THE AMERICAN LAW TIMES.

NEW SERIES. MAY, 1876.- VOL. III., No. 5.

NOTES OF OPINIONS, DECISIONS, AND ORDERS

OF THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1875.

Monday, February 21, 1876.

No. 664. James M. Townsend, appellant, v. Alfred Todd et al. Appeal from the Circuit Court of the United States for the District of Connecticut. Opinion by Mr. Justice Hunt, affirming the decree below. In this case it is held that in the construction of the recording acts of a state, the federal courts will follow the constructions of the state court, if there has been a uniform course of decision.

No. 856. John & J. K. Warren, plaintiffs in error, v. Sheridan Shook, late Collector, &c. In error to the Circuit Court of the United States for the Southern District of New York. Mr. Justice Hunt delivered the opinion of the court, affirming the judgment of the said circuit court, with costs. This cause involved a construction of the internal revenue acts imposing a tax upon sales made by brokers. It was contended by plaintiffs in error, that because they were licensed as bankers they were not liable to the duty of one twentieth of one per cent. upon sales made on their own account. To this view the court declines to assent. Judge Hunt says: "The intent of Congress to subject to taxation all sales made by those engaged in the business of brokers, is plain enough. When it was said (§ 99) 'that all brokers and bankers doing business as brokers shall be subject' to the duties specified, it was intended to encompass the entire class of persons engaged in the business of buying and selling stocks and coin. Brokers were included by name and by definition. Bankers would not so certainly be embraced by the definition given in section 79, subdivision one. To meet this possible exception, it was enacted, that when bankers should do the business of brokers, they should be subject to the duty specified. In this matter brokers technically, and bankers doing the business of brokers, were made liable to the duty. If the right to tax bankers upon sales made for themselves rested on the seventy-ninth section alone, a plausible argument could be made in the plaintiffs' favor, arising from the words 'except such as hold a license as a banker.' But when we read in section ninety-nine that all brokers and bankers doing business as brokers' shall be subject to the tax, and consider the statutory definition of a broker, the plausibility of the argument ceases."

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No. 135. William W. Lathrop, assignee, &c., appellant, v. Samuel & John Drake, Jr., executors, &c. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. Mr. Justice Bradley delivered the opinion of the court, reversing the decree of the said circuit court, with costs, and remanding the cause for further proceedings, in conformity with the opinion and decree of this court. The question in this cause was whether an assignee in bankruptcy, without regard to the citizenship of the parties, could maintain a suit for the recovery of assets in a circuit court of the United States in any district other than that in which the decree of bankruptcy was made. The question was decided affirmatively.

No. 869. Samuel B. Lower, Supervisor, &c., et al., plaintiffs in error, v. The United States, ex rel. George O. Marcy. In error to the Circuit Court of the United States for

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the Northern District of Illinois. Mr. Justice Davis delivered the opinion of the court, modifying the judgment of the said circuit court so as to direct the board to assemble at their next regular semi-annual meeting, and allow said judgment, and affirming the judgment in all other respects, with costs. This case involved the construction of certain statutes of Illinois concerning the auditing of judgments against municipal corporations, and the levy of taxes to pay them. It was held below that under existing laws the power of the court to compel an auditing and levy of taxes by mandamus was plenary. This view is affirmed, the judgment being modified to render it effectual.

No. 142. William A. Stone, appellant, v. Ezra B. Towne, administrator. Appeal from the Circuit Court of the United States for the Southern District of Mississippi. Mr. Justice Miller delivered the opinion of the court, reversing the decree of the said circuit court, with costs, and remanding the cause with directions to dismiss the bill, the suit appearing to be groundless.

No. 866. Edwin M. Lewis, trustee of Jay Cooke & Co., appellant, v. The United States. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. Mr. Justice Swayne delivered the opinion of the court, affirming the decree of the said circuit court. On the 26th of Nov., 1873, all the persons composing the firm of Jay Cooke & Co. were adjudicated bankrupts, which adjudication remains in full force, and which includes the seven American members of the house of Jay Cooke, McCulloch & Co. The other three partners of this latter firm not being bankrupt. Under the proceedings in bankruptcy, the defendant Lewis was appointed trustee of the estates of the bankrupts of the firm of Jay Cooke & Co., and as such received and held their several separate individual estates and assets and the estates and assets of the firm as well. The estates of the bankrupts proved too insufficient to pay all their indebtedness. Upon these facts this court holds that the United States, under the statutes, are entitled to priority of payment of their debt mentioned in the opinion, out of the separate estates of such members of the firm of Jay Cooke & Co. as were also members of the debtor firm of Jav Cooke, McCulloch & Co., and this proceeding was properly instituted to enforce it. That all claims of the United States are embraced in the statute, and the form of the indebtedness is immaterial. The opinion is published in extenso in Chicago L. N., April 1, 1876.

No. 125. Henrietta S. Gould, executrix, &c., plaintiff in error, v. The Evansville & Crawfordsville Railroad Co. In error to the Circuit Court of the United States for the District of Indiana. Mr. Justice Clifford delivered the opinion of the court affirming the judgment of the said circuit court, with costs. Dissenting, Mr. Justice Bradley. It is laid down in this case that where special pleading is still allowed, if the parties elect to submit to it they must be bound by the rules that govern it. The defendant having demurred, and the demurrer being sustained with leave to plaintiff to amend, and plaintiff having declined to amend, elected to file a replication, containing new matter, to which replication defendants demurred specially, setting up the judgment on the former demurrer as an estoppel, which demurrer last mentioned was also sustained, upon which judgment was entered and the present writ of error sued out. Plaintiffs in error came to this court with the following propositions: First, that a judgment on demurrer is not a bar to a subsequent action between the same parties for the same cause of action, unless the record of the former action shows that the demurrer extended to all the disputed facts involved in the second suit, nor unless the subsequent suit presents the same questions as those determined in the former suit. Secondly, they deny that a former judgment is, in any case, conclusive of any matter or thing involved in a subsequent controversy, even between the same parties for the same cause of action, except as to the precise point or points actually litigated and determined in the antecedent litigation. Thirdly, that the declaration in the former suit did not state facts sufficient to sustain the alleged cause of action, and that the present declaration fully supplies all the defects and deficiencies which existed in the said former declaration. All of which are here ruled against them. Published in extenso in Cent. L. J., March 17, 1876.

No. 143. William C. Lobenstein, appellant, v. The United States. Appeal from the Court of Claims. Mr. Chief Justice Waite delivered the opinion of the court, affirming the judgment of the said court of claims. A contract providing that a party should have all hides of cattle "slaughtered for" the Indians, is here held not to include the hides of cattle delivered to the Indians alive.

No. 527. George D. Crary & Henry Pike, appellants, v. John Devlin. In error to the Court of Appeals of the State of New York. Mr. Chief Justice Waite delivered the opinion of the court, dismissing the writ of error in this cause, with costs, upon the authority of Boggs v. Mining Co. 3 Wall. 304.

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No. 622. Charles K. Brown, &c., plaintiff in error, v. Frank S. Atwell, administrator, &c. In error to the Supreme Court of the State of New York. Mr. Chief Justice Waite delivered the opinion of the court, dismissing the writ of error in the cause for the want of jurisdiction. This case approved the doctrine so often repeated that it is not enough that a federal question may have been argued; it must appear that it has been actually decided. This rule is here applied in connection with a controversy growing out of the assignment of a patent.

No. 928. James S. Welch, appellant, v. John F. Cook et al. Mr. Chief Justice Waite announced the decision of the court, denying the motion to advance this cause.

No. 113. J. Young Scammon, appellant, v. Mark Kimball, assignee. Mr. Chief Justice Waite announced the decision of the court, denying the motion to modify the judgment heretofore rendered in this cause.

No. 321. The United States, appellants, v. Mary B. Haversham, executrix, &c. Reversed and remanded per stipulation of counsel. Mr. Chief Justice Waite announced to the bar that after the argument of the cases assigned for Monday next the court will take a recess until Wednesday, the 15th of March next.

Monday, February 28, 1876.

In error

No. 157. Walter A. Haldeman et al., plaintiffs in error, v. The United States. to the Circuit Court of the United States for the District of Kentucky. Mr. Justice Davis delivered the opinion of the court, affirming the judgment of the said circuit court. This was a suit on the official bond of Haldeman as surveyor of customs at Louisville. The defence was that a former action for the same cause had been discontinued on the payment of the costs by the defendants. It is held that such a judgment of dismissal, because the cause was not prosecuted, is equivalent to nothing further than the record of a nonsuit, and constitutes no bar to a subsequent action. To bar a further action there must be the adjudication or release of some right. There must be at least one trial of a right between parties before there can be an end of the controversy.

No. 584. The Union Pacific Railroad Co., plaintiff in error, v. Samuel E. Hall & John W. Morse. In error to the Circuit Court of the United States for the District of Iowa. Mr. Justice Strong delivered the opinion of the court, affirming the judgment of the said circuit court, with costs. Dissenting, Mr. Justice Bradley. In this cause the court holds that Hall & Morse, residents of Council Bluffs, as citizens, bore sufficient interest to give them standing in court to demand the performance of its obligations by the company, and that it is the duty of the latter, under the acts of Congress, to operate its whole road as one connected, continuous line, and that the bridge over the Missouri River between Omaha and Council Bluffs is a part of the road, to be used in connection with and as a part of their entire line. It is said that, if Congress did not intend to require the construction of the road from the imaginary line in the middle of the river channel, which would be an impossibility, and which is the legal boundary of Iowa, the intention must have been that the initial point should be either on the Iowa or on the Nebraska shore, and if the Nebraska shore was intended, why was it not designated? It is impossible to give a satisfactory answer to the question by the court, as to the question why the Iowa boundary was designated if the eastern or the Iowa shore of the river was not intended to be the terminus of the road. The authority of the company to build the road to the Iowa shore was within itself power to build a bridge on the Missouri River. No express grant to bridge the river was needed, as whatever bridges were needed on the authorized line were as fully authorized as the line itself; all authority that was given to the company was as a railroad company and not as a bridge company. The bridge was to enable the road to connect with other roads, and it was to be built for no other's use. They were not allowed to charge rates of toll over it which they did not charge upon other portions of their line. The acts chartering the company manifest no intention to distinguish between the bridge over the Missouri River and other bridges on the line of the road if it is not a part of the road. Neither is any bridge between the Missouri and the western boundary of Nevada excepted, for the power to build bridges was given in the same words. Mr. Justice Bradley, dissenting, is of the opinion that the Missouri River is generally understood to be the western boundary of Iowa, and that the fair construction of the charter of the Union Pacific Company is that their road was to extend from that river westwardly.

No. 141. John R. Shepley et al., trustees, &c., plaintiffs in error, v. John E. Cowan et al. In error to the Supreme Court of the State of Missouri. Mr. Justice Field delivered the opinion of the court, affirming the decree of the said circuit court, with costs. In this

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cause the following points are decided: (1.) Whenever, in the disposition of the public lands, any action is required to be taken by an officer of the land department, all proceedings tending to defeat such action are impliedly inhibited. Accordingly, where an act of Congress of 1812 directed a survey to be made of the out-boundary line of the village of Carondelet, in the State of Missouri, so as to include the commons claimed by its inhabitants, and a survey made did not embrace all the lands thus claimed, the lands omitted were reserved from sale until the approval of the survey by the land department, and the validity of the claim to the omitted lands was thus determined. (2.) Where a state seeks to select lands as a part of the grant to it by the eighth section of the act of Congress of September 4, 1841, and a settler seeks to acquire a right of preemption to the same lands, the party taking the first initiatory step, if the same is followed up to patent, acquires the better right to the premises. The patent relates back to the date of the initiatory act and cuts off all intervening claimants. (3.) The eighth section of the act of September 4, 1841, in authorizing the state to make selections of land, does not interfere with the operation of the other provisions of that act regulating the system of settlement and preemption. The two modes of acquiring title to land from the United States are not in conflict with each other. Both are to have full operation, that one controlling in a particular case under which the first initiatory step was had. (4.) Whilst, according to previous decisions of this court, no vested right in the public lands as against the United States is acquired until all the prerequisites for the acquisition of the title have been complied with, parties may, as against each other, acquire a right to be preferred in the purchase or other acquisition of the land, when the United States have determined to sell or donate the property. In all such cases the first in time in the commencement of proceedings for the acquisition of the title, when the same are regularly followed up, is deemed to be the first in right. (5.) Where a party has settled upon public land with a view to acquire a right of preemption, the land being open to settlement, his right thus initiated is not prejudiced by a refusal of the local land officers to receive his proofs of settlement, upon an erroneous opinion that the land is reserved from sale. (6.) The rulings of the land department on disputed questions of fact, made in a contested case as to the settlement and improvements of a preemption claimant, are not open to review by the courts, when collaterally assailed. (7.) The officers of the land department are specially designated by law to receive, consider, and pass upon proofs presented with respect to settlements upon the public lands with a view to secure rights of preemption. If they err in the construction of the law applicable to any case, or if fraud is practised upon them, or they themselves are chargeable with fraudulent practices, their rulings may be reviewed and annulled by the courts when a controversy arises between private parties founded upon their decisions. But for mere errors of judgment upon the weight of evidence in a contested case before them, the only remedy is by appeal from one officer to another of the department, and finally to the President.

No. 154. The Republican River Bridge Co., plaintiff in error, v. The Kansas Pacific Railway Co. In error to the Supreme Court of the State of Kansas. Mr. Justice Miller delivered the opinion of the court, affirming the judgment of the said supreme court, with costs. In this case it is decided that where a right is set up under an act of Congress in a state court, any matter of law found in the record decided by the highest court of the state bearing on the right to set up under the act of Congress may be reviewed here on the merits. The court decides that the joint resolution of July 26, 1866, grants to the railroad company certain lands of the Fort Riley Military Reservation for the purpose of a depot opposite Riley City, which right was contested by the Bridge Company.

No. 146. Henry H. Raymond, plaintiff in error, v. Wm. M. Thomas. In error to the Supreme Court of the State of South Carolina. Mr. Justice Swayne delivered the opinion of the court, affirming the judgment of the said supreme court, with costs. In this it is held that the War of the Rebellion terminated in South Carolina on the 2d of April, 1866, and that the military officers remaining in command there between that date and the return of the state to the Union had no authority, under the acts of March and July, 1867, to annul a decree of a court of equity of the state. Hence such an order, made by General Canby, was an arbitrary stretch of authority, and was properly disregarded by the court below. Published in extenso in Chicago L. N., April 8, 1876.

No. 139. James L. D. Morrison et al., plaintiffs in error, v. Samuel Jackson. No. 140. Jas. L. D. Morrison et al., plaintiffs in error, v. W. H. Benton. In error to the Circuit Court of United States for the Eastern District of Missouri. Mr. Justice Clifford delivered the opinions of the court, affirming the judgments of the said circuit court, with costs. No. 159. The Mutual Life Insurance Company of New York, plaintiff in error, v. C. S.

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Jeffries, administrator, &c. In error to the Circuit Court of the United States for the Eastern District of Missouri. Mr. Chief Justice Waite announced the decision of the court, reversing the judgment of the said circuit court in this cause, with costs, upon the authority of Jeffries, administrator, &c., v. Economical Insurance Co. 22 Wall. 47, and Etna Insurance Co. v. France, decided at this term.

No. 158. The Propellor John Taylor, appellants, v. The New Jersey Railroad & Transportation Co. Appeal from the Circuit Court of the United States for the Southern District of New York. Mr. Chief Justice Waite announced the decision of the court, affirming the decree of the said circuit court, with costs.

No. 161. The Connecticut Mutual Life Insurance Co., plaintiff in error, v. Louisa Coverston. In error to the Circuit Court of the United States for the District of Kansas. Mr. Chief Justice Waite announced the decision of the court, affirming the judgment of the said circuit court, with costs.

Monday, March 20, 1876.

No. 147. Wm. Barnes, plaintiff in error, v. The District of Columbia. In error to the Supreme Court of the District of Columbia. Mr. Justice Hunt delivered the opinion of the court, reversing the judgment of the general term of said supreme court, with costs, and remanding the cause with directions to affirm the judgment of the special term upon the verdict.

No. 137. Charles D. Maxwell, plaintiff in error, v. The District of Columbia. No. 138. Francis X. Dant, plaintiff in error, v. The District of Columbia. In error to the Supreme Court of the District of Columbia. Mr. Justice Hunt delivered the opinions of the court, reversing the judgments of the said supreme court, with costs, and remanding the causes with directions to award a new trial. In these cases it was held that the old corporation of Washington was chargeable with the care of the public streets and responsible for their condition; that the municipality created under the act establishing a Board of Public Works succeeded to all the duties and responsibilities of the old corporation. The municipality is not relieved from responsibility by the fact that the Board of Public Works was assigned the immediate charge and direction of the work, or because the governor and certain other officers were appointed by the President. The judgments below are reversed, with directions to affirm the jndgments of the special term upon the verdicts obtained. Dissenting, Justices Swayne, Field, Strong, and Bradley, on the ground stated by Mr. Justice Field, that the District of Columbia should not be held responsible for the neglect and omissions of officers whom it has no power to select or control.

No. 166. Harvey Terry, plaintiff in error, v. Emily H. Tubman. In error to the Circuit Court of the United States for the Southern District of Georgia. Mr. Justice Hunt delivered the opinion of the court, affirming the judgment of the said circuit court, with costs. The court affirms the judgments of the court in Georgia, dismissing the case, which was an action to make the stockholders of a bank personally liable for its circulating bills. Mr. Justice Hunt delivered the opinion.

No. 11. Samuel N. Burbank, Tutor, &c., appellant, v. E. B. Bigelow et al. Appeal from the Circuit Court of the United States for the District of Louisiana. Mr. Justice Bradley delivered the opinion of the court, reversing the decree of the said circuit court, with costs, and remanding the cause with directions to proceed therein in conformity to law. No. 104. Myra Clarke Gaines, plaintiff in error, v. Jos Fuentes et al. In error in the Supreme Court of the State of Louisiana. Mr. Justice Field delivered the opinion of the court, reversing the judgment of the said supreme court, with costs, and remanding the cause with directions to reverse the judgment of the second district court for the parish of Orleans, and to direct a transfer of the cause from that court to the circuit court of the United States for the District of Louisiana, pursuant to the application of the appellant. Dissenting, Mr. Justice Bradley, Mr. Justice Swayne, and Mr. Chief Justice Waite. In this case it was decided that the defendant, being a citizen of New York, under the Popular Prejudice Act of Congress of 1867, had the right to have the cause transferred to the circuit court of the United States, and that all proceedings in the state court after the motion to remove the cause were nullities, and that the subject matter of the suit is of no consequence upon such a motion. The opinion is published in extenso in Chicago L. N., April 18, 1876.

No. 164. Elon Farnsworth et al., appellants, v. The Minnesota & Pacific Railroad Co. et al. Appeal from the Circuit Court of the United States for the District of Minnesota. Mr. Justice Field delivered the opinion of the court, affirming the decree of the said circuit court, with costs.