text:
Donovan v. United States

ERROR to the Circuit Court for the Eastern District of Missouri.

Donovan was surveyor of the port of St. Louis, 'performing the duties of collector,' from January, 1860, to May, 1861. In the settlement of his accounts with the government he retained $6000 per year as his official compensation, claiming that sum as his legal allowance. The Treasury Department was willing to allow him $5000, but no more. And to get the $1000 in dispute the United States sued him on his official bond.

The question was: Are surveyors of ports, 'performing the duties of collectors,' under the act of 1831, entitled to the compensation of $6000 per year? The issue presented turned upon the right construction of certain statutes.

In the early history of the custom-house laws the collectors, naval officers, and surveyors received their compensation from fees earned by them, which were provided for by the various statutes on the subject. As the business of the country increased the aggregate of these fees came to be so large that Congress saw fit to limit the compensation of these various officers, as derived from those fees. The first of these limitations, now in force, was that of the act of May 7th, 1822. This law was a limitation upon existing rights. Without it the officers named would, of course, have received compensation much larger than the sums named.

The statutes bearing on the case were thus:

By an act of May 7th, 1822, it was thus enacted:

'SECTION 9. Whenever the emoluments of any collector of customs of either of the ports of Boston, New York, Philadelphia, Baltimore, Charleston, Savannah, or New Orleans, shall exceed $4000, or the emoluments of any naval officer of either of said ports shall exceed $3000, or the emoluments of any surveyor of either of said ports shall exceed $2500 in any one year, after deducting the necessary expenses incident to his office in the same year, the excess shall in every such case be paid into the treasury for the use of the United States.

'SECTION 10. Whenever the emoluments of any other collectors of the customs shall exceed $3000, or the emoluments of any other naval officer shall exceed $2500, or the emoluments of any other surveyor shall exceed $2000 in any one year, after deducting therefrom the necessary expenses incident to his office in the same year, the excess shall in every such case be paid into the treasury for the use of the United States.'

'SECTION 11. The preceding provisions shall not extend to fines, penalties, or forfeitures, or to the distribution thereof.'

At the time of this enactment, St. Louis, of which Donovan was the surveyor, & c., was not 'a port.'

By an act of March 2d, 1831, 'allowing the duties on foreign merchandise imported into Pittsburg, Wheeling, Cincinnati, Louisville, St. Louis, Nashville, and Natchez to be secured and paid at those places,' and making St. Louis a port, a change is in some respects made in former laws.

This act makes St. Louis and other places ports, which they were not before. By this law, as will be seen by reference to it, when any merchant in St. Louis imports goods he deposits with the surveyor a schedule of such goods, with an estimate of their cost. Upon this the surveyor makes an estimate of the amount of duties accruing, and the importer gives bond, approved by the surveyor, to pay these duties. The surveyor then sends to the collector at New Orleans a copy of this bond and schedule.

The importer then enters the goods at New Orleans, and the collector then certifies to the surveyor at St. Louis the amount of duties, and delivers the goods to the importer to be shipped to St. Louis. Upon reaching their destination, the surveyor having informed himself of the correctness of the entire proceeding, gives a permit for the landing of the goods.

These duties are, to some extent, in the nature of those performed in other ports by a collector.

The act enacts:

'SECTION 5. That where surveyors are not already appointed in any of the places mentioned, a suitable person shall be appointed for such places; and on all such surveyors, whether appointed or to be appointed, shall devolve the duties prescribed by this act, in addition to the customary duties performed by that officer in other places; and the surveyor at each of said places shall. . . receive, in addition to his customary fees, an annual salary of $350.'

This act first anywhere made surveyors perform the duties in any respect like those of collectors.

Next came an act of March 3d, 1841, thus:

'SECTION 5. In addition to the account now required to be rendered by every collector of customs, naval officer, and surveyor of ports, every such collector, naval officer, and surveyor shall, each and every year hereafter, render a quarter yearly account under oath to the Secretary of the Treasury of all sums of money by each of them respectively received or collected for fines, penalties, or forfeitures;. . . or for rent and storage of goods, wares, or merchandise, which may be stored in the public storehouses, and for which rent is paid beyond the rents paid by the collector or other such officer; and if from such accounting it shall appear that the money received in any one year by any collector, naval officer, or surveyor, on account and for rents and storage a oresaid, and for fees and emoluments, shall in the aggregate exceed the sum of $2000, such excess shall be paid by the said collector, naval officer, or surveyor, as the case may be, into the treasury of the United States; and no such collector shall, on any pretence whatever, hereafter receive, hold, or retain for himself, in the aggregate, more than $6000 per year, including all commissions for duties and all fees for storage, or fees or emoluments, or any other commissions or salaries which are now allowed and limited by law. Nor shall such naval officer on any pretence whatever, in the aggregate, receive, hold, or retain for himself, hereafter, more than $5000 per year, including all commissions on duties, and all fees for storage, or fees or emoluments, or any other commissions or salaries which are now allowed and limited by law. Nor shall such surveyor, in the aggregate, receive, hold, or retain for himself, hereafter, more than $4500 per year, including all commissions, or fees, or emoluments, or any other commissions or salaries which are now allowed and limited by law.'

Then followed an act of March 3d, 1857, thus:

'SECTION 8. The provisions of the act approved the 3d day of March, 1841, which established and limited the compensation of collectors of customs, shall be construed to apply to surveyors performing or having performed the duties of collectors of the customs, who shall be entitled to the same compensation as is allowed to collectors for like services in the settlement of their accounts.'

It was admitted as part of the case that after the passage of it all surveyors doing duty as collectors at the port of St. Louis have claimed $6000 as the maximum of their compensation, from all sources under the law.

Finally came an act of June 8th, 1872, in terms nearly identical with the one just quoted:

'The provisions of the fifth section of the act approved March 3d, 1841, which established and limited the compensation of collectors of customs, shall be amended and shall be construed to apply to all surveyors of customs ports performing or having performed the duties of collectors of customs, who shall be entitled to receive the same compensation as is allowed to collectors by said act of March 3d, 1841, for like services in the settlement of their accounts with the treasury: Provided that the fees, commissions, and emoluments prescribed by law, and collected by them, shall amount to such maximum allowance.'

Over all came the Revised Statutes of the United States, whose purpose was not to make any new law, but to embody existing statutes. These enact:

'SECTION 2688. No collector or surveyor performing the duties of collector shall, on any pretence whatsoever, receive, hold, or retain for himself, in the aggregate, more than $6000 per annum.'

The question on the whole case-fact and statutes-thus was, whether surveyors now, A.D. 1860-61, doing collectors' duty, were to be paid with reference to the classes into which, for the purposes of salary, collectors, surveyors, and naval officers seemed to be divided by the early act of 1822; to wit:

1st. The class doing duty at Boston, New York, Philadelphia, Baltimore, Charleston, Savannah, and New Orleans, who received the higher salaries.

2d. All others who received a lower one.

The government asserted that the system of classes, established by this act, extended to surveyors doing collectors' duty, though such a class of surveyors did not then exist, but was first constituted by the act of 1831.

Donovan, the surveyor at St. Louis doing collectors' duty, denied this, asserting that all surveyors doing collectors' duty were entitled to the pay of the highest class of collectors; in other words, though he admitted that if he had been collector at St. Louis he could have had but $5000, he asserted that as surveyor, doing in addition a collector's duty, he was entitled, under the acts of 1857 and 1872, to $6000.

The ground of his position was that the act of 1822 applied to the two classes of ports existing at that date; that is to say, to ports which had both collectors and surveyors, each performing their respective duties, though in some ports enumerated, the duties of both were greater than in other ports not enumerated; that by the law of 1831, a third class of ports was created; that is to say, ports where the surveyor performed all the duties which in the two former classes the surveyor performed, and performed, in addition, the duties which in those ports were performed by the collector; ports, in other words, where double duty or more than double duty was performed by the surveyor; that this double duty entitled the party to an augmented compensation, and that this compensation was meant to be given by the act of 1857, and had always been claimed under it by surveyors doing collectors' duty; that the treasury making some difficulty, the act of 1872 had been passed making the right more clear, and that finally the Revised Statutes had put a legislative interpretation on the matter which removed all doubt, if doubt existed.

The Circuit Court (Dillon, J.) thus said:

title: Donovan v. United States


text: Talk:Donovan v. United States

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

title: Talk:Donovan v. United States


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

'The provision of the act of June 8th, 1872-under which compensation is claimed by Donovan, upon the basis of $6000 per year instead of $5000-is that the compensation of such an officer shall be the same as that given to collectors by the fifth section of the act of March 3d, 1841, not to exceed, however, the maximum amount therein allowed. In 1859, in the case of United States v. Walker, the Supreme Court of the United States construed the above-mentioned act of 1841, in connection with the previous acts in pari materia, and decided that as respects compensation there were two classes of collectors, viz., 1st. Collectors of the seven ports enumerated in the ninth section of the act of May 7th, 1822, whose total compensation from all sources might equal, but could not exceed, $6000 in a year; and 2d, all other collectors, i. e., collectors of the non-enumerated ports, whose aggregate compensation could not exceed the sum of $5000 in any one year. I am unable to discover in the act of 1872 satisfactory evidence that it was thereby intended to abrogate, in favor of surveyors performing the duties of collectors, this established distinction between what is termed the enumerated and unenumerated ports.

'The act of 1841, as authoritatively construed, limited the aggregate compensation of a collector of one of the enumerated ports at $6000, and of a collector of any other port at $5000; but, while it did provide for the compensation of surveyor, it did not provide a specific compensation for a surveyor who, under the act of 1831, performed the duties of a collector of customs.

'This was sought to be remedied by the act of March 3d, 1857, but as its phraseology was not clear, and as complaints were made that it was illiberally restricted by the accounting officers of the Treasury Department to the surveyors of the principal ports, under the ninth section of the act of 1822, the act of 1872, upon which the plaintiffs in error rely, was passed.

'This last-named act places 'all surveyors of customs ports performing the duties of collectors' upon the footing, as respects compensation, of collectors under the act of March 3d, 1841, for like services.

'St. Louis being a non-enumerated port, the maximum allowance to a collector can, in no event, exceed $5000, and this sum is, in my judgment, the limit of compensation to which the surveyor of the port of St. Louis is entitled.'

Judgment was accordingly given for the United States, and the other side brought the case here.

Messrs. E. F. Noyes and D. I. Wright, for the plaintiff in error:

The act of May 7th, 1822, has given rise to the phrases, 'enumerated' ports and 'non-enumerated' ports. The places named in the ninth section ar called 'enumerated' ports, while all others are called 'non-enumerated' ports. It is this distinction, erroneously applied, as we conceive it to have been, that has occasioned all the difficulty in this case.

No distinction of this kind is in terms created in the statute itself; that is to say, the phrase 'enumerated,' or 'non-enumerated,' is not made use of as applicable to ports themselves, as though it was the intention of Congress to create such a classification, as that it should run through all time forever thereafter. The word 'ports' is used in the ninth section. It is not used in the tenth section. The tenth section simply speaks of various classes of officers by name: collectors, naval officers, and surveyors.

The limitation in the tenth section, as applied to collectors, for instance, applies to such collectors as were performing the duties known to the law at that time, and to such other collectors and surveyors as subsequently performed those same duties. It certainly could not be meant to apply to a new class of officers, then unknown, who were afterward created by law to do other things than collectors and surveyors then did, although they might be called by the name, collectors and surveyors.

This law was meant to cover all ports in existence at the date of its passage, May 7th, 1822. But why should it be construed to apply to ports not then in existence, but which were afterward created, with new duties, and new and distinct compensation?

In Hall v. State, Ranney, J., referring to a case in this court, says:

'A well-settled rule of construction here comes to our aid, which is, that 'a statute referring to, or affecting persons, places, or things, is limited in its operation to persons, places, or things as they existed at the time the statute was passed."

The enacting power knew what ports existed at the date of the passage of the act of 1822. It knew what the duties performed by the then officers were; but the Congress of 1822 could not be supposed to know what might take place in the distant future. The affairs of the country might so change as that new ports would be required. The duties of these new ports might be more onerous than those of any mentioned in the ninth section. Would it, then, be fair to limit the collectors of such new ports to a compensation inferior to that of those who do less work?

The next act is that of March 2d, 1831, which makes St. Louis for the first time a port, and imposes upon its surveyor what in fact were the duties, resembling in some respects those of a collector.

Thus, by this act, duties were imposed upon the surveyor of the port of St. Louis which had never been imposed before. Up to this time St. Louis was not a port at all. The surveyor of that place, if there was one appointed, discharged his duties, whatever they were, for which he received certain fees for each thing performed.

It is evident that it would not be just for Congress to impose upon a man new duties without paying him therefor.

Therefore it is that, in the fifth section of the act of 1831, Congress provides that for these additional services the surveyor so performing the duties of collector shall have a salary of $350, in addition to his customary fees.

If before 1831 the surveyor at St. Louis received $2000, after 1831 he would be entitled to $2350, which shows that the limitation of $2000, in the act of 1822, as to surveyors, does not apply to the surveyors of the act of 1831, who performed the duties of collectors as well.

The next law is that of March 3d, 1841. Prior to this law collectors had rented warehouses in which they stored goods as they were imported. They charged the importers storage. Soon the storage charged far exceeded the rent paid for warehouses, and the collectors received and kept large sums of money in the transaction. To prevent this abuse, the law of 1841 undertook to say that collectors should get no more than $2000 profi out of the warehouse business.

This act is also an act of limitation. It limits the amount which collectors may have from rent and storage to $2000. It further limits the maximum compensation of those collectors to $6000, as this court has said in United States v. Walker.

The act of March 3d, 1857, enacts that the provisions of the fifth section of the act of 1841 'shall apply to surveyors performing, or having performed, the duties of collectors of the customs, who shall be entitled to the same compensation as is allowed to collectors for like services, in the settlement of their accounts.'

It was supposed by the surveyor at St. Louis, that under this act, he 'having performed the duties of collector,' was entitled to $6000 per year, the new maximum allowed collectors under the act of 1841.

But as the law of 1857 was not thus construed by the Treasury Department, the law of 1872 was passed. Now, what was the mischief that this law was intended to remedy? The case shows 'that since the act of March 3d, 1857, surveyors performing the duties of collectors have claimed the sum of $6000 as the maximum of their compensation from all sources, under the law.' This claim has always been refused by the department, and this suit is to establish it. It was this refusal of the department to allow the $6000, under the law of 1857, that was sought to be remedied by the act of 1872.

This act purports to amend the act of 1841, and to apply it to 'surveyors performing the duties of collectors.' Suppose we make the necessary amendment in point of fact. The act of 1841 then reads thus:

'And no such collector, or surveyor performing the duties of collector, shall, on any pretence whatever, hereafter receive, hold, or retain for himself, in the aggregate, more than $6000 per year.'

Does that not mean that he may retain $6000? Remembering that the fees, &c., of the surveyor, to which he was previously entitled by law, were much more than $6000, is he not now entitled to that sum?

It will be observed that in fixing the compensation of surveyors performing the duties of collectors, no reference is had in the law to the compensation of other surveyors; but by the law of 1872 they are to have the compensation of collectors, as fixed or limited by the fifth section of the law of 1841. The only compensation there fixed for collectors is $6000, and so, as we have already said, the Supreme Court has decided in United States v. Walker. The maximum compensation of any other surveyor is $4500, and it is conceded by the department, and decided below in the case at bar, that surveyors performing the duties of collectors are to have at least $5000, which is $500 more than the surveyor of an enumerated port receives. This much being conceded, we think the conclusion inevitably follows that the compensation is $6000, and not $5000.

But again. Clearly the law of 1872 was enacted for some purpose or other. Unless the law of 1872 does give the surveyors 'performing the duties of collectors' $6000 per year, it means absolutely nothing. The claim persistently made by them, subsequent to the act of 1857, was for $6000. This claim has been as persistently rejected. Certainly the law of 1872 intended to give them some advantage of some kind or other, which they did not have before. This advantage was to be in the matter of compensation, for the act of 1872 relates to nothing other than compensation.

What does the act of 1872 say? The law of 1841 'shall be amended.' Why 'amended?' Because it does not accomplish its object now. The result it arrives at, under the application of the law of 1857, is not satisfactory. That result is $5000. This not being satisfactory, the law must be changed and 'amended.' If $5000 was satisfactory to Congress, no change of existing laws, under the construction given, was needed.

This view is sustained by section 2688 of the Revised Statutes of the United States, which are but declaratory of statutes existing when they ere passed, i. e., A.D. 1874; for, as lately said by this court, 'it was the declared purpose of Congress to collate all the statutes as they were at that date, and not to make any change in their provisions.'

The idea that upon the question of compensation there are but two classes of officers-those belonging to enumerated and those to non-enumerated ports-is a wrong one. Abundant legislation by Congress shows this. Repeated laws have given to different officers, collectors and surveyors, salaries, in addition to that which they would have received if this classification alone existed.

There is nothing in United States v. Walker rightly understood that militates against our position, though, upon this authority, the case below was decided against us.

Walker was collector of the port of Mobile, which was a port long prior to 1822. He claimed $6000, under the law of 1841, and his claim was disallowed, as it should have been, because, by the law of 1822, his compensation was limited to $3000, allowed a collector of a non-enumerated port, and by the act of 1841 he had $2000 from rent and storage. Walker made no claim under the act of 1831, as we do. No questions arising on that act could arise, nor were any considered by the court. The act of 1831 is not mentioned nor alluded to in the case from beginning to end. How could any rights under that act be determined? Courts decide upon what is before them, not upon what is no.

In our judgment, we are sustained by the Walker case in the views wee entertain.

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

The case turns mainly upon the meaning of the fifth section of the act of 1841.

This act refers to and confirms the allowances to collectors, naval officers, and surveyors in the act of 1822, sections nine and ten, and therefore, by the maxim verba relata inesse videntur, is to be read as if containing those sections; its main purpose being to amend the eleventh section of such former act, which allowed to collectors, &c., the whole of what they might receive as fees upon fines, forfeitures, &c.

It therefore, by confirmation and by original enactment together, provides for two classes of collectors, &c., the one being entitled to salaries of $4000, out of fees upon duties, &c., in addition to $2000 out of fees upon fines, &c.; the other being entitled to salaries of $3000, out of duties, &c., in addition to $2000 out of fines. After effecting this, it proceeds to enact, by way of excluding any other official receipt, that under no pretence shall collectors, &c., receive more than $6000, &c.

It seems plain that this last clause is only a summary, as it were, of the effect of the former words of the section as to the first class of collectors, &c., and cannot be construed as meaning that all collectors, &c., should have salaries of $6000, &c. It leaves the second class to the operation of the greater restrictions of preceding provisions. The act of 1841 is a restraining, not an enlarging statute, and is to be construed accordingly.

If the statute of 1841 recognizes, and in effect provides for two classes of collectors, then the acts of 1857 and of 1872, which refer surveyors doing collectors' duty to the compensation provided in that statute for 'collectors,' recognizes and provides for similar (i. e., two) classes of such surveyors, and, reddend singula singulis, refers such of these as may act at New York, & c., to the $6000 aggregate, those at other ports to that of $5000.

We are not concerned to explain why the act of 1872 was passed when that of 1857 was already upon the statute-book. If the construction placed by the plaintiff upon the act of 1841 be correct, then the act of 1857 secures the claim made by him in the present action as completely as does that of 1872. If our construction of the act of 1841 be correct, the act of 1872 does not countervail its effect more than that of 1857. Both acts refer themselves for explanation to the act of 1841.

As for the argument derived from the Revised Statutes, it has no force whatever. It is no part of the business of the legislative department to make declarations for past cases about statutes which it has made, in other words, to expound for such cases the statute of the country. That is a matter for this court alone, and the court would exhibit as sense of weakness to invoke the aid of such argument. It might as well inquire of each legislator individually what he had meant in voting for the act.

Our construction of the acts in pari materia as to this subject, is recommended as leading to a result corresponding to that policy of Congress which has drawn a line between certain collectors, &c., and others. If there be such a policy, why should not a construction maintaining it as to surveyors doing collectors' duty be referred to one which disregards it?

Again, if it were the purpose of Congress to give to officers like Donovan $6000 per annum out of such fees as they might receive, it would have been more natural and simple to express that design in other and fewer words than were adopted in the act of 1872.

Obscure expressions in acts intended by their promoters to give a larger compensation for services, which at such time are ended, than previous provisions had allowed, will not receive a construction to forward that design. For as regards such services the promoters are upon one side of the counter and the interests of the public are upon the other. The inclination is always contra proferentem, i. e., as applied here, against special legislation.

The construction placed by the plaintiff upon the act of 1872 abolishes all distinction between collectors, as well as between surveyors doing collectors' duty. Both classes of officers or neither are, by the act of 1872, to have $6000 in all cases. More than this, both officers, or neither, are to receive $6000 in case any department of their fee-producing services amounts to so much; whereas the act of 1841 seems plainly to recognize that, in order to make up such $6000, one branch of such services must produce at least $4000, another at least $2000.

The act of 1822 applies to ports afterwards established as well as to those then existing. This is a rule of statutory construction almost universal. Statutes affecting 'men' operate as well upon those born after as upon those then living; as those affecting 'crimes' apply to crimes afterwards created; as a statute referring non-enumerated articles, for the duty payable upon them, to a duty laid upon like 'enumerated' articles, applies as well to enumerations in later statutes; as a statute inflicting penalties in respect of articles 'prohibited,' applies as well to articles prohibited by later statutes; so here, when the act of 1822 speaks of 'other collectors,' &c., it means all other, whether then existing or afterwards to be created.

Mr. Justice CLIFFORD delivered the opinion of the court.

Officers of the customs derive their compensation chiefly from certain enumerated fees, commissions, and allowances, to which is added, for the benefit of the collector of the port, a prescribed sum, called salary, which is very much less than the compensation to which the officer is entit ed. Provision for such fees, commissions, and allowances, were first made by the act of the thirty-first of July, 1789, which also allowed to collectors certain proportions of fines, penalties, and forfeitures.

Changes have been made in the rates of fees, commissions, and allowances for such purposes at different periods to graduate the compensation of such officers to the nature and extent of the services imposed, but the theory and outline of the system have been preserved since the first acts were passed levying import and tonnage duties. Examples of such changes are found in the act of the eighteenth of February, 1793, for enrolling and licensing ships and vessels, and in the act of second of March, 1799, to regulate the collection of duties on imports and tonnage, and in the act usually called the Compensation Act, passed on the same day.

Regulations of a permanent character were made by those several acts that certain fees and commissions should be paid to the collectors of the customs, together with a certain proportion of the sums paid to them for fines, penalties, and forfeitures collected from persons found guilty of violating the penal prohibitions of the revenue laws. Such fees, commissions, and allowances it was provided should be paid to the respective collectors, and the requirement was that they should keep an accurate account of the same and of all expenses for rent, fuel, stationery, and clerk-hire, and that they should annually transmit such accounts to the Comptroller of the Treasury, but they were allowed by those laws to retain the whole amount of the emoluments derived from those sources beyond the expenses of the office, without any limitation whatever. Expenses for rent, fuel, stationery, and clerk-hire were to be deducted from the gross receipts, but they were allowed to retain the whole of the net balance as official emoluments for their services.

Business revived and importations increased, and with such increase the compensation of the collectors at certain ports became excessive, which called for new legislation; and by the act of thirtieth of April, 1802, Congress prescribed a maximum rate of compensation without making any reduction of the fees or commissions required to be paid to the collectors, but the provisions of the act did not extend to fines, penalties, and forfeitures.

By that act it was provided that whenever the annual emoluments of any collector, after deducting the expenses incident to the office, amount to more than five thousand dollars, the surplus shall be accounted for and paid into the treasury.

Twenty years' experience under that act showed that it needed revision, as it applied without any discrimination whatever as well to the large ports where the principal importations were made as to those of comparatively little importance. Collection districts were accordingly divided by the act of the seventh May, 1822, into two classes, usually denominated the enumerated and the non-enumerated ports.

Under the provisions of that act the emoluments of collectors of the enumerated ports might reach the sum of four thousand dollars, but the ninth section of the act provided that whenever the emoluments of the office shall exceed that sum, in any one year, the collector, after deducting the necessary expenses incident to his office, shall pay the excess into the treasury for the use of the United States. But the maximum rate of compensation allowed to collectors of the non-enumerated ports under the provisions of that act, from all the sources of emolument therein recognized and prescribed, is three thousand dollars, and the tenth section of the act contains a provision similar to that found in the ninth section, requiring the collector of the non-enumerated ports to account for, and pay the excess, beyond the amount allowed as the maximum rate of compensation, into the public treasury.

Collectors under those provisions may receive the maximum rate of their offices if the office, after deducting the necessary expenses incident to the same, produces that amount from all the sources of emolument recognized and prescribed by the laws in operation. No one can receive more than the maximum rate and his lawful claim may be much less, according to the amount of business transacted in the office.

From that time until the passage of the act of the third of March, 1841, the laws providing for compensation of collectors remained without material change. Every such officer is required by the fifth section of that act to include in his quarter-yearly account, among other things, all sums received by him for rent and storage of goods, wares, and merchandise stored in the public storehouses for which a rent is collected beyond what is paid for the same by such officer. Moneys received from that source, it is contended, may be retained by a collector of a non-enumerated port sufficient to make his annual compensation six thousand dollars, the claim being that the maximum limit prescribed to the non-enumerated ports is repealed by the subsequent legislation, but this court held otherwise and decided that the collector under that act could in no case retain more than two thousand dollars, and that he was bound to pay the excess beyond that amount, into the treasury as part and parcel of the public money.

Consequently the conclusion was that the compensation of a collector of one of the enumerated ports may be six thousand dollars, but the compensation allowed to the collector of one of the non-enumerated ports cannot exceed five thousand dollars, according to the amount of fees and commissions collected and the amount received from rent and storage. Officers of the kind may receive the maximum rate of their office allowed by the prior law from the sources of emolument recognized and prescribed by that act, provided the office, after deducting the necessary expenses incident to the same, yields that amount from those sources; and in addition thereto he is entitled to whatever sum or sums he may receive from rent and storage, provided the amount does not exceed two thousand dollars, but the excess beyond that sum and the excess, if any, beyond the maximum rate of his office as fixed under the prior law, he is required to pay into the treasury as part and parcel of the public money.

Attempt was subsequently made by the United States to limit the operations of the Storage Act, as a source of compensation to collectors, to such storage only as is received for stores leased by the Treasury Department, for which rents are paid by the importers of goods beyond the rent paid on behalf of the United States, but the court refused to adopt that narrow construction, and held that all sums received for storage, whether the goods imported were deposited in the public stores or the 'other stores' named in the acts of Congress, are required to be included in the quarter-yearly account of the collector, which he is directed to render to the Secretary of the Treasury, and that the yearly aggregate of such sums constitute the basis of computation in ascertaining what amount, if anything, the collector is entitled to receive as compensation from that source of emolument, and what amount, if anything, he is required to pay over from that source, as excess beyond the two thousand dollars, into the public treasury.

None of these propositions are controverted by the defendant, nor does he contend that any of those provisions have been superseded by any express repeal, but he insists that surveyors performing the duties of collectors, u der the fifth section of the act of the second of March, 1831, are entitled to the same compensation as the collectors of the enumerated ports.

Merchandise imported from a foreign port and consigned to merchants at St. Louis was required, if the importation was subject to custom duties, to be entered at the customhouse in New Orleans in the same manner as required in case of the entry of goods imported for consumption, and the officers of the customs at that port are required to proceed to assess the custom duties in the same way as if the merchandise had been destined for sale or consumption in that market.

Payment of the duties, however, is not required to be made at that port, but the importer is required to give a bond, called a transportation bond, conditioned that the packages described in the invoice shall, within a specified time, be delivered to the surveyor and acting collector of the port of St. Louis. Due notice of the proceedings is then given by the collector of the port where the duties were ascertained and assessed to the acting collector of the port to which the merchandise is destined. Such proceedings being had, the vessel may proceed on her voyage, and when she arrives at the port of destination the packages are placed in the custody of the acting collector of that port, who receives the duties, giving notice of that fact to the collector of the port where they were ascertained and assessed, and the collector of the latter port is authorized to cancel the transportation bond given by the importer.

Compensation was claimed by the defendant at the rate of six thousand dollars per annum, and it is admitted that he retained that amount of the moneys collected by him in pursuance of that claim, two thousand dollars of which accrued from rent and storage, and the other four thousand dollars accrued from fees, commissions, and allowances recognized and prescribed by the prior Compensation Act.

Four thousand dollars may be received as compensation under that act by the collector of each of the seven ports named in the ninth section of that act, and the provisions of a more recent act give the same compensation to the collector of the port of Portland, Maine, but the tenth section of the said Compensation Act provides that whenever the emoluments of any other collector of the customs shall exceed three thousand dollars, after deducting therefrom the necessary expenses incident to his office, in the same year, the excess shall in every such case be paid into the treasury for the use of the United States.

St. Louis is not one of the enumerated ports, but the defendant insists that the act of the second of March, 1831, which devolved upon the surveyor of that port the duties of collector, designated a third class of ports, and that the maximum compensation of such a collector is six thousand dollars. Nothing is contained in the act to support any such theory or to afford the slightest evidence that Congress intended anything of the kind. Instead of that the act provides that the surveyor charged with such duties shall receive, in addition to his customary fees, an annual salary of three hundred and fifty dollars, which is utterly inconsistent with the theory that he is entitled by virtue of that act to the same compensation as the collector of one of the enumerated ports.

Confirmation of that view is also derived from the further provision of the same section, that no salary arising under the act shall commence until the act shall take effect and merchandise shall be imported under its authority. Prior to that time the customary fees of the surveyor of that port accruing under the Compensation Act of the seventh of May, 1822, could not exceed two thousand dollars, and it is not pretended that he could retain to his own use more than two thousand dollars from rent and storage.

Apply those suggestions to the case before he court and it is clear that the compensation of the defendant, if regarded merely as a surveyor, could not exceed four thousand three hundred and fifty dollars, even if it be admitted that the sum called salary is an addition to the four thousand dollars to be derived from the other sources of emolument and not merely an addition to the basis of calculation in computing the maximum to be derived from fees, commissions, and allowances, as provided in the tenth section of the Compensation Act.

Small sums called salary have always been allowed to collectors and to the surveyors of certain ports, but such allowances have uniformly been included in the basis of calculation as part of the receipts from fees, commissions, and allowances in computing the maximum compensation of the officers interested. Surveyors of ports, where the officer is charged with the duties of collectors, now stand upon a different footing, as the act of the third of March, 1857, provides that such surveyors shall be entitled to the same compensation as is allowed to collector for like services, in the settlement of their accounts

Grant that and still it is contended by the defendant that the maximum compensation of all collectors, excpet those of the enumerated ports, as provided in the tenth section of the Compensation Act, is repealed by the act requiring collectors to include all sums received for rent and storage in their quarter-yearly accounts. Much discussion of that topic, however, is unnecessary, as the question has been twice determined adversely to the defendant by the unanimous decisions of this court.

Such a collector cannot receive, under any circumstances, more than five thousand dollars, not even if the office earns a greater amount, and he may be obliged to accept much less in case the office does not earn three thousand dollars net from fees, commissions, and allowances, or in case the amount received from rent and storage falls short of two thousand dollars.

Effort is also made in argument to derive support to the proposition that the limitation contained in the tenth section of the Compensation Act is repealed, from the act which provides that the compensation of such a surveyor shall be the same as is allowed to collectors for like services, but it will be sufficient to say in response to that suggestion that the court is of the opinion that the proposition is destitute of any foundation whatever.

Suppose that is so, still it is insisted by the defendant that the act of the eighth of June, 1872, entitles him, as the administrator of the intestate, to retain to the use of the estate of the decedent a rate of compensation equal to six thousand dollars per annum, but the court is entirely of a different opinion.

Stripped of certain redundant words, the body of the act is exactly the same as section eighth in the prior act. Both acts provide that such a surveyor 'shall be entitled to the same compensation as is allowed to collectors for like services,' and neither contains a word which is repugnant to the tenth section of the Compensation Act.

Nor is the proviso in the latter act inconsistent with the prior limitation, as the maximum allowance to such a collector is three thousand dollars from fees and commissions and two thousand dollars from rent and storage.

JUDGMENT AFFIRMED.


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


text:
North Carolina Railroad Company v. Swasey

On motion to dismiss, for want of jurisdiction, as not 'final,' an appeal from the Circuit Court for the Eastern District of North Carolina.

The case was thus:

The State of North Carolina by acts of her legislature passed in January, 1849, and 1855, subscribed for stock in the North Carolina Railroad Company, of the par value of $3,000,000. To pay for this st ck she borrowed money and issued her bonds and certificates of debt with coupons for interest, redeemable in thirty years, with interest, payable semi-annually. In the laws authorizing these subscriptions and loans, she pledged and appropriated for the payment of the bonds or certificates the faith of the State, the stock and all dividends which might be declared thereon.

Of a large amount of these bonds one Swasey became the holder.

From the year 1869, the State received the dividends upon the stock, and appropriated the money to purposes other than the payment of the interest. A large amount of interest coupons being unpaid, a bill in equity was now filed by Swasey for himself and on behalf of several other bond-holders, praying the Circuit Court of the United States for the Fourth District,

1st. To restrain the treasurer of the railroad company from paying any future dividends to the State treasurer.

2d. To restrain the State treasurer from receiving any future dividends.

3d. For the appointment of a receiver, &c.

After argument before the circuit judge, June 19th, 1871, he awarded the injunction, and appointed Mr. J. B. Batcheler a receiver.

Several dividends were accordingly paid to the receiver, and by him distributed, under various orders of the court.

It becoming evident that the arrears of interest could not be paid without a sale of the stock, a motion for a sale was made by the plaintiffs, and on that motion the court entered a decree as follows:

'This cause coming on for further order, the court doth declare:

'1st. That by the terms of the charter of the North Carolina Railroad Company, and the amendments thereto, the shares of the stock in said company, belonging to the State of North Carolina, meaning thereby the shares and all dividends thereon, are pledged as security for the payment of the certificates of debt in such charter and amendments provided for, and for every part of such certificates, meaning thereby the interest accruing upon the principal thereof, as well as the principal.

'2d. That the plaintiff, and those he represents, as owners of such certificates of debt or bonds, or of coupons detached therefrom, now hold large amounts of the past due coupons of said certificates of debt or bonds, and that they are entitled to have their respective proportions of the stock, or so much thereof as may be necessary, sold, in order to pay such past due interest.

'Upon motion of counsel for the plaintiffs, it is therefore ORDERED and DECREED, that J. B. Batcheler, the commissioner heretofore appointed in this suit, take an account of such unpaid interest, and of such further interest as will be due on or before the 1st day of April, 1875, and also of such proportion of the said stock of the State of North Carolina, in said North Carolina Railroad Company, as may be equitably applicable to the payment of said interest found due to each of the said plaintiffs respectively, and that he make report to the next term of this court.

'It is further ordered and decreed, that unless on or before the 1st day of April, 1875, it shall be made to appear to this court that the said State of North Carolina has levied a tax sufficient to pay the said arrears of interest, and has provided for its collection, or shall otherwise have paid or secured the payment of the said past due interest, then so much of the said stock of the State in the said North Carolina Railroad Company, apportioned to the plaintiff, and those he represents, as may be necessary to pay off and discharge said arrears of interest, shall be sold to the highest bidder for cash.'Directions are then given as to the manner in which the sale is to be made, and at the end of all are these words:

'And this cause is held for further directions.'

From this decree the North Carolina Railroad Company took an appeal, and this appeal it was which it was now moved to dismiss as not being 'final,' and therefore not within the expressions of the act of March 2d, 1803, which gives an a peal to this court only from 'final judgments or decrees.'

Messrs. W. J. Budd and F. C. Brewster, in support of the motion to dismiss:

A final decree in equity is defined by a very good text-writer, Mr. Daniells, to whose numerous authorities we refer without citing them, to be one which definitively adjudges the whole subject-matter; an interlocutory decree, one which disposes of some parts and reserves others for future decision.

The present decree is not final, when tested by these principles laid down by Daniells.

Messrs. W. H. Battle and W. N. H. Smith, contra:

The decree is final and an appeal lies to this court.

It is a decree of foreclosure and sale, and disposes fully of the moneys arising upon a sale, leaving only to be performed, under the reference, such ministerial duties, in furtherance of the decree, as would secure the full benefits of its complete execution to the plaintiffs. Nor is it affected by the provision which suspends action under the decree, if 'on or before the 1st day of April following the State of North Carolina shall levy a a tax sufficient to pay' the interest, or shall otherwise pay or secure the same, since in all decrees of foreclosure of mortgages a day of payment is given, and if payment is made the sale is arrested, because in either case the same object is obtained, the satisfaction of the debt.

We may admit that the decree is not 'final' ad unguem; positively, completely, and perfectly final in all details. But it is not necessary to give an appeal that it should be so. In Bronson v. Railroad Company, a motion was made to dismiss an appeal from a decree of foreclosure in a mortgage; the ground of the motion being there as here, that such a decree was not final. But this court say:

'This decree is not final in the strict technical sense of the word, for something yet remains for the court below to do. But, as was said by Chief Justice Taney in Forgay v. Conrad, this court has not therefore understood the words, final decree, in this strict and technical sense, but has given them a more liberal, and, as we think, a more reasonable construction, and one more consonant to the intention of the legislature.

'In the case of Ray v. Law and Whiting v. The bank of the United States, § this court has decided that a decree for the sale of mortgaged premises is a final decree from which an appeal lies. The court rested their decision on the ground that when the mortgage was foreclosed and a sale ordered, the merits of the controversy were finally settled and the subsequent proceedings were simply a means of executing the decree.'

The CHIEF JUSTICE delivered the opinion of the court.


text: Talk:North Carolina Railroad Company v. Swasey


text:
North Carolina Railroad Company v. Swasey/Opinion of the Court

An appeal may be taken from a decree of foreclosure and sale when the rights of the parties have all been settled and nothing remains to be done by the court but to make the sale and pay out the proceeds. This has long been settled. The sale in such a case is the execution of the decree. By means of it the rights of the parties, as settled, are enforced.

But to justify such a sale, without consent, the amount due upon the debt must be determined and the property to be sold ascertained and defined. Until this is done the rights of the parties are not all settled. Final process for the collection of money cannot issue until the amount to be paid or collected by the process, if not paid, has been adjudged. So, too, process for the sale of specific property cannot issue until the property to be sold has been judic ally identified. Such adjudications require the action of the court. A reference to a master to ascertain and report the facts is not sufficient. A master's report settles no rights. Its office is to present the case to the court in such a manner that intelligent action may be there had, and it is this action by the court, not the report, that finally determines the rights of the parties.

With these well-settled principles as our guide, it is easy to see that the decree here appealed from is not final. The amount of the debt which the State must pay in order to stop the sale has not been determined, neither has it been determined what amount of stock may be sold if the debt is not paid. In each of these questions the State has a direct interest, and through its representatives in court has the right to be heard. They must be settled before the litigation can be said to be at an end.

The amount of the debt and the proportion of stock applicable to its payment are, therefore, still open for future adjudication between the parties. Thus far the court has done no more than declare that for the security of the payment of so much as is due, the plaintiff and those he represents have a lien upon their equitable proportion of the stock, and that the lien may be enforced by sale, if payment of the debt is not made. It has also declared its determination to order a sale, if payment of the debt is not made or satisfactorily provided for by April 1st, 1875. In order that proper action may be had when this time arrives, the master has been directed to state the account of the indebtedness to the plaintiff and those he represents, and of their proportion of securities pledged by the State. In this, as it seems to us, the court has acted upon the suggestion in Forgay v. Conrad, and by an interlocutory order announced the opinion it had formed as to the rights of the parties and the principles of the decree it would finally render, leaving the entry of the final decree in form to be made when the amount due has been ascertained and an apportionment of the stock made. In this way the right of all parties can be protected and no injustice done.

In this connection it may not be improper to call the attention of the Circuit Courts to what was said by Chief Justice Taney in Forgay v. Conrad, as to the care which ought to be exercised in the preparation of decrees of this character. Much time of this court and expense of litigants will be saved if more attention is given to the form of decrees when entered.

APPEAL DISMISSED.


text: Talk:North Carolina Railroad Company v. Swasey/Opinion of the Court


text:
United States v. Williamson

APPEAL from the Court of Claims. The case was thus:

An act of March 3d, 1863, relating to the government of the army, enacts—

'That any officer absent from duty with leave, except for sickness or wounds, shall, during his absence, receive half of the pay and allowances prescribed by law and no more.'This statute being in force, Williamson was commissioned as a captain in the Forty-second Infantry to rank from January 22d, 1867; and served as captain in that regiment until it was consolidated with the Sixth Infantry. This consolidation was effected by General Orders Nos. 16 and 17, series of 1869, from headquarters of the army.

General Order No. 16 was issued in compliance with the second section of an act of Congress of March 3d, 1869, by which the infantry regiments were required to be consolidated, and the whole number reduced to twenty-five regiments.

This order, after requiring the consolidation of infantry regiments as directed in the act of Congress, further directed that the senior company officers of each grade present for duty with any two regiments to be consolidated and fit for active service, would be the officers of the consolidated regiment. The supernumerary officers were to be ordered to their homes to await further orders.

The o der further provided that all vacancies that might thereafter occur in the twenty-five infantry regiments would be filled by assignment of the senior officers of the same grade from the list of officers awaiting orders.

General Order No. 17 provided that the company officers would be assigned as directed in General Order No. 16, from the senior officers present and fit for active service with any two regiments consolidated; but 'should any of the officers so assigned'-said the order-'prefer to await orders, the senior officers of the grade desiring service with their regiments may be substituted for them.'

It provided further:

'No applications can be entertained from officers 'awaiting orders,' or on the 'retired list,' for special duty. If their services are required they will be detailed without applying.'

After the consolidation of the Forty-second Regiment with the Sixth, Williamson, on the 22d of April, 1869, was regularly assigned as captain of company H, in the Sixth Consolidated Regiment, and on the 20th of May following he joined his company. On the 29th of the same month he was regularly trnasferred from that company to company A, vice Captain Bailey, unfit for active service.

It did not appear that Captain Williamson ever joined company A, to which he was transferred. Soon after his transfer, being then at Fort Gibson, Cherokee Nation, he addressed, May 3d, 1869, a note to the Adjutant-General of the Department of Missouri-the proper department for him to address-by which, 'in accordance with paragraph 3, General Order No. 17, current series, headquarters of the army,' he 'elected to be placed on waiting orders.'

On the 21st of June, 1869, the Adjutant-General responded to the claimant's request, as follows:

'By authority of the General of the Army, Captain Williamson, Sixth United States Infantry, is, at his request, relieved from duty in this department, and will proceed to his home and await orders, reporting thence by letter to the Adjutant-General of the Army, and to these headquarters.'

Captain Williamson was mustered out of service on the 31st of December, 1870.

From the 15th of December, 1869, to the 31st December, 1870, he received at the rate of $165 per month, the rate fixed by Congress as the pay of a captain of infantry, less than full pay by $690.11. For this sum of $690.11 he brought suit against the United States in the Court of Claims.

The court awarded to him the amount claimed, and the United States appealed to this court.

Mr. G. H. Williams, Attorney-General, and Mr. John Goforth, Assistant Attorney-General, for the United States:

It was at his own request that Captain Williamson was relieved from duty, i. e., from command of a company in the Sixth Regiment of Infantry, and from that time up to December 31st, 1870, the date when he was mustered out of service, he was absent from duty, ceasing to perform any military service or to actively exercise the functions or authority of an officer of the army of the United States.

He was absent from duty with leave, being neither sick nor wounded; whether he technically asked for a leave of absence eo nomine, or whether, within the spirit of the law, he elected to be placed on waiting orders. The act itself merely says, 'absent from duty with leave;' absent-not necessarily by means of 'a leave of absence,' so called, but absent from duty with leave, howsoever that absence from duty was accomplished, if according to law and the regulations. There can be but two classes of officers under this head: those who are actively performing military duties, i. e., in charge of some military character are withheld by whom all functions of a military character are withheld by the operation of absence from duty. Here there was an officer placed in command of a company of infantry-that is to say, ordered to the performance of military service-who elected to be placed on waiting orders, i. e., to be absent from all such duties, and he now demands the same pay and allowances when his request is acceded to that he would have been entitled to had he been actually and actively on duty. The act of March 3d, 1863, says that in case of absence he shall receive 'but half of the pay and allowances prescribed by law, and no more,' and, as he has received these, he has no further claim on the United States.

Mr. H. E. Paine, contra.

Mr. Justice HUNT delivered the opinion of the court.

title: United States v. Williamson


text: Talk:United States v. Williamson

title: Talk:United States v. Williamson


text:
Page:Copyright, Its History And Its Law (1912).djvu/208

 room during the changes, Judge Ray, in the U. S. Circuit Court in New York, declined to grant relief, adding that as a mere spectacular composition such "sketch" was not properly a dramatic composition. The English law was construed in 1848 in Russell v. Smith, when a song "The ship on fire," in which dramatic action Wcis exhibited by the singer alone without costume or scenery, while seated at the piano, was construed to be a "dramatic piece" — the action being "not related but represented." In 1872, in Clark v. Bishop, a music hall song "Come to Peckham Rye" was similarly protected as a "dramatic piece." But in 1895, in Fuller v. Blackpool Winter Gardens Co., it was held that the song " Daisy Bell," though sung in character costume, was not a "dramatic piece" because its representation did not require acting or dramatic effect. Later decision construed the act of 1833 to cover only spoken words, the English Court of Appeal holding in Scholz v. Amasis in 1909, through Lord Chief Justice Farwell, that only substantial copying of written dialogue, and not of a plot or situation, constitutes infringement, and in Tate v. FuUbrook in 1908, that the writer of the dialogue is the sole author of the musical sketch though devised and staged by another. But in two cases, one by Moore in 1903 and one by Eraser in 1905, against George Edwardes, English juries gave heavy damages where the scenarios for musical comedies submitted to that theatrical manager had been made the basis for musical comedies by other writers afterward produced at Daly's Theatre, London.

The opinion of Judge Blatchford was quoted and maybe followed by the U. S. Circuit Court of Appeals in New York, in 1909, in Harper v. Kalem Co., which said through Judge Ward: "The artist's idea of describing by action the story the author has written in words is


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

The argument against the allowance of full pay is based upon the act of March 3d, 1863, which provides 'that any officer absent from duty with leave, except from sickness or wounds, shall during his absence, receive half of the pay and allowances prescribed by law, and no more.' Captain Williamson, it is said, was, during the period in question, absent from duty with leave, being neither sick nor wounded, and hence, it is said, can receive but half-pay, however that absence might have been caused. This argument is unsound.

The distinction between the case of an officer 'absent from duty with leave' and that of an officer ordered to proceed to a particular place and there 'to await orders, reporting thence by letter to the Adjustant-General of the Army and to these headquarters,' is too plain to require much comment.

While absent from duty 'with leave,' the officer is at liberty to go where he will during the permitted absence, to employ his time as he pleases, and to surrender his leave if he chooses. If he reports himself at the expiration of his leave, it is all that can be asked of him.

The obligations of an officer directed to proceed to a place specified, there to await orders, are quite different. It is his duty to go to that place and to remain at that place. He cannot go elsewhere; he cannot return until ordered. He is as much under orders, and can no more question the duty of obedience than if ordered to an ambush to lie in wait for the enemy, to march to the front by a particular direction, or to the rear by a specified time.

The authority to give leave of absence is committed by law to particular persons; the mode of making the application for leave is pointed out and the maximum of its duration is prescribed. A department commander can grant leave of absence for a period not exceeding sixty days. Applications for leave exceeding four months must be referred to the War Department.

The direction, on the other hand, to proceed to a particular place, there to await orders, how long to remain there, to attack, to retreat, or to do any other specified thing, belongs to the officer in charge.

That the assignment was made at the request of the officer can make no difference. The pay is regulated by the position, and not by the manner or influence by which the position is acquired.

Captain Williamson was ordered by the Adjutant-General of the Department of Missouri, by authority of the General of the Army, to proceed to his home and await orders, reporting thence by letter to the Adjutant-General of the Army, and to these headquarters.

The power to make this assignment was a portion of the executive authority, and was vested in the commander of the army. Captain Williamson was not only justified in obeying this order, but it was his duty to obey it. It was his duty to proceed at once to his home, there to remain, subject to orders to be communicated to him. He was expressly required by general order to make no application for special duty, but was informed that if his services were required a detail would be made without his application. He did proceed to his home and there remained waiting for orders until he was mustered out of the service. He was waiting orders, in pursuance of law, but was not absent from duty on leave.

It is not in the power of the executive department, or any branch of it, to reduce the pay of an officer of the army. The regulation of the compensation of the officers of the army belongs to the legislative department of the government. Congress has fixed the pay of a captain of infantry at $165 per month. The deduction of one-half of the amount, when absent from duty on leave, is not applicable to the case of Captain Williamson. He is entitled to his full pay as a captain of infantry. The Court of Claims has done right, therefore, in giving its award in his favor for the amount withheld, and its judgment is

AFFIRMED.


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Page:Babeuf's Conspiracy.djvu/12

Rh patriotic journal, entitled, ''"L'Amico della Libertà Italica." (The Friend of Italian Liberty.)'' This journal, which breathed the true spirit of a patriot, besides attaching to him a host of admirers of the new principles, attracted the notice of Salicetti the Deputy, to whom Buonarroti had been formerly known; and the Constituent Assembly having finished its functions, and the Corsican Deputies being returned from Paris, Salicetti was rejoiced to find an old friend in his native country—a friend rendered doubly dear to him by his recent writings and services in the popular cause.

Not long after (in 1792) the second legislature was dissolved, and a National Convention summoned, to which Salicetti was elected by the Corsicans. Reluctant to leave so valuable a coadjutor behind, Salicetti prevailed on Buonarroti to accompany him to Paris, where he would have a wider field for the exercise of his talents and labours in support of the Revolution. He accordingly repaired thither, was received by the Republicans with the highest marks of esteem, and adopted into the famous popular society of the Friends of Liberty, better known under the name of the "Jacobin Club." In this situation he became acquainted with all the great leaders of the Mountain party, and it was probably from what he observed there, that he was subsequently enabled to distinguish so shrewdly between the generous and comprehensive policy of Robespierre's party, and the selfish and hollow character of those sham-Radical Mountainists, who then co-operated with Robespierre for their own ends, but who afterwards immolated him on the 9th Thermidor, after those ends had been attained.

Some few months after the Convocation of the National Convention (in the winter of 1792), an aristocratic insurrection broke out in Corsica, and it being necessary to send a Commissioner there with full powers, the choice fell on Buonarroti, who possessed all the personal and local requisites for the mission. Having repaired to that island he made every possible exertion to restore order, but being badly supported by the people, who had been seduced by the Royalists, he not only proved unsuccessful, but well nigh lost his life as well. The Corsican Aristocrats resolved to throw off their

title: Page:Babeuf's Conspiracy.djvu/12


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


text:
Fashnacht v. Frank

ON motion to dismiss, for want of jurisdiction, a writ of error to the Supreme Court of Louisiana.

The case was thus:

Frank, a citizen of New Orleans, having a mortgage on property in New Orleans of Fashnacht, a citizen of the Republic of Switzerland, obtained an order in the Fifth District Court for the Parish of New Orleans, for the seizure and sale of it.

Fashnacht thereupon procured from the same court an injunction on the sheriff and on Frank restraining the execution of the order, alleging in his petition for the injunction and as a ground for it, that at the time when the mortgage was executed and as an inducement to the execution, Frank, the mortgagee, had granted to him time for paying the bond, which the mortgage was given to secure; although that fact did not appear as a matter of mention in the contract.

The case came up January 16th, 1874, on the question of a permanent injunction. Testimony was taken, witnesses examined, letters read, &c., and the court on that day dissolved the injunction, with damages.

On the 20th of the same month a motion for a new trial was made and refused.

Fashnacht, the defendant, thereupon, on the 23d of January that is to say, three days after the refusal to allow him a trial-filed a petition to remove his case into the Circuit Court of the United States, under the act of July 27th, 1866, 'for the removal of causes in certain cases from State courts;' an act which enacts that 'in any suit in any State court against an alien, if the suit so far as relates to the alien defendant, is one in which there can be a final determination of the controversy so far as respects him without the presence of the other defendants as parties in the cause, then the alien defendant may at any time before the trial or final hearing of the case, file a petition for the removal of the cause, as respects him, into the next Circuit Court of the United States,' &c.

The petition of Fashnacht for the removal stated that the suit could be thus determined.

The court refused to allow the transfer. It said:

'The order is refused, for the reason that the case was tried and determined by this court after an appearance and pleading of the defendant therein. The order should have been asked for in limine, and the case having been finally determined, as far as this court had jurisdiction, the parties must abide its decision, unless they see proper to appeal therefrom.'

Thereupon, on the 31st of January, Fashnacht appealed to the Supreme Court of Louisiana from the decree of the Fifth District Court of the Parish of New Orleans, dissolving the injunction, but from nothing else.

The Supreme Court affirmed the decree of the court below.

From this judgment of affirmance the present writ of error was taken by Fashnacht, under the assumption that the case came within section 709 of the Revised Statutes, which gives such writ to bring here for re-examination, a final judgment or decree in the highest court of a State in which a decision in the suit could be had, in cases where any title, right, privilege, or immunity is claimed under any statute of the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed under such statute.

Mr. Conway Robinson, in support of the jurisdiction:

The suit of Frank having been commenced against an alien, the alien defendant, before the trial or final hearing of the ause, filed a petition for the removal of the cause into the next Circuit Court of the United States, herein setting up and claiming a right, privilege, and immunity under a statute of the United States. It was, thereupon, the duty of the State court to proceed no further in the cause. But the court refused to grant a removal, and herein made a decision against the right, privilege, and immunity thus set up and claimed, under a statute of the United States, and this decision has been affirmed by a final judgment in the suit in the highest court of the State in which a decision in the suit could be had.

It is no answer to say that the petition to remove was too late, and that the decree of the Fifth Parish Court was right. If the decree of that court was against a right, privilege, and immunity set up by us, and if that decree has been affirmed in the Supreme Court of Louisiana-the highest court of the State-this court has jurisdiction to review the case; and this motion cannot prevail, whatever may be the ultimate decision of this court, when the matter of merits comes to be considered.

Mr. T. J. Durant, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Fashnacht v. Frank


text: Talk:Fashnacht v. Frank

title: Talk:Fashnacht v. Frank


text:
Fashnacht v. Frank/Opinion of the Court

Previous to the time when the motion for a new trial was made and overruled, no question had been presented in the cause that could under any circumstances give this court jurisdiction upon a writ of error. On the 23d of January a petition was filed by the defendant for the removal of the cause to the Circuit Court of the United States. This petition was at once very properly overruled, for the reason that a final judgment had already been rendered. No exception was taken to this ruling. So far as appears the defendant was satisfied, as he should have been, that he could not have relief in that form against the judgment which had been rendered. On the 31st of January an appeal from the judgment was taken to the Supreme Court of the State. This was clearly the appropriate remedy for the correction of the errors of the District Court, if there were any. The action of the District Court in refusing the removal does not appear to have been presented to the Supreme Court upon this appeal. It could not properly have been presented, because the appeal was from the judgment alone, and this action was subsequent to the judgment and independent of it. We act only upon the judgment of the Supreme Court. Only such questions as either have been or ought to have been passed upon by that court in the regular course of its proceedings can be considered by us upon error.

WRIT OF ERROR DISMISSED.

title: Fashnacht v. Frank/Opinion of the Court


text: Talk:Fashnacht v. Frank/Opinion of the Court


text: Crosby v. Buchanan

title: Crosby v. Buchanan


text: Talk:Crosby v. Buchanan

title: Talk:Crosby v. Buchanan