text:
Chatfield v. Boyle/Opinion of the Court

Boyle & Co., a mercantile firm doing business at Memphis, Tenn., being insolvent, made, on the 17th of November, 1876, a general assignment to J. A. Omberg for the benefit of all their creditors. A deed of trust, in the nature of a mortgage, had been previously executed, conveying some of the property of the firm as security for a debt said to be owing to Jefferson Davis. At the time of this assignment, the total indebtedness of the firm to creditors other than Davis and another person who has since been paid out of securities he held at the time,

was ............................ $17,233.

The debt claimed to be due Davis was. 25,000.

Chatfield and Woods, creditors of the firm to the amount of $3,440.37, filed a bill in equity in one of the State courts of Tennessee, on the 13th of January, 1877, against Boyle, Davis, and others, the object of which was to set aside the deed of trust in favor of Davis, and also to prevent him from participating in the benefits of the general assignment, on the ground that he was not in reality a creditor of the firm, but one of the partners. This suit was brought, as alleged, in aid of the assignment and in behalf of all the creditors of the firm who might be entitled to come and join therein. Omberg, the assignee, was also joined as a complainant. As to him, the allegations in the bill are as follows: 'Complainant J. A. Omberg, as the assignee in said deed of assignment, comes at the request of the creditors as aforesaid, and claims the benefit of all the matters and circumstances in this bill set up in behalf of all the creditors of Boyle & Co., and especially in behalf of all those creditors who may be hereafter made parties hereto, and may by proper averments and proof make good their claim, to be paid out of the proceeds of the property hereby proceeded against, and asks for them, and each of them, all the relief, under and by virtue and in aid of said assignment, to which they or either or each of them may as creditors by entitled as against defendant Davis or other defendants.'

During the pendency of the suit in the State court the property held under the trust for the benefit of Davis was sold with the consent of all parties, and realized $2,951.10, which is now in court subject to any decree that may be finally rendered. The assignee has also disposed of all the remaining property embraced in the assignment, and in the distribution that has been made of the proceeds, $3,403.81 was set apart for Davis, if he shall be adjudged to be a creditor of the firm and not a partner. These two sums, amounting in the aggregate to $6,354.91, constitute the entire fund about which the dispute in the case arises.

On the 16th of March, 1877, the Powers Paper Company, Edwin Hoole, and L. Snider & Sons, also creditors of the firm, were, on their own petition, admitted as parties complainant. Their claims were respectively as follows:--

Powers Paper Company............. $2,689.

Edward Hoole...................... 1,232.

On the 23d of March, 1877, the following order was entered in the suit: 'In this cause it appearing to the court by a statement of J. A. Omberg that all the creditors who have demanded of James A. Omberg, the assignee, to join in this litigation, have come in and had themselves made parties therein, it is, therefore, on motion, ordered that this bill be dismissed, so far as said Omberg is concerned, and he go hence without day.'

On the next day, March 24, S. A. Tower & Co. and H. B. Graham & Brothers were, on their petition, made parties. Their claims are as follows:--

No other parties have ever appeared to claim the benefit of the suit. The aggregate of all the several claims represented by all the complainants is $9,672.43.

On the 4th of April, 1877, after Omberg had been dismissed from the case, the remaining complainants united in a petition for the removal of the suit to the Circuit Court of the United States for the Western District of Tennessee, which was afterwards effected. Answers were filed and testimony taken in the Circuit Court. Upon final hearing the bill was dismissed. From the decree to that effect all the complainants united in this appeal. The appellees now move to dismiss because the matter in dispute does not exceed the sum of $5,000. In support of this motion two grounds are relied on. They are:--

1. That the claims of the several complainants are separate and distinct, and cannot be united for the purpose of making up the amount necessary to give us jurisdiction. The effort in this connection is to bring the case within the operation of the principle under which motions to dismiss were granted in Seaver v. Bigelows, 5 Wall. 208; Rich v. Lambert, 12 How, 347; Oliver v. Alexander, 6 Pet. 143; Stratton v. Jarvis, 8 id. 4; and Paving Company v. Mulford, 100 U.S. 147.

2. That the matter in dispute is not the whole amount of the fund in court which is claimed by Davis, but only so much as would be distributable to the complainants under the assignment, if Davis is adjudged to be a partner and not a creditor. For this Terry v. Hatch (93 U.S. 44) is relied on.

Without considering the first of these propositions, we think it clear the case comes within the last. These appellants on this appeal represent no one but themselves. Their rights here are just what Omberg asked for himself, that is to say, such as belong to creditors who in this suit make good their claim to be paid under the assignment out of the fund proceeded against. The complainants do not necessarily represent all the creditors entitled to the benefits of the assignment, neither have they assumed anything of the kind. They ask only for such relief as belongs to those who actually come in according to their invitation. They are in no situation to appropriate to themselves the whole of the fund. The other creditors may certainly abandon their interest and permit it to go to Davis if they choose. The complainants cannot compel them to take it whether they want it or not. By not coming into the suit they, in effect, have elected not to contend with Davis for their share, and to treat him as a creditor rather than a partner. When Omberg went out of the suit all the creditors had come in who wanted him to proceed. Under these circumstances, if the bill had been sustained, no opportunity need have been given other creditors to come in. The court might very properly have said that, as they had stayed out until all risks of liability for costs and expenses were gone, they should not then be admitted. Such being the case, a decree would have been entered in favor of the complainants for their distributive shares of the fund, and no more. The rest would have remained for Davis, the same as though no suit had been begun. The fund is $6,354.91, and the debts entitled to the benefit of the assignment, $17,233.63, of which the complainants represent only $9,672.43. Under this state of facts the whole of the distributive shares of the complainants, if they are successful, will be less than five thousand dollars, not enough to give us jurisdiction. Upon an appeal we will not consider whether others may come in if we reverse the decree. We look only to the parties who are actually before us. The case is, therefore, within the rule stated in Terry v. Hatch (supra), and the motion to dismiss is

Granted.

MR. JUSTICE MATTHEWS, having been of counsel in the court below, took no part in the decision of this motion.

title: Chatfield v. Boyle/Opinion of the Court


text: Talk:Chatfield v. Boyle/Opinion of the Court

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


text:
Hecht v. Boughton

MOTION to dismiss a writ of error to the Supreme Court of the Territory of Wyoming.

Mr. Thomas Turner in support of the motion.

Mr. E. W. Mann, contra.

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

title: Hecht v. Boughton


text: Talk:Hecht v. Boughton

title: Talk:Hecht v. Boughton


text:
Hecht v. Boughton/Opinion of the Court

This is a writ of error to the Supreme Court of the Territory of Wyoming, to bring up for review the judgment in a suit where there was not a trial by jury. A motion is now made to dismiss, because the case should have been brought here by appeal, and not by writ of error.

The second section of the act of April 7, 1874, c. 80 (18 Stat., pt. 3, p. 27), is as follows:--

'That the appellate jurisdiction of the Supreme Court of the     United States over the judgments and decrees of said      territorial courts in cases of trial by jury shall be      exercised by writ of error, and in all other cases by appeal,      according to such rules and regulations as to form and modes      of proceeding as the said Supreme Court have prescribed or      may hereafter prescribe:

'Provided, that on appeal, instead of the evidence at large,     a statement of the facts of the case in the nature of a      special verdict, and also the rulings of the court on the      admission or rejection of evidence when excepted to, shall be      made and certified by the court below, and transmitted to the      Supreme Court, together with the transcript of the      proceedings, and judgment or decree; but no appellate      proceedings in said Supreme Court, heretofore taken upon any      such judgment or decree, shall be invalidated by reason of      being instituted by writ of error or appeal:

'And provided further, that the appellate court may make any     order in any case heretofore appealed which may be necessary      to save the rights of parties; and that this act shall not      apply to cases now pending in the Supreme Court of the United      States, where the record has already been filed.' This statute seems to us conclusive of the present motion. In allowing legal and equitable remedies to be sought in the same action before the territorial courts, Congress saw fit to establish an inflexible rule by which it could be determined whether a case should be brought here from those courts for review by writ of error or appeal, and provided that cases tried by a jury should come on writ of error, and all others by appeal. This makes the form of proceeding depend on the single fact of whether there has been, or not, a trial by jury. Stringfellow v. Cain, 99 U.S. 610. We are not to consider the testimony in any case. Upon a writ of error we are confined to the bill of exceptions, or questions of law otherwise presented by the record; and upon an appeal, to the statement of facts and rulings certified by the court below. The facts set forth in the statement which must come up with the appeal are conclusive on us. Under these circumstances, the form of proceeding to get a review is not of so much importance as certainty about what is to be done.

We cannot agree with counsel for the plaintiff in error that the act of Congress was intended to apply only to those Territories where the distinction between suits at law and suits in equity had actually been abolished. From the preamble it may fairly be inferred that the object of the legislation was to prevent embarrassments growing out of the mingling of jurisdictions; but the statute as it stands clearly applies to all territorial courts.

Motion granted.

title: Hecht v. Boughton/Opinion of the Court


text: Talk:Hecht v. Boughton/Opinion of the Court


text:
Davenport v. County of Dodge

ERROR to the Circuit Court of the United States for the District of Nebraska.

The facts are stated in the opinion of the court.

Mr. W. H. Munger and Mr. E. Wakeley for the plaintiff in error.

Mr. William Marshall for the defendant in error.

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

title: Davenport v. County of Dodge


text: Talk:Davenport v. County of Dodge

title: Talk:Davenport v. County of Dodge


text:
Davenport v. County of Dodge/Opinion of the Court

By a statute of Nebraska, passed in 1869, 'to enable counties, cities, towns, and precincts to borrow money on their bonds, or to issue bonds to aid in the construction or completion of works of internal improvement in this State, and to legalize bonds already issued for such purposes,' the legal voters of counties and cities were authorized to vote bonds for such purposes, and upon a favorable vote, the county commissioners in case of a county, and the city council in case of a city, were to issue the bonds as voted, which were to 'continue a subsisting liability against said city or county' until paid. It was further made the duty of the proper officer annually to cause to be levied, collected, and paid over to the holders of such bonds 'a special tax on all taxable property within said county or city, sufficient to pay' the interest and principal as they fell due. Sects. 6 and 7 of the act are as follows:--

'SECT. 6. Any county or city which shall have issued its     bonds in pursuance of this act, shall be estopped from      pleading want of consideration therefor, and the proper      officers of such county or city may be compelled, by mandamus or otherwise, to levy the      tax herein provided to pay the same.

'SECT. 7. Any precinct, in any organized county of this     State, shall have the privilege of voting to aid works of      internal improvement, and be entitled to all the privileges      conferred upon counties and cities by the provisions of this      act; and in such case the precinct election shall be governed      in the same manner as is provided in this act, so far as the      same is applicable, and the county commissioners shall issue      special bonds for such precinct, and the tax to pay the same      shall be levied upon the property within the bounds of such      precinct. Such precinct bonds shall be the same as other     bonds, but shall contain a statement showing the special      nature of such bonds.' General Statutes of Neb. 448.

Under the authority of sect. 2 bonds were issued by the county commissioners of Dodge County in the following form:

'UNITED STATES OF AMERICA, STATE OF NEBRASKA. *

'It is hereby certified that Fremont precinct, in the county     of Dodge, in the State of Nebraska, is indebted unto the      bearer in the sum of one thousand dollars, payable on or      before twenty years after date, with interest at the rate of      ten per cent per annum from date. Interest payable annually     on the presentation of the proper coupons hereto annexed. Principal payable at the office of the county treasurer, in     Fremont, Dodge County, Nebraska; interest payable at the      Ocean National Bank, in the city of New York.

'This bond is one of a series issued in pursuance of and in     accordance with a vote of the electors of said Fremont      precinct at a special election held on the 11th day of      November, 1870, at which time the following proposition was      submitted:--

'Shall the county commissioners of Dodge County, Nebraska,     issue their special bonds on Fremont precinct, in said      county, to the amount not to exceed fifty thousand dollars,      to be expended and appropriated by the county commissioners,      or as much thereof as is necessary, in building a      wagon-bridge across the Platte River, in said precinct; said      bonds to be made payable on or before twenty years after      date, bearing interest at the rate of ten per cent per annum,      payable annually? Which proposition was duly elected,     adopted, and accepted by a majority of the electors of said      precinct voting in favor of the proposition.

'And whereas the Smith Bridge Company, of Toledo, Ohio, have     entered into a contract with said county commissioners to      furnish the necessary materials, and to build and construct      said bridge referred to in the foregoing proposition:

'Wherefore this bond, with others, is issued in pursuance     thereof, as well as under the provision of an act of the      legislature of the State of Nebraska, approved February 15th,      1869, entitled 'An Act to enable counties, cities, and      precincts to borrow money on their bonds, to aid in the      construction or completion of works of internal improvement      in this State, and to legalize bonds already issued for such      purpose.'

'In witness whereof we, the said county commissioners of said     Dodge County, have hereunto set our hands, this first day of      September, A. D. 1871.

'GEORGE F. BLANCHARD,

'A. C. BRIGGS,

'JOHN P. EATON,

'County Commissioners.

'Attest:

[SEAL.] 'A. G. BRUGH, County Clerk.'

Default having been made in the payment of sundry coupons attached to these bonds, Davenport, the plaintiff in error, brought suit against the county for the recovery thereof, in the Circuit Court of the United States for the District of Nebraska. The petition set forth the issue of the bonds according to the facts, and prayed judgment 'for the sum of eight hundred and fifty dollars and costs of suit, said judgment to be collected by a tax upon the taxable property within the territory comprising said Fremont precinct at the time said bonds were voted and issued.' The county demurred to the petition, and at the hearing the following questions arose:--

'1. Whether upon the allegations of the amended petition filed in said court on the twelfth day of May, 1881, the said county of Dodge is liable to a suit in which judgment can be rendered against said county of Dodge, on the bonds and coupons therein declared upon and set out.

'2. Whether upon the allegations of the said petition the plaintiff is entitled to recover a judgment in form against the county of Dodge, to be satisfied or collected only by levy of a tax on the taxable property in Fremont precinct, as prayed for in said petition.'

Upon these questions the opinions of the circuit justice and district judge holding the court were opposed, and that disagreement has been duly certified here. The opinion of the circuit justice being that the questions should be answered in the negative, the demurrer was sustained and judgment given for the defendant. From that judgment this writ of error has been brought, and the case is now here for determination on the certificate of division.

When county bonds are issued under the statute in question, it is expressly provided that they shall constitute a debt against the county, to be paid by the levy and collection of taxes on all the taxable property within the county. If aid is voted by a precinct, bonds also are to be issued, differing only from county bonds in that they are to be paid from taxes levied on property within a precinct. 'As to the several duties of the county commissioners respecting them,' says the Supreme Court of Nebraska, in State v. Thorne (9 Neb. 458, 461), 'the law makes no distinction whatever between precinct and county bonds. They must issue both, and when issued it is their duty to keep a record of the kinds and amounts, as well as the times and places of payment, and make provisions therefor, as the statute directs. In the case of precinct bonds the means of payment must be raised by a tax levied by the commissioners 'upon the property within the bounds of such precinct,' which must be collected in the same manner as is the ordinary county revenue, and through the agency of the county treasurer, whose only duty in connection with the fund arising therefrom, when collected, is to hold it subject to the order of the county commissioners directing its application to the object for which it was intended. As before stated, the management of this sort of precinct indebtedness is made to conform to that of counties of like character. The sole distinction is that it concerns a distinct portion only instead of the whole body of the county. The money with which to meet the obligations of a precinct is raised and paid out with the same formality, and through precisely the same agencies, as are the ordinary county funds, and, except when there is some special provision of statute authorizing it, payment therefrom can be legally made only on 'warrants by the county commissioners according to law."

A bond implies an obligor bound to do what it is agreed shall be done. Precincts in Nebraska are but political subdivisions of a county. They have no corporate existence, and cannot contract or be contracted with. They have no corporate officers, and can neither sue nor be sued. Certain officers are elected by the voters of precincts for political, administrative, and judicial purposes, but they are in no sense the representatives of the people of the Territory as a municipality. State v. Dodge County, 10 Neb. 20. Precincts are governed by the county commissioners, the governing board of the county, and by the appropriate officers of the State. Their relation to a county is like that of a ward to a city. Having no corporate existence, no separate municipal authority, they cannot, says again the Supreme Court of the State, in the case last cited, 'enter into contracts directly or indirectly, nor assume obligations which a court might be called on to enforce.' Hence, the precinct cannot become the obligor of precinct bonds, and we think it follows that the county, which does have a corporate existence, and can contract and be contracted with, and upon whose officers is imposed the duty not only of issuing the bonds, but of providing for the payment of them, is the political entity bound by the obligation and charged with the debt created thereby. The only difference between the two kinds of debt is, that in one all the taxable property of the county is charged with its payment, and in the other only a part. In both the mandamus to enforce the levy and collection of the necessary taxes lies to the proper officers of the county alone. This remedy is expressly provided for, and thus the presumption that might otherwise arise of an intention to erect the precinct into a corporation for the purpose of these obligations, because, without it, the bonds could not be enforced, is rebutted. We think, therefore, that the special bonds which the county commissioners are to issue for the precincts are, in legal effect, the special bonds of the county payable out of a special fund to be raised in a special way. Although the form of expression in the Nebraska statute is somewhat different from that in Missouri, which we were called on to consider in County of Cass v. Johnston (95 U.S. 360), we think the legal effect of it is the same. In Missouri it was provided that the bonds should be in the name of the county; but in Nebraska there can be no bond except it be of the county, and as a bond is to be made, it necessarily follows that the county must make it. In express terms it is stated that precinct bonds shall be the same as other bonds, that is to say, county bonds, but must contain a statement of their special nature, which confines the area of taxable property to a part rather than the whole of the county.

If there is nothing else in the case, therefore, we think it comes within County of Cass v. Johnston (supra), and that an action at law will lie in the courts of the United States against the county for the recovery of the special judgment asked for. County Commissioners v. Chandler (96 U.S. 205) was upon coupons attached to some of this same issue of bonds. Judgment had been rendered against the county in the court below, and that judgment was affirmed here. No one seemed to think then that the defence now relied on was good, for it was not mentioned in this court or below. The defence then made related only to the authority of a precinct to vote aid for the building of a toll-bridge.

It is contended, however, that as the statute which authorizes the creation of the liability provides a special remedy for its enforcement, this suit cannot be maintained. The remedy provided is by mandamus to compel the proper officers to levy the necessary tax. In County of Greene v. Daniel (102 U.S. 187), a case similar to this in many of its features, we said a suit to get judgment on bonds or coupons was part of the necessary machinery which the courts of the United States must use in enforcing this remedy, and that the jurisdiction of those courts is not to be ousted simply because in the courts of In the State courts the liability may, as we understand the case of State v. Dodge County (supra), be determined in the proceedings for the mandamus. Such is not, however, the rule in the courts of the United States, where the writ of mandamus is only granted in aid of an existing jurisdiction. In those courts the judgment at law is necessary to support the writ, which is in the nature of an execution to carry the judgment into effect. County of Greene v. Daniel, supra; Graham v. Norton, 15 Wall. 427; Bath County v. Amy, 13 id. 244. As the judgment asked for is special, and will only entitle the plaintiff to payment through the instrumentality of the special tax to be levied, the suit as it now stands is in reality only a way of getting the remedy the statute provides. The only execution that can issue on the judgment will be the mandamus.

The Supreme Court of the State, in State v. Dodge County (supra), declined to issue a mandamus for the levy of taxes to pay a judgment in the Circuit Court of the United States on some of the coupons attached to this class of bonds, and in the opinion declared the judgment a nullity; but this we must understand to mean a nullity as the foundation of any proceedings in that court for its enforcement. To enable the courts of the United States to afford the remedy which the law has specially provided, such a judgment is a necessary preliminary. In fact, a judgment is but one of the steps in the proceeding to obtain the mandamus. The statute has given a remedy by mandamus, but has not undertaken to regulate the process by which it is to be secured. That depends on the practice established in the several tribunals from which it is to be obtained. The practice in the State courts requires one mode of proceeding, that in the courts of the United States another; but the result is the same in both, to wit, the order for the levy and collection of the requisite tax.

It follows that each of the questions certified must be answered in the affirmative.

Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.


text: Talk:Davenport v. County of Dodge/Opinion of the Court


text:
United States v. Tyler

APPEAL from the Court of Claims.

The facts are stated in the opinion of the court.

The Solicitor-General for the United States.

Mr. Richard W. Tyler and Mr. Robert B. Warden for the appellee.

MR. JUSTICE MILLER delivered the opinion of the court.

title: United States v. Tyler


text: Talk:United States v. Tyler

title: Talk:United States v. Tyler


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

The question in this case is, whether the appellee, who, on the fifteenth day of December, 1870, was retired from the army of the United States with the rank of captain, on account of wounds received in battle, is entitled to the benefit of the statute which increases the pay of officers by ten per cent for every period of five years' service.

The law for this increased compensation is thus expressed in the Revised Statutes:--

'SECT. 1262. There shall be allowed and paid to each     commissioned officer below the rank of brigadier-general,      including chaplains, and others having assimilated rank or      pay, ten per centum of their current yearly pay for each term      of five years' service.

'SECT. 1263. The total amount of such increase for length of     service shall in no case exceed forty per centum of their      current yearly pay of the grade as prescribed by law.'

These sections are taken from the act of July 15, 1870, c. 294, and constituted the law on that subject when the appellee was retired, and their proper construction is the measure of his rights in this controversy. Sect. 1276 of the Revised Statutes was sect. 24 of the same statute, and is in the following language: 'Officers retired from active service shall receive seventy-five per centum of the pay of the rank upon which they are retired.'

Section 1275 provides that 'officers wholly retired from the service shall be entitled to receive upon their retirement one year's pay and allowances of the highest rank held by them, whether by staff or regimental commission, at the time of their retirement.'

There is, therefore, a manifest difference in the two kinds of retirement, namely, retiring from active service and retiring wholly and altogether from the service.

In the latter case such reward or compensation as Congress thought proper to bestow, namely, one year's pay and allowance, in addition to what was previously allowed, is given at once, and the connection is ended. In the former case the compensation is continued at a reduced rate, and the connection is continued, with a retirement from active service only.

The question is, therefore, whether an officer thus situated is in the service within the meaning of sect. 1262. That section allows an increase of pay for every five years' service. When the service ends, there can be no increase on that account. As long as the service continues, the increased pay applies whenever it amounts to five years.

The law under which these officers are retired does not require their consent, nor does it require that the order for their retirement shall be based upon any absolute incapacity for further service. It may be based upon age, which, being fixed at a minimum of sixty-two years, by no means implies such incapacity. It may be based upon wounds received in battle, but the person retired for this cause may, for many purposes, be a very useful officer.

The provisions of the statutes, and the uniform treatment of these officers, conform to this view, and necessarily imply that, while not required to perform full service, they are a part of the army, and may be assigned to such duty as the laws and regulations permit.

Section 1094 of the revision designates specifically by a catalogue of twenty-eight items, of what the army of the United States consists, and the twenty-seventh item of this enumeration is 'the officers of the army on the retired list.' They are then by law a part of the army.

Section 1256 enacts that 'officers retired from active service shall be entitled to wear the uniform of the rank on which they may be retired. They shall continue to be borne on the Army Register, and shall be subject to the rules and articles of war, and to trial by general court-martial for any breach thereof.'

Section 1259 declares that they may be assigned to duty at the Soldiers' Home; and sect. 1260, that they may be detailed to serve as professors in any college.

It is impossible to hold that men who are by statute declared to be a part of the army, who may wear its uniform, whose names shall be borne upon its register, who may be assigned by their superior officers to specified duties by detail as other officers are, who are subject to the rules and articles of war, and may be tried, not by a jury, as other citizens are, but by a military court-martial, for any breach of those rules, and who may finally be dismissed on such trial from the service in disgrace, are still not in the military service.

If Congress chose to provide for their qualified relief from active duty, and for a diminished compensation, it did not discharge them from their other obligations as part of the army of the United States. And if, because they were not required to do full service thereafter, their compensation was diminished by the statute twenty-five per cent, that is no reason why the accounting officers should add a further limitation of pay not found in any statute.

We are of opinion that retired officers are in the military service of the government, and that the increased pay of ten per cent for each five years' service applies to the years so passed in the service after retirement as well as before.

We also hold that the words 'current yearly pay,' in sect. 1262, require that, when the increased pay for any period of five years is to commence, the ten per cent must be counted on the regular salary added to its increase by any previous periods of five years; so that the original salary of the rank, and any additions of ten per cent previously earned for periods of five years, constitute the current yearly pay on which said ten per cent is to be calculated.

Judgment affirmed.


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


text:
Burley v. Flint

APPEAL from the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

Mr. Francis H. Kales for the appellant.

Mr. E. B. McCagg for the appellee.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Burley v. Flint


text: Talk:Burley v. Flint

title: Talk:Burley v. Flint


text:
Burley v. Flint/Opinion of the Court

Flint obtained, on the 19th of October, 1877, a decree foreclosing a mortgage against Kriegh, the mortgagor, Burley, his assignee in bankruptcy, and others. The decree ordered a sale according to the usual course and practice of the court, which, in the case of Brine v. Insurance Company (96 U.S. 627), we held to mean a sale without any right of redemption. Such a sale was made to Flint. An order confirming it, and for a deed, and the delivery of possession, and expressly cutting off all right of redemption, was entered by the court on the 13th of March, 1878, with a further decree against the assignee for payment, out of assets pro rata, of a balance not satisfied by the sale.

On the seventeenth day of October, 1879, Burley filed in the same court, but without leave, a bill of review, seeking to reverse so much of the former decrees of the court as denied the statutory right of redemption given by the laws of Illinois in regard to the land sold under such decrees.

A hearing was had on a motion to dismiss, which, by consent of counsel, as the record states, was to be treated also as a demurrer. The court dismissed the bill, from which order this appeal is prosecuted by Burley.

The appellant in his bill does not seek to reverse the order of sale to satisfy the amount found due to Flint, nor ask that the sale thereunder be set aside, and a new sale ordered. He does not offer to redeem, by payment of the amount due on the original mortgage, or to pay the amount bid at the sale by Flint, nor tender any sum as assurance that he will do so. He simply and purely asks that so much of the decree as forecloses this statutory right to redeem may be reviewed and reversed.

What will such an order avail him? The decree and the sale under it will still stand good. The time within which a defendant can, by the statute of Illinois, redeem, has long since passed, and he has made no offer to redeem. The sale was made prior to Feb. 23, 1878, the date of the master's report, and the present bill filed Oct. 17, 1879, twenty months afterwards, and at a time when, by the statute, both the defendant and his judgment creditors had ceased to have any right of redemption.

If the appellant had appealed from the original decree to this court his remedy was plain, and the decree would have been reversed. The same result would probably have followed an appeal from the order confirming the sale and cutting off the right to redeem. He did not see proper to follow such a course, but seeks by this bill of review to let the original decree and sale stand, but to have a declaration of the court that the order foreclosing the statutory right of redemption be reversed.

How can this avail him since his time for redemption had expired before he filed his bill? It would be of no use to him unless the court should go further, and make a decree that he now has the right to redeem in the same manner as if he had tendered the money within the twelve or the fifteen months which the law allowed for that purpose.

We do not think the court should decree that he may now redeem on payment of the sum bid and interest. If he designed to avail himself of the right of redemption purely statutory, he should bring himself within the terms of the statute.

Such is the view of a case precisely similar taken by the Supreme Court of Illinois.

That court, in the case of Suitterlin v. The Connecticut Mutual Insurance Co. (90 Ill. 483), while recognizing the doctrine of the case of Brine v. Insurance Company, holds that the party seeking to redeem under such a decree and sale as the one before us, can do so by making the offer within the time prescribed by the statute, and cannot do so afterwards. We concur in that view.

Decree affirmed.

MR. JUSTICE GRAY did not sit in this case, nor take any part in deciding it.

title: Burley v. Flint/Opinion of the Court


text: Talk:Burley v. Flint/Opinion of the Court


text:
Scheefer v. Railroad Company

ERROR to the Circuit Court of the United States for the Eastern District of Virginia.

The facts are stated in the opinion of the court.

Mr. George A. King, with whom were Mr. Charles King and Mr. John B. Sanborn, for the plaintiffs in error.

Mr. Linden Kent, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Scheefer v. Railroad Company


text: Talk:Scheefer v. Railroad Company

title: Talk:Scheefer v. Railroad Company


text:
Scheefer v. Railroad Company/Opinion of the Court

The plaintiffs, executors of Charles Scheffer, deceased, brought this action to recover of the Washington City, Virginia Midland, and Great Southern Railroad Company damages for his death, which they allege resulted from the negligence of the company while carrying him on its road. The defendant's demurrer to their declaration was sustained, and to reverse the judgment rendered thereon they sued out this writ of error.

The statute of Virginia, under which the action was brought, is, as to the question raised on the demurrer, identical with those of all the other States, giving the right of recovery when the death is caused by such default or neglect as would have entitled the party injured to recover damages if death had not ensued.

The declaration, after alleging the carelessness of the officers of the company, by which a collision occurred between the train on which Scheffer was and another train, on the seventh day of December, 1874, proceeds as follows:--

'Whereby said sleeping-car was rent, broken, torn, and shattered, and by means whereof the said Charles Scheffer was cut, bruised, maimed, and disfigured, wounded, lamed, and injured about his head, face, neck, back, and spine, and by reason whereof the said Charles Scheffer became and was sick, sore, lame, and disordered in mind and body, and in his brain and spine, and by means whereof phantasms, illusions, and forebodings of unendurable evils to come upon him, the said Charles Scheffer, were produced and caused upon the brain and mind of him, the said Charles Scheffer, which disease, so produced as aforesaid, baffled all medical skill, and continued constantly to disturb, harass, annoy, and prostrate the nervous system of him, the said Charles Scheffer, to wit, from the seventh day of December, A. D. 1874, to the eighth day of August, 1875, when said phantasms, illusions, and forebodings, produced as aforesaid, overcame and prostrated all his reasoning powers, and induced him, the said Charles Scheffer, to take his life in an effort to avoid said phantasms, illusions, and forebodings, which he then and there did, whereby and by means of the careless, unskilful, and negligent acts of the said defendant aforesaid, the said Charles Scheffer, to wit, on the eighth day of August, 1875, lost his life and died, leaving him surviving a wife and children.'

The Circuit Court sustained the demurrer on the ground that the death of Scheffer was not due to the negligence of the company in the judicial sense which made it liable under the statute. That the relation of such negligence was too remote as a cause of the death to justify recovery, the proximate cause being the suicide of the decedent,-his death by his own immediate act.

In this opinion we concur.

Two cases are cited by counsel, decided in this court, on the subject of the remote and proximate causes of acts where the liability of the party sued depends on whether the act is held to be the one or the other; and, though relied on by plaintiffs, we think they both sustain the judgment of the Circuit Court.

The first of these is Insurance Company v. Tweed, 7 Wall. 44.

In that case a policy of fire insurance contained the usual clause of exception from liability for any loss which might occur 'by means of any invasion, insurrection, riot, or civil commotion, or any military or usurped power, explosion, earthquake, or hurricane.'

An explosion took place in the Marshall warehouse, which threw down the walls of the Alabama warehouse,-the one insured, situated across the street from Marshall warehouse,-and by this means, and by the sparks from the Eagle Mill, also fired by the explosion, facilitated by the direction of the wind, the Alabama warehouse was burned. This court held that the explosion was the proximate cause of the loss of the Alabama warehouse, because the fire extended at once from the Marshall warehouse, where the explosion occurred. The court said that no new or intervening cause occurred between the explosion and the burning of the Alabama warehouse. That if a new force or power had intervened, sufficient of itself to stand as the cause of the misfortune, the other must be considered as too remote.

This case went to the verge of the sound doctrine in holding the explosion to be the proximate cause of the loss of the Alabama warehouse; but it rested on the ground that no other proximate cause was found.

In Milwaukee & St. Paul Railway Co. v. Kellogg (94 U.S. 469), the sparks from a steam ferry-boat had, through the negligence of its owner, the defendant, set fire to an elevator. The sparks from the elevator had set fire to the plaintiff's saw-mill and lumber-yard, which were from three to four hundred feet from the elevator. The court was requested to charge the jury that the injury sustained by the plaintiff was too remote from the negligence to afford a ground for a recovery.

Instead of this, the court submitted to the jury to find 'whether the burning of the mill and lumber was the result naturally and reasonably to be expected from the burning of the elevator; whether it was a result which under the circumstances would not naturally follow from the burning of the elevator, and whether it was the result of the continued effect of the sparks from the steamboat, without the aid of other causes not reasonably to be expected.'

This court affirmed the ruling, and in commenting on the difficulty of ascertaining, in each case, the line between the proximate and the remote causes of a wrong for which a remedy is sought, said: 'It is admitted that the rule is difficult. But it is generally held that, in order to warrant a finding that negligence or an act not amounting to wanton wrong is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.' To the same effect is the language of the court in McDonald v. Snelling, 14 Allen (Mass.), 290.

Bringing the case before us to the test of these principles, it presents no difficulty. The proximate cause of the death of Scheffer was his own act of self-destruction. It was within the rule in both these cases a new cause, and a sufficient cause of death.

The argument is not sound which seeks to trace this immediate cause of the death through the previous stages of mental aberration, physical suffering, and eight months' disease and medical treatment to the original accident on the railroad. Such a course of possible or even logical argument would lead back to that 'great first cause least understood,' in which the train of all causation ends.

The suicide of Scheffer was not a result naturally and reasonably to be expected from the injury received on the train. It was not the natural and probable consequence, and could not have been foreseen in the light of the circumstances attending the negligence of the officers in charge of the train.

His insanity, as a cause of his final destruction, was as little the natural or probable result of the negligence of the railway officials, as his suicide, and each of these are casual or unexpected causes, intervening between the act which injured him, and his death.

Judgment affirmed.


text: Talk:Scheefer v. Railroad Company/Opinion of the Court


text:
Manufacturing Company v. Cowing

APPEAL from the Circuit Court of the United States for the Northern District of New York.

The facts are stated in the opinion of the court.

Mr. William F. Cogswell for the appellant.

Mr. Elisha Foote for the appellees.

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

title: Manufacturing Company v. Cowing


text: Talk:Manufacturing Company v. Cowing

title: Talk:Manufacturing Company v. Cowing


text:
Manufacturing Company v. Cowing/Opinion of the Court

The only questions raised on this appeal relate to the amount which the Goulds' Manufacturing Company is entitled to recover for the infringement of letters-patent No. 117,925, dated Aug. 8, 1871, for an improvement in pumps 'specially designed for drawing off the gas from oil-wells and conducting the same to the furnace of the engine.' The validity and the infringement of the letters are not disputed here.

After the letters and the infringement were established below, the case was sent to a master to ascertain the damages. He reported that 298 pumps had been manufactured and sold by the defendants, out of which a net profit of $47.71 on each pump had been realized, that being the difference between the cost of the material and labor used in making a pump and the price at which it was sold. Upon this report the court ruled that, as the patent was only for an improvement on an old pump, the profits for which the defendants were accountable must be confined to such as were realized from the manufacture of the patented improvement, and not from the whole pump as improved. For this reason a new reference was ordered to state the account on the proper basis.

The second report was, in its result, substantially the same as the first. The number of pumps made and sold was the same, and the profit on each pump estimated to be $46.46. The mode of calculating the profits was also the same, that is to say, on the second reference as on the first, the defendants were charged with the price at which they sold the pump as a whole, and credited only with the cost of labor and material used in the manufacture. The master on the second reference, however, reported further as follows:--

'I find as further facts from the evidence that the plaintiffs' pump, with their patented improvement, which they had introduced into the market, virtually controlled the market, and had superseded all the other pumps then in use for pumping gas, and the others were literally driven out of the market, as they could not be sold at the places where the plaintiffs' pump had been introduced. The defendants went into the very market where the plaintiffs' pump had been introduced, and where they had sold, and where plaintiffs were then supplying most of their pumps, and the defendants, in fact, went and employed Wenson, the former agent of the plaintiffs, to sell the pumps for them, and he, from being the plaintiffs' agent in the locality, made very ready sale of the same pumps for the defendants, and had not the defendants interfered in urging the pumps which they manufactured upon this local market the plaintiffs would certainly have had the whole market to themselves, and would, beyond doubt, have secured orders and supplied the demand of the market for the same number of pumps more than they did sell, as the defendants furnished, to wit, 298 pumps. The plaintiffs were, by their agent, in the field furnishing pumps in those oil regions, and would have supplied the market demand had not the defendants intervened and supplied to the market these 298 pumps.'

This finding as to the facts is, in its general effect, supported by the evidence. Notwithstanding this, however, the court, still adhering to its holding as to the rule of estimating profits, set aside the report, and inasmuch as the company had, on the second reference, failed to show what had been realized upon the principles of accounting prescribed, a final decree was entered in its favor for nominal damages only and costs. From that decree this appeal was taken by the company.

The rule applicable to this class of cases was well stated by Mr. Justice Strong, speaking for the whole court, in Mowry v. Whitney, 14 Wall. 620. The subject-matter of that suit was a patent for an improvement in the process of manufacturing car-wheels, and in respect to the profits resulting to an infringer from the use of the patented process, it was said, p. 651: 'The question to be determined. . . is, what advantage did the defendant derive from using the complainant's invention over what he had in using other processes then open to the public, and adequate to enable him to obtain an equally beneficial result. The fruits of that advantage are his profits.' It does not necessarily follow from this that where the patent is for one of the constituent parts, not for the whole of a machine, the profits are to be confined to what can be made by the manufacture and sale of the patented part separately. If, without the improvement, a machine adapted to the same uses can be made which will be valuable in the market, and salable, then, as was further said in that case, the inquiry is, 'What was the advantage in cost, in skill required, in convenience of operation or marketability,' gained by the use of the patented improvement? If the improvement is required to adapt the machine to a particular use, and there is no other way open to the public of supplying the demand for that use, then it is clear the infringer has by his infringement secured the advantage of a market he would not otherwise have had, and that the fruits of this advantage are the entire profits he has made in that market. Such, we think, is this case. Pumps for all ordinary, and many extraordinary, uses were very old; but, in the new developments of business, something was wanted to take the gas from the casing of an oil-well, and conduct it safely to the furnace of the engine. 'With that special purpose in view,' this inventor took the well-known parts of an ordinary double-action pump, changed some of them slightly in form, added a new device, and produced something which an improvement in pumps, he actually made an improved pump. For ordinary uses the improvement added nothing to the value of the old pump, but for the new and special purpose in view, the old pump was useless without the improvement. The testimony shows that there was no market for pumps adapted to this particular use, except in the oil-producing regions of Pennsylvania and Canada. The demand was limited, as well as local. Less than a thousand pumps actually supplied all who wanted them. But for that particular use no other pump could at the time be sold. If the appellant kept the control of its monopoly under the patent, it alone had the advantage of this market. Unless the appellees got the improved pumps, they could not become competitors in that field; and just to the extent they got into the field they drove the appellant out. Through their infringement they got the advantage of selling the pumps that had upon them the patented improvement. Without it no such sales would have been effected. The fruits of the advantage they gained by their infringement were, therefore, necessarily the profits they made on the entire sale.

This is an exceptional case. a limited locality required a particular kind of pump, to be used only in that locality for a special purpose. The market was not only limited to a particular locality, but it was unusually limited in demand. A single manufacturer, possessing the facilities the appellant had, could easily, and with reasonable promptness, fill every order that was made. There was no other pump that could successfully compete with that controlled by the patent. Under these circumstances it is easy to see that what has been the appellees' gain in this business must necessarily have been the appellant's loss, and consequently the appellant's damages are to be measured by the appellees' profits derived from their business in that special and limited market. This, as it seems to us, is the logical result of the rule which has been stated. By infringing on the appellant's rights, the appellees obtained the advantage of the increased marketability of their pumps. The action of the court below, therefore, limiting the field of inquiry as to damages, cannot be sustained.

We cannot agree with the master, however, in his estimate of the profits made by the appellees from what they have done. He finds that the pumps sold in the market for eighty dollars each, while the cost of manufacturing them was only $33.54. It is true there is some evidence to show that pumps could be made for the sum named, but it is clear to our minds that many things were excluded from the estimate which ought to have been included. All the material and labor of men may have been taken into account, but there is nothing for the use of tools, machinery, power, and other facilities employed in the manufacture, and nothing for wastage and expenses of marketing. One of the appellees is reported as testifying that his firm made the pumps for $31.37 each; but this must be an error, because he at the same time stated he could not say that there was any profit at all at the prices for which sales were made. Clearly this could not be, if what only cost the sum named was sold for $80. Annexed to the statement of the testimony of this witness is a detailed estimate of the cost of manufacture, which, without any allowance for general expenses, made the cost of a single pump $91.96. The appellant furnishes some evidence to contradict this estimate, but the bare fact that the pump when finished brought, as is claimed at the shop, $80, shows that the cost must have been much more than the master has reported. Down to the time of this patent the market had been supplied with some device to accomplish what this improvement did. The change in the old pump was not an expensive one. The valves were put outside of the side chambers instead of inside, and the joints had to be carefully fitted. If the old pump only cost as much as is claimed for the new, we cannot believe it would have commanded in the market any such price as the new sold for. We must conclude, therefore, that the cost of production has been much underestimated by the master. The testimony as reported is very unsatisfactory, and we are strongly inclined to think all has not been sent here which was presented. The attention of the parties was evidently directed much more to the rule of estimating the profits than to the detail of the expense of manufacture and sale. Had there not already been two references, we should be inclined to order another. As it is, we have made the best estimate we can from the material furnished in the record, and conclude that a reasonable allowance for profits will be fifteen dollars on each pump, or $4,470 in all.

The decree will be reversed, and the cause remanded with instructions to sustain the fifth exception to the report of the master, and enter a decree against the appellees for $4,470 and costs; and it is

So ordered.


text: Talk:Manufacturing Company v. Cowing/Opinion of the Court


text:
Railroad Company v. Loftin

ERROR to the Supreme Court of the State of Arkansas.

The facts are stated in the opinion of the court.

Mr. William Y. C. Humes for the plaintiff in error.

Mr. Augustus H. Garland, contra.

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

title: Railroad Company v. Loftin


text: Talk:Railroad Company v. Loftin

title: Talk:Railroad Company v. Loftin


text:
Railroad Company v. Loftin/Opinion of the Court

This was a suit in equity, brought by the Memphis & St. Louis Railroad Company in the Circuit Court of Jackson County, Arkansas, to restrain the collection of taxes imposed under the authority of the State upon certain lands in that county owned by the company. The Supreme Court of the State affirmed the decree of the Circuit Court dismissing the bill on demurrer. The complainant thereupon sued out this writ of error.

Two questions are presented for our consideration:--

1. Whether the State by imposing the tax has impaired the obligation of a contract in the charter exempting the capital stock of the company from taxation; and, 2. Whether it has impaired the obligation of a contract made with the purchasers of its swamp and overflowed lands for exemption from taxation.

1. As to the charter.

The section of the charter relied on is as follows:--

'SECT. 21. The capital stock of said company, with all the     immunities and franchises herein specified, and all      machinery, cars, engines, or carriages, belonging to said      company, together with all their works and property, and all      profits which shall arise from the same, shall be vested in      the respective stockholders forever, in proportion to their      respective shares; and the capital stock of said company, and      the dividends, shall be exempted from taxation until a      dividend of six per cent is realized upon the capital stock,      and the road, with all its fixtures, and appurtenances,      including workshops, warehouses, and vehicles of      transportation, shall be exempted from taxation for the      period of twenty-five years from the completion of the road,      and no tax shall ever be levied on said road or its fixtures      which will reduce its dividends below ten per cent per annum. Said stockholders shall not be bound or liable for any     greater amount than the respective shares of stock which they      or either of them own.'

The averment in the complaint to bring the lands in question under this exemption is in the following words:--

'And that the said lands were acquired by the plaintiff and are now held by it for the purpose of raising money to build said road, and that it is a part of the property of said company, fully represented by its capital stock and not otherwise, and that said road has not as yet been completed, and that no dividend has as yet been realized on said capital stock, or any part thereof.'

In Railway Company v. Loftin (98 U.S. 559), in passing upon a provision of the charter of the Mississippi Valley Railroad Company, substantially like the section here relied on, this court held that the exemption did not extend to lands granted by the State to the company to aid in the construction of its railroad. Such lands, it was then said, were used in lieu of capital, and to the extent they could be made available relieved the company from the necessity of raising money through stock subscriptions. Like the court below, we are unable to distinguish the case made by this complaint from that. The only material averment of fact in this connection is that the lands in question are held by the company for the purpose of raising money to build its road. This is entirely consistent with their use in lieu of capital. It is true the complaint alleges that the lands are fully represented by the capital stock, but that is only as a legal conclusion from what was stated before. The facts showing why the lands represented the capital must be set forth. Those which have been stated are not enough, and consequently the legal conclusion which the pleader has drawn from them in the complaint cannot be sustained.

In the elaborate printed argument presented for the plaintiff in error, reference is made to facts not stated in the complaint. These we cannot consider. As the case was submitted on demurrer, only the averments in the complaint are before us. While we may take judicial notice of the several statutes of the State which are relied on, the complaint alone must be looked to for information as to the manner in which the lands were acquired and the purposes for which they are held. While it may be true, as is claimed, that, under sect. 3 of the charter of the company, lands might have been accepted in payment for increased stock, and that the lands in question were acquired in that way, it is not so stated in the complaint. Whether, if the facts as claimed in argument had been stated, the exemption contended for would follow, is not for us now to decide. Upon this branch of the case, as it comes to us, the judgment below was, in our opinion, right, and must consequently be affirmed.

2. As to the swamp lands.

These were part of the swamp and overflowed lands donated by the United States to the State, and the State statute providing for their reclamation and sale contained the following:--

'SECT. 14. Be it further enacted, that to encourage by all     just means the progress and completion of the reclamation by      offering inducements to purchasers and contractors to take up      said lands, that the swamp and overflowed lands shall be      exempt from taxation for the term of ten years, or until said      lands are reclaimed.' That under this section purchasers of the lands acquired a right by contract to exemption from taxation for the stipulated time is not denied, and this court so decided in McGee v. Mathis, 4 Wall. 143. The only dispute is as to the time the exemption is to continue. The railroad company insists that it is for ten years absolutely, and thereafter until the lands are reclaimed; the State, that it is for ten years, if the lands are not sooner reclaimed, but if they are, that it ceases on the reclamation. The Supreme Court of the State, in State v. County Court of Crittenden County (19 Ark. 360), as early as January, 1858, gave the statute the construction now contended for by the State, and this decision has never been overruled. It was expressly recognized by the Supreme Court of the State in McGee v. Mathis (21 id. 40), and by this court in the same case, which came here on writ of error, and is reported in the 4th of Wallace, supra. Counsel frankly concede that the language of the statute is ambiguous, and that the grammatical construction is in accordance with what has been ruled. All such exemptions are to be construed strictly. Every doubt is to be resolved in favor of the power to tax. Under such circumstances, if the question were an open one, we should have little difficulty in reaching the same conclusion as the courts of the State have done. Manifestly, therefore, we are not now called upon to overrule what has been settled for nearly a quarter of a century.

It is expressly stated in the complaint that the lands held by the company were sold by the State more than ten years before this suit was begun. Consequently they are not exempt as swamp lands.

Judgment affirmed.


text: Talk:Railroad Company v. Loftin/Opinion of the Court


text:
Brandies v. Cochrane (105 U.S. 262)

MOTION to dismiss an appeal from the Circuit Court of the United States for the Northern District of Illinois.

Mr. Edwin F. Bayley in support of the motion.

Mr. John S. Monk, contra.

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

title: Brandies v. Cochrane (105 U.S. 262)


text:
Executive Order 12131

By the authority vested in me as President by the Constitution and statutes of the United States of America, and in order to expand the membership of the President's Export Council, in accord with the provisions of the Federal Advisory Committee Act (5 U.S.C. App. I), it is hereby ordered as follows:

1 - 1. Establishment and Membership.

1 - 2. Functions.

1 - 3. Administrative Provisions.

1 - 4. General Provisions.

, May 4, 1979.

title: Executive Order 12131


text: Talk:Brandies v. Cochrane (105 U.S. 262)


text:
Brandies v. Cochrane (105 U.S. 262)/Opinion of the Court

This is a motion to dismiss because the appeal was not taken within two years after the entry of the decree.

It appears from the record that the decree was entered on the 2d of August, 1879, and on the same day the complainants prayed an appeal, which was allowed upon their giving bond according to law. No bond was ever given under this allowance, and the case was not docketed here at the October Term, 1879. On the first of August, 1881, the circuit judge approved a bond for an appeal from the decree and signed a citation. The bond was on the same day filed with the clerk, and the citation served on the 18th of August. On the 8th of October the Circuit Court entered an order allowing the appeal nunc pro tunc as of August 1. The case was regularly docketed in this court on the 13th of October.

The circuit judge, by taking the security and signing the citation, allowed an appeal. No formal order of allowance was necessary. Sage v. Railroad Company, 96 U.S. 712; Draper v. Davis, 102 id. 370. The appeal was, therefore, taken in time. The order of October 8th was not required to give it effect.

Motion denied.


text: Talk:Brandies v. Cochrane (105 U.S. 262)/Opinion of the Court


text:
United States v. Railroad Company (105 U.S. 263)

ERROR to the Supreme Court of the Territory of Wyoming.

This was a suit in replevin, brought by the United States in one of the District Courts of the Territory of Wyoming, against the Union Pacific Railroad Company to recover the possession of certain goods intended for the Indian service. It was submitted on an agreed statement of facts, from which it appears that the goods belonged to the United States; that they were intended for the Indian service; that the United States had a contract with Dwight J. McCann for their transportation from New York to the White River Agency in Colorado; that they were put into his hands for transportation under his contract; that he agreed with the railroad company for their tranportation from Omaha to Rawlins; that the company carried them as a common carrier under this agreement to the place of destination, for which its proper charges were $496.86; that on their arrival at Rawlins they were stored in the company's warehouses for a long time; that for this storage the proper charge was $91.30; and that he had never paid any part of these charges.

On the 20th of November, 1877, the United States demanded the goods of the company, but a delivery was refused unless the charges were paid, the company claiming the right to hold the goods under a carrier's lien. The United States thereupon replevied them without having first paid the charges. The only controversy was as to the lien, and it was agreed that if, upon the facts, the court should be of opinion the company had a lien, judgment should be entered in its favor and against the United States for the amount of the charges. If, however, it should be decided there was no lien, judgment was to be entered against the company. The court decided there was a lien, and gave judgment against the United States for $588.16, which was affirmed by the Supreme Court of the Territory. To review that judgment this writ of error was brought.

The Solicitor-General for the United States.

Mr. Samuel Shellabarger and Mr. Jeremiah M. Wilson, contra.

MR. CHIEF JUSTICE WAITE, after stating the case, delivered the opinion of the court.


text: Talk:United States v. Railroad Company (105 U.S. 263)


text:
United States v. Railroad Company (105 U.S. 263)/Opinion of the Court

Under the decision in Hecht v. Boughton (supra, p. 235), the case should have been brought here by appeal, and not by writ of error. There was no trial by a jury. But there is still another objection to our jurisdiction. Under sects. 702 and 1909 of the Revised Statutes, writs of error and appeals from the final judgments and decrees of the Supreme Court of Wyoming lie to this court only when the amount in controversy exceeds $1,000, or the judgment is on a writ of habeas corpus, involving a question of personal freedom. No exception is made in favor of the United States, and this is not an action brought for the enforcement of any revenue law. Consequently the United States are not entitled to a writ of error or appeal if the same remedy would not be afforded under similar circumstances to a private party. United States v. Thompson, 93 U.S. 586. The value of the matter in dispute is the amount of the judgment that has been recovered. This is less than $1,000. It follows that we have no jurisdiction, and the writ is

Dismissed.


text: Talk:United States v. Railroad Company (105 U.S. 263)/Opinion of the Court


text:
The S.C. Tryon

MOTION to dismiss an appeal from the Circuit Court of the United States for the District of Maryland, with which is united a motion to affirm.

The Merchants' Steamship Company, of Charleston, South Carolina, as owner of the steamship 'Falcon,' filed its libel in the District Court of the United States for the District of Maryland, in a cause of collision, civil and maritime, against the schooner 'S.C.. Tryon,' and obtained a decree. The claimants thereupon appealed to the Circuit Court, which found the following facts:--

About 4.30 P.M. on Saturday, the 8th of November, 1870, the steamer 'Falcon,' then owned by the libellant, being properly officered and manned, and in every way fitted for her voyage, left the port of Baltimore on a voyage to Charleston, South Carolina, with a valuable cargo of merchandise on board.

About 9.45 P. M. on said 8th of November, the said steamer was proceeding on her proper course, S. by E. 1/4 E., down the Chesapeake Bay, about eight miles above Cove Point, at the rate of nine miles an hour. All of her lights required by law were properly hung, burning brightly, and visible the prescribed distances. Her second mate, a competent licensed pilot, was in charge of her, standing in the pilot-house, with the man at the wheel.

An able seaman and competent helmsman was at her wheel; a sufficient and competent crew were on duty; two other able seamen were vigilantly occupied as lookouts, stationed far forward in the bow, in the position most advantageous therefor.

About the time last mentioned both of the lookouts saw, and one of them immediately reported, a red light about one point over the port bow of the steamer.

The second mate of said steamer looked with his glasses, saw the said red light in the direction in which it had been reported, and satisfied himself that it was on board a sailingvessel, a mile and a half or two miles off, coming up the bay with a fair wind.

The man at the wheel then also saw it. It turned out afterwards to be the red light on board of the schooner 'S.C.. Tryon,' coming up the bay, as the second mate supposed. The night was starlight; there was a seven-knot breeze from the southward; fair for said schooner; and there was no necessity for her, then or thereafter, to change her course. If there had been no change in the course of either vessel, they would have passed each other in safety, each on the port side of the other.

As a matter of precaution, however, the helm of said steamer was immediately ported, until she fell off to S., a change of 1 1/4 points in her course, and causing said schooner to bear about 2 1/4 points over the port bow of said steamer. The second mate and lookouts of said steamer continued to watch the light of said schooner, seeing all the time only her red light, and said steamer was kept on her new course, about 1 1/4 points farther to the westward than her original course, until said vessels were about a mile apart; only the red light of said schooner was then visible; although no further change of course on the part of said steamer seemed then to be necessary, as a matter of further precaution her helm was again ported a little.

When the said vessels were three or four hundred yards from each other, about to pass each other in safety, sufficiently far apart not to justify even the apprehensions of danger, the said schooner, being still to the port of said steamer, and showing only her red light, suddenly, and without any justification therefor, put her helm hard a-starboard, and exhibited to said steamer both of her side lights.

As soon as her green light was visible to those on board of said steamer, it was seen by both lookouts of said steamer, and by one of them immediately reported to the second mate of said steamer.

The helm of said steamer was thereupon immediately put hard a-port, and in a few seconds thereafter her engines were stopped; but said vessels were then so near together that there was not sufficient time to reverse said engines, and the bow of said schooner struck said steamer about midships on her port side, cutting her down to the water's edge, and damaging her so seriously that in about ten minutes she sunk, with all her cargo on board, in water six fathoms deep.

The collision was entirely the result of want of proper care, skill, and seamanship on the part of those in charge of said schooner, and the improper change in her course made in consequence thereof.

Those in charge of said steamer did all in their power to keep out of the way of said schooner to prevent said collision, and to lessen the consequences thereof.

The libellant and the petitioners, and those in whose behalf petitions have been filed, sustained damages by said collision largely exceeding the amount of the stipulation filed for said schooner.

The court found the following conclusions of law:-- It was the duty of the steamer vigilantly to watch the movements of the schooner from the time she or either of her lights was visible to those on board of said steamer, and to take proper measures to keep out of the way of said schooner.

It was the duty of the schooner not to change her course so as to baffle the efforts of the steamer to keep out of her way.

It was the duty of the steamer, even after the schooner had improperly changed her course, to do all she could to prevent a collision, and to lessen the consequences of one, if unavoidable.

The court rendered a decree in favor of the libellant, and the claimants appealed to this court.

Mr. John H. Thomas and Mr. George Leiper Thomas for the appellee, in support of the motions.

There was no opposing counsel.

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

title: The S.C. Tryon


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Page:Dictionary of National Biography volume 23.djvu/293

only contemptuous discouragement for his intellectual pursuits, and his mother's puritanical severity rendered the home-life uncongenial. By nature he was greatly dependent on the sympathy of others·if he was to do justice to his powers and overcome an everhaunting tendency to mental depression. It was his good fortune, then, through his friend Norman, to form another intimacy destined to affect his whole career. He fell deeply in love (1814-15) with the fascinating and accomplished Harriet Lewin [see , whose family was then settled in Kent a few miles off'. His advances were received with no disfavour, but presently the ill-offices of a supposed friend, in reality a disappointed rival, Peter Elmsley [q. v.], led him to believe that Miss Lewin was already engaged. The thought that he was being trifled with came upon Grote as a crushing blow. In the first prostration, he bound himself never to propose marriage to any one without first obtaining his father's sanction. The elder Grote thus had power to prevent the renewal of the suit to Miss Lewin when, after a few weeks, the rival's deception was exposed; and, some three years later, when the young people by chance met again and understood each other, could still insist that they should not be united for two years more, and that the families should meanwhile have no intercourse. To Grote himself the whole five years (from 1815) were a time of much suffering. Some verses printed for private circulation by his widow in 1872 ('Poems by George Grote,' 1815-23, pp. 40) belong almost wholly to this period. A more promising effort of his pen, from 1817, was a short essay on Lucretius, which, with some reflection of his own melancholy in the course of its special criticism, has in it a vein of superior observation on the conditions and limits of the poetic art generally (pp. 1-16 in a miscellaneous collection of Posthumous Papers printed by Mrs. Grote, again privately, in 1874). The emotional tension was lessened from 1818, when he could hold converse with his betrothed, at least in writing. They kept diaries for each other's benefit; his diary carefully records all his reading. He was steadily becoming more engrossed in philosophical as well as in economical and classical study; going beyond English thinkers, like Berkeley, Hume, and Butler, to Kant, then little regarded in England, and this although he was just then (from 1818) coming under the very different influence of James Mill. To Mill he was introduced by Ricardo, with whom his interest in political economy had led him to seek relations in 1817. It is evident, from a letter in 1819 (Personal Life of George Grote, p. 21), that he had scruples of feeling as well as of understanding to overcome before yielding himself to Mill's dominion. Mill next introduced him to his own master, Bentham. By 1820 he had thus finally chosen his leaders in thought and public action, though his scholarly habits continued always to give him a wider outlook than was common in the Bentham-Mill circle.

Tired of waiting, Grote and Miss Lewin were married, without their fathers' knowledge, at Bexley Church early in the morning of Sunday, 5 March 1820. Mr. Lewin was informed in a day or two by his daughter, who had immediately returned home; the elder Grote, not till after some weeks. The step was condoned, and the young couple, in the course of the year, were established with moderate means in a house adjoining the bank. They lived as much as they could away from the city, on account of Mrs. Grote's health, at first occasionally, afterwards (from 1826) permanently ; but Grote, having now thrown upon him much of the weight of his father's part in the business, was bound to be in daily attendance at the bank, and, for a certain period of the year, to see to the opening and locking-up. His public authorship began in 1821 with a 'Statement of the Question of Parliamentary Reform,' directed mainly against a theory of class-representation set forth in the 'Edinburgh Review' by Sir J. Mackintosh. This pamphlet (summarised in introduction to Minor Works of George Grote) shows the influence of James Mill's theory of government; but Grote already contends fervently for his own favourite ideas of political reform, such as secrecy of voting and frequency of election. Next year, besides making a vigorous onslaught, in the 'Morning Chronicle,' upon a declaration by Canning against parliamentary reform, he accomplished a difficult task in connection with Bentham. An 'Analysis of the Influence of Natural Religion on the Temporal Happiness of Mankind, by Philip Beauchamp,' issued in 1822 by Richard Carlile [q. v.], then safe in Dorchester gaol, was the work of Grote, founded upon a mass of written material committed to him by Bentham. The manuscripts, upon which Bentham had worked in his irregular fashion from 1815, were, with his covering letter of suggestions as to the use to be made of them, given by Mrs. Grote to the British Museum after her husband's death. A comparison of them with the printed volume shows the enormous amount of labour required to bring them into form. Grote had practically to write the essay, leaving aside the greater part of the materials before him and giving to the remnant a shape that was his rather than


text: Talk:The S.C. Tryon

title: Talk:The S.C. Tryon


text:
The S.C. Tryon/Opinion of the Court

A bill of exceptions is not necessary to give this court jurisdiction of an appeal in admiralty under the provisions of the act of Feb. 16, 1875, c. 77 (18 Stat., pt. 3, p. 315). That act expressly provides that the review here shall extend to the determination of the questions of law arising upon the record, and to such rulings of the court, excepted to at the time, as may be presented by a bill of exceptions, prepared as in actions at law. At law a bill of exceptions is only used to put into the record that which would not appear without. The findings which the statute requires must be stated by the court. These, therefore, become part of the record without any action of the parties, and errors of law arising on them need not be presented by exceptions. They are in the nature of a special verdict, as to which the inquiry is always open in the reviewing court, whether, when taken in connection with everything else that appears, it is sufficient to support the judgment.

The motion to dismiss must, therefore, be overruled, but on looking into the record we are satisfied the appeal was taken for delay. The only question presented arises on the findings of fact. From these it appears that the collision was due solely to an unjustifiable change of course by the schooner when the vessels were in close proximity, which baffled the steamer in her efforts to pass in safety. It is so well settled that a steamer is not liable for the consequences of a collision occurring in this way, that we do not deem it proper to retain the cause for further consideration.

Motion to affirm granted.

title: The S.C. Tryon/Opinion of the Court


text: Talk:The S.C. Tryon/Opinion of the Court


text:
Simmons v. Ogle

APPEAL from the Circuit Court of the United States for the Southern District of Illinois.

The facts are stated in the opinion of the court.

Mr. John W. Ross and Mr. Franklin A. McConaughy for the appellant.

Mr. James L. D. Morrison for the appellee.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Simmons v. Ogle


text: Talk:Simmons v. Ogle

title: Talk:Simmons v. Ogle


text:
Simmons v. Ogle/Opinion of the Court

Simmons recovered, on the seventeenth day of January, 1878, a judgment in ejectment against Ogle, for the possession of the south half of the northeast quarter of section three, township one north, of range nine west, in St. Clair County, Illinois, and under the proper writ was placed in possession of it. The title on which he recovered was a patent to himself from the United States, dated June 12, 1874. Ogle thereupon instituted the present suit in chancery to compel a conveyance of the legal title thus established by Simmons to himself, on the ground that he had a superior equity, by reason of which the title in Simmons should be decreed to be held by him in trust for the benefit of Ogle. After answer, replication, and a full hearing on the evidence, the court granted the prayer of the bill, and from that decree Simmons brings the present appeal.

There is much conflict in the testimony. Some parts of it are irreconcilable, and the result of it in producing any very clear conviction of the true state of the case is unsatisfactory, especially in regard to the foundation of the right of complainant to be the true equitable owner of the land. The fact which he takes upon himself to establish is that, on Dec. 30, 1835, one John Winstanley bought the land of the United States, at the land-office in Edwardsville, and paid for it. The subsequent conveyances and transfers from Winstanley to Ogle are not controverted, and if the purchase and payment now stated and alleged in the bill were satisfactorily established by the evidence, the decree should be affirmed.

The evidence by which this proposition is supported is of two classes.

1. The records of the Edwardsville land-office, now found in the General Land-Office at Washington, where they were removed by law.

2. The conveyances and other proceedings by which, if Winstanley ever had any right, it became vested in Ogle, and the actual possession of the land by Ogle.

As regards the first of these, the records of the Edwardsville land-office show a written application by Winstanley at that office, on the thirtieth day of December, 1835, for the purchase of the land. It is numbered 13,164, and shows the quantity of the land to be 84.46 acres, and the price to be paid $1.25 per acre.

There is, also, an entry on the books of the office, of which the following is a copy, and which is photographed in the record:

'No. 13,164.

'Dec. 30, 1835, to John Winstanley, of St. Clair County,     State of Illinois, for S. 1/2 NE. 1/4 section No. 3, township     No. 1 north, range No. 9 west of the third principal      meridian, containing 84 46/100 acres, at $1.25 per acre. $105.57.

'S. H. THOMPSON, Register.'

These, it is said, being the original entries made in the records of the local land-office, are sufficient evidence of the purchase and payment for that land by Winstanley, and that no successful contradiction of them is found anywhere. When to this is added the conveyance by Winstanley to William C. Anderson of the same land, in 1837, and that Anderson's title came to Ogle, who, in 1851, took possession of the land and held it until his removal under the action of ejectment brought by Simmons against him, the case of complainant is substantially stated.

As regards the weight to be given to the possession of Ogle, it is to be considered that whether he had the equitable right or not, neither the Statute of Limitations nor the equitable doctrine of lapse of time could begin to have effect against any one until Simmons purchased of the United States and obtained his patent in 1874, for up to that time the legal title was undeniably in the United States. If this had not been so Ogle would have successfully pleaded the Statute of Limitations against Simmons in the action at law. No laches could be imputed to Simmons, who brought suit very soon after he received his patent. Nor can laches be imputed to the United States, either as a matter of law or on any moral or equitable principles. For so common is it for squatters and trespassers to settle on the lands of the United States, and so indulgent are the laws in encouraging such settlements, and so numerous are these settlements without claim of right, and such is the impossibility of resisting or ejecting the settlers, or of efficiently asserting the right of possession by the government, that the weight of the inference in favor of any claim of right, whether legal or equitable, against the United States, growing out of mere possession, is very slight indeed.

Nor do the sale and conveyance by Winstanley to Anderson afford any legal evidence of his right to do so, and very little that he believed himself to have such right. He could never be made responsible for more than the purchase-money, and, knowing what entries were on the books of the local land-office, he might well be willing to take the money and the chances. The evidence, therefore, in support of the entries on the books of the land-office do not add greatly to its force, and the complainant's case must rest on the intrinsic probability arising from those two pieces of evidence, that Winstanley bought and paid for the land.

If either of these entries had stated the purchase and payment in words, they are open to the weakness which arises from the fact that in all such completed sales two other documents of superior probative force usually attend the sale, one of them invariably, neither of which is here produced or shown ever to have existed. The most conclusive of these is the patent. There is no pretence here that any patent ever issued to any one on Winstanley's purchase. It is proved that he was a careful business man, much accustomed to dealing in lands, and as he had sold this land, and made himself liable by a warranty deed, he would naturally have made that title secure by procuring the issue of the patent.

It is, however, well known that early purchasers of the public lands were careless about their patents. But as a reason for this, they attached primary importance to the paper issued when a sale was made, and delivered to the purchaser by the register and receiver of the land-office, called a certificate of entry.

This is a paper in two parts, the first of which is signed by the register, giving a description of the land, the amount paid for it, the name of the purchaser, and a statement that on its presentation at the General Land-Office a patent would be issued to the purchaser. The second, signed by the receiver, is a simple receipt for the payment of the price, and a description of the land for which it was paid.

The statutes of almost every State and Territory in which the public lands have been sold provide for the registration of this instrument, and in all actions concerning title or possession declare it to be prima facie evidence of title. See Hurd's Rev. Stat. of Illinois, sect. 31, c. 30, p. 271, and sect. 20, c. 51, p. 508. In the estimation of the people generally, and in the practice of the courts, it became the efficient substitute or equivalent of the patent, and in regard to millions of acres of land the patent either was never issued, or if issued never delivered, but remains in the local or the general land-office, subject to the call of the owner.

In the case before us there in no evidence whatever, except presumption, that this certificate of entry ever had an existence. In the absence of the patent, it is the instrument of all others which it is important to produce, or if it cannot be produced, to account for its loss.

The only effort to do this is an affidavit of Ogle, that he went down to John Winstanley's and examined through all his papers and did not find it. He wrote to the son of Anderson, to whom Winstanley sold it, who replied that he could find no paper of the kind. He went to the Commercial Bank of Cincinnati, which at one time had a mortgage on the land. They said a majority of the papers of the bank had been burned. So he failed to get the certificate, or any information about it. 'I do not know where it is, nor have I ever seen it,' he says.

This would have been sufficient to authorize the introduction of a copy in evidence, if any copy existed. But no copy is produced, for the reason that no human being has been found who can say that any such paper ever existed, or was ever seen by any one. When we consider the number of persons interested in the property through Winstanley, there being several mortgages and intervening conveyances between him and Ogle, and that the certificate of entry, if ever made, could only have been forty years old when this suit was brought; that many persons must have been alive who had been interested in the title; this total absence of all evidence of its existence, no one ever having seen it, nor any copy of it, nor any record of it under the Recording Acts of Illinois,-the inference that such a paper was made and delivered to Winstanley is very much shaken.

When we turn to the evidence of defendant there is much positive testimony to convince us that no such paper was ever delivered, and no such sale ever made.

There are in pencil mark on the page where the application of Winstanley for this land, numbered 13,164, is found, the following words: '13,164. Changed to NE. 1/4 of NW. 1/4, 9, 2, N. 9, W. 3d.'

The transactions of the local land-offices and forwarded regularly to the General Land-Office at Washington, and accurate copies or duplicates are there found of all the transactions in the local offices, and in the present case the original records of the Edwardsville office, long since closed up, are in the General Land-Office.

Among these are found the following:--

'No. 13,164.

LAND-OFFICE AT EDWARDSVILLE, ILL.,

'December 30, 1835.

'It is hereby certified that, in pursuance of law, John     Winstanley, of St. Clair County, Illinois, on this day      purchased of the register of this office the lot or west half      of the northwest quarter of section number nine, of township      number two north, in range number nine west of the third      principal meridian, containing eighty acres and ___      hundredths of an acre, at the rate of one dollar and      twenty-five cents per acre, amounting to one hundred dollars      ___ cents, for which the said John Winstanley has made      payment in full as required by law.

'Now, therefore, be it known that on presentation of this     certificate to the Commissioner of the General Land-Office,      the said John Winstanley shall be entitled to receive a      patent for the lot above described.

'S. H. THOMPSON, Register.

'No. 13,164.

RECEIVER'S OFFICE, EDWARDSVILLE, ILL.,

'December 30, 1835.

'Received from John Winstanley, of St. Clair County, Ills.,     the sum of one hundred dollars and ___ cents, being in full      for the west half of the northwest quarter of section number      nine, township number two north, range number nine west of      the third principal meridian, containing eighty acres and      100, at the rate of $1.25 per acre.

'75 B. U. States

'25 Specie.

'$100.

'$

'B. F. EDWARDS, Receiver,

'By WM. H. RIDER.'

It will be observed that this certificate of entry bears date the same day of Winstanley's application for the other piece of land. That it bears the same serial number as that application throughout, up to the issue of the patent, which is very important, as though it is possible Winstanley might have entered two pieces of land on the same day, they would necessarily have been separate entries and would not have borne the same number.

Upon this certificate No. 13,164 there was issued on the second day of December, 1839, to John Winstanley a patent for the land there described; for the other land no patent was ever issued to him.

Another circumstance confirming the truth of the pencil memorandum is found in the cash-book or register of receivers' receipts at Edwardsville, now on file in the General Land-Office. In that book, which is kept in tabular form, it is shown that on Dec. 30, 1835, on certificate No. 13,164, there was paid to the receiver, by John Winstanley $100, for the W. 1/2 NW. 1/4, S. 9, T. 2, R. 9, 80 acres; and as the transcript is complete for that day no other receipt of money from Winstanley is shown. The quarterly account of the receiver with the department shows precisely the same thing.

So that we here have the evidence of these records that Winstanley bought and paid for another piece of land on that day, under cover of the same No. 13,164 as to application and entry; that the price was $100, and not $105.46; that no certificate of entry is known to have ever been made for the tract first applied for, no evidence that any money was paid for it, no entry on the cash-book or quarterly account of the receiver of the amount for which the land in controversy could only have been sold; but ample evidence that on that same day, and under the same entry number, Winstanley bought and paid for another piece of land near by, at the same office, for which he received the usual certificate of entry, and for which the patent was issued.

We cannot resist the conclusion, in the presence of what is positively shown by the records, and what is wanting in the evidence of complainant in regard to the existence of a certificate of entry of this land, that the pencil memorandum whenever it was made is true, that on the same day, and before the purchase was finally completed, Winstanley changed his purpose, and bought and paid for the other piece of land, and that the officers omitted to make the requisite change in the application while making the transfer and preserving the original number.

If, however, this were not so clear, the appellant here has the legal title and the possession, without fraud or any unfairness. He found the land subject to entry by the records of the land-office, and he bought and paid for it and has the title. In such case the maxim applies in all its force, that better is the condition of the defendant. The equities of the parties being equal, the legal title must prevail.

Instead of the weak case made by appellee, the position of affairs required him to make clear and satisfactory proof of his superior equity. This he has signally failed to do.

Decree reversed, and cause remanded with directions to dismiss the bill.

title: Simmons v. Ogle/Opinion of the Court


text: Talk:Simmons v. Ogle/Opinion of the Court