text:
Gibbs Sterrett Manufacturer's Company v. Brucker/Opinion of the Court

This was an action at law brought by the Gibbs & Sterrett Manufacturing Company, the plaintiff in error, against Peter Brucker, the defendant in error, and Pirmin Koepfer, upon a cause of action which was stated in the complaint substantially as follows:

On January 23, 1878, the plaintiff, as party of the first part, made an agreement in writing with James Gibson, John Wirtz, and Peter Fox, as parties of the second part, by which the latter were appointed agents for the former to sell, within certain designated territory, during the season of 1877, the reapers and mowers manufactured by the plaintiff. In consideration of such appointment, the parties of the second part agreed to sell the reapers and mowers within the designated territory, and to account for the proceeds of the sales to the plaintiff. The contract bore date January 11, 1878. After the signatures of Gibson, Wirtz, and Fox, the following contract of guaranty was appended: 'For value received, we hereby guaranty the fulfillment of the contract on the part of James Gibson, John Wirtz, and Peter Fox, and hereby join them in each and every obligation therein contained.' This guaranty also bore date January 11, 1878, and was signed by Pirmin Koepfer, Jacob Steffes, and Peter Brucker. The contract and guaranty were negotiated by one Matteson, a special agent of the plaintiff for that purpose, but who had no power to close or conclude the same. After the execution and delivery of the contract and guaranty, and between that time and September 1, 1878, the plaintiff delivered to Gibson, Wirtz, and Fox reapers, mowers, etc., of the value of $7,379.10, and of that sum they failed to account for or pay over to the plaintiff $4,664.49, although demanded of them by the plaintiff, and on September 15, 1878, the plaintiff gave notice thereof to Koepfer and Brucker, Steffes having previously died, and demanded payment from them of the sum so due the plaintiff, which they refused to pay. The demand of the complaint was for judgment against Koepfer and Brucker for $4,664.49, with interest from December 4, 1879. oepfer made no defense. Brucker filed an answer, in which he alleged, by way of defense, that he signed the guaranty, and, so far as he was connected therewith, delivered the same upon the day of the week commonly called Sunday. Upon the issue raised on this answer the case was tried by the court, which made special findings of fact substantially as follows:

The plaintiff was a manufacturing corporation of the state of Pennsylvania, with its home office in that state, and having a branch or general agency in the city of Chicago, in the state of Illinois. During and after the month of January, 1878, Messrs. Hoag & Conklin, of Waterloo, in the state of Wisconsin, were the agents of the plaintiff for that state for the purpose of making sales of the manufactures of the plaintiff therein, through subagents, to be appointed in the following manner: Hoag & Conklin were to canvass the state of Wisconsin for the purpose of selecting good and responsible men to become agents, and were to fill out in duplicate the plaintiff's printed form of contract, and cause the same to be signed by the agents selected, and by their sureties, and immediately thereafter to forward such duplicates to the plaintiff at its western branch at Chicago for its approval and signature. Hoag & Conklin had no power or authority to sign or close any such contract on behalf of the plaintiff.

From January 10 until January 25, 1878, and thereafter, one M. V. Matteson was an employe and agent of Hoag & Conklin for the purpose of carrying out the said contract on their part, and had and exercised no other, or greater or different, powers in that regard than Hoag & Conklin. Hoag & Conklin were to be paid by the plaintiff, by certain commissions upon the amount of machinery sold, and Matteson was to be paid by Hoag & Conklin, by commissions upon the amount of machinery sold through agencies established by him. On January 11, 1878, which was Friday, the agency contract referred to in the complaint was, at the instance of Matteson, signed by Gibson, Wirtz, and Fox, and the guaranty contract on which the suit was brought, was on the same day signed by Koepfer. On Sunday, January 13th, the guaranty contract was signed by Steffes and Brucker, and on the same day delivered to Matteson. At this time Wirtz, Gibson, and Fox knew, but Brucker did not, that Matteson had no authority to sign or close the contract on behalf of the plaintiff, but that it must be sent to the plaintiff at Chicago, to be accepted and signed by it. Brucker had no knowledge of the powers of Matteson, and made no inquiry concerning them. On Monday, January 14th, Matteson sent duplicates of the contract and guaranty so signed by mail to the plaintiff at Chicago for acceptance and signature, and the same were accepted and signed by the plaintiff on Wednesday, January 23d, and on the same day one of the duplicates was returned by mail to Gibson, Wirtz, and Fox, but no communication took place between the plaintiff and Brucker in reference thereto. During the spring and summer of 1878 the plaintiff delivered to Wirtz, Gibson, and Fox, upon the contract, upon the contract, reapers and mowers, on which there remained due to plaintiff the sum of $3,336.25, with interest thereon from March 14, 1881, for which defendant Brucker was liable, provided the guaranty contract was valid as against him. Neither the plaintiff nor any officer or agent thereof, excepting Matteson, ever had notice or knowledge, until after the signing of contracts in Chicago, and until after the delivery of all of the reapers and mowers to Gibson, Wirtz, and Fox, that the instrument of guaranty was signed and delivered by defendant Brucker on Sunday.

Upon these facts the judges of the court were divided in opinion upon the question whether the contract of guaranty and suretyship, upon which this suit was brought, was void and invalid under the statutes of Wisconsin, because the same was so signed and delivered by the defendant Brucker upon Sunday; and the presiding judge being of op nion that the contract was invalid, for the reason stated, judgment in favor of the defendant was rendered in accordance with his opinion, and thereupon the plaintiff sued out this writ of error. The law of Wisconsin referred to in the certificate of division of opinion is as follows: 'Any person who shall keep open his shop, warehouse, or workhouse, or shall do any manner of labor, business, or work, except only works of necessity or charity, or be present at any dancing or public diversion, show or entertainment, or take part in any sport, game, or play on the first day of the week, shall be punished by fine not exceeding ten dollars; and such day shall be understood to include the time between the midnight preceding and the midnight following the said day, and no civil process shall be served or executed on said day.' Rev. St. Wis. 1878, § 4595.

The ground upon which courts have refused to maintain actions on contracts made in contravention of statutes for the observance of the Lord's day is the elementary principle that one who has himself participated in a violation of law cannot be permitted to assert in a court of justice any right founded upon or growing out of the illegal transaction. Cranson v. Goss, 107 Mass. 439; Holman v. Johnson, Cowp. 341.

If, therefore, the evidence shows a good cause of action, without any participation of the plaintiff in an illegal transaction, he may recover; the law simply refusing its aid to either party in giving effect to an illegal transaction in which he has taken part. Tuckerman v. Hinkley, 9 Allen, 452; Stackpole v. Symonds, 3 Fost. (N. H.) 229; Bloxsome v. Williams, 3 Barn. & C. 232; Roys v. Johnson, 7 Gray, 162.

Applying these principles, it is clear there was no obstacle to a recovery by the plaintiff in this case. The plaintiff itself took no part in any violation of the law of Wisconsin forbidding the doing of labor, business, or work on Sunday, unless it was bound by the acts and knowledge of Matteson in regard to the signing of the contract by Brucker, the derendant. But it was not so bound. The complaint alleged that Matteson was the special agent of the plaintiff to negotiate the agreement set out therein, but that he had no power to close or conclude the same. This averment is fully sustained by the findings, by which it appears that neither Hoag & Conklin nor Matteson had power to sign, accept, or close any such contract on behalf of the plaintiff. The knowledge, therefore, of Matteson that the defendant Brucker signed the contract on Sunday, and his acceptance of the nanual delivery of the contract on the same day, was not within his agency, and was not the act of and was not binding on the plaintiff. So far, therefore, as there was any violation of the law ofWisconsin forbidding the transaction of business any violation of the law of Wisconsin alone, in which the plaintiff took no part, and of which it had no knowledge. The fact, therefore, that the contract was signed by the defendant and handed to Matteson on Sunday, is, upon the authorities cited, no obstacle to a recovery.

There is another ground on which the case of the plaintiff may be placed. In order to make good the defense set up in the answer, it is necessary to prove, not only that the defendant signed his name to the contract on Sunday, but that he delivered it on Sunday. The mere signing of a contract on Sunday, which is not delivered on that day, does not avoid the contract. Adams v. Gay, 19 Vt. 358; Goss v. Whitney, 24 Vt. 187; Saltmarsh v. Tuthill, 13 Ala. 406; Flanagan v. Meyer, 41 Ala. 132; Com. v. Kendig, 2 Pa. St. 448; Hill v. Dunham, 7 Gray, 543; Hall v. Parker, 37 Mich. 593; Hilton v. Houghton, 35 Me. 143.

The question, therefore, arises, was the contract which was signed by Brucker on Sunday delivered by him on Sunday? The delivery on Sunday, relied on by defendant to avoid the contract, was the a leged delivery to Matteson. But we have seen that, according to the findings of the circuit court, Matteson was not the agent of the plaintiff for that purpose, and could not accept a delivery of the contract so as to bind the parties. In other words, the handing to him by the defendant of the contract was not a delivery in the legal sense, and was no more effectual to bind the plaintiff or the defendant than if the contract had been handed to an indifferent third person. The fact was that the delivery to Matteson was virtually the delivery to a messenger to transmit the contract to the other party for its approval or disapproval. Until the contract was approved and executed by the plaintiff, the defendant had his locus penitentioe, and could have withdrawn his assent to the contract. In a word, there was no contract until the agreement had been assented to by both parties, and this, according to the findings, was on Wednesday, January 23d, when the contract was approved and signed by the plaintiff. The fact that the defendant did not know, when he handed the contract to Matteson, what the powers of Matteson were, or that the contract would have to be sent to the plaintiff for its acceptance and signature, can have no influence on the result. Even if it was the purpose of the defendant to bind himself by a delivery of the contract to Matteson, such delivery, being to an unauthorized person, would not bind the plaintiff; and if the plaintiff was not bound, neither was the defendant.

The defense, therefore, resolves itself into this: that the defendant, without the concurrence or knowledge of the plaintiff, signed on Sunday a paper writing which bore date of a week-day, and which, to become a contract between the parties, required the assent and signature of the plaintiff, which was given on a week-day. This, according to the authorities, does not avoid the contract. We have examined all the cases decided by the supreme court of Wisconsin which have been cited by counsel, and find nothing in them contrary to the views we have expressed. Moore v. Kendall, 2 Pin. 99; Hill v. Sherwood, 3 Wis. 309; Melchoir v. McCarty, 31 Wis. 252; Knox v. Clifford, 38 Wis. 651; Troewert v. Decker, 51 Wis. 46; S.C.. 8 N. W. Rep. 26; De Forth v. Wisconsin & M. R. Co. 52 Wis. 320; S.C.. 9 N. W. Rep. 17. The case of Knox v. Clifford, ubi supra, sustains the conclusion we have reached, though on a different ground. In that case it was held that he who makes and puts in circulation a promissory note bearing date on a week-day is estopped as against an innocent holder from showing that it was executed on Sunday.

We base our decision, however, on the grounds we have indicated: First, because it does not appear that the plaintiff had any part in executing the contract in violation of the law of Wisconsin forbidding the transaction of business on Sunday; and,second, because the contract, though signed by the defendant on Sunday, was not delivered by him, and did not take effect on that day.

We are of opinion that the circuit court erred in rendering judgment for the defendant upon the findings of fact. Its judgment is therefore reversed, and the cause remanded, with directions to grant a new trial.


text: Talk:Gibbs Sterrett Manufacturer's Company v. Brucker/Opinion of the Court

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


text:
Phillips v. City of Detroit

''Geo. H. Lothrop'', for appellants.

D. C. Holbrook, E. A. West, and L. L. Bond, for appellees.

WOODS, J.

title: Phillips v. City of Detroit


text: Talk:Phillips v. City of Detroit

title: Talk:Phillips v. City of Detroit


text:
Phillips v. City of Detroit/Opinion of the Court

This was a suit in equity brought by Robert C. Phillips, Eugene Robinson, and Jesse H. Farwell, who were the exclusive licensees of Phillips for the state of Michigan, to restrain the defendant, the city of Detroit, from infringing letters patent granted to Phillips, December 5, 1871, for 'a new and useful improvement in street and other highway pavements.' The specification and claim of the patent were as follows: 'My improvement consists mainly in the use of wood of any suitable kind in its natural or undress state; that is, in the form of round blocks or sections of small trees or the branches of trees from which the bark has been removed, cut as nearly at right angles to their length as may be, generally in lengths of about six inches, their diameters varying from three to twelve inches. These are placed upon end upon a bed or foundation composed of a stratum or layer of broken stone about eight inches deep, upon which a course of coarse sand or gravel of, say, six inches in depth is spread, the whole properly rolled or rammed so as to be solid, and presenting an even or uniform surface for the blocks to rest upon. Upon this surface the blocks are placed upon end, as nearly together as may be, in such manner as to form an even or uniform surface. They are then rolled or rammed heavily, so as to force them well down upon the bed. The spaces or openings between the blocks are then filled with good, hard, coarse gravel and sand, and again rolled or rammed, after which the whole is covered with gravel or sand to a depth of about one inch, when the travel may be turned on. As stated above, these blocks may be composed of any suitable wood, but locust is preferred. White oak, white cedar, (arbor vitoe,) chestnut, yellow pine, and others afford good material. * *  * I thus produce a pavement which can be laid as easily and with less expense than cobble-stone pavement, and which has been found in practice to be more durable than the most approved wooden pavement hitherto in use. I do not claim broadly the use of wooden blocks in the state in which they are cut from the tree or branches; nor yet do I claim the foundation of stone or gravel, and the filling of the spaces between the blocks with sand or gravel, separately considered; but what I do claim as my invention and desire to secure by letters patent is a wooden pavement composed of blocks of any desired wood, cut from the trunks or branches of trees or saplings of any desired length in their natural form, the bark only being removed, placed with their fibers vertical upon a bed of broken stone and gravel or sand, or either of them, the spaces between the blocks being filled with gravel or sand, the whole made compact by ramming, rolling, or other proper methods, as herein shown and described.' he answer of the defendant admitted that it had caused to be laid a pavement, such as is described in the patent of the complainants, and by way of defense alleged want of novelty in the improvement covered by the patent. Upon final hearing the circuit court dismissed the bill on the ground that, in view of the state of the art, the patent did not describe any patentable invention. From this decree the complainants appealed.

We think the decree of the circuit court was right. The patent purports to be for a combination. The alleged combination consists in a pavement formed by blocks of wood cut from the trunks or branches of trees, set with their fibers vertical upon a bed of broken stone, sand, or gravel, the spaces between the blocks being filled with sand or gravel. The kind of wood of which the blocks are composed, and their length and diameter, are immaterial. The placing of the blocks with their fibers vertical is shown to be an old method long antedating the patent, and is so obviously the only practicable mode of placing them that its suggestion in the patent cannot be called invention. The specification expressly disclaims, as a part of the patent, the use of wooden blocks in the state in which they are cut from the tree or its branches, the foundation of stone or gravel, and the filling of the spaces between the blocks with sand or gravel, separately considered. The only thing, therefore, left for the patent to cover is the bringing together of these three old and well-known elements in the construction of a pavement; namely, the wooden blocks, the foundation, and the filling.

In passing upon the novelty of the alleged improvement covered by this patent, we are permited to consider matters of common knowledge or things in common use. Brown v. Piper, 91 U.S. 37; Terhune v. Phillips, 99 U.S. 592; King v. Gallun, 109 U.S. 99; Ah Kow v. Nunan, 5 Sawy. 552. We therefore take into consideration the fact that the common and well-known methods of constructing pavements in use long before the date of the Phillips patent, was to prepare a foundation or bed or gravel or sand, place the blocks, boulders, or bricks of which the pavement was to be made upon this bed, and fill the spaces between them with sand or gravel, or both mixed. Familiar instances of pavements thus made are the cobble-stone pavements usually laid in streets, and the brick pavements usually laid upon sidewalks. This is the method pointed out in the specification of the Phillips patent. It is conceded in the disclaimer embodied in the specification that the use of wooden blocks like those described in the specification is not new, and the evidence shows that such blocks, set vertically, had long been employed in the construction of pavements. The improvement described in the appellant's patent consists, therefore, in simply taking a material well known and long used in the making of pavements, to-wit, wooden blocks set vertically, and with them constructing a pavement in a method well known and long used. It is plain, therefore, that the improvement described in the patent was within the mental reach of any one skilled in the art to which the patent relates, and did not require invention to devise it, but only the use of ordinary judgment and mechanical skill. It involves merely the skill of the workman and not the genius of the inventor. The following cases illustrate the subject:

In Hotchkiss v. Greenwood, 11 How. 248, the substitution of a well-known porcelain door-knob for a clay knob, in combination with a particular shank, was held to be no invention. So, where the patentee had taken a fire-pot from one stove, a flue from another, and a coal reservoir from the third, and had put them into a new stove, where each fulfilled the office it had fulfilled in its old situation and nothing more, the patent was held void for want of invention. Hailes v. Von Wormer, 20 Wall. 353.

In Smith v. Nichols, 21 Wal. 112, it was held that 'a mere carrying forward a new or more extended application of the original thought, a change only in form, proportions, or degree, the substitution of equivalents doing substantially the same thing in the same way by substantially the same means with better results, is not such invention as will sustain a patent.'

The case of Reckendorfer v. Faber, 92 U.S. 347, is much in point. The patent was for an improvement which was described in the specification as follows: 'I make a lead pencil in the usual manner, reserving about one-fourth the length, in which I make a groove of suitable size, A, and insert in this groove a piece of prepared India rubber, secured to said pencil by being glued at one edge. The pencil is then finished in the usual manner, so that on cutting one end thereof you have the lead, B, and on cutting the other end you expose a small piece of India rubber, C, ready for use.' This device was held not to be patentable, and it was declared that 'the law requires more than a change of form or juxtaposition of parts, or of the external arrangement of things, or of the order in which they are used, to give patentability.'

In Atlantic Works v. Brady, 107 U.S. 193, S.C.. 2 SUP. CT. REP. 225, is found one of the most recent and emphatic declarations of this court upon the subject. It was there said that the design of the patent laws was to reward those who make some substantial discovery or invention which adds to our knowledge or makes a step in advance in the useful arts, and that it was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures.

In Howe v. Abbott, 2 Story, 190, it was held that the application of a process to palm leaf to curl it for mattresses, the same process having been used to curl hair for mattresses, was not patentable.

In the case of Kay v. Marshall, 8 Clark & F. 245, it was said to be no invention to use for spinning flax, which had been so macerated that its fibers were shortened, an arrangement of rollers borrowed from cotton-spinning machinery. See, also, Stimpson v. Woodman, 10 Wall. 117; Rubber Tip Pencil Co. v. Howard, 20 Wall. 498; Slawson v. Grand Street, R. Co. 107 U.S. 649; S.C.. 2 SUP. CT. REP. 663; King v. Gallun, 109 U.S. 99; S.C.. 3 SUP. CT. REP. 85.

The cases cited are conclusive of this. We are of opinion that, taking into consideration the state of the art, no invention was required for the construction of the pavement described in the patent, and that it demanded only ordinary mechanical skill and judgment, and but a small degree of either. The decree of the circuit court must therefore be affirmed.


text: Talk:Phillips v. City of Detroit/Opinion of the Court


text:
Carver v. United States (111 U.S. 609)

S. S. Henkle, for appellant.

''Sol. Gen. Phillips'', for appellee.

HARLAN, J.

title: Carver v. United States (111 U.S. 609)


text: Talk:Carver v. United States (111 U.S. 609)


text:
Carver v. United States (111 U.S. 609)/Opinion of the Court

The case made by the finding of facts in the court below is, substantially, as will be now stated. On the fourteenth day of August, 1865, the president of the United States instructed Maj. Gen. Thomas, commanding the military division embracing the state of Alabama, to examine whether frauds were not being practiced by treasury agents in the collection of cotton, and to cause those ascertained to be guilty, whether connected with the treasury department or with the military forces, to be dealt with in the most summary manner. Previous to that time, about July 1, 1865, the claimant, Carver, was a subagent for the collection of cotton in behalf of the government, and, with another, was so engaged in Choctaw county, in that state. His authority as such agent terminated August 5, 1865. But, under certain regulations, then recently adopted, he became a bonded special agent of the treasury department, for the collection of cotton in the same county, and, in that capacity, entered upon his duties on the twenty-ninth day of August, 1865. He was superseded on the sixteenth of September thereafter, but, while in office, he collected and appropriated, in onnection with others, about 600 bales of cotton, none of which was ever turned over to or received by the United States. On October 4, 1865, the claimant having been previously arrested, a military commission, under an order of the general commanding the department of Alabama, was convened for his trial, and he was tried and found guilty of numerous frauds practiced by him while holding and exercising the office of bonded special agent of the treasury department. The sentence imposed upon him was a fine of $90,000, 'to be paid into the treasury of the United States, and that he be confined at hard labor in such penitentiary as the commanding general may direct for the term of one year, and until such fine of ninety thousand dollars ($90,000) shall be paid.' The finding and sentence were approved by the department commander, and the provost marshal general was required to see that the sentence was carried into effect. On November 7, 1865, the claimant paid the fine, and so much of the sentence as imposed imprisonment was remitted by the department commander. Carver was, thereupon, released from arrest. Out of the amount recovered from the claimant, the government paid one-fourth to W. M. Moulton as compensation for his giving information of the alleged frands and preparing the case for trial. The balance was covered into the treasury. After Carver's trial and conviction, and after the payment of the fine imposed upon him, he endeavored to make amends for the frauds of which he was found guilty. He proposed to the department commander to make a full statement of cotton transactions in that county, in which the government was concerned, and of which he had any knowledge or information, provided the $90,000 collected from him was allowed as a credit on his accounts; also to guaranty the further recovery of from $10,000 to $15,000, he receiving a fair interest, say one-fourth, for such recovery, which was to be had without suit or expense to the government. The secretary of the treasury, in a communication to the department commander, signified his willingness 'to consider the $90,000 collected from Carver in the form of a fine as a credit for that amount on any account the government may have against him growing out of his connection with cotton in Choctaw county, and to allow him for his services, expenses, etc., in the premises, 33 1/3 per cent. of any further sums he may recover and pay over for the benefit of the national treasury on said account.' Subsequently, on May 17, 1866, Carver submitted to the secretary of the treasury a communication, signed by himself, showing that the amount really due the government on cotton collected was $94,243.35, instead of $90,000, and asked the decision of that officer 'whether said balance of $4,243.35 shall be collected, or whether, under all the circumstances, said balance shall be relinquished.' On June 14, 1866, Carver paid said balance of $4,243.35 to the provost marshal of Alabama, who, by order of the secretary of the treasury, paid to him the sum of $1,414.45.

The present action was commenced by Carver on December 15, 1871. It proceeds upon whese grounds: That the charges against him before the military commission were false and feigned; that the military commission by which he was tried was without jurisdiction in the premises, since he, not being in the military service, nor a contractor for military arms or supplies, was not subject to trial otherwise than in the civil courts; also, that its proceedings were wholly unauthorized, illegal, and void. For these reasons he claimed that an action as upon implied promises and contracts had accrued to him against the United States for money had and received to his use and benefit; and for said sum of $90,000 he prayed judgment. His petition was dismissed.

The claim of appellant is entirely without merit. Under the findings of fact, which this court must accept as true, it is unnecessary to consider any question involving the authority and jurisdiction of the military commission before which the claimant was arraigned, and by means of which the government compelled him to pay into its treasury the sum of $90,000; for, if it were conceded that Carver was not subject to be tried in that mode, and that the entire proceedings against him were illegal and void, it yet appears that, after his release, he voluntarily conceded that there was justly due from him to the government a larger sum than he had paid; and, upon the basis of that concession, he secured a credit upon his accounts for the amount he had so paid, receiving, out of the balance, admitted to be due from and chargeable to him, the sum of $1,414.45. We can imagine no reason why it was not competent for him, without reference to the legality of the proceedings before the military commission, to come to an understanding with the authorized officers of the government, substantially upon the basis suggested by him and acceded to by them. Even if the original payment to the government was under duress, he had the right, subsequently, to agree, as he did, that what the government coerced him to pay was, in fact, fairly due upon a proper settlement of his accounts. And when, by way of supplement to and in execution of that agreement, he accepted, as compensation for his services, or as a gratuity, a portion of the balance justly due from him, he is estopped to raise any question as to the legality of the methods employed to collect from him what should have been paid, without compelling the government to expend for its collection the large sum that was allowed Moulton for his services.

The judgment is affirmed.


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Page:Copyright, Its History And Its Law (1912).djvu/261

 process. . . the copies so deposited shall be accompanied by an afifidavit. . . that such process was wholly performed within the limits of the United States." This affidavit, therefore, is not required in the case of separate lithographs or photo-engravings. The manufacturing provisions chiefly concern the publishers of books, but they imply that artists cannot send works abroad to have reproductions made. But by the opinion of January 9, 191 1, approved by the Attorney-General, a design, drawing, or painting made and located abroad intended as "the first step" for lithographic reproduction, may be registered, if a "work of art"—which question of fact is to be determined by the Register of Copyrights; and such lithographic reproductions of it may be imported.

It was held by the Attorney-General January 27, 1910, that lithographic reproductions of original paintings in the form of illustrated post-cards made in Germany, are subject to registration, provided the original paintings may properly be classified as works of art ; and thus importation of such post-cards would be permissible.

While there must be originality in a work of art, especially under English law, this means little more than a prohibition of actual copying, and as in the case of literary and dramatic works, artistic merit is of little importance.

The Copyright Office furnishes without charge application forms, lettered as indicated, for the following classes of art works: (F) published map; (G) work of art (painting, drawing, or sculpture) ; or model or design for a work of art; (H) reproduction of a work of art; (I) drawing or plastic work of a scientific or technical character ; (J) photograph published for sale, (J) photograph not reproduced for sale; (K) print or


text: Talk:Carver v. United States (111 U.S. 609)/Opinion of the Court


text:
Connecticut Mut Life Insurance Company v. Lathrop

''Jeff. Chandler'', for plaintiff in error.

Wallace Pratt and ''Jeff. Brumback'', for defendant in error.

HARLAN, J.


text: Talk:Connecticut Mut Life Insurance Company v. Lathrop


text:
Connecticut Mut Life Insurance Company v. Lathrop/Opinion of the Court

This is a writ of error from a judgment in favor of Helen Pitkin, the beneficiary in two policies issued by the Connecticut Mutual Life Insurance Company upon the life of her husband,-one, on the tenth day of August, 1866, for the sum of $5,000; and the other, on the twenty-fourth day of September, 1873, for the sum of $423. The insured, George E. Pitkin, died on the twenty-ninth day of September, 1878. After the case came here, the beneficiary in the policies died, and there was a revivor against her personal representative. The defense was the same as to each policy. Briefly stated, it is this: That the policy expressly provides that in case the insured shall, after its execution, become so far intemperate as to impair his health, or induce delirium tremens, or should die by his own hand, it shall be void and of no effect; that, after its execution and delivery, he did become so far intemperate as to impair his health, and induce delirium tremens; also, that he died by his own hand, because, with premeditation and deliberation, he shot himself through the heart with a bullet discharged by himself from a pistol, by reason whereof he died. Further, that the affirmative answer by plaintiff, in her application for insurance, to the question whether the insured was then and had always been of temperate habits, being false and untrue, the contract was annulled, because, by its terms, the policy was to become void if the statements and representations in the application-constituting the basis of the contract between the parties-were not in all respects true and correct. The plaintiff, in her reply, put in issue all the material allegations of the answer, except that alleging the self-destruction of her husband; as to which she averred that, 'at the time he committed said act of self-destruction, and with reference thereto,' he 'was not in possession of his mental faculties, and was not responsible for said act.' At the close of the evidence introduced for the plaintiff, the defendant, by counsel, moved the court to instruct the jury that upon the pleadings and evidence the plaintiff could not recover. That motion was denied, and the action of the court-to which the defendant at the time excepted-is assigned for error. This instruction, it is claimed, should have been given upon the ground that the evidence disclosed no symptom whatever of insanity upon the part of the insured. But that position cannot be sustained upon any proper view of the testimony. There certainly was evidence tending to show a material, if not radical, change for the worse in the mental condition of the insured immediately preceding his death. In the judgment of several who knew him intimately, and had personal knowledge of such change, he was not himself at the time of the act of self-destruction. Whether his strange demeanor immediately before his death was the result of a deliberate, conscious PURPOSE TO FEIGN INSANITY, SO AS THEREBY the more readily to defraud the company, was a matter peculiarly within the province of the jury to determine. If the refusal of the court to sustain the motion would have been error, had there been an entire absence of proof to sustain the plaintiff's suit, it is sufficient to say that there was evidence of a substantial character tending to show that the insured was insane when he took his life.

In ''Ins. Co. v. Rodel'', 95 U.S. 238, where the question was made as to the duty of the court, on a motion by the defendant for a peremptory instruction based wholly on plaintiff's evidence, it was said that 'if there was any evidence tending to prove that the deceased was insane when he took the poison which caused his death, the judge was not bound to, and, indeed, could not properly, take the evidence from the jury. The weight of the evidence is for them, and not for the judge, to pass upon.'

The case clearly comes within the rule announced in ''Phoenix Ins. Co. v. Doster'', 106 U.S. 32, S.C.. 1 SUP. CT. REP. 18, that 'where a cause fairly depends upon the effect or weight of testimony, it is one for the consideration and determination of the jury, under proper directions as to the principles of law involved. It should never be withdrawn from them unless the testimony be of such a conclusive character as to compel the court, in the excercise of a sound legal discretion, to set aside a verdict returned in opposition to it.'

When the evidence was concluded on both sides the defendant submitted requests for instructions. Some of them were given and some refused, but it does not appear from the record which were given and which refused. As the exception which was taken related to the refused instructions, and since it does not appear which of them belonged to that class, none of the series asked by defendant can be noticed. We may, however, remark that the charge of the court, to which no exception was taken, embodied all of defendant's instructions that were applicable to the case, and which could properly have been given.

This brings us to the consideration of the substantial questions presented by the assignments of error. They relate to the admission, against the objections of the defendant, of certain evidence touching the condition of the mind of the insured at or about the time he destroyed his life.

Before the introduction of the particular testimony to which the objections related, there was, as we have already said, proof tending to show that Pitkin was not entirely sound in mind. Witnesses well acquainted with him remarked the unusually excited, wild expression of his face. A domestic in his family testified that 'he looked very wild and frightened out of his eyes; he looked like some one that was crazy.' Within a few hours before death he bade one witness, whose store he visited, good-bye, saying that he was 'going to a country where there is no return.' To another witness, on the same occasion, he appeared to be 'out of his head; kind of mad, insane.'

At this stage of the case one Strein was introduced as a witness for plaintiff. Pitkin was in his saloon about 11 o'clock of the day on which he took his life, and a few hours only before his death. So much of his examination (omitt ng the questions) as is necessary to a proper understanding of the objections made by plaintiff in error is here given: 'Answer. He asked for a glass of wine, and I gave it to him. He said he hadn't had a drink yet that day, or since the one he had last night from me,-that was a glass of wine. He said, 'I may look queer this morning or drunk to other people, but I ain't drunk.' He said, 'Some people may think me drunk, but I am not; I am not drunk in my body, but I am in my mind.' He looked unusual to me. He had on his old clothes, and his neck-tie was out of shape, his face was red, and his eyes staring at me, which made me think he was quite out of his usual way. His appearance and the look was quite different from his usual appearance prior to that time. He looked, in his face, quite red, and his eyes had quite another expression. He had them open wide, with a look that was wild, and he looked around the room awhile and walked up and down, and seemed very restless. He would not stand at one place like he usually did, but walked up and down. I spoke a few words after that, but I did not notice him very much, for I was very busy.' The witness being asked to state the impression made upon him by what he saw of Pitkin's condition, the defendant objected to the question as incompetent. But the objection was overruled, and an exception was taken. The witness answered: 'My impression was that he seemed to be quite out of his head that morning. I could not say the reason. I didn't know then anything about his disappointment; I found that out afterwards.'

Another witness, Mr. Ferry, an attorney at law, was introduced by the plaintiff. He saw Pitkin the morning of the day he killed himself. What occurred was thus stated by him: 'I came down Broadway, walking, and Mr. Pratt came down from his residence on Washington street, in a street car, and got out on the corner of Sixth and Broadway, and we went there in front of the office. Mr. Pitkin was standing very near the door, and as we passed up the stairway going to our office we both said, 'Good morning' to him, and Mr. Pratt says, 'Pit., why ain't you at church?' Mr. Pitkin said, 'I am not going to church, I am going to hell;' and we immediately passed on up stairs and into the doorway, but as we started up stairs Pitkin stuck his head into the door and says, 'Do you want to send any word to him?' Mr. Pratt says, 'To whom?' 'To the devil; I am going to hell,' and he turned immediately and went out of the door.' Being asked how Pitkin looked during that conversation, he said that 'he seemed very much agitated and nervous; his face was flushed; the pupil of his eye dilated and bright, and there was no expression in it.' Against the objections of defendant he was permitted to testify that the impression left on his mind, from the conduct, actions, manner, expressions, and conversation of Pitkin, was that 'he was crazy, and didn't know what he was doing.'

Exception was also taken to the action of the court in permitting the witness Aldrich to answer a certain question. He saw the deceased a few moments before his death, and observed that he 'looked strange;' had 'a very peculiar look,' one that he had never seen before. It was 'a wild look.' Being asked what impression Pitkin made upon him by his manner and conduct at the time, he answered,-the defendant's objection to the evidence being overruled,-'I thought he was out of his head.'

It is contended, in behalf of plaintiff in error, that the impressions and opinions of these non-professional witnesses as to the mental condition of the insured, although accompanied by a statement of the grounds upon which they rested, were incompetent as evidence of the fact of insanity. This question was substantially presented in ''Ins. Co. v. Rodel, ubi supra'', which was an action upon a life policy containing a clause of forfeiture in case the insured died by his own hand. The issue was as to his sanity at the time of the act of self-destruction. Witnesses acq ainted with him described his conduct and appearance at or about, and shortly before, his death. They testified as to how he looked and acted. One said that he 'looked like he was insane;' another, that his impression was that the insured 'was not in his right mind.' In that case the court said that 'although such testimony from ordinary witnesses may not have great weight with experts, yet it was competent testimony, and expressed in an inartificial way the impressions which are usually made by insane persons upon people of ordinary understanding.' The general rule undoubtedly is that witnesses are restricted to proof of facts within their personal knowledge, and may not express their opinion or judgment as to matters which the jury or the court are required to determine, or which must constitute elements in such determination. To this rule there is a well-established exception in the case of witnesses having special knowledge or skill in the business, art, or science, the principles of which are involved in the issue to be tried. Thus the opinions of medical men are admissible in evidence as to the sanity or insanity of a person at a particular time, because they are supposed to have become, by study and experience, familiar with the symptoms of mental disease, and therefore qualified to assist the court or jury in reaching a correct conclusion. And such opinions of medical experts may be based as well upon facts within their personal knowledge, as upon a hypothetical case disclosed by the testimony of others. But are there no other exceptions to the general rule to which we have referred?

Counsel for the plaintiff in error contends that witnesses who are not experts in medical science may not, under any circumstances, express their judgment as to the sane or insane state of a person's mind. This position, it must be conceded, finds support in some adjudged cases as well as in some elementary treatises on evidence. But, in our opinion, it cannot be sustained consistently with the weight of authority, nor without closing an important avenue of truth in many, if not in every case, civil and criminal, which involves the question of insanity. Whether an individual is insane, is not always best solved by abstruse metaphysical speculations, expressed in the technical language of medical science. The common sense, and, we may add, the natural instincts of mankind reject the supposition that only experts can approximate certainty upon such a subject. There are matters of which all men have more or less knowledge, according to their mental capacity and habits of observation,-matters about which they may and do form opinions sufficiently satisfactory to constitute the basis of action. While the mere opinion of a non-professional witness, predicated upon facts detailed by others, is incompetent as evidence upon an issue of insanity, his judgment, based upon personal knowledge of the circumstances involved in such an inquiry, certainly is of value; because the natural and ordinary operations of the human intellect, and the appearance and conduct of insane persons, as contrasted with the appearance and conduct of persons of sound mind, are more or less understood and recognized by every one of ordinary intelligence who comes in contact with his species. The extent to which such opinions should influence or control the judgment of the court or jury must depend upon the intelligence of the witness, as manifested by his examination, and upon his opportunities to ascertain all the circumstances that should properly affect any conclusion reached. It will also depend, in part, upon the degree of the mental unsoundness of the person whose condition is the subject of inquiry; for his derangement may be so total and palpable that but slight observation is necessary to enable persons of ordinary understanding to form a reasonably accurate judgment as to his sanity or insanity; in other cases, the symptoms may be of such an occult character as to require the closest crutiny and the highest skill to detect the existence of insanity.

The truth is, the statement of a non-professional witness as to the sanity or insanity, at a particular time, of an individual, whose appearance, manner, habits, and conduct came under his personal observation, is not the expression of mere opinion. In form it is opinion, because it expresses an inference or conclusion based upon observation of the appearance, manner, and motions of another person, of which a correct idea cannot well be communicated in words to others without embodying, more or less, the impressions or judgment of the witness. But in a substantial sense, and for every purpose essential to a safe conclusion, the mental condition of an individual, as sane or insane, is a fact, and the expressed opinion of one who has had adequate opportunities to observe his conduct and appearance is but the statement of a fact; not, indeed, a fact established by direct and positive proof, because in most, if not all cases it is impossible to determine, with absolute certainty, the precise mental condition of another; yet, being founded on actual observation, and being consistent with common experience and the ordinary manifestations of the condition of the mind, it is knowledge, so far as the human intellect can acquire knowledge upon such subjects. Insanity 'is a disease of the mind which assumes as many and various forms as there are shades of difference in the human character.' It is, as has been well said, 'a condition which impresses itself as an aggregated on the observer,' and the opinion of one, personally cognizant of the minute circumstances making up that aggregate, and which are detailed in connection with such opinion, is, in its essence, only fact 'at short-hand.' 1 Whart. & S. Med. Jur. § 257. This species of evidence should be admitted, not only because of its intrinsic value, when the result of observation by persons of intelligence, but from necessity. We say from necessity, because a jury or court, having had no opportunity for personal observation, would otherwise be deprived of the knowledge which others possess; but, also, because, if the witness may be permitted to state-as, undoubtedly, he would be where his opportunities of observation have been adequate-'that he has known the individual for many years; has repeatedly conversed with him and heard others converse with him; that the witness had noticed that in these conversations he was incoherent and silly; that in his habits he was occasionally highly pleased and greatly vexed without a cause; and that in his conduct he was wild, irrational, extravagant, and crazy,-what would this be but to declare the judgment or opinion of the witness of what is incoherent or foolish in conversation, what reasonable cause of pleasure or resentment, and what the indicia of sound or disordered intellect? If he may not so testify, but must give the supposed silly and incoherent language, state the degrees and all the accompanying circumstances of highly excited emotion, and specifically set forth the freaks or acts regarded as irrational, and thus, without the least intimation of any opinion which he has formed of their character, where are such witnesses to be found? Can it be supposed that those, not having a special interest in the subject, shall have so charged their memories with these matters, as distinct, independent facts, as to be able to present them in their entirety and simplicity to the jury? Or, if such a witness be found, can he conceal from the jury the impression which has been made upon his mind; and, when this is collected, can it be doubted but that his judgment has been influenced by many, very many, circumstances which he has not communicated, which he cannot communicate, and of which he himself is not aware?' Clary v. Clary, 2 Ired. Law, 83. The jury, being informed as to the witness' opportunities to know all the circumstances, and of the reasons upon which he rests his statement as to the ultimate general fact of sanity or insanity are able to test the accuracy or soundness of the opinion expressed, and thus, by using the ordinary means for the ascertainment of truth, reach the ends of substantial justice.

These views are sustained by a very large number of adjudications in the courts of this country, some of which are cited in the margin. In several of those cited the whole subject was very fully considered in all its aspects. While the cases are, to some extent, in conflict, we are satisfied that the rule most consistent with sound reason, and sustained by authority, is that indicated in this opinion.

Counsel for the plaintiff in error calls our attention to the case of Wright v. Tatham, 5 Clark & F. 670, as an authority for the broad proposition that non-professional witnesses cannot give their opinions and impressions concerning the state of a person's mind, even in connection with the facts within their personal knowledge, upon which such opinion is based. On a question of the competency of a party to make a will, certain letters, written to that party by third persons, who had died before they were offered as evidence, and which letters were found many years after their date among the testator's papers, were held, in that case, not to be admissible without proof that he acted on them. Whether the opinions of non-experts, in connection with a statement, under oath, of the facts, are admissible upon an inquiry as to the insanity of an individual, was not involved or determined in that case. On the contrary, the observations made by some of the judges, in illustration of in judgment, would indicate a concurrence judgment, would indicate a concurrence in the general views we have expressed. After stating that the letters were offered as evidence of the opinions of the writers, Baron ALDERSON said: 'The objection of their admissibility is that this opinion is not upon oath, nor is it possible for the opposite party to test by cross-examination the foundation on which it rests. The object of laying such testimony before the jury is to place the whole life and conduct of the testator, if possible, before them, so that they may judge of his capacity; for this purpose you call persons who have known him for years, who have seen him frequently, who have conversed with him or corresponded with him. After having thus ascertained their means of knowledge, the question is put generally as to their opinion of his capacity. I conceive this question really means to involve an inquiry as to the effect of all the acts which the witnesses have seen the testator do for a long series of years, and the manner in which he was, during that period, treated by those with whom he was living in familiar intercourse. This is not properly opinion, like that of experts; but rather a compendious mode of putting one instead of a multitude of questions to the witness under examination, as to the acts and conduct of the testator.' 5 Clark & F. 720. And Baron PARKE: 'These letters are sufficiently proved to have been written and sent to the house of the deceased by persons now dead, and they indicate the opinion of the writers that the alleged testator was a rational person, and capable of doing acts of ordinary business. But it is perfectly clear that, in this case, an opinion not given upon oath in a judicial inquiry between parties is no evidence; for the question is, not what the capacity of the testator was reputed to be, but what it really was in point of fact; and, though the opinion of a witness upon oath as to that fact might be asked, it would be only a compendious mode of ascertaining the result of the actual observation of the witness, from acts done, as to the habits and demeanor of the deceased.' Id. 735.

One other assignment of error remains to be considered. It relates to the admissions of the statements made by two witnesses of what passed between each other on the occasion of their seeing and conversing with the deceased, wit in an hour or two before he shot himself. They detailed what passed between them and the deceased, describing the latter's appearance and condition as indicating, in their judgment, that he was not in his right mind. As he left the presence of these witnesses, one of them remarked to the other that 'Pitkin is not himself; George looks kind of crazy.' The other, in response, expressed substantially, though in different language, his concurrence in that opinion. To the admission of this brief conversation between the witnesses, on the occasion referred to, the defendant objected, but the objection was overruled, and an exception taken. We do not think there was in this any error to the prejudice of the substantial rights of the company. The witnesses, when under oath, expressed the same opinion as to the condition of the deceased. What passed between them at the time to which their testimony referred was a part of what occurred on the occasion when they saw the deceased, and may well have been repeated to the jury, as showing that their opinion as to the mental condition of the deceased was not then presently formed, but was one formed at the very moment they saw him, within a very few hours before his death.

Upon the whole case we perceive no error in the proceedings of which plaintiff in error may complain, and the judgment is affirmed.


text: Talk:Connecticut Mut Life Insurance Company v. Lathrop/Opinion of the Court


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Robb v. Connolly

H. G. Sieberst, for plaintiff in error.

A. C. Searle, for defendant in error.

HARLAN, J.

title: Robb v. Connolly


text: Talk:Robb v. Connolly

title: Talk:Robb v. Connolly


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Robb v. Connolly/Opinion of the Court

On the twentieth day of November, 1883, one C. H. Bayley was arrested in the city of San Francisco, California, and delivered to W. L. Robb, who had been empowered by the governor of the state of Oregon to take and receive him from the proper authorities of the state of California, and convey him to the former state, to be there dealt with according to law. The arrest and delivery were in pursuance of the warrant of the governor of California, as follows:

'STATE OF CALIFORNIA, EXECUTIVE DEPARTMENT.

'The people of the state of California to any sheriff,     constable, marshal, or policeman of this state, greeting:

'Whereas, it has been represented to me by the governor of     the state of Oregon that C. H. Bayley stands charged with the      crime of embezzlement, committed in the county of Clatsop, in      said state, and that he has fled from the justice of that      state, and has taken refuge in the state of California; and      the said governor of the state of Oregon having, in pursuance      of the constitution and laws of the United States, demanded      of me that I shall cause the said C. H. Bayley to be arrested      and delivered to W. L. Robb, who is authorized to receive him      into his custody and convey him back to said state of Oregon;

'And whereas, the said representation and demand is     accompanied by a certified copy of the information filed in      the office of the justice of the peace of the precinct of      Astoria, Clatsop county, state of Oregon, whereby the said C.      H. Bayley stands charged with said crime, and with having      fled from said state and taken refuge in the state of California, which is certified by the      governor of the state of Oregon to be authentic:

'You are, therefore, required to arrest and secure the said     C. H. Bayley wherever he may be found within this state, and      to deliver him into the custody of the said W. L. Robb, to be      taken back to the state from which he fled, pursuant to the      said requisition; he, the said W. L. Robb, defraying all      costs and expenses incurred in the arrest and securing of      said fugitive. You will make return to this department of the     manner in whi h this warrant has been executed.

'In witness whereof, I have hereunto set my hand and caused     the great seal of the state to be affixed, this, the      twentieth day of November, in the year of our Lord one      thousand eight hundred and eighty-three.

'[Seal.]

GEORGE STONEMAN,

'Governor of the State of California,

'By A. E. SHATTUCK, Deputy.

'By the Governor:

'THOS. L. THOMPSON, Secretary of State.'

Bayley sued out a writ of habeas corpus from the judge of the superior court for the city and county of San Francisco, directed to Robb, and commanding him to have the body of the petitioner before said judge, together with the time and cause of his detention, etc. His application for the writ proceeded upon the ground that the imprisonment and detention were illegal, in that 'no copy of an indictment found, or affidavit made, before a magistrate, charging petitioner with any crime, was produced to the governor of California,' and, consequently, that the warrant of arrest was issued without compliance with the act of congress. Robb made return that he held Bayley 'under the authority of the United States,' as evidence whereof he produced a copy of the warrant of the governor of California, with his commission from the governor of Oregon, authorizing him to take and receive the prisoner as a fugitive from justice. He refused 'to produce said C. H. Bayley, on the ground that, under the laws of the United States, he ought not to produce said prisoner, because the honorable superior court has no power or authority to proceed in the premises.' For this refusal the court finding that the body of the petitioner could be produced-Robb was adjudged guilty of contempt of court, and by order of the judge he was arrested by the sheriff and committed to jail until he 'obeys said writ and produces the body of the said C. H. Bayley,' or 'until he be otherwise legally discharged.' He thereupon sued out a writ of habeas corpus from the supreme court of California. His application proceeded on the ground that Bayley was in his custody 'under and by virtue of the authority of the United States, and that said superior court had no jurisdiction to proceed in the premises,' and 'his [Robb's] imprisonment is contrary to the laws of the United States, and in excess of the jurisdiction of said court.' Upon hearing the writ was dismissed, and Robb remanded to the custody of the sheriff.

'It is no part of our duty,' said the supreme court of California, 'to decide whether the authority under which Robb holds the prisoner Bayley is sufficient or not. Neither is it incumbent on us to decide whether Bayley is held under the authority of the United States, and, if so, how far it is competent for the court below to inquire into the legality of the proceedings under which he is held. Whether an affidavit or indictment must accompany the requisition or not; whether the recitals in the governor's warrant of arrest are conclusive or simply prima facie evidence of the facts they recite,-all these are matters for the consideration of the court issuing the writ, and before whom the prisoner is to be brought. The only inquiry in this case relates to the power of the court below to compel the production of the body of the prisoner before it, so that the cause of his imprisonment and detention can be inquired into, and on this point we have no doubt. It was not the duty of the court issuing the writ, nor was it obliged, to accept as true the return of the party. It was within the jurisdiction of the court, at least, to inquire into the facts of the case and the alleged cause of detention, and to this end it was proper that the prisoner should be brought into the presence of the court in obedience to the command of the writ, whereupon the prisoner would have had a right to traverse the return. Reople v. Donohue, 84 N. Y. 438; People v. Brady, 56 N. Y. 182; Norris v. Newton, 5 McLean, 99; State v. Schlemn, 4 Har. (Del.) 577. This the p titioner refused to do, and by such refusal was guilty of a contempt of court.' In re Robb, 1 Pac. Rep. 882.

From the judgment dismissing the writ and remanding Robb to the custody of the sheriff he has prosecuted the present writ of error.

For the purpose of giving effect to the second section of article 4 of the constitution of the United States, declaring that 'a person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on the demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime,' congress passed the act of February 12, 1793, in relation to fugitives from justice. 1 St. 302. The provisions of its first and second sections have been re-enacted in sections 5278 and 5279 of the Revised Statutes, which are as follows:

'Sec. 5278. Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and shall produce a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appear, within six months from the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the state or territory making such demand, shall be paid by such state or territory.

'Sec. 5279. Any agent so appointed who shall receive the fugitive into his custody, shall be empowered to transport him to the state or territory from which he has fled. And every person who, by force, sets at liberty or rescues the fugitive from such agent while so transporting him, shall be fined not more than five hundred dollars or imprisoned more than one year.'

The Penal Code of California, in conformity with the constitution of that state, provides, in reference to the superior court of the city and county of San Francisco, that 'said court and their judges, or any of them, shall have power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus, on petition by or on behalf of any person in actual custody in their respective counties.' The authority and duty of the judge of that court to issue a writ of habeas corpus upon Bayley's application is not disputed in argument. But the contention of the plaintiff in error is that, in receiving and holding Bayley for the purpose of transporting him to Oregon, he was and is acting under the authority and executing the power of the United States; and therefore that neither the superior court of San Francisco, nor one of its judges, could legally compel him to produce the prisoner, or commit him, as for contempt, for refusing to do so. If that court was without jurisdiction, by reason of the paramount authority of the constitution and laws of the United States, to compel the plaintiff in error, in response to the writ of habeas corpus, to produce the prisoner, then his committal for contempt was the denial of a right, privilege, and immunity secured by the supreme law of the land. The claim by the plaintiff in error that there was such a denial constitutes the foundation of our jurisdiction.

It is contended that the principles announced in Ableman v. Booth and U.S. v. Booth, 21 How. 506, and in Tarble's Case to produce the prisoner. The soundness of this position will be the subject of our first inquiry.

In Ableman v. Booth the general question was as to the authority of a justice of the supreme court of Wisconsin, upon a writ of habeas corpus, to compel the marshal of the United States to produce the body of one committed to his custody, by an order of a commissioner of a circuit court of the United States, for failing to give bail for his appearance in the district court of the United States for that state, to answer a charge of having violated the provisions of the fugitive slave act of September 18, 1850. In other words, a judge of the supreme court of the state claimed and exercised the right to supervise and annul the proceedings of that commissioner, and to discharge a prisoner committed by him for an offense against the laws of the general government. In U. S. v. Booth the question was as to the authority of a justice of the supreme court of the same state, upon a writ of habeas corpus, to discharge one in custody, under a judgment of the district court of the United States, in which he had been indicted for an offense against the laws of the United States, and by which he had been sentenced to be imprisoned for one month, to pay a fine of $1,000 and costs of prosecution, and to remain in custody until the sentence was complied with. The authority claimed by the justice who issued the writ and discharged the prisoner was affirmed by the supreme court of the state, and hence, as was said, the state court claimed and exercised jurisdiction over the proceedings and judgment of a district court of the United States, and, upon a summary and collateral proceeding, by habeas corpus, set aside and annulled its judgment, and discharged a prisoner who had been tried and found guilty of an offense against the laws of the United States, and sentenced to imprisonment by the district court. 21 How. 513, 514. It was held that no such paramount power existed in any state, or her tribunals, since its existence was inconsistent with the supremacy of the general government, as defined and limited by the constitution of the United States and the laws made in pursuance thereof, and could not be recognized without bringing within the control of the states the entire Criminal Code of the United States, including all offenses, from the highest to the lowest, involving imprisonment as a part of the punishment inflicted. While the sovereignty of the state within its territorial limits, to a certain extent, was conceded, that sovereignty, the court adjudged, was so limited and restricted by the supreme law of the land that the sphere of action appropriated to the United States was as entirely beyond the reach of the judicial process issued by a state judge or a state court as the proceedings in one of the states were beyond the reach of the process of the judicial tribunals of another state.

'We do not question,' said this court, 'the authority of a state court or judge, who is authorized by the laws of the state to issue the writ of habeas corpus, to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the application is made, that the person imprisoned is in custody under the authority of the United States. The court or judge has a right to inquire, in this mode of proceeding, for what cause and by what authority the prisoner is confined within the territorial limits of the state sovereignty. And it is the duty of the marshal, or other person having the custody of the prisoner, to make known to the judge or court, by a proper return, the authority by which he holds him in custody. This right to inquire by process of habeas corpus, and the duty of the officer to make a return, grows, necessarily, out of the complex character of our government, and the existence of two distinct and separate sov reignties within the same territorial space, each of them restricted in its powers, and each, within its sphere of action prescribed by the constitution of the United States, independent of the other. But, after the return is made, and the state judge or court judicially apprised that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner is within the dominion and jurisdiction of another government, and that neither the writ of habeas corpus, nor any other process issued under state authority, can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offense against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, their judicial tribunals can release him and afford him redress. And although, as we have said, it is the duty of the marshal, or other person holding him, to make known, by a proper return, the authority under which he detains him, it is at the same time imperatively his duty to obey the process of the United States, to hold the prisoner in custody under it, and to refuse obedience to the mandate or process of any other government. And consequently it is his duty not to take the prisoner, nor suffer him to be taken, before a state judge or court upon a habeas corpus issued under state authority. No state judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him, or to require him to be brought before them. And if the authority of a state, in the form of judicial process or otherwise, should attempt to control the marshal or other authorized officer or agent of the United States, in any respect, in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference. No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.' 21 How. 523.

Before considering the scope and effect of that decision, it is proper to examine Tarble's Case, 13 Wall. 397, which is also relied on to support the proposition that the judge of the state court was without jurisdiction to compel the plaintiff in error to produce the body of the alleged fugitive from justice. In that case, the question was whether a judicial officer of a state, or a commissioner of a state court, had jurisdiction, upon habeas corpus, to inquire into the validity of the enlistment of soldiers in the military service of the United States, and to discharge them from such service when, in his judgment, their enlistment had not been made in conformity with law. 'It is evident,' said the court, 'if such jurisdiction may be exercised by any judicial officer of a state, it may be exercised by the court commissioner within the county for which he is appointed; and, if it may be exercised with reference to soldiers detained in the military service of the United States, whose enlistment is alleged to have been illegally made, it may be exercised with reference to persons employed in any other department of the public service when their illegal detention is asserted. It may be exercised in all cases where parties are held under the authority of the United States, whenever the invalidity of the exercise of that authority is affirmed. The jurisdiction, if it exist at all, can only be limited in its application by the legislative power of the state. It may even reach to parties imprisoned under sentence of the national courts, after regular indictment, trial, and conviction, for offenses against the laws of the United State.' 13 Wall. 402. The grounds of the decision n Ableman v. Booth and U.S. v. Booth were fully examined, and the conclusion reached is indicated in the following extract from the opinion: 'State judges and state courts, authorized by laws of their states to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case when a party is alleged to be illegally confined within their limits, unless it appear, upon his application, that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of that government. If such fact appear upon the application, the writ should be refused. If it do not appear, the judge or court issuing the writ has a right to inquire into the cause of imprisonment, and ascertain by what authority the person is held within the limits of the state; and it is the duty of the marshal, or other officer having the custody of the person, to give, by a proper return, information in this respect.' Alluding to the fact that the language used in Ableman v. Booth and U.S. v. Booth had been construed by some as applying only to cases where a person is held in custody under the undisputed lawful authority of the United States, as distinguished from his imprisonment under mere claim and color of such authority, the court rejected any such limitation upon the decisions in those cases, and said: 'All that is meant by the language used is that the state judge or state court should proceed no further when it appears, from the application of the party, or the return made, that the prisoner is held by an officer of the United States under what, in truth, purports to be the authority of the United States; that is, an authority, the validity of which is to be determined by the constitution and laws of the United States. If a party thus held be illegally imprisoned, it is for the courts or judicial officers of the United States, and those courts or officers alone, to grant him release.' It was adjudged that the state court commissioner was without jurisdiction to issue the writ for the discharge of the prisoner in that case, because it appeared, upon the application presented for the writ, that 'the prisoner was held by an officer of the United States, under claim and color of the authority of the United States, as an enlisted soldier mustered into the military service of the national government; and the same information was imparted to the commissioner by the return of the officer.'

From this review of former decisions it is clear that the question now presented has never been determined by this court. In Ableman v. Booth the prisoner, as we have seen, was held in custody by an officer of the United States, under a warrant of commitment from a commissioner of a circuit court of the United States, for an offense against the laws of the general government. In U.S. v. Booth he was in custody in pursuance of a judgment of a court of the United States, founded upon an indictment charging him with an offense against the laws of the United States. In Tarble's Case the person whose discharge was sought was held as an enlisted soldier of the army, by an officer of that army acting directly under the constitution and laws of the United States. No such questions are here presented, unless it be, as claimed, that the plaintiff in error is, within the principles of former adjudications, an officer of the United States, wielding the authority and executing the power of the nation. We are all of opinion that he was not such an officer, but was and is simply an agent of the state of Oregon, invested with authority to receive, in her behalf, an alleged fugitive from the justice of that state. By the very terms of the statute under which the executive authority of Oregon demanded the arrest and surrender of the fugitive, he is described as the 'agent of such authority.' It is true that the executive authority of the state in which the fugitive has taken refuge is under a duty, imposed by the constitution and laws of the United States, to cause his surrender upon proper demand by the executive authority of the state from which he has fled. It is equally true that the authority of the agent of the demanding state to bring the fugitive within its territorial limits is expressly conferred by the statutes of the United States, and therefore, while so transporting him, he is, in a certain sense, in the exercise of an authority derived from the United States. But these circumstances do not constitute him an officer of the United States, within the meaning of former decisions. He is not appointed by the United States, and owes no duty to the national government, for a violation of which he may be punished by its tribunals or removed from office. His authority, in the first instance, comes from the state in which the fugitive stands charged with crime. He is, in every substantial sense, her agent, as well in receiving custody of the fugitive, as in transporting him to the state under whose commission he is acting. What he does, in execution of that authority, is to the end that the violation of the laws of his state may be punished. The fugitive is arrested and transported for an offense against her laws, not for an offense against the United States. The essential difference, therefore, between the cases heretofore determined and the present one is that, in the former, the judicial authorities of the state claimed and exercised the right, upon habeas corpus, to release persons held in custody in pursuance of the judgment of a court of the United States, or by order of a circuit court commissioner, or by officers of the United States in execution of their laws; while, in the present case, the person who sued out the writ was in custody of an agent of another state, charged with an offense against her laws.

Underlying the entire argument in behalf of the plaintiff in error is the idea that the judicial tribunals of the states are excluded altogether from the consideration and determination of questions involving an authority, or a right, privilege, or immunity, derived from the constitution and laws of the United States. But this view is not sustained by the statutes defining and regulating the jurisdiction of the courts of the United States. In establishing those courts, congress has taken care not to exclude the jurisdiction of the state courts from every case to which, by the constitution, the judicial power of the United States extends. In the judiciary act of 1879, it is declared that the circuit courts of the United States shall have original cognizance, 'concurrent with the courts of the several states,' of all suits of a civil nature, at common law or in equity, involving a certain amount, in which the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the state where the suit is brought and a citizen of another state. By section 711 of the Revised Statutes of the United States, as amended by the act of February 18, 1875, jurisdiction, exclusive of the courts of the several states, is vested in the courts of the United States of all crimes and offenses cognizable underf the authority of the United States; of all suits for penalties and forfeitures incurred under their laws; of all civil causes of admiralty and maritime jurisdiction; of seizures under the laws of the United States, on land or on waters not within admiralty and maritime jurisdiction; of all cases arising under the patent-right or copyright laws of he United States; of all matters and proceedings in bankruptcy; and of all controversies of a civil nature, where a state is a party, except between a state and its citizens, or between a state and citizens of other states, or aliens; the jurisdiction of the states remaining unaffected in all other cases to which the judicial power of the United States may be extended. And by the act of Mrach 3, 1875, the original jurisdiction of the circuit courts of the United States is enlarged so as to mbrace all suits of a civil nature, at common law or equity, involving a certain amount, arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different states, or a controversy between citizens of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens, or subjects. But it is expressly declared that in such cases their jurisdiction is 'concurrent with the courts of the several states,'-the jurisdiction of the latter courts being, of course, subject to the right to remove the suit into the proper court of the United States, at the time and in the mode prescribed, and to the appellate power of this court, as established and regulated by the constitution and laws of the United States. So that a state court of original jurisdiction, having the parties before it, may, consistently with existing federal legislation, determine cases at law or in equity, arising under the constitution or laws of the United States, or involving rights dependent upon such constitution or laws. Upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the constitution of the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding before them; for the judges of the state courts are required to take an oath to support that constitution, and they are bound by it, and the laws of the United States made in pursuance thereof, and all treaties made under their authority, as the supreme law of the land, 'anything in the constitution or laws of any state to the contrary notwithstanding.' If they fail therein, and withhold or deny rights, privileges, or immunities secured by the constitution and laws of the United States, the party aggrieved may bring the case from the highest court of the state in which the question could be decided, to this court for final and conclusive determination.

The recognition, therefore, of the authority of a state court, or of one of its judges, upon writ of habeas corpus, to pass upon the legality of the imprisonment, within the territory of that state, of a person held in custody,-otherwise than under the judgment or orders of the judicial tribunals of the United States, or by the order of a commissioner of a circuit court, or by officers of the United States acting under their laws,-cannot be denied merely because the proceedings involve the determination of rights, privileges, or immunities derived from the nation, or require a construction of the constitution and laws of the United States. Congress has not undertaken to invest the judicial tribunals of the United States with exclusive jurisdiction of issuing writs of habeas corpus in proceedings for the arrest of fugitives from justice and their delivery to the authorities of the state in which they stand charged with crime. When a demand has been made, in accordance with the constitution of the United States, by the state from which the fugitive has fled, upon the executive authority of the state in which he is found, that instrument, indeed, makes it the duty of the latter to cause his arrest and surrender to the executive authority of the demanding state, or to the agent of such authority. But if it should appear, upon the face of the warrant issued for the arrest of the fugitive, that such demand was not accompanied or supported by a copy, certified to be authentic, of any indictment found against the accused, or of any affidavit made before a magistrate of the demanding state, charging the commission by him of some crime in the latter state, could it be claimed that the arrest of the fugitive would be in pursuance of the acts of congress, or that the agent of the demanding state had authority fr m the United States to receive and hold him to be transported to that state? This question could not be answered in the affirmative, except upon the supposition, not to be indulged, that, so far as the constitution and the legislation of congress is concerned, the transporting of a person beyond the limits of the state in which he resides, or happens to be, to another state, depends entirely upon the arbitrary will of the executive authorities of the state demanding and of the state surrendering him. Whether the warrant of arrest issued by the governor of California for the arrest of Bayley appeared, upon its face, to be authorized and required by the act of congress,-that is, whether, upon its face, a case was made behind which the state courts or officers could not go, consistently with the constitution and laws of the United States, are questions upon which it is unnecessary to express an opinion. What we decide-and the present case requires nothing more-is that, so far as the constitution and laws of the United States are concerned, it is competent for the courts of the state of California, or for any of her judges,-having power, under her laws, to issue writs of habeas corpus,-to determine, upon writ of habeas corpus, whether the warrant of arrest and the delivery of the fugitive to the agent of the state of Oregon were in conformity with the statutes of the United States; if so, to remand him to the custody of the agent of Oregon. And since the alleged fugitive was not, at the time the writ in question issued, in the custody of the United States, by any of their tribunals or officers, the court or judge issuing it did not violate any right, privilege, or immunity secured by the constitution and laws of the United States, in requiring the production of the body of the fugitive upon the hearing of the return to the writ, to the end that he might be discharged, if, upon hearing, it was adjudged that his detention was unauthorized by the act of congress providing for the arrest and surrender of fugitives from justice, or by the laws of the state in which he was found. The writ was without value or effect unless the body of the accused was produced. Subject, then, to the exclusive and paramount authority of the national government, by its own judicial tribunals, to determine whether persons held in custody by authority of the courts of the United States, or by the commissioners of such courts, or by officers of the general government, acting under its laws, are so held in conformity with law, the states have the right, by their own courts or by the judges thereof, to inquire into the grounds upon which any person, within their respective territorial limits, is restrained of his liberty, and to discharge him, if it be ascertained that such restraint is illegal; and this, notwithstanding such illegality may arise from a violation of the constitution or the laws of the United States.

It is proper to say that we have not overlooked the recent elaborate opinion of the learned judge of the circuit court of the United States for the district of California in In re Robb, 19 Fed. Rep. 26. But we have not been able to reach the conclusion announced by him.

For the reasons we have stated, and without considering other questions discussed by counsel, the judgment of the supreme court of California must be affirmed.

title: Robb v. Connolly/Opinion of the Court


text: Talk:Robb v. Connolly/Opinion of the Court


text:
Johnson v. Waters (111 U.S. 640)

John A. Campbell, for appellants.

Henry B. Kelly, Julius Aroni, and John G. Simrall, for appellee.

BRADLEY, J.

title: Johnson v. Waters (111 U.S. 640)


text: Talk:Johnson v. Waters (111 U.S. 640)

title: Talk:Johnson v. Waters (111 U.S. 640)