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Bush v. Commonwealth of Kentucky/Opinion of the Court

This court shares the regret expressed by counsel that the record is in some respects so meager, and in other respects so confused, that it is impossible to ascertain what facts were before the inferior state court when it passed certain orders that are commented upon in argument. Some of those orders refer to affidavits and other documents that are not made in any form a part of the record. The difficulties in our way have been, in part, removed by the frank concessions of counsel on both sides, and we cheerfully acknowledge the aid we have received from them in our search through the record for the substantial questions to be determined. We may also add that our embarrassment has been increased by the consideration that the case is one of no small moment, involving, as it does, on the one hand, the life of a citizen, and, on the other, the question whether the judicial tribunals of a state have denied to a prisoner rights guarantied by the constitution of the United States. Whether the record before us shows such a denial we will now proceed to inquire.

John Bush, a citizen of African descent, was indicted in 1879, in the circuit court for Fayette county, Kentucky, for murder. Upon his first trial the jury, as was stated by counsel, being unable to agree, were discharged. At the next trial he was found guilty and was condemned to suffer death. Upon appeal to the court of appeals of Kentucky that judgment was reversed and a new trial was ordered for errors committed by the court of original jurisdiction: First, in neglecting to instruct the jury as to involuntary manslaughter, as distinguished from murder, the evidence being such as to authorize the jury to find the accused guilty of either offense; second, in the definition of malice given to the jury; third, in failing properly to instruct the jury whether the death of the deceased was necessarily or probably caused by the wound, or ensued from scarlet fever negligently communicated by her physician. Bush v. Com. 75 Ky. 268.

Upon the return of the case to the inferior state court the accused, as we infer from the record, filed a petition for its removal into the circuit court of the United States. That petition, we are informed by counsel, was filed May 24, 1880. It, however, is not in the record. We assume that it was based upon section 641 of the Revised Statutes of the United States, which authorizes, in general, the removal into such court of any criminal prosecution, commenced in a state court, for any cause whatever, against any person who is denied or cannot enforce in the judicial tribunals of the state, or in the part of the state where the prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within their jurisdiction. The record, however, does state that copies of all the proceedings in the inferior state court were filed by the accused in the federal court, and that he was brought before the latter tribunal upon writ of habeas corpus addressed to the jailer having him in custody.

On the nineteenth day of October, 1880, the accused, by his counsel, moved in the federal court that the trial proceed. That motion was denied, and the response by the jailer to the writ of habeas corpus was adjudged to be insufficient. The reasons which controlled this action are set forth in the following order:

'And it appearing to the court, from the transcript of the     record heretofore filed, that the indictment herein was found      by a grand jury summoned under and in accordance with the      provisions of section 1, c. 62, Gen. St. Ky., which exclude      all other than white citizens from being summoned, or serving      thereon, the court is of opinion that said law is a violation      of the four-teenth amendment to the constitution of the      United States, and orders said indictment quashed. The     marshal of the court is ordered to return the said John Bush      to Lexington, Kentucky, as speedily as possible, and there      release him. He will, however, before setting him at liberty,     notify the commonwealth's attorney; or, in his absence, the      county attorney; or, in his absence, the county judge. This     notice shall be in writing, stating the time and place of his      release, and he will report his action to this court. The     defendant excepts to so much of this order as requires his      return to Lexington, Kentucky.'

The accused was subsequently rearrested by the state authorities, and a new indictment was returned for the same offense. At the term of the court held on the sixth of December, 1880, he tendered an affidavit, stating that 'on the fourth day of February, 1879, the grand jury of Fayette county returned into this court an indictment charging him with the same offense, and upon the same statement of facts charged herein; that he, as he had a right to do under the 641st section of the Revised Statutes of the United States, filed in this court his petition for a transfer of his case to the United States circuit court for this district for trial under said indictment; that the prayer of his petition was granted by said circuit court, on which, under said statute, all further proceedings were to cease forever; that the jurisdiction of said United States circuit court, to which, under said statute, this cause was removed for the trial of this offense, is superior to and in exclusion of that of this court, and, that court having taken jurisdiction, this court has no jurisdiction to try the same.' Copies of the orders of the United States circuit court were made part of that affidavit. The court refused its permission to file such affidavit, and to that ruling the accused excepted. The case was then continued to the succeeding February term, when a special venire issued, commanding the sheriff to summon '150 good and lawful jurors from whom to select a jury for the trial of this [Bush's] case.' But at that term the prosecution was continued, and on May 16, 1881, the case being again called for trial, the sheriff was ordered to summon 'a panel of 75 additional jurors from whom to select a jury for the trial of this case, and in executing this order he will proceed in his selections without regard to race, color, or previous conditions of servitude.'

We next find in the record of proceedings in the state court, under date of May 18, 1881, this order:

'And afterwards, at a term of said court held for said     circuit, May 18, 1881, the commonwealth came, by attorney,      and the defendant appeared in custody. The defendant moves     the court to set aside the indictment herein against him,      because there was a substantial error committed to his      prejudice in the selection and formation of the grand jury      which found said indictment, in that the said grand jury was      selected and formed in violation of the constitution of the      United States, and therefore is unconstitutional, null, and      void, because all citizens of the United States and state of      Kentucky, and resident in Fayette county, who were not of the      class known as white, though eligible for such service, were      excluded from the lists from which said grand jury was      selected, and thereby the rights, privileges, and immunities      of all such citizens so residing, who did not belong to the      class known as white, and of the defendant, who is not white, although a citizen of the United States and      of Fayette county, Kentucky, were abridged, because he and      they are not white, and on account of his and their race and      color, contrary to the constitution of the United States and      the laws in such cases made and provided; which was overruled      by the court, and defendant excepts.'

The accused then moved to set aside the panel of petit jurors, upon grounds set forth in the following order entered on the same day:

'The defendant now moves the court to set aside the panel of     petit jurors selected and summoned to try him herein, because      there was a substantial error committed to his prejudice, in      that said jurors were not summoned as required by law, in      that all citizens of the United States and state of Kentucky,      resident in Fayette county, of the African race, of which      there are very many eligible and qualified to serve as jurors      in Fayette county, and to which race this defendant belongs,      were excluded and not summoned by the officers whose duty it      was to select and summon said panel to serve on said panel      from which the jury to try defendant was to be selected, but      only such citizens eligible and qualified which belonged to      the class known as white were selected and summoned by such      officers. Defendant filed a petition for the transfer of this     case to the circuit court of the United States for Kentucky;      which motion was overruled, and defendant excepts.'

The trial proceeded, and the jury returned a verdict of guilty of murder, and, under the power vested in them by the laws of Kentucky, fixed the punishment at death. A judgment having been rendered accordingly, a motion for a new trial was made and overruled. Upon appeal to the court of appeals the judgment was affirmed.

This statement of facts is quite sufficient to indicate the grounds upon which we rest our determination of such of the questions raised by the assignment of errors as we deem it necessary to consider.

1. The proposition in behalf of the accused to which we will first direct our attention is that the removal of the prosecution, under the first indictment, into the circuit court of the United States-although the indictment was there quashed-operated to divest the state court of all jurisdiction thereafter, under any circumstances whatever, to try him for the crime charged. Such a construction of section 641 is wholly inadmissible. The prosecution against Bush could only have commenced in the judicial tribunals of Kentucky. The crime for which he was indicted is an offense against the laws of that state, not against those of the United States. It is not one originally cognizable in the courts of the Union. The removal of the first indictment into the federal court was competent only because at that time the accused was denied, by the statutes of Kentucky, rights secured to him by the constitution and laws of the United States. And when the federal court in that mode acquired jurisdiction to proceed with the prosecution as if there commenced, its authority was limited to the trial of the indictment so removed. That court had, pending the prosecution therein, the same power over the indictment that the state court could have exercised had there been no removal. When, therefore, the federal court, in the exercise of the discretion which it unquestionably had, quashed the indictment, it was without jurisdiction further to proceed against the defendant for the crime. He could not have been held for indictment by a grand jury in that court for the obvious reason, already suggested, that his offense was not one against the United States, but against Kentucky. It was for the authorities of the latter alone to determine whether he should be again indicted, or the prosecution abandoned. It follows that there was no error in the order directing the prisoner to be returned to the county in which he was originally indicted. That course was due to the state, to the end that its authorities, being duly notified, might take such further action in the premises as was expedient. U.S. v. McBratney, 104 U.S. 624; Coleman v. Tennessee, 97 U.S. 519; U.S. v. Cisna, 1 McLean, 265.

2. But it is contended, upon behalf of the accused, that his petition for removal, filed after the second indictment was returned, should have been granted, and that the state court could not thereafter rightfully proceed. The petition referred to is doubtless the one described in the order of May 18, 1881. But the record contains no copy of it; nor did it appear in the record sent to the court of appeals of Kentucky. The same question having been raised in that court, it replied properly that 'an inspection of the petition is essential to determine whether it contained allegations sufficient to authorize a transfer; and, in its absence, it must be presumed that it was defective in the allegation of jurisdictional facts, and therefore that the court below did right to disregard it.'

But there is another and distinct ground upon which that petition, assuming that it was based upon scetion 641, was properly disregarded by the inferior state court. The court of appeals of Kentucky, in Com. v. Johnson, 78 Ky. 511, decided June 29, 1880, (and hereafter more fully referred to,) had declared that the statute of Kentucky, excluding citizens of African descent from grand and petit juries because of their race or color, was unconstitutional, and that thereafter all officers charged with the duty of selecting or summoning jurors must so act without regard to race or color. That decision was binding as well upon the inferior courts of Kentucky as upon all of its officers connected with the administration of justice. After that decision, so long as it was unmodified, it could not have been properly said in advance of a trial that the defendant in a criminal prosecution was denied or could not enforce in the judicial tribunals of Kentucky the rights secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within their jurisdiction. The last indictment was consequently not removable into the federal court for trial under section 641 at any time after the decision in Com. v. Johnson had been pronounced. This point was distinctly ruled in Neal v. Delaware, 103 U.S. 392-3, and is substantially covered by the decision in Virginia v. Rives, 100 U.S. 319. If any right, privilege, or immunity of the accused, secured or guarantied by the constitution or laws of the United States, had been denied by a refusal of the state court to set aside either that indictment or the panel of petit jurors, or by any erroneous ruling in the progress of the trial, his remedy would have been through the revisory power of the highest court of the state, and ultimately by that of this court. Virginia v. Rives, 100 U.S. 319; Neal v. Delaware, 103 U.S. 393.

3. It is also assigned for error that the court of original jurisdiction erred in overruling the motion to set aside the panel of petit jurors. We have seen that the ground of this motion was that the petit jurors were not selected and summoned as required by law, in that all citizens of African descent in the county, very many of whom were eligible and qualified to serve as jurors, were excluded from the panel by the officer charged with the duty of selecting and summoning the petit jurors, and that only white citizens were selected and summoned.

It is sufficient for this assignment to say that the motion was properly overruled, for the reason, among others, that the grounds upon which it was rested do not clearly and distinctly show that the officers who selected and summoned the petit jurors excluded from the panel qualified citizens of African descent because of their race or color. It may have been true that only white citizens were selected and summoned, yet it would not necessarily follow that the officer had violated the law and the special instruction given by the court 'to proceed in his selection without regard to race, color, or previous condition of servitude.' There was no legal right in the accused to a jury composed in part of his own race. All that he could rightfully demand was a jury from which his race was not excluded ''because of their color. Virginia v. Rives'', 100 U.S. 323. The allegation that colored citizens were excluded, and that only white citizens were selected, was too vague and indefinite to constitute the basis of an inquiry by the court whether the sheriff had not disobeyed its order by selecting and summoning petit jurors with an intent to discriminate against the race of the accused. This motion was, therefore, properly overruled.

4. But the most important question raised by the assignments of error is that which relates to the overruling of the motion made before the trial to set aside the indictment because found by a grand jury selected and formed upon the basis of excluding therefrom, because of their color, all citizens of the African race resident in Fayette county and eligible for such service. In several cases heretofore decided in this court we have had occasion to consider the general question whether the fourteenth amendment, and the laws passed by congress for the enforcement of its provisions, do not prohibit any discrimination, in the selection of grand and petit jurors, against citizens of African descent because of their race or color.

In Neal v. Delaware, 103 U.S. 386, we said-commenting upon Strauder v. West Virginia, Virginia v. Rives, and Ex parte Virginia, 100 U.S. 303, 313, 319-that a denial to citizens of African descent, because of their race, of the right or privilege accorded to white citizens, of participating as jurors in the administration of justice, is a discrimination against the former inconsistent with the amendment, and within the power of congress, by appropriate legislation, to prevent; that to compel a colored man to submit to a trial before a jury drawn from a panel from which is excluded, because of their color, every man of his race, however well qualified by education and character to discharge the functions of jurors, is a denial of the equal protection of the laws; and that such exclusion of the black race from juries, because of their color, is not less forbidden by law than would be the exclusion from juries, in the states where the blacks have the majority, of the white race, because of their color. It was also said in that case that 'the presumption should be indulged, in the first instance, that the state recognizes, as is its plain duty, an amendment of the federal constitution, from the time of its adoption, as binding on all of its citizens and every department of its government, and to be enforced within its limits, without reference to any inconsistent provisions in its own constitution or statutes.' 103 U.S. 389. But it was further said:

'Had the state, since the adoption of the fourteenth     amendment, passed any statute in conflict with its      provisions, or with the laws enacted for their enforcement;      or had its judicial tribunals, by their decisions, repudiated      that amendment as a part of the supreme law of the land, or      declared the acts passed to enforce its provisions to be      inoperative and void,-there would have been just ground to      hold that there was such a denial, upon its part, of equal      civil rights, or such an inability to enforce them in those      tribunals, as, under the constitution and within the meaning of that [section 641, Rev. St.] section, would authorize a      removal of the suit or prosecution into the circuit court of      the United States.' 103 U.S. 392.

Again, it was declared that a denial upon the part of the officers of the state, charged with duties in that regard, of the right of a colored man 'to a selection of grand and petit jurors without discrimination against his race, because of their race, would be a violation of the constitution and laws of the United States, which the trial court was bound to redress. As said by us in Virginia v. Rives, 'the court will correct the wrong, will quash the indictment or the panel; or, if not, the error will be corrected in a superior court, and ultimately in this court upon review." 103 U.S. 394.

Guided by these principles, we proceed to inquire whether there was anything in the action of the state, by means of legislation or otherwise, subsequent to the adoption of the fourteenth amendment, that requires us to hold, as matter of law, that in the selection and formation of the grand jury which returned the last indictment, there was such a discrimination against the plaintiff in error because of his race as made it the duty of the court to sustain the motion to set aside that indictment.

By the Revised Statutes of Kentucky, which went into effect on the first day of July, 1852, and were in force when the fourteenth amendment became a part of the national constitution, no one was competent to serve as a petit juror who was not 'a free white citizen,'-2 Rev. St. Ky. (Stanton's Ed.) 77;-and none except citizens could serve on a grand jury,-2 Rev. St. Ky. (Stanton's Ed.) 75, 77. By the same statutes it was provided that all free white persons born in Kentucky or in any other state of the Union, residing in that state, all free white persons naturalized under the laws of the United States residing there, and all persons who have obtained a right to citizenship under former laws, and every child, wherever born, whose father or mother was or shall be a citizen of Kentucky at the birth of such child, shall be deemed citizens of that state. 1 Rev. St. Ky. (Stanton's Ed.) 238. So that, by the law of Kentucky at the adoption of the fourteenth amendment, no citizen of the African race was competent to serve as a grand juror. The Revised Statutes of Kentucky were superseded (certainly as to the selection of grand and petit jurors) by the General Statutes, which were formally enacted as the law of the state, and went into effect on the first day of December, 1873. These-while declaring, in conformity with the fourteenth amendment, all persons born or naturalized in the United States and subject to the jurisdiction thereof, if residing in Kentucky, to be citizens of that state re-enacted the disqualification of colored persons as petit jurors, and also provided that 'no person shall be qualified as a grand juryman unless he be a white citizen.' Gen. St. Ky. 570. And in the new Criminal Code of Practice of Kentucky, which went into effect January 1, 1877, it is expressly provided that 'the selecting, summoning, and impaneling of a grand jury shall be as prescribed in the General Statutes.' Section 101.

It thus appears that the legislature of Kentucky, after the adoption of the fourteenth amendment and notwithstanding the explicit declaration therein that 'no state shall deny to any person within its jurisdiction the equal protection of the laws,' twice expressly enacted that no citizen of the African race should be competent to serve either as a grand or petit juror. And these re-enactments of the prior laws excluding citizens of that race from service on grand or petit juries remained unchanged by legislation in that commonwealth until the passage of the act approved January 26, 1882, whereby the word 'white' was stricken out of the sections of the General Statutes prescribing the qualifications of grand and petit jurymen. In this connection it is necessary to recur to the case of Com. v. Johnson, determined, as we have seen, in the court of appeals of Kentucky on the twenty-ninth of June, 1880. In that case it was held, upon the authority of Strauder v. West Virginia, 100 U.S. 303, (decided on the first day of March, 1880,) that so much of the statute of Kentucky 'as excludes all persons other than white men from service on juries is unconstitutional, and that no person can be lawfully excluded from any jury on account of his race or color.' The learned court then proceeded:

'This question has not been heretofore passed on by this     court, and as the duty of selecting and summoning juries is devolved upon merely ministerial      officers, we ought to assume that, in performing their      duties, they obeyed the statute as enacted by the      legislature, and that they excluded colored persons from the      jury because the statute declares them to be incompetent, and      consequently that the appellee was deprived by the statute of      a right which the supreme court holds is secured to him by      the constitution.

'But the word 'white,' as found in our jury laws, being now     declared to be no part of that law, it will be incumbent on      all officers charged with the duty of selecting or summoning      jurors, to make their selections without regard to race or      color; and when juries are hereafter selected and summoned,      it ought to be presumed that the officers did their duty, and      ignored the statute so far as it is herein held to be      unconstitutional, and that they have not excluded any person      from the jury on account of his race or color.' 78 Ky. 511.

The indictment upon which the plaintiff in error has been tried, convicted, and sentenced to suffer death, was returned by a grand jury selected by jury commissioners who were appointed by the state court of original jurisdiction at its May term, 1880. It was therefore found by grand jurors who were selected prior to the decision in Com v. Johnson. The names of the grand jurors so selected were reported to the court at that term as the grand jury for the succeeding term, at which the indictment upon which Bush was tried was returned. So that the grand jurors who found the indictment were selected when statutes of Kentucky, re-enacted after the adoption of the fourteenth amendment, expressly restricted jury commissioners in their selection of grand jurors to white citizens. Further, they were selected at a time when, according to the rule announced by the highest court of Kentucky, it should be assumed that the officers charged with the duty of selecting grand jurors obeyed the local statute by excluding from the list, because of their race, all citizens of African descent.

These considerations bring the case within the principles announced in Neal v. Delaware. The presumption that the state recognized the fourteenth amendment from the date of its adoption to be binding on all its citizens and every department of its government, and to be enforced within its limits without reference to any inconsistent provisions in its own constitution and laws, is overthrown by the fact that twice after the ratification of that amendment the state enacted laws which in terms excluded citizens of African descent, because of their race, from service on grand and petit juries. It was not until after the grand jurors who returned the indictment against Bush had been selected, that the highest court of Kentucky, speaking with authority for all the judicial tribunals of that commonwealth, declared that the local statutes, in so far as they excluded colored citizens from grand and petit juries because of their race, were in conflict with the national constitution.

But upon this branch of the case the argument by counsel for the commonwealth of Kentucky is that the record does not show, by a bill of exceptions or otherwise, that any proof whatever was offered in support of the motion to set aside the indictment; and, consequently, that in disposing of that motion, as presenting simply a question of law arising upon the face of the local statutes, the presumption is that the jury commissioners in their selection, at May term, 1880, of the Fayette circuit court, of grand jurors for the succeeding term, respected the decision in Strauder v. West Virginia and similar cases, and therefore disregarded the statutes of Kentucky. The force of this position would be greatly strengthened if the record furnished any evidence that the court gave to those commissioners such instructions as were given to the sheriff in May, 1881, when that officer was required to select and summon petit jurors for the trial of Bush. We are of opinion that the rule announced by the court of appeals in Com. v. Johnson is consistent with sound reason and public policy; and, in conformity therewith,-in the absence of any evidence that the selection of grand jurors in May, 1880, was in fact made without discrimination against colored citizens, because of their race,-it should be assumed that the jury commissioners then appointed followed the statutes of Kentucky so far as they restricted the selections of grand jurors to citizens of the white race.

For these reasons it is adjudged that the court of original jurisdiction erred in overruling the motion to set aside the indictment; and, consequently, that the court of appeals of Kentucky erred in affirming its judgment.

The judgment of the court of appeals of Kentucky is reversed, and the cause remanded to that court, to be thence remanded to the Fayette circuit court, with directions to set aside the indictment.

FIELD, J., adheres to the views expressed by him in his dissenting opinions in Ex parte Virginia, 100 U.S. 349, and in Neal v. Delaware, 103 U.S. 398; and therefore dissents from the judgment in this case.

WAITE, C. J., dissenting, with whom concurred GRAY, J.

I am unable to concur in this judgment. In my opinion it is not to be presumed that the courts or the officers of Kentucky neglected or refused to follow the rulings in Strauder v. West Virginia after the judgment in that case was pronounced by this court. The court of appeals promptly recognized the authority of that case, and, in the absence of any proof to the contrary, it seems to me we must assume the inferior courts also did.


text: Talk:Bush v. Commonwealth of Kentucky/Opinion of the Court

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Kendall v. United States (107 U.S. 123)

T. W. Bartley, for appellant.

''Sol. Gen. Phillips'', for appellees.

HARLAN, J.

title: Kendall v. United States (107 U.S. 123)


text: Talk:Kendall v. United States (107 U.S. 123)


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Kendall v. United States (107 U.S. 123)/Opinion of the Court

It is provided by the act of March 3, 1863, amending that of February 24, 1855, establishing the court of claims, 'that every claim against the United States, cognizable by the court of claims,'-that is, such as the government permits to be asserted against it by suit in that tribunal,-'shall be forever barred, unless the petition, setting forth a statement of the claim, be filed in the court or transmitted to it under the provisions of this [that] act within six years after the claim first accrues.' After providing that claims which had accued six years before the passage of that act shall not be barred if the petition be filed in, or transmitted to, the court within three years after the passage of that act, and after declaring that the claims of married women, first accrued during marriage, of persons under the age of 21 years, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in court or transmitted within three years after the disability has ceased, the statute proceeds: 'But no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively.' 12 St. p. 767, § 10.

The same statute also provides that, in order to authorize a judgment in favor of any citizen of the United States, it shall be set forth in the petition that the claimant, and the original and every prior owner thereof, where the claim has been assigned, has at all times borne true allegiance to the government of the United States, and, whether a citizen or not, that he has not in any way voluntarily aided, abetted, or given encouragement to the rebellion against the government, which allegation may be traversed by the government; and if on trial such issue shall be decided against the claimant, his petition shall be dismissed. Id. 767.

Appellant's claim arose on or about the last day of December, 1865. His petition was not filed within six years from that date, and not until November 22, 1872. The government pleaded limitation, and the petition was dismissed upon the ground that the claim was barred.

Claimant was engaged in the service of the insurgent government, but he insists that in virtue of the amnesty proclamation of December 25, 1868, his disabilities were removed, and his rights, privileges, and immunities, under the constitution, restored. His specific contention is that, within the true meaning of the statute, his claim was not cognizable by the court of claims, and did not accrue, until he was in such position that he could invoke its jurisdiction. That, it is asserted, was impossible before the promulgation of the amnesty proclamation of December 25, 1868.

We said in McElrath v. U.S. 102 U.S. 440, that the government could not be sued except with its consent, and that it may restrict the jurisdiction of the court of claims to certain classes of demands. The acts in question do contain restrictions which that court may not disregard. For instance, where it appears in the case that the claim is not one for which, consistently with the statute, a judgment can be given against the United States, it is the duty of the court to raise the question whether it is done by plea or not. To that class may be referred claims which are declared barred if not asserted within the time limited by the statute. What claims are thus barred? The express words of the statute leave no room for contention. Every claim-except those specially enumerated-is forever barred unless asserted within six years from the time it first accrued. And that there might be no misapprehension as to the intention of congress, the statute, after enumerating the cases to which the limitation of six years should not apply, declares that 'no other disability than those enumerated shall prevent any claim from being disbarred.'

The court cannot superadd to those enumerated a disability arising from the claimant's inability to truthfully take the required oath. It has no more authority to ingraft that disability upon the statute than a disability arising from sickness, surprise, or inevitable accident, which might prevent a claimant from suing within the time prescribed. Appellant's claim, if any he has or had, accrued, within the meaning of the statute, when the government came under a legal obligation to pay the amount thereof. In other words, it accrued against the government when, had the transaction recited in the petition occurred with a citizen, it would have accrued against that citizen. That the claimant was, at that time, or any time prior to December 25, 1868, unable by reason of his connection with the rebillion-a circumstance for which the United States was in nowise responsible-to comply with the terms upon which the government had consented to be sued in the court of claims, is his misfortune, and cannot have the effect of enlarging the time fixed by the statute of limitations. His remedy, if the claim be a valid one, is to apply to the legislative department of the government. The courts cannot, in view of the language of the statute, exclude from computation, on the issue of limitation, the time intervening between the accruing of the claim in 1865 and the promulgation of the amnesty proclamation.

The judgment must be affirmed. It is so ordered.


text: Talk:Kendall v. United States (107 U.S. 123)/Opinion of the Court


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Potter v. United States (107 U.S. 126)

This was an action brought against George F. Potter and the sureties on the official bond given by him as receiver of public moneys in the Pembina land district in the territory of Dakota. The bond bore date August 3, 1870, and its condition was that Potter should 'truly and faithfully execute and discharge all the duties of his said office according to law.' The declaration alleged that Potter was appointed receiver of public moneys as aforesaid for four years, beginning June 7, 1870; that after the delivery of said bond and prior to June 30, 1874, there legally came into his hands as receiver of public moneys as aforesaid the sum of $8,564.77, which he had refused and neglected to account for or pay over to the United States, and still so neglected and refused.

Only the sureties on the bond answered. The defense set up in their answer and relied on was as follows:

'That from and after said September 30, 1873, there never was any register at the land-office at Pembina; that there were no legal sales of land or receipts of moneys at said land-office for any purpose during all the time from said thirtieth day of September, 1873, to the end of the time that said Potter held the office of receiver of said land-office.'

The parties waived a jury and submitted the issues of fact as well as of law to the court. Upon the trial of the case, as shown by the bill of exceptions, the United States offered in evidence certified copies of the accounts rendered by Potter for four quarters, to-wit, the quarters ending respectively September 30 and December 31, 1873, and March 31 and June 30, 1874, which showed a balance against him of $8,564.77, which he had not accounted for or paid over.

By way of defense testimony was offered, which, as stated by the bill of exceptions, 'proved' that one Brashear, from the summer of 1871 until the expiration of the term of office of Potter, was register of the land-office at Pembina; that from and after September 23, 1873, Brashear was not present at said land-office, but on the day last named 'left Pembina and said land-office, and never returned, but continued to hold said office of register during Potter's term of office,' which expired in June, 1874; 'that before leaving the office be signed a large number of printed blanks, covering all the various business of the register of said land-office, and left them with one William R. Goodfellow, who was a clerk in the custom-house in said Pembina, and had nothing to do with said land-office, except that he was authorized by said Brashear to act for him in his absence; and that all the business of said land-office, so far as the said register was concerned, was done by said Goodfellow with the blanks so signed by said register as aforesaid.' The bill of exceptions further showed that testimony was offered which proved 'that the said receiver, George F. Potter, left said Pembina and said land-office on the eighth or ninth of April, 1874, and did not return until the last of June or the beginning of July, 1874, and that no one was in charge of said land-office while said receiver was gone except said Goodfellow; that on the return of said Potter he received no money from said Goodfellow on account of said office, and that he did receive from his son the sum of two or three hundred dollars, and no more; that Goodfellow took in, during the absence of said Potter, some $1,400 of money belonging to said land-office, and paid the same over to said son of said Potter, from whom it was all stolen, except the two or three hundred dollars which was paid over by him to said Potter.' Upon this evidence the counsel for the sureties on the bond of Potter contended that 'they were not liable for any moneys received at said land-office for any business done therein in the absence of either the register or receiver.' The court decided against the contention of the defendants, and rendered judgment against them for the sum of $6,406.30, which included moneys received by Potter after as well as before September 23, 1873. To this ruling and judgment of the court the defendant excepted. The purpose of the writ of error is to obtain a review in this court of the question raised by this exception.

''Chas. E. Flandrau'', for plaintiffs in error.

Asst. Atty. Gen. Maury, for defendants in error.

WOODS, J.

title: Potter v. United States (107 U.S. 126)


text:
Page:Dictionary of National Biography volume 60.djvu/134

 in February 1732–3 was presented to the rectory of Depden. On 16 Dec. 1732, under the pseudonym of ‘Richard Hooker of the Inner Temple,’ he began to edit a periodical entitled ‘The Weekly Miscellany.’ Not being very successful, it was discontinued on 27 June 1741. From the number of religious essays it contained it became known as ‘Old Mother Hooker's Journal.’ It is chiefly memorable for the attacks made in its columns on William Warburton's ‘Divine Legation of Moses.’ Webster's contributions to the controversy were republished probably in 1739, under the title of ‘Remarks on the Divine Legation’ (London, 8vo). They earned him a place in the ‘Dunciad,’ Pope, in 1742, inserting a passage (bk. ii. l. 258) in which Webster was coupled with George Whitefield, who had also criticised Warburton (, Works, ed. Elwin and Courthope, iv. 17, 333, ix. 205, 207).

In 1740, from materials furnished by a merchant in the trade, Webster published a pamphlet on the woollen manufactory, entitled ‘The Consequences of Trade to the Wealth and Strength of any Nation. By a Draper of London’ (London, 8vo). It had a large sale, and when the demand began to subside he penned a refutation of his own arguments, under the title ‘The Draper's Reply’ (London, 1741, 8vo), which went through several editions.

In July 1740 he was instituted to the vicarages of Ware and Thundridge in Hertfordshire, which he retained till his death, resigning his rectory and curacy. In later life he fell into great poverty, and after vainly petitioning the archbishops and bishops for charity, he opened his woes to the public in ‘A plain Narrative of Facts, or the Author's case fairly and candidly stated’ (London, 1758, 8vo). He died unmarried at Ware on 4 Dec. 1758. Christopher Smart [q. v.] addressed to him his seventh ode, complimenting him on his ‘Casuistical Essay on Anger and Forgiveness’ (London, 1750, 12mo). Webster was a voluminous writer. Among his works not already mentioned are: 1. ‘The Clergy's Right of Maintenance vindicated from Scripture and Reason,’ London, 1726, 8vo; 2nd edit. 1727. 2. ‘The Fitness of the Witnesses of the Resurrection of Christ considered,’ London, 1731, 8vo. 3. ‘The Credibility of the Resurrection of Christ,’ London, 1735, 8vo. 4. ‘A Complete History of Arianism from 306 to 1666. To which is added the History of Socinianism, translated from the French of the learned Fathers Maimbourg and Lamy,’ London, 1735, 2 vols. 4to. 5. ‘Tracts, consisting of Sermons, Discourses, and Letters,’ London, 1745, 8vo. 6. ‘A Vindication of his Majesty's Title to the Crown,’ London, 1747, 8vo. 7. ‘A Treatise on Places and Preferments,’ London, 1757, 8vo.

[Nichols's Anecdotes of Bowyer, 1782, pp. 83, 539–42; Venn's Biogr. Hist. of Gonville and Caius Coll. 1897, i. 427, 518; George III, his Court and Family, 1821, i. 99; Clutterbuck's History of Hertfordshire, iii. 280, 308; Davy's Suffolk Collections in Brit. Mus. Add. MS. 19166, pp. 269–73.]

WECKHERLIN, GEORG RUDOLPH (1584–1653), under-secretary of state in England, was born at Stuttgart on 15 Sept. 1584. He studied jurisprudence at the university of Tübingen, where he made many distinguished acquaintances, as attested by the inscriptions in his album, lately extant but now lost. He appears to have entered the diplomatic service shortly after leaving the university, and to have discharged numerous missions in Germany and France. He also, at some date between 1607 and 1614, spent three consecutive years in England, which he probably visited in the train of the Würtemberg ambassador, Von Büwinckhausen. In 1614 he was again at Würtemberg, where he became private secretary to the duke, and continued there until some period between 1620 and 1624. This residence at home, however, was interrupted by a visit to England in 1616, when, on 13 Sept., he married Elizabeth, daughter of Francis Raworth of Dover. After April 1624 his correspondence, preserved in the state paper office, shows him to be discharging the duty of an under-secretary of state, and to have been regularly employed until 1641 in drafting, deciphering, and translating official correspondence. He accompanied Charles I in his expedition against the Scots, but continually complains of the unremunerativeness of his post, and upon the breaking out of the civil war he took part with the parliament. In February 1644 he was made ‘secretary for foreign tongues’ to the joint committee of the two kingdoms, with an annual salary of 288l. 13s. 6½d., equivalent to nearly 1,000l. at the present day. This position he held until 13 March 1649, when, upon the constitution of the council of state, he was displaced by Milton. No mention is made of him in the resolution of the council appointing Milton, and the cause of his removal or resignation was probably ill-health, as his death was reported in Germany, and his countryman Mylius shortly afterwards found him suffering from gout. On 11 March 1652 he was, notwithstanding, appointed, at a salary of 200l. a year, assistant to Milton, who was fast losing his sight. He was succeeded by Thurloe on 1 Dec. of


text: Talk:Potter v. United States (107 U.S. 126)


text:
Potter v. United States (107 U.S. 126)/Opinion of the Court

The answer of the defendants does not allege that the moneys for which the court rendered judgment against them were received by Potter after September 23, 1873, and during the absence of Brashear, the register. Neither does the bill of exceptions profess to state all the evidence in regard to the absence of Brashear and Potter from their offices respectively. Passing by these defects in the record, we shall consider the question presented by the exception of defendants. Their first contention is that they are not responsible for any moneys received by Potter, the receiver, during the time that Brashear, the register, was absent from the land-office. The ground of this contention is as follows: The record shows that during Potter's term of office all sales of land were either by pre-emption or commutation of homesteads. The argument of plaintiffs in error applies only to pre-emption sales. Section 2259 of the Revised Statutes of the United States prescribes what persons are entitled to pre-emption and upon what terms the right of pre-emption is accorded to the settler upon the public lands. Section 2263 declares that 'prior to any entries being made under and by virtue of the provisions of section 2259, proof of the settlement and improvements thereby required shall be made to the satisfaction of the register and receiver of the land district in which such lands lie,' etc. The plaintiff in error contends that these officers constitute a joint tribunal, and that there can be no business done without the presence and action of both. And as Brashear, the register, was absent from September 23, 1873, to the close of Potter's term, there could be no legal pre-emptions during that time, and that all moneys paid for pre-emptions before the conditions prescribed by law had been complied with, were not payments made to the United States, but unauthorized and unofficial payments made to the receiver, for which his sureties were not liable.

In our judgment this contention has no ground to stand on. There is no expression in the statute which requires the register and receiver to sit at the same time and concurrently pass upon the sufficiency of the proof of settlement and improvement by pre-emptors. If the proof is submitted to the register on one day and he is satisfied, there is nothing in the statute which implies that it may not be lawfully submitted, at some subsequent day, to the receiver for his approval. The oath of the pre-emptor, which is part of the proof required by law, may be taken before either the register or receiver. Section 2262; Lytle v. State, 9 How. 314. They are nowhere required to meet and jointly consider the sufficiency of the proof offered. If both are satisfied, that is all the law requires.

It does not appear in the record that the proof by pre-emptors of the settlement and improvement of the lands for which money was received by Potter during the absence of Brashear had not been made to his satisfaction before he left the land district. If such proof had been made to the satisfaction of Brashear, all that was necessary to complete the right of the pre-emptor was the approval of Potter, which was effectually expressed by his receipt of the money. What the law requires is that the conditions requisite to a pre-emption entry should be shown to have been performed to the satisfaction of both officers. As it does not appear in the record that the proof was not made to the satisfaction of both officers, it must be presumed that the money received by Potter in the absence of Brashear was justly due the United States, and was received by him in his official capacity. We find nothing either in the cases or statutes cited by counsel for plaintiffs in error which tends to establish a different construction of the law. But if it be conceded that the statute required the register and receiver to pass concurrently upon the proof of the settlement and improvement before lands could be entered by a pre-emption, we are, nevertheless, of opinion that the plaintiffs in error are responsible for the moneys received by Potter. The moneys were received by him as public moneys, for he charged himself with them in his accounts with the government. They were paid as public moneys by pre-emptors as a consideration for title to portions of the public domain. If any objection could be raised to the transfer of title to the pre-emptors, it could be made by the United States only. But the United States makes no objection. On the contrary, all objection is waived by the bringing of this suit by the government to recover the moneys paid by the pre-emptors for their lands. These moneys are, therefore, public moneys. They belong neither to Potter not the pre-emptors, and must, consequently, be the property of the United States. It was, therefore, the duty of Potter, as receiver, to account for and pay to the United States the moneys so received, and it does not lie in the mouths of the sureties on his official bond to raise an objection to the payment of the moneys to him which he could not raise, and which is not raised by the pre-emptors or by the United States. Their responsibility for the money so received is therefore clear.

In support of this view the case of King v. U.S. 99 U.S. 229, is in point. That was a suit brought against one Chase and his sureties, on the bond given by Chase as collector of internal revenue, to recover taxes collected by him, and never accounted for or paid over. The facts were that on June 1, 1868, the Toledo, Wabash & Western Railroad Company was indebted to the United States in a large sum for the 5 per cent. tax for interest paid on its first-mortgage bonds. The tax, was, on the day named, paid to Chase by the treasurer of the railroad company. At the time of the payment the treasurer delivered to Chase the monthly returns of the taxes so due, in the form prescribed by law, signed by him as treasurer, but not sworn to, and which had never been filed with or delivered to the assessor. Chase delivered to the assessor all these returns, except those for August, September, and October, 1867, which were never delivered, nor did Chase at any time make any mention of them in his report to the government, and he retained the amount $24,923-paid by the railroad company as the tax upon the returns for the three months just mentioned. Five years after the receipt by Chase of this money, and when he had become insolvent, suit was brought on his official bond to recover the money so appropriated by him. The defense set up by his sureties was that, as the money was not received by Chase on any return made to the assessor, or on any assessment of said taxes made by the assessor or by the commissioner of internal revenue, and as the return delivered to Chase by the treasurer of the railroad company was not verified by oath, it was a voluntary deposit of money in his hands by the treasurer of the railroad company, and was not received by him in his official capacity; that it was not his duty to receive it for the government; and the sureties were not liable, because its receipt was an unofficial act. But the court held that the payment of the taxes to the collector was a good payment to him in his official capacity; that the money so paid was the money of the United States; and that the sureties on his bond were responsible for it. This case is so apposite to the question in hand, and so conclusive, as to require no further remark.

It is next contended by the plaintiffs in error that they are not liable for the $1,400 received during the absence of Potter, extending from April 9 to June 30, 1874, by the person whom he had left in charge of his office, because that person had no authority to perform any of the duties of receiver.

There are two sufficient replies to this contention: First, no such defense is set up in the answer or amended answer of the plaintiffs in error. They cannot complain that the circuit court did not give effect to a defense which they did not think it worth while to plead. Second, it is not made to appear by the bill of exceptions that any money was paid to Goodfellow, the person left by Potter in charge of his office, which was not due the United States from pre-emption entries made by persons who had proved the settlement and improvement of the land to the satisfaction of both the receiver and register. If, therefore, this contention of the plaintiffs in error is sustained, we should, in effect, decide that the sureties of the receiver would not be answerable for public moneys paid, with his concurrence and assent, to his assistant or cashier, but only for money actually paid into the hands of the receiver himself. It requires no argument to expose the fallacy of such a conclusion. If a public officer sees fit to allow the money of the government to be paid during his absence from his office into the hands of his agent or servant, it is a good payment to him, and the risk is with him and his sureties, and not with the government.

We find no error in the record.

The judgment of the circuit court is, therefore, affirmed.


text: Talk:Potter v. United States (107 U.S. 126)/Opinion of the Court


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Hoffheins v. Russell

''Geo. H. Christy and J. H. B. Latrobe'', for appellant.

''Geo. Harding and John R. Bennett'', for appellees.

BLATCHFORD, J.

title: Hoffheins v. Russell


text: Talk:Hoffheins v. Russell

title: Talk:Hoffheins v. Russell


text:
Hoffheins v. Russell/Opinion of the Court

This suit is brought for the infringement of two reissued letters patent granted to the appellant. One, No. 2,224, was issued April 10, 1866, for an 'improvement in harvesters;' the original patent, No. 35,315, having been issued to him May 20, 1862. The other, No. 2,490, was issued February 19, 1867, for an 'improvement in harvesters;' the original patent, No. 40,481, having been issued to him November 3, 1863, and reissued in two divisions, one, No. 1,888, February 28, 1865, and the other, No. 2,102, November 7, 1865,-and No. 2,490 having been issued on the surrender of No. 2,102.

No. 2,224 contains 19 claims, and No. 2,490 contains 9 claims. In No. 2,224 claims 1, 8, 9, 11, 12, 14, 16, and 19, and in No. 2,490 claims 1, 2, 6, 7, and 9, are alleged to have been infringed. The circuit court rendered a decree that the appellees had not infringed any invention of which the appellant was the original and first inventor, recited in the two reissues sued on; that No. 2,224 'contains inventions different from that contained' in No. 35,315; that No. 2,490 contains inventions different from that embraced in No. 40,481; that the said reissues respectively are, therefore, void; and that the bill be dismissed. From this decree this appeal is taken. In No. 2,224 the claims in question are these:

'(1) A sweep-rake, which is mounted upon the heel of the     finger-beam proper, or upon the inner front corner of the      platform of a harvester which has its cutting apparatus and      platform hinged to the draft-frame, all in such manner that      the rake-arm sweeps the platform from front to inner side,      and maintains a correct position in relation to the      finger-beam and platform during the rising or falling      movements thereof on the joint or joints by which the      finger-beam is connected to the draft-frame, substantially as      set forth.' '(8) In a harvesting machine which has its      cutting apparatus hinged or jointed to the main frame in such      manner as to allow it to conform at both ends to the      undulations of the ground, and a rake mounted upon the said      cutting apparatus, or upon the platform thereof, I claim so      constructing and arranging the several parts that the support      of the rake can occupy a position outside of the inner      drive-wheel, B, or a position which is between the point of      suspension, pension, h, and the outer divider, G, and can      also be hung or be suspended below the draft-frame,      substantially as described.' '(9) Effecting a combination of      a rake and reel, located substantially as described, and a      finger-beam and platform, with the main frame, by means of a      hinged draw-bar, b, and hinged brace, I, or hinged      suspender,f, and an extension bracket, 2, or their      equivalents, substantially as and for the purposes      described.' '(11) Preventing a too sudden or abrupt      deflection of a rake and reel mounted upon a hinged-joint      cutting apparatus, by carrying the point of suspension beyond      the rake-support towards the center of the draft-frame, by      means substantially as described.' '(12) A      continuously-revolving rake, which is mounted directly and wholly upon the platform      or finger-beam, so as to rise and fall therewith      independently of the draft-frame, when said rake is located      between the center of the draft-frame and the outer divider,      and passes in at the front of the machine upon the platform      and sweeps around to the inner side of the platform,      substantially as described.' '(14) The combination of a      suspended hinge-joint cutting apparatus of harvesters, and a      combined rake and reel, which is mounted directly and wholly      upon the suspended platform or hinged finger-beam,      substantially as and for the purpose described.' '(16) The      combination of a combined rake and reel, mounted upon a      hinged-joint cutting apparatus, and a yielding      belt-tightener, substantially as and for the purpose      described.' '(19) Providing, in a harvester with the rake      attached to its hinged finger-beam or platform, an extensible      means for driving the rake, which will permit the platform      and rake to rise and fall together, and accommodate      themselves independently of the draft-frame to the      undulations of the ground, substantially as described and for      the purpose set forth.'

The original patent, No. 35,315, in stating what the invention is, says that it consists of certain improvements 'in the manner of mounting and operating a revolving rake.' There were three features set forth in the specification of No. 35,315: (1) the peculiar construction of the reel and rake; (2) the peculiar form and location of the rake-post; (3) the peculiar manner of operating the rakes. There were only three claims in No. 35,315, one covering each of said three features, as follows:

'(1) A combined reel and rake, rotating upon a vertical axis,     and having its arms successively turned up into an inverted      position to pass over the main frame, substantially as      explained.' '(2) The inclined standard, I, rigidly mounted      upon a loosely-hinged platform, and employed to support a      revolving reel and rake in an unchangeable position in      relation to the said platform, without obstructing the free      motion of the latter.' '(3) The yielding and swiveled rod, Q,      operating in combination with the band, P, and pulleys, O and      R, in the manner and for the purposes herein shown and      explained.'

A copy of the model filed in the patent-office with the original application for No. 35,315 is in evidence. The invention shown in the specification of No. 35,315 consists, in general terms, in mounting a rake upon a quadrant-shaped platform, said platform being hinged to the frame of a two-wheeled machine in such manner that the raking-arms will maintain at all times a proper working position relatively to the surface of the platform and at the same time receive motion from driving mechanism mounted on the main frame; the result being accomplished by constructing the raking apparatus in a peculiar manner, and mounting it in a peculiar manner upon the platform of the machine, and also by connecting the driving mechanism of the rake with the driving mechanism on the main frame by a belt mounted in a peculiar manner, so that the varying changes in the position of the platform and the raking apparatus, relatively to the main frame and the gearing therein, will not affect the driving mechanism of the rake. The specification says:

'D is a segmental platform, provided with a divider, E, at     its outer end, and resting upon a roller, e. F is a draw-bar      connected at front by a universal joint to the frame, A, and      attached at back to a shoe, f, upon which the inner side of      the platform may rest. G is a lateral brace-rod, hinged at     one end beneath the right-hand rear corner of the main frame,      and at the other to the draw-bar, F, or shoe, f. H is a link      by which the inner end of the platform is suspended from the      back of the main frame.'

This language describes the parts which relate to the platform and the devices by which it is attached to the main frame, and by which it is permitted to vary its movement relatively to the main frame, to conform to the unevenness of the ground, and there is nothing else on the subject in the text of the specification. In the drawings of No. 35,315, the suspending link, H, by which the inner side of the platform is suspended from the main frame, so as to keep it on a level with the wheel at the outer shoe, at the opposite side of the platform, is attached at its lower end to an arm which extends out from the platform nearly to, but short, of, the middle of the width of the tread of the left-hand driving-wheel, B, but the drawing represents the central line of the link, H, as in the vertical plane of the left-hand edge of the tread of the wheel, B, so as to put the point of suspension in a vertical line with the left-hand edge of the tread of the wheel, B. The model referred to shows the link as being suspended at a point on the frame to the right of the vertical plane of the left-hand edge of the tread of the wheel, but not to the right of the vertical plane of the middle of the width of the tread. In the reissue great stress is laid upon this point of suspension. In the specification of the reissue it is said:

'From the inner corner of the finger-beam or platform, or     from the metal foot-piece of the rake and reel-support, by      which the support is screwed to and braced on the platform      and finger-beam, a strong bracket, 2, is extended beyond the      left-hand side-beam of the draft-frame. To the extremity of     this arm a swinging link or chain, f, is loosely connected or      jointed, as at g, and by means of this link or chain the      finger-beam, platform, and rake, though arranged at the left      of the left-hand drive-wheel, B, can be suspended from a      point which is to the right of the said left-hand side-beam. The suspension is effected by hanging the upper end of the     link or chain to the rear beam of the draft-frame, as      represented at h.'

In the drawings of the reissue the point of suspension of the link is located a little to the right of the vertical plane of the middle of the width of the tread of the left-hand driving-wheel, and the arm or bracket to which the lower end of the link is attached extends to a point beyond, and at the right hand of the middle of the width of such tread. In the specification of No. 35,315 the word 'finger-beam' is not found, nor is a finger-beam described in it or shown in the drawings.

As to the method of mounting the rake, the specification of No. 35,315 says:

'I is a post rigidly secured to the inner side of the     platform, and inclining over the rear of the main frame; i is      a brace-rod extending from the draw-bar to the said post, to      support the latter at top; J is a box mounted on the top of      the post, I, and constituting the bearing in which the disk,      K, rotates. The rakes or reel-arms, L, L', are mounted in     couples upon the ends of horizontal shafts, M, M', which are      journaled at right angles across the rotating disk, K.'

This is all that is found in that specification as to the location of the axis of the rake. On the other hand, the specification of the reissue says: 'Figure 9 is a rear elevation of a portion of the machine, showing the manner of suspending the rake and reel-support upon the hinge-joint finger-beam or platform thereof.' The drawings of the reissue show a finger-beam, and it is lettered, and referred to by letter in the text. The specification of the reissue further says:

'It is also important to have the suspension of the rake made     in such a manner that the base of the support of the axis of      the rake is wholly upon the hinged finger-beam, or the      platform thereof, and also that the rake, the finger-beam,      and the platform shall be rigidly connected together.'

Here the word 'finger-beam' is again introduced, as important in connection with the support of the axis of the rake. The expert for the defendants states that the drawings of No. 35,315 show the base of the support of the rake so far back, or to the rear of the front edge of the platform, that it cannot, in his opinion, be brought in contact with the finger-beam, without changing its locality very materially, or the mode of its construction or attachment. But the specification of the reissue says:

'D is the finger-beam and E the platform of the harvester,     the cutting apparatus and guard-fingers being left off. F is     a support for a combined rake and reel. This support is     mounted rigidly upon the inner front corner of the platform      and heel of the finger-beam, but it may be mounted either      wholly on the finger-beam or wholly on any part of the      platform, which is to the left of the left-hand drive-wheel,      B, or to the right of said drive-wheel, if it is a right-hand      machine.'

There is no warrant in the original patent for locating the rake-support, or any part of it, on the finger beam.

As to claim 1 of the reissue, the finger-beam is made an element of the combination, while in the specification and drawings of No. 35,315 there is no reference to a finger-beam. Moreover, the raking apparatus of the appellant is so constructed that when one of the arms has descended to force the grain towards the platform and to sweep across the platform, the opposite arm must be raised to such a point as to clear the wheel of the machine. The arms are in pairs, and the motion of one arm of a pair is controlled by the motion and operation of the opposite arm of that pair. The inclination of the two to each other is such that when one is sweeping across the platform the other forms an exactly opposite angle to the axis on which they both revolve. Therefore, the support of the rakes must be so mounted that they can descend to the grain at the proper point in front of the cutters to press in the grain and sweep across the platform form and deliver the gavels and then rise out of the way of the frame. To effect this, the point of vibration of the pair of arms must be raised so high and carried over towards the frame so far, that the descending arm may reach its proper position to do its work, while the other arm of that pair shall clear the frame in rising. Therefore, the support of the raking apparatus was required to be of such form and character, and so placed relatively to the platform and frame, that one arm of a pair would not interfere with the working of the other arm of the same pair. Now, the arms of the raking apparatus are diametrical arms, the centers of which are axes mounted on a horizontal head, which head is so fastened on a vertical shaft that, the opposite ends of the arms being inclined to the axis of rotation, one end of one arm will descend and sweep across the platform, while the other will be carried in an exactly opposite direction, with its rake teeth turned up, while the teeth of its opposite arm are turned down. In such an arrangement, the bearing point or axis of rotation of the arms must be carried up a considerable distance above the platform and reach over in a diagonal direction from the front edge of the cutters to the delivery edge of the platform, so that the rake at its end next the base of the rake-support may be brought close enough to the platform to do its work. Hence, the inclined post of No. 35,315, described as so inclined and thus claimed in claim 2 of that patent. But in the specification of the reissue, though the drawings show the same sort of inclined post or standard, it is said:

'From the platform or finger-beam the support may extend in     an inclined position as high as the top of the draft-frame,      and then take a turn over towards the center of said frame,      as represented, so as to form a support for the rake and reel      which shall be somewhat higher than the frame and between the      two drive or supporting wheels. The particular shape and     height of this support is not very material, so long as the      base of it is affixed at some point between the center of the      main frame, A, and the outer shoe or divider, G.'

The special kind of support described and shown in the patents, original and reissued, is essential to the operation of the special kind of raking apparatus there described. But the appellees' machine has a raking apparatus differently organized. In it each arm moves independently of every other arm, the arms are not coupled in pairs, and each does its work without reference to the movement of any other. Therefore, it is unnecessary to raise the supporting porting point of the rake-amrs to any considerable height, or to carry it over to a location between the drive-wheels, and in the appellees' machine the pivot on which the rakes revolve is at a considerable distance towards the outer shoe and is not all between the drive-wheels. The appellees' sweep-rake is not substantially such a sweep-rake as is referred to in claim 1 of the reissue, nor is it mounted in such a manner as to perform the functions of the appellant's rake. The rake-post in the appellees' machine is vertical and not inclined, and is mounted on the shoe or inner end of the finger-beam.

In analyzing the two machines, in view of the state of the art, it appears that the appellant adapted a continuously-revolving gathering and discharging rake to a two-wheeled loosely-jointed finger-bar machine. To do this he employed a peculiar rake and a peculiar rake-support. The appellees employ an entirely different rake. They have a series of radial arms pivoted each independently of every other in a head, which has a double cam guideway for each arm, and the arms are thereby elevated vertically so as not to strike the frame in passing up. This makes it possible for the appellees to place the support for their rake on the finger-beam by the side of the frame and in the line of the cutters, instead of behind the frame. No such organization is possible with the appellant's arrangement of rakes. The center of movement of his rakes must be brought in line with the cutters by having an inclined rake-post, the base of which is not in a vertical line with the line of the cutters. He shows no mode of placing the base of the post on the finger-beam. If it were placed there, with his arrangement of rake-arms, and his inclined post, the center of motion of the arms would be so far out of its proper position that the arms would not do their work. Having independent radial arms, the appellees can have a vertical and not an inclined rake-post, and can bring the center of motion of the arms in a line with the cutters by mounting the vertical post on the finger-beam. They do this, and for that purpose they have a bridge over the inner shoe of the finger-beam for the foot of the rake-post to rest on, while at the same time the cutters can vibrate under the bridge. The post is hollow and supports the cam guideway, and the vertical shaft which revolves the rakes passes up in and through the hollow post. The appellees have not borrowed from the appellant. They devised a new arrangement of rake which made it possible for them to mount their rake-support on the heel of the finger-beam proper, where the appellant can never mount his, and where that of the appellees is mounted. The theory of the reissue appears to be that, as the original patent shows a special device for supporting a special arrangement of rakes, such device being located on a particular part of the platform other than, and not possible to be, a part of the finger-beam, he can claim in a reissue any device for supporting a revolving rake, even one located on the finger-beam. To carry out this view, the word 'finger-beam' is interpolated in the specification, in this connection, as an addition to the word 'platform,' and the rake-post is described as being attached to the finger-beam or the platform. But there is an entire absence in the original specification, and in the reissued specification, of any description of any means by which the rake-support can be attached to or mounted on the finger-beam, or by which the rakes can be made to work with the rake-support in that location, or by which the connecting-rod of the cutters can be free to work with the support so placed. The law of reissues never at any time, or under any construction, allowed that to be done which has been thus attempted in this case. The foregoing views apply also to claims 8, 9, 11, 12, 14, 16, and 19, being all the other claims alleged to have been infringed, and each of which has, as an element, either a rake, or a rake and reel, mounted on or attached to the cutting apparatus or the finger-beam.

In the reissue claim 2 is substantially the same as claim 1 of the original, claim 5 (with the interpolation of the finger-beam) is intended to take the place of claim 2 of the original, and claim 18 corresponds with claim 3 of the original. Yet the appellees' machine is not alleged to infringe either claim 2, claim 5, or claim 18 of the reissue; nor does it embrace what was covered by any one of the three claims of the original. As to the yielding belt-tightener of the appellant, which is the subject of claim 3 of the original patent and is an element in claim 16 of the reissue, the appellees' machine does not employ any device which performs the function of tightening a belt. It uses, to communicate motion from the main axle to the raking apparatus, an old form of chain belt, composed of square open links, connected by loops of metal between the links, and the links arranged to run over sprocket-wheels, which have teeth on them corresponding to openings in the links of the chain, and which prevent the chain from slipping on the wheels. As the links of the chain engage positively with the teeth on the sprocket-wheels, there is no need of a belttightener, as no slackness in the chain can interfere with the driving action. The only function of the appellees' device which holds up, by a yielding pressure, the under part of the chain-belt, is to so guide that part, when slack, that the teeth on the sprocket-wheels may readily enter the links of the chain. The appellant's belt could not, in the same position, drive the raking apparatus so as to make it work properly. The appellees, by the use of sprocket-pulleys and a chain, dispense with a tight friction-band, and with a pulley around which the platform vibrates, and with a tightening pulley. Their arrangement is not an equivalent, in mechanism or functions, for that of the appellant.

It is made an element of claim 11 of the reissue that the point of suspension of the platform to the main frame is carried beyond the rake-support towards the center of the draft-frame, by means described in the specification, so as to prevent a too sudden or abrupt deflection of the rake and reel. The specification of the reissue says that 'it is important that the great weight of the rake, finger-beam, and platform shall not cause the draft-frame to tilt over on its right-hand drive-wheels by sudden and abrupt motions, but shall tend to insure a square run of the draft-frame upon the ground during the pitching or rising and falling motions of the finger-beam, platform, and rake, and thus an even and easy draft for the beam be secured.' But the reissue shows the point of suspension of the platform to the main frame as being nearly under the axis on which the rake-arms revolve, and said point is near the vertical plane of the middle of the width of the tread of the drive-wheel which is next to the cutters, so that the inner end of the platform is subject to all the vertical motions of such drive-wheel. The point of suspension being in the pathway of the wheel, the rising or falling motion of the wheel must be communicated to that end of the cutters which is next to such wheel. In the appellees' machine the suspension of the platform is made by an arm extending out from the finger-bar or inner shoe to a point about opposite the center of the main frame, and which arm is there suspended by a chain to a hook on the frame, so that the weight of the cutting apparatus and rake and inner part of the platform is transferred to nearly a center point between the drive-wheels. The appellant's structure shows no such organization, and does not involve what the appellees have done. For the foregoing reasons, without considering the many other questions raised in the case, it must be held that the appellant has not established any cause of action against the appellees on reissue No. 2,224.

In No. 2,490 the claims in question are these:

'(1) The combination, in a two-wheeled hinge-joint machine of     a driver's seat mounted upon the main frame, with a raking      mechanism mounted upon the finger-beam, and rotating around a      vertical axis, or one nearly so, substantially in the menner      described, for the purpose of enabling the driver to ride on      the machine while the rake is in operation.' '(2) The      combination, in a two-wheeled hinge-joint machine, of a shoe      with a hinged joint in it, with a rake and platform having an      extension, J2, and with a draft-frame which sustains the      weight of the cutting apparatus and raking apparatus, with      platform attached, at a point between the two drive-wheels.'      '(6) Driving a revolving rake, or a combined revolving rake      and reel, which move about a vertical or nearly vertical      axis, by a device arranged on the grain side of the inner      drive-wheel or inner side of the draft-frame.' '(7) Making a      direct driving connection between a revolving rake, or a combined rake and reel, which      move about a vertical or nearly vertical axis, and the inner      end of the main frame axle of the draft-frame.' '(9) The      combination of a quadrant platform, hinged finger-beam,      revolving rake, and a driver's seat supported by the main      frame.'

The original patent, No. 40,481, says that the improvements covered by it consist (1) in a peculiar construction and combination of frame, gearing, and double driving-wheels; (2) in a device for affording protection to the main crank-shaft and strengthening the main frame; (3) in the use of a movable tongue; (4) in a device for permitting the finger-beam to turn freely on its own axis. There were only four claims in No. 40,481, one covering each of said four features, as follows:

'(1) The main frame and gear-frame A, A, constructed as     described, open at each end, when used in combination with      shafts, gearing, and double driving-wheels, arranged and      operating substantially as and for the purpose specified.'      '(2) The flange, a, cast or formed upon the gear-frame for      the combined purpose of strengthening the latter and      protecting the crank-shaft, E. as hereinbefore explained.'      '(3) The movable tongues, K, adapted to be attached to the      frame on either side of the wheel, B', and employed to      support or raise the inner end of the beam.' '(4) Attaching      the shoe to the drag-bar by a transverse swivel-joint, to      permit the finger-beam to turn its axis to elevate or depress      the joints of the fingers, or to fold the beam against the      frame for transportation, when combined with bracing-guides,      h', substantially as herein described.'

Every one of the four claims of No. 40,481-the iron frame cast in one piece, the flange, the movable tongue, and the transverse swivel-joint-is omitted from the reissue, and there are no corresponding claims. The rake-support is of the same form and in the same location as in No. 35,315, inclined and mounted on the platform, and not on the finger-beam, and the inner end of the platform is suspended on the main frame in the same way as in No. 35,315. The specification of No. 40,481 says: 'On the inner side of the grain platform, near the heel of the finger-beam, is firmly mounted a post, R, which may incline over towards the main frame, as shown in figure 1.' This passage negatives the idea of mounting the post on the finger-beam, and draws a distinction between the platform and the finger-beam as a location for the attachment of the post. The only mention of a driver's seat in No. 40,481 is this: 'W represents the driver's seat.' In the specification of the reissue the following language is found:

'My first improvement consists in the combination, in a     two-wheeled hinged-joint machine, of a driver's seat mounted      upon the main frame, with a raking mechanism mounted upon the      finger-beam, and rotating on a vertical axis, or one nearly      so, substantially as hereinafter described, for the purpose      of enabling the driver to ride upon the machine while the      rake is in operation.'

Again, after describing the construction and arrangement of the rake or reel-arms, which are the same as in No. 35,315:

'By this means the rake and reel-arms will stand high enough     above the draft-frame on the inner side of the machine to      move clear of the driver, who sits upon the machine in a      seat, W, which is mounted upon the main frame, as shown, or      in any other position on the frame that will give the      greatest convenience and advantage from his weight and use of      his hands in the management of the machine.'

'From the foregoing description it will be seen that my     invention enables one to combine in a self-raking harvester      all the advantages derived from the two-wheeled hinged-joint      machine, and still use a rake that turns about an axis, or      revolves entirely about the same, and at the same time have      the driver or manager ride upon the main or draft-frame in      such a position that his weight may aid in counterbalancing      the weight of the rake and platform, and his hands may be      conveniently employed for controlling the machine.'

As to claim 1 of the reissue, although there is in No. 40,481 a driver's seat mounted on the main frame, it is not in such a position, nor can it be placed on the frame described in such a position, that the driver can ride on the seat while the appellant's rake is in operation. The appellees' raking apparatus has been above described. The appellant's raking apparatus is like that of No. 35,315 and of reissue No. 2,224. If the appellant's raking apparatus were substituted in the appellees' machine for their raking apparatus, no person could ride on the driver's seat located anywhere on the frame of the appellees' machine, as it is constructed, with the rake in operation. The seat shown in the drawings of No. 2,490 is mounted on a portion of the frame which extends to the rear of the main axle, and the seat itself is shown as placed in the rear of said axle. Consequently, a driver located on said seat would add his weight on the same side of the main axle on which the raking apparatus is mounted, so that the idea of any counterbalancing weight from the position of the driver is negatived by the arrangement. In the appellees' machine the organization of the raking mechanism, before described, is such that the driver's seat may be located towards the front of the main frame, where he cannot be struck by the rake-arms, and where his weight will aid in counterbalancing that of the rake and the platform. No such organization of raking mechanism is shown or described in No. 2,490, nor any such arrangement of seat relatively thereto. Moreover, claim 1 of No. 2,490 requires that the raking mechanism be mounted on the finger-beam. Such a construction is not shown or described in No. 2,490, or in No. 40,481. The raking apparatus in the appellees' machine is mounted directly on the finger-beam, The views hereinbefore expressed in connection with No. 2,224 apply to No. 2,490, so far as the mounting of the rake-post on the finger-beam and the arrangement of the raking mechanism are concerned.

As to claim 2, the raking apparatus is made an element in it, and the differences, before pointed out, between the two machines, in the construction of the raking mechanism and the arrangement and location of the rake-post, lead to the conclusion that the rake mentioned in claim 2 must be construed to be such a rake, and one so arranged, on a rake-post so mounted, as is shown and described in the specification, and thus does not include the appellees' raking mechanism or rake-post. As to claim 6, the driving device must be limited to one substantially the same as that of the appellant. He has an extensible tumbling-shaft. The appellees have a chain belt, with links, before described. Their arrangement requires that the axis of the driving-wheel and the driven-wheel shall be substantially parallel, while No. 2,490 requires that in the appellant's structure the axis of the two wheels, or the ends of the axes, shall incline towards each other at a considerable angle. The tumbling-shaft, if used, must be used in such a location that the chain belt would not work in the same place. The two devices are not mechanical equivalents for each other. One could not be substituted for the other without a rearrangement of parts. Their only resemblance is that both communicate motion. The place where the device is arranged, namely, as the claim says, on the grain side of the inner drive-wheel or inner side of the draft-frame, imparts no patentable or inventive quality in this case. That inheres only in the device. In regard to claim 7, the appellant's raking apparatus and driving device are elements in it, and the observations before made apply, so that the appellees' raking apparatus and driving device are not covered by this claim. Claim 9 includes the rake and the driver's seat, and under the views before stated the appellees' machine cannot be held to infringe that claim.

These conclusions make it unnecessary to consider any other question.

The decree of the circuit court is affirmed, in so far as it dismisses the bill.


text: Talk:Hoffheins v. Russell/Opinion of the Court


text:
Inhabitants of the Township of Montclair County of Essex v. Ramsdell

The judgment below was in accordance with the verdict in an action brought by the defendant in error on certain bonds, payable to Samuel Holmes or bearer, and coupons thereof payable to the holder, all dated March 17, 1870, and alleged to have been issued by the township of Montclair, Essex county, New Jersey. They are negotiable in form and purport to have been executed in pursuance of an act approved April 9, 1868, entitled 'An act to authorize certain townships, towns, and cities to issue bonds, and to take the bonds of the Montclair Railway Company'-a corporation created with authority to construct a railway from the village of Montclair to the Hudson river at Pavonia or Hoboken ferries or between those points. On the margin of each bond is the certificate of the county clerk of Essex county that it is registered in his office.

The first section of the foregoing act-which was declared to be a public act to take effect immediately upon its passage provides:

'Section 1. That on the application in writing of 12 or more freeholders, residents of any township, town, or city along the route of the Montclair Railway Company, or at the terminus thereof, (except the township of Bloomfield, in the county of Essex, which township is hereby excepted from the operation of all the provisons of this act,) it shall be the duty of the judge of the circuit court of the county wherein such freeholders shall reside, within 10 days after receiving such application, to appoint under his hand and seal not more than three freeholders, residents of such township, town, or city, to be commissioners thereof, to carry into effect the purposes and provisions of this act; said commissioners shall hold their offices respectively for the term of five years, and until others shall have been appointed.' The second and third sections are as follows:

'Sec. 2. That it shall be lawful for said commissioners to borrow, on the faith and credit of their respective township, towns, or cities such sums of money, not exceeding 20 per centum of the valuation of the real estate and landed property of such township, town, or city, to be ascertained by the assessment rolls thereof, respectively, for the year 1867, for a term not exceeding 25 years, at the rate of interest not exceeding 7 per centum per annum, payable semi-annually, and to execute bonds therefor under their hands and seals respectively. The bonds so to be executed may be in such sums, and payable at such times and places as the said commissioners and their successors may deem expedient; but no such debt shall be contracted or bonds issued by said commissioners of or for either of said townships, towns, or cities, until the written consent of the persons owning or representing as agent or president at least two-thirds of the real estate and landed property of such township, town, or city, borne on the last assessment roll thereof, at the valuation thereon appearing, shall have been obtained.

'Such consent shall state the amount of money authorized to be raised in such township, town, or city, and that the same is to be invested in the bonds of said railway company, and the signatures shall be proved by one or more of said commissioners. The fact that the persons signing such consent own or represent, as aforesaid, at least two-thirds of the taxable, real, and landed property of such township, town, or city shall be proved by the affidavit of the assessor of such township, town, or city, indorsed upon or annexed to such written consent, and the assessor of such township, town, or city is hereby required to perform such service. Such consent and affidavit shall be filed in the office of the clerk of the county in which such township, town, or city is situated, and a certified copy thereof in the office of the clerk of such township, town, or city, and the same, or a certified copy thereof, shall be evidence of the facts therein contained, and shall be received as evidence in any court of this state, and before any judge or justice thereof.


text: Talk:Inhabitants of the Township of Montclair County of Essex v. Ramsdell