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Campbell v. Rankin/Opinion of the Court

The declaration avers that plaintiffs below, who are also plaintiffs in error, were the owners of a mining claim in Meagher County, known as Claim No. 2 below discovery, in Green Horn Gulch, and that defendant wrongfully entered upon and took possession of a portion of said claim, and took and carried away large quantities of gold-bearing earth and gold-dust, the property of plaintiffs, of the value of $15,000.

The answer amounts to a general denial of all the averments of the complaint.

Bills of exception taken on the trial show that plaintiffs offered in evidence the record of a judgment in the same court, in which the defendant in this suit was plaintiff, and the present plaintiffs and those under whom they claim were defendants, which was an action for trespass, wherein the same question of conflicting interference of the two mining claims was in issue, and the verdict and judgment were for plaintiffs in this suit. The admission of this record was objected to, and the court sustained the objection.

Plaintiffs then offered to prove that they had been in actual possession of Claim No. 2 in Green Horn Gulch for several years, and that defendant had admitted in conversation the existence of such a claim, and had conceded a dividing line between his claim and that of plaintiffs, which would give to the latter the ground in controversy. The court refused this also.

Plaintiffs then offered in evidence a deed from Harding & Wilson for Claim No. 2, Green Horn Gulch, dated December, 1869, and proof of occupancy and use of it ever since. The court rejected this also. And having rejected all the evidence offered by plaintiffs, it directed the jury to find for defendant, and on that verdict rendered a judgment, which was affirmed on appeal by the Supreme Court of the Territory.

The record sufficiently shows that neither party to this suit had any legal title to the locus in quo from the United States, and that the controversy involves only such possessory right as the act of Congress recognizes in the locator and occupant of a mining privilege.

Since this right of possession was the matter to be decided by the jury, it is almost incomprehensible that proof of prior occupancy, and especially when accompanied by a deed showing color of right, should be rejected.

In actions of ejectment, or trespass quare clausum fregit, possession by the plaintiff at the time of eviction has always been held prima facie evidence of the legal title, and as against a mere trespasser it is sufficient. 2 Greenl. Evid., sect. 311. If this be the law, when the right of recovery depends on the strict legal title in the plaintiff, how much more appropriate is it as evidence of the superior right of possession under the acts of Congress which respect such possession among miners.

If this plain principle of the common law needed support from adjudged cases, as applicable to the one before us, it may be found in the courts of California in Atwood v. Fricot, 17 Cal. 37; English v. Johnson, id. 107; and Hess v. Winder, 30 id. 355.

The court below erred, therefore, in rejecting this evidence of plaintiffs' prior possession.

Whatever may have been the opinion of other courts, it has been the doctrine of this court in regard to suits on contract ever since the case of the Washington, Alexandria, & Georgetown Steam Packet Co. v. Sickles (24 How. 333), and in regard to actions affecting real estate, since Miles v. Caldwell (2 Wall. 35), that whenever the same question has been in issue and tried, and judgment rendered, it is conclusive of the issue so decided in any subsequent suit between the same parties; and also, that where, from the nature of the pleadings, it would be left in doubt on what precise issue the verdict or judgment was rendered, it is competent to ascertain this by parol evidence on the second trial. The latest expression of the doctrine is found in Cromwell v. County of Sac, 94 U.S. 351; Davis v. Brown, id. 423.

The rejection of the record of the suit of Rankin v. Campbell and Others was in direct conflict with this doctrine. In that case Rankin had brought an action of the same character as the one he is now defending, against the parties who are now plaintiffs, and had a verdict and judgment against him. The record in that case, as in this, shows that one party claimed under Mining Claim No. 2, in Green Horn Gulch, and the other under Mining Claim No. 8, in Confederate Gulch. The issue in both cases was to which claim did the disputed piece of mineral deposit belong; and if that issue was not clear, it was competent, under the decisions we have cited, to show by parol proof that the controversy was over the same locality, and that the issue had, therefore, been decided against Rankin.

And this proof the plaintiffs offered, in connection with the record of the former suit. The exclusion of this evidence was error.

The principal ground on which the court rejected all this evidence, and all other evidence offered by the plaintiffs, is, that at the same term of the court, and before the trial, one of the plaintiffs, in support of an application for a continuance, made an affidavit, in which he stated that he expected to prove by an absent witness that he had destroyed the original record and laws of Green Horn Gulch, in which the plaintiffs' claim is located; that said records and laws established the size, lines, boundaries, and location of Claim No. 2 below discovery in said gulch, and that said records showed that the predecessors of the plaintiffs in interest possessed and occupied this claim, in accordance with the local rules.

This affidavit, made in support of an application for continuance, which was overruled, the judge, of his own motion, treated as part of the record, and as before him on the trial, though not offered by either party; and as well as we can understand it, excluded all other evidence of the possession and location and validity of the plaintiffs' claim, because this lost record was the best evidence, and all other was secondary or inferior.

It is difficult to argue this proposition seriously. The affidavit was in no judicial sense before the court on the trial, and could only be used, if at all, when introduced by one of the parties for some legitimate purpose. If it had been so presented by the defendant, it plainly showed that this better evidence was destroyed and could not be produced, and was a sufficient foundation for the use of secondary evidence.

But the local record of a mining community, while it may be and probably is the best evidence of the rules and customs governing the community, and to some extent the distribution of mining rights, is not the best or the only evidence of priority or extent of actual possession. It may fix limits to individual acquisition, the terms and rules for acquiring and transferring mining rights, as the laws of the State do in regard to ordinary property; but such rules and customs no more determine who was the first locator or where he located, than any other competent evidence of that fact.

Whatever may be the effect given to the record of mining claims under sect. 5 of the act of Congress approved May 10, 1872 (17 Stat. 92), it certainly cannot be greater than that which is given to the registration laws of the States, and they have never been held to exclude parol proof of actual possession and the extent of that possession as prima facie evidence of title.

The Supreme Court of the Territory argue that the trial court can regulate the order of admission of evidence in a case, and because the plaintiffs did not introduce first of all proof of their mining records which were lost, nothing else could be introduced. For want of these, evidence of actual possession, of title-deeds, of the location of the claim, and the record of the former suit determining the rights of the parties to the locus in quo, were all unavailing and inadmissible.

We know of no rule of law which justifies this action.

The judgment of the Supreme Court of Montana will be reversed, and the cause remanded to that court with directions to order a new trial; and it is

So ordered.

title: Campbell v. Rankin/Opinion of the Court


text: Talk:Campbell v. Rankin/Opinion of the Court

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


text:
United States v. Pugh

APPEAL from the Court of Claims.

This was an action, broght by Walter Pugh against the United States, to recover the proceeds of certain property. The Court of Claims found the following facts:--1. In December, 1862, the claimant was in possession as owner of a plantation in Louisiana. The sugar and molasses described in the petition were a part of the products of such plantation, and were stored thereon, and in the possession of the claimant's agents.

2. In December, 1862, this said sugar and molasses were seized by the military forces of the United States, and turned over to a military commission, known as the sequestration commission, on the 12th of January, 1863. The commission was directed by general order No. 8, Department of the Gulf, 'to sell at public auction all property in its possession that has not been or may not be claimed or released, except such as may be required for the use of the army, and turn over the proceeds thereof to the chief quartermaster.' The said sugar and molasses were then in the possession of the commission. On the 4th of February, 1863, the commission caused the same to be sold, with other property, at public auction in New Orleans. By the accounts kept by the commission, it appears that the net proceeds of the sugar and molasses amounted to $4,362.23. It does not appear specifically that the proceeds were paid over to the chief quartermaster of the Department of the Gulf; but it appears, and the court find the fact to be, that he received money at various times in the year 1863 from the sales of sugar and molasses in New Orleans, to the amount of $33,796.02. For this amount the chief quartermaster accounted on the final settlement of his accounts, and the same was credited by the Secretary of the Treasury to the abandoned and captured property fund in the treasury.

3. That, as appears from the accounts of the chief quartermaster, the said amount of $33,796.02 was received by him as the net proceeds of sales of sugar and molasses in New Orleans, and the whole of said amount was received in and subsequent to the month of February, 1863. That it does not appear what became of the fund resulting from the said sale of claimant's sugar and molasses, unless the same was paid over to the chief quartermaster of the Department of the Gulf, in pursuance of said order of General Banks, and was included in said sum of $33,796.02.

4. On June 13, 1863, the said commission notified the agent of Mrs. Walter Pugh, wife of the claimant, who had applied for the release of a portion of the said proceeds, that the application was denied.

Upon these facts the claimant had judgment for $4,362.23. The United States thereupon appealed to this court.

Mr. Assistant Attorney-General Smith for the appellant.

Mr. Edward Janin, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court

title: United States v. Pugh


text: Talk:United States v. Pugh

title: Talk:United States v. Pugh


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

Two questions are presented by the finding of facts in this case, to wit:--

1. Does the Abandoned and Captured Property Act, as extended by the act of July 2, 1864 (13 Stat. 375), authorize a recovery in the Court of Claims for the proceeds of property captured and sold by the military authorities, without judicial condemnation, after July 17, 1862, and before March 12, 1863, but accounted for and credited by the Secretary of the Treasury to the abandoned and captured property fund in the treasury?

2. Does it appear that the proceeds sued for in this case were actually paid into the treasury?

The first of these questions has been often the subject of consideration in the Court of Claims, but has never, until now, been brought here for determination. It was first decided adversely to the United States as early as 1867, in Barringer's Case (3 Ct. of Cl. 358); and although that court has ruled the same way many times since, no appeal was taken by the government until the rendition of this judgment in 1876. Under these circumstances, we ought not to disturb what may fairly be considered a rule of decision in that court acquiesced in by the United States, unless the error is manifest.

The Abandoned and Captured Property Act was undoubtedly intended to be prospective only in its operation. It provided the mode by which that class of property was thereafter to be collected and disposed of, and directed what should be done with the proceeds. By the act of July 17, 1862 (12 Stat. 589), the seizure of certain kinds of property owned by those engaged in the rebellion, and an application of the property or its proceeds to the support of the army of the United States, were authorized. This act contemplated, however, a condemnation of the property by judicial proceedings in rem instituted in the name of the United States in some court having jurisdiction of the territory within which the property was found, or to which it might be removed. The title did not pass by a seizure under the authority of this act until a decree of condemnation was rendered.

The sixth section of the Abandoned and Captured Property Act made it the duty of every officer or soldier of the army of the United States who took or received any abandoned property, or cotton, sugar, rice, or tobacco, from persons in the insurrectionary districts, or who had it under his control, to turn it over to the treasury agent provided for in the act, and take a receipt therefor. As the property captured in this case had been sold by the sequestration commission before this act took effect, no question arises as to whether, after the act did take effect, the property should have been turned over to the proper treasury agent, or proceeded against for condemnation under the act of 1862. Having been converted into money by the action of the capturing military authorities, without judicial condemnation, there was nothing left for the treasury agent to do; and as the property had been released from custody, there could be no proceeding against it in rem.

By sect. 3 of the act of July 2, 1864, sects. 1 and 6 of the Abandoned and Captured Property Act were extended so as to include every description of property mentioned in the act of 1862. This has been supposed by the Court of Claims to give that court jurisdiction over cases for the recovery of money actually paid into the treasury as the proceeds of property captured after July 17, 1862, and before March 12, 1863. Barringer's Case, supra; Mrs. Minor's Case, 6 Ct. of Cl. 393; Terry Carne's Case, 8 id. 277; Miss Moore's Case, 10 id. 375. It is also understood to have been the practice of the executive departments of the government from the beginning to credit the abandoned and captured fund in the treasury with the proceeds of all property captured after July 17, 1862, and before March 12, 1863, paid over to the quartermasters, and accounted for by them in their settlements with the Treasury Department. No distinction was made in this particular between captures after March 12, 1863, and those before. It is a familiar rule of interpretation that in the case of a doubtful and ambiguous law the contemporaneous construction of those who have been called upon to carry it into effect is entitled to great respect. Edward's Lessee v. Darby, 12 Wheat. 210. While, therefore, the question is one by no means free from doubt, we are not inclined to interfere, at this late day, with a rule which has been acted upon by the Court of Claims and executive for so long a time. Besides, the interpretation which has been given the act is in strict accordance with the well-settled policy of the government not to enforce the right of capture during the late war against the property of the inhabitants of the insurrectionary districts without giving the owners an apportunity of proving in a court of justice that, although they were in law enemies, they were in fact friends of the United States. Under the act of 1862 this proof might be made in the suit for condemnation, and under the Abandoned and Captured Property Act, in a suit instituted to recover the proceeds in the treasury. Under these circumstances, it can hardly be considered a forced construction of the act of 1864 to hold, as has been done, that it was intended to subject the proceeds in the treasury, of property captured after July 17, 1862, and sold without judicial condemnation before March 12, 1863, to the same suits that were allowed in cases of captures and sales after that date. If this practice is not supported by the exact letter of the law, it is by the spirit, and it is certainly just. We are not disposed to change it.

The second question presents for consideration a subject of much importance connected with the practice under our rule, in reference to appeals from the Court of Claims, which requires 'a finding' by that court, 'of the facts in the case established by the evidence, in the nature of a special verdict, but not the evidence establishing them.' The ultimate fact to be determined in this case is whether the proceeds of the sale of the captured property belonging to the claimant have been paid into the treasury. No direct proof to that effect has been given, but if shown at all, it is by way of inference from certain circumstantial facts which have been established by the evidence. These circumstantial facts are set forth in the finding which has been sent here as the finding upon which alone the judgment was rendered, and as the case stands, the question we are to decide is whether those facts are sufficient to support the judgment. Confessedly, the court has found all the facts which have been directly established by the evidence. These facts are not evidence, in the sense that evidence means the statements of witnesses or documents produced in court for inspection. They are the results of evidence, and whether they establish the ultimate fact to be reached is, if a question of fact at all, to say the least, in the nature of a question of law. If what has been found is, in the absence of any thing to the contrary, the legal equivalent of a direct finding that the proceeds of this claimant's property have been paid into the treasury, the judgment is right. Otherwise, it is wrong. The inquiry thus presented is as to the legal effect of facts proved, not of the evidence given to make the proof; and the question of practice to be settled is whether, under our rule, the judgment of the Court of Claims as to the legal effect of what may, perhaps not improperly, be called the ultimate circumstantial facts in a case, is final and conclusive, or whether it may be brought here for review on appeal.

From what is said in Ross' Case (12 Ct. of Cl. 565,) and by the reporters in a note (11 id. 344), we are led to suppose that the Court of Claims understands that our decisions in United States v. Ross (92 U.S. 281) and Intermingled Cotton Cases (id. 651) leave this question somewhat in doubt. To avoid misapprehension in the future, we take this opportunity to say that we not only think such a judgment may be reviewed here if the question is properly presented, but that when the rights of the parties depend upon circumstantial facts alone, and there is doubt as to the legal effect of the facts, it is the duty of the court, when requested, to so frame its findings as to put the doubtful question into the record. This would not require us on the appeal to decide upon the weight of evidence. That is done in the court below, when the particular fact is found which the evidence tends to prove. The effect of mere evidence stops when the fact it proves is established. After that the question is as to the effect of the fact; and when the evidence in a case has performed its part and brought out all the facts that have been proved, these facts thus established are to be grouped, and their legal effect as a whole determined. If the case could come here in such a form as to require us to consider the evidence, we should be required to trace the evidence to its logical results, find in this way all the facts that had been proven, and then declare the final legal conclusion. The rule relieves us from the necessity of considering the evidence at all, and confines our attention to the legal effect upon the rights of the parties of the facts proven as they have been sent up from the court below. In this way the weight of the evidence is left for the sole consideration of the court below, but the ultimate effect of the facts which the direct evidence has established is left upon for review here on appeal. The position which the case occupies when it comes here under such circumstances is precisely the same as it would be if the facts, instead of being found by the court, had been agreed upon by the parties, and their agreement embodied in the record.

In United States v. Crusell (14 Wall. 1), the question was whether the particular facts found justified the conclusion that the money sued for had been paid into the treasury; and inasmuch as the legal presumption is, in the absence of any thing to the contrary, that the officers of the government perform their duties when called upon to act in their official capacities, we thought that the law would infer from the facts found that the money which ought to have been paid over by a quartermaster to his superior officer was actually paid over, and that in this way it had reached the treasury. So in Intermingled Cotton Cases (supra), when it was found that the cotton of the several claimants contributed to and formed part of the captured mass from which the cotton sold was taken, we concluded that the claimants were entitled to their respective shares of the money in the treasury as the proceeds of the sale. In United States v. Ross (supra), however, we thought a similar conclusion from the particular facts there found was too remote, and so reversed the judgment and sent the cause back for a new trial. The premises we considered too uncertain to justify the inference that had been drawn. We thought independent and material facts were wanting, and that the law would not raise the presumption from what did appear that the plaintiff was entitled to recover. The difficulty in that case was not as to the power of this court to act upon the facts as found, but as to the sufficiency of the facts to support the judgment.

Upon the facts found in this case we have no difficulty in presuming that the money sued for is in the treasury, within the meaning of the Abandoned and Captured Property Act. The sequestration commission was directed to sell captured property, and turn the proceeds over to the chief quartermaster. The property in question was sold, and an account of sales stated by the commission. The case shows that at various times during the year 1863 the chief quartermaster received from the commission the proceeds of sugar and molasses sold, amounting in the aggregate to $33,796.02, and that this amount was all duly accounted for to the treasury, and there passed to the credit of the fund. This has always been treated in that department as equivalent to an actual payment into the treasury. In June, 1863, the commission refused the application of the wife of the claimant for a restoration of the proceeds. This raises the presumption that down to that time the money had not been released; and as it is specially found that it does not appear what did become of the money unless it was paid over, as it should have been, to the chief quartermaster, we think the law will presume it was disposed of as the order of the commanding general required it should be. If any evidence to the contrary exists, the burden was cast upon the United States to produce it. Until the presumption in favor of the claimant is repelled, the law gives him the right to the judgment he has obtained.

Judgment affirmed.


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


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Transportation Company v. Wheeling

ERROR to the Supreme Court of Appeals of the State of West Virginia.

This was an action of assumpsit brought for the recovery of the tax paid under protest to the city of Wheeling, by the Wheeling, Parkersburg, and Cincinnati Transportation Company, the owner of certain steamboats used by it in navigating the Ohio between that city and Parkersbury and the intermediate places on both sides of the river, in the States of West Virginia and Ohio. The vessels were of greater burden than twenty tons, and were duly enrolled and licensed under the act of Congress. The company was incorporated under the laws of West Virginia, and its stock was partly owned in that State and partly in Ohio. Its principal office was in Wheeling. The vessels started from that city on their voyages, and when not running were laid up there. They were assessed according to their value as personal property of the company, and the tax was collected under the laws of West Virginia, authorizing the city to 'assess, levy, and collect an annual tax for the use of the city on personal property in the city.' The right of the State to impose a tax on such vessels was denied by the company, as in violation of art. 1, sect. 10, par. 3, of the Constitution, which declares that 'no State shall, without the consent of Congress, lay any duty of tonnage,' and of art. 1, sect. 8, par. 3, which provides that Congress shall have power 'to regulate commerce with foreign nations and among the several States, and with the Indian tribes.' The Court of Appeals of West Virginia held the tax in question not to be within these provisions of the Constitution, and affirmed the judgment in favor of the city rendered by the court of original jurisdiction. The company sued out this writ.

Mr. Montgomery Blair for the plaintiff in error.

National vessels, or vessels duly enrolled and licensed under the laws of the United States to carry on inter-state commerce, are not subject to State taxation. The residence of the owners is immaterial. State Tonnage Tax Cases, 12 Wall. 204. And in view of that and other decided cases, it must be conceded that if the tax in question had been measured by the carrying capacity or tonnage of the vessels, it would be illegal; but it is contended that the constitutional prohibition is avoided, by taxing them according to their value. The company denies this, and maintains that the doctrine is contrary to the principles established by the rulings of this court in respect to the provisions of the Constitution bearing upon the question involved.

In Cooley v. Board of Wardens, &c. (12 How. 299), it was held, in effect, that any tax operating as a charge on such vessels, even if indirectly imposed, would be a tonnage duty, although levied under the name of pilot duties or penalties, and 'that it is the thing, and not the name, which is to be considered.' To the same effect is Steamship Company v. Portwardens, 6 Wall. 31. In that case, Louisiana imposed a tax of five dollars upon each vessel, without reference to its tonnage. This court held that the tax was void as a tonnage duty and as a regulation of commerce. A duty imposed on a ship by a State was declared to be within the constitutional prohibition.

It is contended by the city that this tax is not a duty on the ship, because not so eo nomine; and that the Constitution excepts shipping from taxation only when the law attempts to tax it by its description as shipping. Now, the vessels in question are just as much within the description of things taxed by the West Virginia statute as if it had specifically taxed them by name; for it is as ships that they are assessed, and not as so much timber and iron. As the thing is prohibited and not the name, the prohibition certainly applies here.

In support of the decision of the State court there are cited dicta of Mr. Justice McLean in Passenger Cases (7 How. 287), of Mr. Justice Clifford in State Tonnage Tax Cases (supra), and certain expressions in Hays v. The Pacific Mail Steamship Co., 17 How. 596, and in Morgan v. Parkham, 16 Wall. 473.

These dicta tend to sustain the views of the State court; but the question now involved is presented here for the first time, and they are in conflict with the principles actually decided by the court.

The right accorded to the States by Mr. Chief Justice Marshall, in McCulloch v. Maryland (4 Wheat. 316), to tax the interest of their citizens in the bank of the United States, whilst exempting the bank from such taxation, seems to be the origin of these dicta. But there is no analogy between that case and this. Shipping has not the double character of the bank as a public agency and as private property, and does not owe its exemption to any implications, which, arising from its being a public agency, exempt it only in that character from taxation leaving it subject thereto as private property, according to its value. Whilst recognized, in all respects, as private property, it is exempt by the express terms of the Constitution. This exemption extends to any form or amount of taxation upon a ship enrolled and licensed under the laws of the United States; and the reason therefor given by the court in Steamship Company v. Portwardens (supra), is that 'the prohibition upon the States levying duties upon imports and exports would have been insufficient, if it had not been extended to ships which serve as vehicles of commerce.' In Gibbons v. Ogden (9 Wheat. 1), the language of the court is, 'A duty of tonnage is as much a tax as a duty on imports or exports, and the reason which ensured the prohibition of these taxes extends to this also.' Hence all the reasoning which the court has applied to prevent any State taxation upon imports by 'varying the form without varying the substance,' is equally applicable to inhibit the States from imposing any tax upon shipping.

The argument in Brown v. Maryland (9 Wheat. 419), in favor of the right of the States to tax imports, is substantially that by which the validity of the tax in question is sought to be maintained; namely, that the tax was a personal one, and that only 'an import tax' was prohibited. The court declared the tax to be illegal, because it operated as a tax on imports, and they were not subject to any form of State taxation. Now, as shipping is pub by the Constitution precisely upon the same footing as imports, any tax upon property, whilst it continues in the form of shipping, is as illegal as a tax upon property whilst it remains in the condition of imports.

The fact that the vessels were assessed in their home port is immaterial. A tonnage tax assessed there has been held to be prohibited; and as the prohibition is not limited to a tonnage tax strictly so called, but extends to any duty, whether imposed directly or indirectly, or in any manner upon a ship, the principle involved here would seem to have been decided for the company.

Nor does it affect the question that vessels are not enumerated in the tax law as subjects of taxation. If exempt at all, they would be equally so by their description as personal property as by their description as ships,-it being held by this court that the prohibition forbids not only 'a duty proportioned to the tonnage of the vessels,' but 'any duty on the ship.' It is, therefore, unrestricted. They are the tools of that foreign and inter-state trade which it was intended to withdraw absolutely from State control, and, like the mechanic's tools, which the States have exempted from taxation, are as exempt from a general tax on personal property as from a specific duty on the articles.

Whether the vessels be taxed as personal property or specifically, the effect is to tax foreign and inter-state commerce.

If it be urged that as the tax is proportioned to the value of the vessel, and forms a part only of the common burden imposed upon personal property within the State, commerce cannot be injuriously affected by it, we reply in the language of the court in Brown v. Maryland, to the suggestion that the State might be trusted not to tax imports or exports to its own prejudice, that the Constitution has not left the question open.

No counsel appeared for the defendant in error.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Transportation Company v. Wheeling


text: Talk:Transportation Company v. Wheeling

title: Talk:Transportation Company v. Wheeling


text:
Transportation Company v. Wheeling/Opinion of the Court

Power to impose taxes for legitimate purposes resides in the States as well as in the United States; but the States cannot, without the consent of Congress, lay any duty of tonnage, nor can they levy any imposts or duties on imports or exports except what may be absolutely necessary for executing their inspection laws, as without the consent of Congress they are prohibited from exercising any such power. Outside of those prohibitions the power of the States extends to all objects within their sovereign power, except the means and instruments of the Federal government. State Tonnage Tax Cases, 12 Wall. 204.

Taxes levied by a State upon ships or vessels as instruments of commerce and navigation are within the clause of the Constitution which prohibits the States from levying any duty of tonnage without the consent of Congress; and it makes no difference whether the ships or vessels taxed belong to the citizens of the State which levies the tax or to the citizens of another State, as the prohibition is general, withdrawing altogether from the States the power to lay any duty of tonnage under any circumstances, without the consent of Congress.

Pending the controversy in the subordinate State court, the parties by consent filed in the case an agreed statement of facts, from which and the pleadings it appears that the plaintiffs commenced an action of assumpsit against the defendants to recover back certain sums of money which the latter involuntarily paid to the former as taxes wrongfully assessed, as they allege, upon four certain steamboats which they owned, and which for four years or more they employed in carrying passengers and freight between the port of Wheeling and other ports on the Ohio River.

It appears that the plaintiffs are an incorporated company organized under the law of the State, and that the defendants are a municipal corporation chartered as a city under the law of the same State. Authority is vested in the city to assess, levy, and collect an annual tax, under such regulations as they may prescribe by ordinance, for the use of the city, on personal property in the city, not to exceed in any one year fifty cents on every one hundred dollars of the assessed valuation thereof. By the same law it is provided that personal property shall be deemed to include all subjects of taxation which the assessors, acting under the laws of the State, are or shall be by law required to enter on their books as such property for the purpose of State taxation. Pursuant to that law, taxes were assessed for the several years mentioned against the plaintiffs for the appraised value of the four steamboats and the furniture of the same, which they owned and used as aforesaid, it appearing that the plaintiffs' principal place of business was Wheeling, and that three of the steamboats were usually lying at the wharf or at the bank of the river within the corporate limits of the city.

Throughout the whole period each of the steamboats was duly enrolled and licensed as coasting vessels under the laws of the United States, and the agreed statement shows that the plaintiffs paid for each all dues, fees, and charges which were properly demandable under those laws. Payment of the taxes was made under protest and in order to escape the seizure and sale of the steamboats.

Service was made, and the parties having waived a jury and filed an agreed statement of facts as before stated, submitted the case to the court of original jurisdiction. Hearing was had, and the court rendered judgment in favor of the defendants. Exceptions were filed by the plaintiffs, and they removed the case into the supreme court of the State, called the Court of Appeals, where the judgment of the subordinate court was affirmed. Though defeated in both of the State courts, the plaintiffs sued out the present writ of error and removed the cause into this court.

Since the transcript was entered here, the plaintiffs have assigned for error that the State Court of Appeals erred in holding that the taxes levied are not within the constitutional prohibition that no State, without the consent of Congress, shall lay any duty of tonnage.

Ships or vessels of ten or more tons burden, duly enrolled and licensed, if engaged in commence on waters which are navigable by such vessels from the sea, are ships and vessels of the United States, entitled to the privileges secured to such vessels by the act for enrolling and licensing ships or vessels to be employed in the coasting trade. 1 Stat. 205, 287.

Authorities to show that the States are prohibited from subjecting any such ship or vessel to any duty of tonnage is scarcely necessary, as that proposition is universally admitted; the only question which can properly arise in the case presented for decision being whether the tax as imposed by State authority is or is not a tonnage duty, within the meaning of the Constitution. Tonnage duties cannot be levied; but it is too well settled to admit of question that taxes levied by a State, upon ships or vessels owned by the citizens of the State, as property, based on a valuation of the same as property, to the extent of such ownership, are not within the prohibition of the Constitution.

Power to tax for the support of the State governments exists in the States independently of the national government; and it may well be assumbed that where there is no cession of contradictory or inconsistent jurisdiction in the United States, nor any restraining compact in the Constitution, the power in the States to tax for the support of the State authority reaches all the property within the State which is not properly regarded as the instruments or means of the Federal government. Nathan v. Louisiana, 8 How. 73; Brown v. Maryland, 12 Wheat. 419; Weston v. City Council of Charleston, 2 Pet. 449.

Beyond question these authorities show that all subjects over which the sovereign power of a State extends are objects of taxation, the rule being that the sovereignty of a State extends to every thing which exists by its own authority or is introduced by its permission, except those means which are employed by Congress to carry into execution the powers given by the people to the Federal government, whose laws, made in pursuance of the Constitution, are supreme. McCulloch v. Maryland, 4 Wheat. 429; Savings Society v. Coite, 6 Wall. 604.

Annual taxes upon ships and vessels for the support of the State governments as property, upon a valuation as other personal property, are everywhere laid; nor is it believed that it requires much argument to prove that the opposite theory is unsound and indefensible in principle, as it is contrary to the generally received opinion, and wholly unsupported by any judicial determination. Instead of that, there are many cases in which the courts, in refuting the authority of the States to lay duties of tonnage, have admitted that the owners of ships may be taxed to the extent of their interest in the same, for the value of the property. Assessments of the kind, when levied for municipal purposes, must be made against the owner of the property, and can only be made in the municipality where the owner resides.

Though a ship, when engaged in the transportation of passengers, said Mr. Chief Justice Taney, is a vehicle of commerce, and within the power of regulation granted to Congress, yet it has always been held that the power to regulate commerce, as conferred, does not give to Congress the power to tax the ship, nor prohibit the State from taxing it as the property of the owner, when he resides within their own jurisdiction; and he adds, that the authority of Congress to tax ships is derived from the express grant of power in the eighth section of the first article, to lay and collect taxes, duties, imports, and excises; and that the inability of the States to tax the ship as an instrument of commerce arises from the express prohibition contained in the tenth section of the same article. Passenger Cases, 7 How. 283, 479.

Support to that view is also derived from one of the numbers of the Federalist, which has ever been regarded as entitled to weight in any discussion as to the true intent and meaning of the provisions of our fundamental law. It is there maintained that no right of taxation which the States had previously enjoyed was surrendered, unless expressly prohibited; and that the right of the States to tax was not impaired by any affirmative grant of power to the general government; that duties on imports were a part of the taxing power; and that the States would have had a right, after the adoption of the Constitution, to lay duties on imports and exports if they had not been expressly prohibited from doing so by that instrument. Federalist, No. 32. From which it follows, if the writer of that publication is correct, that the power granted to regulate commerce did not prohibit the States from laying import duties upon merchandise imported from foreign countries; that the commercial clause does not apply to the right of taxation in either sovereignty, the taxing power being a distinct and separate power from the power to regulate commerce; and that the right of taxation in the States remains over every subject where it before existed, with the exception only of those expressly or impliedly prohibited.

Neither imposts nor duties on imports or exports can be levied by a State, except what may be absolutely necessary for executing its inspection laws, nor can a State levy any duty of tonnage without the consent of Congress. State power of taxation is doubtless very comprehensive; but it is not without limits, as appears from what has already been remarked, to which it may be added, that State tax laws cannot restrain the action of the national authority, nor can they abridge the operation of any law which Congress may constitutionally pass. They may extend to every object of value not excepted as aforesaid, within the sovereignty of the State; but they cannot reach the means and instruments of the Federal government, nor the administration of justice in the Federal courts, nor the collection of the public revenue, nor interfere with any constitutional regulation of Congress.

Power to tax its citizens or subjects in some form is an attribute of every government, residing in it as part of itself; and hence it follows that the power to tax may be exercised at the same time upon the same objects of private property by the State and by the United States, without inconsistency or repugnancy. McCulloch v. Maryland, supra; Providence Bank v. Billings, 4 Pet. 514.

Such power exists in the State as one conferred or not prohibited by the State Constitution, and in the Congress by express grant. Hence the existence of such powers is perfectly consistent, though the two governments in exercising the same act entirely independent of each other as applied to the property of the citizens.

Legislative power to tax, as a general proposition, extends to all proper objects of taxation within the sovereign jurisdiction of a State; but the power of a State of the Union to lay taxes does not extend to the instruments of the national government, nor to the constitutional means to carry into execution the powers conferred by the Federal Constitution. Tax laws of the State cannot restrain the action of the national government, nor can they circumscribe the operation of any constitutional act of Congress. They may extend to every object of value belonging to the citizen within the sovereignty of the State, not within the express exemptions of the Constitution, or those which are necessarily implied a falling within the category of means or instruments to carry into execution the powers granted by the fundamental law. Day v. Buffington, 3 Cliff. 387.

Power to levy taxes, said Mr. Chief Justice Marshall, could not be considered as abridging the right of the States on that subject, it being clear that the States might have exercised the power to levy duties on imports or exports had the Constitution contained no prohibition upon the subject; from which he deduces the proposition that the prohibition is an exception from the acknowledged power of the States to levy taxes, and that the prohibition is not derived from the power of Congress to regulate commerce. Gibbons v. Ogden, 9 Wheat. 201.

States, said Mr. Justice McLean, cannot regulate foreign commerce; but he held in the same case that they may tax a ship or other vessel used in commerce the same as other property owned by its citizens, or they may tax the stages in which the mail is transported, as that does not regulate the conveyance of the mail any more than the taxing the ship regulates commerce, though he admitted that the tax in both instances affected in some degree the use of the property, which undoubtedly is correct. Passenger Cases, supra.

Enrolled vessels engaged in conveying passengers and freight, which were owned by citizens of the State of New York, entered the port of San Francisco, and while there were compelled to pay certain taxes. Payment having been made under protest, the owners of the vessels brought suit to recover back the amount; and Mr. Justice Nelson, in disposing of the case here, in behalf of the court, held 'that the vessels were not in any proper sense abiding within the limits of California so as to become incorporated with the other personal property of the State; that they were there but temporarily engaged in lawful trade and commerce, with their situs at the home port, where the vessels belonged and where the owners were liable to be taxed for the capital invested, and where the taxes had been paid,'-which shows to a demonstration that the owners of ships and vessels are liable to taxation for their interest in the same upon a valuation as for other personal property. Hays v. Pacific Mail Steamship Co., 17 How. 596.

Ships, when duly registered or enrolled, are instruments of commerce, and are to be regarded as means employed by the United States in execution of the powers of the Constitution, and therefore they are not subject to State regulations. Sinnot v. Davenport, 22 id. 227.

Such instruments or means are not given by the people of a particular State, but by the people of all the States, and upon principle as well as authority should be subjected to that government only which belongs to all.

Taxation, beyond all doubt, is the exercise of a sovereign power, and it must be admitted that all subjects over which the sovereign power of a State extends are objects of taxation; but it is equally clear that those objects over which it does not extend are exempt from State taxation,-from which it follows that the means and instruments of the general government are exempt from taxation. McCulloch v. Maryland, supra.

Tonnage duties on ships by the States are expressly prohibited, but taxes levied by a State upon ships or vessels owned by the citizens of the State as property, based on a valuation of the same as property, are not within the prohibition, for the reason that the prohibition, when properly construed, does not extend to the investments of the citizens in such structures.

Duties of tonnage, says Cooley, the States are forbidden to lay; but he adds that the meaning of the prohibition seems to be that vessels must not be taxed as vehicles of commerce, according to capacity, it being admitted that they may be taxed like other property. Cooley, Const. Lim. (4th ed.) 606.

'Vessels are taxable as property,' says the same author; and he adds that 'possibly the tax may be measured by the capacity, when they are taxed only as property and not as vehicles of commerce;' which may be true if it clearly appears that the tax is to the owner in the locality of his residence, and is not a tax upon the ship as an instrument of commerce. Cooley, Taxation, 61.

'Whatever more general or more limited view may be entertained of the true meaning of this clause,' says Mr. Justice Miller, 'it is perfectly clear that a duty, tax, or burden imposed under the authority of the State, which is by the law imposing it to be measured by the capacity of the vessel, and is in its essence a contribution claimed for the privilege of arriving and departing from a port in the United States, is within the prohibition.' Cannon v. New Orleans, 20 Wall. 577; Peete v. Morgan, 19 id. 581; State Tonnage Tax Cases, supra.

Decided cases of the kind everywhere deny to the States the power to tax ships as the instruments of commerce, but they all admit, expressly or impliedly, that the State may tax the owners of such personal property for their interest in the same. Corresponding views are expressed by Mr. Burroughs in his valuable treatise upon Taxation. He says that vessels of all kinds are liable to taxation as property in the same manner as other personal property owned by citizens of the State; that the prohibition only comes into play where they are not taxed in the same manner as the other property of the citizens, or where the tax is imposed upon the vessel as an instrument of commerce, without reference to the value as property. Burroughs, Taxation, 91; Johnson v. Drummond, 20 Gratt. (Va.) 419.

Property in ships and vessels, say the Court of Appeals of Maryland, before the Federal Constitution was adopted, was within the taxing power of the State; and they held that such property since that time, when belonging to a citizen of the State living within her territory and subject to her jurisdiction, and protected by the laws, is a part of his capital in trade, and, like other property, is the subject of State taxation. Howell v. The State, 3 Gill (Md.) 14; Perry v. Torrence, 8 Ohio, 522.

Beyond all doubt, the taxes in this case were levied against the owners as property, upon a valuation as in respect to all other personal property, nor is it pretended that the taxes were levied as duties of tonnage. Congress has prescribed the rates of measurement and computation in ascertaining the tonnage of American ships and vessels, and in the light of those regulations Burroughs says that the word 'tonnage' means the contends of the vessel expressed in tons, each of one hundred cubical feet. p. 89.

Homans says that the word has long been an official term, intended originally to express the burden that a ship would carry, in order that the various dues and customs levied upon shipping might be imposed according to the size of the vessel, or rather in proportion to her capability of carrying burden. Homan's Dict., Com. and Nav., Tonnage.

Tested by these definitions and the authorities already cited, it is as clear as any thing in legal decision can be, that the taxes levied in this case are not duties of tonnage, within the meaning of the Federal Constitution. Taken as a whole, the contention of the plaintiffs is not that the taxes in question are duties of tonnage, but their proposition is that ships and vessels, when duly enrolled and licensed for the coasting trade, are not subject to State taxation in any form, and that the owners of the vessels cannot be taxed for the same as property, even when valued as other personal property, as the basis of State or municipal taxation.

Opposed as that theory is to the settled rule of construction, that the commercial clause of the Constitution neither confers, regulates, nor prohibits taxation, it is not deemed necessary to give the theory much further consideration. Gibbons v. Ogden, supra. By that authority it is settled that the power to tax, and the power to regulate and prohibit taxation, are given in the Constitution by separate clauses, and that those powers are altogether separate and distinct from the power to regulate commerce; from which it follows, as a necessary consequence, that the enrolment of a ship or vessel does not exempt the owner of the same from taxation for his interest in the ship or vessel as property, upon a valuation of the same, as in the case of other personal property.

Judgment affirmed.


text: Talk:Transportation Company v. Wheeling/Opinion of the Court


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Tice v. United States

APPEAL from the Court of Claims.

The facts are stated in the opinion of the court.

Mr. J. W. Douglass for the appellants.

The Solicitor-General, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Tice v. United States


text: Talk:Tice v. United States

title: Talk:Tice v. United States


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

By sect. 15 of an act approved March 2, 1867 (14 Stat. 481), the Secretary of the Treasury was authorized to 'adopt, procure, and prescribe' for use hydrometers, weighing and gauging instruments, meters, or other means for ascertaining the strength and quality of spirits subject to tax, or for preventing or detecting frauds by distillers of spirits.

On the 18th of April, 1867, the Secretary adopted the Tice meter, and prescribed its use in distilleries, upon certain agreed conditions fully set forth in a letter to the inventor. Among those conditions were these:--

'The Secretary of the Treasury holds himself at liberty at any time to adopt any improvement or modification of the meter or system, or at any time to revoke the order adopting the meter, and to discontinue their manufacture on behalf of the government. If the first meter shall prove successful when subjected to the test above set forth, and the government shall subsequently revoke the adoption of the meter and order a discontinuance of proceedings, you will be paid such sum as may be determined upon in the manner hereinafter stated for all instruments which you may have completed or have in process of completion at the time of such revocation: Provided, that at no time shall you have more than twenty sets in process of manufacture at any one time, unless directions shall be given hereafter for the manufacture of a larger number.'

By joint resolution passed Feb. 3, 1868 (15 id. 246), Congress directed the appointment, by the Secretary of the Treasury, of a commission which, in connection with the then-existing commission of the Academy of Science, should examine all meters and mechanical contrivances or inventions presented to them which were intended to measure, test, and ascertain the productiveness of grain or other articles prepared for distillation, or the actual quantity and strength of distilled spirits subject to tax, produced therefrom, the result of such examination to be communicated to Congress. The act declared 'that pending the action of said commission, and until their report be made, and a meter shall be by law adopted, all work on the construction of meters, under the direction of the Treasury Department, be and is hereby suspended.' 'And in the mean time no further contract shall be made by the Secretary of the Treasury' under the act of March 2, 1867.

By an act approved July 20, 1868 (id. 125), power to 'adopt and prescribe' meters was conferred upon the Commissioner of Internal Revenue. That officer, Sept. 16, 1868, decided to adopt and prescribe the Tice meter, and upon certain conditions, to which the inventor assented, the directed the latter 'to proceed with their construction.' Among the conditions were these:-- 'Third, The one hundred and seventeen meters now finished will be immediately made ready for delivery, and thrity-six now in process of manufacture will be completed as soon as possible. The manufactue of others, to the number of five hundred in all, is to be proceeded with as rapidly as possible, and thereafter not more than twenty sets are to be in process of construction at one time, unless a greater number is directed by the Commissioner of Internal Revenue.

'Fourth, The commissioner reserves to himself, or his successor in office, the right at any time to adopt any improvement of the meter or system, or to revoke the order adopting the meter, and to direct on the part of the government a discontinuance of its manufacture.'

On the 7th of June, 1870, the commissioner ordered the discontinuance of that kind of Tice meter known as the second or 'credit' meter, and required distilleries to use thereafter the Tice sample meter, and the Tice automatic meters adapted for use as sample meters.

On the succeeding day, June 8, 1870, the commissioner addressed to Tice a letter, in which, among other things, he gave notice that instructions and regulations in force prior to Oct. 8, 1869, 'relating to the ordering and shipment and payment for the meters invented by you and prescribed for use in distilleries, remain in force only in respect to meters heretofore delivered, and also those you may now have on hand or in process of construction, not exceeding twenty sets.' In that letter the commissioner further says: 'Any regulations heretofore prescribed, addressed to you by or from this office, directing or authorizing you to construct, or proceed with the construction of, or to furnish, meters, especially those of Sept. 16, 1868, are revoked, except as aforesaid. New rules, regulations, and orders have been prescribed, a copy of which is herewith enclosed, it being distinctly understood that neither the government of the United States, nor any department or officer thereof, is or will be responsible for or on account of any spirit meters, or the attachment or adjustment thereof.'

By a formal order made on June 8, 1871, the further use of Tice's spirit meters was finally discontinued, and all existing orders prescribing the same were revoked. At the date of that order Tice had on hand fourteen and one half sets of meters, worth $25,000, for which sum, and for storage up to April 8, 1873, the estate of Tice rendered an account against the government on the 12th of April, 1873. The amount was approved by the then commissioner; but payment being refused, this action was brought against the government for the recovery of the sum claimed.

From the judgment of the Court of Claims in favor of the government this appeal is prosecuted.

We concur with the learned counsel for appellants in the proposition that the contract made April 18, 1867, by the Secretary of the Treasury with Tice was not abrogated by the joint resolution of Feb. 3, 1868. By the terms of the resolution it was only suspended until final action by the commission, whose report was designed as the foundation of a statute which would designate the kind of meters which should be adopted. But express authority to make a new contract was conferred by the act of July 20, 1868, upon the Commissioner of Internal Revenue. That officer was empowered to adopt and prescribe for use such hydrometers, saccharometers, weighing and gauging instruments or meters, as he might deem necessary. The extent of the authority intended to be conferred upon him is manifested by the third section of the act of July 20, 1868, which required every owner, agent, or superintendent of a distillery to furnish and attach, at his own expense, such meter as the commissioner might adopt and prescribe for use. It was by virtue of its provisions that the agreement of Sept. 16, 1868, was made. According to any fair construction of its terms, in the light of attendant circumstances, the government was bound, as under the agreement of April 18, 1867, to pay for such sets, not exceeding twenty, as Tice might have on hand at the time their use should be discontinued. The provision to that effect in the contract of April 18, 1867, is so reasonable and just, that we shall not presume that the contract of Sept. 16, 1868, we intended to establish a different rule of compensation to the inventor. But we do not perceive, however, that all this justifies the conclusion that the government was under any legal obligation to pay for the meters which Tice had on hand on June 8, 1871, and for the value of which the account in question was presented. By the express words of the agreement of Sept. 16, 1868, the commissioner had the right at any time to revoke the order adopting the meter, and to direct the discontinuance of its manufacture on behalf of the government. That power was partially exerted by the order of June 7, 1870, which dispensed with the further use of all Tice meters except the sample meters, or the automatic meters adopted for use as sample meters. But the power of revocation and discontinuance was fully exerted by the sweeping order of June 8, 1870, which, reserving the rights of Tice as to all meters theretofore delivered, and as to such as were then on hand or in process of construction, not exceeding twenty sets, revoked all previous regulations which directed or authorized the inventor to construct, or proceed with the construction of, or to furnish, meters, and especially the regulation of Spet. 16, 1868. By that order distinct notice was given to the patentee that neither the government of the United States nor any department or officer thereof was or would be responsible for or on account of any spirit meters, or the attachment or adjustment thereof. The order of June 8, 1870, did not, perhaps, discontinue the use of meters altogether, but it clearly furnished notice that the patentee could not look to the government for protection or reimbursement as to any meters thereafter constructed by him and used by distilleries. The meters for which the account was rendered were on hand on June 8, 1871, when all existing orders prescribing the same for the were absolutely revoked and the further use of Tice meters discontinued. Had they been on hand and in the process of construction at the date of the order of June 8, 1870, we would not doubt the liability of the government for their value. But no such fact is found, and we suppose no such fact could have been established.

While we do not agree with the court below in all the reasons assigned in support of the conclusion reached, we think its judgment is in accordance with the law.

Judgment affirmed.


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


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Myrick v. Thompson

ERROR to the Supreme Court of Minnesota.

The facts are stated in the opinion of the court.

Mr. C. K. Davis for the plaintiffs in error.

Mr. E. C. Palmer, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Myrick v. Thompson


text: Talk:Myrick v. Thompson

title: Talk:Myrick v. Thompson


text:
Myrick v. Thompson/Opinion of the Court

Lands in the Territory of Minnesota had been set apart for the use and benefit of the Sioux half-breeds, and the President was empowered to make a new arrangement with them, and for that purpose was authorized to issue to such of them as would relinquish to the United States their title to the reservation certificates or scrip for an amount of land equal to what they would be entitled in case the reservation should be divided among them; and the act provided that the certificates or scrip might be located upon any of the lands within the reservation not occupied by actual and bona fide settlers of the tribe,. . . or upon any other unoccupied lands subject to pre-emption or private sale, or upon any other unsurveyed lands not reserved by government, upon which they have respectively made improvements. 10 Stat. 304.

Certificates or scrip of the kind were held by the defendant as attorney in fact of the half-breeds named in the petition, and it appears that he placed the same with his powers of attorney in the hands of the plaintiff, with the view to the location of the same for the benefit of the beneficiaries. Contemporaneous with the delivery of those papers the plaintiff and defendant entered into the written agreement set forth in the petition, in which the defendant agreed that upon the location of the scrip he would secure the title to the land located to be lwfully vested in the plaintiff, in consideration of which the plaintiff agreed to pay the defendant the sum of $2,800 in one year from the date of the note, and to secure the payment of the same upon the land located as soon as he, the plaintiff, shall acquire the title to the same.

Difficulties attended the location, which were overcome in the manner set forth in the petition; and the plaintiff avers that he made all the locations as stipulated in the written agreement, and alleges that the defendant neglects and refuses to comply with his part of the agreement; that instead of doing so he has fraudulently caused the lands located to be conveyed to his wife, the other defendant in the case, and that she now holds the same, or the principal part thereof, without consideration and in fraud of the just rights of the plaintiff in this action. Many other matters are alleged in the complaint, which, being immaterial in this investigation, are omitted.

What the plaintiff demands against the defendants is the judgment and decree of the court for a specific performance of the said written agreement, that the defendants convey to him one-fourth part of the lands first described and the entire fee in all the parcels last described, and that the decree of the court shall stand and be effectual to convey the title to the plaintiff.

Service was made, and the defendants appeared and filed an answer setting up several defences, no one of which involves any Federal question. They admit the execution of the written agreement, and that the certificates or scrip were located by the plaintiff. Nothing of the kind is in controversy; but they deny that the quantity of land located is correctly set forth, or that the fees and expenses paid by the plaintiff exceeded fifty dollars. Sales and deeds of the lands located they admit were made by the first-named defendant as alleged, but they aver in the answer that they first and in repeated instances requested the plaintiff to pay the note and take the title, and that he refused so to do, alleging as a reason that he could not raise the money; and they deny that the sales were made with intent to cheat or defraud the plaintiff. Every such imputation is denied; and the defendants set up as a defence that the arrangement contracted in the written agreement was, by the mutual consent and understanding of the parties, abandoned, and that the defendants have ever since and now hold the note as cancelled, and are ready and willing to surrender the same to the plaintiff.

Sundry explanations are also given in respect to the several conveyances through which the title to the lands passed into the hands of the wife of the principal defendant, from which it appears that the deed to her was a voluntary conveyance; but the defendants allege that she subsequently purchased the same of the beneficiaries, for which deeds she paid a valuable consideration to the respective grantors.

Proofs were taken, and the parties heard by the court without a jury; and the record shows that the court made a special finding of the facts, and rendered judgment in favor of the plaintiff, to the effect that the defendants convey to the plaintiff, his heirs and assigns for ever, the land and lots therein described, to which description of the land and lots is appended the following: 'And that this decree shall stand in place of a conveyance of said premises to said plaintiff by said defendants, and be effectual to convey the title to said land and lots to the plaintiff, his heirs and assigns for ever.'

Due appeal was taken by the defendants to the Supreme Court of the State, where the parties were again heard upon the finding of facts certified from the subordinate court, and the State Supreme Court affirmed the judgment of the State District Court. Proceedings in these courts being at an end, the defendants sued out a writ of error and removed the cause into this court.

Appended to the writ of error is the assignment of errors filed by the defendants, which is that the plaintiff has no ground of action except upon the agreement set out in his complaint, which is void under the treaty of July 15, 1830, made at Prairie du Chien, and the act of Congress approved July 17, 1854. 7 Stat. 330; 10 id. 304.

Sufficient appears to show that the theory of defence presented in the assignment of errors was not set up in the answer, nor does the record furnish any support to the proposition that any such question was raised or decided in the court of original jurisdiction. Evidence to support the theory that the question stated in the assignment of errors was discussed and decided in the Supreme Court of the State is found in the opinion of that court as published in the record, and inasmuch as that question is raised in the assignment of errors exhibited in the brief, the court is of the opinion that the case to that extent is properly here for re-examination.

Enough has already been remarked to show that the parties waived a jury in the court where the action was commenced, and submitted the evidence to the determination of the court invested with that jurisdiction. Special findings were made by the court as the basis of their conclusions of law, and on appeal the Supreme Court of the State adopted the findings of the subordinate court as the basis of fact for their judgment. Viewed in the light of these suggestions, it is quite clear that the findings of fact exhibited in the record are not the proper subject of review in this court, nor will it be necessary to reproduce those findings, as they are fully set forth in the record and in the official volume of the State reports. Thompson v. Myrick, 20 Minn. 207.

Reference either to the record or to that case will show that the subordinate court found as a conclusion of law that the plaintiff below was entitled to judgment, directing and decreeing that the defendants should convey to the plaintiff, his heirs and assigns for ever, the one undivided fourth part of the lands so located by the plaintiff as aforesaid in the name of the said beneficiaries, and the whole of the seventeen lots otherwise described; and that in case the defendants should fail to convey the lands as directed, the decree of the court shall stand in place of such conveyance.

From the opinion of the Supreme Court it also appears that the defendants, through their counsel, made several points to show that the judgment of the subordinate court was erroneous, the first of which was that the agreement set out in the complaint is void under the said act of Congress and the treaty made at Prairie du Chien. By the ninth article of the treaty a certain tract of land was set apart for the half-breeds of the Sioux nation, and the United States agreed to suffer said half-breeds to occupy said tract of country, they holding by the same title and in the same manner that other Indian titles are held. 7 Stat. 330.

Certain rights of occupancy were doubtless guaranteed to the half-breeds by that article of the treaty; but the record furnishes no ground to suppose, or even to suspect, that the agreement in the case did or could interfere with or impair any right which the treaty conferred, which is all that need be said upon that subject. Congress, by the act referred to, authorized the President to make an exchange with the half-breeds for their rights in that reservation, by issuing to them certificates or scrip for the amount of land before described, which said certificates or scrip the act provided might be located upon any of the lands within the reservation,. . . or upon any other unoccupied lands subject to pre-emption or private sale, or upon any other unsurveyed lands not reserved by the government, upon which they have respectively made improvements.

Attempt, it seems, was made in the argument of the case in the Supreme Court of the State to show that the terms of the agreement were in conflict with the provisions of the act of Congress; but the answer which that court made to the proposition, though brief, is satisfactory and decisive. Outside of the pleadings, the defendants, it seems, contended in the Supreme Court of the State that by the the terms of the agreement between the parties to it the scrip was to be located on land occupied by the plaintiff, and consequently that the agreement was void as contravening the regulations which the act of Congress prescribed; to which the court responded, that the provision authorizing the scrip to be located upon 'unoccupied lands' was evidently framed for the benefit and protection of occupants of the land, and that if the occupant saw fit, as the plaintiff did in this case, to locate the scrip upon land occupied by himself, there could be no objection to the location, as the occupant might waive his right to object and abandon his occupancy, and that if he did, the effect would be to restore the premises to the condition of unoccupied land.

Plain as that proposition is, it is not deemed necessary to pursue the argument, as the statement of it is sufficient to secure for it universal assent.

Suppose that is so, still it is insisted by the defendant that the agreement is repugnant to the provisions of the act of Congress, because it contemplates that the location of the scrip may be made upon land other than that upon which the beneficiaries 'have respectively made improvements;' to which the State Supreme Court answered, that the clause of the act referred to qualifies the phrase 'other unsurveyed lands,' instead of the phrase 'other unoccupied lands,' as is supposed by the defendants, which, in the judgment of the court, is the correct construction of the provision in the act of Congress applicable to the subject.

Support to that view is also derived from the contemporaneous construction given to it by the Commissioner of the General Land-Office, as appears from the circulars issued by him for the guide and direction of all engaged in making such locations under the act of Congress authorizing the President to issue such certificate or scrip to the half-breeds therein mentioned. 1 Lester, Land Laws, 628; 2 id. 369.

Holders of such certificates or scrip were forbidden to transfer the same, and the defendants contended that the real object of the agreement was to effect a transfer of the same; but the State Supreme Court overruled the defence, and referred to one of their former decisions, assigning the reasons for their conclusion that the defence was not well founded. Gilbert et al. v. Thompson, 14 Minn. 544.

Since the cause was submitted, the opinion of the court in that case has been carefully examined, and the court here concurs with the State court that the case is applicable to the present case, and that the reasons given for the conclusion are satisfactory and conclusive. For these reasons the court is of the opinion that the Federal questions involved in the record as set forth in the assignment of errors were decided correctly by the State Supreme Court.

Six other defences were set up by the defendants, as appears by the opinion of the State Supreme Court, no one of which involves any Feberal question. They are as follows: 1. That the agreement is void on common-law grounds on account of the relation which the principal defendant bore to the grantees of the scrip. 2. That by the terms of the agreement the payment of the note by the plaintiff is a condition precedent to the right to specific performance. 3. That the contract is not one which a court of equity will enforce, because it is not a contract for a conveyance, but for services to be rendered by the plaintiff to procure a conveyance from the said beneficiaries. 4. That the findings of the court show that the agreement was abandoned by mutual consent. 5. That the circumstances disclosed show that it would be inequitable to enforce the agreement. 6. That the action is barred by the Statute of Limitations.

Remarks are not necessary to show that none of these several defences present any Federal question for re-examination; and having already decided that the Federal questions involved in the case were correctly decided by the State Supreme Court, the settled rule of this court is that the judgment must be affirmed, without determining the other questions not of a Federal character. Murdock v. City of Memphis, 20 Wall. 590.

Judgment affirmed.

title: Myrick v. Thompson/Opinion of the Court


text: Talk:Myrick v. Thompson/Opinion of the Court


text:
Phelps v. McDonald

APPEAL from the Supreme Court of the District of Columbia.

This was a bill filed Sept. 8, 1874, by Thomas J. Phelps against Augustine R. McDonald. By an amendment, William White was made a defendant. It alleges that McDonald was on his petition declared a bankrupt by the District Court of the United States for the Southern District of Ohio, Dec. 10, 1868; that Phelps was appointed assignee, and received, Feb. 12, 1869, in due form the assignment of all the bankrupt's real and personal estate; that in the schedule of assets filed by the bankrupt appears this item: 'Claim against General Osborne, of U.S. Army, and others, for burning, in January and February, 1865, from one to two thousand bales of my cotton in Arkansas and Louisiana;' that this is the only description of the claim, except that in the duplicate schedule filed in the office of the register of said court the amount is stated at seven thousand to eight thousand bales, and the claim, with others, is designated as 'worthless;' that McDonald, March 17, 1869, received his discharge from the court, and that thereafter Phelps, having petitioned for and obtained and order to sell certain accounts, notes, and judgments of the bankrupt, sold them at public sale, White becoming the purchaser of the uncollected accounts belonging to the estate for the sum of twenty dollars; that the purchase was made for McDonald, with money furnished by him, and the claim transferred to him by White.

The bill further alleges, that, prior to the filing of his petition in bankruptcy, McDonald had a just and valid claim against the United States for certain cotton destroyed by the army during the late civil war; that being a British subject, although for many years a resident of this country, he prosecuted the claim before the joint British and American commission organized under the treaty of May 8, 1871, between the United States and Great Britain; that the claim was finally adjudged to be valid; and that, Sept. 25, 1873, the commission awarded the sum of $197,190 'to be paid in gold by the government of the United States to the government of her Britannic Majesty in respect of the above claim.'

To the bill of complaint is annexed as an exhibit McDonald's memorial to the joint commission, which shows his claim as one arising from purchases of cotton made by him in the insurrectionary States under permits from the Secretary of the Treasury and letters from the President of the United States, and alleges the subsequent repeal of the laws authorizing such permits before he could remove the cotton, and its final destruction by the Federal army.

The complainant insisted that this claim, thus arising from an alleged breach of an obligation of the United States to protect McDonald in the possession of the cotton destroyed, is not that described in the schedule of the assets which were sold by the assignee to the defendant White, and afterwards assigned by him to McDonald; that the schedule did not describe a claim against the United States arising from a violation of permits given by the President, and that the designation of it as 'worthless' added to the description given was well calculated to mislead; that the rules of the joint commission required all assignments of claims to be stated, which McDonald did not do, but prosecuted his claim upon his original title; that the award was made to him on that title, and not on that derived by purchase through White from the assignee in bankruptcy; and that said award ought rightfully to be paid to the complainant as assignee for the benefit of the creditors of said bankrupt, whose claims, as stated in his schedule, amount to $177,380, the only sum ever realized from his estate being the twenty dollars derived from the sale to White.

The bill then alleges that McDonald assigned said award to White, 'who took the same with full knowledge that said McDonald had no valid title thereto;' that the United States paid to the agent of the British government in the city of Washington said award, and he is about to pay the same to McDonald. The bill prays for an injunction restraining McDonald and White, or either of them, from receiving said award, and for a decree that said fund be held in trust for the creditors of said McDonald, and be subject to the complainant's rights as assignee in bankruptcy.

Process was personally served on both defendants. They answered, and the complainant filed a replication. A temporary injunction was awarded. Subsequently, by consent of parties, as decree was made that one half of the amount of the award be received by the defendants to pay the expense of prosecuting the claim before the joint commission, and the other half placed in the hands of George W. Riggs, as receiver, to await the final action of the court; and that McDonald execute all orders, receipts, and acquittances necessary to enable the receiver to obtain the fund.

The defendants withdrew their answer and filed a demurrer, the grounds whereof are, in effect, that the court below had no jurisdiction of the case, but that the exclusive jurisdiction remained with the District Court of the United States for the Southern District of Ohio; that the bill was not filed within two years from the time when the cause of action accrued; that the claim against the United States did not give any right of action either to McDonald or to the complainant as his assignee in bankruptcy; that if it did, such right was in tort, and did not pass to the assignee; that it appears by the bill and the said treaty that no ground or right of action against the United States ever existed in favor of said assignee by virtue of the assignment in bankruptcy.

The special term of the court sustained the demurrer, and decreed that the bill be dismissed, and that the receiver pay over to the defendants the money in his hands. The complainant having appealed to the general term, where the decree was affirmed, he brought the case here.

Mr. F. P. Stanton and Mr. George F. Appleby for the appellant.

An assignee in bankruptcy may sue in any court of competent jurisdiction to recover the assets of the bankrupt. Johnson's Assignee v. Bishop, 1 Woolw. 326; Lathrop, Assignee, v. Drake et al., 91 U.S. 516; Eyster v. Gaff et al., id. 521; Burbank v. Bigelow et al., 92 id. 179; Claflin v. Houseman, Assignee, 93 id. 130.

The suit was not barred by the Statute of Limitations. The right of the assignee as against McDonald did not accrue until the award was made. Clark v. Clark el al., 17 How. 315.

McDonald had at the date of his petition in bankruptcy a claim against the United States for the destruction of his cotton. Its validity is averred in the bill, and is conclusively established by the decision and award of the commission. Comegys et al. v. Vasse, 1 Pet. 193. Such a claim passes by the register's deed to the assignee in bankruptcy (Rev. Stat., sect. 5046), although it be incapable of enforcement by legal proceedings. Comegys et al. v. Vasse, supra; Milnor et al. v. Metz, 16 Pet. 221; Clark v. Clark et al., supra; Sheppard v. Taylor, 5 Pet. 707; Frevall v. Bache, 14 id. 95. Even if the fund arising from the allowance of the claim had been in England and in the hands of the British government, that fact would not defeat the jurisdiction of the court below, to which the parties were amenable, and against whom a decree could be rendered and enforced by process in personam. 2 Story, Eq. Jur., sect. 899 et seq.

Mr. William A. Cook and Mr. C. C. Cole, contra.

The assets of the bankrupt, including the claim in question, were purchased by White, who transferred it to McDonald, in whom was thus vested a perfect title as against the assignee. There having been no concealment of the condition or the supposed value of the claim, the case is not within the principle of Clark v. Clark et al., 17 How. 315.

At the time of the sale by the assignee this claim was worthless, having only a possibility of a value.

As the fund must be considered as being in England, the interest in, or the title to, a claim thereon did not by the assignment in bankruptcy pass to the assignee. Oakey v. Bennett, 11 How. 33; Lawrence's Wheaton (2d ed.), pp. 162, 163; Perry v. Barry, 1 Cranch, C. C. 204; Blaine v. Drummond, 11 Brock. 62; Hunt v. Jackson, 6 Blatchf. 349.

The fund was under the control of the British government to be distributed, and the decree of a court in this country could not operate upon it. Treaty of 1871, art. 12; Story, Eq. Pl, sect. 489. Were the law otherwise, the court below could have no jurisdiction, except on the ground of fraud, trust, or contract, and neither is alleged in the bill. Blake's Case, 1 Cox, 393; Penn v. Baltimore, 1 Ves. 444; Massie v. Watts, 6 Cranch, 148.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Phelps v. McDonald


text: Talk:Phelps v. McDonald

title: Talk:Phelps v. McDonald