text:
United States v. Holliday

THESE were indictments, independent of each other, for violations of the act of Congress of February 13, 1862, which declares that if any person shall sell any spirituous liquors 'to any Indian under the charge of any Indian superintendent or Indian agent appointed by the United States, he shall, on conviction thereof before the proper District Court of the United States,' be fined and imprisoned.

This act of 1862 was amendatory of an act of June 30, 1834, declaring that if any person sold liquor to an Indian in the Indian country he should forfeit five hundred dollars.

These indictments were both in District Courts of the United States-the one against Haas in the District Court for Minnesota (there not being at the time of the indictment any Circuit Court as yet established in Minnesota), and that against Holliday in the District Court for Michigan,-and under the act of August 8, 1846, authorizing the remission of indictments from the District to the Circuit Courts, they were both removed into the Circuit Courts; the case of Haas, after he had been convicted of the offence charged and while a motion in arrest of judgment was pending and undetermined in the District Court.

IN HAAS'S CASE,

The indictment charged that the defendant had sold the liquor to a Winnebago Indian, in the State of Minnesota, under the charge of an Indian agent of the United States; but it did not allege that the locus in quo was within the reservation belonging to the Winnebago tribe, or within any Indian reservation, or within the Indian country.

Upon this indictment the judges of the Circuit Court were divided in opinion on the questions:

1. Whether, under the act of February 13, 1862, the offence for which the defendant is indicted was one of which the Circuit Court could have original jurisdiction?

2. Whether, under the facts above stated, any court of the United States had jurisdiction of the offence? IN HOLLIDAY'S CASE,

The indictment charged the defendant with selling liquor, in Gratiot County, Michigan, to one Otibsko, an Indian under the charge of an Indian agent appointed by the United States.

The plea alleged that Gratiot County was an organized county of the State of Michigan; that it was not within the Indian country; that no Indian reservation existed within it; that Otibsko was one of the Chippewa Indians mentioned in certain treaties which were referred to; that Otibsko accepted lands in Michigan, and entered into possession of them under a certificate from the United States; that the tribal organization of the said Chippewa Indians was dissolved by one of the treaties, except in so far as it was necessary to preserve it for the purposes of the same; and that Otibsko had voted at elections for county and town officers.

The plea set forth also certain provisions of the constitution and laws of Michigan which confer political rights upon civilized male inhabitants of Indian descent, natives of the United States and not members of any tribes, and also judicial rights and privileges upon all Indians.

The government, by replication admitting the truth of the matters contained in the plea, alleged that, pursuant to the existing treaties with the said Chippewas, and the regulations and practice of the Interior Department and Indian Bureau, the chiefs and head men of the said Chippewas continued to be the representatives of the tribe; that the Indian agent for Michigan was required to deal with the said chiefs and head men of the said Chippewas as such, and to take the receipts of such chiefs and head men for money and property delivered to the said Chippewas under the provisions of the treaties.

And alleged further, that the said Otibsko recognized and acknowledged the chiefs and head men of the Chippewas of Saginaw, and resided with the said Indians on the lands in Isabella County, selected by them under the treaty of 1855; and that the Indian agent of the United States annually distributed a sum of money and treaty property for the benefit of the said Otibsko.

On this state of facts the Circuit Court was divided on the following points:

1. Whether the act of Congress, of February, 1862, does by proper construction extend to a sale of liquor, such as is charged in the indictment, under the circumstances stated in the plea and replication?

2. Whether, if construed to so extend, Congress has the constitutional right to so enact?

3. Whether, under the circumstances stated in the plea and replication, the Indian named can be considered as under the charge of an Indian agent within the meaning of the act?

4. Whether, upon the facts stated in the plea and replication, the said Otibsko was a civilized Indian, not a member of any tribe within the meaning of the constitution of Michigan, and whether he was a citizen of the State of Michigan?

5. Whether the provisions of the constitution and laws of the State of Michigan, stated in the plea of the defendant, were, under all the facts and circumstances stated in said plea and replication, and, under the constitution, the said treaties and act of Congress of 1862, a bar to said indictment?

The record in this case showed that the Secretary of the Interior and the Commissioner of Indian Affairs had decided that it was necessary, in order to carry into effect the provisions of the treaty referred to and set up by Holliday, that the tribal organization should be preserved.

In both cases the questions were now, by certificate of division, here.

Mr. Romeyn, for Holliday; no counsel appearing for Haas: The cases in many features are alike. To some extent, the argument for one serves for both; though the first question certified in Haas's case does not arise in Holliday's.

As respects Holliday the question is, whether the United States can punish, as a criminal offence, the selling of liquor to an Indian who is connected with a tribal organization only so far as to receive his allowance from the United States, through the chief or head man? who is a land-owner in his own individual right, and a tax-payer in one of the States of the Union; when the liquor was sold, not on an Indian reserve, but in an organized county of a State; a district as exclusively under the jurisdiction of the State as the city of New York is under the jurisdiction of the State of New York. If so, then if the liquor had been sold to this Indian at the Astor House in New York, the proprietors of that house would be liable, on the same principles, and to the same extent as this defendant.

I. On every principle, the act of 1862 is to receive a strict construction. It is a penal act. It is of doubtful constitutionality.

No violence is done to the language of the statute, by confining its operation to Indians under the charge of an agent within the Indian country; for it was the evident policy of the act to protect the Indian, within the Indian country; and in addition, that policy is sufficiently sustained by the construction that the introduction of liquors into the Indian country shall be illegal.

Suppose that a civilized, educated Indian, a citizen of another State, should accept a glass of wine at a military post; would that be an offence under this act? We should think not.

II. If the act of 1862 be so construed as to embrace this charge, under the admitted facts of the case, then its enactments are beyond the powers of Congress, in conflict with the rights of the State, and are so far void.

As the offence was not committed in any place within the exclusive jurisdiction of the United States, the right of Congress to legislate for its punishment can be founded only on the notion that it was an offence against Federal sovereignty. But Congress has never claimed, and cannot lawfully exercise the power of legislating for Indians, except as tribes or quasi domestic nations. When they lose this relation and character, and become citizens of a State, or as individuals become separated from their ordinary tribal connections, they pass from the jurisdiction of the United States. The limits of the agency are established, as all know, by tribes or geographical boundaries. The general duty of the agent is to manage and superintend the intercourse with the Indians. This assumes their separate and social condition.

The facts show that, in the case of Otibsko, to whom in Holliday's case the liquor is said to have been sold, the tribal organization was, in fact, dissolved. The lands given to the Chippeways, it is plain, were owned in severalty; and all that remained of the tribal association was connected with the convenience of paying annuities. This Indian, moreover, became a citizen of the State of Michigan.

Conceding, for the sake of the argument, that the Indian was a member of a subsisting tribe, and under the charge of an Indian agent; still, after he came within the limits of the State, away from the Indian country, or any Indian reservation, he became subject to the laws of the State, and it was incompetent for the United States to take cognizance of the act charged, and to punish it as a crime against the Federal government. The whole subject of the regulation of the use and sale of liquors, within the State, and away from Indian reservations, is a matter for the State, in the exercise of its police powers. The State of Michigan has exercised this power, and prescribed the penalty, and the offence was within the jurisdiction of that State.

This legislation, as construed by the government in this case, cannot be sustained under the power of Congress to regulate commerce with foreign nations, and among the several States, and with the Indian tribes; for the act of 1862 is not, in any way, a regulation of commercial intercourse.

After a thorough argument, contra, by Mr. Assistant Attorney-General Ashton, who went into the whole policy of the government as respects sales of liquor to the Indians, setting forth the statutes regarding them, and the decisions which bore upon them, Mr. Justice MILLER delivered the opinion of the court.

title: United States v. Holliday


text: Talk:United States v. Holliday

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

title: Talk:United States v. Holliday


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

The questions propounded to this court in the two cases have a close relation to each other, and will be disposed of in one opinion.

The first question on which the judges divided in the case against Haas is, 'whether, under the act of February 13, 1862, the offence for which the defendant is indicted was one of which the Circuit Court could have original jurisdiction.'

Previous to the act of July 15, 1862, no Circuit Courts existed in the districts of Texas, Florida, Wisconsin, Minnesota, Iowa, and Kansas, but the District Courts in those districts exercised the powers of Circuit Courts. It was during this time that Haas was indicted and convicted; and a motion in arrest of judgment was pending and undetermined when that act went into effect. That act, by its own terms, transferred to the Circuit Courts which it created-one of which was in the District of Minnesota-all causes, civil or criminal, which might have been brought, and could have been originally cognizable in a Circuit Court. If, then, the offence for which Haas was indicted was one which could have been originally cognizable in a Circuit Court, it was properly in that court for final determination; otherwise it was not.

The act under which the indictment was found says, that if any person shall commit the offence therein described, 'such person shall, on conviction before the proper District Court of the United States, be imprisoned,' &c.

So far as the act itself provides a court for its enforcement it is the District Court, and not the Circuit Court.

An examination, however, of the several acts, which define generally the relative jurisdiction of the District and Circuit Courts of the United States, leaves no doubt that, in regard to all crimes, and offences, it was intended to make the jurisdiction concurrent, except in cases where the punishment is death. In that class of offences the jurisdiction is exclusive in the Circuit Courts. The present offence, however, is created after all of those acts were passed, and the law defining it only confers jurisdiction on the District Court. Can the statutes, or any of them which give the Circuit Courts concurrent jurisdiction of offences cognizable in the District Courts, be held to have a prospective operation in such case as the present?

The 12th section of the Judiciary Act, which created both the Circuit and District Courts, says of the former, they 'shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the District Courts of crimes and offences cognizable therein.'

This provision has distinct reference in its first clause to cases of which the Circuit Courts shall have exclusive jurisdiction, and, in its latter clause, to cases in which they shall have concurrent jurisdiction with the District Courts. The former include all crimes and offences where some statute does not provide the contrary. The latter include all crimes and offences cognizable in the District Courts.

The Judiciary Act of 1789, of which these provisions constitute a part, is the one which, for the first time under our Federal Constitution, created the courts which were to exercise the judicial function of the government. The powers conferred by that act on the several courts which it created, and the lines by which it divided the powers of those courts from each other, and limited the powers of all of them under the Constitution, were intended to provide a general system for the administration of such powers as the Constitution authorized the Federal courts to exercise. The wisdom and forethought with which it was drawn have been the admiration of succeeding generations. And so well was it done that it remains to the present day, with a few unimportant changes, the foundation of our system of judicature, and the law which confers, governs, controls, and limits the powers of all the Federal courts, except the Supreme Court, and which largely regulates the exercise of its powers.

It cannot be supposed, under these circumstances, that in giving to the Circuit Courts jurisdiction of all crimes and offences cognizable in the District Courts, it was intended to limit the grant to such cases as were then cognizable in those courts. In fact, there was, at the time this statute was passed, no such thing as an offence against the United States, unless it was treason, as defined in the Constitution. It has been decided that no common law crime or offence is cognizable in the Federal courts. The Judiciary Act organizing the courts was passed before there was any statute defining or punishing any offence under authority of the United States. This clause, then, giving the Circuit Courts concurrent jurisdiction in all cases of crime cognizable in the District Courts, must, of necessity, have had reference to such statutes as should thereafter define offences to be punished in the District Courts.

The offence, then, for which Haas was indicted, although declared by that act to be cognizable in the District Courts, was, by virtue of the act of 1789, also cognizable in the Circuit Courts.

The second question in that case is this: whether, under the facts above stated, any court of the United States had jurisdiction of the offence?

The facts referred to are, concisely, that spirituous liquor was sold within the territorial limits of the State of Minnesota and without any Indian reservation, to an Indian of the Winnebago tribe, under the charge of the United States Indian agent for said tribe.

It is denied by the defendant that the act of Congress was intended to apply to such a case; and, if it was, it is denied that it can be so applied under the Constitution of the United States. On the first proposition the ground taken is, that the policy of the act, and its reasonable construction, limit its operation to the Indian country, or to reservations inhabited by Indian tribes. The policy of the act is the protection of those Indians who are, by treaty or otherwise, under the pupilage of the government, from the debasing influence of the use of spirits; and it is not easy to perceive why that policy should not require their preservation from this, to them, destructive poison, when they are outside of a reservation, as well as within it. The evil effects are the same in both cases.

But the act of 1862 is an amendment to the 20th section of the act of June 30, 1834, and, if we observe what the amendment is, all doubt on this question is removed. The first act declared that if any person sold spirituous liquor to an Indian in the Indian country he should forfeit five hundred dollars. The amended act punishes any person who shall sell to an Indian under charge of an Indian agent, or superintendent, appointed by the United States. The limitation to the Indian country is stricken out, and that requiring the Indian to be under charge of an agent or superintendent is substituted. It cannot be doubted that the purpose of the amendment was to remove the restriction of the act to the Indian country, and to make parties liable if they sold to Indians under the charge of a superintendent or agent, wherever they might be.

It is next asserted that if the act be so construed it is without any constitutional authority in its application to the case before us.

We are not furnished with any argument by either of the defendants on this branch of the subject, and may not therefore be able to state with entire accuracy the position assumed. But we understand it to be substantially this: that so far as the act is intended to operate as a police regulation to enforce good morals within the limits of a State of the Union, that power belongs exclusively to the State, and there is no warrant in the Constitution for its exercise by Congress. If it is an attempt to regulate commerce, then the commerce here regulated is a commerce wholly within the State, among its own inhabitants or citizens, and is not within the powers conferred on Congress by the commercial clause.

The act in question, although it may partake of some of the qualities of those acts passed by State legislatures, which have been referred to the police powers of the States, is, we think, still more clearly entitled to be called a regulation of commerce. 'Commerce,' says Chief Justice Marshall, in the opinion in Gibbons v. Ogden, to which we so often turn with profit when this clause of the Constitution is under consideration, 'commerce undoubtedly is traffic, but it is something more; it is intercourse.' The law before us professes to regulate traffic and intercourse with the Indian tribes. It manifestly does both. It relates to buying and selling and exchanging commodities, which is the essence of all commerce, and it regulates the intercourse between the citizens of the United States and those tribes, which is another branch of commerce, and a very important one.

If the act under consideration is a regulation of commerce, as it undoubtedly is, does it regulate that kind of commerce which is placed within the control of Congress by the Constitution? The words of that instrument are: 'Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.' Commerce with foreign nations, without doubt, means commerce between citizens of the United States and citizens or subjects of foreign governments, as individuals. And so commerce with the Indian tribes, means commerce with the individuals composing those tribes. The act before us describes this precise kind of traffic or commerce, and, therefore, comes within the terms of the constitutional provision.

Is there anything in the fact that this power is to be exercised within the limits of a State, which renders the act regulating it unconstitutional?

In the same opinion to which we have just before referred, Judge Marshall, in speaking of the power to regulate commerce with foreign states, says, 'The power does not stop at the jurisdictional limits of the several States. It would be a very useless power if it could not pass those lines.' 'If Congress has power to regulate it, that power must be exercised wherever the subject exists.' It follows from these propositions, which seem to be incontrovertible, that if commerce, or traffic, or intercourse, is carried on with an Indian tribe, or with a member of such tribe, it is subject to be regulated by Congress, although within the limits of a State. The locality of the traffic can have nothing to do with the power. The right to exercise it in reference to any Indian tribe, or any person who is a member of such tribe, is absolute, without reference to the locality of the traffic, or the locality of the tribe, or of the member of the tribe with whom it is carried on. It is not, however, intended by these remarks to imply that this clause of the Constitution authorizes Congress to regulate any other commerce, originated and ended within the limits of a single State, than commerce with the Indian tribes.

These views answer the two questions certified up in the case against Haas, and the two first questions in the case against Holliday.

The third question in Holliday's case is, whether, under the circumstances stated in the plea and replication, the Indian named can be considered as under the charge of an Indian agent, within the meaning of the act?

The substance of the facts as set out in those pleadings is, that the Indian to whom the liquor was sold had a piece of land on which he lived, and that he voted in county and town elections in Michigan, as he was authorized to do by the laws of that State; that he was still, however, so far connected with his tribe, that he lived among them, received his annuity under the treaty with the United States, and was represented in that matter by the chiefs or head men of his tribe, who received it for him; and that an agent of the government attended to this and other matters for that tribe. These are the substantial facts pleaded on both sides in this particular question, and admitted to be true; and without elaborating the matter, we are of opinion that they show the Indian to be still a member of his tribe, and under the charge of an Indian agent. Some point is made of the dissolution of the tribe by the treaty of August 2, 1855; but that treaty requires the tribal relation to continue until 1865, for certain purposes, and those purposes are such that the tribe is under the charge of an Indian superintendent; and they justify the application of the act of 1862 to the individuals of that tribe.

Two other questions are propounded by the judges of the Circuit Court for the Eastern District of Michigan, both of which have relation to the effect of the constitution of Michigan and certain acts of the legislature of that State, in withdrawing these Indians from the influence of the act of 1862.

The facts in the case certified up with the division of opinion, show distinctly 'that the Secretary of the Interior and the Commissioner of Indian Affairs have decided that it is necessary, in order to carry into effect the provisions of said treaty, that the tribal organization should be preserved.' In reference to all matters of this kind, it is the rule of this court to follow the action of the executive and other political departments of the government, whose more special duty it is to determine such affairs. If by them those Indians are recognized as a tribe, this court must do the same. If they are a tribe of Indians, then, by the Constitution of the United States, they are placed, for certain purposes, within the control of the laws of Congress. This control extends, as we have already shown, to the subject of regulating the liquor traffic with them. This power residing in Congress, that body is necessarily supreme in its exercise. This has been too often decided by this court to require argument, or even reference to authority.

Neither the constitution of the State nor any act of its legislature, however formal or solemn, whatever rights in may confer on those Indians or withhold from them, can withdraw them from the influence of an act of Congress which that body has the constitutional right to pass concerning them. Any other doctrine would make the legislation of the State the supreme law of the land, instead of the Constitution of the United States, and the laws and treaties made in pursuance thereof.

If authority for this proposition, in its application to the Indians, is needed, it may be found in the cases of the Cherokee Nation v. The State of Georgia, and Worcester v. The State of Georgia.

The results to which we arrive from this examination of the law, as regards the questions certified to us, is, that both questions in the case against Haas must be answered in the affirmative; and in the case against Holliday, the first three must be answered in the affirmative, and the last two in the negative.

It is, however, proper to say, that in the fourth question in the latter case is included a query, whether the Indian, Otibsko, was a citizen of the State of Michigan?

As the views which we have advanced render this proposition immaterial to the decision of the case, the court is to be understood as expressing no opinion upon it.


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


text:
De Sobry v. Nicholson

THE Judiciary Act declares that the assignee of a chose in action shall not recover in a suit brought on it in the Federal courts, 'unless a suit might have been prosecuted in such courts, &c., if no assignment had been made.'

With this provision in force, a partnership in Pennsylvania, of which a certain Nicholson was one member, and Armstrong and others the remaining partners, made a contract with De Sobry, of Louisiana, 'to build a mill' on his plantation. The Pennsylvania partnership, after the contract was made, went into liquidation, Nicholson remaining the liquidating partner; and after it had gone into liquidation, Armstrong became a resident of Louisiana, where, as already said, De Sobry also lived.

De Sobry not fulfilling his part of the contract, Nicholson brought suit against him in the Louisiana Circuit. Nicholson's declaration, or 'complaint.' as the old narratio appears to be called in that State, originally French, set forth the contract of De Sobry (entitled of Louisiana) with the Pennsylvania firm, the firm's then citizenship in Pennsylvania, the dissolution of the firm 'before the completion of the contract,' and that he, Nicholson, of Pennsylvania, 'became liquidator of its affairs and owner of all its contracts.' The plaintiff then represented that 'the contract was fully executed on his part,' and that the mill had been completely 'put up and delivered, according to the contract on his part.'

The defence of De Sobry, denying generally the allegations of Nicholson, and that Nicholson was 'the transferree' of the Pennsylvania firm, and showing further wherein the contract was not fulfilled, prayed that judgment might be rendered, 'in reconvention (cross-demand), in his favor, against the said Nicholson.'

On the trial the defendant proved the fact that, at the time of the suit brought, Armstrong was, with De Sobry, a resident of Louisiana, and moved to dismiss the case for want of jurisdiction, under well-known principles of the court, for identify of citizenship between the parties suing.

The court overruled the motion; and the defendant excepting, the case, after verdict and judgment for the plaintiff, came here on error.

Mr. Dobbin, for the plaintiff in error: The citizenship of the parties to the proceeding is no doubt sufficiently set forth; but it is not so as to that of the members of the firm with whom De Sobry, the here plaintiff in error, is alleged to have entered into the contract on which the action is founded. The allegation as to their citizenship does not refer to the time of the institution of the suit, as it should do, but to the date of the contract. Since that date and before bringing the suit it was changed. The language of the Judiciary Act would seem to establish, by itself, without need of interpretation, that whenever there is a suit upon a chose in action assigned, the assignor must be (and of course must be distinctly alleged to be) a citizen of a different State from that of the defendant, at the time of suit brought. And this is conceded by the authorities.

That the defendant in error claims as assignee, is manifest from the petition itself; for, according to its allegations, he was but one of the original contractors, and only became 'owner' of the contract upon the dissolution of the firm, the date of which is not set forth. Of course, he could only have acquired the sole interest in a joint contract by assignment of the interests of his co-contractors. Nor does he even aver that he himself wholly performed the contract, or that no part of it had been performed before he became owner. On the contrary, he only and cautiously charges that he became owner 'before the completion of the contract,' and the part which he alleges that he performed was simply that of 'delivering' and 'putting up' the mill; not that of 'building' it, which was the heaviest part of the job for which the contract provided.

The case, therefore, stands upon the ordinary ground of a chose in action assigned, and is not only not excluded from the operation of the Judiciary Act, but seems to be clearly brought within it by the decision in McMicken v. Webb, in this court.

It may be added, with propriety, that the abuse of jurisdiction, against which the section of the Judiciary Act relied on by us was levelled as a matter of policy and in prevention of fraud, is quite as likely to occur by contrivance, in cases of original joint interests, alleged to have become afterwards sole, as in cases where the assignor and assignee had, originally, no connection in the transaction.

Mr. Wills, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

title: De Sobry v. Nicholson


text: Talk:De Sobry v. Nicholson

title: Talk:De Sobry v. Nicholson


text:
De Sobry v. Nicholson/Opinion of the Court

No exception can be considered here which was not taken in the court below.

The point relied upon to reverse the judgment is not that the copartners of the plaintiff below could not assign their interests in the original contract so as to vest in him the right to sue in his own name alone, but that one of the assignors was, at the time of the commencement of the action, a citizen and resident of the same State with the defendant, and that hence the Circuit Court had no jurisdiction.

To this there are two answers.

The objection to jurisdiction upon the ground of citizenship, in actions at law, can only be made by a plea in abatement. After the general issue, it is too late. It cannot be raised at the trial upon the merits. If a plea in abatement be filed with the general issue, the latter waives the former. Where a plea in abatement is relied upon, the burden of proof rests upon the defendant. In equity, the defence must be presented by plea or demurrer, and not by answer. The court below properly overruled the motion.

We think, also, that a new contract between the plaintiff and the defendant, and its execution by the plaintiff, are substantially averred, and that the original contract is set out as inducement. It is said by the counsel for the plaintiff in error, that if such a contract be alleged, it is done with careful ambiguity and indefiniteness. Conceding this to be so, it is a case, not of a defective title, but of a title defectively stated, which is always cured by the verdict.

JUDGMENT AFFIRMED WITH COSTS.


text: Talk:De Sobry v. Nicholson/Opinion of the Court


text: Barrel v. Transportation Company

title: Barrel v. Transportation Company


text: Talk:Barrel v. Transportation Company

title: Talk:Barrel v. Transportation Company


text:
Barrel v. Transportation Company/Opinion of the Court

MOTION by Mr. Browing (Mr. Rae, contra) to dismiss an appeal from the Circuit Court of the United States for the Northern District of Illinois.

The record showed that no appeal had been prayed or allowed in the Circuit Court. Accompanying the record, however, was a petitioner addressed to that court, which prayed for an appeal. This petition was dated on the 20th July, 1865, ten days after the decree, and was filed on the same 20th of July, in the office of the clerk of the Circuit Court.

The motion to dismiss in this case must prevail. The proceeding in the case is not warranted by any act of Congress, and we have no authority to act on such a petition. The filing of it in the clerk's office, even if it could be regarded as addressed to the Circuit Court, would be of no avail, unless accompanied by an allowance of an appeal by that court; and in the case before us there was no allowance.

CASE DISMISSED.


text: Talk:Barrel v. Transportation Company/Opinion of the Court


text:
The Iron-Clad Atlanta

AN act of Congress of July 17, 1862, provides that prizes taken by the navy at sea, when of equal or superior force to the vessel or vessels making the capture, shall be the sole property of the captors, and when of inferior force shall be divided equally between the United States and the officers and men making the 'capture.' When the United States thus receive prize-money it is passed to the Naval Pension Fund.

With this act in force the Atlanta, a vessel of the late rebel confederacy, was captured by our navy and condemned, with her armament and stores, as prize by the District Court for Massachusetts.

Before the vessel could be brought into port for adjudication she was taken by the Secretary of the Navy for the use of the government, and her appraised value, $351,000, deposited with the proper officers of the Treasury subject to the order of the court.

In distributing this fund so deposited the question arose between the United States and certain of the captors whether the captured vessel was of superior or of inferior force to the force which had captured her; the importance of the question being, of course, in this,-that if she was of superior, the captors would get the whole of her value: while, if of inferior, they would have to share it with the government.

The facts of the capture were thus:

The Atlanta-originally the British ship Fingal, and converted, by enormous labor and the cost of near a million of dollars, into a powerful iron-clad for the destruction of the government fleets, then blockading the rebel ports and coast-had been for some time previous to her capture anchored in Wassau Sound, Georgia. Two monitors of the United States, the Weehawken and the Nahant, guarded the entrance to prevent her egress. The captain of the Weehawken, Captain Rodgers, U.S. N., was the senior and commanding officer of the government force in that region, and the pilot was on board his monitor. The presence of the monitors and their character and force were known to the rebels. In the belief that the Altnata was of superior force to both, she was sent down the sound to capture or destroy them; 'General Beauregard,' the log stated, or as Captain Rodgers testified, 'the general commanding the rebel army in the military department of Charleston and Savannah'-following with a select party in a wooden gunboat behind to witness her anticipated conquest. It was early in the morning of the seventeenth of June, 1863, that her approach was descried by the monitors. These immediately prepared for action. The Weehawken, laying further up the sound than the Nahant, slipped her cable, and steamed towards the sea; the Nahant weighed her anchor and, under orders of Captain Rodgers, followed in the wake of the Weehawken. The vessels took their course towards the sea for the purpose of gaining time to get fully ready for engagement. After going out some distance, the Weehawken turned suddenly toward the enemy. At this moment the Atlanta opened her fire on the Nahant, which was then the nearer vessel to her, but the shot did not take effect. The Nahant soon afterwards rounded, following the Weehawken, and the latter vessel, being now within between three and four hundred yards of the Atlanta, opened her fire, and when within two hundred yards repeated it. The first shot of the Weehawken, weighing four hundred pounds and fired with thirty-five pounds of power,-the largest shot, it is said, ever fired in naval warfare,-struck the Atlanta upon the side of her casemate, knocking a hole in it, but without going through, and scattering over the inclosed decks great quantities of wood and and iron splinters, some of dangerous size, wounding several men, and prostrating on deck, insensible, many others. As many as forty persons were knocked down and either wounded or stunned for the moment by the effects of this shot, and it demoralized the entire crew. The next discharge carried a ball which struck the top of the pilot-house, crushing and driving down the bars on the top and sides, wounding both pilots and one helmsman, and stunning the other helmsman as well as the wounded men. These men fell in a heap on the floor of the pilot-house, and the rebel officers said prevented any one from getting up into it. In the words of Captain Rodgers, 'the first shot took away the desire to fight, and the second the ability to get away.' Such, in short, was the terrific effect of the Weehawken's shot, that the Atlanta in a few minutes surrendered. She had, in fact, struck after the first shot, though, in the smoke, her white flag was undistinguishable from a blue one used as her battle-flag. In the meantime, the Nahant was advancing with all practicable speed, making directly for the Atlanta, the captain reserving his fire until he could lay his vessel alongside the enemy, thinking that it could then be delivered with greater effect. The shortness of the period between the first fire of the Weehawken and the surrender of the Atlanta prevented the captain of the Nahant from accomplishing his purpose.

The capture of this iron-clad Atlanta was one of the early conclusive evidences that the rebel confederacy could not stand at all before the power of the government; and it was justly regarded as a great event of the war. In its bearings upon naval science, and particularly upon naval gunnery, it has been thought to be the most significant battle of modern times except that of the Monitor and Merrimack.

The monitors were of 844 tons each; one had eighty-four men, the other eighty-five; together, 1688 tons, and one hundred and sixty-one men. They were as nearly equal to each other as could be. The Atlanta was of about 1000 tons, and had a hundred and forty-three men.

Upon this case the court below, considering that the Nahant had, in contemplation of law, taken part in the capture, and, therefore, that the capturing force was superior to the vessel captured, decreed one-half the fund to the captors, and the other half to the United States.

From this decree the officers and crew of the Weehawken appealed; a certain Hodge appealing also; the ground of his appeal being that the entire officers, crew, and hands-eighty-five persons in number-had by power of attorney appointed him thier agent to represent their interest in the prize-money, binding themselves, their heirs and executors, to pay him one per cent. of all moneys which should be collected and severally adjudged to them as prize-money, and by the instrument of appointment requesting 'the proper officers of government to pay the said fee to their said agent as a charge or fee, to be deducted from the award of prize-money to be paid to us, previous to paying over the same for distribution:' and that the court below had distributed the whole fund between the government and the captors without taking any notice at all of him, Mr. Hodge aforesaid.

Mr. Reverdy Johnson, for the appellants; the Attorney-General, Mr. Speed, and the Assistant Attorney-General, Mr. Ashton, not opposing, having in fact left the court-room in company of each other soon after the case was called.

What is a capturing force? Is it the vessel which took the only active part in the capture, or does it include the other vessels, present or within signal distance, who took no part in the action, and in no way contributed to the successful result? There were on the Union side two monitors, the Weehawken and Nahant. The Weehawken, when she approached the enemy, was the leading vessel, followed by the Nahant. The Weehawken engaged the Atlanta, and compelled her to surrender before the Nahant could get into action or had fired a gun; she was, therefore, really the capturing force, unaided by the other monitor; and had the Nahant been absent, it is evident that all the circumstances and events of the fight, and the result, would have been precisely the same. The result was due simply to the tremendous effect of a single shot; a shot, the like of which the world never heard of, and of which science had not before conceived. The old rules of warfare were superseded by the use of novel engines of destruction. Whoever was first struck was conquered. Whoever fired that shot was victor. The Weehawken was notoriously a vessel of inferior force to her antagonist. Will it be said that the presence of other vessels has a great moral influence on the result (even if these other vessels do not take an active part), by discouraging the one side and encouraging the other? There might be some force in this argument, had the Atlanta suddenly fallen in with the two monitors at sea by the lifting of the fog or the breaking of the day, or had she in any other manner come unexpectedly upon them; but no such moral influence existed in this case; for the Atlanta trusting in her strength, really very great, and supposed to be capable of resisting any shot, well knowing, too, what the opposing force was-came down produly and with deliberation to attack the two monitors, with the conviction that she could take or destroy both. The result was caused simply by the extraordinary and novel sort of armament, of which neither she, nor till then any one but its inventors, had formed a conception.

The officers of all these iron-clad monitors have had, may it please the court, a most severe duty to perform. They have lived in iron dungeons, under artificial ventilation, never being able, as any one who has once seen a monitor will readily believe, to appear on deck when afloat: the sea was constantly beating over them. They have been, too, without much hope and with only a slender chance of prize-money, as they were not cruising vessels. This in fact, we believe, is the only instance in which any of them has made a dollar of prize-money. This engagement was most important in its effects on the war. It did the highest honor to the naval reputation and resources of the United States abroad. If considerations of liberality are in any way to influence a decision, this is certainly a strong case for their exercise. We recall-needing but slightly to change it-the language of a great judge of past time in England, when speaking of a memorable case before him: 'Affection, indeed, may never press on Judgment; yet it is a case in which no man who hath any apprebension of nobleness, but would lay hold of a twig or a twine-thread to support so honorable a claim.' Nearly every prize taken during the was has been by a superior force, as most of the prizes have been blockade-runners. In almost every case, therefore, the United States has received, for the Naval Pension Fund, half of the amount. That fund has thus, it is said, obtained nine to ten millions of dollars from captures. The income of the sum received is five-fold of all demands upon it. If it gets nothing here, there is nobody to complain, nobody to suffer.

It is obvious that the government is desirous that if the court can give the whole of this money to the gallant Rodgers and his crew, it will give it. The attorney-general and his young assistant-remarkable for the closeness and fidelity, as for the ability also, with which they protect in ordinary every interest of the government-have left this case undefended, as if willing to show, what without doubt they feel, that if the letter of the statute calls for a construction in favor of the government-which we deny-the case itself, and the just reward of bravery, and the spirit of the whole country, demand another.

As respects Mr. Hodge. The appointment given him by the captors was lawful and proper; as much for their benefit and for the interests of justice as for his own. He has done his duty. The vessel has been condemned as prize. The constant changes that are occurring in the naval service will render it impossible for him to trace up the eighty-five officers and men of these vessels, scattered as they are in the time since which the capture occurred. Some are dead. The Weehawken, it is matter of well-known and sad history, has been sunk, and between twenty and thirty of her crew drowned. Except under a decree of the court, Mr. Hodge is left without resource for collecting the percentage voluntarily allowed him by the brave captors.

Mr. Justice FIELD delivered the opinion of the court.

title: The Iron-Clad Atlanta


text: Talk:The Iron-Clad Atlanta

title: Talk:The Iron-Clad Atlanta


text:
The Iron-Clad Atlanta/Opinion of the Court

The act of Congress of July 17, 1862, provides that if the prize taken be of equal or superior force to the capturing vessel or vessels, the whole shall go to the captors, but if it be of an inferior force the proceeds shall be divided equally between them and the United States. The court below decided that the prize was of an inferior force, and, therefore, awarded only one-half of the proceeds to the captors; and from this decision the appeal is taken.

There is no dispute about the facts of the case; they are stated with accuracy and clearness in the opinion of the learned district judge, and we can do little more than repeat his argument, and affirm his conclusion upon the point presented for our consideration.

The Atlanta had been for some time previous to her capture in Wassau Sound, and the monitors, the Weehawken and the Nahant, guarded its entrance to prevent her egress. The presence of the monitors and their character and force were known to the rebels, but in the belief that the Atlanta was of superior force to both, she was sent down the sound to capture or destroy them. It was early in the morning of the seventeenth of June, 1863, that her approach was descried. The monitors immediately began to prepare for action. The Weehawken, lying further up the sound than the Nahant, slipped her cable, and steamed towards the sea; the Nahant weighed her anchor and followed in the wake of the Weehawken. Both vessels took this course for the purpose of gaining time to get fully ready for the engagement. The Weehawken first turned toward the enemy. At this moment the Atlanta opened her fire on the Nahant, then being the nearest vessel to her, but her shot did not take effect. The Nahant soon afterwards rounded, following the Weehawken, and the latter vessel, when within between three and four hundred yards of the Altanta, opened her fire, and when within two hundred yards repeated it, and such was the destructive effect of her shot, that the Atlanta in a few minutes surrendered. In the meantime, the Nahant was advancing with all practicable speed, making directly for the Atlanta, the captain reserving his fire until he could lay his vessel alongside the enemy, thinking that it could then be delivered with greater effect. The shortness of the period between the first fire of the Weehawken and the surrender of the Atlanta prevented the captain of the Nahant from accomplishing his purpose.

The point presented is whether, under these circumstances, the Nahant is to be regarded as one of the capturing vessels within the meaning of the act of Congress. The importance of the point is this: the Weehawken was confessedly inferior in force to the Atlanta, and if she is alone to be regarded in the comparison of forces, the whole prize-money goes to the captors. On the other hand, the combined force of the two monitors was superior to that of the Atlanta, and if both are to be regarded as capturing vessels, only one-half of the prize-money goes to the captors, and the decree must be affirmed.

The mere fact that the only shot fired, and the only damage done, was by the Weehawken, is not decisive. Other circumstances must be taken into account in determining the matter-such as the force, position, conduct, and intention of the Nahant. The two vessels were known to be under the same command, and of nearly equal force. The Atlanta descended the sound to attack both, and governed herself with reference to their combined action. It is not reasonable to suppose that her course would have been the one pursued, had she had only the Weehawken to encounter. Besides, the fire of the Atlanta was directed entirely to the Nahant, and of course diverted from her consort. It is possible that a different result might have followed had the fire been turned upon the Weehawken. This diversion must be considered in every just sense of the terms as giving aid to her. Again, the power of the shot of the Weehawken had evidently surprised the officers of the Atlanta, who found their vessel speedily disabled and their crew demoralized. The advance upon her, at full speed, of a second monitor, of equal force, ready to inflict similar injuries, may have hastened the surrender. It can hardly be supposed that the approach of the second monitor did not enter into the consideration of the captain and officers of the Atlanta. If the shot from the guns of one of the monitors could, in a few moments, penetrate the casemate of the Atlanta, crush in the bars of her pilot-house, and prostrate between forty and fifty of her men, her captain might well conclude that the combined fire of both would speedily sink his vessel and destroy his entire crew. It cannot be affirmed, nor is it reasonable to suppose, that any of the incidents of the battle would have occurred as they did, if the Nahant had not been present in the action.

We concur, therefore, in the view of the learned district judge, that in the comparison of the forces engaged in the conflict, the Nahant must be included with the Weehawken.

We fully appreciate the observations of counsel as to the arduous service of the officers and crews of our iron-clad monitors, but considerations of this character, or admiration of conduct of highest merit are not allowed to influence our decision, and however much we might feel disposed to do so, we are not at liberty to award to the gallant officers and men of the Weehawken and Nahant the entire proceeds of the prize. Our duty is simply to announce and apply the law; and there our power ends.

The appeal of Hodge, the agent of the officers and crews of the monitors, is dismissed. The court below had no power to award payment from the prize-money of the compensation which was agreed upon between these parties. He must apply, under his power of attorney, to the proper officers of the government charged with the distribution of the money.

AFFIRMED.


text: Talk:The Iron-Clad Atlanta/Opinion of the Court


text:
Peralta v. United States

APPEAL from the decree of the District Court for Northern California on a claim presented in 1853, by Maria de Valencia, for herself and others, heirs of Teodora Peralta, for a piece of land in California on which they were living; the claim being founded on a grant alleged by them to have been made in the spring of 1846 to the said Teodora by Governor Pio Pico. The case had come of course to the District Court on an appeal from the Board of Land Commissioners established by the act of March 3, 1851, to settle private land claims in California.

The expediente which was produced by the claimant showed that in 1845, the Senora Peralta petitioned the alcalde of San Rafael to obtain a report from the neighbors or colindantes of the tract which she desired to solicit from the government, in order that the report might accompany her petition to the governor for a grant of the land. On the same day the magistrate certified that the colindantes had stated before him that the sobrante or surplus asked for was vacant and might be granted. On the 8th November, 1845, she presented a petition to the prefect, in which she set forth her previous application to the alcalde and the report of that officer, and requesting him to take such further proceedings as might be necessary. This petition was referred by the prefect to the sub-prefect, and by the latter to the first judge of San Rafael. On the 29th November the first judge reported the land to be vacant. On the 20th December the prefect recommended to the governor that the title issue. And on the 18th February, 1846, the governor attached to the expediente an order to that effect.

The expediente containing all these documents was ''produced by the claimant. The archives contained no record or trace whatever of any of these proceedings''.

There seemed no reason, perhaps, to doubt the genuineness of any of the papers except the last and most important of all, viz., the order by the governor that the title issue. This order and the signature were evidently in Pico's handwriting, but the court below noted that his signature on this particular document bore little resemblance to his signatures elsewhere found in the archives, the uniform and striking peculiarities of which it had frequently commented upon; but, on the contrary, resembled the mode of signing his name, and especially of forming the letter 'P' in it, adopted by him at a much later period.

No explanation was offered of the circumstance that the expediente was found in the claimant's possession.

The Senora Peralta, mother of the petitioner, belonged, it was said, to a well-known and good family, and was a native of the region, with a perfectly fair character. One witness swore that she was occupying the land in 1844; another that she was on it even a year earlier.

The petition itself (or an amended petition rather, which differed in important respects from the original petition) set forth that title, a written document of concession signed by Pio Pico, did in fact issue, granting the land to the said Teodora Peralta; that, as the petitioner was informed and verily believed, the said document of concession, and also a map of the land, and a certificate of possession thereof, were delivered to the said Teodora Peralta, at the time of the said granting of said land, and within the knowledge and distinct recollection of the petitioner, were held and possessed by the said Teodora during her lifetime; that until within a short period the petitioner, and, as she was informed and verily believed, the rest of the heirs, had believed the same to be on file along with the said expediente in this cause; that the petitioner had made and caused to be made diligent search therefor without finding the same, and that she verily believed that the same had become lost or destroyed since the death of the said Teodora.

One of the daughters of Madame Peralta swore to her reception of the grant, and that for about a year previous to its delivery she had been in occupancy under a provisional license, although the case showed no record evidence of the same.

The Board of Land Commissioners, admitting that the proofs of occupancy and cultivation were satisfactory, and that, if the parties had used the proper diligence in procuring the issue of the grant and judicial measurement and formal possession, there might have been no difficulty in the case, still considered that in the absence of the issue of the grant, and a segregation of the land, they could do nothing but reject the claim.

The District Court was apparently of this same view: observing that the reports of the alcalde, the prefect, &c., showed that the Senora Peralta would have had no difficulty in obtaining the land, if she had followed out her original purpose; that the case was thus a hard one for the claimant, or rather her heirs, since she herself was now dead; but still declaring that if by accident or neglect she had failed to get what she might have laid a good foundation for obtaining, and but for accident or neglect might perhaps have got, in fact, the misfortune was one which that court could not remedy.

Messrs. Speed, A. G., and Wills, for the United States, relied on numerous decisions in this court, of which Romero v. United States, a leading case on the subject, and which Mr. Wills noted had been argued by Mr. Black, adverse counsel here, in opposition to the positions which he would be compelled now to maintain, was one. The counsel also contended that the case had been even more than benignantly enough considered by the Land Commission and by the court below; it being, as was evident from the amendment of the petition in important particulars (afterthoughts plainly), and from the positive oath made by Madame Peralta's daughter as to having seen a petition of which no record could be found, and from other circumstances not necessary to be detailed, a case less of misfortune and accident than of a fraudulent kind.

Mr. J. S. Black, contra, acknowledging the rule set up by the other side to be generally true, sought to take the case out of it as an exception; he denied all fraud, and referring to United States v. Alviso, where there was no archive evidence, and to other cases, submitted that the difficulty, suggested by the fact that the expediente was not found in the archives but was produced by claimants, was fairly explained by the reasonable presumptions, arising from the proof of a bona fides from the very beginning, confessed both by the Land Commission and the District Court, of the meritorious qualifications of the grantee; of the integrity of her documentary evidence; of its transmission to and reception from the government authorities; of the undoubted continuity of her possession and claim, accompanied by actual occupation and cultivation, as the permanent family home for a period of some ten years, and under a well-known and recognized claim of title; that it was also met and explained by the irregularity and want of system shown, as he argued, by various cases which he cited from the Appendix to Hoffman's Reports and from the California Archives and Records, to have existed in the registry and record of Mexican land grants as aforesaid. He argued also that it was accounted for by the analogy of the numerous other cases which could be cited, and which showed, as he considered, that in many claims of undoubted bona fides and merit which had been held on behalf of the government to be good and entitled to patent, the expedientes were in some manner returned to the Mexican grantees, and were thus not found in the archives, but in the possession of the claimants themselves, and were by them produced before the Land Commission or United States District Courts, unauthenticated by any archive evidence whatever.

He had himself, it was true, as much perhaps as any counsel at this bar, supported as a general rule, the rule which the other side would apply as an inflexible one to this case. But on previous cases he was stating a rule, not the exceptions to it. Of course he did not overlay his arguments as if he were writing a text-book, with a consideration of everything that might, could, would, should, or possibly ought to qualify his general propositions. The case here was different. It was an exception to a rule, and the rule was to be applied so as to subserve and not so as to destroy justice.

The whole matter rested in judicial construction. It was not an affair of statute. To apply previous decisions on general cases to a case purely exceptional, would be to judge without discrimination. 'Statutes,' said Hobart, C. J., 'are like tyrants: where they come they make all void; but the common law is like a nursing father, and makes void that part only where the fault is and leaves the rest.' Even statutes, however, and statutes where the language is positive-the statute of frauds being a well-known instance-have been largely qualified so as to prevent rules intended for general cases operating to do injustice in such special ones, as they were really meant not for.

Mr. Justice DAVIS delivered the opinion of the court.

title: Peralta v. United States


text: Talk:Peralta v. United States

title: Talk:Peralta v. United States


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

This claim cannot be sustained, according to the rules of evidence which this court has established to determine the validity of Mexican titles in California. We are asked to relax the severity of those rules in this case, because it is alleged to be meritorious. Courts administer justice by fixed rules, which experience and wisdom have demonstrated are necessary in the investigation of truth. There will sometimes, in applying those rules to the various affairs of life, be cases of individual hardship; but this does not prove that the rules are unwise, or not the best that can be adopted for the purposes of judicial investigation. The right of property, as every other valuable right, depends in a great measure for its security on the stability of judicial decisions.

The treaty of Guadalupe Hidalgo imposed the obligation on this government to protect titles to land in California acquired under Mexican rule. The country was new, and rich in mineral wealth, and attracted settlers, whose industry and enterprise produced an unparalleled state of prosperity. The enhanced value given to the whole surface of the country by the discovery of gold, made it necessary to ascertain and settle all private land claims, so that the real estate belonging to individuals could be separated from the public domain. Yielding to this necessity, and in obedience to the obligations of the treaty, Congress passed an act on the 3d of March, 1851, to accomplish this purpose. The laws and usages of the Mexican government, as administered in California before the conquest of the country, and the principles of equity, were prescribed as rules which should govern the courts in adjudicating the questions of title. Very many claims were tested by these rules, and found to be valid, and were confirmed; others were imperfect and could not be recognized. Then commenced a struggle, which has never been abandoned, to induce the courts to fritter away the act of Congress, and substitute parol proof for record evidence. The history of the cases in this court from California, show the extent of the struggle and the result. We have refused to allow oral testimony to prevail when archive evidence was necessary.

The colonization regulations of 1828 constitute the 'laws and usages' by which the validity of a Mexican title is to be determined. It is not important to restate the nature and extent of those regulations, for they have been so often commented on that they are familiar to the profession. The Mexican nation attached a great deal of form to the disposition of its lands, and required many things to be done before the proceedings could ripen into a grant. But the important fact to be noticed is, that a record was required to be kept of whatever was done. This record was a guard against fraud and imposition, and enabled the government to ascertain with accuracy what portions of the public lands had been alienated. The record was the grant, and without it the title was not divested. The governor was required to give a document to the party interested, which was evidence of title, and enabled him to get possession; but this 'titulo' did not divest the title, unless record was made in conformity with law.

Written documentary evidence, no matter how formal and complete, or how well supported by the testimony of witnesses, will not suffice if it is obtained from private hands and there is nothing in the public records of the country to show that such evidence ever existed. But it may be said that the archives of the country may be lost or destroyed, and if so, that the party in interest should not suffer. This is true; and if the claimant can show, to the satisfaction of the court, that the grant was made in conformity to law and recorded, and that the record of it has been lost or destroyed, he will then be permitted to introduce secondary evidence of it. But the absence of record evidence is necessarily fatal, unless that absence can be accounted for. Testing the case in hand by these principles of law, it cannot be confirmed. There is neither a grant nor archive evidence. If there had been a grant according to law, the expediente would have remained in the archives; but there is no trace of it there, and it is produced from private hands, which tends strongly to show that the governor never saw it. If the grant had been made, and recorded in the proper office, possession would have been given to the grantee of the lands which were conveyed. This was not done, and no reason is assigned for the omission. There are circumstances in proof which are calculated to cast suspicion on this claim, but we forbear to notice them.

It is said that an equity arises on account of possession. But the bare possession is too limited to raise any substantial equity, because the claimant only occupied the place about a year before the conquest of the country.

DECREE AFFIRMED.


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


text:
United States v. Cutting

THE Internal Revenue Act of 30th June, 1864, declares by its 99th section as follows:

'All brokers and bankers doing business as brokers, shall be subject to pay the following duties and rates of duty upon the sales of merchandise, produce, gold and silver bullion, foreign exchange, promissory notes, stocks, bonds, or other securities, &c., and shall also be subject to all the provisions, &c., of the act for making returns, assessments, and collection of the duties.'

The ninth paragraph of the 79th section says:

'Brokers shall pay $50 for each license. Every person, firm, or company (except such as hold a license as banker), whose business it is as a broker to NEGOTIATE purchases or sales of stocks, exchange, bullion, coined money, bank notes, promissory notes, or other securities, shall be regarded as a broker, [and shall make oath or affirmation that all their transactions are made for a commission.']

On the 3d March, 1865, Congress passed an act to amend the former act. This last act amends the former, by inserting, after the words other securities (given above in italics) the words 'for themselves or others;' and by striking out from the paragraph that part of it included above in brackets.

In this state of the statutes, as assumed by the court, Cutting & Co., duly licensed as 'brokers,' besides having bought and sold stocks, bonds, and securities for others, had sold on their ''own account other stocks, bonds, and securities, of which they were themselves the owners at the time. On these last'' they refused to pay any duty; and suit being brought by the United States to recover the duty, the question here, on error to the New York Circuit, was, whether they had refused rightfully; in other words, whether one licensed as a 'broker' only, was liable to pay duty on his own stocks sold on his own account. The Circuit Court thought that he was not.

The case, which largely concerned, of course, both the government and great numbers of persons in all our large cities, was thoroughly and ably argued by Mr. Speed, A. G., for the United States, and by Messrs. Allen, Burrill, and Evarts, contra. The matter involving, however, nothing but the construction of a statute of immense length hastily drawn of necessity in many of its provisions, and liable to be amended indefinitely, even the ability which marked the discussion would not compensate the general reader for the space which any presentation of it would require.

Mr. Justice GRIER delivered the opinion of the court.

title: United States v. Cutting


text: Talk:United States v. Cutting

title: Talk:United States v. Cutting


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

The act of 30th June, 1864, is entitled 'An act to provide ways and means for the support of government and for other purposes.' It imposes specific taxes upon a large list of articles manufactured or sold, and prescribes the mode of assessing and collecting them. In addition to these, it imposes certain taxes on all persons carrying on certain 'trades or professions' enumerated. The persons on whom this tax is assessed receive what is called a 'license,' which is the evidence of permission to exercise such trade or calling in consequence of payment of this tax or duty. Among these is the trade or employment of broker, mentioned in the ninth paragraph of the 79th section of the act. Brokers are required to pay fifty dollars for a license. The act also defines the term broker to 'be one whose business it is to negotiate purchases or sales of stocks, exchange, coined money, bank notes, promissory notes, or other securities.' Other species of the genus broker are indicated by the affix to the general term, as well as by special definition, such as 'pawn brokers,' 'cattle brokers,' &c., &c. Besides, the tax paid by auctioneers and the different species of brokers under form of a license or permission 'to prosecute their trade, business, or profession,' they were required to pay certain duties on the sales made by them respectively.

Being by means of these licenses brought within the cognizance of the revenue officers, and into a quasi-official relation with them, they were required to make 'returns, assessment, and collection of these duties,' under certain penalties. By the 99th section 'all brokers, and bankers doing business as brokers, shall be subject to pay the following duties and rates of duty upon this sales of merchandise, produce, gold and silver bullion, foreign exchange, promissory notes, stocks, bonds, or other securities, &c., and shall also be subject to all the provisions of the act for making returns, assessments, and collection of the duties.'

Now, the 9th paragraph of the 79th section, after defining a broker to be one 'whose business it is, as a broker, to negotiate purchases or sales,' &c., required him also to make oath 'that all his transactions are made for a commission.' This clause might have been construed to forbid a licensed broker to purchase or sell stocks, &c., on his own account, so that his sales being made through the interposition of another broker, might be made liable to tax. But it has been construed to release him from the necessity of making any return of sales made for himself, or from paying any tax on such sales.

But there was no good reason why these transactions in stocks, bullion, &c., by a broker, for his own profit, should not be liable to the same tax or duty imposed on those made by him for other parties. Besides, such construction gave great opportunities of evading the tax altogether. To obviate this difficulty, an act was passed on 3d of March, 1865, to amend the act of 30th June, 1864. Among other things it amends the ninth paragraph of section 79, by inserting after the words 'other securities' the words 'for themselves or others,' and by striking out from said paragraph the words 'and shall make oath or affirmation that all his transactions are made for a commission.'

The intention of this amendment might have been better provided for by an amendment of the 99th section, but it cannot be doubted that the meaning of the act was to subject sales made by a broker for himself to the same tax as those made for others.

The definition of a broker will now read, in the section as amended, 'whose business it is, as broker, to negotiate purchases or sales of stocks, exchange, bullion, coined money, bank notes, promissory notes, or other securities, for themselves or others.'

That it was the intention of Congress to subject the sales made by brokers for themselves to the same duties as those made by them for others, cannot admit of a doubt, though it must be admitted their intention is rather obscurely expressed.

VENIRE DE NOVO AWARDED.

[See the next case.-REP.]


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


text:
United States v. Fisk

THE 'Internal Revenue Act,' of 30th June, 1864, 'to provide ways and means for the support of government, and for other purposes,' declares, by its 99th section, as follows:

'All brokers and bankers doing business as brokers, shall be subject to pay the following duties and rates of duty upon the sales of merchandise, produce, gold and silver bullion, foreign exchange, promissory notes, stocks, bonds, or other securities, and shall also be subject to all the provisions of the act for making returns, assessments, and collection of the duties.'

The ninth paragraph of the 79th section of the same act says:

'Brokers shall pay $50 for each license. Every person, firm, or company (except such as hold a license as banker), whose business it is as a broker to negotiate purchases or sales of stocks, exchange, bullion, coined money, bank notes, promissory notes, or other securities, shall be regarded as a broker [and shall make oath or affirmation that all their transactions are made for a commission], provided that any person holding a license as a banker shall not be required to take out a license as a broker.'

On the 3d of March, 1865, Congress passed an act to amend the former act. The last act amends the former by inserting, after the words other securities (given above in italics), the words 'for themselves or others;' and by striking out from the paragraph that part of it above included in brackets.

In this state of the statutes it was decided, in the preceding case of United States v. Cutting, that 'brokers' were liable to pay the duties and rates of duty prescribed by the 99th section of the act of 1864, whether the sales were made for themselves or for others.

In the present case a different question arose.

Fisk & Co. were bankers, doing a general business as such, making a returns, and paying duties and taxes imposed by law upon their capital and deposits. As such they negotiated and sold for the United States large amounts of government securities. At the same time they bought and sold government securities for themselves, and not for others or for a commission.

The distinction, then, between the two cases was:

1. That, in the present case, the defendants were licensed as 'bankers,' and carried on the business of banking and nothing else, and did not act as 'brokers;' while the defendants in the preceding case were licensed as 'brokers,' and did business as such, as well, as on their own account.

2. That the sales by the defendants in this action, upon which the duty was sought to be recovered, were of government securities only, held and owned by them in their own right; while the sales by the defendants in the preceding case embraced other stocks, bonds, and securities, as well as government securities.

On a suit by the government against Fisk & Co., for duties on sales made by them, the question was, whether on these sales they were liable to pay the duties imposed by the 99th section upon 'brokers, and bankers doing business as brokers,' in addition to those imposed upon them as bankers?

The first paragraphs of the 79th section of the act of 1864, which concerns bankers as distinguished from brokers, is as follows:

'Bankers using or employing a capital not exceeding the sum of $50,000, shall pay $100 for each license; when using or employing a capital exceeding $50,000, for every additional $1000 in excess of $50,000, $2.

'Every person, firm, or company, and every incorporated or other bank, having a place of business where credits are opened by the deposit or collection of money or currency, subject to be paid or remitted upon draft, check, or order; or where money is advanced or loaned on stocks, bonds, bullion, bills of exchange, or promissory notes; or where stocks, bonds, bullion, bills of exchange, or promissory notes, are received for discount or sale, shall be regarded a banker under this act.'

The 110th section prescribes the additional duties (beside the license tax) to be paid by 'any person, bank, association, company, or corporation engaged in the business of banking.'

The Circuit Court for New York, where the suit originated, was of opinion that 'bankers' were not liable on such sales as those made in this case. The matter was now brought here by the government on error.

Mr. Speed, A. G., for the United States; Messrs. Allen, Burrill, and Evarts, contra.

Mr. Justice GRIER delivered the opinion of the court.

title: United States v. Fisk


text: Talk:United States v. Fisk

title: Talk:United States v. Fisk


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

In the construction of statutes, it is the duty of the court to ascertain the clear intention of the legislature. In order to do this, courts are often compelled to construe or as meaning and,' and again and as meaning or.'

The purpose and intent of the legislature, in the amendment made to the ninth paragraph, was evidently not to change the correct definition given of the term 'broker,' and to make it mean that every man who sold his own stock was a broker, and liable to pay fifty dollars for a license. The obvious purpose of the amendment was to compel brokers to render an account of all sales made, whether for themselves or others, and to pay the duty on them. As is often the case in statutes, though the intention is clear, the words used to express it may be ill chosen.

The evil intended to be remedied by the amendment was transparent. If the amendment had been properly expressed, it should have been added as a proviso to the 99th section, which relates to the rates of duty to be paid on sales made in the stock-market by brokers or others licensed and doing business as such, and in the preceding case the court have so construed it.

Now, a banker pays a much higher license tax than a broker, and is permitted to 'prosecute or carry on' the business or profession of a broker without paying any further license; but if he prefers, he may not combine that business with his own. The 110th section prescribes the duties to be paid by a banker. It is not amended so as to require him to render an account of his purchases or sales of government stocks for himself. The case before us, therefore, presents no other question than the construction of the 99th section. It enacts that 'all brokers and bankers doing business as brokers shall be subject to the following duties,' &c.

Now, in order to subject a banker to the duties prescribed by this section, we are asked to interpolate the important word 'not,' and to construe it as including bankers who do not, as well as those who do transact 'business as brokers.' This would not be a construction of the statute, but an amendment thereof in direct contradiction of its language. This we do not feel at liberty to make.

JUDGMENT AFFIRMED.


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


text:
Green v. Van Buskerk

THIS was a motion made by Mr. A. J. Parker, in behalf of Green, plaintiff in error, for a supersedeas to stay execution upon a judgment of the Supreme Court of the State of New York.

It appeared that a judgment was entered by the Supreme Court in favor of Van Buskerk, the defendant in error here, which was affirmed in the Court of Appeals, the highest court of law and equity of the State of New York, on the 22d of December, 1865. Upon this affirmance the record was sent to the Supreme Court, with an order directing that court to enter judgment accordingly.

In pursuance of this order, judgment was entered in the Supreme Court, on the 16th of February, 1866, and on the 20th February a writ of error, which had been duly allowed, to this court, was lodged, together with the proper bond and all other papers in due form to stay proceedings, in the clerk's office of the Supreme Court of New York. On the 28th of February, 1866, the attorney for the plaintiffs below directed execution to issue upon the judgment; to prevent which the present motion for supersedeas was made.

The reader will remember, of course, that the Judiciary Act of 1789, by its 25th section, gives a right of re-examination by this court of the judgments of State courts, when 'a final judgment or decree in any suit, in the highest court of law or equity in a State,' involves certain questions, and the decision on them is given in a particular way: and will recall, further, that, by its 23d section, a writ of error is a supersedeas only where the writ is served by a copy thereof being lodged for the adverse party in the clerk's office, where the record remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of; 'until the expiration of which term of ten days,' says the section, 'executions shall not issue.'

Mr. J. B. Gale, against the motion: A party's right to bring a State court judgment here depends upon the 25th section of the Judiciary Act; and that authorizes a review only of a judgment in the highest court of a State in which a decision could be had.

Now, in New York, the highest court of the State is confessedly the Court of Appeals; the Supreme Court, notwithstanding its title, being inferior to it. In this case, the judgment 'complained of' is the judgment of the Court of Appeals. That judgment was given on the 22d of December, 1865. No writ of error was lodged anywhere below until the 20th of February. Of course, it was not lodged within the ten days. The fact that the record may not 'remain' in the court whose 'judgment is complained of,' does not alter the case.

It is almost unnecessary to say, that in contemplation of law the record passed instantly from the Court of Appeals, on judgment being given there, into the Supreme Court below. If, in point of fact, it was delayed in transitu, that gives no advantage to the defendant in it, as regards an appeal. He might, in point of fact, delay such transit himself.

The CHIEF JUSTICE delivered the opinion of the court.

title: Green v. Van Buskerk


text: Talk:Green v. Van Buskerk

title: Talk:Green v. Van Buskerk


text:
Green v. Van Buskerk/Opinion of the Court

We have already held, at this term, in a case from Massachusetts, that when the Supreme Court renders final judgment, and sends the judgment to a court below for execution, and with the judgment the record, a writ of error to review the judgment may be issued to the latter court.

In that case, it is true, no question was made in respect to the operation of the writ as a supersedeas; but we think that the true construction of the act of Congress requires us to hold that a judgment cannot be regarded as final, in the sense of the act, until entered in a court from which execution can issue.

In the case now before us, the record was sent by the Court of Appeals to the Supreme Court, and the judgment was entered in the latter court in conformity with the direction of the former. This was, it is true, the judgment of the Court of Appeals as well as the judgment of the Supreme Court; but it because a final judgment, on which execution could issue only when entered, on the 16th February, 1866, in the Supreme Court, to which the record was returned, and where it remained.

The unsuccessful party had ten days from that entry to take out a writ of error and make it a supersedeas; and he duly availed himself of this right by service of the writ of error on the 20th February, 1866, and giving the required bonds.

The direction to issue execution was given under a mistaken construction of the act; and its issue makes it necessary that a writ to stay the proceedings be sent from this court.

MOTION ALLOWED.


text: Talk:Green v. Van Buskerk/Opinion of the Court


text:
The Sally Magee

APPEAL from a decree of the District Court for the Southern District of New York, condemning as enemy's property the bark Sally Magee and her cargo, captured during the late rebellion; the question before this court being, however, only as to the cargo; the condemnation of the vessel not being appealed from. The case was thus:

Before the commencement of the rebellion, the vessel had been engaged in trade between Richmond and South America. Her outward voyages were usually to Rio Janeiro. She left Richmond upon her last voyage on the 2d of January, 1861-that is to say, about three months before the outbreak of our civil war -with a cargo of flour and domestic goods, shipped by Edmund Davenport & Co., of Richmond, and consigned to Charles Coleman & Co., at Rio. She took in a return cargo of coffee and a small parcel of tapioca. Four bills of lading were given. Three of them were to Coleman & Co.; two for consignments to Davenport & Co.; the third for a consignment to Dunlap & Co. The other bill of lading was to Moore & Co., of Rio, and was for a consignment also to Dunlap & Co. All the goods were to be delivered at Richmond.

The vessel sailed from Rio for Richmond on the 12th of May, 1861. When forty-five days out from Rio, and before any intelligence of the war had reached her, she was captured as prize, and sent to New York, where both the vessel and cargo were libelled in the District Court. Upon the return of the monition, on the 23d of July, 1861, two claims, both made by Fry, Price & Co., of New York, were interposed relative to the cargo. In July, 1863-two years after the proceedings on prize were instituted-both the vessel and cargo were condemned, the latter having been appraised at the considerable sum of $69,000.

One of the claims made by Fry, Price & Co., was in behalf of Coleman & Co., and embraced that part of the cargo (1500 bags of coffee) which was consigned to Davenport & Co. It stated among other things that Coleman & Co., as factors and commission merchants, at Rio Janeiro, 'had been directed to purchase and ship for the account, and to the consignment of Davenport & Co., coffee, if procurable, at not over ten and a half cents a pound; that Coleman & Co. did make the shipment of the cargo above claimed to the consignment of Davenport & Co., but that by the invoice thereof it appeared that the said purchase was not made at or within the said limit; for which cause, Davenport & Co. had refused to receive it as purchased for their account, or otherwise than on the account of the shippers, Coleman & Co., and as agents of necessity for them; and that the said Davenport & Co. had authorized Fry, Price & Co. to receive the same in their place and behalf as aforesaid.'

The claim was supported by the affidavit of Mr. Price of this firm. It alleged 'that the facts above stated' were stated 'from the correspondence of the parties, which he believes to be true.' None of the papers referred to were put in evidence by annexing them to the affidavit or otherwise.

The other claim related to the residue of the cargo-about 2000 bags of coffee-consigned to Dunlap & Co., of Richmond. It was not denied that this was enemy's property. The claimants alleged, however, a lien. Their claim stated that Dunlap & Co. owed them a balance of $35,326, and upwards, and 'that they were authorized and directed by that firm to receive and sell the coffee, and apply the proceeds, as far as necessary, to the payment of the debt, and to hold the balance for the account of the debtor firm.' Like the first claim, this one was supported by the affidavit of Mr. Price, who swore that he stated the above facts 'from correspondence with the firm of Dunlap & Co., and copies of the invoices of the cargo, and believed the same to be true.' But as in the case of the preceding claim, neither correspondence nor copies were produced.

It is necessary here to say that, by act of Congress of March 3, 1863, 'to protect the liens upon vessels in certain cases, and for other purposes,' it is provided, that where any vessel or other property shall be condemned in proceedings authorized by certain preceding acts (against rebels), the court making the decree of condemnation shall, after condemnation and before awarding the distribution of the proceeds of confiscated property, provide for the payment out of the proceeds, of any bona fide claims by any loyal citizens intervening in the prize proceedings, which shall be duly established by evidence.

Mr. Lord, for the claimants: The vessel having been captured before any intelligence of our civil war begun had reached her, the question of intent to break the blockade of our Southern coast so usual a question of late in the court-does not arise.

The question, as to the claim set up for Coleman & Co., is one of enemy's property purely; and as to the other, a question of the protection, under the statute of March 3, 1863, of a lien held by loyal citizens of New York. In both cases we suppose that the onus probandi is with the captors.

I. As respects the claim in behalf of Coleman & Co.

The question is one simply, as we have said, of the enemy status of the claimant; a proprietary question, whether at the time of capture the cargo was the property of neutral or of enemy? Now,

1. A foreign correspondent making a shipment on the order of his principal, but without the limits of the order, does not vest the property in the principal without some act of adoption, or waiver by him. Here there was none.

The doctrine has been uniform in the prize courts, that although goods are ordered by a correspondent, yet if they are subject to rejection by the principal, the property does not pass unless accepted. Several cases to this effect-the Merrimack and others-may be seen in 8th Cranch.

In The Frances, one of them, a British agent in Great Britain, in orders given before the war to purchase goods for the claimants, an American house in New York, made purchases, but deviated from the orders. He said: 'I have exceeded in some articles, and have sent you others not ordered. I leave it with yourselves to take the whole of the two shipments, or none at all, as you please.' The bill of lading and invoice were expressed to be on account of the American consignees. Marshall, C. J., speaking of the consignment in excess of orders, says:

title: The Sally Magee


text: Talk:The Sally Magee

title: Talk:The Sally Magee