, could divest the right of Hutchings under the pre-emption laws? In other words, had Hutchings such a vested right or interest, that Congress could not divest it by the grant of it to another party?

The case of Lytle v. The State of Arkansas is in point. There Cloyes, the pre-emptor, selected his claim under the act of Congress of May 29th, 1830, authorizing and regulating pre-emptions. A later act, dated June 15th, 1832, granted to the Territory of Arkansas one thousand acres for a court-house and jail at Little Rock, including the tract claimed. Before this grant the pre-emption right of Cloyes had accrued under the act of 1830, and he had proved his right, and done everything he could do to perfect it. The court says:

'By this grant to Arkansas, Congress could not have intended to impair vested rights. The grants of the one thousand acres and of the other tracts must be so construed as not to interfere with the pre-emption of Cloyes.'

This case is referred to in the case of Barnard v. Ashley. The court says:

'In Lytle's case we declared that the occupant was wrongfully deprived of his lawful rights of entry under the pre-emption laws, and the title set up under the selection of the governor of Arkansas was decreed to Cloyes, the claimant: this court holding his claim to the land to have been a legal right by virtue of the occupancy and cultivation, subject to be defeated only by a failure to perform the conditions of making proof and tendering the purchase-money.'

This, it will be seen, deals with the right of pre-emption as 'a legal right, by virtue of the occupancy and cultivation' of the pre-emptor, 'subject to be defeated only by a failure to perform the conditions of making proof and tendering the purchase-money.'

The court adds:

'The claim of pre-emption is not that shadowy thing which by some it is considered to be. Until sanctioned by law it has no existence as a substantive right; but when covered by the law, it becomes a legal right, subject to be defeated only by a failure to perform the conditions annexed to it.'

If this is true of Cloyes, it must be equally true of Hutchings, and he can only lose his claim 'by a failure to perform the conditions annexed to it,' when those conditions shall be tendered for his performance. In giving the opinion in Lytle v. The State of Arkansas, the court says:

'The adventurous pioneer, who is found in advance of our settlements, encounters many hardships, and not unfrequently dangers from savage incursions. He is generally poor, and it is fit that his enterprise should be rewarded by the privilege of purchasing the favorite spot selected by him, not to exceed one hundred and sixty acres. That this is the national feeling, is shown by the course of legislation for many years.'This expresses the spirit and policy of the pre-emption laws, as they have been understood by the whole country till quite recently. The pioneer settler has been treated as the favorite of the law. The court says further:

'It is a well-established principle, that when an individual, in the prosecution of a right, does everything which the law requires him to do, and he fails to attain his right by the misconduct or neglect of a public officer, the law will protect him. In this case the pre-emptive right of Cloyes having been proved, and an offer to pay the money for the land claimed by him, under the act of 1830, nothing more could be done by him, and nothing more could be required of him under that act. And subsequently when he paid the money to the receiver, under subsequent acts the surveys being returned, he could do nothing more than offer to enter the land, which the register would not permit him to do This claim of pre-emption stands before us in a light not less favorable than it would have stood if Cloyes or his representatives had been permitted by the land officers to do what, in this respect, was offered to be done.'

Cloyes was held excused, on the ground that he had doen everything in his power to perfect his claim. Hutchings did the same. Cloyes had gone further in complying with the conditions of title than Hutchings has done, but each went as far as he could, and neither was in default. The good faith of the government is involved in both cases. There is no justice in the argument that the pre-emptor, after having made valuable improvements, and expended his money thereon, and complied with all the conditions of title which were within his power, may nevertheless be driven from his possession, his improvements confiscated, and the land conveyed to another, with notice of all the facts, who can hold it discharged from all the equities of the pre-emptor.

It is conceded on all hands, that if a pre-emptor, in addition to the other acts required of him, has paid for the land, he has acquired a vested right to it, and the government is bound to give him the title; but this concession yields the whole case. If the government is bound by its good faith to protect the settler at one stage of his claim, and as to one condition of title, it is bound to protect him at all stages, and as to every condition. The condition of final payment is no more vital or sacred, either to the settler or the government, than any of those which precede it. In the language already quoted, 'it is fit that his enterprise should be rewarded by the privilege of purchasing the favorite spot selected by him, not to exceed one hundred and sixty acres;' but of what value is this 'privilege,' if the settler holds it at the mere will of the government, which may cut it off at any moment? And what must be thought of a government which holds its individual citizens to perfect good faith, by compelling them to perform their engagements, and yet violates its own faith to the settler, that he should have a home on its lands on specified conditions, with which he is ready and willing to comply? Nor is this question answered by saying that the settler has the option to abandon his pre-emption at any time, and that the government, therefore, should be equally free. The option of the pre-emptor is properly given by the law; for if he abandons his claim, the land, with the improvements made upon it, reverts to the government, which loses nothing. The transaction has been likened to a contract for the sale of lands, in which the owner retains the title as security for the purchase-money. On the other hand, if the settler, after spending his money and his time in improving his pre-emption, and making for himself a home, as in the present case, is driven away by the government, without any default on his part, he loses all unjustly, and is without remedy.

This case of Lytle v. The State of Arkansas deserves particular regard, not only because the principles laid down in it settle the case under consideration in favor of Hutchings, but because it sustains the true land policy of the nation, as universally understood, till within a very recent period.

The counsel on the other side will rely on Frisbie v. Whitney; the only authority of any Federal court which can be cited in favor of the doctrine now set up as to the rights of settlers under the pre-emption laws. The case is in the face of the explicit language of the court in the case of Lytle v. The State of Arkansas, of which, however, it takes no notice. It is against the current of authorities on the question in the Federal courts, and against the whole spirit and policy of our land laws. It refers to the different sections of the pre-emption act of 1841, but takes no notice of the judicial constructions of the act in favor of the rights of the settler under that act. It cites in support of the points affirmed sundry opinions of attorneys-general and decisions of State courts, which at best are not binding and conclusive authorities in this court; while it fails to discuss or scarcely to refer to the strong cases decided in the Federal courts in favor of an opposite interpretation of the right of pre-emption.

The facts also of the case of Whitney v. Frisbie are peculiar; and the claim of Hutchings cannot be held as conclusively settled adversely, to our view, by that single case.

Mr. E. L. Goold, contra.

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

title: The Yosemite Valley Case


text: Talk:The Yosemite Valley Case

title: Talk:The Yosemite Valley Case