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Railway Company v. Sayles/Opinion of the Court

This suit was commenced in the Circuit Court in December, 1861, by bill in equity filed by Thomas Sayles, the appellee, on letters-patent No. 9109, for an improvement in railroadcar brakes, issued on the sixth day of July, 1852, to Henry Tanner, as assignee of Lafayette F. Thompson and Asahel G. Bachelder. The bill charged that the Chicago and Northwestern Railway Company, from the 1st of June, 1859, to the time of filing the bill, infringed, and was still infringing, the said patent, of which the complainant had become the owner, and prayed for an injunction and an account of profits received by the defendant from the use of the invention patented.

The defendant answered, setting up prior invention and use by others of the improvement claimed, and denying infringement.

After proofs taken, a decree was rendered for the complainant in February, 1865, and a reference ordered. This decree was afterwards opened, and the defendant was allowed to introduce newly discovered evidence. A decree was again rendered for the complainant in July, 1871, and reference again ordered. The master reported profits received by the defendant, for the period of five years, from June 2, 1859, to June 2, 1864, to the amount of $63,638.40, being $41,280 for saving in wages of brakemen, and $22,358.40 for saving in car-wheels. A decree was rendered for the whole amount in December, 1873; but on a further rehearing in September, 1875, the item for saving on car-wheels was apparently thrown out, and the decree was reduced to the sum of $47,725. From this decree the present appeal is taken. The counsel for the appellee now concedes that, in the light of our decision in Mowry v. Whitney, 14 Wall. 620, the principle adopted by the master was not correct, and consents that the decree be further reduced to the sum of $24,768, with interest from the date of the report.

The evidence in the case is very voluminous, especially in reference to the question of priority of invention, and would be well calculated to present questions of much embarrassment and difficulty for our determination, if we felt obliged to pass upon the validity of the patent. But as we are satisfied that the Stevens brake used by the defendant is not an infringement of the plaintiff's patent, we are relieved from that unpleasant and difficult duty, involving the weight of evidence given by witnesses speaking to facts and occurrences long past, and often in direct conflict with each other.

At the time when the complainant alleges that Thompson and Bachelder completed the invention for which the letterspatent on which the suit is brought were granted, namely, in 1846 and 1847, double trucks under railroad cars had come into general use in the country, and it was a desideratum to have a brake, or system of brakes, which could be operated from either end of the car, upon the wheels of both trucks; and a number of inventors were in the field, contriving and testing their various devices. Like almost all other inventions, that of double brakes came when, in the progress of mechanical improvement, it was needed; and being sought by many minds, it is not wonderful that it was developed in different and independent forms, all original, and yet all bearing a somewhat general resemblance to each other. In such cases, if one inventor precedes all the rest, and strikes out something which includes and underlies all that they produce, he acquires a monopoly, and subjects them to tribute. But if the advance towards the thing desired is gradual, and proceeds step by step, so that no one can claim the complete whole, then each is entitled only to the specific form of device which he produces, and every other inventor is entitled to his own specific form, so long as it differs from those of his competitors, and does not include theirs. These general principles are so obvious, that they need no argument or illustration to support them. We think they are specially applicable to the case before us.

The patent sued on was granted on the sixth day of July, 1852. It was not the first patent granted for double car-brakes. A patent for such a brake had been granted to one Charles B. Turner, on the 14th of November, 1848; another to Nehemiah Hodge, Oct. 2, 1849; and a third to Francis A. Stevens, Nov. 25, 1851; and double-acting brakes had been constructed by other persons before any of these patents were issued. The patent granted to Tanner antedates the other patents referred to, by reason of its being issued upon an application for a patent made by Thompson and Bachelder, on the 29th of June, 1847. It is alleged by the complainant that Thompson and Bachelder completed their invention as early as the fall of 1846, and made a model of it in January, 1847, a copy of which is put in the case. The application filed by them in the Patent Office in June, 1847, is the first authentic evidence, of a public character, of what their invention was. A copy of this application and of the drawings and model by which it was accompanied have been exhibited in evidence, and necessarily constitute an important feature of the case. Being regarded as defective and insufficient by the Patent Office, no patent was granted at the time, and the application lay dormant and without alteration for the space of five years; when, being purchased by Tanner, and being considerably modified and changed, the letters-patent now in question were issued to him as assignee of Thompson and Bachelder. It is obvious that the original exhibit of the invention made by them, and remaining so long in the Patent Office unchanged, should possess great weight as to what their invention really was, and what they claimed it to be.

Of course their object was to connect the brakes of the two trucks together in such a manner as to make them operate together by the application of force at either end of the car. This force they proposed to apply either by hand at the windlass on the platform, or by the bumpers when the train was slowed and the cars came together. The latter seems to have been their favorite plan, and to effect it was one of the principal objects of their improvement.

The system of brakes attached to each truck was not materially changed by them. An upright lever in the centre of the truck was so connected with the brakes on both pair of wheels as to draw them tightly to the wheels when its upper extremity was forced inward towards the centre of the car. To this upper extremity of the lever the external force was applied when the brakes were to be put on. The inner end of the bumper being attached thereto, produced the desired effect when the bumper was pushed in by the adjoining car. The same effect was produced by winding up the windlass by hand, by means of a chain and pulley working from a point inside of the lever, that is, nearer to the centre of the car.

The next point was to communicate this movement of the brakes in one truck to those of the other, by some device that would cause the upper extremity of the lever, in the latter, to be drawn inward, towards the centre of the car, at the same time that the lever on the first truck was forced inward; a simple rod connecting them together would not do this, but it would have the contrary effect. The upper extremities of the two levers must be so connected that, upon the application of force, they would approach each other, each being forced inwardly towards the centre of the car. To effect this, Thompson and Bachelder proposed a device constructed substantially as follows: Under the centre of the car body they attached thereto, by a pivot, a vibrating horizontal lever, situated midway between the trucks, and arranged crosswise of the car. To the outer ends of this lever were attached connecting rods, one of which extended to and connected with the truck lever on one of the trucks; and the other extended to and connected with the truck lever on the other truck. By this arrangement, when one of the truck levers was forced inward, towards the centre of the car, it would push back the connecting rod attached to it, and cause the vibrating lever to revolve on its pivot, and thus draw the other connecting rod towards the centre from the other direction, and force the truck lever on the other truck inward at the same time. Thus, when the windlass was wound up at either end of the car, it had the effect of operating the brakes on both trucks, by pushing one connecting rod at the same time that it worked the truck lever, and simultaneously pulling the other connecting rod. The bumpers produced the same effect by having gains cut into their sides for receiving the upper arms of the truck levers, and thereby forcing them inward when driven inward themselves. A long iron rod extended the whole length of the car, which was provided with a device for forcing the truck levers out of the gains in the bumpers when it was desired to ease the brakes.

Such, substantially, was Thompson and Bachelder's brake, according to the description thereof deposited and left by them in the Patent Office. In the new application, filed in their name by Tanner in 1852, the bumper arrangement was left out entirely, and, as before stated, considerable modifications were introduced. The connecting rods were attached to the vibrating lever nearer to its pivot, and two additional rods were applied to the outer ends of this lever, extending respectively to the two windlasses at either end of the car, being used for the purpose of working the lever; and the parts were so arranged as to supply the power by drawing or pulling both of the connecting rods, instead of pushing one and pulling the other.

Now, in 1847, when Thompson and Bachelder filed their application for a patent, and in 1846, when it is said they completed their invention, double brakes were already in existence, formed as theirs was (though not in the same manner), by connecting together the movements of the two systems of truck brakes, so that one brakeman, at either end of a car, could apply the brakes to both trucks at the same time.

Without noticing those inventions, the dates of which are disputed, it is sufficient to refer to two instances in point, the existence of which before 1846 cannot be seriously controverted. We refer to those known as the Springfield brake and the Millholland brake. These brakes may not have been, and were not, so perfect as that of Thompson and Bachelder, and others constructed at a later period; but they were used, and used successfully; sufficiently so, at least, to have sustained patents for the inventions, had patents been applied for.

The Springfield brake was made by one Harris, in 1842 or 1843, and placed on a long platform-car for carrying freight crates on the Western Railroad of Massachusetts. Each truck was provided with two levers, one to each of the brakes; and these levers were connected together by a rod which caused them both to be operated at the same time by the windlass which was connected by a short chain to the nearest one. A long rod connected one of the levers of the other truck to the same windlass by means of another chain, so that when the windlass was worked it wound up both chains, and operated the brakes on both trucks simultaneously. A like arrangement was connected with the windlass at the other end of the car. Each windlass could thus be made to operate the brakes of both trucks.

This brake was used, as we gather from the evidence, for a year or two, until the car was broken up. It was undoubtedly attended with some inconveniences in its operation, especially in going around sharp curves; but this did not prevent it from being used; and on a straight track, or on a track having only slight curves, it operated very satisfactorily. In 1856 and 1857, when some difficulty arose about the right to use another brake, the employment of this Springfield brake was resumed for more than a year on the passenger cars of the same railroad, with only the slight and obvious modification of attaching the long connecting rod to a lever in each of the trucks, instead of attaching it to the windlass at one end of the car, and to a lever in the truck at the other end.

It is useless to argue that this brake was an imperfect one, or that it worked far less satisfactorily than the Tanner or other brakes. It did work; and under favorable circumstances worked as well as the most improved form of brakes.

The same brake, with only a single windlass, was applied to tenders (which require and admit of only one windlass) as early as 1841, and continued to be thus used to the time of this litigation.

The Millholland brake approached much nearer in its mode of operation to the Tanner brake than did the Springfield. According to the testimony, it was placed on a passenger car of the Baltimore and Susquehanna Railroad in or about the year 1843, and was continued in use for a considerable period,-one witnes says, a year or eighteen months. It was taken off because the brakemen were opposed to it, inasmuch as it had to be worked by hand by means of a windlass, whilst they were used to brakes that were operated by the foot. Whilst used, however, it worked with entire success. It is thus described by the inventor, James Millholland, in his testimony. He says: 'It broke upon all the eight wheels from either end of the car; the brakes were operated by means of a drum placed under the car, about the centre; there were connections running from this drum to the levers on each truck, and also from the drum to the windlasses of the car.' He then describes the manner in which the connecting rods were attached to the truck lever, and their mode of operation. It is apparent from this description that the drum performed almost precisely the same office which is performed by the vibrating lever in the Tanner brake, operating, by means of the connecting rods, upon the brakes in nearly the same manner.

In 1846, Millholland applied a double brake somewhat like the last named to car tenders, using a rock shaft with an arm on it instead of the drum as a means of connecting the brakes to the two trucks. This brake was continued in use for many years.

The subsequent invention of double brakes of improved and better forms superseded these early brakes, it is true; so that, excepting the modified forms in which they were applied to tenders, and excepting the temporary resuscitation of the Springfield brake in 1856, and again in 1871, they went entirely out of use. But their construction and use, though with limited success, are sufficient to show that Thompson and Bachelder were not the pioneers in this field of improvement, and that they were not the originators of the double brake, nor of the use of rods, chains, and similar appliances for connecting the brake systems of two trucks under a car. They invented a particular apparatus for doing the desired work; and they can only claim their particular apparatus, or that which is substantially the same.

This brings us to the question whether the apparatus used by the defendant, and known as the Stevens brake, for which letters-patent No. 8552 were issued to him Nov. 25, 1851, is substantially the same as Thompson and Bachelder's, or whether it contains in it any thing substantially the same.

Now, the Stevens brake has no vibrating lever between the trucks, as the Tanner brake has, for the purpose of reversing the motion communicated from one truck system to the other and causing the truck levers to move in opposite directions, that is, towards each other when the brakes are put on, and away from each other when the brakes are relieved. This is a marked feature in the Tanner brake, and one on which stress is laid in the original application. The parts particularly pointed out by Thompson and Bachelder as their improvements, exclusive of those connected with the bumpers, are only these three; namely, the vibrating lever, the two rods connected therewith, and their connection with the truck levers. They speak of their improvement as 'an improvement upon the car brake now in general use,' expressly disclaiming its original invention. This language is somewhat vague; but it sufficiently indicates that they regarded their improvement as consisting in their particular apparatus for effecting the desired result. The claim of the patent as finally issued to Tanner is only for so combining the brakes of the two trucks by means of the vibrating lever, or its equivalent, or mechanism essentially as specified (and no other is specified), as to enable the brakeman operating the windlass at either end of the car to simultaneously apply the brakes of both trucks.

Now, the apparatus for effecting the same purpose in the Stevens brake is essentially different from this. As before stated, it has no central vibrating lever at all, and, as we think, no equivalent of it. It connects the brakes of the two trucks by a single straight rod, extending from the truck lever connected with the outside brake of one truck to the lever connected with the outside brake of the other truck. This outside lever in each truck is connected, by a rod running across and under the axles of the truck, with a similar lever attached to the inner brake of the same truck; and that again is connected with the windlass by another rod running back over the axles of the truck; thus establishing a direct and continuous connection, from one windlass to the other, between all the brakes in both trucks, so that when either windlass is wound up (the other being held by a ratchet), it winds up and tightens the whole system of brakes on both trucks. In Stevens's arrangement, the separate trucks have two levers, it is true,-one attached to each brake; and it is contended by the complainant's counsel that one of these levers on each truck is equivalent to one-half of the vibrating lever in the Tanner brake. But this supposed equivalency is, in our judgment, too far fetched and imaginary. The levers referred to are no ways different, in form or mode of operation, from ordinary brake levers, and the use of two levers on a truck was not new, having been employed in much the same way in the Springfield brake. They belong to the trucks to which they are respectively attached, having no pivotal or fulcral connection with the body of the car, as Tanner's vibrating lever has. In a word, the construction and mode of operation of the Stevens brake are altogether so different from that of Thompson and Bachelder's, or Tanner's, that, considering the state of the art at the time when the latter was produced, and the necessary limits by which the Tanner patent must be circumscribed, we think that the two are to be regarded as independent inventions; each being limited and confined to the particular contrivance which constitutes its peculiarity.

Having come to this conclusion, it is unnecessary to consider the other questions in the cause.

It will be observed that we have given particular attention to the original application, drawings, and models filed in the Patent Office by Thompson and Bachelder. We have deemed it proper to do this, because, if the amended application and model, filed by Tanner five years later, embodied any material addition to or variance from the original,-any thing new that was not comprised in that,-such addition or variance cannot be sustained on the original application. The law does not permit such enlargements of an original specification, which would interfere with other inventors who have entered the field in the mean time, any more than it does in the case of reissues of patents previously granted. Courts should regard with jealousy and disfavor any attempts to enlarge the scope of an application once filed, or of a patent once granted, the effect of which would be to enable the patentee to appropriate other inventions made prior to such alteration, or to appropriate that which has, in the mean time, gone into public use.

The decree of the Circuit Court will be reversed, and the cause remanded with directions to enter a decree dismissing the bill of complaint; and it is

So ordered.


text: Talk:Railway Company v. Sayles/Opinion of the Court

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Gray v. Blanchard

MOTION to dismiss a writ of error to the Circuit Court of the United States for the Western District of Michigan.

Mr. M. J. Smiley, for the defendants in error, in support of the motion.

Mr. J. W. Stone, contra.

The facts are stated in the opinion of the court.

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

title: Gray v. Blanchard


text: Talk:Gray v. Blanchard

title: Talk:Gray v. Blanchard


text:
Gray v. Blanchard/Opinion of the Court

This is a writ of error sued out by the defendant below, when the judgment against him upon a money demand was for only $1,118.71. Prima facie this is the measure of our jurisdiction in favor of the present plaintiff in error; but he still thinks we must retain the cause, as the record shows that, having pleaded the general issue, he gave notice of set-off, claiming $10,000. It is true that such notice was given, but it is shown affirmatively by the record that the only dispute upon the trial under the notice was as to a single item, of the amount of $446. In short, the bill of exceptions shows distinctly that the only controversy between the parties was in respect to a claim by the plaintiff below of about $2,000, and by the defendant (plaintiff in error) as to this item of set-off. In his application for the removal of the cause from the State court to the Circuit Court, the plaintiff in error made this statement, to wit: 'The matter in dispute exceeds, exclusive of costs, the sum of $500, and is of the value of $2,000;' and the judge, in his charge to the jury, alluded to the fact that the amount in controversy was not sufficient to entitle the parties to a review in this court.

In Lee v. Watson (1 Wall. 337), it was held that 'in an action upon a money demand, where the general issue is pleaded, the matter in dispute is the debt claimed; and its amount, as stated in the body of the declaration, and not merely the damages alleged, or the prayer for judgment, at its conclusion, must be considered in determining whether this court can take jurisdiction.' To the same effect is Schacker v. Hartford Fire Insurance Co. (93 U.S. 241), where we dismissed a case in which it appeared that the action was upon a policy of insurance for $1,400, because, although damages to our jurisdictional amount were claimed, it was apparent from the whole record that there could not be a recovery for more than the amount of the policy, and a small sum in addition for interest.

The principles upon which those cases rest are decisive of this. While in the absence of any thing to the contrary the prayer for judgment by the plaintiff, in his declaration or complaint, upon a demand for money only, or by the defendant in his counter-claim or set-off, will be taken as indicating the amount in dispute, yet if the actual amount in dispute does otherwise appear in the record, reference may be had to that for the purpose of determining our jurisdiction. Ordinarily this will be found in the pleadings, but we need not necessarily confine ourselves to them. We hear the case upon the record which is sent up, and if, taking the whole record together, it appears that we have no jurisdiction, the case must be dismissed. Here it is affirmatively shown that the value of the 'matter in dispute' is less than our jurisdictional amount. The motion to dismiss will therefore be granted, and it is

So ordered.

title: Gray v. Blanchard/Opinion of the Court


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


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Cook v. Pennsylvania

ERROR to the Supreme Court of the State of Pennsylvania.

This action, which was brought in the Court of Common Pleas of Dauphin County, Pennsylvania, was tried by the court upon the following case, stated in the nature of a special verdict.

The Commonwealth of Pennsylvania claims from the defendant, Samuel C. Cook, who, by the governor, was duly appointed and commissioned an auctioneer in and for the city of Philadelphia, the sum of $757.83, for taxes due at one-half of one per cent and three-fourths of one per cent, as per his report furnished to the auditor-general, and settlement made by the auditor-general and State treasurer, dated Jan. 3, 1871, upon sales made by him of foreign goods placed in his hands by the importer, in bulk or original packages, to be sold at auction as an auctioneer in the original packages as imported, and which were so sold by him at auction as an auctioneer. The Commonwealth claims the said taxes under the act of assembly entitled 'An Act to incorporate the Commercial Mutual Insurance Company of Philadelphia, relative to the State duty on domestic and foreign articles in the counties of Philadelphia and Allegheny,' & c., approved the twentieth day of May, 1853, P. L. 1853, 679; and under the act of assembly entitled 'An Act to modify the existing laws of the Commonwealth, and to provide more effectually for the collection of the State tax or duty on auction sales in the city of Philadelphia and county of Allegheny,' approved April 9, 1859, P. L. 1859, 435.

The defendant claims that said sales of foreign goods are exempt from taxation, because said acts of assembly, so far as they relate to such taxation, are in direct conflict with sects. 8 and 10 of art. 1 of the Constitution of the United States, and for that and other reasons void; and inasmuch as the foreign goods so taxed as aforesaid were sold in bulk, as they were imported by the importer, said defendant, Cook, acted simply as his salesman.

That as the said goods had never been sold for consumption or resale by the importer, and had never been divided by him into smaller quantities by breaking up the casks or packages in which they were originally imported, the said goods had not lost their character as imports, and therefore that any such tax is unconstitutional and ought not to be levied.

That if the court should be of the opinion that the acts of assembly are constitutional, then judgment should be entered for the Commonwealth, but if not, then for the defendant, Cook; costs to follow the judgment, and either party reserving the right to sue out a writ of error.

The court being of the opinion that the defendant was properly charged with the tax, and that the laws under which it was assessed were constitutional, gave judgment in favor of the Commonwealth. That judgment having been affirmed by the Supreme Court of Pennsylvania, Cook sued out this writ of error.

The statutes of Pennsylvania referred to in the case stated are set out in the opinion of the court.

Mr. Benjamin Harris Brewster for the plaintiff in error.

As the goods sold by Cook had not lost their character as imports, the tax imposed was upon them, and is therefore in direct repugnance to the provisions of the Constitution of the United States, which declare that 'no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws;' and that Congress shall have power 'to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.' Brown v. State of Maryland, 12 Wheat. 419; The License Cases, 5 How, 504; Pervear v. The Commonwealth, 5 Wall. 475; Same v. Austin, 13 id. 29; Case of the State Freight Tax, 15 id. 232; Waring v. The Mayor, 8 id. 110; People v. Waring, 3 Keyes (N. Y.), 374; Pennsylvania Railroad v. Commonwealth, 3 Grant (Pa.), 130; Welton v. The State of Missouri, 91 U.S. 275; Henderson v. The Mayor, &c., 92 id. 268; Inman Steamship Co. v. Tinker, 94 id. 238.

Mr. Lyman D. Gilbert, Deputy Attorney-General of Pennsylvania, contra.

The contention is between the Commonwealth and an auctioneer, as to a graduated tax upon his sales; a liability to pay which she annexed as a condition to the grant of authority to pursue his calling.

If it be asserted that the tax is laid upon the importer, and is paid by him, the auctioneer being merely the collector, the Commonwealth has the right to collect it from the latter, for he succeeds to no defence which the former might have made. Waring v. The Mayor, 8 Wall. 110.

The demand is made upon Cook not as an importer, but as an auctioneer, who, as an agent of the Commonwealth, received the tax in dispute, and holds it as her trustee. If he has not collected it, his failure to perform his agreement renders him liable.

Although the tax was not laid directly upon the importer, it is submitted that, if the contrary were true, the right of the Commonwealth to collect it is undoubted; because, first, no one can require the services of her officer, except upon her terms; second, she appointed Cook an auctioneer, investing him with certain privileges and subjecting him to certain responsibilities; and importers who for their own advantage avail themselves of his services, and of the security which she demands of him for his fidelity, cannot decline to pay the prescribed price fixed for his services, and for the benefit which such security affords. As was said by Mr. Chief Justice Marshall, in Brown v. The State of Maryland (12 Wheat. 437), 'Auctioneers are persons licensed by the State, and if the importer chooses to employ them, he can as little object to paying for the service, as for any other for which he may apply to an officer of the State. The right of sale may very well be annexed to importation, without annexing to it also the privilege of using the officers licensed by the State to make sales in a particular way.'

Whatever privileges, therefore, importers obtain not from the United States, but exclusively from the Commonwealth,-among them being that of employing a licensed auctioneer,-are subject to her regulation, and to such taxtion as she imposes. An increased price of foreign merchandise may result from the tax in question; but such a consequence follows many modes of taxation, and furnishes no reason against their validity. Nathan v. Louisiana, 8 How. 73; State Tax on Railway Gross Receipts, 15 Wall. 284.

The Commonwealth having the right to impose the tax in question, can determine the amount thereof and the manner in which it shall be laid. State Tax on Railway Gross Receipts, supra; Society for Savings v. Coite, 6 Wall. 594; Provident Institution v. Massachusetts, id. 611; The Delaware Railroad Tax, 18 id. 206.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Cook v. Pennsylvania


text: Talk:Cook v. Pennsylvania

title: Talk:Cook v. Pennsylvania


text:
Cook v. Pennsylvania/Opinion of the Court

The act of the legislature of Pennsylvania, of May 20, 1853 (Pamphlet Laws, 683), declares that—

'The State duty to be paid on sales by auction in the counties of Philadelphia and Allegheny shall be on all domestic articles and groceries, one-half of one per cent; on foreign drugs, glass, earthenware, hides, marble-work, and dye-woods, three-quarters of one per cent.'

By the sixth section of the act of April 9, 1859, the law was modified, as follows:--

'Said auctioneers shall pay into the treasury of the Commonwealth a tax or duty of one-fourth of one per cent on all sales of loans or stocks, and shall also pay into the treasury aforesaid a tax or duty, as required by existing laws, on all other sales to be made as aforesaid, except on groceries, goods, wares, and merchandise of American growth or manufacture, real estate, shipping, or livestock; and it shall be the duty of the auctioneer having charge of such sales to collect and pay over to the State treasurer the said duty or tax, and give a true and correct account of the same quarterly, under oath or affirmation, in the form now required by law.' Pamphlet Laws, 436.

The effect of this legislation is, that by the first statute a discrimination of one-fourth of one per cent is made against foreign goods sold at auction; and by the last statute, while all sales of foreign or imported goods are taxed, those arising from groceries, goods, wares, and merchandise of American growth or manufacture are exempt from such tax.

It appears that the law also required these auctioneers to take out a license, to make report of such sales, and to pay into the treasury the taxes on these sales.

The defendant refused to pay the tax for which he was liable under this law, for the sale of goods which had been imported and which he had sold for the importers in the original packages. In the suit, in which judgment was rendered against him in the Supreme Court of Pennsylvania, he defended himself on the ground that these statutes were void, because forbidden by sects. 8 and 10 of art. 1 of the Constitution of the United States.

The clauses referred to are those which give to Congress power to regulate commerce with foreign nations, and forbid a State, without the consent of Congress, to levy any imposts or duties on imports. The case stated shows that the goods sold by defendant were imported goods, and that they were sold by him in the packages in which they were originally imported. It is conceded by the Attorney-General of the State, that if the statute we have recited is a tax on these imports, it is justly obnoxious to the objection taken to it.

But it is argued that the authority of the auctioneer to make any sales is derived from the State, and that the State can, therefore, impose upon him a tax for the privilege conferred, and that the mode adopted by the statute of measuring that tax is within the power of the State. That being a tax on him for the right or privilege to sell at auction, it is not a tax on the article sold, that the amount of the sales made by him is made the measure of the tax on that privilege. In support of this view, it is said that the importer could himself have made sale of his goods without subjecting the sale to the tax. The argument is fallacious, because without an auctioneer's license he could not have sold at auction even his own goods. If he had procured, or could have procured, a license, he would then have been subject by the statute to the tax, for it makes no exception. By the express language of the statute, the auctioneer is to collect this tax and pay it into the treasury. From whom is he to collect it if not from the owner of the goods? If the tax was intended to be levied on the auctioneer, he would not have been required first to collect it and then pay it over. It was, then, a tax on the privilege of selling foreign goods at auction, for such goods could only be sold at auction by paying the tax on the amount of the sales.

The question as thus stated has long ago and frequently been decided by this court.

In Passenger Cases (7 How. 283), a statute of New York was the subject of consideration, which required an officer of the city of New York, called the health commissioner, to collect from the master of every vessel from a foreign port, for himself and each cabin passenger on board his vessel, one dollar and fifty cents, and for each steerage passenger, mate, sailor, or mariner, one dollar. A statute of the State of Massachusetts was also considered, which enacted that no alien passengers (other than certain diseased persons and paupers, provided for in a previous section) should be permitted to land until the master, owner, consignee, or agent of such vessel should pay to the regularly appointed boarding officers the sum of two dollars for each passenger so landing. In both instances, although the master or the owner of the vessel was made to pay the sum demanded, it was held to be a tax on the passengers. It was he whose loss it was when paid, and the burden rested ultimately and solely on him. Mr. Chief Justice Taney says: 'It is demanded of the captain, and not from every separate passenger, for the convenience of collection. But the burden evidently falls on the passenger, and he, in fact, pays it, either in the enhanced price of his passage, or directly to the captain, before he is allowed to embark for the voyage.' Because it was such a tax, the majority of the court held it to be unconstitutional and void.

In the case of Crandall v. State of Nevada (6 Wall. 35), the State had passed a law requiring those in charge of all the stage-coaches and railroads doing business in the State to make report of every passenger who passed through the State or went out of it by their conveyances, and to pay a tax of one dollar for every such passenger. The argument was urged there, that the tax was laid on the business of the railroad and stage-coach companies, and the sum of one dollar exacted for each passenger was only a mode of measuring the business to be taxed. But the court said, as in Passenger Cases, that it was a tax which must fall on the passenger, the be paid by him for the privilege of riding through the State by the usual vehicles of travel.

In Case of the State Freight Tax (15 id. 232), Mr. Justice Strong says: 'The case presents the question whether the statute in question-so far as it imposes a tax upon freight taken up within the State and carried out of it, or taken up outside the State and delivered within it, or, in different words, upon all freight other than that taken up and delivered within the State-is not repugnant to the provision of the Constitution of the United States.' It was argued here again that the tax was one on the business and franchises of the railroad companies which were required to pay it; but the court, reviewing the authorities, said that the inquiry was upon what did the burden really rest, and not upon the question from whom the State exacted payment into its treasury. This language was abundantly supported by the cases concerning tax on the national banks; namely, Bank of Commerce v. New York City, 2 Black, 620; Bank Tax Cases, 2 Wall. 200; Society for Savings v. Coite, 6 id. 594; Provident Institution v. Massachusetts, id. 611.

In Henderson v. The Mayor (92 U.S. 259), where the owners of vessels from a foreign port were required to give a bond, as security, that every passenger whom they landed should not become a burden on the State, or pay for every such passenger a fixed sum, it was held to be in effect a tax of that sum on the passenger, however disguised by the alternative of a bond which would never be given. The court said, that 'in whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect; and if it is apparent that the object of this statute, as judged by that criterion, is to compel the owners of vessels to pay a sum of money for every passenger brought by them from a foreign shore and landed at the port of New York, it is as much a tax on passengers, if collected from them, or a tax on the vessel or owner for the exercise of the right of landing their passengers in that city, as was the statute held void in the Passenger Cases.'

To the same effect, and probably more directly in point, is the case of Welton v. State of Missouri (91 id. 275), decided at the same term. In that case, pedlers were required, under a severe penalty, to take out a license; and those only were held to be pedlers who dealt in goods, wares, and merchandise which were not of the growth, produce, or manufacture of the State. The court, after referring to the case of Brown v. Maryland, relied on by defendant here, adds: 'So, in like manner, the license tax exacted by the State of Missouri from dealers in goods which are not the product or manufacture of the State, before they can be sold from place to place within the State, must be regarded as a tax upon such goods themselves; and the question presented is, whether legislation, thus discriminating against the products of other States in the conditions of their sale by a certain class of dealers, is valid under the Constitution of the United States.' And it was decided that it was not. See also Waring v. The Mayor, 8 Wall. 110.

The tax on sales made by an auctioneer is a tax on the goods sold, within the terms of this last decision, and, indeed, within all the cases cited; and when applied to foreign goods sold in the original packages of the importer, before they have become incorporated into the general property of the country, the law imposing such tax is void as laying a duty on imports.

In Woodruff v. Parham (8 Wall. 123) and Hinson v. Lott (id. 148), it was held that a tax laid by a law of the State in such a manner as to discriminate unfavorably against goods which were the product or manufacture of another State, was a regulation of commerce between the States, forbidden by the Constitution of the United States. The doctrine is reasserted in the case of Welton v. State of Missouri, supra. The Congress of the United States is granted the power to regulate commerce with foreign nations in precisely the same language as it is that among the States. If a tax assessed by a State injuriously discrimination against the products of a State of the Union is forbidden by the Constitution, a similar tax against goods imported from a foreign State is equally forbidden.

A careful reader of the history of the times which immediately preceded the assembling of the convention that framed the American Constitution cannot fail to discover that the need of some equitable and just regulation of commerce was among the most influential causes which led to its meeting. States having fine harbors imposed unlimited tax on all goods reaching the Continent through their ports. The ports of Boston and New York were far behind Newport, in the State of Rhode Island, in the value of their imports; and that small State was paying all the expeses of her government by the duties levied on the goods landed at her principal port. And so reluctant was she to give up this advantage, that she refused for nearly three years after the other twelve original States had ratified the Constitution, to give it her assent.

In granting to Congress the right to regulate commerce with foreign nations, and among the several States, and with the Indian tribes, and in forbidding the States without the consent of that body to levy any tax on imports, the framers of the Constitution believed that they had sufficiently guarded against the dangers of any taxation by the States which would interfere with the freest interchange of commodities among the people of the different States, and by the people of the States with citizens and subjects of foreign governments.

The numerous cases in which this court has been called on to declare void statutes of the States which in various ways have sought to violate this salutary restriction, show the necessity and value of the constitutional provision. If certain States could exercise the unlimited power of taxing all the merchandise which passes from the port of New York through those States to the consumers in the great West, or could tax-as has been done until recently-every person who sought the seaboard through the railroads within their jurisdiction, the Constitution would have failed to effect one of the most important purposes for which it was adopted.

A striking instance of the evil and its cure is to be seen in the recent history of the States now composing the German Empire. A few years ago they were independent States, which, though lying contiguous, speaking a common language, and belonging to a common race, were yet without a common government.

The number and variety of their systems of taxation and lines of territorial division necessitating customs officials at every step the traveller took or merchandise was transported, became so intolerable, that a commercial, though not a political union was organized, called the German Zollverein. The great value of this became so apparent, and the community of interest so strongly felt in regard to commerce and traffic, that the first appropriate occasion was used by these numerous principalities to organize the common political government now known as the German Empire.

While there is, perhaps, no special obligation on this court to defend the wisdom of the Constitution of the United States, there is the duty to ascertain the purpose of its provisions, and to give them full effect when called on by a proper case to do so.

The judgment of the Supreme Court of Pennsylvania will be reversed, and the case remanded for further proceedings, in conformity with this opinion; and it is

So ordered.


text: Talk:Cook v. Pennsylvania/Opinion of the Court


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Hosmer v. Wallace

ERROR to the Supreme Court of California.

This was a suit to charge the defendant, as trustee of certain land in California, and to compel him to transfer the title to the plaintiff. The District Court of the State, in which it was brought, rendered judgment for the defendant. The Supreme Court of the State affirmed it, and the plaintiff has brought the case here. The facts are sufficiently stated in the opinion.

Mr. S. F. Leib for the plaintiff in error.

Mr. George A. Nourse, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Hosmer v. Wallace


text: Talk:Hosmer v. Wallace

title: Talk:Hosmer v. Wallace


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Hosmer v. Wallace/Opinion of the Court

The defendant has a patent of the United States for certain land in the county of Santa Clara, in the State of California. The plaintiff claims that he has an equitable right to the land by virtue of his settlement thereon, and subsequent proceedings under the pre-emption laws; and therefore seeks to charge the defendant as trustee of the title for his benefit, and to compel its transfer to him.

It appears from the record that the premises are within the boundaries of a grant made by the former government of Mexico to one Estrada. The grants of that government in California were sometimes of tracts with defined boundaries, and sometimes of places by name where the boundaries were known and could be readily identified; but more frequently they were of a specified quantity of land within boundaries embracing a larger amount, to be measured off and segregated by magistrates of the vicinage. A grant of the latter class was usually in form of the entire tract within the boundaries mentioned, with a condition limiting its extent to the quantity specified, the surplus after the measurement being reserved for the use of the nation. The grantee could not measure off the quantity thus specified so as to bind the government. This could be done only by its officers, pursuant to regulations established for that purpose. Until the segregation was thus made, no third person could interfere with the grantee's possession, and attempt to limit it to any particular place within the boundaries designated.

Soon after the acquisition of California, Congress provided by law for an examination of the various grants of land made by the former government, the confirmation of such as were found to be valid and entitled to recognition, the survey and measurement of the tracts or quantities granted, and the issue of patents to the confirmees. And in order that these proceedings might not be defeated, and that the rights of the grantees in the mean time should not be impaired or embarrassed by the settlement of others, upon pretence that the grants were invalid, or that there was a surplus within their boundaries over the quantity granted, which could be appropriated, the lands claimed under these grants were excepted from the operation of the pre-emption laws, when they were extended over the State.

In the investigations thus authorized, many grants supposed to be valid were rejected; and in numerous instances land purchased from the grantees and improved was excluded by the surveys from the tracts confirmed. To meet the hardships thus arising, and to enable purchasers in good faith and for value to hold the tracts improved by them, Congress, in an act passed on the 23d of July, 1866, to quiet the title to lands in California, provided as follows:--

'That where persons in good faith and for a valuable consideration have purchased land of Mexican grantees or assigns, which grants have subsequently been rejected, or where the lands so purchased have been excluded from the final survey of any Mexican grant, and have used, improved, and continued in the actual possession of the same according to the lines of their original purchase, and where no valid adverse right or title (except of the United States) exists, such purchasers may purchase the same, after having such lands surveyed under existing laws, at the minimum price established by law, upon first making proofs of the facts as required in this section, under regulations to be provided by the Commissioner of the General Land-Office.' 14 Stat. 220, sect. 7.

In the present case, it appears that prior to February, 1862, Estrada, the original grantee of the Mexican government, sold to one Lyons his right to a portion of the land within the boundaries mentioned in his grant, embracing the premises in controversy; that previously, in October, 1856, the plaintiff had settled upon these premises, and erected a house thereon, claiming that he made the settlement under the pre-emption laws of the United States; that, in February, 1862, he was evicted from them by the sheriff of the county under a judgment in ejectment recovered by Lyons; and that thereupon he removed his house and improvements to adjacent land. After this eviction, the defendant purchased from Lyons his right under the grant to the premises, and has ever since been in their actual possession and use. The grant had been previously confirmed, but for a less quantity than that contained within the boundaries mentioned; and upon the final survey, which was approved in June, 1865, after the defendant's purchase, these premises were excluded. The public surveys were subsequently extended over the land, and in July, 1866, the plaintiff filed a declaratory statement in the proper land-office, claiming to pre-empt the premises together with other land, alleging his settlement thereon in October, 1856, and in September following made proof of his claim before the register and receiver, and was allowed to enter the land. He then paid the purchase-money and obtained a certificate of payment. In the mean time, the act of July 23, 1866, was passed, and under it the defendant claimed the right to purchase the premises. The Commissioner of the General Land-Office thereupon directed the register and receiver at San Francisco to investigate the entry of the plaintiff, and to take such testimony as might be offered by him and the defendant concerning their respective claims, and to report the same to him, together with their decision. Both parties appeared before these officers and supported their respective claims. The decision of the officers was in favor of the plaintiff; the defendant appealed to the commissioner, by whom the decision was reversed, and the land awarded to him. On further appeal to the Secretary of the Interior, the decision of the commissioner was affirmed; and, upon payment of the purchase-money, a patent was issued to the defendant.

The decision of the Commissioner and of the Secretary was clearly correct. The plaintiff had acquired by his settlement in 1856 no such interest in the premises as could control the disposition of them by the United States, should it be ultimately determined that they were not covered by the grant. The land within the boundaries of the grant was not open to settlement under the pre-emption laws; and his occupation from 1856 to his eviction in 1862 was that of a trespasser, and did not originate any rights which the government was bound to respect. The land was not then 'public land,' in the sense of those laws; and even if it had been public land, to which no private claim was made, it would not have been subject to settlement under them until it had been surveyed. The act of Congress of March 3, 1853, allowing a settlement on unsurveyed lands in California, was limited in its operation to one year. 10 Stat. 246, proviso to sect. 6. By the act of March 1, 1854, this privilege was extended for two years from that date, when it expired. Id. 268. No other statute was passed opening unsurveyed lands in California to pre-emption settlement until May 30, 1862. 12 id. 409. The occupation, therefore, of the plaintiff in October, 1856, was a mere intrusion upon the claim of another, without any license of the government; and after he was evicted by legal process in February, 1862, the premises were in the possession of the defendant, and therefore not open to settlement by him. Whatever right of pre-emption the plaintiff acquired by his settlement to land outside of the boundaries of the Mexican grant originated after May 30, 1862; but as to land within those boundaries, no right could be initiated until the land was excluded from the tract confirmed by the approved survey in June, 1865. In neither case could the right of pre-emption extend to land in the occupation of the defendant at those dates. To create a right of pre-emption there must be settlement, inhabitation, and improvement by the pre-emptor, conditions which cannot be met when the land is in the occupation of another. Settlement, inhabitation, and improvement of one piece of land can confer no rights to another adjacent to it, which at the commencement of the settlement is in the possession and use of others, though upon a subsequent survey by the government it prove to be part of the same sectional subdivision. Under the pre-emption laws, as held in Atherton v. Fowler (96 U.S. 513), the right to make a settlement is to be exercised on unsettled land; the right to make improvements is to be exercised on unimproved land; and the right to erect a dwelling-house is to be exercised on vacant land: none of these things can be done on land when it is occupied and used by others.

There was, therefore, no valid adverse right or title, except that of the United States, to the premises in controversy when they were excluded by the approved survey from the tract confirmed; nor had the plaintiff the right of a pre-emption claimant to them. No just ground, consequently, existed for refusing to the defendant the privilege of purchasing them under the act of 1866. It is found by the court that he bought the land, in good faith and for a valuable consideration, from the assignee of the Mexican grantee before the survey of the grant; and that it has since been in his actual possession and use, according to the lines of his original purchase. And besides, the use, occupation, and improvement of the land, required by that act, being matters for the determination of the officers of the Land Department, it must be presumed from their decision that they were sufficiently established.

The contention of the plaintiff, if we understand it, is that the proviso in the eighth section of the act of 1866 changed the doctrine stated, and gave him a right of pre-emption to land excluded by the survey from the tract confirmed, although it was at the time in the occupation of the defendant. The proviso is, that nothing in the act 'shall be construed so as in any manner to interfere with the right of bona fide pre-emption claimants;' and it is argued that some operation must have been intended to be given it, and that it can have none against a purchase by the claimant under the grant title, unless a pre-emption right could be acquired to the land whilst in his possession. Conceding this to be correct, we do not perceive that the conclusion follows for which the plaintiff contends. If the proviso can have no operation against a purchase by a claimant under the grant title, it is for the obvious reason that the conditions upon which the claimant can make a purchase are incompatible with those upon which a pre-emption right can arise. The inference is, that the proviso must be applied to other land which the act mentions. The object of the act was to withdraw land continuously possessed and improved by a purchaser under a Mexican grant from the general operation of the pre-emption laws, and to give to him, to the exclusion of all other claimants, the right to obtain the title. That it was competent for Congress to deal with the land as it chose does not admit of question. No vested rights in the land could be acquired by any one until it was open to settlement; nor afterwards, unless the pre-emptor made his entry and obtained a patent certificate before the passage of the act. Frisbie v. Whitney, 9 Wall. 187; The Yosemite Valley Case, 15 id. 77.

The term bona fide, as applied to the pre-emption claimant, does not change the qualifications of such claimant, nor the conditions upon which, under the general law, a settlement with a view to pre-emption is permitted. It was intended to designate one who had settled upon land subject to pre-emption, with the intention to acquire its title, and had complied, or was proceeding to comply, in good faith, with the requirements of the law to perfect his right to it. The plaintiff does not come within this class.

Judgment affirmed.

title: Hosmer v. Wallace/Opinion of the Court


text: Talk:Hosmer v. Wallace/Opinion of the Court


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Newcomb v. Wood

ERROR to the Circuit Court of the United States for the Northern District of Ohio.

Nov. 1, 1872, John Wood, assignee in bankruptcy of Philip E. Robertson, filed his petition in the District Court of the United States for the Northern District of Ohio, against Stephen L. Newcomb, to recover the value of certain goods sold to the defendant by Robertson, May 6, 1872, within four months before the latter filed his petition in bankruptcy. An issue of fact having been made by the pleadings, the case was, Nov. 18, 1873, by consent of the parties, referred by the court to Henry C. Hedges, Joseph C. Devin, and A. K. Dunn, as referees, with power to hear and determine all questions of law and fact, and report thereon to the court. Neither of the referees was sworn or affirmed, although the customary oath or affirmation was not expressly waived or insisted upon. Both parties were represented by counsel. Jan. 10, 1874, a report signed by Devin and Hedges was duly filed, awarding the plaintiff $6,356 and costs. Newcomb filed exceptions to the report, on the ground that the referees were not sworn or affirmed well and faithfully to hear and examine the cause, and to make a just and true report therein, according to the best of their understanding, as is required by law. The exceptions were overruled, and the report was confirmed by the court. A new trial having been refused, a judgment was rendered against him, which was affirmed by the Circuit Court. He then sued out this writ, and assigns the following errors:--

That the District Court erred,--

1. In appointing referees in said cause.

2. In overruling the exceptions to their report.

3. In rendering judgment upon said report, it having only been signed by two of the persons named as referees, none of whom were sworn.

4. In refusing to grant a second trial of said action.

Mr. Jeremiah M. Wilson for the plaintiff in error.

Mr. Walter H. Smith, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Newcomb v. Wood


text: Talk:Newcomb v. Wood

title: Talk:Newcomb v. Wood


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Newcomb v. Wood/Opinion of the Court

A few remarks will be sufficient to dispose of the several assignments of error in this case.

The power of a court of justice, with the consent of the parties, to appoint arbitrators and refer a case pending before it, is incident to all judicial administration, where the right exists to ascertain the facts as well as to pronounce the law. Conventio facit legem. In such an agreement there is nothing contrary to law or public policy. The Code of Ohio provides (sect. 281) expressly 'that all or any of the issues in the action, whether of fact or law, may be referred upon the written consent of the parties, or upon their oral consent in court, entered upon the journal.' 2 Swan & C. 1027. The reference here in question was made in the latter mode and by virtue of this authority.

The objection that the arbitrators were not sworn was waived by the plaintiff in error by appearing and going to trial without requiring an oath to be administered. If the witnesses had not been sworn, the waiver of that defect under the same circumstances would have been equally conclusive. Edwards, Referees, 107; Morse, Arbitration and Award, 172; Maynard v. Frederick, 7 Cush. (Mass.) 247.

Two of the three referees only signed the award, but the attention of the court was not called to the fact when the report was confirmed and the judgment was entered. The omission was amendable, and non constat but that the amendment could and would have been made if the objection had been suggested. It would be fair neither to the court nor the other party to permit the objection to be raised here for the first time. Under the circumstances, it must be held to have been conclusively waived, and the plaintiff in error cannot be heard now to insist upon it. Bell v. Bruen, 1 How. 169; Marine Bank v. Fulton Bank, 2 Wall. 252; Klein v. Russell, 19 id. 433; Edwards v. Elliott, 21 id. 532; Walker v. Sauvinet, 92 U.S. 90; Wheeler v. Sedgwick, 94 id. 1.

The plaintiff in error was not, by reason of the State law, entitled to a second trial. The agreement to submit the controversy to referees selected or approved by the parties implied clearly that they intended the award should be final and conclusive. The District Court held this view, and ruled accordingly. It has long been the established law in the courts of the United States that to grant or refuse a new trial rests in the sound discretion of the court to which the motion is addressed, and that the result cannot be made the subject of review upon a writ of error. We cannot think that Congress intended by the act of June 1, 1872 (17 Stat. 197, sect. 5), to abrogate this salutary rule. Nudd v. Burrows, 91 U.S. 426; ''Indianapolis, &c. Railroad Co. v. Horst'', 93 id. 291.

Judgment affirmed.

title: Newcomb v. Wood/Opinion of the Court


text: Talk:Newcomb v. Wood/Opinion of the Court


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Gaussen v. United States

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

This is an action by the United States against Bessie Elgee Gaussen, executrix of John K. Elgee, deceased, who was one of the sureties on the official bond of Thomas Barrett, collector of the customs for the district of New Orleans, in the State of Louisiana. It was before this court at its October Term, 1873, when the judgment of the Circuit Court was reversed and the case remanded for a new trial. United States v. Gaussen, 19 Wall. 198. The mandate was filed in the court below, Jan. 27, 1875. The bond sued on bears date July 6, 1844, and is conditioned as follows: 'Now, therefore, if the said Thomas Barrett has truly and faithfully executed and discharged, and shall continue truly and faithfully to execute and discharge, all the duties of the said office, according to law, then the above obligation to be void and of none effect; otherwise, it shall abide and remain in full force and virtue.'

The United States claimed that the various adjustments of Barrett's accounts by the accounting officers of the Treasury, from July 25, 1844, to Oct. 12, 1845, showed a balance due by him of $41,376.64, and that his failure to account for and pay over that amount, received by him in his official capacity, constituted a breach of the condition of his bond. The defendant answered,--

1. By a general denial.

2. "That if the bond sued on was ever executed, delivered, and took effect, which is not admitted, then defendant avers that said bond, after its execution, was rendered void and null, so far as said decedent was concerned, for this, that subsequent to its date and during the period of the term of office of Thomas Barrett, as collector of the port of New Orleans, the United States imposed on and exacted of him the performance of duties and the assumption of responsibilities in regard to the receipt, custody, and disbursement of the moneys received in his said capacity as collector aforesaid, different and variant from those duties and responsibilities in that regard legally incumbent upon him as collector aforesaid, at the date of said bond, under the law then existing and in force; that during his said term of office said Barrett was dispensed by the United States from his duty and obligation of paying certain moneys, received by him in his said capacity, to the United States, in the mode required by law, and in lieu thereof was required by the United States to expend and disburse, and under its orders he did actually expend and disburse, during his said official term, a large portion of said moneys, by payments made to collectors and surveyors of other collection districts, and to various other officers of the government; that said Barrett was required by the United States to expend and disburse, and he did, in accordance with its orders, expend and disburse, during his said official term, a large portion of said moneys for the construction of the new marine hospital, and for the maintenance and supply of existing hospitals and light-houses, and of vessels of the revenue and naval service, and for other purposes entirely beyond the scope of his duties as collector aforesaid, and as fixed and defined by law; that said Barrett was required by the United States, in his said capacity as collector aforesaid, to receive and disburse, and did actually during his said official term receive and disburse, under its said requirements, large sums of money which he was not required by law to receive and disburse in his said capacity as collector;-all of which appears by the account filed by the plaintiff herein. And defendant charges that the duties and risks and responsibilities of said Barrett as collector aforesaid, without the consent of said decedent, were varied, enlarged, and changed by the United States, subsequent to the date of said bond and during his official term, whereby the liability of said decedent as surety on said bond, if ever it existed, was avoided and discharged.

3. "That the said Thomas Barrett departed this life about the year 1846, in New Orleans, having a large real and personal estate, consisting in property and assets, more than sufficient to pay the amount of plaintiff's demand; that if the United States had a valid claim against said Barrett, it had the right of priority of payment on such property and assets, which it neglected to enforce, and lost; that upon said bond are signatures which purport to be those of Fran ois Delery, Sylvain Peyroux, Lucien Hermann, M. B. Cantrelle; that all of said parties are dead; that each died leaving a large and valuable estate, more than enough to pay the amount claimed in this suit; that if the United States had a valid claim against said Barrett and said Fran ois Delery, Sylvain Peyroux, Lucien Hermann, and M. B. Cantrelle, it had the right of priority of payment of said demand out of each and all of said estates, which it neglected to enforce, and lost, whereby the liability of said J. K. Elgee, if it ever existed, was discharged."

The court, on motion of the United States, ordered that the part of said answer which is included within brackets be struck out, on the ground that, if true, it was insufficient, as pleaded, to bar the action.

The defendant requested the court to give the following instructions in relation to matters which the evidence tended to establish:--

1. 'That if the jury find from the evidence that the Secretary of the Treasury required the said Barrett, while collector, to use the moneys received by him as collector, in the redemption of treasury notes of the United States, that such requirement was an important and material change of the duties, functions, and employment of the said Barrett as collector, as regulated by law, and, whenever made, discharged the sureties on his official bond from all liability for his subsequent official conduct.'

2. 'That while Barrett, the principal in the bond sued on, held the office of collector, no law imposed on him the duty of making disbursements for any marine hospital or for the light-houses or revenue-cutters, and that such duties and disbursements were extra-official as to the office of collector, and that the sureties on the bond sued on are not responsible for any fault, neglect, or misconduct of the said Barrett in respect to such extra-official disbursements; and if the jury find from the evidence that said Barrett, while he held said office, was employed by the superior officers of the department to make disbursements for the marine hospital, light-houses, and revenue-cutters, and that the said Barrett was furnished money directly from the treasury of the United States, or from other sources than the proper receipts and collections of the office of collector, that, in order to charge the defendant with the money thus furnished, or any part thereof, it is incumbent on the plaintiff to prove that the money thus furnished, or such part thereof, was necessary to cover the disbursements proper to the office of collector, or was furnished for that purpose.'

3. 'That if the jury find from the evidence that the Secretary of the Treasury caused to be remitted to Thomas Barrett, while collector, money out of the treasury of the United States, and employed him as disbursing officer of the government in defraying the expenses of the light-house service, of the erection of the marine hospital at New Orleans, and in other matters not connected with his official duties as collector, as regulated by law, and extra-official as respects the office of collector, and in the accounts between the government and the said Barrett, filed with the petition, there are mixed and blended together on the debit side of the account against said Barrett the moneys received by him officially for duties on imports and from other sources from which he was by law authorized to collect, and moneys remitted to him directly out of the treasury of the United States; [that, in order to recover the balance brought down in the present action, it is incumbent on the government to prove to the satisfaction of the jury that the said balance brought down resulted from the failure of the said Barrett to account for the funds which came into his hands, as collector, and within the scope of his official duties in that office, and his failure to perform his duty in respect to such funds, and not from his failure to account for funds received from the treasury for extra-official purposes, and his failure to perform his duty in respect to such funds.']

These instructions the court refused to give, except so much of the last as is embraced within brackets. The defendant excepted.

There was a verdict for the plaintiff for $36,815.86, with interest thereon from Oct. 12, 1845; and judgment having been rendered thereon, the defendant sued out this writ, and here assigns error as follows:--

The court below erred,--

1. In striking out parts of the answer of the defendant.

2. In refusing the defendant's first request.

3. In refusing the defendant's second request.

4. In refusing the defendant's third request.

Mr. William D. Shipman and Mr. William W. MacFarland for the plaintiff in error.

The contract of a surety is strictissimi juris, and cannot be extended by implication beyond the fair terms of his engagement. Ludlow v. Simonds, 2 Cai. (N. Y.) Cas. 1; United States v. Tillotson, 1 Paine, 305; Miller v. Stewart, 9 Wheat. 680. The fact that the United States is the obligee of the bond does not change the rule applicable to his contract. United States v. Kirkpatrick, id. 720. Therefore the English doctrine, that prerogative overrides all equities, has no place in American jurisprudence.

Ordinarily, the acts of a private person or a corporation, obligee of a bond conditioned for the faithful performance of a duty, which discharge the surety, will equally discharge him where they are done by the United States under the same circumstances. United States v. Hillegas, 3 Wash. 70 United States v. Kirkpatrick, supra; United States v. Tillotson, supra.

The answer of the defendant below, which was struck out by the court, was competent, under the rules of pleading prevailing in Louisiana. Lawson et ux. v. Ripley, 17 La. 238; Frierson v. Irwin, 5 La. Ann. 531; Waterman v. Gibson, id. 673; Ralston v. Barclay et al., 6 Mart. (La.) 649; Ory v. Winter, 4 Mart. (La.) N. S. 277; Tracy v. Tuyes et al., id. 354.

The court should have charged the jury as requested in the defendant's first prayer. If the new duty imposed by the Secretary of the Treasury upon the collector, to apply the moneys received by him in the redemption of treasury notes, had been inserted in the bond without the consent of the surety, the latter would have been discharged from all liability. Miller v. Stewart, supra.

A new and important change was thereby made in the duties of the office not contemplated by the parties to the bond when they executed it.

The refusal to give the instructions set forth in the second request was error. Dedham Bank v. Chickering, 4 Pick. (Mass.) 314; Legh v. Taylor, 7 Barn. & Cress. 491; United States v. Powell, 14 Wall. 493; United States v. Singer, 15 id. 111; Converse v. United States, 21 How. 463.

If any part of the third request was proper, the whole was. The learned judge virgually admitted the legal correctness of the propositions embodied in the request, by charging the conclusion which they embrace; but he rejected the premises inseparably connected therewith, which furnished the only subject-matter to which the jury could intelligently apply that conclusion.

The Solicitor-General, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Gaussen v. United States


text: Talk:Gaussen v. United States

title: Talk:Gaussen v. United States


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

This suit was founded upon the bond of a collector of customs, the condition of which is that he had truly executed and discharged, and should continue to execute and discharge, all the duties of the office of collector according to law; and the breach assigned was that he had failed to account for and pay over the money received by him in his official capacity as collector. The defendant's testator was a surety in the bond; but that is an immaterial fact in the case, for nothing is plainer than the rule that a surety in a bond is liable to the same extent to which his principal is liable, by force of the bond.

A general denial having been interposed to the plaintiff's petition, the defendant added two special pleas, which, upon motion, the Circuit Court ordered to be stricken out, and this order is now assigned as error. An examination of the pleas stricken out, however, satisfies us that they were plainly impertinent. They aver nothing that constitutes either a total or even a partial defence. The second alleges, in effect, laches on the part of the government, in failing to assert its claim against other sureties in the bond, whereby, it is averred, the liability of defendant's testator, if it ever existed, was discharged. But laches of the officers or agents of the government is confessedly no bar to the assertion of its rights. This is admitted by the plaintiff in error, and it has not been contended in argument, as it could not have been successfully, that delay or neglect in prosecuting its claims against the co-sureties of the defendant's testator is any bar to this suit.

The first special plea requires a more minute examination. It was, in effect, that the obligation of the bond had been discharged, not directly, but because the principal obligor had been required to perform, and had performed, duties additional to those which pertained by law to his office when the bond was made. It does not aver that the additional duties changed the character of the office, or increased the responsibility of the collector for the money received by him as collector of customs. How, then, the requisition of duties not inconsistent with accounting for and paying over money received by him as collector of customs can operate to release his bond is quite incomprehensible. If it be conceded, as it may be, that the addition of duties different in their nature from those which belonged to the office when the official bond was given will not impose upon an obligor in the bond, as such, additional responsibilities, it is undoubtedly true that such an addition of new duties does not render void the bond of the officer as a security for the performance of the duties at first assumed. It will still remain a security for what it was originally given to secure. And it is noticeable that most of the allegations in the plea of extra-official expenditures and disbursements required of the collector (for example, payments to other collectors and surveyors of other collection districts, payments to other government officers, payments for the construction of a new marine hospital, and for the maintenance and supply of existing hospitals and light-houses and vessels of the revenue and naval service), are averments of conduct and requirements which the collector was under legal obligations to observe and obey when the bond in suit was made. The act of Congress of March 2, 1799, c. 2, sect. 21 (1 Stat. 644), made it the duty of collectors to 'pay to the order of the officer who shall be authorized to direct the payment thereof, the whole of the moneys which they may respectively receive' by virtue of the act. All payments and disbursements of money received by the collector in his official capacity, if made as charged in the plea, by direction of the government, were, therefore, strictly within the range of his official duty.

The remaining reason given by the plea in support of the averment that the bond had been avoided is, that the collector was, during his official term, required to receive and disburse large sums of money which the law did not require him to receive and disburse as collector, as appeared by the official accounts filed by the plaintiff in the suit. But how that fact, if it was a fact, could operate, even in favor of a surety, to release him from the obligation of the official bond, we find ourselves unable to perceive. Such an effect has not been claimed in the argument for the plaintiff in error. It is doubtless true that neither the surety nor his principal is responsible, by virtue of the bond, for money which the collector received, not as collector,-money which his office did not require him to receive or disburse; but this suit was brought to enforce no such responsibility. The surety may not be liable for a failure of his principal to account for such money; yet if he is not, it does not follow that he is not bound by his bond to respond for his principal's default to account for money received in his official character. Requiring a person who is a collector of customs to receive a sum of money and apply it in discharge of some liability of the government entirely outside of his ordinary employment, for example, to pay debentures, may impose a new duty upon him, but it leavs his office, as collector, untouched and his accountability in it unimpaired. This is quite consistent with the doctrine which we admit, that if, after an official bond has been signed, the nature of the office be changed by law, the bond ceases to be obligatory. In such a case the office is no longer the same, within the meaning of the bond. Converse v. United States, 21 How. 463.

It follows from these considerations that neither of the special pleas set up any thing which amounted to a defence to the action. The facts averred exhibited no discharge of the defendant's testator from the obligation of the bond, nor did they tend to show that he was not responsible for the collector's neglect to account for and pay over whatever money he had received as collector. There was no error, therefore, in striking out the pleas as impertinent, and in refusing to receive evidence to support them.

Holding this opinion, we are not called upon to inquire whether the money received and disbursed by the collector, 'as appearing by the official accounts filed by the plaintiff in the suit,' was all money which it was his duty to receive and disburse as collector. And we are not to be understood as assenting to the claim that some part of it was not. On this subject see Broome v. The United States, 15 How. 143.

The next assignment of error requiring attention is, that the court refused to charge the jury, if they found from the evidence the Secretary of the Treasury required the collector to use the money received by him in the redemption of treasury notes, that such requirement was an important and material change of the duties, functions, and employment of the collector as required by law, and discharged the sureties in his official bond from all liability for his subsequent official misconduct.

Enough has already been said to show that such a charge should not have been given. By the act of 1799, to which we have referred, it was made the official duty of the collector to pay the public money in his hands to the order, or according to the direction of the officer authorized to direct the payment thereof. Payment of treasury notes, therefore, in pursuance of the order of the Secretary, was directly in the line of the collector's duty as such an officer.

The same remarks are applicable to the refusal of the court to affirm the second point proposed by the defendant as instruction to the jury. It would have been error had such instruction been given. While it may be true that no law specifically imposed upon the collector the duty of making disbursements for any marine hospital, or for the light-houses or revenue-cutters, it is not true that such duties 'were extra-official as to the office of collector,' if the payments were ordered by the Secretary of the Treasury; for the collector was bound to pay to his order, as we have seen. Nor could the court have affirmed that money furnished to the collector from the treasury of the United States, or from sources other than the proper receipts and collections, must be shown by the plaintiff to have been necessary to cover the disbursements proper to the office of the collector, or that it was furnished for that purpose. As the law was when the bond was executed, the government was authorized to furnish money to collectors for certain purposes, on their requisition. But apart from this, when the proposition was submitted to the court, the treasury transcript was in evidence. By law it made out a prima facie case, and the burden of proof, instead of being upon the plaintiff, was on the defendant to disprove it. Besides, it was proven by the transcript, and by the accounts furnished to the department by the collector, that the money he had received from other sources than collection of customs had all been expended in the payment of debentures, with the sanction of the Treasury Department. To this there was no contradictory evidence. The point proposed by the defendant was, therefore, wholly inapplicable to the case.

The remaining assignment is that the court refused to affirm the third point in the words in which it was proposed. But the court did affirm it in substance, and even more broadly than it was presented. The court charged the jury, 'that, in order to recover the balance brought down in the present action, it is incumbent on the government to prove, to the satisfaction of the jury, that the said balance brought down resulted from the failure of the said Barrett (the collector) to account for the funds which came into his hands as collector, and within the scope of his official duties in that office, and his failure to perform his duty in respect to such funds, and not from his failure to account for funds received from the treasury for the extra-judicial purposes, and his failure to perform his duty in respect to such funds.' This was an unqualified direction, not dependent upon what the jury might believe to be proved by the evidence. It was, therefore, more than the defendant asked.

The case requires nothing further. The plaintiff has recovered a judgment for the sum which the principal obligor in the bond admitted to be due from him as collector. The judgment includes nothing except an unpaid balance of duties collected, and we discover no error in the trial.

Judgment affirmed.


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