text:
Maxwell v. Stewart

ERROR to the Supreme Court of the Territory of New Mexico.

Stewart brought an action in a State court of Kansas against Maxwell. The writ was returned, 'Not served.' Thereupon an attachment was issued and levied on his property. A bond was then entered into by which the property was released.

The judgment entry recited that 'the plaintiff appeared by his attorney, J. C. Henningray, and the defendant by his attorneys, John Martin and Isaac Sharp, and both parties announcing themselves ready,' the trial proceeded.

On the record of this judgment Stewart subsequently sued Maxwell in the Territory of New Mexico, the clerk of the court in Kansas certifying that the record 'was a true and faithful copy of the record of the proceedings had in the said court in the said cause;' the cause, namely, in Kansas. Three pleas were put in, alleging certain irregularities and deficiencies in the said record, and also a plea that the judgment was void as the record showed that the case had been tried without a jury. There was no plea alleging that the attorneys who were represented by the record of the judgment to have appeared for the defendant were not authorized to appear.

All the pleas were overruled, a judgment was rendered for the plaintiff, and on appeal to the Supreme Court of the Territory, where the overruling of the pleas was assigned for error, the judgment was affirmed. The defendant now brought the case here.

It may be well to state that by the statute of Kansas, it is provided that in actions on contracts the trial by jury may be waived, by written consent, or 'by oral consent in open court, entered on the journal.' There was no appearance in this court by the plaintiffs in error and no errors had been here assigned. The court accordingly, on the case being called, were about to dismiss the writ. Mr. P. Phillips, for the defendant in error, however, opened the record and prayed an affirmance of the judgment.

The CHIEF JUSTICE delivered the opinion of the court.

title: Maxwell v. Stewart


text: Talk:Maxwell v. Stewart

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

title: Talk:Maxwell v. Stewart


text:
Maxwell v. Stewart/Opinion of the Court

On examining the record we find that four errors were assigned in the court below. The first three relate to the form and sufficiency of the evidence offered to prove the record of the judgment in the District Court of the State of Kansas upon which the action was brought. We think the objections were not well taken and that there was no error in overruling them.

The fourth in to the effect that the judgment in the Kansas court was void because the cause was tried by the court without the waiver of a trial by jury entered upon the journal. Whatever might be the effect of this omission in a proceeding to obtain a reversal or vacation of the judgment, it is very certain that it does not render the judgment void. At most it is only error and cannot be taken advantage of collaterally.

JUDGMENT AFFIRMED.

A motion was afterwards made by Mr. J. S. Watts, for the plaintiff in error, to rehear the case; but the motion was denied.

title: Maxwell v. Stewart/Opinion of the Court


text: Talk:Maxwell v. Stewart/Opinion of the Court


text: Hamilton v. Dillin

title: Hamilton v. Dillin


text: Talk:Hamilton v. Dillin

title: Talk:Hamilton v. Dillin


text:
Hamilton v. Dillin/Opinion of the Court

ERROR to the Circuit Court for the Middle District of Tennessee.

Hamilton and others brought assumpsit in the court below against Dillin, surveyor of the port at Nashville, Tennessee, to recover a charge of four cents per pound paid by them to the said defendant, from August, 1863, to July, 1864, for permits to purchase and ship to the loyal States large quantities of cotton, amounting to over seven millions of pounds. This payment was one of the fees or charges required by the regulations of the Treasury Department to be made as a condition of carrying on the said trade between those portions of the insurrectionary States within the lines of occupation of the Union forces and the loyal States.

'The Congress shall have power to lay and collect taxes, duties, imposts, and excises.'

'The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into actual service of the United States.'

On the 13th of July, 1861, Congress passed an act by which the President was authorized, after certain preliminary measures for suppressing the insurrection, to declare by proclamation what States and parts of States were in a state of insurrection against the United States. The act proceeds:

'And thereupon, all commercial intercourse by and between the same and the citizens thereof and the citizens of the rest of the United States shall cease and be unlawful so long as such condition of hostility shall continue; and all goods, &c., coming from said State or section into the other parts of the United States, and all proceeding to such State or section by land or water, shall, together with the vessel or vehicle, &c., be forfeited to the United States: Provided, however, that the President may, in his discretion, license and permit commercial intercourse with any such part of said State or section, the inhabitants of which are so declared in a state of insurrection, in such articles, and for such time, and by such persons, as he, in his discretion, may think most conducive to the public interest; and such intercourse, so far as by him licensed, shall be conducted and carried on only in pursuance of rules and regulations prescribed by the Secretary of the Treasury.'

In pursuance of this act the President, on the 16th of August, 1861, issued a proclamation declaring that the inhabitants of certain States, including Tennessee, were in a state of insurrection against the United States, and that all commercial intercourse between them and the citizens of other States was unlawful, and that all goods, &c., coming from said States without the special license and permission of the President, through the Secretary of the Treasury, or proceeding to any of said States, &c., would be forfeited, &c. This proclamation excepted from its operation, amongst other things, such parts of the enumerated States as might maintain a loyal adhesion to the Union and Constitution, or might be from time to time occupied and controlled by forces of the United States. A subsequent proclamation, issued April 2d, 1863, abrogated the exception as embarrassing 'to the due enforcement of said act of July 13th, 1861, and the proper regulation of the commercial intercourse authorized by said act;' such abrogation, however, not extending to West Virginia or the ports of New Orleans, Key West, Port Royal, or Beaufort, in South Carolina.

On the 28th of February, 1862, the insurrection not making at this time further headway, the President issued an executive order thus:

'Considering that the existing circumstances of the country allow a partial restoration of commercial intercourse between the inhabitants of those parts of the United States heretofore declared to be in insurrection and the citizens of the loyal States of the Union, and exercising the authority and discretion confided to me by the act of Congress, approved July 13th, 1861, &c., I hereby license and permit such commercial intercourse, in all cases within the rules and regulations which have been or may be prescribed by the Secretary of the Treasury for the conducting and carrying on of the same on the inland waters and ways of the United States.'Under the authority of this and subsequent executive orders, the Secretary of the Treasury from time to time-that is to say on the said 28th of February, 1862, on the 28th of August, 1862, on the 31st of March, 1863, and finally on the 11th of September, 1863,-prescribed rules and regulations for carrying on the trade licensed by the President. Those last mentioned, and dated the 11th of September, 1863, being revised rules and regulations.

These last-dated regulations prohibited the transportation of goods or merchandise to or from any State or part of a State in insurrection, except under permits, certificates, and clearances, as provided therein; and the surveyors of the customs at Nashville and other places were designated as the officers to grant such permits. Authority to purchase and transport goods was to be granted only to those who should make the prescribed affidavit, and enter into bond to pay all fees required by the regulations; and no permit was to be granted for such purchase and transportation except upon the payment of such fees, or the giving of a bond to secure the same. The fees referred to, and appended to the regulations and making part thereof, consisted of various items and charges to be paid, and, amongst others,

'For each permit to purchase cotton in any insurrectionary district, and to transport the same to a loyal State, per pound. . . four cents.'

Accompanying the rules and regulations, dated March 31st, 1863, was the following contemporary:

'WASHINGTON, EXECUTIVE MANSION, March 31st, 1863.

'Whereas, by the act of Congress approved July 13th, 1861, entitled, &c., all commercial intercourse between the inhabitants of such States as should by proclamation be declared in insurrection against the United States and the citizens of the rest of the United States was prohibited so long as such condition of hostility should continue, except as the same shall be licensed and permitted by the President, to be conducted and carried on only in pursuance of rules and regulations prescribed by the Secretary of the Treasury; and whereas it appears that a partial restoration of such intercourse between the inhabitants of sundry places and sections heretofore declared in insurrection in pursuance of said act and the citizens of the rest of the United States will favorably affect the public interests:

'Now, therefore, I, Abraham Lincoln, President of the United States, exercising the authority and discretion confided to me by the said act of Congress, do hereby license and permit such commercial intercourse between the citizens of the loyal States and the inhabitants of such insurrectionary States, in the cases and under the restrictions described and expressed in the regulations prescribed by the Secretary of the Treasury, bearing even date with these presents, or in such other regulations as he may hereafter, with my approval, prescribe.

'ABRAHAM LINCOLN.'

These revised rules and regulations of September 11th, 1863, were also approved in form by the President.

It was under the authority of these licenses and regulations that the four cents per pound, now sought by the plaintiffs to be got back, was levied and collected.

This license (a public document, perhaps), was not put in evidence.

By the bill of exceptions, it appeared that it was admitted on the trial that the defendant was acting surveyor of customs at Nashville during the period in question, and the only person that could grant the necessary permits; that the plaintiffs had in their possession, as owners or factors, various lots of cotton, specified in the bill, which had been purchased in pursuance of the license of the President and the regulations of the Secretary of the Treasury in that regard; that they applied to the defendant for permits to ship and transport said cotton from Nashville to a loyal State, and that the defendant, in obedience to said regulations and instructions, refused to grant such permits except on payment of the four cents per pound. It was also admitted that the regulations were well and publicly known at Nashville, and that they directed seizure and confiscation of all cotton shipped without such payment and permit, and that the plaintiffs made no formal protest against the payment of the tax, but paid the same, and that the same was paid by the defendant into the Treasury of the United States before the commencement of this action. It was also admitted that during said term of time Nashville was within the lines of military occupation of the United States.

The plaintiffs then put in evidence the Treasury Regulations in force at the time of the shipment of the cotton in question.

So far as to the main case. In order, however, fully to understand things, it is necessary to advert to certain statutes passed by Congress at different times, and which the plaintiffs and defendants supposed bore much upon their respective positions.

On the plaintiffs' side of the case, as they argued, it appeared that by a general internal revenue act of July 1st, 1862, an act of one hundred and nineteen sections, covering fifty-seven pages of the statute-book, and comprehending an immense list of articles taxed, Congress levied a tax of one-half cent per pound on all cotton, to be paid before its removal from the place of production. And again, that by an act of March 7th, 1864, it raised the tax to two cents per pound in lieu of the one-half cent, where no duty had already been paid, levied, or collected on the cotton.

On the defendant's side, as he conceived, the President having, on the 1st July, 1862, issued a proclamation declaring what States and parts of States were in insurrection, with a view to the provisions of an act imposing a land tax, and made no exception of any fractions of States, except the counties constituting West Virginia, Congress, on the 12th of March, 1863, passed what is known as the Captured and Abandoned Property Act; an act 'to provide for the collection of abandoned property and for the prevention of frauds in insurrectionary districts within the United States.'

The first section enacts—

'That it shall be lawful for the Secretary of the Treasury, from and after the passage of this act,. . . to appoint a special agent or agents to receive and collect all abandoned property in any State or Territory, or any portion of any State of Territory of the United States, designated as in insurrection, &c., by the proclamation of the President of 1st July, 1862.'

The fourth section enacted—

'That all property coming into any of the United States not declared in insurrection as aforesaid, from any of the States declared in insurrection, through or by any other person than any agent duly appointed under the provisions of this act, or under a lawful clearance by the proper officer of the Treasury Department, shall be confiscated.'

So, on the 2d July, 1864, Congress passed 'An act in addition to the several acts concerning commercial intercourse between loyal and insurrectionary States, and to provide for the collection of captured and abandoned property and the prevention of frauds in States declared in insurrection.'

Its third section enacts—

'That all moneys arising from the leasing of abandoned lands, houses, and tenements, or from sales of captured and abandoned property collected and sold in pursuance of said act, or of this act, or from fees collected under the rules and regulations made by the Secretary of the Treasury, and approved by the President, dated respectively the 28th of August, 1862, 31st of March, and 11th of September, 1864, or under any amendments or modifications thereof, which have been or shall be made by the Secretary of the Treasury and approved by the President, for conducting the commercial intercourse, which has been or shall be licensed and permitted by the President, with and in States declared in insurrection, shall, after satisfying therefrom all necessary expenses, to be approved by the Secretary of the Treasury, be paid into the Treasury of the United States; and all accounts of moneys received or expended in connection therewith shall be audited by the proper accounting officers of the treasury.'

The counsel of the plaintiffs insisted and requested the court to charge, that the exaction of the four cents per pound was illegal and void; that it was essentially a tax and not authorized by any act of Congress, which alone had the power to impose taxes; that even if it were authorized by law, the law itself was to that extent unconstitutional and void, and that under the circumstances and state of facts agreed upon by the parties, the payment was involuntary, and no protest was necessary to entitle the plaintiffs to recover back the money thus illegally exacted. The court refused to charge as requested by the plaintiffs, but charged as follows:

First. That the act of July 13th, 1861, conferred power upon the Secretary of the Treasury to authorize the exactions mentioned in said plaintiffs' declaration.

Second. That whether the said act conferred such power or not, the action of the Secretary of the Treasury in imposing, and of the defendant in making, said exactions, was ratified and made valid by the act of July 2d, 1864, entitled 'An act in addition to the several acts concerning commercial intercourse between loyal and insurrectionary States, and to provide for the collection of captured and abandoned property, and the prevention of frauds in States declared in insurrection.'

Third. That the plaintiffs could not maintain an action to recover back said exactions, even if they had been illegal, for want of having protested against them at the time of payment.

To this charge exceptions were taken, and the correctness of these propositions was the matter which this court was now called on to decide.

Messrs. W. M. Evarts and T. D. Lincoln (with whom were Messrs. C. Cole and E. Jordan), for the plaintiffs in error:

I. If the requirement of four cents per pound was a tax levied for revenue purposes, it was, without doubt, illegally exacted; for by the Constitution 'the Congress shall have power to lay and collect taxes, duties, imposts, and excises.' The power cannot be delegated.

II. But if it could be, what is the case? The authority claimed is rested on the power to make 'rules and regulations' for carrying on a certain trade. But does this carry the power to levy taxes-or if you please to change the phrase, 'exact impositions,' 'levy bonuses,'-for revenue upon such trade? The two ideas are distinct; their circles nowhere touch each other. To provide the 'rules and regulations' for conducting a trade relates to the conduct of the persons engaged in it, their methods of transacting their business, the imposition of such checks and safeguards as will secure a compliance with the law. To make such trade contribute in any essential form to the revenues of the country is the exercise of one of the highest prerogatives of the government, and is to be determined upon grounds widely different from the supervision and policing of the trade itself.

III. The latter function was the function of these exactions.

In the Mayor v. Second Avenue Railroad Company, the city of New York required the railroad company to pay $50 for a license for running its cars, justifying the right under the power of the city to establish ordinances for the good rule and government of the city, and to provide penalties for their breach. The court says:

'This is only a taxing power in the guise of establishing ordinances for good rule and government.'

This case went to the Court of Appeals. The opinion of the court says:

'Call what it requires by name of license or certificate of payment, or anything else, its primary, and indeed only purpose is to take from the company, under coercion of the penalty which it imposes, the sum of $50 annually for each car run upon the road, for the benefit of the city. . . . It is in vain, therefore, to speak of it, or to treat it as a license or regulation of police. It is the imposition of an annual tax upon the company in derogation of its rights of property, and on that account in unlawful and void.'

This same question came again before the Court of Appeals, under this same ordinance, in the case of the Mayor, &c., v. The Third Avenue Railroad Company, where the decision was affirmed.

The case of The Commonwealth v. Stodder, in Massachusetts, presented a similar question.

The statute law of Massachusetts authorized the mayor and aldermen to regulate the use of omnibus and stage coaches for the transportation of persons, for hire, from Roxbury to Boston, and from Boston to Roxbury; and an ordinance was passed requiring persons who set up the running of coaches to obtain a license and pay a fee for each license. The court say:

'In the aspect in which we have been enabled to regard this part of the ordinance, can we view it in any other light than as the assessment of a tax upon the owner of these vehicles?'

And they decide that they cannot.

In Lucas v. Lottery Commissioners, the Court of Appeals of Maryland say:

'That a license is a tax, is too palpable for discussion.'

It is an abuse of terms and of the English language to use the word 'fees' in reference to this exaction. Fees are the allowance to public officers for services performed; and through the whole range of custom-house revenue, they will be found to average about what the small charges in this case were, for the issuing a permit, for administering an oath as to loyalty, or oath as to invoices, &c., and they are generally fixed by statute.

IV. The intention of Congress not to delegate the power exerted in this case, is manifest from the fact that by two different acts of Congress it has itself taxed cotton.

One act is that of July 1st, 1862, the other the act of March 7th, 1864. Can it be supposed that it meant to delegate to others a power to tax and to tax at a much higher rate?

The President, as we have said, had nothing and could have nothing to do with the 'rules and regulations' of the Secretary of the Treasury requiring the defendant to make the exaction, and to pay the money into the treasury. They were, therefore, the secretary's own; made, not in pursuance of any lawful authority of the President acting under statute, but his own wholly. Now, the order of the secretary to a collector or subordinate is no defence for a demand for illegal duties.

V. Neither the prohibition of intercourse, nor the provisions respecting its license, nor that concerning its regulation, had any application to the District of Nashville, in the condition in which it was at the time these exactions were made.

The act, after providing that the President may, in the contingency mentioned, declare States and parts of States in insurrection, declares that thereupon 'all commercial intercourse by and between the same and citizens thereof, and the citizens of the rest of the United States, shall cease, and be unlawful so long as such condition of hostility shall continue; thus making the prohibition of trade itself, and of course everything dependent thereon, applicable to any region only so long as the condition of hostility shall continue.'

Now it is matter of public history, that long before the first of these exactions was made, the city of Nashville had been occupied by the National troops, and that it continued in their occupation and under the National control during all the time covered by the transactions out of which our claims arise. It would seem to be manifest, therefore, that the condition of hostility had ceased to exist, and that the provision in question could have no application there, for it cannot be maintained that a portion of our own country in which an insurrection had existed could be regarded as in a state of hostility after such insurrection had been finally suppressed therein by the National troops.

The decision in The Ouachita Cotton proceeded upon the ground that the city of New Orleans, after the occupation by the forces under General Butler, ceased to be in insurrection.

VI. The act of July 2d, 1864, did not make these exactions legal by a ratification of them by Congress.

Nearly all the fees arose prior to the passage of this act, and it could not affect them. The construction of the law of July 13th, 1861, as to all past transactions, is with the courts.

In addition. Nothing in the act requires us to construe it as intended to validate that which was illegal before. No act can be construed to do this unless this be the plain purpose of the lawmaker.

Now, the true purposes of the act were to extend the operation of the act of March 12th, 1863; the Captured and Abandoned Property Act. Ex. gr., much property had been collected and held under color of this last-named act. But as no property could be legally collected or sold that was not in fact captured or abandoned, and as much that was collected and sold, was asserted to have been neither captured nor abandoned, much of the money derived from such sales was, on that account, held by the officers making the sales. The secretary was embarrassed by this state of things. To relieve the secretary from these difficulties, and the government from the danger of so much money remaining in the hands of the agents of the Treasury Department executing this law, Congress passed this act of July 2d, 1864, requiring among other things the money on hand, collected under these laws and regulations, to be paid into the Treasury.

Another reason for this act was to enable the Secretary of the Treasury, by rules, to provide for the payment of the expense of the execution of the said act, from the fees imposed, from the sales of captured and abandoned property, and from the sales of the purchased property.

These provisions are entirely new in some of their features, and were enacted to avoid the difficulties and dangers before alluded to, and never intended to validate any illegal act or to settle any question of the kind now under discussion.

VII. No formal protest was necessary to enable the plaintiff to recover in this case.

1. There is no statute providing for a protest in such a case.

The case does not come under any of the acts providing for a protest, as a condition precedent for a suit of this kind. This exaction was wholly foreign to the purpose of this act or any act of Congress, so that there could be no provision for a protest, for no such thing was contemplated, as was done by this rule.

2. Nor was the payment a voluntary payment.

The rules and regulations, the refusal to grant the permits without the payment of the money, the presence of an army to aid in the seizure of the cotton if it were attempted to be shipped without the permit, the propriety and necessity of shipment to the loyal States, the great loss to the plaintiffs if not shipped, and the orders and action of these officers, which are a part of the known history of the country, these things show that it was a forced payment.

Mr. G. H. Williams, Attorney-General, and Mr. S. F. Phillips, Solicitor-General, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

There can be no question that the condition requiring the payment of four cents per pound for a permit to purchase cotton in, and transport it from, the insurrectionary States during the late civil war, was competent to the war power of the United States government to impose. The war was a public one. The government in prosecuting it had at least all the rights which any belligerent power has when prosecuting a public war. That war was itself a suspension of commercial intercourse between the opposing sections of the country. No cotton or other merchandise could be lawfully purchased in the insurrectionary States and transported to the loyal States without the consent of the government. If such a course of dealing were to be permitted at all, it would necessarily be upon such conditions as the government chose to prescribe. The war power vested in the government implied all this without any specific mention of it in the Constitution.

In England this power to remit the restrictions on commercial intercourse with a hostile nation is exercised by the crown. Lord Stowell says: 'By the law and constitution of this country, the sovereign alone has the power of declaring war and peace. He alone, therefore, who has the power of entirely removing a state of war, has the power of removing it in part, by permitting, where he sees proper, that commercial intercourse which is a partial suspension of the war.' Bynhershoek says: 'It is in all cases the act of the sovereign.' By the Constitution of the United States the power to declare war is confided to Congress. The executive power and the command of the military and naval forces is vested in the President. Whether, in the absence of Congressional action, the power of permitting partial intercourse with a public enemy may or may not be exercised by the President alone, who is constitutionally invested with the entire charge of hostile operations, it is not now necessary to decide, although it would seem that little doubt could be raised on the subject. In the case of Cross v. Harrison, it was held that the President, as commander-in-chief, had power to form a temporary civil government for California as a conquered country, and to impose duties on imports and tonnage for the support of the government and for aiding to sustain the burdens of the war, which were held valid until Congress saw fit to supersede them; and an action brought to recover back duties paid under such regulation was adjudged to be not maintainable. The same views were held in Leitensdorfer et al. v. Webb, in reference to the establishment of a provisional government in New Mexico, in the war with Mexico in 1846, and were reiterated by this court in the case of The Grapeshot.

But without pursuing this inquiry, and whatever view may be taken as to the precise boundary between the legislative and executive powers in reference to the question under consideration, there is no doubt that a concurrence of both affords ample foundation for any regulations on the subject.

Our first inquiry, therefore, will be, whether the action of the executive was authorized, or, if not originally authorized, was confirmed by Congress.

By the act of July 13th, 1861, the President was authorized, after certain preliminary measures for suppressing the insurrection, to declare by proclamation what States and parts of States were in a state of insurrection against the United States; 'and thereupon,' the act proceeds to say, 'all commercial intercourse by and between the same and the citizens thereof and the citizens of the rest of the United States shall cease and be unlawful so long as such condition of hostility shall continue; and all goods, &c., coming from said States or section into the other parts of the United States, and all proceeding to such States or section, by land or water, shall, together with the vessel or vehicle, &c., be forfeited to the United States: Provided, however, that the President may, in his discretion, license and permit commercial intercourse with any such part of said States or section, the inhabitants of which are so declared in a state of insurrection, in such articles, and for such time, and by such persons, as he, in his discretion, may think most conducive to the public interest; and such intercourse, so far as by him licensed, shall be conducted and carried on only in pursuance of rules and regulations prescribed by the Secretary of the Treasury.'

In pursuance of this act the President, on the 16th of August, 1861, issued a proclamation, declaring that the inhabitants of certain States (including Tennessee) were in a state of insurrection against the United States, and that all commercial intercourse between them and the citizens of other States was unlawful, and that all goods, &c., coming from said States without the special license and permission of the President, through the Secretary of the Treasury, or proceeding to any of said States, &c., would be forfeited, &c. This proclamation excepted from its operation, amongst other things, such parts of the enumerated States as might maintain a loyal adhesion to the Union and Constitution, or might be from time to time occupied and controlled by forces of the United States. A subsequent proclamation, issued April 2d, 1863, abrogated the said exception as embarrassing 'to the due enforcement of said act of July 13th, 1861, and the proper regulation of the commercial intercourse authorized by said act;' such abrogation, however, not extending to West Virginia, or the ports of New Orleans, Key West, Port Royal, or Beaufort, in South Carolina.

Under, and in supposed pursuance of, this act and these proclamations, the license of the President and the trade regulations of the Secretary of the Treasury were made under which the plaintiffs purchased and shipped the cotton in question. These public acts of the executive department must be construed as one system. The license of the President to hold commercial intercourse cannot be separated, in determining this controversy, from the treasury regulations which were adopted for the government of that intercourse. There is an evident effort on the part of the plaintiffs to separate them; and it is worthy of passing observation that the actual license of the President was not put in evidence. But a public act of the government of such importance may receive the judicial notice of the court; and availing ourselves of that right we find that the regulations referred to as adopted September 11th, 1863, are revised regulations, expressly approved by the President, and supplementary to previous regulations adopted March 31st, 1863, to which the President had attached the license of same date, under which the entire authority to pursue the trade in this cotton arose. This license, after reciting the act of Congress of July 13th, 1861, so far as relates to commercial intercourse, proceeds as follows: 'And whereas it appears that a partial restoration of such intercourse between the inhabitants of sundry places and sections heretofore declared in insurrection, in pursuance of said act, and the citizens of the rest of the United States, will favorably affect the public interests: Now, therefore, I, Abraham Lincoln, President of the United States, exercising the authority and discretion confided to me by the said act of Congress, do hereby license and permit such commercial intercourse between the citizens of loyal States and the inhabitants of such insurrectionary States in the cases and under the restrictions described and expressed in the regulations prescribed by the Secretary of the Treasury, bearing even date with these presents, or in other such regulations as he may hereafter, with my approval, prescribe.'

It is clear, therefore, that the license to trade given by the President was a conditional one, requiring a full compliance with the regulations adopted by the Secretary of the Treasury, between whom and the President, as would be supposed, there was entire harmony and even unity of action.

The question then comes to this: Under the supposed authority of the act of July 13th, 1861, the President and Secretary of the Treasury authorized and licensed cotton to be purchased in and transported from insurrectionary districts, on condition that the parties availing themselves of the license should pay to the government four cents per pound and all other fees. If we might offer a conjecture as to the motive for this regulation, it may have been this, namely: that such a bonus would help to counterbalance, in favor of our government, any benefit which the enemy might derive from a sale of the cotton instead of its destruction. But the actual motive is not material. The government chose to impose this condition. It supposed it had a right to do so. No one was bound to accept it. No one was compelled to engage in the trade. Not the least compulsion was exercised. The plaintiffs endeavor to put the case as if they were obliged to pay this exaction to save their property. This is not a true view of it. It is admitted that the property was purchased under the license. If so, it was also purchased in view of the regulations to which the license referred. The regulations themselves show that the permit to purchase and the permit to export were correlative to each other; that no one was permitted to purchase who did not enter into bond to pay all fees required by the regulations, amongst which the charge of four cents per pound on cotton was expressly inserted. In short, the permit to purchase and export constituted substantially one permit, and that was granted only on the condition of paying the prescribed fees, as before stated. The clearance of particular lots or cargoes required afterwards, when the property was actually shipped, was necessary to show that the stipulated conditions had been complied with, and that the particular articles specified were free for transportation. The whole series of acts constituted, so far as the right to trade and transport was concerned, but one transaction; a conditional permission given on the part of the government, and the acceptance of and compliance with that condition on the part of the trader.

The position in which the plaintiffs put themselves, therefore, was an entirely voluntary one. They have no right now to say: 'It is true we purchased the cotton under a license which required us to pay a certain bonus; but having purchased it, we were entitled to repudiate the condition, although we had no right to make the purchase except by virtue of the license.' Much less have they now a right to say, after having complied with the condition without murmur or objection, that the bonus was extorted from them by compulsion.

Whether, therefore, the President and Secretary of the Treasury did or did not rightly judge as to their powers under the act, the plaintiffs evidently agreed with them and voluntarily applied for permission to engage in the trade on the conditions imposed, and voluntarily paid the bonus which is now sought to be recovered back. The case does not come within any class of cases on which the plaintiffs rely to take it out of the rule as to voluntary payments. In our judgment, therefore, the defence in this case might have rested on this ground alone.

But we are also of opinion that the conditions imposed were authorized by the act of July 13th, 1861. Its language has been already quoted. The material part in reference to the question under discussion in the proviso of section three, which is as follows: 'The President may, in his discretion, license and permit commercial intercourse. . . in such articles, and for such time, and by such persons as he in his discretion may think most conducive to the public interest; and such intercourse. . . shall be conducted and carried on only in pursuance of rules and regulations prescribed by the Secretary of the Treasury.'

It is contended that the imposition of the bonus of four cents per pound was not a rule or a regulation within the fair meaning of the act; and it is conceded that in many cases the power to make rules and regulations on a particular subject is a limited power, having respect to mode and form, and time and circumstance, and not to substance. But it must also be conceded that in other cases the power is much more extensive and substantial. Thus, in the Constitution, the several powers 'to regulate commerce,' 'to establish a uniform rule of naturalization,' 'to make all needful rules and regulations respecting the territory or other property belonging to the United States,' are understood to give plenary control over those subjects. The power to regulate commerce has been held to include the power to suspend it; and the power to make rules and regulations respecting the territory of the United States, has been held to include the power to legislate for and govern such territory, and establish governments therein. The extensive effect given to these clauses is undoubtedly largely due to the character of the instrument and that of the donee of the powers, to wit, the legislature of the United States, to whom the grant of a power means the grant of a branch of sovereignty. It shows, however, that the rule of construction depends, at least in some sort, upon the nature of the subject-matter. In the case before us, the power of the government to open and regulate trade with the enemy was intended to be conferred upon the President and the Secretary of the Treasury. The power of regulation in such a case is to be taken in its broadest sense, and, in our judgment, included the power to impose such conditions as the President and Secretary should see fit.

The statutes relating to the internal revenue, passed July 1st, 1862, and March 7th, 1864, which have been referred to for the purpose of showing that Congress imposed a special tax upon cotton, and, therefore, could not have intended by the act of 1861 to sanction the regulations of the treasury now in question, do not, in our judgment, have that effect. The act of 1862 imposed a tax of half a cent per pound on all cotton, to be paid before its removal from the place of production. The same act and section imposed various taxes on a hundred other articles. The question is, did Congress intend, by the imposition of these taxes, to revoke by implication, any power given to the Executive Department of imposing such regulations as it might see fit for the carrying on of trade with insurrectionary districts? We answer, certainly not. The two subjects were entirely distinct. No conflict or repugnancy could arise in relation thereto. When, in March, 1863, the President issued his license to trade in cotton and other articles in the insurrectionary districts, under and subject to the conditions contained in the regulations adopted by the Secretary of the Treasury, his action was not inconsistent with or repugnant to the internal revenue law passed the year before. It had nothing to do with that law or the subject-matter of it. The conditions exacted by him were not imposed in the exercise of the taxing power, but of the war power of the government. The exaction itself was not properly a tax, but a bonus required as a condition precedent for engaging in the trade. Whether, when the condition was fulfilled, the cotton became subject to the internal revenue law is a question we are not called upon to decide. There was no inconsistency between the regulations and the law any more than there is between a license tax for carrying on a particular trade and the excise imposed on the products of that trade. The act of March 7th, 1864, raised the internal revenue tax on cotton to two cents a pound where no duty had already been levied, paid, or collected thereon. Neither does this act present any inconsistency with the regulations in question. If it refers to them at all (when speaking of duties already paid) it contains an implied recognition of them. If it does not refer to them, it does not contravene them.

The position that Nashville, being within the National lines, was not hostile territory in 1863 and 1864, and, therefore, not within the prohibition of commercial intercourse contained in the act of 1861, is not tenable. The State of Tennessee was named in the President's proclamation as one of the States in insurrection; and, as we have seen, the exceptions made in his first proclamation in favor of maintaining commercial intercourse with parts of such States remaining loyal, or occupied by the forces of the United States, were abrogated by the proclamation of April 2d, 1863, except as to West Virginia and certain specified ports. There was nothing in this action of the President repugnant to, or not in conformity with, the act of 1861. 'This revocation,' as remarked by this court in the case of The Venice, 'merely brought all parts of the insurgent States under the special licensing power of the President, conferred by the act of July 13th, 1861.' The act gave the President power, where a State or part of a State remained irreclaimable, to declare that the inhabitants of such State, or any section or part thereof where such insurrection existed, were in a state of insurrection. This power clearly gave the President a discretion to declare an entire State, where the insurrection was persisted in, or only a hostile district therein, in a state of insurrection. Finding the attempt to discriminate between the different parts of a State (except in peculiar cases) impracticable, he abandoned the attempt, and declared the entire State in a state of insurrection. He clearly had authority so to do, more especially as the insurrection was supported by State organizations and the actual State authorities. Thenceforth the war became a well-defined territorial war, and was in great measure conducted as such. The further provision of the act, that all commercial intercourse with the insurrectionary districts should cease 'so long as such condition of hostility shall continue,' could not be construed as allowing such intercourse to be resumed by individuals at will, as fast and as far as our armies succeeded in occupying insurgent territory. The 'condition of hostility' remained impressed upon the insurrectionary districts until it was authoritatively removed by the proclamation of the President at the close of the war.

This view of the meaning of the act of 1861 is corroborated by the act of March 12th, 1863, respecting abandoned and captured property.

On the 1st of July, 1862, the President had issued a proclamation declaring what States and parts of States were in insurrection, with a view to the provisions of the act imposing a land tax, and made no exception of any fractions of States, except the counties constituting West Virginia. Expressly referring to this proclamation, Congress, in the fourth section of the act referred to, enacted 'that all property coming into any of the United States not declared in insurrection as aforesaid, from any of the States declared in insurrection, through or by any other person than any agent duly appointed under the provisions of this act, or under a lawful clearance by the proper officer of the Treasury Department, shall be confiscated.' This is a clear recognition on the part of Congress of the President's demarcation of insurrectionary territory. It is also a recognition of the treasury regulations as to intercourse with that territory-not, perhaps, of any specific regulations, but of the applicability of such regulations to all portions of insurrectionary territory, whether under occupation of the Union forces or not.

But it is unnecessary to pursue this subject. We have frequently held that the civil war affected the status of the entire territory of the States declared to be in insurrection, except as modified by declaratory acts of Congress or proclamations of the President; and nothing but the apparent earnestness with which the point has been urged would have led to a further discussion of the point.

We are also of opinion that the act of July 2d, 1864, recognized and confirmed the regulations in question. It is sufficient to quote a portion of the third section to evince the correctness of this conclusion. It enacts as follows: 'That all moneys arising from the leasing of abandoned lands, houses, and tenements, or from sales of captured and abandoned property collected and sold in pursuance of said act, or of this act, or from fees collected under the rules and regulations made by the Secretary of the Treasury, and approved by the President, dated respectively the 28th of August, 1862, 31st of March, and 11th of September, 1863, or under any amendments or modifications thereof, which have been or shall be made by the Secretary of the Treasury and approved by the President, for conducting the commercial intercourse, which has been or shall be licensed and permitted by the President, with and in States declared in insurrection, shall, after satisfying therefrom all necessary expenses, to be approved by the Secretary of the Treasury, be paid into the treasury of the United States; and all accounts of moneys received or expended in connection therewith shall be audited by the proper accounting officers of the treasury.'

Here the regulations in question are referred to by name and date, and the money accruing under their operation (the great bulk of which was derived from the bonus on cotton) was directed to be paid into the treasury. It is designated by the term 'fees,' it is true, but that was the designation used in the regulations themselves. It will be observed that the law was prospective, relating to moneys thereafter to be received, as well as to those already received. This was clearly an implied recognition and ratification of the regulations, so far as any ratification on the part of Congress may have been necessary to their validity.

It is hardly necessary, under the view we have taken of the character of the regulations in question, and of the charge or bonus objected to by the plaintiffs, to discuss the question of the constitutionality of the act of July 13th, 1861, regarded as authorizing such regulations. As before stated, the power of the government to impose such conditions upon commercial intercourse with an enemy in time of war as it sees fit, is undoubted. It is a power which every other government in the world claims and exercises, and which belongs to the government of the United States as incident to the power to declare war and to carry it on to a successful termination. We regard the regulations in question as nothing more than the exercise of this power. It does not belong to the same category as the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the government, just as much so as the power to levy military contributions, or to perform any other belligerent act.

We perceive no error in the record, and the judgment of the Circuit Court must be

title: Hamilton v. Dillin/Opinion of the Court


text: Talk:Hamilton v. Dillin/Opinion of the Court


text: Douglass v. Douglass' Administrator

title: Douglass v. Douglass' Administrator


text: Talk:Douglass v. Douglass' Administrator


text:
Douglass v. Douglass' Administrator/Opinion of the Court

At the same time with the preceding case was adjudged the case of McClelland v. United States; an appeal from the Court of Claims; in which the claimant sought to recover payments of four cents per pound on cotton, made, as was admitted, under and in pursuance of the license of the President, and the rules and regulations prescribed by the Secretary of the Treasury, whose validity was considered in the case just above reported. There was a demurrer to the petition which the Court of Claims sustained, and, as this court, after a full argument by Messrs. J. W. Denver and C. F. Peck, for the appellant, now adjudged, rightly; declaring that this case was substantially decided by the preceding one. The judgment of the Court of Claims was accordingly

AFFIRMED.


text: Talk:Douglass v. Douglass' Administrator/Opinion of the Court


text:
McClelland v. United States

ERROR to the Supreme Court for the District of Columbia; the case being thus:

By an act of the Assembly of Maryland, in force in the District of Columbia, provision is made that, upon motion of the defendant in replevin in certain specified cases, the court may order a return of the goods taken in such replevin, to the defendant. In such cases when a return is awarded, it is 'upon the said defendant entering into bond, with security to be approved by the court, conditioned for the return of said property, if the same be adjudged by the court.' This statute being in force, Henry Douglass executed in Washington, D. C., a penal bond of the sort mentioned to William Douglass, in the sum of $11,000. It recited that William Douglass, as administrator, &c., had sued out against Henry Douglass a writ of replevin, under which had been seized and delivered to William, as administrator, certain articles (green-house plants) mentioned in the writ; that Henry had moved the court to return the articles to him, and that the court ordered their return upon his giving bond as required.

The condition of the bond was as follows:

'Now the condition of this obligation is such, that if the said Henry Douglass shall and will return the goods and chattels in said declaration mentioned, if the same be adjudged, and in all things stand to, abide by, and perform and fulfil the judgment of the said court, then the above obligation to be void; otherwise to be and remain in full force and virtue in law.'

On this bond the said William Douglass, administrator, &c., brought suit in the court below.

The declaration averred that it was adjudged in the suit that the property in the articles was in William, as such administrator, and that it was considered by the court that they should be restored to him, that he should recover of Henry $537.23 for costs, 'and that he have execution for the return of said goods and chattels, and for said costs of suit.'

The breach alleged was,

'That the said Henry Douglass did not return and deliver up the said goods and chattels to the said William Douglass, administrator, as aforesaid, or well and truly abide by and perform and fulfil the judgment of the said court in the premises, but had hitherto wholly neglected and refused so to do, and still doth so refuse and neglect, whereby the said writing obligatory hath become forfeited to the said plaintiff.'The defendant filed four pleas:

1. That he did not commit the breach alleged.

2. That he did not neglect and refuse to abide by and fulfill the judgment of the court.

3. That the plaintiff caused a writ of de retorno habendo to be issued, and that in execution of the writ the marshal seized the goods and chattels mentioned in the declaration, and tendered them to the plaintiff, who refused to receive them.

4. That he did deliver to the plaintiff the goods and chattels mentioned in the declaration, as he was bound to do.

The third and fourth pleas concluded with a verification.

The first and second concluded neither with a verification, nor to the country.

The plaintiff took issue on the first, second, and fourth pleas; to the third he replied, that 'when the marshal seized the said goods and chattels they were much damaged and altered in condition, and of materially less value than when they were delivered to said defendant as aforesaid, wherefore plaintiff refused to receive the same, and they were left by the marshal and still remain in the defendant's possession, and this he is ready to verify.'

There was no rejoinder to the replication. Upon this state of the pleadings the case went to the jury.

Upon the trial the plaintiff offered evidence tending to prove the value of the goods and chattels when they were delivered by the marshal to the defendant, and also evidence tending to prove that they were seized by the marshal at several times under two writs of de retorno habendo, issued upon the judgment in favor of the plaintiff, and tendered to the plaintiff by the marshal; that the plaintiff refused to receive them; that they were then in a changed and damaged condition, and hence his refusal. The evidence was admitted, and the defendant excepted.

The defendant offered evidence tending to prove that under the two writs of de retorno habendo, the goods and chattels had been seized by the marshal and tendered to the plaintiff; that he refused to receive them, and that upon one of the occasions when they were so seized, the plaintiff was present and objected only to a few of the articles as not included in the original suit; that the deputy marshal who served the writ and made the seizure instructed the plaintiff to furnish means of removing the articles from the premises of the defendant, which he refused to do, and that thereupon the deputy left them where he found them, without any consultation or understanding with the defendant, and that the defendant never accepted them from the marshal. The plaintiff objected to the evidence, the court excluded it, and the defendant excepted.

The defendant prayed the court to instruct the jury that the tender to the plaintiff, by the marshal, discharged the obligation of the bond. The court refused, and the defendant excepted.

The plaintiff thereupon asked the following instructions:

1. That the proceedings under the writs de retorno habendo did not bar the plaintiff's right to recover.

2. That unless the defendant had offered to return the goods and chattels, he was liable for their value at the time they were delivered to him by the marshal, with interest from the date of the judgment of return.

These instructions were given, and the defendant excepted.

Verdict and judgment having been rendered for the plaintiff, the defendant brought the case here.

Messrs. B. Phillips and W. B. Webb, for the plaintiff in error:

The meaning in law of the bond is the principal question.

1. The seizure of the marshal, under the writ, of the property mentioned in it, was a return and delivery in full compliance with the bond. His possession and control of the property, by virtue of the writ issued at the instance of the plaintiff, was the possession and control of the plaintiff himself. The law makes the marshal the plaintiff's agent. Carrico v. Taylor is in point.

2. The bond was to return the property and fulfil the judgment. When the property was returned and the party paid the costs awarded, the judgment was in all things fulfilled, and the bond fully satisfied.

If the party had so chosen he could have had a bond conditioned not only for the return, but for a return in like good condition and order, and this form is frequently used. In Maryland, under the statute of 1785, and in the District where the Maryland statute prevails, the form is not used. The omission of this further condition materially changes the character of the obligation.

The action of replevin is the usual mode of trying the right to personal property, and the bond which is given should not, under any form of condition, subject the obligor to damages for the ordinary wear and tear the property is subject to.

The case in short is this: The plaintiff is the obligee of a bond conditioned for the return of certain specified goods; he brings his action on this obligation, averring that the obligor did not return the property. The defendant pleads that this specified property was seized by the marshal on a writ which the plaintiff caused to be served on him. To this there is a replication which admits all these facts, but avers that the plaintiff refused their acceptance because they were of less value than when they were delivered to defendant. This is a departure in point of fact as well as of law. A new fact is introduced; the deterioration of the goods, not mentioned in the bond or declaration, and a new obligation in law is founded upon it. The case, therefore, tried, and on which judgment was rendered, finds no support in the obligation sued on, nor in the averment of the declaration. Judgment should accordingly be reversed.

Messrs. W. S.C.ox and J. H. Bradley, contra:

It is contended that the marshal's seizure either was a satisfaction of the writ, or can be pleaded as a performance of the condition of the return bond. The only case cited to sustain this position is that of Carrico v. Taylor. That case holds, that upon the sheriff's seizure, under a writ de retorno habendo, the sheriff's possession is the possession of the plaintiff, and the condition of the delivery bond is substantially complied with. This is by analogy to the case of a seizure under a ''fi. fa. The old rule was expressed to be that the seizure of sufficient personal property was a satisfaction of the debt, and it is only on similar ground that a seizure by the sheriff under a retorno habendo'' can be treated as a delivery or satisfaction. The case is clearly wrong, however, in treating the seizure as a delivery by the defendant. If the facts offered a defence at all, they do so only on the ground of a satisfaction of the writ or judgment. But the modern authorities declare, that a mere seizure or levy under a writ is a satisfaction only sub modo, or, conditionally, and does not become such, if the possession be afterwards surrendered.

In this case it appears that the property was relinquished to the defendant by the marshal, and has been in his possession ever since.

Independently of this, the plaintiff had a right to refuse to accept the plants in a damaged and deteriorated condition. The value of a greenhouse full of valuable plants, japonicas, &c., is great if the plants be alive and vigorous. In that condition these plants, we must presume, were seized. But if they are suffered to die while in the defendant's possession, though in one sense they are still the same plants, in another they are not. The defendant was bound to return the plants in the same good condition as when received by him.

Mr. Justice SWAYNE, having stated the case, delivered the opinion of the court.

title: McClelland v. United States


text: Talk:McClelland v. United States

title: Talk:McClelland v. United States


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

The exceptions taken by the defendant are all well taken. The central and controlling question in the case is the effect of the seizure of the property by the marshal, and its tender to the plaintiff. He sued out the writ. It went into the hands of the marshal by his procurement. He was the actor in causing its issuance and service. The marshal acted for him. He cannot be permitted to play fast and loose with the process he invoked. The marshal's possession was his possession. As soon as it was taken the efficacy of the bond touching the return of the property was at an end. The bond stipulated for the return of the property and nothing more in relation to it. We cannot interpolate what the contract does not contain. Our duty is to execute it as we find it, and not to make a new one.

The seizure and tender satisfied the judgment of return and the defendant's obligation. Neither could be revived by the plaintiff's refusal to receive the property. The refusal was of no legal consequence.

If the defendant injured the property, or culpably suffered it to become injured while it was in his possession, a remedy must be sought in some other appropriate proceeding. It cannot be had in a suit on the bond.

If no writ de retorno habendo had issued it would have been the duty of the defendant to seek the plaintiff and deliver the property to him if he would receive it. Had the defendant failed to do this, there would have been a breach of the bond and he would have been liable. The action taken by the plaintiff obviated the necessity of his doing anything in that way.

The judgment is REVERSED, and the case remanded with directions to issue a venire de novo, and proceed

IN CONFORMITY TO THIS OPINION.


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


text:
Cooper & Company v. Coates & Company

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

A statute of Illinois, relating to evidence in certain cases, enacts as follows:

'§ 11. In trials of actions upon contracts, express or implied, where the action is brought by partners, or by joint payees or obligees, it shall not be necessary for the plaintiff, in order to maintain any such action, to prove the copartnership of the individuals named in such action, or to prove the Christian or surnames of such partners, or joint payees, or obligees; but the names of such copartners, joint payees, or obligees, shall be presumed to be set forth in the declaration, petition, or bill; Provided,' &c.

'§ 12. In actions upon contracts, express or implied, against two or more defendants, alleged to have been made or executed by such defendants as partners, or joint obligors, or payors proof of the joint liability or partnership of the defendants, or their Christian or surnames, shall not, in the first instance, be required to entitle the plaintiff to judgment, unless,' &c.

Another statute-one on the subject of interest-and which fixes interest in Illinois at six per cent., prescribes the cases in which creditors shall be allowed to receive interest. This statute allows them to have it, among other cases—

'On money due on the settlement of accounts from the day of liquidating accounts between the parties and ascertaining the balance;. . . and on money withheld by an unreasonable and vexatious delay.'

Both these statutes being in force, Charles Coates and others brought assumpsit against Charles Cooper and others, to recover the amount of five different bills of iron, weighing different weights, and alleged to have been sold and delivered on different days in January and February, 1870, by the plaintiffs, of Baltimore, Maryland, to the defendants, of Mount Vernon, Ohio.

The declaration began thus:

'Charles Coates, George Coates, and Pennock Coates, trading as Coates & Brothers, plaintiffs, in this suit, who are citizens of the State of Maryland, complain of Charles Cooper, George Rogers, and C. G. Cooper, who are citizens of the State of Ohio, copartners, doing business as C. & G. Cooper & Co., defendants, who were summoned, &c., of a plea of trespass on the case upon promises.

'For that, whereas, the said defendants on, to wit, the first day of May, 1870, at Baltimore, to wit, at Chicago, in the district aforesaid, were indebted to the plaintiffs in the sum of $5000,' &c.

And throughout the rest of the declaration the parties were referred to as 'plaintiffs' and 'defendants,' without any addition of 'as copartners as aforesaid,' or any intimation that the parties were copartners when the considerations were received and the promises, described in the different counts, made.

Plea: The general issue.

On the trial the plaintiffs, to prove the delivery of the iron at Mount Vernon, Ohio, offered to read in evidence the deposition of one White, an agent of the Baltimore and Ohio Railroad Company at Mount Vernon, Ohio, and in its employ during January and February, 1870. Having testified to the delivery, at the time alleged, of iron to the amounts alleged, he said on cross-examination:

'I have a distinct recollection of the iron being received at the depot, and of the same being delivered to the teamsters of C. & G. Cooper & Co., but the time of receiving and the date of delivery, and the weights of the iron, I derive from papers and books.'

The defendants objected to so much of the answers as related to the time of receiving and delivery, and the weights, on the ground that the papers and books referred to by the witness were not attached to his deposition or offered in evidence; and that the non-production was not in any manner accounted for; and on the further ground that the witness did not state, and that it did not otherwise appear that the papers and books were written or kept by him or by any one in the usual course of business. The court overruled the objections, and permitted the part of the answer objected to to be read, stating that the fair presumption was that the books and papers referred to were the books kept by the witness in the course of his business as railroad agent. The defendants excepted.

The plaintiffs then showed by several witnesses that the iron was shipped to the defendants from the plaintiffs' manufactory in Baltimore, in pursuance of written orders from the defendants to them, the orders being signed in the firm name of C. & G. Cooper & Co., and that the iron shipped was marked C. & J. Cooper & Co., and shipped on board the Baltimore and Ohio Railroad by the plaintiffs so marked, at Baltimore, a few days prior to the dates mentioned in the deposition of White, and that the bills of lading for these shipments were mailed by one of the plaintiffs to C. & J. Cooper & Co., Mount Vernon, Ohio, and never came back to the plaintiffs to their knowledge, and that they would have known it if they had come back.

No evidence was given of any partnership of the plaintiffs, nor evidence of any express agreement on the part of the defendants, to pay any interest on the bills or account; nor express evidence that the account sued upon had been adjusted by the defendants.

It was shown, however, that the plaintiffs at Baltimore, shortly after they shipped the iron in question, had drawn a draft on the defendants, at Mount Vernon, which had been returned for non-acceptance.

The court charged the jury—

1. That it was not necessary for the plaintiffs to prove the partnership or joint liability of the defendants, because such proof was rendered unnecessary by the statute of Illinois.

2. That it was unnecessary for the plaintiffs to prove that they were partners or joint payees, because such proof was rendered unnecessary by the same statute.

3. That the jury, if they found for the plaintiffs, should allow interest in their estimates of damages on the account from the date of the receipt by the defendants of the last item of the iron, at the rate of six per cent. per annum.

Verdict and judgment having been given accordingly, the defendants brought the case here.

Mr. S. W. Packard, for the plaintiffs in error:

1. The evidence of White as to dates of receiving and delivery, and as to weight, were plainly inadmissible, and its reception is of itself ground of reversal.

The statute of the State of Illinois does not take this case out of the common-law rule, that in an action ex contractu against several, the plaintiff at common law must prove a joint contract or liability. The act is expressly limited to actions 'against two or more defendants as partners or joint obligors or payors.' And the Supreme Court of Illinois, in construing the act, say:

'When they are sued as partners they should be described as such in the declaration.'

The mere fact that the plaintiffs have in the commencement of their declaration added to the names of the defendants the words 'copartners doing business as C. & G. Cooper & Co.,' does not amount to an averment that they contracted or promised as partners. It is descriptio personarum, mere surplusage, and has been so held by the Supreme Court of Illinois in a similar case arising under this same statute.

2. Interest was not allowable. In Illinois the whole subject of interest is regulated by statute, and this statute has received a construction by the courts of Illinois in Sammis v. Clark et al., a case which was for goods sold. The Supreme Court of Illinois, after citing the statute, say:

'It is a rule in the construction of statutes that the expression of one thing is the exclusion of another, and it may well be insisted, when the legislature has enumerated a variety of cases, in which creditors shall be allowed to receive interest, that it was not their intention to permit them to demand it in the cases not enumerated.

'The claim of the plaintiff is on an open account, and it is manifest they are not entitled to interest under the statute unless it be under that clause which allows interest on money withheld by an unreasonable and vexatious delay of payment.

'It follows from these positions that the simple forbearance of the plaintiffs to proceed in the collection of their debt, from 1845 to 1848, does not show anything vexatious on the part of the defendant, or such a case as will of itself entitle the plaintiffs to interest.'

Neither, in this case, can any 'liquidating accounts between the parties and ascertaining the balance' be set up.

Mr. O. K. A. Hutchinson, contra.

Mr. Justice HUNT delivered the opinion of the court.

title: Cooper & Company v. Coates & Company


text: Talk:Cooper & Company v. Coates & Company


text:
Cooper & Company v. Coates & Company/Opinion of the Court

The objections in this case are, none of them, serious in their character.

By the rules of common law it is certainly necessary that parties who sue as co-plaintiffs, alleging themselves to be partners, shall make proof of that allegation. The same is true of persons who are alleged to be copartners, and sued as such as defendants. By the statutes of Illinois the rule of law is changed in this respect unless a plea in abatement is interposed, or verified pleas are filed denying the execution of a writing set up. The statute rendered unnecessary in this case proof of the partnership or joint liability of either the plaintiffs or defendants.

The objection to the evidence of the witness, White, in stating the dates of delivery and the weight of the iron is not practical. If we suppose the evidence to be stricken out, as requested, the result of the case must necessarily be the same. It would then stand thus: The witness, White, testifies that he knows of the delivery to the defendants of certain plates of iron, forwarded by the Baltimore and Ohio Railroad Company, in January and February, 1870; that the freight bills were paid by the defendants, and that the defendants made no complaint that the amount of the iron was less than it should be. The plaintiffs then proved by other witnesses that the four bills of iron were shipped by them by the Baltimore and Ohio Railroad to the defendants in pursuance of written orders from them, marked C. & J. Cooper & Co., a few days prior to the dates mentioned in White's deposition; that the bills of lading for the iron were mailed to the defendants, and that they never came back to the plaintiffs. This was prim a facie evidence of the delivery of the iron as specified, and, no proof to the contrary being offered, it became conclusive. The plaintiffs' case is as well without White's evidence as with it. The defendants suffer no injury by its retention, and have, therefore, no legal cause of complaint.

The objection to the allowance of interest was not well taken. So far as the case shows, this was the only transaction that ever took place between the parties; and it is not pretended that any payments were made or articles furnished by the defendants which could give the transaction the character of a mutual account. It was simply the case of a bill of goods furnished upon a written order, and a bill of lading of the articles at once mailed to the defendants. No objection was made by the defendants to the articles or to the account. A draft was drawn upon the defendants for the amount, which they refused to accept. This was equivalent to a demand of payment. An account (assuming this to be such) draws interest after liquidation, and it is considered liquidated after it is rendered, if no objection is made.

A sale of goods without a term of credit given is liquidated when contracted, and after the account is presented and impliedly admitted, the defendants are in default and chargeable with interest.

JUDGMENT AFFIRMED.


text: Talk:Cooper & Company v. Coates & Company/Opinion of the Court


text:
Smith v. Nichols

APPEAL from the Circuit Court for the District of Massachusetts.

Smith, a holder of a patent from the United States, filed a bill, on the 19th of November, 1868, against Nichols, in the court below, to enforce and protect his rights as patentee. The subject-matter of the patent was an elastic woven fabric, especially adapted to use in forming gores for what are known as Congress or gaiter-boots, though applicable to other uses.

On the 22d of January, 1870, he filed a disclaimer of right to certain matters included in his patent, and on the 27th of May, 1872, of certain other matters so included, both being alleged to have been included through inadvertence and mistake. These disclaimers were made in virtue of the seventh and ninth sections of the Patent Act of 1837; sections which read thus:

'SECTION 7. Whenever any patentee shall have through inadvertence, &c., made his specification of claim too broad, claiming more than that of which he was the original or first inventor, some material and substantial part of the thing patented being truly. . . his own, any such patentee. . . may make disclaimer of such parts of the thing patented as the disclaimant shall not claim to hold by virtue of the patent, &c., which disclaimer shall be in writing, &c., and recorded in the Patent Office. . . . But no such disclaimer shall affect any action pending at the time of its being filed except so far as may relate to the question of unreasonable neglect or delay in filing the same.

'SECTION 9. Whenever by mistake, &c., any patentee shall have, in his specification, claimed to be the original and first inventor or discoverer of any material or substantial part of the thing patented, of which he was not the first and original inventor or discoverer,. . . in every such case the patent shall be deemed good and valid for so much of the invention or discovery as shall be truly and bon a fide his own. . . . And every such patentee, &c., shall be entitled to maintain a suit at law or in equity on such patent for any infringement of such part of the invention or discovery as shall be bon a fide his own. . . . But in every such case in which a judgment or verdict shall be rendered for the plaintiff he shall not be entitled to recover costs against the defendant unless he shall have entered at the Patent Office, prior to the commencement of the suit, a disclaimer of all that part of the thing patented which was so claimed without right: Provided, however, that no person bringing any such suit shall be entitled to the provisions contained in this section, who shall have unreasonably neglected or delayed to enter at the Patent Office a disclaimer as aforesaid.'

The defendants, relying on Wyeth v. Stone, a case decided by Story, J., set up that in consequence of these disclaimers being filed after the suit was brought, the suit could not be entertained under the said seventh section, inasmuch as the concluding part of that section prevented the disclaimer from affecting any action 'pending at the time of its being filed;' and the suit thus stood as one of a patentee with a patent for things which he confessed were already known; a void patent, therefore. And, in addition, that as to the second disclaimer-that filed on the 27th of May, 1872, and, therefore, more than four years after the bill was filed-the second proviso of the ninth section about unreasonable neglect and delay in entering it at the Patent Office applied.

But the court did not consider this a sufficient reason for sending the complainant out of court and compelling him to file a new bill; and it therefore heard the case on its merits.

Proceeding then with a general statement as to these.

The fabric patented, as limited by the two disclaimers, was asserted in the bill to be a new manufacture, and that its distinguishing merit consisted in the fact that while it was extremely elastic it might be shaped or cut either crosswise or bias without detriment to its elastic properties; the rubber cords, which gave to it those properties, being so held by the weft threads of the fabric that they could not 'creep' or slip so as to withdraw themselves from their proper position, by any force of tension that might be needed in adapting them to their intended use.

It appeared, indeed, that owing to the excellent manner of weaving, and perhaps from other causes, the fabric had gone into extensive use, and for the especial purpose of elastic gores in gaither-boots was in fact the only fabric now largely used. The evidence, however, showed that a fabric substantially the same in construction and possessing virtually the same properties, had been known and used in this country previous to the fabric produced and patented by Smith, and that the superiority of the fabric patented was due solely either to improved machinery or to the greater mechanical skill employed in the formation of the fabric, by which an excellence in degree was obtained, but not one in kind.

The court accordingly dismissed the bill. And the complainant took this appeal.

Mr. Charles Mason, for the appellant; Messrs. George Gifford and Benjamin Dean, contra.

Mr. Justice SWAYNE stated the case more particularly, and delivered the opinion of the court.

title: Smith v. Nichols


text: Talk:Smith v. Nichols

title: Talk:Smith v. Nichols


text:
Smith v. Nichols/Opinion of the Court

The bill is founded upon a patent, and was filed by the appellant. It charges infringement. Its object and prayer are to have the defendant enjoined from infringing further, and required to account for the profits he has wrongfully made.

The original patent was issued to the complainant on the 5th of April, 1853. On the 28th of March, 1867, it was extended for seven years. It was subsequently reissued in three divisions, as follows: Reissue No. 2656, June 18th, 1867, division A, for improvements in weaving; reissue No. 3014, June 20th, 1868, division B, for improvements in woven fabrics; and reissue No. 2844, January 14th, 1868, division C, for improvements in looms for weaving. Division B is the only one to be considered in this case.

In the specification the loom and process for weaving corded elastic india-rubber fabrics are described, and the excellence of such fabrics so woven, and the points in which they are superior to fabrics not so woven, are pointed out and insisted upon. The claim is thus expressed:

'What, therefore, I claim as my invention in this subdivison of my patent is—

'The corded fabric, substantially as hereinbefore described, in which the cords are elastic and held between the upper and under weft threads, and separated from each other by the interweaving of the upper and under weft threads with the warp threads in the spaces between the cords, and only there, substantially as above shown.'

This bill was filed on the 19th of November, 1868.

On the 22d of January, 1870, the complainant filed a disclaimer of any fabric in which the warp and weft threads are so interwoven between the elastic cords as to form strips of shirred cloth between and by the contraction of the elastic cords-the warp threads in his improved fabric being, as he declared, only interwoven with the weft threads-for the purpose of binding them tightly around the elastic cords. On the 27th of May, 1872, he filed a disclaimer of 'any fabric in which the weft threads are so interwoven with the warp threads that the former are not brought halfway around each of said cords, so as to gripe them in such a way as not to permit said elastic cords to slip between said weft threads, in case said cords are cut crosswise or bias.'

The substance of the specification as limited by the disclaimers may be thus summarized: The elastic cords are placed side by side, equidistant from each other. They are stretched several times their normal length. In the spaces between the cords warp threads are placed parallel with the cords, and of less size. The cords remain stationary. The warp threads are thrown open by the machinery of the loom. Every alternate thread is thrown upwards and the intermediate one downwards. What is termed a 'shed' is thus formed above the cords and one under them. Through each of these sheds a weft thread is passed by means of a shuttle. One of the shuttles is thus passed above and the other below all the rubber cords. After both the weft threads have been driven home by the lathe, the position of the warp threads is inverted by the treadle. Sheds are thus formed on the opposite sides of the cords. Weft threads are then again passed across the fabric. This process is continued until the weaving is completed.

The weft threads form the only covering on the upper and under side of the cords. When their tension ceases after the weaving is done the cords contract in length and increase proportionately in thickness. The weft threads are necessarily brought into proximity with each other. They partially imbed themselves in the cords, hold them firmly, and prevent them from slipping back, if cut anywhere, while at the tension which subsisted when the weaving took place. So the weft threads cling tightly to the rubber cords in every degree of tension to which they may be subjected. Each of the former grasps firmly each of the latter half round.

The points with respect to this litigation, which the complainant claims as covered by his patent, we understand, are that fewer warp threads are used, that the tightness of the weaving is greater, that the rubber cords in all stages of tension are more firmly and effectually held in his fabric than in any which preceded it,-and especially, the manner in which the weft threads, one above and the other below, grasp each of the rubber cords half round.

It is objected that the disclaimers having been made after the filing of the complainant's bill, cannot avail him in this case. Upon a fair construction of the seventh and ninth sections of the act of 1837, we think they could be made as well after as before the commencement of the suit. It would, in such case, be the duty of the court to see that the defendant was not injuriously surprised, and to impose such terms as right and justice might require. The question of unreasonable delay would be open for the consideration of the court, and the complainant could recover no costs. We see no reason for turning a party out of court to renew the litigation after filing the disclaimer, thus subjecting both parties to the delay and expense which must necessarily follow, and without any benefit to either. We cannot believe such to have been the intention of Congress. #fn-s-s

The defence mainly relied upon is want of novelty; in other words, the prior public use of the things patented.

The counsel for the appellant admits expressly that an elastic fabric with silk on one side and cotton on the other, one woven with two shuttles, one woven with stationary elastic cords, and one with elastic cords covered above and below solely by weft threads, were known and in public use by themselves separately before the alleged invention of the complainant. It is also admitted that suspender webbing of different kinds, some provided with elastic cords having strips of cloth interwoven between them, and another class without the strips of cloth and similar to the complainant's, 'except that the weft threads in pairs were not made to grasp the elastic cords in the manner described in the complainant's specification,' also in like manner preceded his invention. The proof to the same effect, less the exception named, is voluminous and conclusive. It is unnecessary particularly to refer to it. The testimony is equally full as to webbing for shoe gores. That, made in the same way as the suspender webbing, also came into public use and was largely sold at as early a period.

The testimony of Hotchkiss establishes conclusively that-also prior to the defendant's invention-he made and sold suspender webbing with what were called binding warps between the rubber warps, with weft threads which 'went over all the rubber warps, and under all the rubber warps,' and that the fabric was woven while the rubber cords were in a state of tension. He says further, that he had never known suspender webbing made by American manufacturers in any other way. There is a large mass of other testimony relative to the case in this aspect, but it is deemed unnecessary to pursue the subject further.

The evidence before us leaves to the complainant none of the particulars claimed as of his invention, except perhaps greater tightness of the weaving, a firmer grasping of the elastic cords by the weft threads half round, above and below, and greater beauty and value of the fabric. The entire ground of the controversy between the parties is reduced to this narrow isthmus, and the question presented for our determination is one rather of law than of fact.

A patentable invention is a mental result. It must be new and shown to be of practical utility. Everything within the domain of the conception belongs to him who conceived it. The machine, process, or product is but its material reflex and embodiment. A new idea may be ingrafted upon an old invention, be distinct from the conception which preceded it, and be an improvement. In such case it is patentable. The prior patentee cannot use it without the consent of the improver, and the latter cannot use the original invention without the consent of the former. But a mere carrying forward or new or more extended application of the original thought, a change only in form, proportions, or degree, the substitution of equivalents, doing substantially the same thing in the same way by substantially the same means with better results, is not such invention as will sustain a patent. These rules apply alike, whether what preceded was covered by a patent or rested only in public knowledge and use. In neither case can there be an invasion of such domain and an appropriation of anything found there. In one case everything belongs to the prior patentee, in the other, to the public at large.

The question before us must be considered in the light of these rules. All the particulars claimed by the complainant, if conceded to be his, are within the category of degree. Many textile fabrics, especially those of cotton and wool, are constantly improved. Sometimes the improvement is due to the skill of the workmen, and sometimes to the perfection of the machinery employed. The results are higher finish, greater beauty of surface, and increased commercial value. A patent for the better fabric in such cases would, we apprehend, be unprecedented. The patent in the present case rests upon no other or better foundation.

DECREE AFFIRMED.

title: Smith v. Nichols/Opinion of the Court


text: Talk:Smith v. Nichols/Opinion of the Court


text:
City of Sacramento v. Fowle

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

The city of Sacramento having been incorporated March 26th, 1851, was reincorporated by act of April 25th, 1863.

The act enacts as follows:

'§ 2. The city of Sacramento shall be governed by a board of trustees consisting of three members.

'§ 3. The officers of the city of Sacramento shall be a first, second, and third trustee, who shall constitute a board of trustees.

'§ 4. The board of trustees shall be designated as follows: The first trustee shall be president of the board of trustees and general executive officer of the city government.

'§ 5. The president of the board of trustees shall be the head of the police and general executive head of the city.'

No mayor is mentioned in the charter.

This statute being in force, Mrs. Fowle, owning certain unpaid bonds of the city, issued in October, 1852, under the former incorporation, brought suit in 1866 against the city, in the District Court of the twelfth judicial district of the State of California, a court of general common-law jurisdiction, to obtain judgment on them.

The California Process Act (also in force when suit was brought) enacts that if a suit be against a corporation, the summons shall be served by delivering a copy thereof 'to the president, or other head of the corporation, secretary, cashier, or managing agent thereof.'

The officer to whom the writ was directed, returned it with a certificate that he had served it on the defendant, the city of Sacramento, by delivering a copy of the summons, with the complaint attached, to Charles Swift, president of the board of trustees of said defendant, whom he knew to be such president and head of said corporation.

No defence was made to the suit, and judgment was entored by default, in favor of the plaintiff, in March, 1867, for $40,000.

On this judgment Mrs. Fowle brought suit in the Circuit Court of the United States for the District of California, and a properly certified copy of the judgment roll in the former case being offered by the plaintiff in evidence, it was objected to by the defendant, on the grounds—

1st. That it appeared from the said roll that the defendant had not been served with summons as required by statute; the president of the board of trustees not being the president of the city corporation.

2d. That by the terms of the original charter of Sacramento, in force when the bonds sued on were issued, the charter was liable to be altered from time to time, or repealed, and because, in 1863, it had been altered in such a way as that while it was enacted that the city might be sued by its name on any bond, it was provided that this should be only when such bond had been made after April 25th, 1863: which was not the case here.

The court below admitted the evidence, and judgment was given for the plaintiff. The city now brought the case here on exception to the evidence.

Messrs. A. A. Sargent and D. F. Lake, for the plaintiff in error:

1. The president of the board of trustees was not the president of the corporation. The corporation had no president, and there was no 'head' to the corporation, within the meaning of that word, as used in the statute, except the board of trustees sitting as such; each officer had distinct duties prescribed for him in the charter, and each was head of his distinct department.

The summons not having been served on the defendant as provided by statute, the default of the defendant in the Twelfth District Court was irregularly entered, and the judgment was void.

2. A municipal corporation cannot be sued except as allowed to be by statute; and under the charter of Sacramento, the bondholders took, subject to the contingency, that the charter might be so altered that they must look to payment of their claims without an action of the ordinary kind at law against the city.

Mr. H. F. Durant, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: City of Sacramento v. Fowle


text: Talk:City of Sacramento v. Fowle

title: Talk:City of Sacramento v. Fowle


text:
City of Sacramento v. Fowle/Opinion of the Court

That the summons was served in conformity with the California Process Act we think quite clear.

If the president of the board of trustees is not the 'head of the corporation,' it is difficult to see who is, for no other executive or head officer is named in the charter. Indeed, it would seem that a service upon any officer of less grade would not be a compliance with the statute. The legislature doubtless intended, in pursuance of a wise public policy, to guard the city from the consequences which have sometimes followed legislation permitting suits to be prosecuted against municipal corporations where process was served upon any officer of the city government. It is easy to see that in such a case the public interests might suffer, but no reasonable apprehension could be indulged in this regard if the chief officer intrusted by the people with the management of their affairs was notified of the pendency of judicial proceedings.

The decision on this point disposes of the case, for if the service was in conformity with the statute, the court had jurisdiction of the party and the subject-matter, and the judgment is conclusive against the city, until reversed on direct proceedings, by the Supreme Court of the State.

It is hardly necessary to say that the question of the original liability of the city on the bonds sued upon is not open here. If the city had any defence to make to them, it should have been made when suit was brought against it in the State court.

JUDGMENT AFFIRMED.


text: Talk:City of Sacramento v. Fowle/Opinion of the Court