text:
Cammeyer v. Newton/Opinion of the Court

Holders of valid letters-patent enjoy, by virtue of the same, the exclusive right and liberty of making and using the invention therein secured, and of vending the same to others to be used, as provided by the act of Congress; and the rule of law is well settled, that an invention so secured is property in the holder of the patent, and that as such the right of the holder is as much entitled to protection as any other property, during the term for which the franchise or the exclusive right or privilege is granted. Seymour v. Osborne, 11 Wall. 516; 16 Stat. 201.

Inventions may be assigned before they are patented: and it appears that Samuel Lewis claims to have been the original and first inventor of the patented improvement; that he, without having applied for a patent, assigned all his right, title, and interest in the invention to William H. Cammeyer, one of the complainants; that the assignee made due application for a patent, and that the patent was duly granted to him for the term of seventeen years; and that the patentee, before the suit was commenced, assigned one undivided half part of the same to said Lewis, the other complainant, together with the like proportion of the claims and rights of action which had accrued by reason of any infringement of the patent by the making, use, or sale of the patented improvement.

Due evidence of the patent and the assignment was exhibited; and the complainants allege that the respondents have infringed the patent, as more fully set forth in the bill of complaint; and they pray for an account and for an injunction. Service was made; and the respondents appeared and filed separate answers.

Briefly stated, the defences set up in the respective answers are as follows: 1. That Samuel Lewis is not the original and first inventor of the patented improvement. 2. That the patented improvement is neither new nor useful, and was not the proper subject for a patent. 3. That they have never infringed the patent by making, using, or selling the patented improvement. 4. That the use, if any, they have made of the patented improvement was done under the directions of the United States, and as their agents or officers.

Proofs were taken by both parties; and, the parties having been fully heard, the Circuit Court entered a final decree in favor of the respondents, dismissing the bill of complaint. Due appeal was immediately taken by the complainants to this court.

Engineers and practical operators have long known and still admit that the work of blasting rocks under water is attended with many and great difficulties. Efforts have been made to overcome those difficulties; but they have never been entirely successful, nor do the complainants pretend that the patented improvement will meet every requirement in that regard. What they allege is, that their assignor is the original and first inventor of a new and useful improved portable and adjustable dam for the purpose of producing still water in which to operate for the blasting and removal of obstructions in rivers and other watercourses.

Such obstructions, where they exist in rivers or in channels affected by the ebb and flow of the tide, have the effect to contract the watercourse and to accelerate the current or flow, and consequently to increase very much the difficulties of the operator in his endeavors to blast the rocks or to remove the obstruction, except in seasons of low water, or when the tide is down.

Difficulties of the kind almost insuperable, it must be admitted, do exist when attempting to remove such obstructions in large running streams or in deep channels affected by the tide, and that the description of the same given by the patentee in the introductory portion of his specification is not very much exaggerated. As evidence to show that the invention, if successful, will be of great public utility and importance, that part of the specification refers to different localities, where, from the nature of the bottom of the stream or channel, a coffer-dam could not be constructed, and where the drilling by hand from the surface would be impracticable, owing to the depth of the water and the strength of the current.

Means of a character to remove such obstructions, the specification states, were unknown prior to the patented improvement, and that important water thoroughfares, for the want of adequate means to accomplish such an end, are either entirely or partially closed to vessels of large draught, which may, by the use of the patented machine, be converted into highways for the largest ships engaged in commerce and navigation.

Suppose the alleged improvement will effect the described results, or will even facilitate to a considerable extent the removal of such obstructions, all, it would seem, must concede its value and utility; and the patentee proceeds to state that the main object of the same is to enable workmen to continue their operations without suspension or impediment from the strength of the current, the ebb or flow of the tide, or the varying depth of the water. All these results the patentee professes to believe can be accomplished by the mechanism described in the specification and illustrated in the annexed drawings; but it is evident, from the language of the specification, that the supposed inventor had never put the apparatus which he describes to any practical use or test. Enough appears to justify the conclusion that he believed in the theory of the improvement, and that he felt much confidence that the described mechanism would work out the described results.

Having set forth the object and aim of the improvement, the patentee then proceeds to describe the apparatus by which they are to be accomplished, as follows: Two boats are prepared (double-enders, as shown), on one or both of which is an engine of requisite power, with propeller and machinery complete for moving the boat, raising the anchors, varying the depth of the dam, and operating the drills. These boats or hulls are connected by a substantial deck, which has an opening in the centre equal to the horizontal area of the dam, for the purposes of access, light, &c., for the diver. From the deck is suspended the telescopic or sectional portion of the apparatus, with the chains and attachments, all previously adjusted and ready to be drawn through their respective openings in the deck.

By the description it also appears that the manner of constructing the telescopic or sectional portion of the apparatus is to prepare a series of plates of galvanized iron, or any other proper material, of suitable thickness, and bend and fasten them into the form shown in the drawings, which is that of an acute parallelogram, one sliding vertically within another, so as to offer the least possible resistance to the tide or current, thereby easing the work of the anchors, and contributing generally to the control of the apparatus.

Each division of the dam is bent inwards at its upper edge, and at its lower edge has a strip fashioned so as to prevent the sections from separating. Every section is likewise provided with four eyes or eyebolts, one at each side and one at each end, which serve as guides to the several sections while operating, the eyebolts on the bottom section being attached permanently to the chains through which the dam is operated, and the bottom section being also provided with four framed wheels or eyebolts through which the side anchor-chains pass, which are to be operated by windlasses, and which extend from the boats, similar to those shown for the operation of the dam above, through the eyebolts on the bottom section, and then outward to the side anchors. Chains extend directly from the boats to the side anchors, and from the ends of the boats directly to the end anchors, the dam being operated by windlasses.

Drills are provided which work in tubes, the lower ends of the tubes being fastened into braces attached to the bottom section of the dam. Tubes of full length, it is stated, are not deemed essential, as a section of sufficient height above the braces on the bottom section of the dam to prevent the drill from being entirely withdrawn from the tube during a stroke, is for some reasons to be preferred, if the tube is properly set with a rocking joint in the lower brace.

Self anchors, so called, are also provided, which are bars of iron formed and moving in sockets, as shown in the drawings, and which, by virtue of their length and free play, adapt themselves to the irregularities of the bottom, and take a rigid and steady hold during the process of drilling. Anchors of the kind are connected with the deck, so as to be taken out of the way when desirable, and the telescopic apparatus is suspended from the deck by four links and bolts, and the several chains are drawn through their respective openings and attached to their proper windlasses.

All the appurtenances, including the boats and dam, being complete and the sliding sections closed, the machine is taken to the spot where it is intended to begin work, the anchors are put out, and the dam is lowered.

Intelligent description of the mode of anchoring the machine and putting it in operation is also given in the specification, as follows: 1. An anchor is let go and its cable paid out to its full length, the boat moving till the anchor takes hold and the chain is taut. 2. Then the other anchor is dropped and the two chains taken up, till the floating structure is held steadily by the two anchors. 3. The side anchors are next launched from a lighter or attendant boat. 4. When these anchors are placed, it is suggested that the diver should be sent down to explore the bottom, to see whether any change of position is desirable. 5. Change may be made in any direction by letting out one cable and taking up another, if it appears that the change will give the self anchors a better face for work when the dam is lowered. 6. When the drills have penetrated to the desired depth, they are withdrawn, and the diver goes down and inserts the charges. 7. The apparatus is then removed and the charges fired, when the machine is replaced as before, and the work continued.

Four claims are made in the specification, as follows: 1. The construction and arrangement of a portable and adjustable dam in sliding or telescopic sections, in the manner and for the purposes described. 2. The combination of the self anchors with the dam, in the manner and for the purposes set forth. 3. The combination of the boats, supports, or floats with the dam and the arrangement of anchors to hold the boats in position, in the manner and for the purposes described. 4. The combination and arrangement of windlasses, chains, and boats with the dam, so that by the construction thereof a series of drills may be operated within and enclosed by the dam, in the manner and for the purposes described in the specification.

Persons seeking redress for the unlawful use of letters-patent in which they have an interest are obliged to allege and prove that they, or those under whom they claim, are the original and first inventors, and that the same have been infringed by the party against whom the suit is brought. Both of these allegations must be proved by the party instituting the suit; but the patent, if introduced in evidence by the complainant, affords a prima facie presumption that the supposed inventor is the original and first inventor of the patented improvement. Evidence to overcome that presumption is admissible, provided that notice of such defence is given in the answer, as required by the rules of equity practice. Seymour v. Osborne, 11 Wall. 516. Notices of the kind were not given in this case, and it follows that the prima facie presumption must prevail.

Infringement is alleged by the complainants, and the burden is upon them to prove the allegation, as it imputes a wrongful act to the respondents. Such an issue cannot be understandingly determined without first ascertaining the true nature of the invention as embodied in the claims of the patent, when the same are properly construed in view of the descriptive portions of the specification.

Of all the claims of the patent, the first is by far the most important, and embraces all that is embodied in the other three. It is the construction and arrangement of the patented improvement called in the claim a portable and adjustable dam in sliding or telescopic sections, in the manner and for the purposes set forth in the specification.

Argument to show that the dam is to be suspended from the main deck is unnecessary, as the statement is three times repeated in the specification of the patent: 1. Figure 3 of the drawings, the specification states, shows the manner of suspending the dam from the main deck. 2. It is stated that the deck has an opening in the centre equal to the horizontal area of the dam, and that from the deck the telescopic or sectional portion of the apparatus is suspended. 3. That the telescopic apparatus is suspended from the deck by four links and bolts.

Beyond question, these references show that the patentee, when he claims the construction and arrangement of a portable and adjustable dam in sliding or telescopic sections, means a dam suspended from the deck when in use, and intends to be understood that such suspension of the dam, in the manner and by the means shown, is a necessary element of the claim.

Evidently the sections are not only free to slide in the manner described, but when the dam is in use the sections are to adjust themselves to varying depths of water, such as are caused by the ebb and flow of the tide, which has the effect to vary the distance the dam is suspended from the bottom, showing that the top section must at all times be connected with the boat by links and bolts, as stated in the specification, or by equivalent means, and that the bottom section must be permanently connected or attached by chains or equivalent means, with a hoisting apparatus arranged on the boat.

Unless the top section is connected with the boat, the letting down of the bottom section will cause all the other sections to go down with it, and they will not be opened out telescopically, as described by the patentee. On the other hand, if the top section is connected with the boat, and the bottom section is not connected with the hoisting apparatus on the boat, the dam cannot be lifted, and the bottom section will always rest where the machine is placed; or, if the water is deep enough, all the sections will remain extended to their full length, showing that no dam constructed and arranged in the manner described in the descriptive portion of the specification can be within the first claim of the patent, unless the sections are free, at all times when the dam is in operation, to slide on each other, nor unless the top section is attached to or suspended from the boat, nor unless the bottom section is connected with a hoisting apparatus on the boat.

2. Self anchors combined with the dam constitute the second claim, which is merely a subdivision of what is embodied in the first claim. Viewed in that light, it will not be necessary to enter into any extended explanation as to its scope and signification.

Remarks already made show that the dam with telescopic sections was to be self-adjusting to tidal and other variations in the depth of the water where the machine is to be operated, and it is equally clear that the self anchors must be free to slide in their sockets with the rise and fall of the bottom section, in order that they may always rest on the bottom where the machine is placed for operation. Unless the bottom section is free to slide on the self anchors, should the bottom section be raised by an increase in the depth of water, it would raise the lower ends of the self anchors from the bottom, and might stop the working of the drills, which shows that the self-adjustment feature of the anchors is necessary to maintain the connection of the dam with the bottom, for the reason that the dam is suspended from the deck, and that the connection of the dam with the bottom is liable to be severed by the receding of the boat from the bottom, as the tide rises beyond a depth equal to the extreme extent of the sections, showing that the feature of self-adjustment in the self anchors is inseparable from the feature of the suspension of the telescopic dam from the boat, sufficient explanation of which has already been given.

Much aid has been derived from the very able opinion of the district judge in defining the nature and mode of operation of the patented invention as embodied in the first and second claims of the patent; and the court here also concurs with the district judge in the definition which he gives of the words 'self anchors' and 'dam,' as used in the claims and specification. As there employed, the term 'self anchors' means anchors capable of self-adjustment, by having at all times free play, because not attached to their sockets nor moving with the bottom section to which the sockets are attached, which sufficiently explains the difference between the word 'anchor,' as commonly used, and the term 'self anchors,' as used in the description of the patented apparatus.

Where the claim of the patent is for a combination, it is necessary to understand the meaning of the several devices of which the combination is composed. In the second claim, the combination is the self anchors with the dam, and the term 'the dam,' as there used, means the dam suspended from the boat, with the described devices to accomplish in its movement and operation the functions already explained, from which it follows that no combination can be held to be within the second claim, unless it be a combination of such self anchors with such a dam, constructed and arranged in the manner described, so as to allow of such self-adjustment in the self anchors.

Two other claims are annexed to the specification; but the language of those claims are sufficiently explicit to speak their own construction without any special exposition, nor is any special explanation necessary, in the view taken of the case, as the decision of the question of infringement must depend chiefly upon the first and second claims of the patent.

Before comparing the patented machine with the apparatus used by the respondents, it will be useful to advert briefly to certain other issues tendered by the respondents in their answers. Preliminary to that, it should be remarked, that the respondent first named in the pleadings is an engineer in the employment of the United States, and that the other respondents are his agents and employees in the same service. In their answers they separately deny: 1. That they have made, constructed, or used the alleged invention of the complainants, or any substantial or material part of the patented machine. 2. That they or either of them have ever originated or planned any infringement or violation of the complainants' patent. 3. That they ever claimed to be the inventors of a still-water dam or apparatus such as that described in the bill of complaint. 4. That they ever made a model of any invention belonging to the complainants, or ever caused any drawings of the same to be constructed for any purpose. They, or the principal respondent, admit that he invented and devised a machine or apparatus for use as a caisson coffer-dam and diving-bell in excavating and removing rocks at certain reefs in New York harbor, that the same was constructed by and at the public expense, and has since been used solely and exclusively in the prosecution of the work to which the principal respondent has been assigned by the public authorities.

Public employment is no defence to the employ e for having converted the private property of another to the public use without his consent and without just compensation. Private property, the Constitution provides, shall not be taken for public use without just compensation; and it is clear that that provision is as applicable to the government as to individuals, except in cases of extreme necessity in time of war and of immediate and impending public danger. Mitchel v. Harmony, 13 How. 115; United States v. Russell, 13 Wall 623.

Sect. 22 of the Patent Act provides that every patent shall 'contain a grant to the patentee, his heirs and assigns, for the term of seventeen years, of the exclusive right to make, use, and vend the said invention or discovery throughout the United States.' 16 Stat. 201.

Agents of the public have no more right to take such private property than other individuals under that provision, as it contains no exception warranting any such invasion of the private rights of individuals. Conclusive support to that proposition is found in a recent decision of this court, in which it is held that the government cannot, after the patent is issued, make use of the improvement any more than a private individual, without license of the inventor or making him compensation. United States v. Burns, 12 Wall. 246.

Suppose that is so, then it follows that the decision in the case before the court must depend upon the question of infringement.

Four principal propositions are maintained by the respondents responsive to that charge: 1. That the caisson coffer-dam and diving-bell which they use is not a portable and adjustable dam constructed and arranged in sliding or telescopic sections, as described in the specification of complainants' patent. 2. That it does not contain any combination of self anchors or self-adjusting supports. 3. That there is not any combination of a boat or boats with the caisson coffer-dam or diving-bell which they use, nor is there any boat or boats used or combined therewith in any manner or for any purpose similar to those set forth in the specification of the patent. 4. That there is not any combination of windlasses, chains, or boats in connection or combined with the caisson coffer-dam or diving-bell used by the respondents.

Contracts, it seems, had been made for the removal of rocks in the channel of the New York harbor, and the record shows that the respondent made a report to the War Department, in which he described the difficulties and ascribed the want of success to the imperfections in the machinery employed. Attempt was made by him to construct an apparatus for the purpose; and it appears that he subsequently filed a caveat in the Patent Office for the same, called improvements in the mode of constructing a caisson coffer-dam and diving-bell for the purpose of conducting operations in waters with rapid currents. Authority was subsequently given to him by the War Department to construct an apparatus embodying the arrangement set forth in the caveat and his antecedent report, from which it appears that an iron dome is to be sunk on the rock to protect the drills and the diver from the velocity of the current, which, though lowered and raised from a boat, is yet entirely disconnected therefrom, and is uncontrolled thereby when in position. Drill-tubes are arranged within the dome in which the drills work, being dropped by their own weight, and raised by connection with motive power on the boat.

Experimental use of the apparatus commenced late in the fall of 1870, and it was found to work successfully, and it appears that it was for some time in constant use, and that it is the use of the same which it is alleged infringes the complainants patent.

In that apparatus the dome is let down through the well-hole in the boat. Movable legs are provided for use when the bed is hard and uneven, which are attached to the lower edge of the dome, and fall by their own gravity until they bear on the bed in such a manner as to insure the horizontal position of the lower edge of the dome,-the legs being kept to their bearings by self-acting cams which hold them permanently in place. When the dome is properly located, it is then detached from the lowering apparatus, and becomes a structure firmly located on the bed of the channel, having no suspension from the boat or any floating structure. Of course the apparatus has drill-tubes, but they are fixed to the inside of the dome, and the drills are raised by lifting-engines on the boat and dropped to the work by their own gravity, working vertically and without friction, because the dome stands erect and immovable. Both the dome and the drill-tubes are unaffected by any motion in the boat, and the attachments to the drills being by loose connections, the action of the drills is also practically unaffected by such motion within the range to which it is limited by proper anchorage and by allowing sufficient play between the face of the well-hole and the side of the funnel, which projects up from the centre of the dome.

Without more, these suggestions are sufficient to show that the apparatus used by the respondents is substantially different from that of the complainants, for the following reasons: 1. Because the dome when in position for work is not suspended from the boat or any other floating structure. 2. Because the funnel of the dome in the respondents' apparatus, though it is capable of being adjusted at different heights, is not and never was self-adjusting to varying depths of water. 3. Because it has no self anchors, free to slide and self-adjusting at all times while the apparatus is in use.

Prior observations are sufficient to show that these features in the apparatus of the complainants are necessary features in the operation of the patented improvement, as clearly indicated in the first and second claims of the patent; and, if so, they are abundantly sufficient to substantiate the proposition that the apparatus of the respondents is substantially different from the machine described in the complainants' specification.

Proofs were introduced by the respondents which showed that no apparatus such as is described in the specification of the patent was ever constructed and put into practical operation, and the evidence tends to show that the apparatus, if constructed as described, would be worthless.

Serious difficulty, it is apparent, would arise if the mode of anchoring the dam there described should be adopted, as its tendency certainly would be to render it impossible to work the drills with useful effect.

Discussion is scarcely necessary in respect to the third claim, as the very statement of it shows that it is not infringed by any thing in the apparatus of the respondents, as their apparatus has no anchors connected with the dome, nor which connect the dome with the boat, which is an essential feature of the third claim in the patent.

In order to make the dam an element of the combination set forth in the third claim, the anchors connected with the boat by chains passing through eyebolts on the bottom section of the dam must be included; and as the anchors so connected and operating are wanting in the apparatus of the respondents, it follows that it does not infringe the apparatus of the complainants.

Nor is it necessary to enter much into the discussion of the fourth claim of the patent, as it has already sufficiently appeared that the apparatus of the respondents has no chains connected with the dome, nor do the respondents operate the drills in the manner or by the means described in the complainants' specification. Instead of that, drill grooves in the complainants' apparatus are all connected below with the bottom section of the dam, and that is connected with the boat by chains and a hoisting apparatus, and the upper section of the dam is fixed to the boat with the other sections hanging from it. Unlike that, the drills in the apparatus of the respondents are operated in reference to the rock without any chains connected with the dome, showing that the apparatus is substantially different from that of the complainants in respect to every claim of the patent.

Suffice it to say, without pursuing the examination, that we are all of the opinion that there is no error in the record.

Decree affirmed.

title: Cammeyer v. Newton/Opinion of the Court


text: Talk:Cammeyer v. Newton/Opinion of the Court

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


text:
Inman Steamship Company v. Tinker

APPEAL from the Circuit Court of the United States for the Southern District of New York.

This was a bill in equity filed by the appellant for an injunction to restrain the appellee, the captain of the port of New York and his successors in office, from collecting a fee of one and one-half per cent per ton, to be computed from the registered tonnage of certain vessels entering that port, pursuant to sect. 6, c. 487, of the acts of the legislature of the State of New York, entitled 'An Act defining and regulating the powers, duties, and compensation of the captain of the port and harbor-masters of the port of New York, passed May 22, 1862, three-fifths being present. Amended April 27, 1865.'

That section is as follows:--

'The following fees shall be collected under this act, and no others: All ships or vessels of the United States of one hundred tons burden or more, except lighters, tugs, barges, and canal-boats, sound and river steamboats employed on regular lines, and all ships or vessels that are permitted by the laws of the United States to enter on the same terms as vessels of the United States, which shall enter the said port of New York, or load or unload, or make fast to any wharf therein, shall pay one and one-half of one per cent per ton, to be computed from the tonnage expressed in the registers of enrolments of such ships or vessels respectively; all other foreign ships or vessels which shall arrive at and enter the same port, and load or unload, or make fast to any wharf therein, shall pay three cents per ton, to be computed on the tonnage expressed in the registers or documents on board. Where difficulties arise between vessels of less than one hundred tons burden, and the captain of the port or a harbor-master shall be called upon to settle the same, the vessel, canal-boat, barge, or lighter in fault shall pay two dollars. Such fees shall be paid by the masters, owners, or consignees of such ships or vessels, at the office of the captain of the port, or to persons authorized by him to collect the same, within forty-eight hours after the arrival of such ship or vessel. In default of such payment, the same having been duly demanded, such masters, owners, or consignees, on whom such demand shall have been previously made, shall pay double the amount of such fees, to be sued for and recovered, in the name of the captain of said port, in any court having cognizance thereof. All fees under this act shall be paid to the captain of the port, or upon his written order; and he shall have power to employ the necessary assistance in making collections of the same, at an expense of not exceeding five per cent upon the amount collected, which expense shall not be considered as the ordinary expense of the office. The captain of the port shall have power to designate some harbor-master as his deputy, who may, during his absence, or in case of a vacancy in his office, perform all the duties belonging to the office of captain of the port; and the acts of said harbor-master, so performed, shall be valid and binding.'

The bill alleges that the complainant, the Inman Steamship Company, a corporation created under the laws of Great Britain, is the owner of a line of steamships belonging to Liverpool, and running thence back and forthe to the port of New York, three of which vessels in every five weeks arrive at and enter said port, and load and unload and make fast to a wharf therein; that on account thereof the defendant has heretofore exacted upwards of $125 every five weeks, or over $1,300 per annum, whether or not any services were rendered by or required of him and the harbor-masters. The bill further alleges that the complainant, on failure so to pay such fee, is liable to be charged in double the amount, to have its vessels attached and seized, and to a multiplicity of suits on account thereof.

The defendant demurred to the bill generally, for want of equity. The court below sustained the demurrer and dismissed the bill; whereupon the complainant appealed to this court.

Mr. William M. Evarts and Mr. Francis Lynde Stetson for the appellant.

The sixth section of the act under which the fees in question are collected is a regulation of commerce, and therefore unconstitutional and void. Henderson v. The Mayor, &c., 92 U.S. 259; Cooley v. Board of Wardens, 12 How. 299; Gibbons v. Ogden, 9 Wheat. 203; Steamship Co. v. Port Wardens, 6 Wall. 31; Peete v. Morgan, 19 id. 581; State Tonnage Tax Cases, 12 id. 204; City of New York v. Miln, 11 Pet. 102.

The act, without the consent of Congress, lays a duty on tonnage, and is, therefore, in violation of sect. 10 of the first article of the Constitution. State Tonnage Tax Cases, supra; Steamship Co. v. Port Wardens, supra; Peete v. Morgan, supra; Cannon v. New Orleans, 20 Wall. 577.

Mr. Henry J. Scudder, contra.

The act in question is not a regulation of commerce within the intendment of the Constitution, but an exercise of a power reserved to the State for the proper government of persons within its jurisdiction. It is in aid and furtherance of commerce, and not to its hindrance. Gibbons v. Ogden, 9 Wheat. 591; City of New York v. Miln, 11 Pet. 102; Cooley v. Board of Wardens, 12 How. 299; Steamboat New York v. Rea, 18 id. 223; Owners of the Brig James Gray v. Owners of the Ship John Frazer et al., 21 id. 184.

The control by a State of its internal affairs, with a view to the maintenance of order and public safety, does not infringe the powers of Congress to regulate commerce, although it may affect the subjects or instruments of commerce. Brown v. Maryland, 12 Wheat. 419; United States v. Dewitt, 9 Wall. 41; Cooley v. Board of Wardens, supra; Port Wardens v. Ship M. J. Ward, 14 La. 293; Steamship Co. v. Joliffe, 2 Wall. 450.

The adaptation of the fees to a standard of tonnage is the most just and convenient method of measuring them. The act does not lay a duty of tonnage.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Inman Steamship Company v. Tinker


text: Talk:Inman Steamship Company v. Tinker

title: Talk:Inman Steamship Company v. Tinker


text:
Inman Steamship Company v. Tinker/Opinion of the Court

This is a bill in equity brought to enjoin the appellee from collecting a port charge imposed upon the vessels of the appellant in the harbor of New York, by an act of the legislature of the State, a copy of which is annexed to the bill, and made a part of it. The bill sets forth the following facts: The appellant is a foreign corporation, and the owner of three steamships, each of which enters the port of New York once within every five weeks. The vessels are respectively of the burden of 2,950 tons, 2,823 tons, and of 2,712 tons. All these vessels belong to the port of Liverpool, in England, and run between that port and the port of New York. The character and object of the act of the legislature complained of are indicated in its title, which is, 'An Act defining and regulating the powers, duties, and compensation of the captain of the port and harbormasters of the port of New York, passed May 22, 1862, three-fifths being present; amended April 17, 1865.' The sixth section declares:--

'The following fees shall be collected under this act, and no others: All ships or vessels of the United States of one hundred tons burden or more, except lighters, tugs, barges and canal-boats, sound and river steamboats employed on regular lines, and all ships or vessels that are permitted by the laws of the United States to enter on the same terms as vessels of the United States, which shall enter the port of New York, or load or unload, or make fast to any wharf therein, shall pay one and one half of one cent per ton, to be computed from the tonnage expressed in the registers of enrolments of such ships or vessels respectively; and all other foreign ships which shall arrive at and enter the same port, and load or unload, or make fast to any wharf therein, shall pay three cents per ton, to be computed on the tonnage expressed in the registers or documents on board,' &c.

In default of payment as prescribed, it is declared that the master, owner, or consignee, upon whom demand of payment may have been made, shall pay double the amount of such fees, to be recovered in the name of the captain of the port. The amount which the appellant was required to pay, and did pay, was one cent and a half per ton upon the tonnage of their three vessels respectively upon every arrival of each one in the American port. The bill seeks to relieve them from this burden in future. The respondent demurred to the bill in the court below. The demurrer was sustained, and the bill dismissed. The case was thereupon removed to this court by appeal.

The following clauses of the Constitution of the United States are invoked in behalf of the appellant as sustaining the bill:--

ART. 1, SECT. 10. 'No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of the Congress.'

'No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.'

It is not claimed that Congress ever consented to the passage of the act of 1862, or of the amendatory act of 1865.

It is insisted by the counsel for the appellant that the charge here in question is a regulation of commerce, which it was not competent for the State to prescribe, and also a tonnage duty, which the State was forbidden to impose.

Our remarks will be confined to the latter proposition.

The classification of the powers of the national government, the several categories into which they may be resolved, and the rights and powers of the States in our complex system of polity, have been so often considered by this court, that it is unnecessary upon this occasion to re-examine the subject. Gilman v. Philadelphia, 3 Wall. 713; Ex parte McNeil, 13 id. 236.

Tonnage, in our law, is a vessel's 'internal cubical capacity in tons of one hundred cubic feet each, to be ascertained' in the manner prescribed by Congress. Act of May 6, 1864, 13 Stat. pp. 70, 72; Rev. Stat. U.S. 804, § 4153. 'Tonnage duties are duties upon vessels in proportion to their capacity.' Bouv. Law Dict., 'Tonnage.'

The term was formerly applied to merchandise. Cowel, in his Law Dictionary, published in 1708, thus defines it: 'Tonnage (tonnagium) is a custom or impost paid to the king for merchandise carried out or brought in ships, or such like vessels, according to a certain rate upon every ton, and of this you may read in the statutes of 12 Edw. IV. c. 3; 6 Hen. VIII. c. 14,' &c. The vital principle of such a tax or duty is that it is imposed, whatever the subject, solely according to the rule of weight, either as to the capacity to carry, or the actual weight of the thing itself.

In this law of the State there are several important points that must not be overlooked. The charge is not exacted for any services rendered or offered to be rendered. If the vessel enter the port and immediately take her departure, or load or unload, or make fast to any wharf, either of these things disjunctively brings her within the act, and makes her liable to the burden prescribed.

The charge is applied wholly irrespective of the ad valorem principle.

If either of the three vessels of the appellant was new and making her first voyage, and another of the same tonnage was making her last trip before being broken up, and the former were of many times the value of the latter, the act would apply the same procrustean rule to both. The rate of payment, and the amount to be paid, would, in both cases, be the same.

The act makes a discrimination. To one class of vessels it applies the rate here in question, to another class double that rate, and to yet another class none at all. Those belonging to the latter are wholly exempted.

We think a clearer case of the imposition of a tonnage duty than is presented in the record before us can hardly be imagined. If the law had been passed by Congress instead of the State, and the charge imposed had been expressly designated a tonnage duty, its character as such could not appear in a stronger light. But the name is immaterial: it is the substance we are to consider.

It does not advance the argument in behalf of the appellee to maintain that the regulations prescribed by the act are necessary and proper in the port for which they are provided. It is not our purpose to examine them, except as to the proposition in hand. It may be that, aside from the imposition of this tax, they contain nothing exceptionable, and that in all other respects they are wise and well considered. Similar provisions, varying according to local circumstances, exist at all important points throughout the world whither marine commerce finds its way. They are indispensable to those engaged in that business. They fence out many evils, and promote largely the convenience and the welfare of those engaged in this field of enterprise. Perhaps it is hardly too strong language to say, they are well nigh vital to commerce itself. It may be conceded, also, that foreign steamships and other vessels visiting the ports of a State for business purposes may be made liable by the laws of such State for all reasonable and proper port charges. This is but a fair return for the benefits received. But such charges must not be repugnant to the Constitution of the United States. Any conflict is fatal to them. The warrant for such competent legislation may be found in that immense mass of police and other powers which the States originally possessed, which they have not parted with, and which still belongs to them; or it may in some cases be found among those which the States may exercise, but only until Congress shall see fit to act upon the subject. The authority of the State then retires, and lies in abeyance until the occasion for its exercise shall recur. Ex parte McNeil, 13 Wall. 236.

'Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' Const. amend. 10.

The State, in passing this law imposing a tonnage duty, has exercised a power expressly prohibited to it by the Constitution. In that particular the law is, therefore, void. This view is sustained by the rulings of this court in the State Tonnage Tax Cases, 12 Wall. 204, and Cannon v. New Orleans, 20 id. 577. See also Steamship Company v. Port Wardens, 6 id. 31, and Peete v. Morgan, 19 id. 581.

The tax imposed is not merely a mode of measuring the compensation to be paid. The answer to this suggestion is, that it is exacted where there is nothing to be paid for, and has no reference to any circumstance in this connection but the tonnage of the vessel and the class to which it belongs.

The commerce clauses of the Constitution had their origin in a wise and salutary policy. They give to Congress the entire control of the foreign and inter-state commerce of the country. They were intended to secure harmony and uniformity in the regulations by which they should be governed. Wherever such commerce goes, the power of the nation accompanies it, ready and competent, as far as possible, to promote its prosperity and redress the wrongs and evils to which it may be subjected. It was deemed especially important that the States should not impose tonnage taxes. Hence the prohibition in the Constitution, without the assent of Congress previously given. The confusion and mischiefs that would ensue if this restriction were removed are too obvious to require comment. The lesson upon the subject taught by the law before us is an impressive one.

How the charges, which it is conceded the State may impose, must be shaped in order to be valid, is a subject which it is not within our province to consider, and in regard to which it would not be proper for us to express any opinion. We decide only the point before us.

Decree reversed, and cause remanded with directions to proceed in conformity to this opinion.

MR. CHIEF JUSTICE WAITE did not sit in this case, nor take any part in its decision.


text: Talk:Inman Steamship Company v. Tinker/Opinion of the Court


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Foster v. Master and Wardens of the Port of New Orleans

ERROR to the Supreme Court of the State of Louisiana.

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. H. J. Leovy for the plaintiff in error. No counsel appeared for the defendants in error.

MR. JUSTICE SWAYNE delivered the opinion of the court.


text: Talk:Foster v. Master and Wardens of the Port of New Orleans


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Foster v. Master and Wardens of the Port of New Orleans/Opinion of the Court

This controversy has arisen out of an act of the legislature of Louisiana, approved March 6, 1869. By the first section it was made the duty of the master and wardens of the port of New Orleans to offer their services to make a survey of the hatches of all sea-going vessels which should arrive at that port, and a penalty was prescribed for the neglect of this duty. The second section declares 'that it shall be unlawful for any person other than the said master and wardens, or their legally constituted deputy, to make any survey of the hatches of seagoing vessels coming to said port of New Orleans, or to make any survey of damaged goods coming on board of such vessels, whether such survey be made on board or on shore, or to give certificates on orders for sale of such damaged goods at auction, or to do any other of the acts and things prescribed by law for said master and wardens to do and perform; and the person doing such illegal and forbidden acts, his instigators and encouragers, shall be liable and bound to pay in solido to the said master and wardens $100, with damages and costs, for each of said illegal and forbidden acts so done.'

The petition avers that Foster resides in the city of New Orleans, and has been and is continually violating the provisions of the act by making surveys of the hatches of sea-going vessels arriving at that port, and of damaged goods, and has been and is engaged in acting as, and performing the duties which belonged to, the master and wardens of the port.

An injunction was prayed for. It was granted by the lower court, and the judgment was affirmed by the Supreme Court of the State. A writ of error was thereupon sued out by Foster, and the case is thus brought before this court for review.

The defendants in error have failed to enter their appearance, and no brief in their behalf has been submitted. We shall, therefore, devote but few remarks to the case.

The Constitution of the United States, art. 1, sect. 8, gives to Congress the power 'to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.'

That the provisions of this act are regulations of both foreign and inter-state commerce is a proposition which requires no argument to support it. They are a clog and a blow to all such commerce in the port to which they relate. Their enactment involved a power which belongs exclusively to Congress, and which a State could not, therefore, properly exercise. In Steamship Company v. Port Wardens, 6 Wall. 31, it was held that a statute of a State enacting that the master and wardens of a port within it should be entitled to demand and receive, in addition to other fees, the sum of five dollars, whether called on to perform service or not, for every vessel arriving in that port, was a regulation of commerce, and was unconstitutional and void. If the constitutional objection was well taken there, a multo fortiori is it fatal here. The act is not, in the sense of the Constitution, an inspection law. The object of such laws is to certify the quantity and value of the articles inspected, whether imports or exports, for the protection of buyers and consumers. Gibbons v. Ogden, 9 Wheat. 203; Brown v. Maryland, 12 id. 419; Clintsman v. Northrup, 8 Cow. 46; Bouv. Law Dict. 'Inspection;' Story's Const. sects. 1017, 1024; Neilson v. Garza, 2 Woods, 290. The purpose of this act is to furnish official evidence for the parties immediately concerned, and, where the goods are damaged, to provide for and regulate their sale. Master and Wardens v. Ship Hawes, 6 La. Ann. 390.

Besides the unreason and the oppressive character of the act as regards ship-owners and consigness, it is an invasion of the rights of persons outside of these classes. If such a monopoly, sustained by such sanctions, may be validly given to the master and wardens, why may they not also, at prices not agreed upon by the parties, nor according to the market value, but at rates arbitrarily fixed by law, be authorized exclusively to load and unload ships, to furnish them with all needful supplies, and to perform all the services of consignees, commission merchants, and ship-brokers, touching incoming and outgoing cargoes? Each of these imagined cases is a parallelism to the case before us, and only another step in the same direction.

We hold the statute to be void.

In expressing these views, we have no purpose to impugn any thing heretofore said by this court as to the power of the States to establish inspection, quarantine, health, and other regulations, within the sphere of their acknowledged authority. The constitutional validity of such regulations is as clear as the power of Congress to establish regulations of commerce. It is no objection to the former that both operate upon the same subject. Gilman v. Philadelphia, 3 Wall. 713; Ex parte McNeil, 13 id. 236.

Judgment reversed, and the cause remanded with directions to dismiss the petition.


text: Talk:Foster v. Master and Wardens of the Port of New Orleans/Opinion of the Court


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Ex parte Jordan

APPLICATION for a mandamus to the Circuit Court of the United States for the Southern District of New York, to compel the allowance of an appeal from its decision.

The New York, Oswego, and Midland Railroad Company, July 1, 1869, executed a mortgage on its railroad, &c., to secure an issue of bonds amounting to $8,000,000. Stevens, Opdyke, & Hewitt, trustees under this mortgage, on or about Nov. 1, 1873, commenced a suit for its foreclosure in the Circuit Court of the United States for the Southern District of New York. To this suit the railroad company, Delos De-Wolf, trustee, William H. Macy, trustee, and the Mercantile Trust Company, trustee, were originally the only defendants. Receivers were appointed Nov. 18, 1873; and on the same day, for the purpose of providing money to pay debts owing to employees, and for certain other specified objects, the receivers were authorized to issue from time to time certificates of indebtedness to an amount not exceeding in the aggregate $1,425,000, bearing interest at the rate of seven per cent per annum, and, unless previously discharged, to be paid out of the moneys realized upon the foreclosure equally with any other liabilities incurred by them in the administration of their receivership. Dec. 23, 1873, a further issue of like certificates was authorized, for the purchase of equipment and the payment of rental on leased lines.

In due time an order was regularly entered, taking the bill as confessed. The receivers from time to time filed their accounts; and these were referred to a master, who reported thereon April 29, 1875. Upon the filing of this report the following direction was given by the circuit judge: 'The report may be confirmed, but at present I think no further order should be entered.'

June 29, 1875, Conrad N. Jordan, Henry Amy, Edward Livingston, Frederick P. James, John P. Crosby, and Nathaniel A. Cowdrey, holders, or the representatives of holders, of bonds secured by the mortgage, filed a petition for leave to intervene in the prosecution or defence of the suit, for the protection of the interests they represented. Upon this petition the following order was made, June 30, 1875:--

'It is hereby ordered that the said petitioners have leave, and leave is hereby granted to them, to intervene in this suit for their own interests, and the interests of those whom they represent, and to that end to appear in the suit within three days, as defendants, in the same manner and with like effect as if they were named in the original and supplemental bills as defendants having or claiming an interest: Provided, that said petitioners all appear by the same solicitor or solicitors. This order to be without prejudice to proceedings already had; but this is not to be construed as depriving the petitioners of leave to apply for a rehearing or review of any order heretofore made, upon due notice to the parties interested.'

About the same time a similar petition was presented by John E. Williams and Theodore Houston, and they were admitted upon the same terms.

July 13, 1875, the cause coming on for hearing, the complainants submitted a proposed form of final decree, and the defendants' various amendments thereto. The hearing was postponed until Aug. 4, when a further postponement took place until Sept. 15, and the master was directed 'to compute, ascertain, and report to the court, on or before the eleventh day of September, 1875,' among other things, 'the amount of certificates of indebtedness and notes issued by the receivers under the authority of the court, classifying them so as to show the dates of and authority for their issue, and the purpose of such issues respectively, and to whom issued by the receivers, and the aggregate amount of principal due thereon, with interest computed to Sept. 15, 1875;. . . also what leases have been made to the mortgagor or receivers, and the dates and terms thereof; also what rents have accrued under the terms of such leases and have not been paid.'

The time for taking proof by the master having been extended, his report was not made until Nov. 13. To this report exceptions were filed by Jordan, James, Houston, Williams, Livingston, Amy, and Crosby, Jan. 5, 1876. These exceptions related to the amounts allowed for outstanding receivers' certificates, and to different railroad companies on account of their leases.

The cause at last came on for final hearing, Oct, 2, 1876, among other things, upon the exceptions to the master's report 'filed by defendants Conrad N. Jordan and others on the 5th of January, 1876,' and after argument, among others, by 'Mr. F. N. Bangs, of counsel for the defendants, Conrad N. Jordan, Henry Amy, John P. Crosby, Edward Livingston, Frederick P. James, and Nathaniel A. Cowdrey,' a decree was entered finding the amount due upon certain detached coupons, upon the bonds and attached coupons, and upon the receivers' certificates, and directing the mortgaged property to be sold, and the proceeds applied to the payment of the sums so found due.

The present petitioners, claiming to be aggrieved by certain specified orders made in the cause previous to their admission as defendants, and also by so much of the final decree as directs the payment of certain designated coupons, and of the receivers' certificates, and by certain other provisions of the decree which are specially stated, on the second day of October, 1876, in open court, prayed an appeal to this court 'from so much and such parts of the decree' as they claim to be aggrieved by. This was denied, for the reason that the court was of the opinion 'that the said defendants cannot appeal from the decree, because the bill of complaint herein and the supplemental bill have been taken as confessed as against them.'

Afterwards the petitioners again applied to the circuit judge for the allowance of an appeal from the same parts of the decree, and tendered good and sufficient security to perfect the appeal; but it was refused.

Thereupon this application was made for a mandamus directing the Circuit Court to allow the appeal as asked for.

Mr. F. N. Bangs for the petitioners.

Mr. William M. Evarts, contra.

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

title: Ex parte Jordan


text: Talk:Ex parte Jordan

title: Talk:Ex parte Jordan


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Ex parte Jordan/Opinion of the Court

We think that an appeal should have been allowed in this case. The petitioners were defendants in the suit when the final decree was rendered. They were directly interested in what was then decided. The allowance of an appeal under sect. 692, Rev. Stat., follows of course, if prayed for by one who has the right to it. The language of the statute is, shall be allowed,' which means must be allowed,' when asked for by one who stands in such relation to the cause that he can demand it. The question upon such an application is not what will be gained by an appeal, but whether the party asking it can appeal at all.

It is true that the petitioners were not parties to the suit until after the bill was taken as confessed; but it is clear that a decree pro confesso did not end the case, because before the final decree was rendered it was found necessary to have a reference to a master, 'to compute, ascertain, and report.' Before the master could comply with this order proof had to be taken; and the original time given him to report was extended for that purpose. When this reference was made, the petitioners were defendants and actors in respect to the litigation. They certainly had the right to contend before the master, and to except to his report. This they did; and their exceptions were overruled. Even the report of the master did not put the case in a condition for a final decree. The amount due upon the bonds and coupons had still to be ascertained. That was done by the court, and stated in the decree. Against these findings, certainly, the petitioners were in a condition to contend, and, if to contend below, to appeal here. It will be time enough to consider what relief they can have under their appeal when the case comes up.

While complaint is made of interlocutory orders entered in the progress of the cause, the appeal lies and was asked only from the final decree. Whatever comes here comes through such an appeal. When the case gets here, the petitioners may not be allowed to go behind orders actually made by the court as to the administration of the property before they were admitted to defend, but the case was certainly open to them, when they came in, as to all other matters involved.

The exceptions of the petitioners were not filed until after the expiration of one month from the time of filing the master's report. Under equity rule 83 the complainants could have insisted upon a confirmation of the report by reason of this default at the next rule-day after it occurred. But they did not see fit to do so. The exceptions were received out of time without objection, and acted upon by the court. This was a waiver of the default.

A writ of mandamus will be issued directing the Circuit Court to allow the appeal asked for, as of Oct. 2, 1876, and it is so Ordered.

title: Ex parte Jordan/Opinion of the Court


text: Talk:Ex parte Jordan/Opinion of the Court


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Selma and Meridian Railroad Company v. Louisiana National Bank of New Orleans

MOTION for leave to set aside an order dismissing an appeal from the Circuit Court of the United States for the Southern District of Alabama, under the ninth rule at the last term, and for leave to file the record and docket the cause at the present term.

Mr. Philip Phillips for the appellant, in support of the motion.

Mr. Thomas J. Durant, contra.

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


text: Talk:Selma and Meridian Railroad Company v. Louisiana National Bank of New Orleans


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Selma and Meridian Railroad Company v. Louisiana National Bank of New Orleans/Opinion of the Court

The appeal in this cause was taken June 16, 1875. It was the duty of the appellants, therefore, under rule 9, par. 1, to file a transcript of the record with the clerk, and docket the cause within the first six days of the last term. The same rule provides, par. 3, that upon the filing of the transcript the appearance of counsel for appellant shall be entered. This was promulgated at the December Term, 1867, and has been in force since that time. 6 Wall. v. As early as the February Term, 1808, it was 'ordered that all parties in this court, not being residents of the United States, shall give security for the costs accruing in this court, to be entered on record,' 4 Cranch, 537; but at the January Term, 1831, this was amended so as to read as follows: 'In all cases the clerk shall take of the plaintiff a bond with competent security, to respond to the costs, in the penalty of $200, or a deposit of that amount to be placed in bank subject to his draft.' 5 Pet. 724. This last order was continued in force substantially as originally promulgated until May 8, 1876, during the last term, when it was amended so as to read as follows: 'In all cases the plaintiff in error or appellant (on docketing a cause and filing the record) shall enter into an undertaking to the clerk, with security to his satisfaction, for the payment of his fees, or otherwise satisfy him in that behalf.' 91 U.S. vii.

In Owings v. Tiernan's Lessee, 10 Pet. 447, a transcript of the record was lodged with the clerk, Oct. 24, 1835; but he refused to file it or docket the cause until the fee bond was given, as required by the rule of 1831. At the January Term, 1836, the defendant in error moved that the cause be docketed and dismissed, and the plaintiff in error, that the transcript be filed and the cause docketed without the bond. The motion of the plaintiff in error was overruled, but leave was given him to docket the cause upon giving the bond; and it was ordered that if this was not done by March 1, the motion of the defendant in error to docket and dismiss be granted. Afterwards, in Van Rensselaer v. Watts, 7 How. 784, a record was lodged with the clerk early in 1848, but no fee bond given. At the January Term, 1849, the counsel for the appellant, having then filed the necessary bond, moved the court to direct the clerk to docket the cause as of the day the record was received by him; but this was refused, Mr. Chief Justice Taney saying, 'This court consider the practice established by the decision in Owings v. Tiernan, 10 Pet., and do not wish to disturb it.'

The transcript in this case was lodged with the clerk Oct. 5, 1875, but no fee bond was given and no appearance of counsel entered. An attempt has been made to show that neither the appellant nor its counsel knew that the security was required; but it does appear that as early as Nov. 25, 1875, both counsel and appellant did understand that $200 was required by the clerk for some purpose, and the agents of the appellant who had the appeal in charge were advised that they 'would do well to attend to it without delay.' No heed was given to this suggestion; and three months afterwards, Feb. 24, 1876, a motion to docket and dismiss was made and granted. The court continued in session until May 8, and no attention was given to the case by the appellants previous to the adjournment.

Without undertaking to determine what he might do in a case where an appeal had been dismissed through our own mistake, we have no hesitation in deciding that the failure of this appellant to perfect its appeal has been because of its failure to comply with a rule of practice which has been rigidly enforced for more than forty years. In addition to this, we are not satisfied, from the showing made, that at least one of the counsel for the appellant did not have actual knowledge of the existence of the rule; and it is very clear that if, after the agents of the appellant were advised of the demand for security of some sort, they had exercised any diligence whatever in ascertaining what was actually required of them in the premises, they would have at once received the necessary information.

Motion denied.


text: Talk:Selma and Meridian Railroad Company v. Louisiana National Bank of New Orleans/Opinion of the Court


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Township of East Oakland v. Skinner

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

This was an action of assumpsit on fifty-four coupons cut from certain bonds issued by the township of East Oakland, Ill., in payment of its subscription of $75,000 to the capital stock of the Paris and Decatur Railroad Company.

The election authorizing the subscription was held Feb. 1, 1870, and the subscription made Aug. 15 of that year. The bonds bear date April 20, 1871. The other facts and the provisions of the statute applicable to the case are set forth in the opinion of the court.

The case was tried by the court below without a jury, and resulted in a judgment for the plaintiff for $9,207.32 and costs. The township thereupon brought the case here.

Mr. John M. Palmer for the plaintiff in error.

Mr. H. S. Greene, Mr. D. T. Littler, and Mr. James C. Robinson, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Township of East Oakland v. Skinner


text: Talk:Township of East Oakland v. Skinner


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Township of East Oakland v. Skinner/Opinion of the Court

The defendant in error brought this suit in the Circuit Court of the United States for the Southern District of Illinois against the township of East Oakland, to recover the amount of certain interest coupons issued with certain bonds by Charles Clement, supervisor, and as the agent of the said town, upon a subscription to the stock of the Paris and Decatur Railroad Company.

The Paris and Decatur Railroad Company is a corporation of the State of Illinois, organized under an act of the general assembly of said State, entitled 'An Act to incorporate the Paris and Decatur Railroad Company,' approved Feb. 18, 1861, with authority to construct, maintain, and operate a railroad from the town of Paris to the town of Decatur, in said State.

By the fifth section of said act it is provided that 'said corporation shall cause books to be opened for subscriptions to the capital stock thereof, to be divided into shares of fifty dollars each, at such times and places as they may choose, and shall give at least thirty days' notice thereof by publication in a newspaper published in the town or city where said books may be opened; and if there be no newspaper published therein, then in the nearest newspaper thereto. It shall be lawful for all persons of lawful age, or for the agent of any corporate body, to subscribe any amount to the capital stock of said company.'

It was by the authority of this section that the subscription we are considering was made, and the bonds and coupons issued in payment therefor. Did this language, 'the agent of any corporate body,' give power to a municipal organization to subscribe and to issue its bonds as was here done?

In the recent case of Campbell v. The Paris & Decatur Railroad Co. (not yet reported), the Supreme Court of Illinois passed upon the effect of this statute. After quoting the section as given above, the court say: 'This is the only provision in the charter in reference to subscriptions by either persons or corporations. It confers no power on municipal corporations to subscribe for such stock. The provision manifestly refers to private corporations when it authorizes agents to subscribe. It does not refer to counties, cities, towns, or townships, and cannot be held to embrace them. No power is conferred to call the election, or for the town officer to make the subscription, or to issue these or any other bonds.' We have not been furnished with a copy of this decision, but it is referred to in the briefs of both parties. While its effect or conclusiveness is a subject of difference, the decision itself is not denied.

If the Supreme Court of a State gives construction to the language of a statute, and there have been no conflicting decisions, this court, as a general rule, follows the construction thus given. Township of Elmwood v. Marcy, 92 U.S. 289. It is said that this decision was ex parte, and that the decision was given on a made-up case,-that the contest was not a real one. There is no evidence of the truth of these assertions, and we do not well see how evidence of that character could be produced to us. If the decision is to be attacked on such grounds, the proceeding must be had before the court that made it, and upon notice to all interested.

We are, however, all of the opinion that the unreported case to which we have referred was rightly decided, and, as an original question, we concur in the opinion given by the Supreme Court of Illinois. We think the authority to 'the agent of any corporate body' to subscribe for stock in the railroad company was not intended to include, and did not include, municipal corporations. It meant private and money-making, trading or business, corporations. It did not intend to give authority to any township, however remote from the road, to become one of its stockholders.

A provision of the Constitution of the State of Illinois, which took effect on the second day of July, 1870, positively prohibited a subscription to the capital stock of a railroad corporation by any county, city, township, or other municipality, unless such subscription had been authorized under existing laws by a vote of the people prior to the date mentioned.

The subscription in question was made after July 2, 1870. Had it before that date been authorized under existing laws by a vote of the people of that town? The record shows that a vote of the people had before that time been taken; but it does not show that it was authorized by existing laws. There was no authority for submitting that question to the people; and its absence in the fifth section of the act incorporating the Paris and Decatur Company is a strong argument that municipalities were not intended to be included under the general designation of corporations.

We have held that a town cannot subscribe for stock in a railroad corporation unless it has the authority of the legislature for the act. The legislature usually requires the approval of the electors of the town, at an election for that purpose, as a condition to such subscription. Doubtless the legislature can impose or omit conditions, in its discretion. But when the sanction of a popular vote is required, it must be obtained. We are, therefore, compelled to hold that the subscription of the town of East Oakland had not been authorized under existing laws by a vote of the people prior to July 2, 1870.

We have held that there can be no bona fide holding where the statute did not in law authorize the issue of the bonds. The objection in such case goes to the point of power. There is an entire want of jurisdiction over the subject. It is not the case of an informality, an irregularity, fraud, or excess of authority in an authorized agent. Where there is a total want of authority to issue the bonds, there can be no such thing as a bona fide holding.

Judgment reversed.


text: Talk:Township of East Oakland v. Skinner/Opinion of the Court


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United States v. Young (94 U.S. 258)

ON motion of the United States to dismiss an appeal from the Court of Claims, and of the appellee for a writ of certiorari.

Mr. Assistant Attorney-General Smith for the United States.

Mr. W. W. McFarland for the appellee.

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

title: United States v. Young (94 U.S. 258)


text: Talk:United States v. Young (94 U.S. 258)


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United States v. Young (94 U.S. 258)/Opinion of the Court

During the pendency of this suit in this court the Court of Claims, assuming to act under the authority of sect. 1088, Rev. Stat., has granted a new trial, and the United States now ask to dismiss their appeal. This we have often decided they have the right to do. Latham's and Deming's Appeals, 9 Wall. 145. In United States v. Ayres, 9 id. 610, the motion to dismiss was made by the appellee and resisted by the United States; but it was held 'that the order granting the new trial has the effect of vacating the former judgment, and to render it null and void;' and the appeal was consequently dismissed. The same principle was recognized in United States v. Crussell, 12 id. 175, Ex parte Russell, 13 id. 664, and Ex parte United States, 16 id. 699.

The appellee asks, however, that the cause may be retained, and that the proceedings under which the new trial was granted may be brought here by writ of certiorari for re-examination. Unless this can be done, he admits that the United States should be permitted to dismiss their appeal.

We have only such appellate jurisdiction as has been conferred by Congress, and in the exercise of such as has been conferred we can proceed only in the manner which the law prescribes. Barry v. Mercein, 5 How. 119; Durosseau v. United States, 6 Cranch, 314; United States v. Curry, 6 How. 113; Ex parte Vallandigham, 1 Wall. 251.

From the judgments of the Court of Claims appeals are allowed to this court (sect. 707, Rev. Stat.), but no provision has been made for writs of error. Consequently, we cannot proceed by writ of error to review the decisions of that court.

At common law, the writ of certiorari is used for two purposes: 1. As an appellate proceeding for the re-examination of some action of an inferior tribunal; and, 2. As auxiliary process to enable a court to obtain further information in respect to some matter already before it for adjudication. It is for the last purpose only that the writ is employed in this court.

In the present case the writ is asked, not to bring here any part of the record of the Court of Claims as it existed when the appeal was taken, but to obtain a new record of a new proceeding which has been had since, and by which the judgment appealed from has been vacated and a new trial granted in the court below. The object is to inform us, not of what was done before the appeal, but of what has been done since. Our action under the appeal, however, is confined to what was done before; and, if we act at all upon what has been done since, it must be in consequence of some new jurisdiction to be acquired. From what has already been said, it is clear that, for such a purpose, we have no power to issue the writ.

The Court of Claims, by granting a new trial, has resumed control of the cause and the parties. This it had the right to do. Such a power may be somewhat anomalous, but it is expressly given; and every person, when he submits himself to the jurisdiction of that court for the prosecution of his claim, subjects himself to its operation. The proceedings under which the new trial was obtained are now a part of the record below, and, after judgment is finally rendered, may be brought here by appeal for review.

''Motion of the United States to dismiss the appeal granted. Motion for certiorari denied''.


text: Talk:United States v. Young (94 U.S. 258)/Opinion of the Court


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Town of South Ottawa v. Perkins Supervisors of Kendall County

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

The facts are stated in the opinion of the court.

Argued by Mr. P. Phillips and Mr. T. Lyle Dickey for the plaintiffs in error, by Mr. G. S. Eldridge for Perkins, and by Mr. D. T. Littler and Mr. H. Greene for Post.

MR. JUSTICE BRADLEY delivered the opinion of the court.


text: Talk:Town of South Ottawa v. Perkins Supervisors of Kendall County