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

This is an appeal from a decree of the District Court of the United States for the northern district of California, affirming a decree of the commissioners appointed under the act of the third of March, 1851, to adjudicate private land claims. Every person claiming land in California, by virtue of any right or title derived from the Spanish or Mexican Government, is required by the eighth section of that act to present his claim, together with the evidence in support of the same, to the commissioners in the first instance, for their adjudication.

Pursuant to that requirement, the appellee in this case presented his petition to that tribunal, claiming title to the island of Los Angeles, situated near the entrance of the bay of San Francisco, and praying that his claim to the same might be confirmed. As the foundation of his title, he set up a certain instrument or document, purporting to be a grant of the island to him by Governor Alvarado. It bears date at Monterey, on the eleventh day of June, 1839; and the claimant alleged in his petition to the commissioners that the grant was made under certain special orders issued to the Governor by the Mexican Government. He obtained a decree in his favor before the commissioners, and the District Court, on appeal, affirmed that decree; whereupon an appeal was taken, in behalf of the United States, to this court; and the question now is, whether the claim, upon the evidence exhibited, is valid, within the principles prescribed as the rule of decision in the eleventh section of the act requiring the adjudication to be made.

Unlike what is usual in cases of this description, it will be noticed that none of the documentary evidences of title introduced in support of the claim purport to be founded upon the colonization law of 1824, or the regulations of 1828; and for that reason we shall refer to these documents with some degree of particularity, in order that their precise import and effect may be clearly understood.

On the seventh day of October, 1837, the present claimant presented a petition to Governor Alvarado, praying for a grant of the island in question, 'to build a house thereon, and breed horses and mules;' representing, in his petition, that as early as 1830 he had made a similar request, and expressing the hope that the grant might be made.

Some further delay occurred in the contemplated enterprise of the petitioner, as appears from the fact that no action was taken on his second petition until the first day of February, 1838, when the Governor, by an order appearing in the margin of the petition, referred it, not to the alcalde of the district, but to the military commandancy north of San Francisco, for a report. That office was filled at the time by Mariano G. Vallejo, who accordingly reported, on the seventh day of the same month, that the island might be granted to the petitioner; but suggested that it would be well to made an exception in the grant, to the effect that, whenever the Government might desire or find it convenient to build a fort on the principal height thereof, it should not be hindered from so doing. With that report before him, the Governor, on the nineteenth day of February, 1838, made a decree, wherein he states that he had concluded to grant to the petitioner the occupation of the island in question, 'to the end that he may make such use of it as he may deem most suitable, to build a house, raise stock, and do everything that may concern the advancement of the mercantile and agricultural branches-upon the condition that, whenever it may be convenient, the Government may establish a fort thereon.'

Direction was given to the petitioner, by the terms of the instrument, to present himself, with the decree, not to the office where land adjudications under the colonization laws were usually recorded, but to the military commandancy, that an entry thereof might be made, for the due verification of the same.

No such note of the proceeding was ever made in the office of the military comandante, or in any book containing the adjudications of land titles. But the several documents are duly certified copies of unrecorded originals which were found in the Mexican archives. Their genuineness is controverted by the counsel for the appellants; but we do not think it necessary to consider that question on this branch of the case, for the reason that the petitioner never took possession of the island under that decree, and does not claim title under it in the petition which he presented to the land commissioners.

All that the decree purports to grant to the petitioner, in any view which can be taken of it, is the right or license to occupy the island for the purposes therein described, subject to the right of the Government to enter at any time and appropriate the premises as a site for a military fort; and inasmuch as the petitioner never availed himself of the license granted, or made any improvements on the island under the decree, it is quite clear that he had acquired no interest in the land, by virtue of that proceeding, at the date of the cession to the United States, which the Mexican Government was bound to respect.

Four other documents were introduced by the petitioner, before the commissioners, in support of his claim: 1. A despatch from the Minister of the Interior of the Republic of Mexico, addressed to Governor Alvarado. 2. A petition from the appellee to the same. 3. A duplicate copy of the grant set up in his petition to the commissioners, which is without any signatures. 4. The original grant of the island in question, which purports to be signed by the Governor, and to be countersigned by the secretary. Of these, the first three are duly-certified copies of unrecorded originals which were found in the Mexican archives.

As exhibited in the transcript, the despatch bears date at Mexico, on the twentieth day of July, 1838. By that despatch the Governor was informed that 'the President, desiring on the one part to protect the settlement of the desert islands adjacent to that Department, which are a part of the national territory, and on the other to check the many foreign adventurers who may avail themselves of those considerable portions, from which they may do great damage to our fishery, commerce, and interests, has been pleased to resolve that your Excellency, in concurrence with the Departmental junta, proceed, with activity and prudence, to grant and distribute the lands on said islands to the citizens of the nation who may solicit the same.'

In addition to what is here stated, two persons, Antonio and Carlos Carrillo, are named in the communication, to whom, on account of their useful and patriotic services, preference was to be given in making the grants, to the extent of allowing them to select one exclusively for their benefit.

Such is the substance of the despatch, so far as it is material to consider it in this investigation.

On the fifteenth day of February, 1839, the present claimant presented to Governor Alvarado another petition, wherein, after referring to the fact that the island in question had been granted to him during the preceding year, for the breeding of horses, he prays that a new title of possession may be given to him, in accordance with the superior decree, which, as he assumes, empowered the Governor to grant, for purposes of colonization, the islands near by, on the coast.

Some idea of the situation of the island, and of the importance which was attached to it in a military point of view, may be gathered from the exposition of the military comandante, made to the Governor on the seventeenth day of August, 1837. One of the purposes of that report was to recommend that the custom-house established at Monterey should be transferred to the port of San Francisco. Various reasons were assigned for the change; and among others, it was stated that the latter port was impregnable, by reason of its truly military position.

After describing the port, and expatiating upon the advantages which would flow from the transfer, the report goes on to state, that near its entrance and within the gulf are several islands, where are found water and a variety of timber most suitable for a fortification; adding, that it contains safe anchorages and suitable coves for landing goods and for storehouses, particularly the island of Los Angeles, which is one league in circumference, lying at the entrance of the gulf, and forming two straits with their points-giving their names-so that it is the key of the whole of it, inasmuch as from this very place the coming in or going out of vessels can be prevented with the utmost facility.

Suffice it to say, without repeating any more of its details, that the whole report is of a character to afford the most convincing proof that the public authorities of the Territory, as early as August, 1837, fully appreciated the importance of the island, as a necessary site to be retained by the Government for the purposes of national defence. Arch. Exh., p. 5.

Grants under the colonization laws were usually issued in duplicates-one copy being designed for the party to whom it was made, and the other to remain in the archives, to be transmitted, with the expediente, to the Departmental Assembly for its approval. They were in all respects the same, except that the copy left in the office, sometimes called the duplicate copy, was not always signed by the Governor and secretary, and did not usually contain the order directing a note of the grant to be entered in the office where land adjudications were required to be recorded.

In this case there is no expediente, other than the one presented with the first-named petition, which is not necessarily or even properly connected with the grant set up by the claimant. Two copies of this grant were produced by the petitioner, both bearing date at Monterey, on the eleventh day of June, 1839, nearly two years after the Governor received the before-mentioned exposition of the military comandante, showing the importance of the island to the Government as a site for works of defence. They are of the same tenor and effect, and both purport to be absolute grants, without any of the conditions usually to be found in the concessions issued under the colonization laws. As before remarked, the copy not signed, together with the petition, were found in the Mexican archives; but the original, properly so called, was produced from the custody of the party.

Adjudications of land titles were required by the Mexican law to be recorded. That requirement, however, was regarded as fulfilled, according to the practice in the Department of California, when a short entry was made in a book kept for the purpose, specifying the number of the expediente, the date of the grant, a brief description of the land granted, and the name of the person to whom the grant was issued. In this case there is a certificate appearing at the bottom of the instrument to the effect that such an entry had been made, but it is wholly unsupported by proof of the existence of any such record.

An attempt was made before the commissioners, or in the District Court, to account for the absence of such record evidence, by showing that a book of Spanish records, of the description mentioned, was consumed by fire, at San Francisco, in 1851; but the recollections of the witness called for the purpose are so indistinct, and his knowledge of the contents of the book so slight, that the evidence is not entitled to much weight. Jimeno, who signed the certificate, was not called, and, in view of all the circumstances, there does not appear to be any ground to conclude that any such record was ever made.

Colonization grants were usually made, subject to the approval of the Departmental Assembly, and the regulations of 1828 expressly declare that grants to individuals and families shall not be held to be definitively valid without the previous consent of that deputation. No such approval was ever obtained in this case; and it does not appear that the despatch, or order, as it is denominated by the Governor, was ever communicated by him to the Departmental Assembly, until the twenty-seventh day of February, 1840. His message communicating the despatch, though brief, clearly indicates that the members of the Assembly had no previous knowledge upon the subject.

A document, purporting to be an unsigned copy of the grant, and the petition, are all the papers that were found in the archives, except those connected with the first proceeding under which the license to occupy the island was granted. They were loose papers, not recorded, or even numbered, and, in view of all the circumstances, add little or nothing to the probability in favor of the integrity of the transaction. Two witnesses were examined by the claimant to prove the authenticity of the grant. Governor Alvarado testified that his signature to the grant was genuine, and that he gave it at the time of its date. In effect the other witness testified that he was acquainted with the handwriting of the Governor, and also with that of the Secretary, and that they were genuine. Where no record evidence is exhibited, the mere proof of handwriting by third persons, who did not subscribe the instrument as witnesses, or see it executed, is not sufficient in this class of cases to establish the validity of the claim, without some other confirmatory evidence. But the testimony of Governor Alvarado stands upon a somewhat different footing. His statements purport to be founded upon knowledge of what he affirms, and if not true, they must be wilfully false, or the result of an imperfect or greatly impaired and deceived recollection. Resting as the claim does in a great measure, so far as the genuineness of the grant is concerned, upon the testimony of this witness, we have examined his deposition with care, and think proper to remark that it discloses facts and circumstances which to some extent affect the credit of the witness. By his manner of testifying, as there disclosed, he evinces a strong bias in favor of the party calling him, as is manifested throughout the deposition. Some of his answers are evasive; others, when compared with preceding statements in the same deposition, are contradictory; and in several instances he refused altogether to answer the questions propounded on cross-examination. Suffice it to say, without entering more into detail, that we would not think his testimony sufficient without some corroboration to entitle the petitioner to a confirmation of his claim.

On the part of the United States the confirmation of the claim is resisted chiefly upon two grounds. It is insisted, in the first place, that the evidence introduced by the claimant to establish the authenticity of the grant is not sufficient to entitle him to a confirmation, and that in point of fact the grant was fabricated, after our conquest of the territory. Secondly, it is contended that the grant, even if it be shown that it is genuine, was issued by the Governor without authority of law.

In support of the first proposition, various suggestions were made at the argument, in addition to those which have already been the subject of remark. Most of them were based upon the state and condition of the title papers, the circumstances of the transaction, and the conduct of the parties, as tending to show the improbability that any such grant was ever made. Much stress was laid upon the fact that the grant was never approved by the Departmental Assembly, or any note of it entered in the office where the adjudications of land titles were required to be recorded. Attention was also drawn to the fact that the paper produced as the expediente is without any number, which circumstance, it was insisted, furnished strong evidence that they were fabricated, or at least that they had never been completed. To support that theory, an index, prepared by the secretary, and found in the Mexican archives, was exhibited, containing a schedule of expedientes numbered consecutively from one to four hundred and forty-three, covering the period from the tenth day of May, 1833, to the twenty-fourth day of December, 1844, and including in the list one in favor of this petitioner for another parcel of land granted on the seventh day of November, 1844. Reliance was also placed upon the omission of the appellee to call and examine the secretary who prepared that index, and whose name purports to be signed to the grant set up in the petition. Another suggestion was, that, from the nature of the property, it was highly improbable that any private person should desire such a grant in a Department where there were vast tracts of fertile land to be obtained for the asking, and that it was past belief that the Governor would have been induced to make the grant, especially after the receipt of the exposition of the military comandante, except upon the same conditions as those inserted in the decree of the preceding year. Every one of these suggestions is entitled to weight, and when taken together and considered in connection with the unsatisfactory character of the parol proof introduced by the petitioner, they are sufficient to create well-founded doubts as to the integrity of the transaction. But it is unnecessary to determine the point, as we are all of the opinion that the second objection to the confirmation is well taken, and must be sustained.

Nothing can be plainer than that the Governor, in making the grant in question, did not assume to act under the colonization law of 1824, or the regulations of 1828. Were anything wanting beyond what appears in the terms of the grant to establish that proposition, it would be found in the deposition of the Governor himself, in his answer to the fourth interrogatory propounded by the claimant. His answer was, that he made the grant by an express order in writing from the General Government. He further states, that his predecessors had applied to the General Government for such authority, but without success. On coming into office, he renewed the application, and, after considerable delay, he says he received the before-mentioned despatch by the hands of a courier.

Neither side, in this controversy, disputes the authority of the Mexican President to issue the order contained in the despatch. From its date, it appears to have been issued during the administration of General Anastasio Bustamente. He succeeded to the Presidency, for the second time, on the nineteenth day of April, 1837, after the capture of Santa Anna in Texas, and remained in office until the sixth day of October, 1841, when he was driven from the capital by the partisans of his predecessor.

At the beginning of his administration, he professed to be guided by the principles of the Constitution; and from the well-known antecedents of his Cabinet, he could hardly have expected to adopt any different policy. His Cabinet, however, shortly resigned, and a new one was formed, believed to have had much less respect for the fundamental law. On the ninth day of March, 1838, the Minister of the Interior of the new cabinet resigned, when Joaquin Pesado, whose name is affixed to this despatch, was appointed in his place.

After the new Cabinet was organized, the policy of the administration was changed; and it cannot be doubted but that, at the date of this despatch, the President had assumed extraordinary powers, and was in point of fact, to a considerable extent, in the exercise of the legislative as well as the executive powers of the Government.

Assuming that the despatch was issued in pursuance of competent authority, it must be considered as conferring a special power, to be exercised only in the manner therein prescribed. In this view of the subject, it is immaterial whether the power to grant the islands on the coast was vested in the Governor before or not, or in what manner, if the power did exist, it was required to be exercised, as the effect of this order, emanating from the supreme power of the nation, was to repeal the previous regulations upon the subject, and to substitute a new one in their place.

Strong doubts are entertained whether the islands situated immediately in the bay of San Francisco are either within the words of the despatch or the declared purpose for which the power was conferred; but it is unnecessary to determine that point in this investigation.

Waiving that point at the present time, we come to consider the question whether, upon the proofs exhibited, the power was exercised in this case in a manner to give validity to the grant; and that inquiry necessarily involves the construction of the despatch.

Omitting the formal parts, its effect was to authorize the Governor, in concurrence with the Departmental Assembly, to grant and distribute the lands on the desert islands adjacent to the Department to the citizens of the nation who might solicit the same. By the terms of the despatch, the power to grant and distribute such lands was to be exercised by the Governor, in concurrence with the Departmental Assembly; by which we understand, that the Assembly was to participate in the adjudication of the grant. Whenever a petition was presented, the first question to be determined was, whether the grant should be made and the title-papers issued; and, by the plain terms of the despatch, an affirmative adjudication could not be legally made, without the consent of the Departmental Assembly. Whether a subsequent ratification of the act by the Assembly might not be equivalent to a previous consent, is not a question that arises in this case, for the reason that no such ratification ever took place.

All we mean to decide, in this connection, is, that by the true construction of the despatch, the act of adjudication cannot be held to be valid without the concurrence of the Departmental Assembly, as well as that of the Governor.

In this respect, the provision differs essentially from that contained in the regulations of 1828, under which the approval of the Assembly was an act to be performed after the expediente had been perfected, and after the incipient titlepapers had been issued by the Governor. His action preceded that of the Assembly, and in contemplation of law was separate and independent. After the grant was made and executed by the Governor, and countersigned by the Secretary, it was the duty of the Governor to transmit it to the Departmental Assembly, for its approval; and if it was not so transmitted, it was the fault of the officer, and not of the party.

Other differences between the regulations of 1828 and the provisions of that despatch might be pointed out; but we think it unnecessary, as those already mentioned are deemed to be sufficient to show that the decisions of this court, made in cases arising under those regulations, have no proper application to the question under consideration.

From the words of the despatch, we think it is clear that the power conferred was to be exercised by the Governor in concurrence with the Departmental Assembly; and, consequently, that a grant made by the Governor without such concurrence was simply void. This view of the question finds support in the Mexican law defining the functions and prescribing the duties of the Governor, and those of the Departmental Assembly. That law was enacted on the twentieth day of March, 1837, and continued in force during the administration under which this despatch was issued. 1 Arrillage Recop., vol. 1, pp. 202 and 210. Many duties were devolved, by that law, upon the Governor, and also upon the Departmental Assembly, where each was required to act independently of the other. But other duties were prescribed, in the performance of which the Governor and the Assembly were required to act in concurrence. In the latter class, the Governor could not act separately, though in some instances it was competent for the Assembly to act in his absence.

Concurrent duties, it seems, were usually performed in open session, in which the Governor, when present, presided; but he had no vote, except when, from absence or otherwise, the members present were equally divided. The Assembly consisted of seven members, chosen by the electors qualified to vote for deputies to the general Congress.

Those in charge of the Supreme Government, or some of them, had been much in public life, and it must be presumed that the despatch under consideration was not framed without some reference to that law. On examining the words employed in the law, to express and define concurrent action, and comparing them with the words of the despatch translated 'as in concurrence with,' we find they are the same in the original language. Further support to the construction here adopted is derived from the declared purpose of the despatch, as appears in its recitals. Mexican authorities had long dreaded the approach of foreigners to her western coast, and the language of the despatch shows that its great and controlling purpose was to promote the settlement of the unoccupied islands by trustworthy citizens of the nation, with a view to ward off that apprehended danger. They feared that those islands, especially those further south and nearer to the track of commerce into the Pacific ocean, might become the resort of military adventurers, and be selected by those desirous of invading that remote Department as places of rendezvous or shelter; and in the hope of averting that danger, or, in case of its approach, of supplying the means of timely information, they desired that their own citizens might preoccupy those exposed positions. In this view of the subject, the President, no doubt, regarded the power to be exercised under the despatch as one of importance and delicacy, and might well have desired to prescribe some check upon the action of the Governor; and if so, it would have been difficult to have devised one more consonant with the then existing laws upon the general subject, or better suited to the attainment of the object in view, than the one chosen in this despatch.

For these reasons, we are of the opinion that the Governor, under the circumstances of this case, had no authority, without the concurrence of the Departmental Assembly, to make this grant. Whether the persons specially designated in the despatch as the fit subjects for the bounty of the Government stand in any better situation or not, is not a question in this case. Having come to the conclusion that the grant is void, it does not become necessary to consider the evidence offered to prove possession. On that point, it will be sufficient to say, it is conflicting and unsatisfactory; and if true, is not of a character to show any right or title in the land under the Mexican Government, or any equity in the claimant, under the act of Congress requiring the adjudications to be made.

The decree of the District Court is therefore reversed, and the cause remanded with directions to dismiss the petition.


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

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


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1939

 clxxxviii INDEX. Navy--Continued. p .... deficiency appropriation for pensions_ 19, 1642 for property damage claims________ 23 for coWaion d~ claims ______ 23,1647 for Bureau of Navlgation _______ 24,42,44, 47,908,934, 937, 1618, 1621, 1671, 1673 for Bureau of Engineering__________ 24, 42, 44, 4:7, 934, 937, 1618, 1621 for Bureau of Construction and Be- . _~- 24,42,47,1618 for Bureau of Supplies and Accounts_ 24 427,908,934, 1618, 1621,1671 for Bureau of yards and Docks_____ 24, 48,908,934 for Marine COrps _____________ 25,42,44, 48, 909, 934, 1618, 1621, 1649, 1671 for increase of the Nak~-nn--n 25,909 for modernizing "0 oma" and "Nevada" ___________________ 25 for survey of ammunition storage of Armyand____________________ 35 for pay of the Navy______________ 42,44, 934, 937, 1618, 1621, 1671, 1673 for Naval Reserve Force___________ 42, 44, 47, 934, 1618 for pay, miscella.neous ______" _ _ _ _ _ _ _ 42, 44, 47, 934, 937, 1621 for aviation ___ 42, 48, 934, 1618, 1621, 1671 for aviation transfer to Mines Bureau_ 46 for Bureau of Ordnance______ 47,934, 1618 for Bureau of Medicine and Surgery_ 48, for bringing home remains of officers, etc_________________________ _ for Naval Academy ______________ _ for Interior Department transfer to_ for increase of compensation ______ _ for scrapping of naval v~ls______ _ for war transfer to _______________ _ for e~niz "Pennsylvania" and Arizona __________________ _ acting chaplains, age qualifications stated______________________ _ additional pay for submarine and diving duty _________________ _ all active service in warrant rank, com- TarmstroBot (talk)fk01:25, 25 September 2010 (UTC)__~__TarmstroBot (talk)e~ status if heretofore commissioned __ _ allTarmstroBot (talk)s.::fo;Yd-iD-active-sEii-vice of officers, enlisted men, and nurses in Regular Navy or Marine COrps ______________________ _ on retired list on active duty______ _ beneficiaries to be designated______ _ funds available ________________ _ grandparent, etc., if dependent, made a beneficiary ___________ _ restricted to Regular Navy, Marine Corps, and Coast Guard ______ _ alterations, etc"Z authorized to battle- ship "California" ____________ _ appointment of retired officers in diplo- matic service permitted_______ _ appraisal and sale of property furnish- ing electricity to ordnance plant at South Charleston, W. Va___ _ Army Chief of Staff to have the per- sonal money allowances of officer !!erving as Chief of Naval with~r::i~fN;;~-Op;r"&tio;;;,- t~ rank above all other officers ___ _ 1618 48 934 937, 1618 1621 1621 1621 1648 1150 412 1180 1180 1180 710 710 710 710 710 710 1089 1482 499 1255 1155 Nally-Continued. Paae. Army Chief of Staff, relative rank of present officers not changed___ 1155 assignrilent of line officers for engineer- ing duty upon application there- for__________________________ 498 rank and duties_________________ 498 as fleet or squadron en~ineers, or engineer officers of ships, of com- manders and above___________ 498 status in line retained_ _ ___________ 498 number of] in any year, to be deter- minea by the Secreta.r .Y___ _____ 498 officers assigned to airships, etc" service considered as equivalent to sea duty__________________ 498 considered as actual sea service on sea going ships_ __ ____________ 498 authority to advance fund to navl\l personnel for expeIl&eFl on emer- gency shore duty _ ____________ 712 bell of battleship "Connecticut" to be delivered to American Legion Naval Post 110_______________ 1181 "Louisiana" delivered to Louisiana State Museum________________ 1073 board of officers to be appointed to in- vestigate and report on site for airship base__________________ 1530 Chief of Naval Operations may be as- signed quarters constructed for Superintendent of Naval Ob- servatory____________________ 1018 construction authorized, prior to July 1, 1931, of 15 light cruisers, and one aircraft carrier____________ 1165 five cruisers in each fiscal year 1929, 1930,1931; limit of cost_______ 1165 aircraft carrier prior to June 30, 1930; limit of cost__________________ 1165 continuance of, in succeeding fiscal year_________________________ 1165 of first and alternate cruisers, in Government navy yards, etc___ 1165 annual estimates for, to be sub- mitted____ ________ __________ _ 1165 subject to treaty, limiting naval armaDlent____________________ 1165 suspended, if further limitation of naval armament by international agreeDlent___________________ 1165 agreement requested to be en- couraged by the President_____ 1165 treaty favored by Congress with maritime nations, regulating con- duct of war at sea_____________ 1165 negotiation of, prior to conference on limitation of armaments ___. _ _ _ _ 1165 dental officers allowed credit for active duty as acting assistant, and assistant dental surgeons prior to July I, 1918________________ 1345 running mates to be assigned for promotion_ _ _ _ ______ _______ __ 1345 double pension allowed widows and dependents when officer or en- listed man dies from submarine accident_____________________ 466 minimum allowance to widow and chUdren_____________________ 467 disability requirement for retirement of officers from active service, re- pealed_______________________ 1142 retirement of officers from active duty established at age of 64 years___ 1142

�


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1940

 NIJ!'1I""":"Continued. dlSAbility requirement repealed; retire- ments at age of 64 years since August 29, 1916, validated ____ _ disposal of obaole~ material, authorized to Boy Scouts of America_____ _ double pensIon allowed for death or disability from aviation duty __ _ electricians eligible for appointment as ensigns _____________________ _ enlisted men absent without leave, etc., in excess of one day, permitted to make good time lost________ _ Fleet Reserve pay of enlisted men trans- ferred thereto _______________ _ fleet submarine, cost increased of one__ joint board of officers of Army and, to survey, etc., of storage of am- munition at places in dangerous proximity to populous com- munities, etc ________________ _ report, recommendations, etc., to be Bubmitted to Congress by the Secretary ___________________ _ appropriations available for ex- limit orc::~cre&Sid for a1te~ationB in "Pennsylvania" and"Arizona" _ for battleships "Oklahoma" and "Nevada" __________________ _ two fleet submarines______________ _ loans or gifts authorized of condemned ordnance, etc., to veterans' associations, etc ___________ ~ __ members of, discharged for fraudulently misrepresenting age on enlisting during the World War, may be considered honorably discharged_ money for ordnance, etc., to be used only for which appropriation made_______________________ _ monthly base pay of warrant officers of, modified ____________________ _ naval patients may be treated in other Government hospitals, iffacilities of navsl hospitals not available_ expens~ argeable to Navy appro- pnatlOns____________________ _ rations and pensions deductions__ _ SaintElizabeths HospitaI excepted_ Naval Reserve Force and Marine Corps Reserve; former officers to be allowed mileage for travel to their homes when released from active duty, etc., at other places_____ _ applicable only to releases prior to July 1, 1922_________________ _ plans, etc., for two salvage vessels, to be presented to Congress by December 10, 1929 __________ _ precedence of line officers transferred to staff corps, since July 1, 1923_ recognition of services of desi~nated officers in salvage of Ships '~" and "S-51 " _________________ _ retainer pay claims of Naval Reserve Force or Marine Corps Reserve, accrued prior to July I, 1925, to be filed within one year_______ _ time limit for claims, accruing after July 1, 1925, for advance pay- ments to Fleet Naval Reserve or Marine Corps Reserve _____ _ INDEX. clttxix 1142 1430 1436 1084 620 1477 984 35 35 35 1261 1085 1090 773 1084 1249 1187 1090 1090 1090 1090 1556 1556 1165 498 1228 1090 1090 Navy-Continued. Paae. retainer P.6y claims, etc.; for drillsl Uniforms, gratuity, etc.).to NaVal Reserve and Marine \.iol"J'8 Re- serve________________________ 1090 if submitted within one year, not barred_______________________ 1090 not applicable to Fleet Naval Reserve or Fleet Marine Corps trans- ferred thereto after sixteen or more years service in Navy or Marine Corps ________________ 1090 silver bell used on cruiser "New Or- leans," may be delivered to Louisiana State Museum_______ 619 silver service presented to Battleship "Alabama" may be delivered to the State__________________ 984 ship "Dispatch," conveyed to Florida_ 300 thanks of Congress tendered Com- mander Albert Cushing Read for trans-Atlantio aeroplane flight_______________________ 790 advance authorized of ten numbers on list of commanders; to be an additional number _ _ _ ____ _____ 790 time extended for modification of age and service requirements for re- tirement and promotion of line captains,etc _________________ 1557 commissioned service of Academy graduates to be oomputed from June 30 to the end of academic course_______________________ 1557 Navy Department (see auo Navy), appropriation for Secretary _______ 641,1470 for personal services in the District_ - ~io for Office of the Secretary_______ 641,1470 for General Board______________ 641,1470 for examining and retiring boards_ 641, 1470 for Compensation Board________ 641,1470 for Naval Records, etc., Office ___ 641, 1470 for Judge Advocate General's Office_ 642, 1470 for Chief of Naval Operations Office_ 642, 1470 for Board of Inspection and Survey_ 642, 1470 for Director of Naval Communica- tions Office ________________ 642, 1470 for Office of Naval Intelligence __ 642, 1470 for Bureau of Navigation _______ 642,1470 for Hydrographic Office _________ 642,1470 for Naval Observatory__________ 642,1470 for Nautical Almanac Office________ 642 for Bureau of Engineering_______ 642, 1470 for Bureau of Construction and Re- pair ______________________ 642,1470 for Bureau of Ordnance_________ 642,1470 for Bureau of Supplies and Accounts_ 642, 1470 for Bureau of Medicine and Surgery _ 642, 1470 for Bureau of Yards and Docks__ 642, 1470 for Bureau of Aeronautics_______ 642, 1470 salaries limited to average rates under Classification Act_____ 642, 1470 provision if only one positiun in a grade_____________________ 642,1470 allowance in unusually meritorious cases _____________________ 642, 1471

�


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1941

 cxc INDEX. NOf11l Departmem-Continued. P.P. appropriation for pel'lODal aervicesj re- striction not applicable to cleri- cal-'lnechanicar services _____ 642, 1471 DO reduction in tiJ:ed aa1ariea ___ 642, 1471 Vanafera to another position with- out reducuon _____________ 642, 1471 payments under higher rates per- Drltted____________________ 642, 1471 transfers between appropriauons for bureaus, etc., to meet in- creases by rea1locatiOD..__ ___ ___ 1471 for coDhlngent erpeDle8 _________ 642, 1471 IlQval recorda of World War___ 642, 1471 naval aervice appropriauoDB not to be U8ed. for Department purposes_ 642, 1471 for printing and binding for, and the Navy_____________________ 643, 1471 for Hydrographio Office, contingent exp8D888__________________ 643, 1471 pilot charts_________________ 643,1472 br~ch offices________________ 643, 1472 for Naval Observatory__________ 644, 1472 for naval establishment_________ 624,1452 for Navy pay, Drlscellaneous ____ 624, 1452 for Navy, conungent___________ 625, 1453 for Government for the Virgin Is- lands_____________________ 625,1453 payment for services except of American citizens, forbidden_ 625, 1453 for State marine schools ________ 625,1453 for care of lepers, etc., Guam and Culion______________ .. __ _ __ 625,1453 for research laboratory _________ 625, 1453 for Bureau of Navigation, expenses__ 626, 1454 for naval training stations_______ 627,1455 for Naval Reserve and Naval Militla_ 627, 1455 for Naval Reserve Officers' Training COrps ____________________ 627,1455 for Naval War College__________ 628, 1456 for Naval Home_______________ 628, 1456 for Bureau of Engineering, expenses_ 629, 1457 for Bureau of Construction and Re- pair, expenses _____________ 629,1458 for Bureau of Ordnance, expenses_ 630, 1458 for Bureau of Supplies and Accounts_ 631, 1459 pay etc. of the Navy _________ 631,1459 for freight ____________________ 633,1461 for reserve fuel oiL_______________ 1462 for Bureau of Medicine and Surgery, expenses__________________ 633, 1462 care of the dead _____________ 633,1462 for Bureau of Yards and Docks, expenses __________________ 634,1463 public works________________ 635,1463 for Bureau of Aeronautics, aviation expenses __________________ 635,1465 for Naval Academy ____________ 637, 1465 for Marine Corps ______________ 638,1466 for Marine Corps Reserve_______ 639,1467 for alterations of "Oklahoma" and .. Nevada" ________________ 640,1468 for increase of the Navy________ 640,1468 for printing and binding for____ 643,1471 deficiency appropriation for damages ClaUDs _________________ 23,908,1647 for Navy_________ 23, 42, 44, 47, 908,934, 937,1618,1621,1648,1671,1673 for judgments, United States courts, under ____________ 40,931,1615,1669 Navy Department-Continued. P .... deficiency appropriation for paying d~mages, etc., suits in admiralty under _________________ 40,931,1615 for judgments in district courts against, under special Acts__ ___ 40, 1615,1670 for Naval Reserve Force___________ 44 for Marine Corps _______________ 44,1649 for additional employees___________ 47 for increase of compensation______ 47,1648 for collision damage claims _____ 908,1647 for relief of shipbuilding contractors_ 907, 1648 for judgments, Court of Claims under 932, 1615.1670 for elaims from Navy pension fund_ _ 1611 for Floyd A. Newell_______________ 1648 for salaries, Judge Advocate Gener- al's Office____________________ 1648 for modernizing" Pennsylvania" and and"Arizona" _______________ 1648 for increase of salaries, field service, 1929________________________ 1648 for salaries l 1929_________________ 1685 for Naval Academy, salaries, 1929__ 1686 for Marine Corps, salaries of civil employees,1929______________ 1686 for Naval Home, salaries, 1929_____ 1686 for Hydrographic Office, salaries, 1929________________________ 1~86 for Naval Observatory, salaries, 1029 1686 submission to Congress discontinued, of report on leases of naval lands_ _ 990 damages by naval aircraft__________ 990 naval pension claims ___________. __ 990 adDUnistration of World War Ad- j listed Compensation Act. _ _ __ _ 990 damages to private property subse- quent to April 6, 1917_________ 990 Navy Pension Fund, deficiency appropriation for paying cer- tain claims from ____________ 24, 1611 Neah Bay Agency, Wash., appropriation for support, ete., of In- dians at __________________ 223,1584 Neal Street NE., D. C., appropriation for paving, etc., Bladens- burg Road to Holbrook Street; from gasoline tax fund_________ 1270 Nebraska, may acquire, after completion, bridge across Missouri River, at Brown- ville, Nebr___________________ 1309 at Decatur, Nebr_________________ 392 at Nebraska City ______ _____ ______ 445 at Niobrara ____________________ 409.708 at Plattsmouth, Nebr__ ___________ 388 at Rulo, Nebr ______ _______ ____ ___ 390 at Sioux City, Iowa_______________ 1170 at Union_________________________ 1076 transfer of Niobrara Island to, from the city of Niobrara, consented to__ 1147 Nebra8ka City, Nebr., bridge authorizedacr08B Missouri River, at___________________________ 444 time extended for bridging Missouri River,at_____________________ 1525 Nebraska-Iowa Bridge Corporation, may bridge Missouri River, between Washington County, Nebr., and Harrison County, Iowa________ 194 Neches Canal Company, etc., may dam Neches River, above Beau- mont, Tex___________________ 1450

�


text:
Benjamin Haney v. Baltimore Steam Packet Company

THIS was an appeal from the Circuit Court of the United States for the district of Maryland, sitting in admiralty.

It was a case of collision occurring in the Chesapeake bay, between the steamer Louisiana and the schooner William K. Perrin, by which the schooner was sunk.

The libel was in rem, filed by the appellants against the steamer, and George W. Russell, master thereof. The Baltimore Steam Packet Company intervened and answered as the owner of the steamer.

The evidence in the case is so fully commented upon in the opinion of the court and in the dissenting opinion of Mr. Chief Justice TANEY, that any repetition of it is unnecessary.


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1942

 INDEX. . CXCl Nechu River, dams authoriled acl'08ll, above Beau- Pa&e. Nechu w~O::1:;':::';';;-:;t:--- 1450 may dam Neches :Kiver, above Beau- Neely8 F::;'~1r';'~x .-- 1450 bndge authoriled across Cumberland Ftive~at- 612 time extended for bridging Cumberland Ftiver, at.____________________ 1528 Negro, Achievement. of, memorial building authorized in the Dis- trict of Columbia, as a tribute to 1699 Nelson, J o8.eph, deficiency appropriation for paying damage claim oC_____________ 898 Neo8ho, Mo., appropriation for establishing fish cul- tural station in Oklahoma, as auxiliaryto ________________ 99,1]29 deficiency appropriation for fish hatch- ery, re~irs, etc_______________ 16 Nesmith, Linn W., deficiency ~propriation for services__ _ 2 Netherlands, The, . appropriation for minister to _______ 65,1096 deficiency appropriation for indemnity to, for personal injuries to Arend Kampand Francis Gort, subjects of___________________________ 912 pa.yment directed to, as indemnity for injuries to Arend Ka.mp and Francis Gort, Netherlands sub- ,jects_ _ _ ____ __________ _______ 489 Neutrality Act, appropriation for expenses under____ 68, 1099 Nevada, deficiency appropriation for support of Indiansin____________________ 934 provisions of Boulder Canyon Project Act applicable to, under Colo- rado River compact ______ 1057-1066 water-power permits on Colorado River and tributaries not to be issued until March 5, 1930, unless Boulder Canyon Project Act effective prior thereto________ 1446 Nevada Avenue NW.,D. C., appropriation for J>aving, etc., Living- ston to Rittenhouse Street; from gasoline tax fund________ 1269 " Nevada," Battleship, appropriation for alterations and repairs for modernizing______________ 1468 deficie~cy appropriation for moderniz- lng,etc______________________ 25 limit of cost increased for modernizing_ lOSe; Nevada, Mo., deficiency appropriation for addition to New AlbaTarmstroBot (talk)fn~!ark- 1665 terms of court at____________________ 438 New Bern, N. C., appropriation for public building______ 1043 deficiency appropriation for public building at._ ____ ___ __ ____ ___ _ 922 terms of court at.__ ___ ____ ____ ____ __ 495 New Britain, Conn., appropriation for public building___ 180, 1043 New Cumberland Bridge Company, may bridge Ohio River, at New Cumber- land, W. Va__________________ 741 New Cumberland, W. lTa., bridge authorized across Ohio River, at_ 741 New Ham1!'hire, Paae. appropnation for contribution to, for damages to roe.dll and bridges, by floods of 1927 ________________ 570 New Harmony, Ind., bridge authoriled across Wabash Ftiver, between, and White County, Ill., in place of fonner location at McGregor's Ferry, IIL________ aoo New Iberia Livestock E:l:periment Station, La., appropriation for bridge across Bayou Teche, at__________________. . _ 567 deficiency appropriation for bridge across Bayou Teche at; funds available_ _ _ _ _ _______________ 1635 New Jersey, may acquire, after completion, bridge across Delaware River, at Bur- lington______________________ 324 New London, Conn., deficiency appropriation for submarine base, public works____________ 24 acceptance of site for, and construction of Coast Guard Academy build- ings at, authorized____________ 1189 New Martinsville and Ohio River Bridge Company, may bridge Ohio Ftiver, at New Martins- ville, W. Va__________________ 297 N ew Martinsville, W. Va., bridge authorizedacroBS Ohio P..iver, at_ 297, 1472 New Me:cico, appropriation for repairs, etc., flood damages to irrigation systems, pueblosin_________________ 214,1575 deficiency appropriation for emergency eradication of pink bollwonn of cotton in_____________________ 13 for payment to Jemez and Tesuque Pueblos for loss of lands and water rights__ ___ __ ___ ________ 17 for support of Indians in___________ 1617 agreement with Middle Rio Grande Conservancy District as to irri- gation, etc., of Indian Pueblo lands________________________ 312 compact authorized between, and Ari- zona, for division of the waters of Gila, etc., rivers______________ 1517 and Colorado, for division of waters of the Rio Grande, San Juan, etc., Rivers_ _________________ 1502 and Oklahoma, for division of waters of Cimarron Ftiver, etc_________ 1503 and Oklahoma, and Texas, for divi- sion of the waters of Rio Grande, Pecos, etc., Rivers____________ 1502 consent given, to. vote on proposed amendment to its constitution for development, etc., of minerals on State lands________________ 58 to enact effective laws_____________ 58 exchanges authorized of lands within Spanish or Mexican grants in, for additions to specified na- tional forests_________________ 431 granted lands in trust, to reimburse designat.ed counties for interest by them, on bonds____________ 775 Silver City, for bonds and interest___ 775 remainder of lands, etc., added to State school fund_____________ 775

�


text: Talk:Benjamin Haney v. Baltimore Steam Packet Company


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1943

 cxeii INDEX. Net/) M«rico--Continued. Pap. granted lands in trust; selection and dis- posal of lands under enabling Act__________________________ 775 determination of distribution_______ 775 provisions of Boulder Canyon Project Act applicable to, under Colo- rado River compact_______ 1057-1066 sums for allotting lands! etc., not to be used for Indians ln, unless resid- ing on public domain prior to June 30,1914_____________ 206,1568 time extended for relinquishing railroad grant lands to Indians in_______ 299 water power permits on Colorado River and tributaries not to be issued until Marcb 5, 1930, unless Boulder Canyon Project Act effective prior thereto_________ 1446 Net/) Me:rico Pueblos, appropriation for irrigation project on______________ ~ _________ 210, 1572 New Orlea1l8 A8sociation 0/ Commerce, lease authorized to, of New Orleans Quartermaster Intermediate De- pot, for exhibition purposes_ ___ 790 to become null and void on failure to use,etc______________________ 790 alterations of depot by association, without Federal expense, per- mitted_______________________ 790 Net/) Orleans, Board 0/ Commissioners 0/ the Port 0/, payment authorized to, for rent of Army Supply Base, New Or- leans, La_____________________ 1433 " Net/) Orleans" Cruiser silver bell u~ o~ ~y be delivered to Louisiana I:State Museum______ 619 New Orleans, La., appropriation for passport bureau __ 65, 1096 for dispatch agent. ____ ____ ____ _ 6 6,1097 for mint at____________________ 176,1041 for marine hospital building _____ 180,1043 for quarantine station building______ 1043 deficiency appropriation for quarantine station__ _ ________ ___ ________ 922 authority for site, etc., of new sub- treasury at, re~e<L_________ 1422 time extended for bndging Mississippi River,at____________________ _ for bridging Mississippi River, by_. __ _ between Gretna and_____________ _ 193 732 1229 limit of construction cost, marine hospital building at, increased__ 1659 Net/) Philadelphia, Ohio, appropriation for public building__ _ ___ 1043 deficiency appropriation for public buildlrigat___________________ 922 Net/) Riller, bridge authorized across, at McCreery, W. Va_______________________ 767 New York, appropriation for reimbursing, for ma- rine school expenses_ ___ _ ___ 625, 1453 agreement with Vermont for creating Lake Champlain Bridge Com- mission! consented to__________ 120 bridge authonzed acrOBB Lake Cham- plain, between Crown Point, N. Y ., and Chimney Point, Vt., by Ver- mont and ___________________ _ may acquire, after completion, bridge across Lake Champlain, at 62 Rouses Point, N. Y ________ 513,1178 Net/) York City, N. Y., Page. appropriation for passport bureau ___ 65, 1096 for diapatch agent ______________ 66,1097 for assay office at ______________ 175,1041 for purchase of building in, for CUIJoo toms, etc., purposes___________ 176 for pneumatic tube system, custom- house and appraisers' warehouse_ 183, 1046 for pneumatic tube mail tl'ansmiBSion, Brooklyn and _____________ 189,1052 for barge office slip, Governors Island fetTy________________________ 335 for expenses transferring Department of Agriculture laboratory equip- ment to new appraisers' stores building_____________________ 567 for navy yard, public works_____ 635,1464 deficiency appropriation for navy ~d, 401:26, 25 September 2010 (UTC)01:26, 25 September 2010 (UTC)TarmstroBot (talk) 01:26, 25 September 2010 (UTC):___ for pneumatic tube mail transmid- sion, Brooklyn and __________ _ for customhouse and post office, roof reconstruction _______________ _ for chemical f'torage, etc., quarantine station _____________________ _ 25 26 31 32 for airplane mail service to San Fran- cisco from __________________ _ for International Congress of Ameri- 50 canists, at. _ ____ ___ ___ __ _____ 914 for purchaseof equipment, appraisers' stores_______ ___ _____ _________ 915 for post office, repairs, etc_________ 917 for courthouse, etc., acquisition of site, etc_ __ ___ ______ ___ _____ _ 922 for building for detention of Federal prisonersin___________________ 1647 for navy yard, reconstructing Dock No.3 ___ ___ ____ ___ ___ ___ ___ _ 1649 for modifications, etc., construction of appraisers stores___________ 1655 for remodeling appraisers' stores____ 1659 for acquiring site and constructing bufidingfor assay office_________ 1660 for courthouse, etc., acquisition of site ________________________ _ for marine hospital, Stapleton _____ _ for p&,:,cel-post building, construction_ acceptance from, of franchise for new route pneumatic tube service 1660 1660 1660 from customhouse to .new ap- praisers' stores building _ _ _ ____ 533 granted entrance upon subtreasury Bite for constructing rapid transit r&lway______________________ 1153 constlUction conditions____________ 1153 three delegates authorized to Twenty- third International Congress of Americanists at._____________ 723 sum authorized 88 contribution to New Yor:C::;;ati~- jjep"arl;n~: 723 five Revolutionary cannon donated to. 497 New York Detlelopment Association, 1m., may bridge Saint Lawrence River, near Alexandria Bar, N. Y_________ 1552 New York Eastern J ud~cial District, two additional judges, authorized for__ 1409 New York Harbor, N. Y ., appropriation for preventing injurious deposits, etc., in ___________ 359,1380 New York Southern Judicial Di8trict, deficiency appropriation for costs, United States against Mexican Petroleum Company_________ _ 21

�


text:
Benjamin Haney v. Baltimore Steam Packet Company/Opinion of the Court

The District Court decreed in favor of the libellants in the sum of seventeen hundred dollars, and of Charles Ogden, the master of the schooner the additional sum of $173 and costs.

On an appeal to the Circuit Court, additional evidence was offered, and the decree of the District Court was reversed and the libel dismissed.

The libellants appealed to this court.

It was argued by Mr. Addison and Mr. Battee for the appellants, and by Mr. Schley for the appellee.

The points made by the counsel for the appellants were the following:

1. That it is the right and duty of sailing vessels, when meeting steamers, to hold their course, and of steamers, to give way to them.

St. John v. Paine, 10 Howard, 583.

Steamer Oregon v. Roca, 18 Howard, 572.

2. That the schooner, from the time the steamer hove in sight until a moment or two before the collision, steadily held her course. The answers of the defendants, the evidence of the witnesses for the defence, and the evidence for the libellants, all concur in this; and there is not a witness who alleges the contrary. And this must be taken as a fact in the cause, admitted by the defendants, proved by the defendants, and proved by the plaintiffs.

3. That it was the right of the schooner to change her course, when her continuing to hold it would have caused her to have been run down.

New York and Liverpool U.S. Mail Steamship Company v. Rumball, 21 Howard, 372.

4. That if the danger of being run down was imminent, and the schooner made a false manoeuvre, when a right one would have saved her, even then the steamer is responsible; for she ought not needlessly to have run so close to the schooner as to have excited such well-founded apprehensions of danger as to have disturbed the judgment of those in charge of her.

The Genesee Chief, 12 Howard, 44.

5. That the account of the disaster set up in the answer, and given by Captain Russell and second mate Ward, is incredible, because it is impossible it can be correct.

For if the parallels on which the vessels were running were 150, or 200, or 300 yards asunder, and the schooner changed her course at the distance of 100 or 150 yards from the point at which they would have passed each other, if there had been no change of course, the schooner could not have crossed the steamer's bows, as the steamer's speed was twice that of the schooner.

6. That although Captain Russell and second mate Ward testify to the events immediately preceding the collision, it is very clear:

First. That Capt. Russell did not see the schooner after she got within three or four miles of the steamer, until the schooner's course had been changed-that is, for nine or twelve minutes before such change.

Second. That the second mate Ward's attention was directed to and absorbed in the changing of the course of the steamer when the schooner changed her course.

7. That the schooner, in attempting to avoid the steamer, turned to the right, and thus conformed to the rule of navigation established and promulgated by the Supreme Court in the case of the steamer Oregon et al. v. Roca et al., 18 Howard, 572, where this language is employed: 'The rule adopted by the Trinity masters, and sanctioned by this court, is the safe one: that when two vessels on opposite tacks are approaching each other, each should turn to the right, passing each other on the larboard side. This rule is too simple to be misunderstood, and if observed, collisions would not occur between moving boats, whether propelled by sail or steam. The rule once established, every deviation from it should be chargeable as a fault.'

The Friends, 1 W. Robinson, 479.

Steamer Oregon v. Roca et al., 18 Howard, 572.

8. That the steamer violated said rule by turning to the left, and thereby caused the collision.

9. That there was not on the steamer 'a trustworthy and constant lookout,' 'whose whole business was to discern vessels ahead or approaching, so as to give the earliest notice to those in charge of the navigation of the vessel;' and that the omission is prima facie evidence that the steamer is in fault.

Steamboat New York et al. v. Rea et al., 18 Howard, 225.

Genesee Chief, 12 Howard, 449.

Chamberlain v. Ward, 21 Howard, 548.

10 Howard, 585.

10. That the person alleged to have been acting as lookout was not 'actually and vigilantly employed in his duty as lookout,' (12 Howard, 459;) but was in effect the helmsman, superintending a negro who performed merely the manual labor of working the wheel; who, the lookout testifies, 'acted by my orders in the management of the wheel,' and 'I leave nothing to his discretion;' and 'I give the order, and see and hear if it is obeyed.'

Ward says: 'I' (on the occasion of the collision) 'put the helm of the steamer starboard. I had just steadied the boat on that course, and discovered the schooner had altered her course.'

11. The fact that the steamer was engaged in carrying the United States mail furnishes no excuse for proceeding at a speed endangering the lives and property of citizens.

The Rose, 2 W. Robinson, 3.

The Iron Duke, 2 W. Robinson, 385.

Rogers et al. v. Steamer St. Charles et al., 19 How., 112.

12. In cases of collision between steamers and sailing vessels, 'prima facie, the steamer is chargeable with fault. The exception to this rule must be clearly established by strong circumstances, to excuse the steamer.'

New York and Virginia S. Ship Co. v. Calderwood et al., 19 Howard, 246.

Steamer Oregon v. Roca, 18 Howard, 572.

13. The pretended lookout was stationed in the pilot-house, and not in the forward part of the vessel, where he should have been.

Newton v. Stebbins, 10 Howard, 607.

St. John v. Paine et al., 10 Howard, 585.

Chamberlain et al. v. Ward, 21 Howard, 571.

1. The change of the course of the schooner was the proximate and only cause of the collision; and if such change had not been made, the vessels would have passed each other in safety.

2. The change of course on the part of the schooner, at the time and under the circumstances, was a gross and inexcusable fault.

3. The pilot-house on the steamer Louisiana (as shown by the uncontradicted testimony taken on behalf of the appellee since this appeal, and contained in the depositions of Captains Virden, Turrer, Rice, and Weems) was the best position for the lookout on the steamer; and there was no want of care and no error of judgment on board of the steamer, in any respect.

Mr. Justice GRIER delivered the opinion of the court.

The appellants, owners of a schooner called the William K. Perrin, charge in their libel that between nine and ten o'clock of the evening of 20th of February, 1858, as the schooner, laden with oysters, was on her way down the Chesapeake bay, she was run into and sunk by the steamboat Louisiana; that it was a bright moonlight night, and the schooner, though of only forty-three tons burden and deeply laden, could be and was seen at the distance of a mile.

The answer admits the collision and the result of it. It admits, also, the schooner was seen at a distance of two or three miles; that the steamer was proceeding at a rate of fourteen miles an hour, 'heading due north,' and the schooner holding her course nearly due south. But it alleges as an excuse, that while the steamboat and schooner were meeting on parallel lines, the schooner suddenly changed her course and ran under the bows of the steamer.

This is the stereotyped excuse usually resorted to for the purpose of justifying a careless collision. It is always improbable, and generally false.

There is not the usual conflict of testimony in this case; for the single person on board of the steamer who was able to give any account of the collision, who acted as pilot, and by whose want of vigilance and skill the collision was caused, does not materially contradict, but rather confirms, the testimony of the libellants. The facts of the case are as follows: The steamer Louisiana, of eleven hundred tons burden and five hundred horse-power, was on her way coming up the wide bay of the Chesapeake, steering a due north course, between nine and ten o'clock at night. The small heavy-laden schooner is seen two or three miles off, coming in an opposite direction. The captain of the steamer, (whose theory of action appears from his own testimony to be, that all small vessels are bound at their peril to get out of the way of a large steamer carrying the United States mail,) although he had seen the schooner, and knew that the vessels were approximating at the rate of over twenty miles an hour, retires to his cabin. It was his watch and his duty to be on deck as officer of the deck. He leaves on deck one man, besides the colored man at the wheel, to act as pilot, lookout, and officer of the deck. These two persons constituted the whole crew on duty, besides firemen and engineers. This person, who had to perform these treble functions, was the second mate. His theory is, that the best place for a lookout is in the pilot-house, where, he says, 'I generally lean out of the window, and have an unobstructed view.' Accordingly, as pilot, he remained in the pilot-house to direct the steersman; and as lookout, he occasionally leaned out of the window.

The result shows the value of this theory with regard to the place and person proper for a lookout. The schooner kept on her course, as the rules of navigation required her to do, on the presumption that the steamer would diverge from her course so as to leave a free berth to the schooner, as it was the duty of the pilot of the steamer to do. The boats were approximating at the rate of six hundred yards a minute, or one hundred yards in ten seconds. A slight turn of the wheel of the steamboat, if given in due season, would have left a wide berth for the schooner. But this, by his own account, was neglected by this pilot and lookout till within ten seconds or less of a collision; and then the order was to starboard the helm, instead of porting it, in direct contravention of the rules of navigation.

The steamer, it is true, had a right to pass on either side, and it was her duty to keep clear and give a wide berth to the sailing vessel; but having neglected this duty till the danger of a collision was so imminent that it was probable the schooner would be making some movement to avoid destruction, such a movement only increased the danger of a collision.

The man at the wheel of the schooner had his orders to keep steady on his course south. It is proved, without contradiction, that this order was strictly complied with till the pilot or steersman heard the noise of the steamer's wheels; and being warned of her approach by the lookout, he looked under the boom, and discovered the steamer almost on him; when, in order to save his own life and the lives of the crew, he ported his helm and received the blow on the larboard side of the schooner, near the stern, instead of the bow. The point of collision confirms, beyond a doubt, this view of the case.

The hypothesis set forth in the answer to excuse this collision, that the boats were passing on parallel lines, three hundred yards apart, and that, when within one hundred or one hundred and fifty yards of passing each other, the schooner turned round and run herself under the bows of the steamer, is not only grossly improbable in itself, but contradicted by the testimony, and is a mathematical impossibility.

With this pregnant example of the value of the theory of lookouts contended for in this case, let us compare it with the rules established by this court. Without referring to the numerous cases, the correct doctrine on this subject will be found laid down by Mr. Justice CLIFFORD in delivering the opinion of this court in Chamberlain v. Ward, 21 How., 570:

'Steamers navigating in the thoroughfares of commerce must have constant and vigilant lookouts stationed in proper places on the vessel.' They must 'be persons of suitable experience, and actually and vigilantly employed on that duty.' 'In general, elevated positions, such as the hurricane deck, are not so favorable situations as those more usually selected on the forward deck, near the stem.' 'Persons stationed on the forward deck are less likely to overlook small vessels deeply laden, and more readily ascertain their exact course and movement.'

The entire disregard of these rules of navigation by the steamer, and the consequent destruction of property, demonstrate their correctness and utility.

In fine, we are of opinion that the collision in this case, and destruction of the schooner Perrin, was caused wholly by the negligence and inattention to their duties of the officers who navigated the Louisiana, and that the steamboat should be condemned to pay the whole damage incurred by the said collision.

Let the decree of the Circuit Court reversing the decree of the District Court be reversed.


text: Talk:Benjamin Haney v. Baltimore Steam Packet Company/Opinion of the Court


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1944

 INDEX. cxciii New York Southern J udiciaZ District- Pale. Continued. deficiency appropriation for transcript of testimony, United States against Earl Battice__________ 21 three additional judges authorized for _ 1317 Newark, Del., appropriation for public building___ 180, 1043 Newark, N. J ., appropriation for acquiring site and erecting public building_ _ __ 177, 1043 contracts for entire estimated in- creased cost, authorized_______ 177 former restrictions waived______ 177 price restricted for sale of present building___ _____ __ _______ ____ 177 Newburgh, N. Y., appropriation for public building___ 180, 1043 Newburyport, Ma88., deficiency appropriation, for public building aL _______ ' ___ _____ ___ 33 Newell, Floyd A., deficiency appropriation for payment to, from Navy pension fund____ 1648 Newlands Irrigation Project, Nev., appropriation for paying irrigation charges, etc., on Paiute allot- ments within ______________ 213,1575 for reconstruction of Truckee CanaL 229 for boring test wells in Truckee Meadows____ ______ ____ ____ __ _ 1591 deficiency appropriation for drainage expenses reimbursement; Paiute allotted lands in______________ 17 for water storage_________________ 902 Carson River, reservoir sites_ _ _ _ _ 902 Newport, Ark., bridge authorized across White River, at_ 984 Newport, R. I., appropriation for maintenance, etc., naval training station_ _ _ _ __ 627, 1455 fOl" torpedo station, fresh water mains_ 636 purchase of site for lighthouse depot, authorized at__________________ 1262 Newport, Vt., bndge authorized across an arm of Lake Memphremagog, at_ _____ 297 Newport, Wash., appropriation for graves of national forest fire fighters buried at. 553, 1203 New8paper Wrapper8, etc., Postal Service, appropriation for manufacture of, dis- tribution, etc_ _____ _______ 191, 1053 Newton County, Tex., bridge authorized across Sabine River, between Vernon Parish, La., and_____ ____________________ _ 1083 Newton, Iowa, appropriation for public building___ 180, 1043 Newton Street NE., D. C., appropriation for paving, etc., Twenty- second to Twenty-sixth Streets; from gasoline tax fund_ _______ 653 for paving, etc., Rhode Island to Eastern Avenues; from gasoline tax fund_____________________ 1270 for paving, etc., Twentieth to Twenty-second Streets; from gasoline tax fund______________ 1271 Nez Perce Indian Re8ervation, Idaho, easement to designated lands in, granted to Idaho for fish and game propagation_____________ 1022 Nez Perce India7lll, site of battle in Montana of, with command under Nelson A. Miles, withdrawn from entry_________ 621 designated Chief Joseph Battle Ground of the Bear's Paw_____ 621 all claims of, growing out of treaty ~!TarmstroBot (talk)__~_01:26, 25 September 2010 (UTC)_~_ 1249 for sale of reserved lands and no compensation to the Indians_ _ _ 1249 lands not ceded, sold by United States; erroneous per capita payments for ceded lands______ 1250 gold mined by white men on Reser- vation, prior to cession________ 1250 to be brought in five years_________ 1250 verification admission of records, etc_________________________ _ counterclaims admitted as an offset. joining of other bands____________ _ attorneys' fees fixed by decree of 1250 1250 1250 court; compromise, etc_________ 1250 amount of judgment placed to credit of the Tribe; interest allowed___ 1251 use for education, for benefit of the Indians______________________ 1251 no per capita payment allowed_ _ _ 1251 Nez Percea Indian8, Wa8h., J08eph'8 Band, deficiency appropriation for support, etc________________________ _ 41 Niagara Fall8, N. Y., appropriation for rehabilitating cus- tomhouse building at________ _ Nicaragua, 180 appropriation for minister to _______ 65,1096 deficiency appropriation for expedi- tionary forces of Marines in____ 25 for investigation, etc., as to practica- bility, cost, etc., of constructing ship canal across, to meet future needs of shipping______________ 1667 Nicaragua Canal, investigation and surver to be made of reports of Isthmian Canal Com- mlBBion, as to the practicability of, cost). etc___________________ 1539 Nichol8 Avenue ~E., D. C ., deficiency ap]>ropriation for widening, Good Hope Road to S Street__ _ Nicholaon Street SE., D. C ., appropriation for paving, etc., Prout 8 Street to Minnesota Avenue; from gasoline tax fund_________ 1272 Night Schools, D. C ., appropriation for ________________ 660,1277 Niles, Ohio, time extended for constructing viaduct across Mahoning River, at__ 761,1525 Ninth Judicial Circuit, additional judge appointed for________ 1414 vacancy due to death, etc., of pres- ent senior judge, not to be filled________________ ______ ____ 1414 Ninth Street NE., D. C., appropriation for paving, etc., Kearney to Lawrence Streets; from gaso- line tax fund_________________ 1270 Ninth Street NW., D. C ., appropriation for paving, etc., Long- fellow to Madison Streets; from g!l.8oline tax fund_____________ 652

�


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1945

 cxciv INDEX. Ninth Street NW., D. C. -Continued. Pap. appropriation forpavinsc, etc., Quack· enbos to RittenhollBe Streets; from gasoline tax fund___ ______ 652 for paving). etc., Sheridan to Tucker- man tstreeta; from gasoline tax fund________________________ 652 for paving, etc., Gallatin to Hamilton Streets; from gasoline tax fund_ 653 for paving, etc.],. Rock Creek Church Road to ,",unicy Street; from gasoline tax fund_____________ 653 Niobrara I aland, N ebr. transfer of, from Niobrara City to Nebraska State consented to___ 1147 Niobrara, Nebr., appropriation for control of floods, etc., of Missouri River at___________ 1380 bridge authorized across Missouri River, at________________________ 407,708 time extended for bridging Missouri River, at_____________________ 1562 Nisqually Indiana, Waah., appropriation for removing remains of, from old Nisqually cemetery___ 1569 Nogales, Ariz., deficiency appropriation for improving International Street________ 925,1663 paving, etc., directed, of International Street adjacent to__________ 589,1408 Nome, Alaska, deficiency appropriation for courthouse, improvements________________ 1646 Nonmetallic Minerals and Gas on Public Land8, permittees for gas and oU prospecting, granted further additional time for drilling, etc_ _ ______ ____ ___ 252 extension allowed for expired permits_ 252 Nonmetallic Mineral Deposita, prospecting permits, leases, etc., of pub- lic lands with deposits of sodium salts, authorized______________ 1019 Nonmetallic Minerals on Public Landa, appropriation for enforcing provisions relating to mining, etc______ 232,1595 extension authorized for prospecting permits for coal, if existence not determined,etc_______________ 251 mining permits extended 12 months to withdrawn lands in Utah_ __ ___ 1406 Nonresident Aliens (8ee also Income Tax, Revenue Act of 1928), tax on net income ot. _____________ __ 847 Norfolk and Western Railway Company, may construct two bridges across Tug , Fork of Big Sandy River, near Devon, W. Va., with Knox Creek Railway COmpany____________ 137 WorJolk, Va., appropriation for navy yard, public work _____________________ 635, 1464 deficiency appropriation for custom- house, repairs, etc__ ___________ 917 for marine hospital, breakwater_____ 1655 Norris, J. C ., time extended for bridging Ohio River, at Augusta, Ky., by, as mayor thereof______________________ 1253 North Alton, Ill., appropriation for care, etc., Confederate Cemetery at _______________ 355, 1375 North American Birds and Animala, Pap. appropriation for food habits investiga- tions,etc __________________ 558,1209 North Carolina, advances authorized to farmers and fruit growers, in storm and flood stricken areas of, to purchase seed, feed, and fertilizer for crop of 1929______________________ 1306 payment of balance due to, authorized_ 959 North Carolina Eastern Judicial Didrict, terms of court! at Durham___________ 495 Elizabeth Clty____________________ 495 Fayetteville_ ___ _______ ___________ 495 New Bern________________________ 495 Raleigh__ __ ______ __ ____________ __ 495 Washington______________________ 495 WUDllngton______________________ 495 Wilson__________________________ 495 court rooms to be provided at Wilson and Durham_ ____ _____ ______ _ 495 North Carolina Western Judicial District, terms of court, at Asheville___________ 457 Bryson City______________________ 457 Charlotte_ ______ ___ ______ ________ 457 Shelby___________________________ 457 Statesville____ __ _______ ___ ____ ___ _ 457 rooIWI to be provided at Statesville and Bryson City______________ 457 offices of clerk__ ____ __ _____ ______ __ _ 457 North Dakota, may acquire, after completion, bridge across Missouri River, at Stan- ton__________________________ 477 may bridge Red River of the North, F'argo, N. Dak., to Moorhead, Minn________________________ 472 Grand Forks, N. Dak., and East Grand Forks, Minn___________ 113 time extended for bridging Red River of the North, by, etc_____________ 1534 North, Reverend F., British Chaplain, deficiency appropriation for reimburse- ment of Great Britain, for sums expended by, in relief of Ameri- can nationals in Russia_ _______ 912 payment directed to Great Britain, for expenses of, relieving Americans in Russia, in 1920_____________ 484 appropriation authorized__ _________ 484 North Little Rock, Ark., transfer authorized of portion of Veter- ans' Bureau hospital reserva- tion at, to Big Rock Stone and Material COmpany____________ 369 land received in exchange__________ 369 N arCh Platte Irrigation Project, N ebr.- Wyo.} appropriation for operating commercial system from power revenues_ 229, 1591 for Farmers' Irrigation District_____ 1593 Northern and Northwestern Lakes, appropriation for survey, etc., ot. __ 3 5 8, 1379 Northern Cheyenne and Arapahoe Indians, Mont., appropriation for support, etc.,_ ___ __ _ 1583 deficiency appropriation for sup- port __________________ 47,934,1617 Northern Cheyenne Indian Reservation, Mont., deficiency appropriation for expenses, alloting lands on_ __________ 206, 1638 Northern Pacific Land Grants, balance availa.ble for continuing inves- tigations of, by Joint Congres- sional Committee_____________ 3

�


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1946

 INDEX. cxcv Northern Pacific Lond Gtanta-Contd. Pale. continuation of Joint Committee to In- vestigate, until June 30,1929___ 789 withholding approval of, extended to June 30,1930________________ 1221 joint ocnnmittea oontinued until end of 18t """1'Of 71ft Coqreea_ ___ 1221 unexpended baI8Dce. for eommittee on, available ·to ~y eeeretary, etc., to Mazch" IIr______________ 1608 Northem Pacific Railroad COmP!lny, deficiency appropriation for Joint Con- gressional Committee investi- gating grants, etc.; balance reap- propriated___________________ 886 Northern Pacific Railway Company, gift of lands, etc.L.,. from, adjacent to Columbia ~iver bird refuge, Wash., to become a part thereoL 1413 Northville, Mich., appropriation for fish hatchery at___ 99, 1129 N orthwe8t Florida Corporation, may bridge Perdido Bay, Inerarity Point, Fla., to Baldwin County, AJa__________________________ 771 N orthwe8t Territory, deficiency appropriation for expenses participation in sesquicentennial celebration of conquest 01._ ___ _ 887 Northwest Territory Sesquicentennial, George Rogers Clark Sesquicentennial Commission established___ _____ 723 composition 01.._ __ ______ __ _______ 723 sum authorized to be expended by com- mission for memorial in Vin- cennes, Ind., commemorative winning of Old Northwest, and achievements of George Rogers Clark in Revolutionary War___ 724 Indiana to f-urnish site and maintain memoriaL _ __________________ 724 acceptance of gifts, authorized________ 724 approval of expenditures; DO Federal liability for debts_ _ ___________ 724 plans of memorial to be approved by Commission of Fine Arts____ ___ 724 no fees to be imposed for admission____ 724 termination of commission June 30, 1931________________________ 724 Norton, Va., deficiency appropriation for Mil!cs Bureau garage at______________ 16 Norway, appropriation for minister to ____. __ 65,10g6 deficiency appropriation for paying interest on postal accounts with_ 27 Noyes, Minn., appropriation for public building_ _ _ _ _ 1043 deficiency appropriation for public building at___________________ 922 Nuisances, D. C ., appropriation for abatement oL ___ 6&8,1285 Nurse Corps, Army, payment autaorized for recovery of bodies of members of._________ 248 provisions for expenses of disposition of remains of officers, enlisted men, etc., extended to members oL__ 251 recovery of bodies included_________ 252 Nurse Corps, Navy (fema!e), appropriation for pay, etc., oL ____ 631,1460 for rent of quarters for _________ 631,1460 Nursery Plant QUIITantiM, appropriation for expenses enforcing __ _ Nursery Stock, ek., . appropriation for cooperative Itudies inpropagating,etc_________ 552,1202 aeisure, deetruction, etc., by employ- ees of AlPieuUur&1 Department of, prohibited, in pcI8IMIIIioa of any person, vehicle, ship, etc___ 468 NUTsell, Army, appropriation for pay ____________ 329,1353 for paying claims of, for damages to private property___________ 330,1354 payment of six months' gratuity to de- pendent of, dying in theaervice_ 249 Nurses, Army lind Navy, Female, disable~J etc., entitled to benefits, of volunteer Soldiers Home_______ 366 Nurses, D. C., all persons representing themselves as traine~, etc., .t? be registered by nurses e~ngboard--- 1519 nurses' examining board, number, appointment, terms of service, etc__________________________ 1519 qualification, organization, officers__ 1519 office of present secretary-treasurer to cease July 1, 1929__________ 1519 executive secretary to be ex officio treasurer; bond_ _ _ _ _ _ _____ ___ 1520 records of meetings and register of nurses; examinations, etc______ 1520 inspection of nursing schools by executive secretary____________ 1520 applications for registration to; qualifications required_ ________ 1520 of a training schooL _ _ _ _________ 1520 registration without examination of graduates of a hospital school prior to July 1, 1924; time for making application_ _ _ _ _ _ __ ___ 1520 nurses with diplomas from outside schools______________________ 1520 reregistration required each year; fee; time for applying- 1520 registration automatically canceled if reregistration not applied for___ 1521 fee for schools of nursing; annual ap- plication; exceptions__________ 1521 filing false statements with board, for- bidden______________________ 1521 jurisdiction of District Supreme Court to suspend or revoke certificate for misconduct, etc __________ _ procedure_______________________ _ appeal to District Court of Appeals_ authority of the Supreme Court ____ _ expenses paid from fees collected_____ _ 1521 1521 1521 1521 1521 salary of executive secretary; per diem to members of board_____ 1521 payment of fees; auditing accounts, etc_ 1522 money reports, etc., annually to Dis- trict Commissioners___________ 1522 penalty for violations_ _ _ _ _ _ ___ ______ 1522 nursing another not prevented if Dot represented to be registered etc_ 1522 construction of word "she" and the derivatives__ ____ __ ____ _____ __ 1522 Nurses, Female, disabled, who served with armed forces in any war, authorized admission into new hospital, at Dayton, Ohio, National Home for Dis- abled Voluntcer Soldiers__ ___ _ _ 1248

�


text:
Day v. Washburn (64 U.S. 309)

THIS was an appeal from the Circuit Court of the United States for the district of Indiana.

A motion was made by Albert G. Porter, as amicus curiae, to dismiss the appeal, because the appeal was taken by part only of the complainants below, and that the other complainants have not been made and are not parties to said appeal.

The authorities cited were the following:A writ of error was brought by Mary Deneale and others, as plaintiffs. The court say, 'who the others are cannot be known to the court, for their names are not given in the writ of error, as they ought to be. Mary Deneale alone cannot maintain a writ of error on this judgment, but all the parties must be joined, and their names set forth, in order that the court may proceed to give a proper judgment in the case.'

Writ of error dismissed for irregularity.

Deneale v. Archer, 8 Peters, 526.

Smyth v. Strader, 12 How., 327.

The writ of error did not contain the names of the parties to the judgment set out in the record.

Cause dismissed.

'If a writ of error be brought in the names of several parties, and any one or more of them refuse to appear and assign errors, they must be summoned and severed, after which the writ of error may be proceeded in by the rest alone.'

2 Tidd., 1135.

Mr. Justice WAYNE delivered the opinion of the court.

title: Day v. Washburn (64 U.S. 309)


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1947

 cxcvi INDEX. Nurrifl{l, D. C. ( .ee alao Healing Arts Pap. Practice Act, D. C ., 1928), not included as "healing art" in pro- visions of Healing Arts Practice Act, D. C ., 1928______________ 1326 Nuu, Bdible. appropriation for inveetigatin& etc., growing marketing, etc., of__ mH,I202 for investipting insects'decting_ 558, 1208 O. Oakland, Calif., appropriation for demolition of present building, and construction of ant'ther on site heretofore &0- qu~d_______________________ 180 disCretionary purchase of new site and constructing building there- on__________________________ 180 if present building be sold, proceeds available for new site, etc______ 180 for public building________________ 1043 Coast Guard cutter "Bear," donated to, for museum, etc___________ 1145 harbor improvement of, modified as to bridges over tidal canal________ 467 Oakwood Cemetery, Chicago IU., appropriation for Confederate Mound_ 355, 1375 Oaths, administration of, by customs officers, etc__________________________ 401 Observatory, AserophyBical, appropriation for maintenance, etc_ _ 584, 778 Ob.ervatory, Latitude, appropriation for operation, etc., Ukiah, Calif______________________ 97, 1127 OblJervatory Place NW., D. C., appropriation for paving, etc., Benton Street northward; from gaso- line tax fund_________________ 1270 Ocean and Lake SurveylJ Navy, appropriation for hydrographic __ __ 626, 14t:i5 deficiency appropriation for field service, increased pay, 1929 ___________ 1648 Ocean Mail Service (see also Merchant Marine Act, 1928), all United States foreign mails, except Canadian, to be carried on con- tract vessels__ __ _____ _________ 692 certificate by Postmaster General to shipping Board, of ocean mail routes, which should be estab- lished_______________________ 692 equitable distribution to serve Atlan- tic, Mexican Gulf, and Pacific coast ports___________________ 692 volume of mail, departures, etc____ 692 determination by Board, of type, etc., of vessels, sailings, etc_ ________ 693 consideration of latest and most approved t1pe8 of vessels______ 693 contracts authonzed by Postmaster General with American citizens for carrying foreign mails______ 693 requirements and conditions of; term, etc__________ .. _________ _ steel vessels to be employed _______ _ American built and registered___ _ registered not later than February 693 693 693 1,1928______________________ 693 under construction for American cit;zens prior to February 1, 1923________________________ 693 Ocean Mail Serviu-Continued. Pap. contracts; construction contracts here- after with reference to use by Navy, or national emergency ___ 693 citizenship of officers and crew, re- qUU1mDentl___________________ 693 advertising for contracta for carrying ocean maila to be made in dail newapapers ofapeeified citiM__: 694 for Pacifio ~ aervioe________ 694 information to be fumiahed________ 694 contracts awarded to lowest qualified bidder_______________________ 694 classification of vessels determined by may s~=~ ~nn~=d - Wiiholii -re: 694 gard to tonnage, for particular routes_______________________ 694 rates of compensation under contracts_ 694 based on nautical miles____________ 694 extra pay mal be allowed class 1 vessels mamtaining excess speed_ 695 rates 01._______________________ 695 allowance for airplane or airship service_ 695 miles between ports to be determined by Postmaster General. _ _ _____ 695 deductions from contract price to be made for failure to perform reg- ular voyage, etc______________ 695 substitution for a particular voyage, of vessel not within contract, in an emergency _ _ _ _____________ 695 contract vessels may carry passengers, officersf~iv;t;my: voiu~tie~-a~;-l~ 695 assigned to duty on contract mail vessels; compensation, etc_ ____ 695 mail messengers to have transportation subsistence, etc., free of charge_ 696 amendments and repeals_ _ ___________ 696 mails to be shipped on American ves- sels_________________________ 696 contracts for, not assignable________ 696 no payment on assigned_ ________ 696 not applicable to, under this Act. _ 696 allowance for former rates under Act of 1920, repealed_ _____ ___ __ ____ _ 696 ocean mail service, Act of 1891, re- pealed_______________________ 696 provisions for carrying mails to Great Britain, repealed _____ __ _ ____ _ 696 compensation for mail contract trans- portation, not limited to speci- fied contracts_ _ _ _ _ _ __________ 696 prior contracts continued in force____ 696 compensat.ion for transportation by, pre- scribed. ____ _____ ____ _ __ __ _ _ _ 1175 Ocean Mail Service, Act of 1891, repealed___________________________ 696 O'Connell, James, deficiency appropriation for paying claim of, for property damages__ 23 Ocmulgee River, bridge authorized across, at Fitzgerald, Ga_________________, __ _ __ _ __ 403 at Jackllonville Ferry, Gil. ___ ____ ___ 446 time extended for bridging, at Fitz- gerald, Ga___________________ 1447 Officers, Army, appropriation for pay ____ " _ _ _ _ _ _ _ 329,1353 for warrant ___________________ 329, 1353 for aviation increase ___________ 329,1353 forlongevity __________________ 329,1353

�


text: Talk:Day v. Washburn (64 U.S. 309)

title: Talk:Day v. Washburn (64 U.S. 309)


text:
Day v. Washburn (64 U.S. 309)/Opinion of the Court

Albert G. Porter, Esquire, a counsellor of this court, and who was concerned as counsel in the court below for certain petitioners, claiming an interest in the matter in controversy adversely to the appellants, asked to be permitted, as amicus curiae, to move for the dismissal of this appeal, alleging for cause that it had been irregularly brought to this court, in this particular, that the appeal had been taken only by a part of the complainants, and that such of them as had been omitted were not parties to the appeal.

The appellants filed in the Circuit Court a bill to set aside, as fraudulent, a conveyance of property, and to subject it to the payment of their claims against William A. Washburn, and associated with him as a defendant John A. Keith, the grantee of the conveyance. The bill was separately answered by Washburn and Keith, and proceedings were had in the case, until at December term, in 1858, the issue was made up, upon bill, answer, replication, and exhibits. At that term of the court, December 21, 1858, a number of persons, claiming also to be creditors of Washburn, filed a petition by their counsel, Hall, McDonald, and Porter, praying to be made parties to the bill, as complainants, and to be permitted to share in such distribution as might be made out of the property charged to have been fraudulently conveyed by Washburn to Keith, in the event of the courts decreeing that it had been so done, and that it was liable for the payment of Washburn's creditors. The court directed these petitioners to be made parties to the bill of the appellants, as complainants, and under that order the decree now appealed from was made.

But before the decree was rendered, the cause was referred to a master, to report the sums due to the creditors, as they were then appearing to be so in the original bill and other proceedings of the cause. It was done. Subsequently a decree was rendered, declaring Washburn's conveyance to Keith void and fraudulent. In consequence of it, a large sum was made out of the property and deposited in court for distribution. And the court decreed that it should be ratable distributed between the appellants and those other creditors of Washburn who by its orders had been made parties to the original bill. It is from this decree that the appellants have brought the case to this court. They had insisted, before the court rendered its decree, that, being the original complainants, they were entitled to have their claims paid in full, and that the remainder of the fund might then be distributed, in the discretion of the court, pro rata, amongst the other creditors of Washburn. But the court overruled the motion, and ordered the money to be paid ratably to the creditors. It is from this decision and decree that this appeal has been brought, so as to have it decided, whether, in the particular just mentioned, it is not erroneous.

It also appears that the appellants were judgment creditors of Washburn when they filed their bill to set aside his deed to Keith, and that the other creditors, who have been made participants in the fund to be distributed, are not so. And we gather from the proceedings in the cause, that their application to be made parties to the original bill was with the view to defeat the appellants of any legal or equitable priority which they may have acquired for the payment of their claims over the other creditors, either from their being judgment creditors, or from their vigilance in first filing a bill to set aside the conveyance from Washburn to Keith. We do not mean now to decide those points upon this motion, nor any other point connected with the merits of this controversy. All such points will claim the attention of the court upon the argument of the case hereafter. The record also suggests an inquiry, whether those persons who were made parties to the original bill, and who have become by the decree of the court participants in the fund to be distributed, were necessary parties to the bill, or were allowably so, in their then attitude in respect to their claims against Washburn. And in no other way can the question of right between themselves and these appellants in the fund be reached; for the former, having accomplished their purpose, for which they were made parties, are neither willing to appeal from the decree nor to be considered as parties to this appeal.

The record, indeed, suggests many points connected with the real merits of the controversy, and others in respect to proper pleadings in equity, which cannot be considered and determined upon a motion to dismiss the appeal summarily for any irregularities in the process by which it has been brought to this court. We therefore refuse the motion for the dismission of the appeal, allowing it, however, to be brought to the notice of the court again, when the case shall be argued upon its merits.

This course has often been taken by this court upon a motion to dismiss a case, for irregularities in the appeal or writ of error, similarly circumstanced as this is.