text:
Relfe v. Rundle/Opinion of the Court

The Life Association of America was, on the 5th of November, 1879, a corporation of the State of Missouri, for the purpose of doing a kife insurance business, with its chief office at St. Louis, in that State. By the laws of doing a life insurance business, of the insurance department of the State government might, under certain circumstances, institute proceedings in the courts of the State for the dissolution of such a corporation and the winding up of its affairs. Sect. 6043 of the Revised Statutes of Missouri is as follows:--

'Upon the rendition of a final judgment dissolving a company,     or declaring it insolvent, all the assets of such company      shall vest in fee-simple and absolutely in the superintendent      of the insurance department of this State, and his successor      or successors in office, who shall hold and dispose of the      same for the use and benefit of the creditors and      policy-holders of such company, and such other persons as may      be interested in such assets.'

On the 13th of October, 1879, L. E. Alexander, a citizen of Missouri, and the receiver of the Columbia Life Insurance Company of Missouri, recovered a claim against the Life Association of America of $1,100,000, and thereupon William S. Relfe, the superintendent of the insurance department of the State, commenced proceedings under the statute to dissolve the lastnamed corporation and wind up its affairs. In his petition he prayed that the company might be enjoined from doing any further business, and that an agent might be appointed to take charge of its property temporarily. Such an order was made in the cause, and D. M. Frost, a citizen of Missouri, appointed temporary agent and receiver. Frost at once qualified under this appointment.

On the 5th of November, 1879, Rundle and wife, the appellees, policy-holders of the company, commenced suit in the Fifth District Court of the Parish of New Orleans, against the life association, Frost, the temporary agent and receiver, John R. Fell, the local agent of the company at New Orleans, and L. E. Alexander, receiver of the Columbia Life Insurance Company, the object of which was to have the assets of the company in Louisiana declared a trust fund and applied to the payment of the claims of Louisiana creditors and policy-holders in preference to others. In the bill the decree in favor of the receiver of the Columbia Life Insurance Company, and the proceedings by Relfe, the superintendent of the insurance department, with the appointment of Frost as temporary receiver, were set out in detail, and the whole object and purpose of the suit was to keep the Louisiana assets out of the hands of Relfe and his successors in office. No special relief was asked against the receiver of the Columbia Life Insurance Company. Upon the filing, of the bill, Walter B. Wilcox was appointed receiver. Service of process was made on Alexander only through Francis B. Lee, who was appointed curator ad hoc at the same time that Wilcox was appointed receiver. Fell was made a party only for the purpose of reaching property in his hands.

On the 10th of November the company was dissolved by a decree of the Missouri court, and its property vested in Relfe, superintendent of the insurance department, as provided by the statute. On the 17th of the same month Relfe was, on his own motion, made a party to the suit in New Orleans, as the legal representative of the late corporation, and on the 28th he filed a petition for the removal of the cause to the Circuit Court of the United States for the District of Louisiana. In his petition he set forth his own citizenship in Missouri, and that of the appellees in Louisiana. The citizenship of all the other persons named as parties to the suit appeared in the pleadings. He also gave the security required by the act of Congress, and on the 5th of December, which was in time, filed in the Circuit Court a copy of the record in the State court. On the 9th of the same month the receiver appointed in the State court moved to dismiss the cause and strike it from the docket of the Circuit Court: 1, Because that court was without jurisdiction either of the person or the subject-matter; 2, because Relfe had no standing in court, he being a creature of the State of Missouri, without capacity to sue or remove causes in Louisiana; 3, because the suit was improperly removed; and, 4, because the State court having first taken charge of the property, the Circuit Court could not interfere with the possession of the receiver of that court. While this motion was pending, and on the 30th of December, the life association and Frost filed their petition in the State court, setting forth the former petition of Relfe, and adopting it and all that had been done under it as their own, and also asking that the suit be removed on their own account. They also gave the security required by the act of Congress. On the 5th of January the Circuit Court heard the motion of the State court receiver made on the 9th of December, and remanded the cause. From that order the life association, Relfe, and Frost took this appeal, under the fifth section of the act of 1875, c. 137. 18 Stat., pt. 3, p. 472.

We think the Circuit Court erred in remanding the cause. The entire controversy is between the appellees, representing the Louisiana creditors and policy-holders, on one side, and Relfe, the statutory representative of the corporation and its property, on the other, as to their respective rights to what the appellees claim are Louisiana assets belonging primarily to Louisiana creditors. Fell and the receiver of the Columbia Life Insurance Company are formal parties only. Fell has in his possession, as a naked trustee, some of the Louisiana assets, and the receiver of the Columbia Life Insurance Company is, so far as anything appears, no more than a general creditor of the dissolved corporation whom, necessarily, under the law, Relfe represents. After the decree of dissolution the Life Association Company had no longer any corporate existence, and the temporary agency and receivership of Frost was ended when the property of the corporation was transferred to Relfe and he became under the law entitled to the possession.

Relfe is not an officer of the Missouri State court, but the person designated by law to take the property of any dissolved life insurance corporation of that State, and hold and dispose of it in trust for the use and benefit of creditors, and other parties interested. The law which clothed him with this trust was, in legal effect, part of the charter of the corporation. He was the statutory successor of the corporation for the purpose of winding up its affairs. As such he represents the corporation at all times and places in all matters connected with his trust. He is the trustee of an express trust, with all the rights which properly belong to such a position. He is an officer of the State, and as such represents the State in its sovereignty while performing its public duties connected with the winding up of the affairs of one of its insolvent and dissolved corporations. His authority does not come from the decree of the court, but from the statute. He appeared in Louisiana not by virtue of any appointment from the court, but as the statutory successor of a corporation which the court had in a legitimate way dissolved and put out of existence. He was, in fact, the corporation itself for all the purposes of winding up its affairs.

We are aware that, except by virtue of some statutory authority, an administrator appointed in one State cannot generally sue in another, and that a receiver appointed by a State court has no extra-territorial power; but a corporation is the creature of legislation, and may be endowed with such powers as its creator sees fit to give. Necessarily it must act through agents, and the State which creates it may say who those agents shall be. One may be its representative when in active operation, and in full possession of all its powers, and another if it has forfeited its charter and has no lawful existence except to wind up its affairs. No State need allow the corporations of other States to do business within its jurisdiction unless it chooses, with perhaps the exception of commercial corporations; but if it does, without limitation, express or implied, the corporation comes in as it has been created. Every corporation necessarily carries its charter wherever it goes, for that is the law of its existence. It may be restricted in the use of some of its powers while doing business away from its corporate home, but every person who deals with it everywhere is bound to take notice of the provisions which have been made in its charter for the management and control of its affairs both in life and after dissolution.

By the charter of this corporation, if a dissolution was decreed, its property passed by operation of law to the superintendent of the insurance department of the State, and he was charged with the duty of winding up its affairs. Every policyholder and creditor in Louisiana is charged with notice of this charter right which all interested in the affairs of the corporation can insist shall be regarded. The appellees, when they contracted with the Missouri corporation, impliedly agreed that if the corporation was dissolved under the Missouri laws, the superintendent of the insurance department of the State should represent the company in all suits instituted by them affecting the winding up of its affairs. Relfe, therefore, became, by operation of law, the successor of the corporation in the litigation these appellees instituted in Louisiana. He was, in legal effect, their only opponent in the suit they had begun, and as he appeared in time and was a citizen of Missouri, representing a Missouri corporation, he was entitled to remove the cause and require citizens of Louisiana to litigate their claims with him in the courts of the United States.

The order of the Circuit Court remanding the suit will, therefore, be reversed, and the record remanded to that court with instructions to proceed according to law as with a pending suit within its jurisdiction by removal; and it is

So ordered.

title: Relfe v. Rundle/Opinion of the Court


text: Talk:Relfe v. Rundle/Opinion of the Court

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


text:
Blake v. United States

APPEAL from the Court of Claims.

This suit was instituted in the Court of Claims, by Blake, to recover the amount claimed to be due him, by way of salary as a post-chaplain in the army, from April 28, 1869, to May 14, 1878.

The court below found that, under date of Dec. 24, 1868, Blake, a post-chaplain in the army, stationed at Camp McDowell, Arizona, addressed to the Secretary of War a communication, in which he complained of unjust treatment to which, during several years, he had been subjected by various officers. He asked for the fullest and most thorough investigation of the facts, and concluded: 'But if this cannot be done, then I wish to tender to the Honorable the Secretary of War my resignation as a chaplain of the army, and to lay the facts, which I have for years been accumulating with the greatest care, before the church and the country at large.' After this letter came to the hands of the post commandant, his attention was called to the mental condition of Blake, and it was suggested that the latter was not responsible for his act in writing the letter. It was, therefore, retained until Dec. 31, 1868, when it was forwarded by the commandant with an indorsement recommending the acceptance of the resignation, and saying, among other things, that 'the tenor of this and other communications forwarded will, no doubt, convince the department commander of his utter uselessness in the position he holds.'

The letter of Dec. 24, 1868, was forwarded through the district and department headquarters, and, finally, through the headquarters of the military division of the Pacific, to the Secretary of War, by whom it was transmitted to the President, who accepted the resignation, to take effect March 17, 1869. Each of the commanding officers through whose office the letter passed recommended the acceptance of the resignation.

On March 28, 1869, Blake telegraphed to the delegate in Congress from Arizona, stating that he did not intend to resign; and that if his letter was construed as a resignation, to withdraw it immediately. When the Secretary of War was informed of the telegram, he stated that the resignation had been accepted and was beyond recall.

Blake, having received official notice of such acceptance, addressed the following letter to the Secretary of War:--

'NAPA CITY, CAL., April 27, 1869.

'Hon. JOHN A. RAWLINS,

'Secretary of War, Washington, D.C.:

'DEAR SIR,-To my great surprise I was yesterday informed, thro' H'd Q'rs Dep't of California, that my 'resignation' as post-chaplain, U.S. Army, 'had been accepted by the President,' 'to take effect March 17, 1869.'

'As I am not aware of having at any time resigned my commission, and as I am now in a state of feeble health, caused by efficient services in the line of duty in 1863, 1864, and since, I beg that the favorable reconsideration of the President may be given to my case, and that I may be ordered before a retiring board for examination, and to duty if fit for it.

'Justice to the service, no less than to myself and family, after eight years of devoted labors, will not permit me to be silent in view of the wrongs done me at Camp McDowell, A. T., and I am confident that you will not allow me to suffer wrongfully.

'I have the honor to remain, with great respect, your ob'd't servant,

(Signed) 'CHARLES M. BLAKE,

'(Late) Post Chaplain, U.S. A.'

This letter was referred to the adjutant-general, who returned it with this indorsement:--

'Respectfully returned to the Secretary of War, with the paper on which the resignation of Chaplain Blake was accepted. Chaplain Blake appears not to be of sane mind.

'E. D. TOWNSEND, Adjt.-Genl.'

On July 7, 1870, the President nominated to the Senate six persons to be post-chaplains in the army, to rank from July 2, 1870; among them was that of 'Alexander Gilmore, of New Jersey, vice Blake, resigned.' Gilmore's nomination was confirmed July 12, 1870, and on the 14th of that month he was commissioned as post-chaplain, to rank as such from July 2, 1870. He has since regularly received his salary and performed his duties as such post-chaplain.

The court further found, that for some time prior to, and on, Dec. 24, 1868, Blake had been suffering from physical disease and mental prostration; that in the light of subsequent events 'there can be no doubt he was then insane;' that he was, at times, irritable and incoherent, manifesting egotism and suspicion of his superiors; that not until after the above date were these symptoms developed to such an extent as necessarily to induce persons who came in contact with him to believe he was mentally incapable of acting with sound reasoning purpose; also that, at the date of the telegram to the delegate from Arizona, he was 'totally unqualified for business,' and at the date of the letter of April 27, 1869, 'he was not of sound mind.'

It also found that the insanity of Blake continued until about the year 1874.

On Sept. 28, 1878, the President made the following order:

'EXECUTIVE MANSION, Sept. 28, 1878.

'It appearing from the evidence, and from the reports of the surgeon-general of the army and the superintendent of the government hospital for the insane, that Chaplain Blake was insane at the time he tendered his resignation, it is held that said resignation was and is void, and the acceptance thereof is set aside. Chaplain Blake will be ordered to duty, and paid from the date of the resignation of post-chaplain Preston Nash, to wit, May 14, 1878, by which resignation a vacancy was created, which has not been filled. The claim of Chaplain Blake for pay from the date of his resignation to May 14, 1878, during which his successor held the office, discharged its duties, and received pay, is not decided, but is left for the decision of the court, where it is understood to be now pending.

'R. B. HAYES.'

Oct. 2, 1878, the following order was issued by direction of the general of the army:-- 'HEADQUARTERS OF THE ARMY,

'ADJUTANT-GENERAL'S OFFICE,

'WASHINGTON, Oct. 2, 1878.

'1. It appearing from the evidence presented, and from the reports of the surgeon-general of the army, and the superintendent of the government hospital for the insane, that Post-Chaplain Charles M. Blake, U.S. Army, was insane at the time he tendered his resignation, December 24, 1868, said resignation is, by direction of the President, declared void, and the acceptance of the same in letter from this office, dated March 17, 1869, as announced in Special Orders No. 62, March 17, 1869, from this office, is set aside.

'Chaplain Blake is restored to the list of post-chaplains of the army with his original date of rank, and with pay from May 14, 1878, since which date a vacancy in that grade has existed. He will report in person to the commanding officer, department of Arizona, for assignment to duty.

'By command of General Sherman.

(Signed) 'E. D. TOWNSEND, Adjustant-General.'

The court below dismissed the petition, whereupon Blake appealed to this court.

Mr. George H. Williams and Mr. Ralph P. Lowe, for the appellant.

Mr. Attorney-General Devens, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Blake v. United States


text: Talk:Blake v. United States

title: Talk:Blake v. United States


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

The claim of Blake is placed upon the ground that before, at the date of, and after the letter addressed to the Secretary of War, which was treated as his resignation, he was insane in a sense that rendered him irresponsible for his acts, and consequently that his supposed resignation was inoperative and did not have the effect to vacate his office. Did the appointment of Gilmore, by and with the advice and consent of the Senate, to the post-chaplaincy held by Blake, operate, proprio vigore, to discharge the latter from the service, and invest the former with the rights and privileges belonging to that office? If this question be answered in the affirmative, it will not be necessary to inquire whether Blake was, at the date of the letter of Dec. 24, 1868, in such condition of mind as to enable him to perform, in a legal sense, the act of resigning his office; or, whether the acceptance of his resignation, followed by the appointment of his successor, by the President, by and with the advice and consent of the Senate, is not, in view of the relations of the several departments of the government to each other, conclusive, in this collateral proceeding, as to the fact of a valid effectual resignation.

From the organization of the government, under the present Constitution, to the commencement of the recent war for the suppression of the rebellion, the power of the President, in the absence of statutory regulations, to dismiss from the service an officer of the army or navy, was not questioned in any adjudged case, or by any department of the government.

Upon the general question of the right to remove from office, as incident to the power to appoint, Ex parte Hennan (13 Pet. 259) is instructive. That case involved the authority of a district judge of the United States to remove a clerk and appoint some one in his place.

The court, among other things, said: 'All offices, the tenure of which is not fixed by the Constitution or limited by law, must be held either during good behavior, or (which is the same thing in contemplation of law) during the life of the incumbent, or must be held at the will and discretion of some department of the government, and subject to removal at pleasure.

'It cannot for a moment be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made? In the absence of all constitutional provision or statutory regulation, it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. This power of removal from office was a subject much disputed, and upon which a great diversity of opinion was entertained in the early history of this government. This related, however, to the power of the President to remove alone, or with the concurrence of the Senate; and the great question was whether the removal was to be by the President alone, or with sthe concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate jointly to remove, where the tenure of the office was not fixed by the Constitution; which was a full recognition of the principle that the power of removal was incident to the power of appointment. But it was very early adopted, as the practical construction of the Constitution, that this power was vested in the President alone. And such would appear to have been the legislative construction of the Constitution.' 1 Kent, Com. 309; 2 Story, Const. (4th ed.), sects. 1537-1540, and notes; 2 Marshall, Life of Washington, 162; Sergeant, Coust. Law, 372; Rawle, Const., c. 14.

During the administration of President Tyler, the question was propounded by the Secretary of the Navy to Attorney-General Legare, whether the President could strike an officer of inquiry ordered for the a court-martial, after a decision in that officer's favor by a court of inquiry ordered for thedf investigation of his conduct. His response was: 'Whatever I might have thought of the power of removal from office, if the subject were res integra, it is now too late to dispute the settled construction of 1789. It is according to that construction, from the very nature of executive power, absolute in the President, subject only to his responsibility to the country (his constituents) for a breach of such a vast and solemn trust. 3 Story, Com. Const. 397, sect. 1538. It is obvious that if necessity is a sufficient ground for such a concession in regard to officers in the civil service, the argument applies a multo fortiori to the military and naval departments. . . . I have no doubt, therefore, that the President had the constitutional power to do what he did, and that the officer in question is not in the service of the United States.' The same views were expressed by subsequent attorneys-general. 4 Opin. 1; 6 id. 4; 8 id. 233; 12 id. 424; 15 id. 421.

In Du Barry's Case (4 id. 612) Attorney-General Clifford said that the attempt to limit the exercise of the power of removal to the executive officers in the civil service found no support in the language of the Constitution nor in any judicial dicision; and that there was no foundation in the Constitution for any distinction in this regard between civil and military officers.

In Lansing's Case (6 id. 4) the question arose as to the power of the President, in his discretion, the remove a military storekeeper. Attorney-General Cushing said: 'Conceding, however, that military storekeepers are officers, or, at least, quasi officers, of the army, it does not follow that they are not subject to be deprived to their commission at the will of the President.

'I am not aware of any ground of distinction in this respect, so far as regards the strict question of law, between officers of the army and any other officers of the government. As a general rule, with the exception of judicial officers only, they all hold their commissions by the same tenure in this respect. Reasons of a special nature may be deemed to exist why the rule should not be applied to military in the same way as it is to civil officers, but the legal applicability to both classes of officers is, it is conceived, the settled construction of the Constitution. It is no answer to this doctrine to say that officers of the army are subject to be deprived of their commissions by the decision of a court-martial. So are civil officers by impeachment. The difference between the two cases is in the form and mode of trial, not in the principle, which leaves unimpaired in both cases alike the whole constitutional power of the President.

'It seems unnecessary in this case to recapitulate in detail the elements of constitutional construction and historical induction by which this doctrine has been established as the public law of the United States. I observe only that, so far as regards the question of abstract power, I know of nothing essential in the grounds of legal conclusion, which have been so thoroughly explored at different times in respect of civil officers, which does not apply to officers of the army.'

The same officer, subsequently, when required to consider this question, said that 'the power has been exercised in many cases with approbation, express or implied, of the Senate, and without challenge by any legislative act of Congress. And it is expressly reserved in every commission of the officers, both of the navy and army.' 8 Opin. 231.

Such was the established practice in the Executive Department, and such the recognized power of the President up to the passage of the act of July 17, 1862, c. 200 (12 Stat. 596), entitled 'An Act to define the pay and emoluments of certain officers of the army, and for other purposes,' the seventeenth section of which provides that 'the President of the United States be, and hereby is, authorized and requested to dismiss and discharge from the military service, either in the army, navy, marine corps, or volunteer force, any officer for any cause which, in his judgment, either renders such officer unsuitable for, or whose dismission would promote, the public service.'

In reference to that act Attorney-General Devens (15 Opin. 421) said, with much reason, that so far as it 'gives authority to the President, it is simply declaratory of the long-established law. It is probable that the force of the act is to be found in the word 'requested,' by which it was intended to re-enforce strongly this power in the hands of the President at a great crisis of the State.'

The act of March 3, 1865, c. 79 (13 Stat. 489), provides that, in case any officer of the military or naval service, thereafter dismissed by the authority of the President, shall make application in writing for a trial, setting forth, under oath, that he has been wrongfully and unjustly dismissed, 'the President shall, as soon as the necessities of the service may permit, convene a court-martial to try such officer on the charges on which he was dismissed. And if such court-martial shall not award dismissal or death as the punishment of such officer, the order of dismissal shall be void. And if the court-martial aforesaid shall not be convened for the trial of such officer within six months from the presentation of his application for trial, the sentence of dismissal shall be void.'

Thus, so far as legislative enactments are concerned, stood the law in reference to dismissals, of army or naval officers, by the President, until the passage of the army appropriation act of July 17, 1866, c. 176 (14 Stat. 92), the fifth section of which is as follows:--

'That section seventeen of an act, entitled 'An Act to define     the pay and emoluments of certain officers of the army,'      approved July seventeenth, eighteen hundred and sixty-two,      and a resolution, entitled 'A Resolution to authorize the      President to assign the command of troops in the same filed,      or department, to officers of the same grade, without regard to seniority,' approved April      fourth, eighteen hundred and sixty-two, be, and the same are,      hereby repealed. And no officer in the military or naval     service shall, in time of peace, be dismissed from the      service, except upon and in pursuance of the sentence of a      court-martial to that effect, or in commutation thereof.'

Two constructions may be placed upon the last clause of that section without doing violence to the words used. Giving them a literal interpretation, it may be construed to mean, that although the tenure of army and naval officers is not fixed by the Constitution, they shall not, in time of peace, be dismissed from the service, under any circumstances, or for any cause, or by any authority whatever, except in in pursuance of the sentence of a court-martial to that effect, or in commutation thereof. Or, in view of the connection in which the clause appears,-following, as it does, one in the same section repealing provisions touching the dismissal of officers by the President, alone, and to assignments, by him, of the command of troops, without regard to seniority of officers,-it may be held to mean, that, whereas, under the act of July 17, 1862, as well as before its passage, the President, alone, was authorized to dismiss an army or naval officer from the service for any cause which, in his judgment, either rendered such officer unsuitable for, or whose dismissal would promote, the public service, he alone shall not, thereafter, in time of peace, exercise such power of dismissal, except in pursuance of a court-martial sentence to that effect, or in commutation thereof. Although this question is not free from difficulty, we are of opinion that the latter is the true construction of the act. That section originated in the Senate as an amendment of the army appropriation bill which had previously passed the House of Representatives. Cong. Globe, 39th Congress, pp. 3254, 3405, 3575, and 3589. It is supposed to have been suggested by the serious differences existing, or which were apprehended, between the legislative and executive branches of the government in reference to the enforcement, in the States lately in rebellion, of the reconstruction acts of Congress. Most, if not all, of the senior officers of the army enjoyed, as we may know from the public history of that period, the confidence of the political organization then controlling the legislative branch of the government. It was believed that, within the limits of the authority conferred by statute, they would carry out the policy of Congress, as indicated in the reconstruction acts, and suppress all attempts to treat them as unconstitutional and void, or to overthrow them by force. Hence, by way of preparation for the conflict then apprehended between the executive and legislative departments as to the enforcement of those acts, Congress, by the fifth section of the act of July 13, 1866, repealed not only the seventeenth section of the act of July 17, 1862, but also the resolution of April 4, 1862, which authorized the President, whenever military operations required the presence of two or more officers of the same grade, in the same field or department, to assign the command without regard to seniority of rank. In furtherance, as we suppose, of the objects of that legislation, was the second section of the army appropriation act of March 2, 1867, c. 170 (14 Stat. 486), establishing the headquarters of the general of the army at Washington, requiring all orders and instructions relating to military operations issued by the President or Secretary of War to be issued through that officer, and, in case of his inability, through the next in rank, and declaring that the general of the army 'shall not be removed, suspended, or relieved from command, or assigned to duty elsewhere than at said headquarters, except at his own request, without the previous approval of the Senate, and any orders or instructions relating to military operations issued contrary to the requirements of this section shall be null and void; and any officer who shall issue orders or instructions contrary to the provisions of this section shall be deemed guilty of a misdemeanor in office,' &c.

Our conclusion is that there was no purpose, by the fifth section of the act of July 13, 1866, to withdraw from the President the power, with the advice and consent of the Senate, to supersede an officer in the military or naval service by the appointment of some one in his place. If the power of the President and Senate, in this regard, could be constitutionally subjected to restrictions by statute (as to which we express no opinion), it is sufficient for the present case to say that Congress did not intend by that section to impose them. It is, in shbstance and effect, nothing more than a declaration, that the power theretofore exercised by the President, without the concurrence of the Senate, of summarily dismissing or discharging officers of the army or the navy, whenever in his judgment the interest of the service required it to be done, shall not exist, or be exercised, in time of peace, except in pursuance of the sentence of a court-martial, or in commutation thereof. There was, as we think, no intention to deny or restrict the power of the President, by and with the advice and consent of the Senate, to displace them by the appointment of others in their places.

It results that the appointment of Gilmore, with the advice and consent of the Senate, to the office held by Blake, operated in law to supersede the latter, who thereby, in virtue of the new appointment, ceased to be an officer in the army from and after, at least, the date at which that appointment took effect,-and this, without reference to Blake's mental capacity to understand what was a resignation. He was, consequently, not entitled to pay as post-chaplain after July 2, 1870, from which date his successor took rank. Having ceased to be an officer in the army, he could not again become a post-chaplain, except upon a new appointment, by and with the advice and consent of the Senate. Mimmack v. United States, 97 U.S. 426.

As to that portion of the claim covering the period between April 28, 1869, and July 2, 1870, it is only necessary to say that, even were it conceded that the appellant did not cease to be an officer in the army by reason of the acceptance of his resignation, tendered when he was mentally incapable of understanding the nature and effect of such an act, he cannot recover in this action. His claim for salary during the above period accrued more than six years, and the disability of insanity ceased more than three years before the commencement of this action. The government pleads the Statute of Limitations, and it must be sustained. Congress alone can give him the relief which he seeks.

Judgment affirmed.


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


text:
Ex Parte Burtis

PETITION for a writ of mandanus.

Mr. A. J. Todd in support of the petition.

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

title: Ex Parte Burtis


text: Talk:Ex Parte Burtis

title: Talk:Ex Parte Burtis


text:
Ex Parte Burtis/Opinion of the Court

This is a petition for a mandamus requiring the district judge for the eastern district of New York to compel one Eliza M. Shepherd to obey the command of a subpoena duces tecum, and produce before a special examiner certain iron patterns of an old fire-place heater, that testimony might be taken respecting them, to be certified and used on the hearing of an equity cause pending in the Circuit Court for the Southern District of New York. From the petition it appears that the judge has already acted on the identical showing made to us, and for reasons assigned in writing denied a motion for an attachment against the person named for refusing to obey the subpoena.

A writ of mandamus may be used to compel an inferior tribunal to act on a matter within its jurisdiction, but not to control its discretion while acting (Ex parte Railway Company, 101 U.S. 711), nor reverse its decisions when made. Ex parte Flippin, 94 id. 348. Both these rules are elementary, and are fatal to this application. The district judge took jurisdiction of the matter, as it was his duty to do, heard the parties, and decided adversely to the claim of the petitioner. In this he may have done wrong, and the reasons he has assigned may not be such as will bear the test of judicial criticism; but we cannot, by mandamus, compel him to undo what he has thus done in the exercise of his legitimate jurisdiction. He was asked to punish a person for contempt in disobeying the process of the court. He decided not to do so. This action of his is beyond the reach of a writ of mandamus.

Petition denied.

title: Ex Parte Burtis/Opinion of the Court


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


text:
The Benefactor (103 U.S. 239)

APPEALS from the Circuit Court of the United States for the Eastern District of New York.

The facts are stated in the opinion of the court.

Mr. Cornelius Van Santvoord for the appellant.

Mr. Franklin A. Wilcox and Mr. Robert D. Benedict, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: The Benefactor (103 U.S. 239)


text: Talk:The Benefactor (103 U.S. 239)

title: Talk:The Benefactor (103 U.S. 239)


text:
The Benefactor (103 U.S. 239)/Opinion of the Court

On the 26th of February, 1875, a collision occurred off the coast of New Jersey, in the vicinity of Squam Beach, between the schooner 'Susan Wright' and the steamship 'Benefactor,' which resulted in the sinking of the former with a total loss of vessel and cargo. Soon afterwards a libel was filed against the steamer in the District Court of the United States for the Eastern District of New York, at the suit of the owners of the schooner for the loss of their vessel; and a separate libel at the suit of the crew for the loss of their personal effects; and pending the proceedings on these libels, a petition of intervention was filed by the owners of the schooner's cargo to recover the value of the same. The steamer being attached, was duly appraised and her value fixed at $40,000, and the appellants, the New York and Wilmington Steamship Company, having appeared as claimants and owners thereof, an order was made granting them leave to give a stipulation, with sufficient sureties, in said appraised value of the steamer, and directing that said stipulation should be for the benefit of the libellants in both of said suits (in case they should establish the liability of the steamship), and of all persons and parties who might, by due proceedings in the court, show themselves entitled to liens upon her by reason of said collision; and that upon giving such stipulation the steamer should be discharged from all liability. A stipulation was filed by the claimants in pursuance of this order, and the steamer was thereupon discharged.

The claimants then filed answers to each of the libels, denying that the steamer was in fault, and denying all liability by reason of the collision. Upon the issue thus formed proofs were taken by the parties. On the twenty-first day of April, 1876, the District Court adjudged the steamer to have been in fault, and the damages of the libellants and intervenors were assessed, amounting in the aggregate to $61,810.49. The suits were then consolidated, and on the twenty-first day of October, 1876, a decree was rendered in favor of the libellants and intervenors for the several amounts awarded to them respectively, and directing the claimants and their sureties to pay into the registry of the court the amount of their stipulation; namely, $500 for costs, and $40,000 and the interest thereon for the value of the steamer. The decree further directed that unless an appeal should be taken within the time limited by law, the clerk should distribute the proceeds of said stipulation among the libellants and co-libellants in proportion to their several recoveries. From this decree an appeal was taken to the Circuit Court.

It thus appearing that the damages of those interested in the schooner and her cargo exceeded the value of the steamer, and she being condemned by the court of first instance as being in fault for the collision, the claimants, on the fifteenth day of February, 1877, filed a petition in the said District Court under the fifty-fourth Rule in Admiralty, claiming the benefit of limitation of liability provided for in sect. 4283 of the Revised Statutes.

In this petition the claimants allege, as required by the act, that the collision happened and the loss and damage occurred without their privity or knowledge. They then state the fact of the filing of the libels before mentioned, and the proceedings which took place thereon; and restate the facts and circumstances on which they relied in their answers to the libels for exemption from all liability. They then state that they desire to contest their liability and that of the steamship for the damage occasioned by the collision, and also to claim the benefit of limitation of liability provided for by sect. 4283 of the Revised Statutes. They further state that the freight pending at the time of the collision was $1,220.32; and they tender themselves ready and willing and offer to give a stipulation with sureties in the value of the steamship and freight for the payment thereof into court whenever it should be so ordered. They also offer to admit in evidence, at the proper time, the depositions and proofs taken in the libel suits. Then, having stated the fact that the damages were assessed in said suits to an amount greatly exceeding the value of the steamship and freight pending, they pray for an order permitting them to give the stipulation proffered; and that, if it shall be ultimately adjudged that the steamship is liable, a monition may issue against all persons claiming any damage from the collision, citing them to appear before the court and make proof of their claims before a commissioner to be designated for that purpose; and for a final decree that the amount of the stipulation (after payment of costs and expenses) be divided pro rata among the claimants, and that upon payment thereof the steamship and the petitioners be for ever discharged from further liability; and that an order be made to restrain the libellants in the other suits from further prosecuting the same, and that the court proceed to hear and determine the liability of the petitioners upon the testimony taken on the trial of those suits; and that they may have the benefit of appeal from any decree to be made, without giving further or other security than that required by the said act limiting their liability; and that the testimony taken as aforesaid be used on said appeal as though originally taken in this proceeding; 'and that they may have and receive such other and further order in the premises as in equity they may be entitled to receive.'

A copy of this petition, with notice of an application for an order restraining the libellants in the first suits from the further prosecution thereof, being served upon said libellants, they filed three exceptions to the petition; the first of which was overruled. The second and third were as follows:--

'Second, For that the said two suits of William H. Mount and others, and William Hirst and others, against the said steamship 'Benefactor,' having been tried upon the merits, and submitted and determined, and the final decree, a copy whereof is annexed to the said petition, having been entered in the suit formed by the consolidation of such two suits, before the filing of the petition herein; and no other suit or proceeding, for any loss, damage, destruction, or injury occasioned by said collision, having been commenced, and it not being alleged or claimed that any other persons or parties than the libellants in said two suits (being the libellants in said consolidated suit) have any claims for loss, damage, destruction, or injury occasioned by said collision, but the contrary thereof appearing upon the face of said petition, the petitioner is not entitled to the relief sought in and by its said petition.

'Third, For that the facts stated in said petition show that the relief sought thereby cannot now be granted by this

The district judge not only denied the motion for a restraining order, but, upon the exceptions taken, dismissed the petition; and, on appeal to the Circuit Court, this decree was affirmed. The ground of dismissal relied on by the district judge (which was adopted by the Circuit Court) was that the petition came too late, inasmuch as it was not filed until after a trial of the cause of collision upon its merits and a final decree thereon. The judge referred to the fifty-sixth admiralty rule, which declares that in proceedings to obtain a decree for a limited liability, the owners may contest all liability on their part or that of their vessel, as well as claim a limitation of liability under the statute; provided, that in their libel or petition they shall state the facts and circumstances by reason of which exemption from liability is claimed. He supposes that this right to contest the case on the merits at the same time and in the same proceedings that a limited liability is claimed, implies that such proceedings must be instituted before the case has been tried on its merits; because a second trial of the same matter, after it has once been adjudicated, will not be deemed to have been contemplated by the rule. In supposing that a second trial of the merits, between the same parties, was not contemplated by the rule, the judge was correct. But it was certainly not the intention of the admiralty rules to preclude a party from claiming the benefit of a limited liability after a trial of the cause of collision. The fifty-sixth rule was merely intended to relieve ship-owners from the English rule of practice, which requires them, when they seek the benefit of the law of limited liability, to confess the ship to have been in fault in the collision. This was deemed to be a very onerous requirement; for in many, if not in most cases, it is extremely doubtful which vessel, if either, was in fault; and to require the owners of either to confess fault before allowing them to claim the benefit of the law, would go far to deprive them of its benefit altogether. Hence this court, in preparing the rules of procedure for a limitation of liability, deemed it proper to allow a party seeking such limitation to contest any liability whatever. But this rule of procedure was not intended to abrogate, and indeed could not abrogate, the rule of law, that res judicata, or a matter once regularly decided between parties in a competent tribunal, cannot be again opened by either of them except in an appellate proceeding. Of course, therefore, the rule of procedure allowing a contestation of all liability is subordinate to this rule of law, and cannot apply where the question of general liability has already been adjudicated. Nor, in such case, can the proceedings for a limitation of liability prevent the due course of appeal in the primary cause of collision; though, by the exercise of the court's authority, they may prevent the parties from attempting, by execution, or other process, to collect any moneys recovered by them beyond the amount awarded in the said proceedings. The amount recovered, whether before the limitation proceedings are commenced, or afterwards, and whether in the court of first instance, or an appellate court, will stand as the recoverer's basis for pro rata division when the condemned fund is distributed. In all other respects the proceedings for obtaining a limitation of liability may proceed in ordinary course. If suit against the vessel or the owners has been commenced and evidence has been taken, though no trial had, it will be in the discretion of the court to require that such evidence shall be received and used in the limitation proceedings. The flexibility of admiralty proceedings will enable the court, in most cases, so to shape their course as to attain justice between the parties.

But since the statute is imperative, that where a loss occurs in a vessel by embezzlement or by collision or other thing, without the privity or knowledge of the owner, his liability 'shall in no case exceed the amount or value of his interest in the vessel and her freight then pending,' it would be a questionable exercise, by this court, of its power to regulate the proceedings, if, by such regulation, it should prevent a party from having the benefit of the law unless he took initiatory steps for that purpose before it appeared that he was liable at all. Such was not the intention of the rules adopted in 1872. Admiralty Rules, 54-57. They were intended to facilitate the proceedings of the owners of vessels for claiming the limitation of liability secured by the statute without regard to the time when such proceedings might be commenced, or whether before or after the general liability should be fixed. To require such proceedings to be commenced before a trial of the cause of collision would in many cases work injustice. In addition to the reasons already adverted to, it may be added that the owners of the vessel found in fault may often not know the amount of damage and loss sustained by the other vessel and her cargo. It may greatly exceed their expectations, and, contrary to what was originally known or supposed, may turn out to be much greater than the value of their own vessel and the freight pending thereon.

The institution of proceedings for a limitation of liability must, however, be subject to some limitations growing out of the nature of the case. They must be regarded as ineffectual as to any specific party if not undertaken until after such party has obtained satisfaction of his demand. The doctrine of laches, as applied in admiralty courts, would be properly applicable to such a case. The court would justly refuse its aid in compelling a return ofof money received. But the omission to take the benefit of the law in reference to a particular party ought not to preclude the owners of a ship from claiming its benefit as against other parties suffering loss by the same collision. There may be many persons who have sustained but trifling losses which the owners may be perfectly willing to pay; whilst, at the same time, they may have just ground for resisting the claims of others. In such cases, a concession to the demands, or a failure to resist the claims, of one party, ought not to conclude them as against the demands of other parties

Precisely when the owners of a ship in fault ought to be regarded as precluded from instituting proceedings for a limitation of liability might be difficult to state in a categorical manner. Perhaps they can never be precluded so long as any damage or loss remains unpaid. But in a particular case relief should not be granted except upon condition of compensating the other party for any costs and expenses he may have incurred by reason of the delay in claiming the benefit of the law.

But it is unnecessary to pursue the subject further. Each case as it arises will suggest the proper course to be pursued therein.

The petition for relief in the present case was justly liable to exception so far as it sought to retry the question of fault and general liability as between the petitioners and the parties in the libel suits. That question was determined by the decree made upon the libels which had been filed; which decree could only be reviewed on appeal. But so far as the petition sought a limitation of the owners' liability to the value of the ship and freight, it was free from objection and ought to have been sustained; and the libellants and intervenors ought to have been restrained, by order of the court, from collecting or attempting to collect or enforce their respective decrees, whether obtained in that court or in the court of appeal, in any other manner than by the pro rata distribution of the fund standing by stipulation in place of the ship and freight.

A question has been raised by the counsel for the appellees, whether the appraisement of the value of the steamship, made at the time she was libelled, is sufficient for the purposes of the proceeding to obtain limitation of liability. The court below having dismissed the petition, did not pass upon this question; and, therefore, it is not essential that we should express an opinion in reference to it at this time. But since the petitioners specifically pray that the court will order and direct that they be permitted to give a stipulation in the sum of $41,220.32, which is precisely the amount of the former stipulation in the libel suits, with the addition of the freight pending, it may be advisable that we should indicate our views on the subject. The counsel for the appellees is mistaken in supposing that the value of the offending vessel at the time of the collision furnishes the only criterion of the amount for which her owners are liable. In Norwich Company v. Wright (13 Wall. 104) we held that the owners of the offending vessel could, under the statute, discharge themselves from personal liability by surrendering the ship and freight. This would imply that the value of the ship at the time of surrender (with the addition of the pending freight), if the surrender is made in a reasonable time, would furnish a proper criterion of the amount of liability. In the case cited it was also said (p. 124) that, 'if the vessel were libelled and either sold or appraised, and her value deposited in court, this sum, together with the amount of freight (when proper to be added), would constitute the res or fund for distribution.' In England, the value of the vessel immediately before the collision was regarded as the true criterion of liability. But the English law is different from ours. It makes the owners liable to the extent of the value of the ship at the time of the injury, even though the ship itself be lost or destroyed at the same time; whereas our law, following the admiralty rule, limits the liability to the value of the ship and freight after the injury has occurred; so that if the ship is destroyed the liability is gone; and, whether damaged or not damaged, the owners may surrender her in discharge of their liability.

What may be the rule if, after the collision has occurred, the offending vessel should meet with other disasters greatly impairing her value, is a question which may require further consideration when the case arises. Nothing of the kind is alleged in the present case.

It seems to us, therefore, that the District Court, unless it has some cause to believe that the former valuation was unfairly made, may adopt that valuation in the proceedings for a limitation of liability.

The decree of the Circuit Court will be reversed, and the record remanded with directions to enter a decree reversing the decree of the District Court, and giving directions for further proceeding in accordance with this opinion; and it is

So ordered.

Motions having been made to modify the judgment and mandate, Mr. JUSTICE BRADLEY at a subsequent day of the term delivered the opinion of the court.

Since deciding these cases and issuing mandates therein, both parties have applied for additional directions with regard to further proceedings in the court below. The respondents ask that the judgment and mandate in the second case be amended so as to direct that further proceedings for securing a limited liability of the appellants shall be had in the Circuit Court instead of the District Court. It is undoubtedly the general rule that an appeal in admiralty, like all appeals derived from the practice of the civil law, carries the whole cause to the appellate court, in which it is to be tried anew upon the same and such additional proofs as the parties may propound. Whilst this is the general rule, there is also no doubt that the legislature may authorize the appellate court, after hearing the cause, and determining the questions raised therein, to remand it to the court a quo for further proceedings. The late practice under the bankrupt law exhibited an instance of this mode of proceeding. The entire history of appeals in admiralty as well as in equity, in this court, is another instance of the same practice. But on appeals in admiralty from the District to the Circuit Court, the latter has always retained the cause for trial and final disposition without remanding to the Distric Court. But in the late revision of the statutes of the United States it is declared as follows: 'A circuit court may affirm, modify, or reverse any judgment, decree, or order of a district court brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had by the District Court, as the justice of the case may require.' Rev. Stat., sect. 636. The question whether the cause should be retained by the Circuit Court or remanded to the District Court was not raised on the argument, and in entering judgment we directed the Circuit Court to reverse the decree of the District Court and give directions for further proceedings, in conformity with our opinion. The respondents now suggest that this direction could not properly be made, because, as they contend, that section does not extend to admiralty proceedings. In this, however, we think that they are mistaken. It follows several other sections which give the right of appeal and writ of error respectively in admiralty and other cases from the District to the Circuit Court, and makes no distinction between them in conferring upon the latter the power to affirm, modify, or reverse, together with power to give directions to the District Court for further proceedings. It is a re-enactment of a clause in the second section of the act of June 1, 1872, c. 255, entitled 'An Act to further the administration of justice' (17 Stat. 196); and in that act its application seems to be general to all appeals from the District to the Circuit Court.

But whilst this seems to be the law,-namely, that the Circuit Court, after hearing a cause on appeal, has power to remand with directions,-it may not be advisable to resort to it in ordinary cases where the Circuit Court can as well dispose of the whole case. As we had already established rules for regulating the proceedings in the district courts upon petitions for the benefit of a limited liability under the act of 1851, we supposed it would be more convenient to continue the further proceedings in that court. Our attention, however, having been more particularly called to the circumstances of this case, we think it possible that the rights of the parties may be better preserved by continuing the cause in the Circuit Court. We have deemed it advisable, therefore, to alter our judgment in this respect, and to prepare a general rule, which we shall now announce, extending to the circuit courts on appeal the regulations which have heretofore been adopted for the district courts in cases of proceeding to obtain the benefit of a limited liability under the act. We make this general rule in order to obviate all objections as to the ability of the Circuit Court to proceed.

A question has been made whether, under our decisions in these cases, proceedings ought to be stayed on the decree of the 'Benefactor,' her claimants 'Benefactor,'her claimants and stipulators, until the determination of the proceedings on the petition for limited liability. We have no hesitation in saying that they ought to be so stayed. Our opinion was very clearly expressed, in deciding the limited liability case, that the petitioners were not too late to obtain relief, and that proceedings to collect any decrees rendered against them should be stayed. We held that such decrees would have the effect of res judicata on the question of the liability of the steamship, and as to the amount of damage sustained by the libellants; and that the amount of the decrees would stand as the basis for determining the pro rata share of the libellants in the common fund to be distributed on the termination of the limited liability proceedings. We do not well see how our views could have been misunderstood on this point.

It is not necessary, or proper, at this time, to pass upon the question whether the appellants, when called upon to pay the amount of their stipulation into court, will be liable to pay interest thereon or not; nor whether they will be liable to pay the costs of the libellants in addition to the value of the steamship; nor whether the Circuit Court may or may not require them to pay the value of the said ship into court, or give a new bond, before the termination of the limited liability proceedings. Should the future action of the Circuit Court on any of these points be brought before us on appeal, it will be time enough then to give them the proper consideration.

The order of the court upon the several applications now submitted will be, that the former judgment and mandate of this court in the case arising upon the petition of the appellants, the New York and Wilmington Steamship Company, for the benefit of a limited liability, be, and they are hereby, modified so far as they contain directions to the Circuit Court to enter a decree reversing the decree of the District Court and giving directions for further proceedings; and that instead of said portion of the said judgment and mandate, directions be, and they are hereby, given to the Circuit Court to proceed upon the petition of the said New York and Wilmington Steamship Company for such limited liability, and hear and determine the same, in conformity with law and the opinion of this court, in the mean time staying proceedings upon any and all decrees or judgments against the steamship 'Benefactor' by reason of the collision referred to in said petition until the proceedings for limited liability be determined, and to answer the determination of the same. It is further ordered that each party pay their own costs on these motions.


text: Talk:The Benefactor (103 U.S. 239)/Opinion of the Court


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Sharp v. Stamping Company

APPEAL from the Circuit Court of the United States for the District of Massachusetts.

The facts are stated in the opinion of the court.

Mr. Arthur v. Briesen for the appellant.

Mr. J. L. S. Roberts, contra.

MR. JUSTICE WOODS delivered the opinion of the court.

title: Sharp v. Stamping Company


text: Talk:Sharp v. Stamping Company

title: Talk:Sharp v. Stamping Company


text:
Sharp v. Stamping Company/Opinion of the Court

On July 14, 1868, letters-patent No. 79,989 were granted to one H. Y. Lazear for an improved apparatus for broiling steak by gas. This patent was transferred by the assignment of the patentee to one W. Phillips, who, by another assignment, transferred it to James L. Sharp. The invention was represented and described as an upright cylinder or closed casing of sheet-metal, with a lid for closing the top, and with an open bottom. The diameter of the open bottom was traversed by a V-shaped horizontal trough, dividing it into two equal openings, through which the flame of a gas-stove, over which the apparatus was placed, might enter in two equal sheets. The trough was filled with plaster of Paris or other good non-conductor of heat, and upon this non-conductor the dripping-pan was placed for receiving the juices of the meat. The steak was clasped in a wire broiler, which was placed in the cylinder or closed casing in a vertical position, with its lower end resting in the dripping-pan, the two flat sides of the meat being equally exposed to the two sheets of flame which entered the lower end of the cylinder in the manner stated. The object was to produce an apparatus in which both sides of the meat might be cooked equally and at the same time, and in which the drippings from the meat might be caught in a pan, where it would be protected from the injurious effects of the heat. The latter object was obtained by the non-conductor filling upon which the drip-pan rested, and which filled the V-shaped trough. The trough served to contain the filling and support the pan, and to divide the flame into two equal sheets, which ascended along the sides of the steak.

The first and third claims of the patent were thus stated:--

'1. The V-shaped trough E and the filling E, by which the     flame is divided, and the grease protected from burning, and      smoke thereby prevented, substantially as described, in      combination with a gas steak-broiler.'

'3. An apparatus for broiling steak by gas, whereby the steak     is broiled or cooked simultaneously on both sides, or where      the sides are equally exposed to the flame and heat,      substantially as shown and described.'

On May 3, 1876, Sharp filed the bill in this case. He claimed to be the sole owner of the letters-patent issued to Lazear, and charged that the defendant, the Dover Stamping Company, had unlawfully and wrongfully made, used, and sold, and was making, using, and selling, large quantities of gas-heaters, such as were described and claimed in the letters-patent, in infringement of them and in violation of his exclusive privilege.

The bill prayed that the defendant might be compelled to account for and pay over all gains and profits derived from the infringement of the patent, and for a perpetual injunction restraining it from making, using, or vending gas-heaters embodying the invention described in the letters-patent claimed by complainant.

Upon final hearing in the Circuit Court the bill was dismissed. Sharp thereupon brought the case here by appeal.

It is conceded by the defendant that the gas-heaters manufactured by it embody the invention claimed in letters-patent issued to Lazear. The defence relied on is that Lazear 'was not the original and first inventor of the whole or any substantial or material part of the things set forth and claimed as new in said letters-patent, but that prior to said alleged invention thereof the same had been described and set forth in the following specified letters-patent of the United States, and known to and used by the several patentees therein named, at the places of their respective residences, that is to say: No. 28,781, dated June 19, 1860, and granted to William F. Shaw, of Boston, Massachusetts; No. 38,018, dated March 24, 1863, and granted to James M. Dick, of Buffalo, New York; and No. 66,911, dated July 16, 1867, and granted to D. C. Teller, of Terre Haute, Indiana.'

Dick's patent was not introduced in evidence, but Shaw's and Teller's were.

The apparatus described in the Teller patent was a cylindrical vessel, having a central opening in the bottom, and an annular opening around the central opening, and a series of vertical wires or rods inserted in the annular bottom that intervened between the two openings. An inverted conical deflector was suspended in the central space from above.

The claim of Teller's patent was thus stated:--

'The vertical position in which the steaks are placed over     the fire, and the arrangement of the vertical rods EE, all      substantially enclosed with the cap C, as specified for the      purposes in the specifications.' It is clear that this contrivance did not anticipate the invention of Lazear. It had no V-shaped trough, filled with a nonconducting substance, nor the dripping-pan referred to and claimed in his letters-patent, nor anything resembling it. It was not adapted to be used with a removable wire broiler, and did not evenly distribute the flame along two sides of the steak. In short, it did not in any manner embody or anticipate the first and third claims of those letters.

The Shaw patent shows an apparatus for broiling or roasting by gas. Its character is thus generally described by the inventor in his specification:--

'The nature of my invention consists in the arrangement of     the steak-holder, the heating-chambers, and the burner or      burners. Also in the arrangement of two deflectors in the     heating-chamber, and with respect to the burner or burners      and the steak-holder, when arranged as specified.'

It consisted of a heating or broiling chamber, whose front vertical side could be removed, and was constructed as a thin, hollow box attached to a drip-pan or gravy-receiver. Against and alongside the inner face of the said cover, and within the heating-chamber, a steak-holder was placed, composed of two wire frames, hinged or connected together at or near one edge of each and furnished with handles. When a steak or other food was to be cooked in the apparatus, it was placed in the steak-holder. In the bottom of the cooking-chamber there was a long opening under which the gas-burners were placed. Over this opening was arranged an inclined deflecting-plate, which extended across the heating-chamber from end to end.

In the upper part of the heating-chamber, and over the deflecting-plate above mentioned, was arranged another deflecting-plate. By means of thin deflectors and the arrangement of the steak-holder, the broiler-chamber and the burners, the inventor claimed to be able to obtain a more equal distribution of the heat within the heating-chamber, with less liability of burning the steak and a better chance of collecting the gravy, than when the steak-holder was placed horizontally over the burners.

The claims of the inventor were thus stated:-- 'I claim the arrangement of the steak-holder, the     broiling-chamber, and the burner or burners.

'Also the arrangement of the two deflectors within the     heating-chamber, and with respect to the burner or burners      and the steak-holder when arranged as specified.

'Also the combination of the closed air-chamber or space in     the cover with the steak-holder and heating-chamber arranged      as specified.

'Also the combination of the vertical side or cover with the     steak-holder and drip-pan, said side or cover having a closed      airchamber or space, as specified and shown in drawings.'

It requires no discussion to show that this is not an anticipation of the Lazear patent. The Shaw patent does not describe or claim what is shown and claimed in the first and third claims of the Lazear patent.

It has no V-shaped trough, filled with plaster of Paris or other non-conductor of heat, by which the flame is divided and the grease protected from burning.

It is not an apparatus for dividing the flame so that the sides of the steak may be equally exposed thereto, and the steak thus broiled simultaneously and equally on both sides. On the contrary, the flame is not divided at all, and whatever flame reaches the side of the steak next to the removable vertical cover, does so by impinging against the upper deflector, and then passing over the top of the steak-holder and descending between the steak and the removable vertical cover.

The evidence makes it clear that this contrivance is not capable of broiling a steak equally and simultaneously on both sides, the lower deflector causing the lower part of the steak to remain raw while the upper part is burned, and the side next the removable vertical cover is left raw.

We can find nothing in this invention which anticipates the claims of the Lazear patent.

To sustain the averment in the answer, of want of novelty in the apparatus described in the Lazear patent, the defendant has introduced an apparatus called Shaw's Cooker, which he alleges was designed and manufactured and sold by Shaw as early as 1856.

This consisted of an upright cylindrical heating-chamber with a round hole in the bottom. Under this hole the gas-burners were placed. To direct the flames the hole was partially filled by a cone-shaped disc, which filling the central portions of the hole left an annular open space next its outer edge through which the flames could enter the heating-chamber The flames, therefore, entered the heating-chamber in the form of a cylinder. The steak or other meat to be cooked was suspended from hooks fastened to the cover of the cooking-chamber.

The cone-shaped disc which partially occupied the opening in the bottom of the cooking-chamber was filled with plaster of Paris and hard-coal ashes. The drip-pan was placed over the disc on legs or supports which allowed a passage of air under the drip-pan. The meats were suspended over the pan.

This apparatus was not contrived to accomplish the ends which Lazear's letters-patent had in view, nor was it an equivalent of his apparatus. Instead of dividing the volume of flame into two sheets, by which a steak could be broiled simultaneously on both sides, both sides being equally exposed to the flame and heat, it admitted the flames to the cooking-chamber in the form of a hollow cylinder. The steak, therefore, suspended from the top of the cooking-chamber would not be equally exposed to the flame and heat. The edge of the steak would be cooked more rapidly than the other portions.

It is evident, and the testimony sustains this view, that Shaw's contrivance was a gas cooking-stove for cooking food of various kinds,-particularly joints of meat and fowls. It was not specially intended or adapted for cooking steaks in the way in which that process was accomplished by Lazear's apparatus.

Nor was the dripping-pan contrived to secure the ends for which the Lazear patent was designed. The dripping-pan being elevated on legs or supports above the disc, left a space underneath, which the flames would fill, and thus allow the juices of the meats to be burned, a result which was averted by the Lazear patent. That left no space between the drippan and the V-shaped trough filled with plaster of Paris or other non-conductor of heat. The fact that its bottom rested upon the plaster of Paris protected the juices of the meat from the action of the flames.

Upon a consideration of all the evidence we are satisfied that the invention of Lazear was new and original, and had not been anticipated by the patents of Teller or Shaw, or the gas-stove made by Shaw in 1856.

The invention, it is admitted, has been infringed by the defendant. The evidence places its utility beyond question. Being novel and useful, and protected by the letters-patent issued to Lazear, the defendant should account to the complainant for the gains and profits derived by it from the infringement of the Lazear patent.

As the Circuit Court dismissed the bill, the decree must be reversed and the cause remanded for further proceedings in conformity with this opinion.

So ordered.


text: Talk:Sharp v. Stamping Company/Opinion of the Court


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Weightman v. Clark

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. Henry Flanders and Mr. R. J. C. Walker for the appellants.

Mr. John I. Rinaker, contra.

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

title: Weightman v. Clark


text: Talk:Weightman v. Clark

title: Talk:Weightman v. Clark


text:
Weightman v. Clark/Opinion of the Court

By the Constitution of Illinois, adopted in 1848, counties were recognized as existing political subdivisions of the State, and the General Assembly was authorized to provide by a general law for a township organization, under which any county might come, whenever a majority of the voters should, at any general election, so determine. If a county did adopt a township organization, the management of its fiscal affairs by the county court might be dispensed with, and the business of the county transacted in such manner as the General Assembly should provide. Art. 7, sect. 6. Under the authority of this provision of the Constitution, an act was passed by the General Assembly authorizing such an organization, by which townships could be established and made bodies corporate, with certain defined governmental powers. Gross, State. 1869, p. 741.

By another statute each congressional township in the State was 'established a township for school purposes.' Id., p. 691. The business of such a township was to be done by three trustees, to be elected from time to time by the legal voters of the township, and who were made 'a body politic and corporate, by the name and style of 'trustees of schools of township___, range___,' according to the number.' The powers of these trustees related exclusively to the business of the public schools in the township. They had authority to lay off the township into school districts and apportion the school funds, and were charged with certain other duties connected with school affairs and school lands within their jurisdiction. They had no power to levy taxes. That was to be done by the directors of the several school districts which should be created.

Art. 9, sect. 5, of the Constitution of 1848 is as follows:--

'The corporate authorities of counties, townships, school     districts, cities, towns, and villages may be vested with      power to assess and collect taxes for corporate purposes;      such taxes to be uniform in respect to persons and property      within the jurisdiction of the body imposing the same. And     the General Assembly shall require that all the property      within the limits of municipal corporations, belonging to      individuals, shall be taxed for the payment of debts      contracted under authority of law.' The Illinois Farmers' Railroad Company was incorporated Feb. 28, 1867, and by an amendment to its charter, passed April 15, 1869, the following provisions were made:--

'SECT. 2. It shall be lawful for the corporate authorities of     the towns, townships, cities, and counties through which said      road shall pass, to take stock in the said company; and shall      also be empowered to make assessments, levy taxes, and      collect the same in the manner in which the said several      towns, townships, cities, and counties assess and collect      taxes, for the prupose of paying the said assessments on the      subscriptions to the said stock or the interest accruing      thereon, and the said towns, townships, cities, and counties      may issue bonds, bearing interest, at any point they may      designate, either within or without the State of Illinois, at      a rate not exceeding ten per cent per annum, payable annually      or semi-annually, as they may elect: Provided, that the said      townships, or towns shall not subscribe to the stock of the      said company without submitting the said proposed      subscription to a vote of the legal voters of their      respective towns, townships, or cities, thirty days' notice      of which shall be given, elections held and returns made as      provided by the general election laws of this State: And      provided further, that no such bonds shall issue, nor shall      any interest be payable thereon or accrue, until said road is      completed through the said town, township, city, or county:      And provided further, that the subscriptions on the part of      the said counties shall not be for a sum exceeding two      thousand dollars per mile of the line of the said road in the      said counties.

'SECT. 3. In counties not under township organization it     shall be lawful for the trustees of schools to make      subscriptions for their respective townships, and issue bonds      as provided in the preceding section; and for the purpose of      paying the said subscriptions or bonds, or the interest      thereon, shall levy a tax, not exceeding the rate of one per      cent per annum, upon the taxable property of their respective      townships, and shall, through their treasurer, certify the      said assessment to the clerk of the county court of their      respective counties, and it shall be the duty of the said      clerk of the county court to carry out the tax so assessed      upon the collector's book; and the amount so raised by      taxation shall remain in the hands of the treasurer of the      proper county, and shall be employed by him in paying, first,      the interest due on the said bouds, and then the principal,      if any funds shall remain in his hands, and for no other      purpose.' The county of Morgan, through which the road of this company passed, was not under township organization, and on the 1st of February, 1870, at an election called, the voters of congressional township No. 14 N., of range 9 W. of the third principal meridian, within that county, voted to subscribe to the stock of the company in accordance with the provisions of sect. 3 of the amended charter. Upon the authority of this vote the trustees of schools of the township made the subseription and issued thirty-two bonds of $1,000 each, bearing date Oct. 1, 1870, to make the required payment. These bonds were afterwards registered with the auditor of public accounts, and, upon his certificate to the clerk of the County Court of Morgan County, taxes were levied on the taxable property in the township to meet the interest as it fell due. In this way the interest for the years 1871, 1872, 1873, and 1874 was paid; but in 1875 the taxpayers of the township commenced this suit in a State court to enjoin any further taxation to meet the bonds, on the ground that there was no authority in law either for the subscription or the issue of the bonds. That suit was transferred by the bondholders from the State Court to the Circuit Court of the United States for the Southern District of Illinois, where, on final hearing, the prayer of the taxpayers, complainants, was granted. To reverse that decree this appeal was taken.

It is clear that art. 9, sect. 5, of the Constitution is a limitation on the power of the legislature to authorize taxation by public corporations or the political subdivisions of the State. The Supreme Court of the State has uniformly so decided. Johnson v. Campbell, 49 Ill. 316; Harward v. St. Clair Drainage Co., 51 id. 130; Madison County v. People, 58 id. 456. The same court also decided, in ''Trustees, &c. v. People (63 id. 299), People v. Dupuyt (71 id. 651), and People v. Trustees of Schools'' (78 id. 136), that statutes substantially like the one now under consideration were unconstitutional, and consequently void, because the tax required was not for a corporate purpose. It is conceded that if these decisions are to be followed the judgment below was right.

The first of these cases was decided at the January Term, 1872, and the court then took occasion to say it was the first instance in which the right of the trustees of schools to embark in railroad enterprises had been brought to their attention. The law then under consideration, like the one here, was not passed until 1869; and we infer from this and other circumstances that such legislation had not been common in the State before that time. The decisions since on the same question have all been one way; and this of itself would make it highly improper for us to depart from them, unless they were clearly wrong. As a rule, we treat the construction which the highest court of a State has given a statute of the State as part of the statute itself. It is only when, by giving such construction a retroactive effect, it will invalidate contracts which in our opinion were lawfully made, that we disregard them. Here, however, we find nothing of the kind. Taxation by municipal or public corporations must be for a corporate purpose. It is not always easy to decide whether a without this limitation, but without this limitation. but we think it may be safely said that, as a general rule, a corporate purpose must be some purpose which is germane to the general scope of the object for which the corporation was created. Such we understand to be the effect of the Illinois decisions which are collected and commented on in Hackett v. Ottawa, 99 U.S. 86. A congressional township is one of the principal subdivisions, which Congress has provided for in the survey of the public lands of the United States for the purposes of entry and sale. It is not necessarily a political subdivision of a State or of a county. When Illinois was admitted into the Union, section numbered sixteen in every surveyed township, or its equivalent, if the section had before that time been sold or otherwise disposed of, was granted the State 'for the use of the inhabitants of such township, for the use of schools.' 3 Stat. 430, c. 67, sect. 6. It was eminently proper, therefore, that the State should make these donations the points around which the public-school system should be organized. Hence the congressional or original surveyed townships were made public corporations for that purpose, and apparently for that alone. Taxation for school purposes only would be germane to such corporations, and no one would or could reasonably suppose that they were created for managing the general affairs of a political subdivision of the State. As was very properly said in People v. Trustees of Schools, supra, 'their creation is purely to aid in the great scheme of accomplishing universal education.' They are pre-eminently public-school corporations, and in the absence of legislative power under the Constitution can no more tax the people to build railroads than an ordinary school district or an incorporated academy can use its funds in that way. A railroad may held the people in a school district, but it can hardly be said that the construction of a railroad is a school purpose. The existence of railroads may and undoubtedly will make schools more necessary, and school property more valuable; but the construction of railroads is not necessary either to the establishment or maintenance of schools. Railroads are the effect rather than the cause of schools.

Congressional townships under the name of the 'trustees of schools' were incorporated for 'school purposes' only. So the act of incorporation in terms declares. Taxation, by the corporate authorities, therefore on persons and property within the jurisdiction of such a township, to build railroads, is not taxation for a corporate purpose, and the decree below, which followed the decisions of the State court, was consequently right.

Decree affirmed.

title: Weightman v. Clark/Opinion of the Court


text: Talk:Weightman v. Clark/Opinion of the Court


text:
Oscanyan v. Arms Company

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

The facts are stated in the opinion of the court.

Mr. Theodore W. Dwight and Mr. Richard O'Gorman for the plaintiff in error.

Mr. Edmund Randolph Robinson, contra.

Mr. JUSTICE FIELD delivered the opinion of the court.

title: Oscanyan v. Arms Company


text: Talk:Oscanyan v. Arms Company

title: Talk:Oscanyan v. Arms Company