text:
The Montello/Opinion of the Court

The libel does not impart any information as to the character of Fox River, or its connection with other waters, and it is only from the general allegation of the libel that the vessel transported passengers and merchandise upon the navigable waters of the United States, preceding the allegation as to the transportation on Fox River, that we are justified in inferring that the libel intended to state that Fox River was a navigable water of the United States.

We are supposed to know judicially the principal features of the geography of our country, and, as a part of it, what streams are public navigable waters of the United States. Since this case was presented we have examined, with some care, such geographies and histories of Wisconsin as we could obtain from the library of Congress, to ascertain, if possible, the real character of Fox River, and to render the fiction of the law, as to our supposed knowledge of the navigable streams in that State, a reality in this case; but from such examination we are still in doubt whether Fox River has any such connection with other waters as to form with them a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water. It can only be deemed a navigable water of the United States when it forms, by itself or by its connection with other waters, such a highway. If it form such a highway, the case presented is directly within the ruling made in the case of the steamer Daniel Ball, decided at the present term. If, however, the river is not of itself a highway for commerce with other States or foreign countries, or does not form such highway by its connection with other waters, and is only navigable between different places within the State, then it is not a navigable water of the United States, but only a navigable water of the State, and the acts of Congress, to which reference is made in the libel, for the enrolment and license of vessels, have no application. Those acts only require such enrolment and license for vessels employed upon the navigable waters of the United States.

The fact that the steamer, in so far as she was employed in transporting the products of Wisconsin, which were destined for use and consumption in other States and foreign countries, and in transporting the products of other States brought to Wisconsin, and destined to different places within her limits, was engaged in commerce between the States, does not affect the question under consideration, for Congress has not prescribed any regulations governing such commerce, except so far as it is conducted in vessels on the navigable waters of the United States.

As the decree must be reversed, and the cause remanded to the court below for further proceedings, the parties will be able to present, by new allegations and evidence, the precise character of Fox River as a navigable stream, and not leave the matter to be inferred by construction from an imperfect pleading.

DECREE REVERSED, AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS.

title: The Montello/Opinion of the Court


text: Talk:The Montello/Opinion of the Court

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

title: Talk:The Montello/Opinion of the Court


text:
Moncure v. Zunts

ERROR to the Circuit Court for the District of Louisiana; the case being thus:

Deas obtained a judgment in the court below against Moncure and others, heirs of Doyal, and, under an execution issued on this judgment, certain real estate was sold lying in the parish of Ascension, of which Zunts, the present defendant in error, became the purchaser. The laws of Louisiana authorize a proceeding by a purchaser at judicial sale somewhat in the nature of a bill of peace to quiet and confirm the title acquired at the sale. This proceeding is called a monition, and is instituted in the same court in which the original judgment was rendered, by a publication warning all persons interested to come forward and show cause, if any they can, why the title acquired by the sale should not be confirmed.

In response to this monition issued by Zunts, the present plaintiffs in error, Moncure, Dunlop, and others, appeared in court and opposed the confirmation on several grounds which attacked the validity of the sale for want of confor mity in the marshal's proceedings to the laws of Louisiana The issues raised by this opposition were tried by a jury and several bills of exceptions were taken, which presented the points relied on by the plaintiffs in error, to reverse the judgment of the Circuit Court confirming the sale.

The most important of these related to the advertisement of the sale, and to that one this court limited its observations.

The code of procedure of Louisiana originally provided that such sales should be published in the English and French languages in a newspaper of the parish where the seizure was made. Subsequently the law was altered so as to dispense with the publication in French, unless the defendant should request it. But, from this amendment, the parish of Ascension and some other parishes were exempt. So, that there was no question but that the law of Louisiana, in regard to land sold under executory process in the parish of Ascension, required a publication in a newspaper of that parish, in both French and English, as a preliminary to the sale. In the case under consideration no publication was made in the parish of Ascension, though there was a newspaper published there in both the English and French languages, and the only notice given of the sale was an advertisement in the English language, made in May, 1868, in a certain newspaper of New Orleans, such as is spoken of hereafter.

There seemed, therefore, to be no reason to doubt, if the original judgment in this case had been rendered in a State court of Louisiana, and the proceeding which the court was now considering had been there tried, that the sale could not have been sustained. And the question which this court was called on to decide was, whether the departure of the marshal from the requirements of the Louisiana code in making the sale under executory process of the Federal court was sufficient in this case to invalidate the sale.

The matter depended upon certain acts of Congress. Thus the act of May 26, 1824, to regulate the mode of practice in the courts of the United States for the District of Louisiana, declared

'That the mode of proceedings in civil causes in the courts of the United States that now are, or hereafter may be, established in the State of Louisiana, shall be conformable to the laws directing the mode of practice in the District Courts of said State: Provided, That the judge of any such court of the United States may alter the times limited or allowed for different proceedings in the State courts, and make by rule such other provisions as may be necessary to adapt the said laws of procedure to the organization of such court of the United States, and to avoid any discrepancy, if any such should exist, between such State laws and the laws of the United States.'

The seventh section of an act of March 2d, 1867, it was contended below, however, had repealed or modified this former practice act. This act of 1867 was an act making appropriations for sundry civil expenses of the government for the year 1868. Among these expenses were the publication of the laws of Congress in newspapers of each State, the publication of advertisements of the departments, and other matters in the District of Columbia, and the laws concerning the army and navy in the United States Army and Navy Journal. The seventh section of this act authorized the clerk of the House of Representatives to name one or more newspapers published in each of the eleven States which had been in insurrection (naming them) in which the treaties and laws of the United States should be published, and in some one or more of which

'All such advertisements as may be ordered for publication in said districts by any United States courts or judge thereof, or any officer of such courts, or of any executive officer of the United States, shall be published, the compensation provided, and other terms of publication shall be fixed by said clerk, at a rate not exceeding two dollars per page for the publication of treaties and laws, and not exceeding one dollar per square of eight lines for the publication of advertisements, the account for which shall be adjusted by the proper accounting officers and paid in the manner now allowed by law in like cases.'

The law further provided that the clerk of the House should give notice to the heads of departments and each judge of the United States courts of the paper selected, and that thereafter it should be the duty of such executive officers to furnish to such selected paper only an authentic copy of the publications to be made as aforesaid.

The court below, contrary to the request of the parties opposing the confirmation of the sale, who asked for the opposite construction, charged that an advertisement of the property sold by the marshal in newspapers published in New Orleans, selected under the act of Congress just quoted, by the clerk of the House of Representatives of the United States, was a sufficient advertisement in a newspaper, under the law.

And it was recited in the bill of exceptions that it appeared from the evidence that it had been the practice of the marshal to make this kind of advertisement since that act of Congress.

Mr. P. Phillips and Mr. Conway Robinson, for the plaintiffs in error, contended:

That the legal advertisements spoken of in the act of 1867 were such as might be ordered for publication by any United States court or any judge or other officer thereof; but that the advertisement, under an execution for the sale of property, was not made by order of the court, or by any officer thereof, but was required by law, and was not dependent on any authority less than the law itself. It was, therefore, not within the letter of the statute; still less was it within its spirit when it was shown that the advertisements intended were those for which the public treasury was responsible.

Mr. T. J. Durant, contra, argued in support of the views of the court below:

1. That the seventh section of the act of 1867 had repealed or modified the old act of 1824. It was on the very subject of court advertisements in the Federal districts. An advertisement for a marshal's sale, in a Federal district, is an advertisement ordered for publication in that district by a United States court, by the judge thereof, and by one of its officers, to wit, the marshal. It thus falls, by a singular multiplicity of descriptions, within the very words of the act. The act of 1824, requiring, as it does, uniformity with State practice, cannot stand with the act of 1867, presenting a departure from it. The adoption, in 1824, of the Louisiana mode of advertising property for sale under ''fi. fa.'', did not prevent Congress from abrogating that adoption in 1867, when, in the judgment of the legislative branch of the government, a new rule for advertising judicial sales under process from the United States court in Louisiana became necessary. The Federal, and not the State law, was supreme.

2. The bill of exceptions stated that the advertisement conformed to the existing practice of the court; to that which had in fact become the rule of the court, and under this rule the marshal acted.

Reply:

The utmost duration of the practice set up can only extend from the 2d March, 1867, the date of the act, to May, 1868, when the advertisement was made. Will the court hold this pretended practice of a year sufficient to overturn the law settled from the foundation of the State government? Mr. Justice MILLER delivered the opinion of the court.

title: Moncure v. Zunts


text: Talk:Moncure v. Zunts

title: Talk:Moncure v. Zunts


text:
Page:A short history of social life in England.djvu/60

40 she might sue and be sued in her own name in the courts of justice, she shared in all the social functions, she was present at the open-air moot, or meetings of freemen to settle the local affairs of the little family township; while in some cases she accompanied her husband to the larger Witenagemote, or Meeting of the Wise Men, to settle the more burning questions of the still embryonic nation.

With regard to children, the Angles and Saxons had somewhat Spartan ideas. No sooner was a child born than the momentous question arose. Was it to be allowed to live? It was deemed an act of parental love to put to death any child born to a life of misery or possible starvation, for famine stalked the land not infrequently in these days before the reign of Commerce. Or because to rear a sickly child might bring disgrace to a family of brave men. Children were rigidly brought up. Flogging was looked on not only as a punishment, but as a system of tuition. If a child would not learn, it was beaten; if it did learn, apparently it was beaten also, with a view to impressing the fact learnt on its memory. Thus a man referred to his childhood in the


text:
Moncure v. Zunts/Opinion of the Court

The act of Congress of May 26th, 1824, declares that 'the mode of proceedings in civil cases in the courts of the United States that now are, or hereafter may be, established in the State of Louisiana, shall be conformable to the laws directing the mode of practice in the District Courts of said State,' and, though there is a provision authorizing the judges of those courts to make alterations necessary to conform the practice to the organization of the Federal courts, this authority is quite limited. This statute, then, in establishing the practice of the State courts as the practice of the Federal courts, however the State laws may modify that practice, and in limiting the power of the Federal courts in that State over their own rules of practice, is a departure from the otherwise uniform action of Congress on that subject. The mode of procedure in the courts of Louisiana, conforming very nearly to those of the civil law, and both the code of procedure and the civil code of that State differing so widely from the system of common law adopted in all the other States, was the reason of this special purpose of Congress to require the Federal courts in that State to conform to the usages of the local law. This has been frequently noticed in this court.

It is said, however, that the act of 1824 has been repealed or modified by the seventh section of the act of March 2d, 1867.

The strict grammatical construction of the seventh section, relied on by the counsel of the defendant in error to show that the act of 1824 has been repealed or modified, limits its application to such advertisements and publications as must be adjusted by the proper accounting officers, and paid in the manner now allowed by law in like cases. That this means accounting officers of the Federal treasury and payments by or on behalf of the United States, we cannot doubt. Such language would hardly be used in reference to the costs of court, to be paid by private parties, in a litigation between themselves. Nor would any legislative body use the phrase 'accounting officers' in reference to the clerk or marshal in taxing the costs of advertisements in the regular course of their duties. It is a phrase well known as referring to the auditors and controllers of the treasury, who pass upon all claims against the government before they can be paid out of the public treasury. The cases then to which the section by its term applies are such publications as the Federal government is concerned in, and for which it may have to pay.

This view is confirmed by the manifest purposes of the act. These are, first to require that the clerk of the House of Representatives should select, in the States lately in insurrection, the newspapers in which such publications should be made as the United States required, instead of the heads of departments and other officers who had heretofore exercised that discretion; secondly, that he should also fix the scale of prices, within a limit prescribed by the act, which the government should be charged for such publications.

Nor is this view affected by the fact that judges of courts and other officers of the court, meaning marshals and clerks, are among those required to make publications in the papers so selected; for in the proceedings of these courts in revenue seizures, confiscations, cotton cases, forfeitures, and the like, many notices are required to be published and are published by these officers, for which the United States pays, and which, before the marshal can get the allowance for it, must be passed upon by the accounting officers of the treasury.

Whether we look, then, to the language of this seventh section, or to the manifest purpose and object of the act, we are constrained to limit its application to such publications as the Federal government may make on her own account, and for which payment is to be made out of the Federal treasury.

If the language of the section were much more favorable than it is to the construction contended for by the defendant in error, we should pause long before concluding that Congress had reversed in this instance its uniform policy of conforming the modes of proceeding in the Federal courts to those of the States, and had repealed pro tanto the act of 1824, which laid down that as the law for Louisiana with an express limitation in the power of the court to modify it, and that it had invaded the rule long received as an axiom, that the descent, alienation, and transfer of real estate was governed rightfully by the law of the State wherein it lay. We are quite satisfied that Congress had no such intent in passing the act of 1867.

The effort to support the course of the marshal, by showing that he acted under a rule of the court, is hardly worth consideration. The mere circumstance that for a few months that officer, acting under the construction of the act of 1867, which we have just shown to be erroneous, had advertised only in the newspapers selected by the clerk of the House of Representatives, did not constitute a rule of the court.

We are of opinion that the sale should have been set aside for want of the advertisement in the parish where the land lay. The judgment of the Circuit Court affirming the sale is, therefore, REVERSED, and the case remanded with directions to proceed

IN CONFORMITY TO THIS OPINION.

title: Moncure v. Zunts/Opinion of the Court


text: Talk:Moncure v. Zunts/Opinion of the Court


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St Louis v. The Ferry Company

ERROR to the Circuit Court for the District of Missouri.

A statute of Missouri enacts that 'shares of stock and all other interests held in steamboats, keel-boats, wharf-boats, and all other vessels,' shall be taxable for State purposes; and by its charter the city of St. Louis has authority to tax all property within the city, so taxable.

In this state of statutory enactment the city authorities of St. Louis laid a tax on the value of all ferry-boats used by the Wiggins Ferry Company, in ferrying passengers and cargo on the Mississippi River, between the city of St. Louis, Missouri, and East St. Louis, in Illinois, on the opposite shore. The ferry company refused to pay the tax, on the ground that these boats were not 'property within the city,' and the question was whether they were so or not.

The case as found by the court below (to which it had been submitted under the act of March 3d, 1865), was this:

The ferry company was incorporated by the laws of Illinois, and had its principal office in St. Louis, Missouri. There its president, vice-president, treasurer, superintendent, and other chief officers resided; there the ordinary business meetings of the directors were held, and there the seal of the corporation was kept. The company's minor officers, such as engineers and pilots on its ferry-boats, resided in Illinois, opposite the city of St. Louis, where its real estate was situated, also its warehouse and some other property. The ferry-boats, when not in actual use, were laid up by the Illinois shore, and were forbidden, by a general ordinance of the city of St. Louis regulating ferries and ferry-boats, to remain at the St. Louis wharf or landing longer than ten minutes at a time. The city exacted from the company an annual ferry license, which was paid. It permitted the company to erect landing or wharf-boats at its wharf or public landing, for the convenience and exclusive use of its ferry-boats, for which wharf-boats the city charged the company a stipulated annual wharfage, which was also paid. The company was assessed and taxed for the value of these wharf-boats within the city limits, in addition to the ferry license and wharfage.

The stockholders of the ferry company resided mainly in St. Louis. Some, however, resided in Ohio, some in New York, and some elsewhere, but none in Illinois. The meetings of the company as a corporation for the election of directors had been generally held in Illinois, but the meetings of the directors for the election of its officers and appointment of its employees had been generally held in St. Louis, Missouri. All the principal business of the company done by its directors, superintendent, and other agents, had been transacted in St. Louis. The money collected and received by it for ferriages and other dues were kept in St. Louis, and the books of the company were kept there, and some of the disbursements of the company were there made by its treasurer. The personal property belonging to the company, assessed for taxes by the city, for which these suits were brought, consisted solely of its already mentioned ferry-boats. On these as well as on its other property it was duly assessed in Illinois, and paid taxes there. The ferry-boats were enrolled at St. Louis under the laws of the United States; that is to say, under the acts of 1789 and 1792, which require every vessel to be registered in the district to which she belongs, and declare that her home port shall be that at or near to which her owner resides.

Upon this same state of facts, the Supreme Court of Missouri, in The City of St. Louis v. Wiggins Ferry Company, had adjudged that the company was bound to pay the tax.

The court below decided that the ferry company, being a corporation created by the State of Illinois, and the ferry-boats not being within the limits of St. Louis except as they habitually touched at its wharf for the delivery of passengers and cargo, was not taxable for its boats by the city, as property within it. The fact that the principal business office of the company was in St. Louis, and that the ferry-boats were enrolled at the port of St. Louis, under the United States laws, did not, as the court below considered, essentially change the case. Judgment having been accordingly entered for the ferry company, the city excepted to the law as declared by the court upon the facts, and tendered its bill of exceptions, which was signed and sealed.

Mr. J. M. Krum, for the plaintiff in error:

Were these boats 'within the city' of St. Louis? That is the only question in the case.

The enrolment at the port of St. Louis is not indeed conclusive as to the situs of the property. It may but indicate the domicile or home port of the vessels, but it is a circumstance to be considered in connection with the other facts in determining the question at issue.

What are these other facts? The managers of the boats resided in St. Louis, and there received and disbursed the earnings of the boats, keeping their office there, and the ferry company itself keeping its principal office there. These facts, taken in connection with the fact that the boats had already been enrolled at the last-named port, lead to the conclusion that the property was 'within' the city of St. Louis. It is manifest that all the practical, life-giving, and fiscal operations of this corporation were performed within the city of St. Louis. There was its head and the centre of its operations.

The payment of the tax in Illinois neither proves nor tends to prove that the situs of the property was in that State. Nor does the payment of a ferry-license to the city of St. Louis and of a wharfage tax on the wharf-boats of the company show anything contrary to our view. These are matters foreign to the question.

The question now before this court was adjudicated in The City of St. Louis v. Wiggins Ferry Company. The facts in that case were the same as in this. That decision is a decision of the court of last resort of Missouri, construing and giving effect to its laws in respect to property situate within and owned or claimed by a resident of the State. The refusal of the court below to conform its judgment to the decision of the Supreme Court of Missouri is good ground for reversing the judgment in this case.

Messrs. M. Blair and F. A. Dick, contra:

The boats were not 'within the city.'

A corporation actually and permanently resides within the State by whose law it is created; and there has the legal status of a citizen and inhabitant of such State, where only its stockholders can assemble and act as one body.

The officers and agents of the company who actually remain with and control the boats do not reside in Missouri, 'but opposite the city of St. Louis, where its real estate is situated, also its warehouse and some other property.' The boats when not running are laid up at the same place; and it is contrary to the city ordinance concerning ferry-boats, when on the St. Louis side, that they remain there 'longer than ten minutes at a time.' The point of departure on each trip of the boats was from the port where she was laid up and at rest. To that port each boat returned, and when it so returned, and not until then, was such trip at an end. Under such a state of facts there is no room for a constructive presence in St. Louis or a constructive possession of the boats by the general or fiscal officers of the company.

The home port of a vessel, when owned by one person, is that at or near which the owner usually resides; and this is not changed by her enrolment at another port, especially when the first-named port is not a port of enrolment. This company, as we have said, being created by Illinois, resides there.

But there are higher grounds on which to rest the unlawfulness of the tax. It is imposed upon a National vessel engaged in commerce between two of the States on a navigable river. Vessels so engaged are subject only to National taxes and regulations, and are expressly withdrawn from State taxation. A tonnage tax is simply a tax upon vessels, and belongs exclusively to the National government under the provisions giving power to Congress to collect taxes and duties and to regulate commerce with foreign nations and among the several States; and having belonged to the States before the adoption of the Constitution, was surrendered by them in the clause saying that 'no State shall, without the consent of Congress, lay any duty of tonnage.' [The learned counsel went into a full argument on this point.]

Mr. Justice SWAYNE delivered the opinion of the court.

title: St Louis v. The Ferry Company


text: Talk:St Louis v. The Ferry Company

title: Talk:St Louis v. The Ferry Company


text:
St Louis v. The Ferry Company/Opinion of the Court

The plaintiff in error instituted five suits in the St. Louis Circuit Court for the recovery of taxes alleged to be due from the ferry company to the city. Upon the petition of the company they were removed into the Circuit Court of the United States for that district. In that court, by the consent of the parties, the causes were consolidated and thereafter proceeded to trial as one case. The counsel upon both sides entered into a written stipulation waiving a jury, and the cause was submitted to the court, pursuant to the act of Congress of March 3d, 1865. The court found the facts specially, and the finding is a part of the record. Judgment was given for the defendant. The city excepted and has brought the case here for review.

The bill of exceptions was unnecessary. The facts having been specially found by the court, they are before us for examination as if they were embodied in the special verdict of a jury. The question presented for our consideration, as prescribed by the statute, is, whether they are sufficient to support the judgment. The bill of exceptions gives them no effect which they would not have had without it, and raises no question which would not have been as well presented if it had not been taken.

The controversy relates to taxes imposed by the city upon the ferry-boats of the defendants, used in conveying freight and passengers across the Mississippi River between the city of St. Louis and the opposite Illinois shore. The company was required to pay a specific sum for a license, and a tax was imposed upon its wharf-boat, attached to the city landing. Both were duly paid. Payment of the taxes upon the ferry-boats was refused, and the several suits, consolidated into the one before us, were instituted by the city to recover the amount claimed to be due.

In the jurisprudence of the United States a corporation is regarded as in effect a citizen of the State which created it. It has no faculty to emigrate. It can exercise its franchises extra-territorially only so far as may be permitted by the policy or comity of other sovereignties. By the consent, express or implied, of the local government, it may transact there any business not ultra vires, and, 'like a natural person, may have a special or constructive residence, so as to be charged with taxes and duties or be subjected to a special jurisdiction.' It is for the local sovereign to prescribe the terms and conditions upon which its presence by its agents and the conducting of its affairs shall be permitted.

It has been said that the power of taxation for the purposes of the commonwealth is a part of all governmental sovereignty and is inseparable from it. It is for the legislature to decide what persons and property shall be reached by the exercise of this function and in what proportions and by what processes and instrumentalities taxes shall be assessed and collected. The authority extends over all persons and property within the sphere of its territorial jurisdiction. When called into activity there can be no limit to the degree of its exercise except what is found in the wisdom of the lawmaking power and the operation of those conservative principles which lie at the foundation of all free government.

Where there is jurisdiction neither as to person nor property, the imposition of a tax would be ultra vires and void. If the legislature of a State should enact that the citizens or property of another State or country should be taxed in the same manner as the persons and property within its own limits and subject to its authority, or in any other manner whatsoever, such a law would be as much a nullity as if in conflict with the most explicit constitutional inhibition. Jurisdiction is as necessary to valid legislative as to valid judicial action.

In the eye of the law personal property, for most purposes, has no locality. ''Mobilia sequuntur personam; immobilia situm. Mobilia non habent sequelam''. In a qualified sense it accompanies the owner wherever he goes, and he may deal with it and dispose of it according to the law of his domicile. If he die intestate, that law, wheresoever the property may be situate, governs its disposal, and fixes the rights and shares of the several distributees. But this doctrine is not allowed to stand in the way of the taxing power in the locality where the property has its actual situs, and the requisite legislative jurisdiction exists. Such property is undoubtedly liable to taxation there in all respects as if the proprietor were a resident of the same locality. The personal property of a resident at the place of his residence is liable to taxation, although he has no intention to become domiciled there. Whether the personal property of a resident of one State situate in another can be taxed in the former, is a question which in this case we are not called upon to decide.

Upon looking into the enactments under which the taxes in question were assessed, it is obvious that their purpose was not to tax the property through the proprietor, but to tax the things themselves by reason of their being 'within the city.' The point for us to decide, therefore, is, whether they are covered by the legal provisions under which the taxes were imposed. If the taxing officer acted without authority the taxes were invalid, and the city is not entitled to recover in this action.

The boats were enrolled at the city of St. Louis, but that throws no light upon the subject of our inquiry. The act of 1789, section 2, and the act of 1792, section 3, require every vessel to be registered in the district to which she belongs, and the fourth section of the former act, and the third section of the latter, declares that her home port shall be that at or near which her owner resides. The solution of the question, where her home port is, when it arises, depends wholly upon the locality of her owner's residence, and not upon the place of her enrolment.

The company has an office in Illinois. Its minor officers, such as engineers and pilots, lived in Illinois, where its real estate, including a warehouse, was situated. The company had also an office in St. Louis. Its president and vice-president and other principal officers lived in the city, and there the ordinary business meetings of the directors were held, and the corporate seal was kept. The court found that the boats, 'when not in actual use, were laid up by the Illinois shore, and were forbidden, by a general ordinance of the city of St. Louis regulating ferries and ferry-boats, to remain at the St. Louis wharf or landing longer than ten minutes at a time.' A tax was paid upon the boats in Illinois. Their relation to the city was merely that of contact there, as one of the termini of their transit across the river in the prosecution of their business. The time of such contact was limited by the city ordinance. Ten minutes was the maximum of the stay they were permitted to make at any one time. The owner was, in the eye of the law, a citizen of that State, and from the inherent law of its nature could not emigrate or become a citizen elsewhere. As the boats were laid up on the Illinois shore when not in use, and the pilots and engineers who ran them lived there, that locality, under the circumstances, must be taken to be their home port. They did not so abide within the city as to become incorporated with and form a part of its personal property. Hence they were beyond the jurisdiction of the authorities by which the taxes were assessed, and the validity of the taxes cannot be maintained. In our opinion, the facts found are sufficient to support the judgment.

It has been insisted ably and learnedly by the counsel for the defendant in error, that the taxes in question are taxes upon the tonnage of vessels engaged in interstate commerce, and are prohibited by the Constitution of the United States. No argument as to this aspect of the case has been submitted by the counsel upon the other side. We have not found it necessary to consider the subject, and we express no opinion upon it.

JUDGMENT AFFIRMED.


text: Talk:St Louis v. The Ferry Company/Opinion of the Court


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United States v. Howell

On a certificate of division between the judges of the Circuit Court for the District of California.

Howell was indicted for passing counterfeit treasury notes, under the sixth section of the act of February 25th, 1862, which provides:

'That if any person or persons shall falsely make, forge, counterfeit, or alter, or cause or procure to be falsely made, forged, counterfeited, or altered, or shall willingly aid or assist in falsely making, forging, counterfeiting, or altering any note, bond, coupon, or other security issued under the authority of this act, or heretofore issued under acts to authorize the issue of treasury notes or bonds; or shall pass, utter, publish, or sell, or attempt to pass, utter, publish, or sell, or bring into the United States from any foreign place, with intent to pass, utter, publish, or sell, or shall have or keep in possession, or conceal with intent to utter, publish or sell, any such false, forged, counterfeited, or altered note, bond, coupon, or other security, with intent to defraud any body corporate or politic, or any other person or persons whatsoever, every person so offending shall be deemed guilty of felony, and shall, on conviction thereof, be punished by fine not exceeding $5000 and by imprisonment and confinement to hard labor not exceeding fifteen years, according to the aggravation of the offence.'

The indictment contained two counts.

The first count charges that the defendant 'feloniously did pass, utter, publish, and sell, a certain false, forged, and counterfeited United States note, purporting to be a United States note issued under the authority of' said act, with intent to defraud, &c., well knowing the same to be false, forged, and counterfeited.

The second charged that the defendant 'feloniously did pass, utter, publish, and sell, a certain false, forged, and counterfeited treasury note, issued under the authority of' said act, with intent to defraud, &c., well knowing the same to be false, forged, and counterfeited.

Demurrer to the indictment and joinder. Afterwards, on argument, the following questions occurred:

'1. Whether the second count in the indictment, in manner and form as therein stated, is in itself repugnant.

'2. Whether the sixth section of the act is repugnant; and whether any person could, under the said act, be legally convicted of and punished for any offence whatever other than that of altering, and causing and procuring to be altered, and willingly aiding and assisting in altering a note, bond, coupon, or other security issued under authority of said act.

'3. Whether the fourth paragraph or clause of the sixth section of the act, which is in the words following, to wit:

"Or shall pass, utter, publish, or sell, or attempt to pass, utter, publish, or sell, or bring into the United States from any foreign place, with intent to pass, utter, publish, or sell, or shall have or keep in possession, or conceal, with intent to utter, publish or sell, any such false, forged, counterfeited or altered note, bond, coupon, or other security, with intent to defraud,'

&c., is repugnant.

'4. Whether the defendant could, under the said fourth paragraph or clause, be legally convicted of and punished for uttering or passing a forged or counterfeit note purporting to be a United States or treasury note issued under authority of said act.

'5. Whether he could, under the said fourth paragraph or clause, be legally convicted of and punished for any offence whatever, other than 'passing, uttering, publishing, or selling,' &c., an 'altered note, bond, coupon, or other security," &c.

On each of which questions the opinions of the judges were opposed. Whereupon the disagreement was certified to this court.

Mr. D. T. Sullivan, for the prisoner:

First. The indictment is repugnant and inconsistent in itself.

How could the note be a 'false, forged, and counterfeit' note if it was issued under the authority of an act of Congress? The object of issuing treasury notes is that they may be 'passed, uttered, published, and sold;' and how can the defendant, Howell, be guilty of a criminal act by doing that which it was the very object of the act should be done? The use of the adjectives 'false, forged, and counterfeit' are inconsistent with and repugnant to the allegation that the note was issued under proper authority; nor are qualifying words of themselves, even if there be no repugnancy or inconsistency in the indictment, sufficient to make a criminal offence.

Second. The statute under which the indictment is framed, or at least so much thereof as relates to the charge of 'passing, uttering, publishing, and selling' the note in question, is repugnant and void.

The United States v. Cantrell, is in point. Cantrell was indicted under act of Congress of June 27th, 1798, for 'uttering, passing,' &c., a ten dollar note, 'purporting to be' a note 'issued by order of the president,' &c., of the bank. The words 'purporting to be' were not in the statute, nor were there any words such as are usually found in statutes of this character; as, for instance, 'in the similitude of,' 'in imitation of,' or others pointing against the disposing and putting off of notes which have not been issued by competent authority. The counsel for Cantrell made the objection which we take here, that the statute was fatally defective in not containing these or similar words, and the whole court, through Marshall, C. J., adjudged the objection to the statute to be well taken, and for that reason ordered that the judgment be arrested.

Mr. B. H. Bristow, Solicitor-General, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: United States v. Howell


text: Talk:United States v. Howell

title: Talk:United States v. Howell


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

The judges of the circuit have certified to this court five questions arising on the indictment. The first question is, whether the second count of the indictment is bad as being in itself repugnant, and the four other questions relate to a similar repugnancy in the statute under which the indictment is framed. As the count to which the first question refers pursues the language of the statute, all the questions resolve themselves into the single one of whether the act, so far as it relates to altering and publishing forged or counterfeit notes of the United States, is itself void for repugnancy.

The objection is, that if the note which the party is charged with passing was, in the language of the statute, 'issued under the authority of this act, or heretofore issued under acts to authorize the issue of treasury notes or bonds,' it must necessarily be a valid or genuine note, and if it was not issued under the authority of some of these acts, the passing of the note is not made an offence by the law.

There is some degree of plausibility in this hypercriticism at first blush, which, if it were sound, would make the act void for want of any meaning, a result which one of the first canons of construction teaches us to avoid if possible, and which is at war with the common sense, which assures us that the purpose of the act was to punish the making of counterfeits of the notes and bonds described in the statute. Nor is the criticism philologically just. The offence is described as the passing of false, forged, or counterfeited notes or bounds issued under the authority of the statute. We are to give due weight to all the words employed in describing the instrument, and cannot reject the words false, forged, and counterfeited, if it is possible to adopt any reasonable construction which will permit them to stand. This is done by mentally supplying the ellipsis which is in general use in conversation or in writing in similar cases. We speak, for instance, of 'false diamonds.' According to the criticism we are considering this phrase has no meaning, because if the stones spoken of are diamonds they cannot be false, and if they are false they cannot be diamonds. But any one understands the meaning to be false stones which purport to be diamonds, or false similitude of diamonds. So we speak of a bank note. Now if the paper spoken of is a forgery it is not a bank note, which means an obligation of some bank to pay money. But here also the mind supplies the ellipsis which good usage allows, and understands that what is meant is a forged paper in the similitude of a bank note, or which on its face appears to be such a note. And in a similar manner we speak of a forged will. If the argument of defendant's counsel is sound there can be no such thing as a forged will, receipt, note, or bond, because if forged they are void and therefore not notes, wills, bonds, &c. In fact the phrase 'void will' or 'void note,' is, according to this argument, a solecism, because the instrument cannot be at once the will or note of the party, and be void.

The use of the words false, forged, and counterfeit, in the statute, imply, therefore, when applied to any of the obligations of government mentioned, that it purports to be such an instrument, but is not genuine or valid. And so are the authorities. See 2 Russell on Crimes, 801; East's Pleas of the Crown, 950.

It is conceded, that if the statute had, in describing the offences, called the instrument uttered a note, purporting to be issued under the authority of the statute, the difficulty would have been removed. In the case of Rex v. Birch and Martin, the indictment charged them 'with publishing as true, a false, forged, and counterfeited paper writing, purporting to be the last will of Sir Andrew Chadwick.' It was objected that the indictment was bad, because 'it should have been said that they forged a certain will,' which was the language of the statute, and not a paper writing purporting to be a will. 'But,' says Mr. East, who, in his Pleas of the Crown, makes a full report of the case, 'a variety of precedents were found, so that the judges held it to be good.' But it is apparent, from the exception taken, and from the language of East and of Russell, that the usual mode of charging the offence was to say that the prisoner had forged the will or other paper, and that either form is good.

The case of United States v. Cantrell is relied on as holding an opposite doctrine to that we have here presented. That case was submitted without argument, and the report says that the opinion of the court was that the judgment should be arrested for the reasons assigned in the record. These reasons are that the indictment was repugnant, because it charged the prisoners with having published as true 'a certain false, forged, and counterfeited paper, purporting to be a bank bill of the United States for ten dollars, signed by Thomas Willing, president, and G. Simpson, cashier.' And because the statute relating to the charge set forth in the indictment is inconsistent, repugnant, and void. In this statement, the words signed and purporting are italicized, and the court may have held the indictment bad because the former word was used, thus sustaining the objection made in Rex v. Birch and Martin. Or it may have held that the language of the indictment amounted to an averment, that the bill charged to be forged was signed in fact by the president and cashier of the bank, in which case it could not have been a forgery. Or it may possibly have thought that under the peculiar language of that statute, which differs materially from the one under consideration, they were bound to hold it void for repugnancy. However that may be, we do not consider the case, as it is reported, an authority for holding the statute void which we are called on to construe.

To the first and third questions, and the first branch of the second, we answer, No.

To the fourth and fifth, and the second branch of the second, we answer, YES.


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


text:
Insurance Company v. Weide (78 U.S. 438)

ERROR to the Circuit Court for the District of Minnesota; the case was thus:

In October, 1866, the Home Insurance Company insured, for the term of one year, against fire, a stock of groceries and other merchandise owned by C. & J. Weide, and which were contained in a storehouse occupied by them in the city of St. Paul. In February, 1867, the storehouse and its contents were burnt, and this suit was brought to recover for the loss of the stock of goods. At the trial the main question in issue was the extent of the loss. As most of the books were destroyed, and the defendants had introduced evidence tending to show that those which were not burned were not to be depended on, and afforded no data from which the value of the goods on hand at the date of the fire could be ascertained, or the extent of loss determined, the case rested chiefly on the testimony of the plaintiffs. They swore that their sales during the year preceding the fire were about $120,000, and that the goods on hand at the time of the fire were worth, at their cost value, $65,000.

The defendants insisted, on the basis of the sales, that the loss was greatly overstated, and, as one means of proving it, offered to show by witnesses in St. Paul, engaged in the same business with the plaintiffs, and whose annual sales were as large as theirs, that grocery merchants in that city for the previous six years had not carried, or had on hand at any one time, more than one-fifth of their annual aggregate sales, and that this was the case on the day when the fire occurred. In other words, they wished to show by the general course of trade in that branch of business in St. Paul, that the plaintiffs' loss could not have exceeded $24,000, if their sales during the year amounted to only $120,000.

The court refused to allow the evidence to go to the jury, and the correctness of this ruling was the only point in the case which it was necessary here to consider. In the course of the trial, however, the defendant asked a witness this question:

'Supposing that the plaintiffs' sales were $120,000 for the year preceding the fire, as grocery merchants, what average amount did they carry or have on hand during such year, according to the general course of business?'

And on objection made to it, some discussion took place below on the correctness of that question.

Mr. E. A. Storrs, for the plaintiff in error; Mr. W. H. Peckham, with a brief of Mr. L. Allis, contra.

Mr. Justice DAVIS delivered the opinion of the court.


text: Talk:Insurance Company v. Weide (78 U.S. 438)


text:
Insurance Company v. Weide (78 U.S. 438)/Opinion of the Court

Although we agree with Lord Ellenborough, 'that the rules of evidence must expand according to the exigencies of society,' yet it is not necessary to introduce any innovation upon these rules in order to hold that this evidence should have been admitted. It is true there are no reported cases on the subject, but on principle its admissibility can be sustained.

It is well settled that if the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury. It would be a narrow rule, and not conducive to the ends of justice, to exclude it on the ground that it did not afford full proof of the non-existence of the disputed fact. Besides, presumptive evidence proceeds on the theory that the jury can infer the existence of a fact from another fact that is proved, and most usually accompanies it. Many of the affairs of human life are determined in courts of justice in this way, and experience has proved that juries, under the direction of a wise judge, do not often err in the reasoning which leads them to a proper conclusion on such evidence. And if they should happen to reach a wrong conclusion, the court has in its own hands the mode and measure of redress. In the nature of things, the officers of the insurance company were unable, by any direct proof, to contradict the testimony of the plaintiffs as to the value of the goods destroyed. If the loss were an honest one it was their duty to pay it, but if they had good reason to believe it to be exaggerated, it was equally their duty to refuse to pay it. As they had no direct evidence to produce bearing on the subject, they offered to prove a fact which, uncontradicted and unexplained, would lead the jury to the conclusion that the plaintiffs had overvalued the property destroyed by fire. It was neither opinion nor hearsay whihc they tendered to the court, nor was it a usage of trade they wanted to prove, but a matter of fact concerning the business in which the plaintiffs had been employed, which would render it extremely improbable that they had sustained the loss they claimed to have suffered. The plaintiffs testified when the fire occurred the stock in their store was worth over sixty thousand dollars, and yet their sales during the year were only double that amount. The defendants said this could not be so, because the merchants of St. Paul, engaged in a like business, and to the same extent, did not at that time, nor at any other time during the preceding six years, have on hand on the average more than one-fifth of their annual aggregate sales.

If this state of case could be proved by the united testimony of this class of merchants, it would establish a fact connected with this kind of business, to wit, the uniform relation between the stock on hand and the annual sales, from which the existence of another fact could be reasonably inferred, which is, that the business of the plaintiffs rested on the same basis and was governed by the same rule of uniformity. Indeed, so strong would be this inference, that in the absence of any attempt to explain or contradict the evidence, the jury would be justified in adopting the conclusion which it tended to prove. A presumption is an inference as to the existence of a fact not actually known, arising from its usual connection with another which is known, and on this principle the jury should have been allowed to consider this evidence.

As this case will have to go back for a new trial, and as the point was raised in the court below, it may be proper to observe that no witness can be asked what the course of trade is in reference to this particular business. This would be either opinion or hearsay. He can only be allowed to tell his personal experience on the subject about which he is called to testify. It is only through the aggregated testimony of all the witnesses that the fact can be proved, which so connects itself with the plaintiffs' business as to require from him an answer.

JUDGMENT REVERSED, AND A VENIRE DE NOVO.


text: Talk:Insurance Company v. Weide (78 U.S. 438)/Opinion of the Court


text:
Meader v. Norton

APPEAL from the Circuit Court for the District of California.

This was a bill in equity, filed in the court below by C. E. Norton, to have the defendants, Meader and several others, declared trustees of certain real property situated in the State of California, and to obtain a decree that they convey to him the legal title held by them to the premises. The case as presented by the record was thus:

Three sisters, named respectively Maria Candida, Maria Jacinta, and Maria Los Angeles Castro, on the 13th of February, 1839, applied by petition to J. B. Alvarado, then Mexican governor of the department of California, for a grant of the land known as the Rancho El Refugio, situated in that part of California now known as the county of Santa Cruz.

This petition was immediately referred by the governor to the administrator of the adjoining mission with directions to make a report upon the same. On the 10th of March following that officer reported that the land solicited could be granted, and on the 16th of the same month the governor made a provisional concession of it to the petitioners; a concession which was subject to further action in the premises. To guide him in such further action, the governor directed the prefect of the district to report to him upon the subject. The prefect reported that a grant in fee of the land solicited could be made to the parties, as it was vacant and was not claimed by any one. Accordingly, on the 8th of April following (1839), the governor made a formal cession of the land to the three sisters by name, referring to the previous proceedings, and declaring them owners in fee and directing that the proper grant or title papers (titulo) issue to them, and that the proceedings in the case be retained for the information and approval of the Departmental Assembly. These proceedings were numbered 131. In the order of concession of the governor, the name of one of the sisters, Maria de los Angeles, was erased, and over the erasure was written the name of Jos e Bolcoff. This concession or grant of the governor was approved by the Departmental Assembly on the 22d of May, 1840. The approval in the records of the Assembly has in it the number, 131, and gives the date of the concession, and mentions the three sisters by name as the parties to whom the concession was made. On the 13th of June following the governor ordered a certificate of the approval to be given to the three sisters.

At this time one Jos e Castro was prefect of the first district, within which district the land granted was situated, and he kept a record or minute of the grants of land made in his district. His book of registry is now in the archives in the custody of the Surveyor-General of the United States for California. In this registry is entered a minute that on the 8th day of April, 1839, the governor granted to the three sisters the place called El Refugio. In this registry there is also a similar minute of eight other grants, all of which are found in the archives, and each has a memorandum indorsed upon it that it has been entered in the registry. The memoranda on these eight grants and the entries in the registry correspond.

There is also in the archives an index of grants made between 1838 and 1845, by a clerk in the office of the secretary of state of the department, and under his direction, which is commonly known as 'Jimeno's Index.' This Index gives the number of the espedientes, the names of the grantees, and the designation of the land granted. Upon the index against No. 131 is the entry of a grant of land designated as El Refugio, and the name of Jos e Bolcoff is written over an erasure. It was admitted that originally the names of the three sisters were written there.

This was the documentary evidence which the complainant produced to show that a grant of the rancho El Refugio was issued to the three sisters, under whom he claimed by sundry mesne conveyances. Parol evidence produced by him related chiefly to the possession of the premises since the concession of the governor, and various alleged admissions and acts of the sisters. It was also in evidence that in 1839 or 1840 the possession of the land was officially delivered to the three sisters, and that in this proceeding, called a delivery of juridical possession, Jos e Bolcoff appeared on behalf of the sisters, and represented them.

The defendants asserted title to the premises through Jos e Bolcoff; and of some portions of the premises they also alleged a conveyance or release from the sisters.

As documentary evidence of title they produced—

First. A paper purporting to be a grant of El Refugio to Jos e Bolcoff, by Governor Alvarado, bearing date on the 7th of April, 1841.

It was shown that there was no trace of any such document as this in the archives of the department, except what appeared over the erasure in the index of Jimeno.

Second. A certificate of Governor Alvarado, dated July 28th, 1841, stating that the grant made on the 8th of April, 1839, in favor of Jos e Bolcoff, was approved on the 22d of May, 1841, by the Departmental Assembly, and purporting to quote the language of the proceedings of that body. The certificate concluded by stating that it was issued to the party interested for his security, in consequence of the decree of the 13th of June preceding, existing in the espediente.

It is to be noticed by the reader that the certificate states that the grant made on the 8th of April, 1839, in favor of Jos e Bolcoff was approved on the 22d of May, 1841, while the alleged grant to Bolcoff produced bears date the 7th of April, 1841. The certificate purported further to quote the language used by the Departmental Assembly in this approval. It was shown that there was no session of the Assembly in 1841; at least, that there was no evidence in the archives of the department that there was a session in that year, and if the year was erroneously given, and the approval of May 22d, 1840, was intended, that related only to the grant to the three sisters, who were therein designated by name, and no such language as that given was found on the journals of the Assembly.

Third. A document purporting to be a record of juridical possession, given to Bolcoff, July, 1842.

This document bears the signature of the prefect of the district and two attesting witnesses. It appeared in evidence that one of the witnesses was unable to write, and that the body of the entire document was in the handwriting of Bolcoff. The other witness testified that he added his signature in 1851, when the document was presented to him by Bolcoff, with a request that he should sign it, inasmuch as he had not done so when the possession was given; that at this time the document had not the signature of the prefect or of the other witness, and Bolcoff stated that he was going to them for their signatures. Both of these witnesses testified emphatically that there never was but one juridical possession of the premises, and that this was delivered to the sisters. Bolcoff made oath before the land commission, that the document was signed by all the parties in the year 1842.

Fourth. A dise no or sketch of the tract El Refugio; and

Fifth. A patent of the United States, bearing date on the 4th of February, 1860, issued to Francisco and Juan Bolcoff upon the confirmation of the alleged grant to Jos e Bolcoff.

In 1822 one of the sisters, Maria Candida, intermarried with Jos e Bolcoff, and in 1839 Maria de los Angeles intermarried with one Majors. The three sisters lived together as members of the family of Bolcoff upon the land granted, Los Angeles until her marriage, and Jacinta until 1850, when she became a nun, and had not since resided upon the premises. Since some time in 1850, Majors and his wife had occupied a portion of the tract, claiming possession under the concession to the sisters.

In 1852, Francisco Bolcoff and Juan Bolcoff, sons of Jos e Bolcoff, presented a petition to the board of land commissioners, created under the act of Congress of March 3d, 1851, to ascertain and settle private land claims in California, for a confirmation of the claim to El Refugio, asserted by them under the alleged grant to their father. In support of their claim they relied upon the alleged grant of Alvarado, of April 7th, 1841, his certificate of approval by the Departmental Assembly, the record of juridical possession, and the sketch, which are mentioned above, with parol evidence of possession and cultivation. No question was raised before the board as to the genuineness of these documents, and in January, 1855, the claim was confirmed. An appeal from the decision was dismissed, and on the 4th of February, 1860, a patent of the United States was issued thereon.

In 1852 Majors presented for himself and on behalf of his wife a petition to the board for a confirmation of her claim to one-third of the tract, under the cession to her and her sisters. In support of the claim they produced the petition to the governor, the reports thereon, the provisional grant of March 16th, 1839, the formal concession of April 8th, 1839, and the order of the governor of June 13th, 1840, that a certificate of the approval of the Assembly be issued to them.

The board rejected this claim, holding, in substance, that there was no evidence that any grant was issued to the sisters; that the decree of concession found in the archives was not proof of the delivery of a title to the parties interested; that until a document as evidence of the concession was issued and delivered to the grantees the favorable action of the Departmental Assembly did not establish their title, and the concession was not completed, and the property continued part of the public domain, subject to the disposition of the authorities of the government. And the board observed that this was the view of the governor and Departmental Assembly, as he had, notwithstanding the decree of concession to the sisters, made two years afterwards, a grant of the same land to Bolcoff, which had been approved by the Assembly.

The entire decision proceeded upon the supposition that the documents offered as evidence of Bolcoff's title were genuine, and that the officers of Mexico possessed the power to re-grant lands which had been once granted, without their previous surrender by the first grantee, where the final title-papers had not been issued to the grantee, although such grant had been approved by the Departmental Assembly. The board in its opinion also spoke of a want of proof of performance of the usual conditions of cultivation and inhabitation; but this view was held upon the supposition that the residence and cultivation of Bolcoff and his wife, and that of her sisters, were under different grants. The commissioners held, in confirming his claim, that the proof showed cultivation of and residence upon the land. Subsequent to the action of the board upon these claims, the registry of the prefect was discovered, and this discovery and other circumstances led to a critical inspection and examination of the documents upon which the claim of Bolcoff was founded, and finally to the bringing of this suit.

The position taken by the complainant was this: that a former grant, a titulo, or some documentary evidence of title based upon the concession of April 8th, 1839, was on the same day issued to the three sisters; that this titulo or grant passed into the custody of Bolcoff, and was some years afterwards suppressed or destroyed by him, with the intent to defraud the sisters of the property granted to them, and to secure the title to himself; that in the execution of this intent, the documents presented to the board of commissioners, the grant purporting to be issued to him, the certificate of the approval of the Departmental Assembly, and the record of juridical possession, were fabricated by him, or others at his request, and the erasures made in the decree of concession to the sisters, and in Jimeno's Index; and that a claim confirmed, and a legal title obtained by these means, should be controlled for the benefit of parties equitable entitled to the property.

The defendants in the court below did not deny that the decree of concession was made to the sisters, but they contended that the interest of the sisters was exchanged with Bolcoff for an interest in a tract of land of which he had obtained a grant, and that in consequence of this exchange the grant of El Refugio was issued at their request to him instead of being issued to them. The agreement was stated to have been this: that Majors and wife should relinquish to Bolcoff their interest in El Refugio, and allow him to obtain a grant therefor in his own name; and in exchange for this that Bolcoff should relinquish to Majors his interest in a ranch known as St. Augustine, of which he had obtained a grant in 1833, and allow Majors to obtain a grant for the same, he paying Bolcoff in addition the sum of four hundred dollars. And it was alleged that this agreement was made after the intermarriage of Majors and Maria de los Angeles, and immediately carried into execution; that Majors and wife took possession of St. Augustine, and that afterwards, on the 7th of April, 1841, Maria Candida went personally to the governor and stated the agreement, when the governor, at her request, issued the grant to Bolcoff alone, and that the erasures in the decree of concession and in the Index were at that time made by Jimeno, the secretary of state.

This statement of the defendants was contradicted by Majors, and was inconsistent with facts disclosed by the records. Majors obtained the ranch St. Augustine from Bolcoff by direct purchase, and the transfer to him was made before his marriage, and before the sisters had petitioned for El Refugio. The transfer to him is indorsed on the espediente of St. Augustine in the archives, and bears date on the 14th of January, 1839.

The alleged grant to Bolcoff of April 7th, 1841, made no allusion to any purchase or exchange with the sisters, or of any abandonment of their rights. It recited that he himself had petitioned for El Refugio.

The court below held that the documents upon which the claim of Bolcoff was founded were all false, and were fabricated by Bolcoff, or some one at his instigation, to defraud the sisters of their property and secure the title to himself; that by the false and fabricated documents, and the suppression or destruction of the grant to the sisters, a confirmation of the claim under the alleged grant to Bolcoff was obtained, and the legal title secured to his children; when in truth the real title was in the three sisters, and should have been adjudged to them; and it held that, under these circumstances, the patentees and all persons holding under them with notice of the claim of the sisters, should be decreed to surrender the title.

Besides insisting upon the genuineness of the alleged grant to Bolcoff, and other documents produced in support of his title, the defendants relied, as a defence to this suit, upon the following grounds:

First. That the claim of the complainant was a stale claim, and barred by the statute of limitations.

Second. That the complainant had no standing in court, by reason of the non-presentation of the claim of two of the sisters to the board of land commissioners for confirmation, and the rejection, by the board, of the claim of the other sister. And,

Third. That the defendants were bon a fide purchasers of some portions of the property for a valuable consideration, without notice of the claim of the sisters; and for other portions had conveyances or releases from them.

The court below held:

1st. That to claim any benefit of the statute of limitations the defendants were required to state facts sufficient to bring the case within its operation, and then to insist that by reason of those facts the remedy of the complainant was barred, and that this had not been done by them in this case.

2d. That the presentation or non-presentation by the sisters of their claim under the grant to the board of land commissioners had nothing to do with the equitable relations between them and third parties; which relations were never submitted to the board for adjudication.

3d. That whilst equity would reach the perpetrator of the fraud in this case, and parties acquiring the property under him without consideration or with notice of the rights of the real owners, it would extend its protection to purchasers in good faith for a valuable consideration without such notice.

The court below therefore directed that an interlocutory decree in favor of the complainant be entered and a reference be had to a master to report which of the defendants were bon a fide purchasers, without notice of the claim of the sisters, and what parcels were so purchased, and also of what parcels the interest of the sisters or of any of them had been conveyed to the defendants, with all necessary particulars; and that upon the coming in and confirmation of his report a final decree be entered directing the defendants to transfer to the complainant their title to all parcels, and undivided interests in parcels, not thus acquired and held.

The case accordingly went to a master, and his report having been confirmed a final decree was entered, from which the defendants appealed to this court.

Messrs. W. H. Lamon and W. G. M. Davis, for the appellants; Mr. W. M. Stewart, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Meader v. Norton


text: Talk:Meader v. Norton

title: Talk:Meader v. Norton


text:
Meader v. Norton/Opinion of the Court

Claims to lands in California by virtue of any right or title derived from the former government were required to be presented to the land commissioners, and authority was vested in the commissioners to decide upon the validity of such claims and to certify their decisions, with the reasons for the same, to the district attorney for the district.

Applicants for such confirmations were required to present their claims to the commissioners when sitting as a board, but the act of Congress made no provision for notice to any adverse claimant, and the proceedings before the commissioners were wholly ex parte unless opposed by the district attorney.

Power to review such decisions was vested in the District Court, on petition of the claimant in case of rejection, or of the district attorney in case of confirmation.

Specific regulations were enacted as to the form of such petitions, and the provision was that the District Court should proceed to render judgment upon the pleadings and evidence in the case, and upon such further evidence as might be taken by the order of the said court, and that the court on application of the party against whom judgment was rendered should grant an appeal to the Supreme Court of the United States.

On the fifth of May, 1852, a petition signed by the attorneys of Francisco Bolcoff and Juan Bolcoff was filed with the land commissioners, setting up title to the rancho El Refugio, as grantees of their father, Jos e Bolcoff, and asking for a confirmation of their claim under the act of Congress passed to settle such private claims to lands in that State. They represented that the tract was granted to their father during Mexican rule by the governor of that department under the colonization laws ordained by the supreme government.

Pursuant to the requirements of the act of Congress they filed with their petition their documentary evidences of title, consisting of the following documents: (1.) A paper bearing date on the seventh of April, 1841, purporting to be a grant of the rancho El Refugio to Jos e Bolcoff by Juan B. Alvarado, governor of the department at the date of the supposed grant. (2.) The certificate of Governor Alvarado, dated the twenty-eighth of July, 1841, stating that the grant made on the eighth of April, 1839, in favor of Jos e Bolcoff, was approved on the twenty-second of May, 1841, by the Departmental Assembly. (3.) A document dated the twenty-sixth of July, 1842, purporting to be a record of juridical possession of the tract given to the supposed grantee by the proper Mexican authorities. (4.) The dise no or sketch of the tract described in the petition addressed to the governor by the original donee.

Proof of the handwriting of the persons whose names purport to be signed to the documents was introduced by the petitioners, and as no question was made as to the authenticity of the documents they were received as genuine and treated as such in the hearing, and the commissioners entered a decree in favor of the petitioners, confirming the claim.

Both parties concede that an appeal was taken on behalf of the United States to the District Court, but it was never prosecuted to effect and was subsequently dismissed.

Patents may be issued for all claims confirmed by the commissioners where no appeal was taken, the claimant complying with the conditions specified in the thirteenth section of the act providing for the adjudication of such claims; that is, he must present to the general land office an authentic certificate of such confirmation and a plat or survey of the land duly certified and approved by the surveyor-general. Such an application was accordingly made by the confirmees to the commissioner of the general land office, and he, on the fourth of February, 1860, issued a patent in due form to the persons in whose favor the decree was entered and to whom the certificate of confirmation was granted. Title to the land is claimed by the appellants under that patent.

Attention will now be called to the evidences of title under which the appellee claims in this case. On the thirteenth of February, 1839, three orphans, daughters of Joaquin Castro, a deceased Mexican citizen, to wit, Maria Candida, Maria Jacinta, and Maria de los Angeles, presented their petition to Juan B. Alvarado, governor of California, asking for a grant of the rancho El Refugio. Reference of the petition was made to the administrator of the adjoining mission and he having reported, on the sixteenth of March, 1839, that the land could be granted, as the land was not necessary to the mission, the governor, on the same day, made a provisional grant of the same to the petitioners and referred the espediente to the prefect of the district, as was the usual course in respect to such applications. Immediate attention was given to the subject by that officer, and on the twentieth of the same month he reported to the governor that the land was vacant, and recommended that the grant should be issued to the petitioners.

Evidently the several documents constituting the complete espediente show a full compliance with all the requirements of the colonization laws, and it is quite clear that the case was so understood by the governor, as on the eighth of April, in the same year, he issued the concession in which the petitioners are declared to be the owners in fee of the land. Specific boundaries are given to the tract granted and the directions in the same document are that the espediente be reserved for the consideration of the Departmental Assembly and their due approval of the same. Due report of the proceedings was made to that tribunal, and the record shows that on the twenty-second of May, 1840, they formally approved of the grant.

Satisfactory proof was introduced that Maria Candida intermarried with Jos e Bolcoff, and that Maria de los Angeles intermarried with Joseph L. Majors. Prior to the marriage of Maria de los Angeles, the three sisters lived together as members of the family of Jos e Bolcoff, the husband of the elder, and Maria Jacinta continued to reside in his family on the premises until 1850, when she became a nun and entered a convent.

By the record it appears that Joseph L. Majors, on the thirtieth of April, 1852, presented a petition to the commissioners claiming title in right of his wife to one-third of the rancho El Refugio, setting up the concession made by the governor to his wife and her two sisters, and asked that the claim might be confirmed. In support of his claim he introduced the several documents referred to as tending to show that the concession to the three sisters was a valid grant of the rancho; but the commissioners, on the thirtieth of January, 1855, rejected the claim, evidently proceeding upon the ground that the documents introduced by the other claimants were genuine.

Apart from that consideration the commissioners were doubtless much influenced by the testimony of the governor, who was examined as a witness by the successful claimants. He admitted that he granted the rancho in the first place to the three sisters, but he stated that he made the grant at the request of Maria Candida, the wife of Jos e Bolcoff, and that he subsequently regranted the land to her husband at her request and upon her representation that an arrangement to that effect between her husband and the husband of her other married sister had been made. His statement was that he granted the new title to Jos e Bolcoff because the parties agreed upon it, although he admitted that neither of the other two grantees ever came before him or made any such request. Subsequent investigations led to the discovery that the documents, or most of the documents, introduced in support of the claim of Jos e Bolcoff, were forged and fraudulent, which induced the appellee, claiming title under the three sisters, to commence the present suit.

Confirmed as the claim of Jos e Bolcoff was at the same time that the claim of the three sisters was rejected, they did not appeal nor would they have been benefited if they had, as the claim was confirmed to the other claimants and they were not parties in that litigation and could not appeal from the decree. Had all the facts and circumstances been known the unsuccessful claimant might perhaps have presented a petition to the district judge and have procured an injunction restraining the confirmees of the claim 'from suing out a patent for the same until title thereto' had been 'finally decided,' but it is a sufficient answer to any such suggestion that the patent was issued before the alleged forgeries were discovered.

Remediless as the appellee was at law, he instituted the present suit in the Circuit Court. His theory is, as shown in the bill of complaint, that the grant was in fact made to the three sisters, and that their names were erased and the name of the successful claimant inserted in the same, and that the commissioners were induced by false swearing, forgery, and fraud, to confirm the claim to the grantees of the party guilty of all those offences, as the means of his success and of the defeat of the claim of the three sisters, to whom the rancho really belonged.

All such charges are denied in the answer, but they are fully proved by the documents exhibited in the case and by such facts and circumstances as leave no doubt in the mind of the court that the charges are true. Even the governor admits, in his deposition taken in this case, that the espediente, including the concession, was prepared in the name of the three sisters, but he states that when the titulo was prepared the wife of Jos e Bolcoff came before him, and that upon her representation that her sisters were to receive an interest in another rancho the title-papers were made out in the name of her husband.

Such a theory is highly improbable, but the much better answer to it is that it is clearly and satisfactorily disproved. Beyond all doubt the entire espediente, except the titulo, was in the name of the three sisters, and the formal concession which was also in their name directed that the ultimate title should be issued to them and be recorded in the proper book; and discoveries made since the patent was issued show that the grant was entered in the Toma de Razon and in Jimeno's Index.

Much weight is due to those documents as evidences of title, even when they are not introduced in the particular case before the court. They were not produced before the commissioners, and it may be doubted whether they would have benefited the case of the three sisters if they had been, as their names are erased in the entry and the name of Jos e Bolcoff written in their place, and as no suspicion of forgery or fraud existed at that time it may be doubted whether the production of the documents would have changed the result. Conjectures in that behalf, however, are of no avail, as it now appears that all or nearly all of the title-papers introduced to support that title were forged and fraudulent, showing to the entire satisfaction of the court that the equity of the case was in the three sisters.

Further argument upon that topic is unnecessary as the proofs are persuasive, convincing, and decisive. Detailed reference to them is given in the opinion delivered by the Circuit Court, and to that the parties can recur if they desire to examine the documents or the statements of the witnesses as exhibited in the depositions sent up in the record.

Suppose that is so, still it is insisted by the appellants that the decree should be reversed because the decree of the commissioners, as they contend, was final and conclusive between the original claimants. Unquestionably it is a general rule that when jurisdiction is delegated to a tribunal over a subject-matter, and its exercise is confided to their discretion, the decision of the matter, in the absence of fraud, is in general valid and conclusive. Even fraud will not in every case open the judgment or decree to review where the proceeding is not a direct one, but it is not important to enter much into that field of inquiry, as the fifteenth section of the act under which the commissioners were appointed provides that the final decrees rendered by the commissioners or by the District or Supreme Court of the United States, or any patent to be issued under the act, shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons.

Nothing more is contemplated by the proceedings under that act than the separation of the lands which were owned by individuals from the public domain.

Argument is not necessary to show that a patent in a suit at law is conclusive evidence of title against the United States and all others claiming under the United States by a junior title. Until the patent issues the fee is in the government, but when it issues the legal title passes to the patentee. Persons claiming to hold the land against the patent cannot have relief in a suit at law, but courts of equity have full jurisdiction to relieve against fraud or mistake, and that power plainly extends to cases where one man has procured the patent which belonged to another at the time the patent was issued.

Where one party has acquired the legal right to property to which another has the better right, a court of equity will convert him into a trustee of the true owner, and compel him to convey the legal title.

Objection was taken in the court below that some of the respondents were innocent purchasers, but that objection cannot have any weight at this time, as all the appellants before the court had notice of the title of the appellee, as clearly appears by the report of the master. None of those who purchased without notice are embraced in the decree.

Laches and the statute of limitations are set up in argument, but such defences cannot prevail where the relief sought is grounded on a charge of secret fraud, and it appears that the suit was commenced within a reasonable time after the evidence of the fraud was discovered.

DECREE AFFIRMED.

Mr. Justice FIELD did not sit in this case, nor participate in its decision.

title: Meader v. Norton/Opinion of the Court


text: Talk:Meader v. Norton/Opinion of the Court