Page images
PDF
EPUB

Opinion of the Court.

It is true that most of the decisions touching this question have been in respect to the actions of trustees and directors of a private corporation, or of the minor legislative bodies which represent and act for cities and other municipal corporations; but the principle is the same. The two houses of Congress are legislative bodies representing larger constituencies. Power is not vested in any one individual, but in the aggregate of the members who compose the body, and its action is not the action of any separate member or number of members, but the action of the body as a whole; and the question which has over and over again been raised is, what is necessary to constitute the official action of this legislative and representative body. In Rex v. Monday, 2 Cowp. 530, 538, Lord Mansfield said: "I will take it for granted that a majority of the mayor and aldermen for the time being are sufficient to constitute the assembly. And the fact found by the special verdict is that the majority of those in being did meet. When the assembly are duly met I take it to be clear law that the corporate act may be done by the majority of those who have once regularly constituted the meeting.” In 5 Dane's Abridgment, p. 150, the rule is thus stated : “ When a corporation is composed of a definite number, and an integral part of it is required to vote in an election, a majority of such integral definite part must attend, aliter there is no elective assembly, but a majority of those present when legally met will bind the rest." In 1 Dillon's Municipal Corporations, (fourth edition) section 283, the rule is thus stated: “ And, as a general rule, it may be stated that not only where the corporate power resides in a select body, as a city council, but where it has been delegated to a committee or to agents, then, in the absence of special provisions otherwise, a minority of the select body, or of the committee or agents, are powerless to bind the majority or do any valid act. If all the members of the select body or committee, or if all the agents are assembled, or if all have been duly notified, and the minority refuse or neglect to meet with the others, a majority of those present may act, provided those present constitute a majority of the whole number. In other words, in such case, a major part of the

Opinion of the Court.

whole is necessary to constitute a quorum, and a majority of the quorum may act. If the major part withdraw so as to leave no quorum, the power of the minority to act is, in general, considered to cease.” This declaration has been quoted approvingly by this court in the case of Brown v. District of Columbia, 127 U. S. 579, 586. In 2 Kent's Commentaries, 293, the author draws this distinction between what is necessary to a meeting of a representative, and to that of a constituent body: “There is a distinction taken between a corporate act to be done by a select and definite body as by a board of directors, and one to be performed by the constituent members. In the latter case, a majority of those who appear may act; but in the former, a majority of the definite body must be present, and then a majority of the quorum may decide." See also Ec parte Willcocks, 7 Cowen, 402; Commonwealth v. Green, 4 Wharton, 531; State v. Green, 37 Ohio St. 227; Launtz v. The People, 113 Illinois, 137; Gas Co. v. Rushville, 121 Indiana, 206; Gosling v. Veley, 7 Q. B. 406; S. C. 4 H. L. Cas. 679.

In State v. Deliesseline, 1 McCord, 52, it is said: “For, according to the principle of all the cases referred to, a quorum possesses all the powers of the whole body; a majority of which quorum must, of course, govern.

The constitutions of this State and the United States declare that a majority shall be a quorum to do business; but a majority of that quorum are sufficient to decide the most important question."

In Wells v. Rahway Co., 4 C. E. Green (19 N. J. Eq.) 402, we find this language: “A majority of the directors of a corporation, in the absence of any regulation in the charter, is a quorum, and a majority of such quorum when convened can do any act within the power of the directors.”

And in Attorney General v. Shepard, 62 N. H. 383, 384, the question was whether an amendment to a city charter had been properly adopted by the board of aldermen. All the members of the board were present but one. The ordinance was duly read and put to a vote, and declared by the chair to be passed. The yeas and nays were then called; three voted in the affirmative, three refused to vote, and the chair declared

Opinion of the Court.

the ordinance passed. The court held, Chief Justice Doe delivering the opinion, that the amendment to the charter was legally adopted by the board of aldermen. He said: “The exercise of law-making power is not stopped by the mere silence and inaction of some of the law-makers who are present. An arbitrary, technical, and exclusive method of ascertaining whether a quorum is present, operating to prevent the performance of official duty and obstruct the business of government, is no part of our common law. The statute requiring the presence of four aldermen does not mean that in the presence of four a majority of the votes cast may not be enough. The journal properly shows how many members were there when the vote was taken by yeas and nays; there was no difficulty in ascertaining and recording the fact; and the requirement of a quorum at that time was not intended to furnish a means of suspending the legislative power and duty of a quorum. No illegality appears in the adoption of the amendment."

Summing up this matter, this law is found in the Secretary of State's office, properly authenticated. If we appeal to the journal of the house, we find that a majority of its members were present when the bill passed, a majority creating by the Constitution a quorum, with authority to act upon any measure; that the presence of that quorum was determined in accordance with a valid rule theretofore adopted by the house; and that of that quorum a majority voted in favor of the bill. It therefore legally passed the house, and the law as found in the office of the Secretary of State is beyond challenge.

With reference to the other question: The opinion of the Circuit Court seemed to be, that the act cast upon the Secretary of the Treasury a special duty of classification in all cases of the importation of worsted cloths, and that unless he so acted in any particular case the duty remained as it was prior to the passage of the act. We quote its language: “This act, however, proceeds upon an entirely novel theory. It provides expressly for a classification in direct non-conformity to the facts. It authorizes an officer of the government who may find an import to be in fact an article which under the tariff

Opinion of the Court.

[ocr errors]

laws pays one rate of duty to call it something else, which it is not, in order to enable the revenue officers to levy upon it a rate of duty which that other article, which it is not, pays.

I do not mean by that to suggest for one moment that under the phraseology of this act it is the duty of the Secretary of the Treasury to himself examine the packages of goods, to handle or see their contents; but, having been informed and advised as to the facts in the same way in which he is informed and advised upon any facts upon which he is required to pass, by the examination and report of such trustworthy subordinates as he may select, the final classification of the particular articles is one to be made by him.”

We do not so construe the act. We understand it rather as a declaration by Congress as to the construction to be placed upon that portion of the act of 1883 which refers to imported woollen cloths. It was an act suggested by the contest then pending in the courts, and which was finally decided adversely to the government in the case of Seeberger v. Cahn, 137 U. S. 95, in which it was held by this court that “cloths popularly known as " diagonals,' and known in trade as 'worsteds,' and composed mainly of worsted, but with a small proportion of shoddy and of cotton, are subject to duty as a manufacture of worsted, and not as a manufacture of wool, under the act of March 3, 1883, c. 121." The form of expression used in the act may be novel, but the intent of Congress is quite clear. Recognizing the fact that the Secretary of the Treasury is the head of the financial department of the government, that to him, as its chief administrative official, is given the supervision of the tariff and all the collections thereunder, it directs him •to classify all worsted cloths as woollen cloths, and it gives to him no discretion. Ile may not classify some worsteds as woollens and others as not. There is given no choice or selection, but it is the imperative direction of Congress to him, as the chief administrative officer in the collection of duties, to place all worsted cloths, by whatever name properly known or known to the trade, within the category of woollen cloths, and, of course, if placed within that category, or using the familiar language of the tariff, if" classified as woollen cloths,”

Statement of the Case.

subject to the duty imposed on such cloths. If action were necessary by the Secretary of the Treasury to put this act into force, which was not as we think, such action was taken by the circular letter of May 13, 1890, from the Treasury Department to all customs officers, publishing the act for the information and guidance of the public.

Our conclusion, therefore, is that the act was legally passed ; and that by its own terms, and irrespective of any action by the Secretary of the Treasury, the duties on worsted cloths were to be such as were placed by the act of 1883 on woollen cloths. The judgment of the Circuit Court will be reversed, and the

case remanded for further proceedings, in accordance with this opinion.

ANSONIA BRASS AND COPPER COMPANY v. ELEC

TRICAL SUPPLY COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR

THE DISTRICT OF CONNECTICUT.

No. 165. Argued January 19, 1892. - Decided March 14, 1892.

Letters patent No. 272,660, issued February 20, 1883, to Alfred A. Cowles

for an “insulated electric conductor,” are void for want of patentable

novelty in the alleged invention covered by them. The cases reviewed which establish (1) that the application of an old pro

cess or machine to a similar or analogous subject, with no change in the manner of application and no result substantially distinct in its nature, will not sustain a patent, even if the new form of result had not before been contemplated; and (2) that on the other hand, if an old device or process be put to a new use which is not analogous to the old one, and the adaptation of such process to the new use is of such a character as to require the exercise of inventive skill to produce it, such new use will not be denied the merit of patentability.

The court stated the case as follows:

This was a bill in equity for the infringement of letters

« PreviousContinue »