Statement of the case.

alleged belonged to him, and had been stored at Atlanta, Georgia, where, on the capture of the place by General Sherman, in September, 1864, it had been seized by the United States, turned over to an agent of the Treasury Department, sold by him, and the net proceeds paid into the Treasury. Owing to the fact, as was testified, that the quartermaster in charge of captured and abandoned property had left Atlanta before the claimant's cotton had been delivered at the depot there, the claimant had not procured a receipt.

The findings of the court showed that a large amount of cotton had been sold and the proceeds thereof paid into the treasury. The question in the case was whether these 73 bales were in fact so included.

They were in the possession of the quartermaster in charge of abandoned and captured property at Atlanta, in October, 1864. This quartermaster in that month shipped to the officer in charge of military railroad transportation, at Nashville, 130,605 pounds of cotton; but whether the cotton of the claimant was included in the shipment was not shown. It seemed, however, that the officer in charge turned over to the treasury agent at Nashville 1382 bales and a large quantity of loose cotton, coming from Atlanta, Chattanooga, and points beyond Chattanooga, in Georgia. The cotton received by this agent was forwarded to the supervising agent at Cincinnati, and sold by him, and the proceeds paid into the treasury.

It was shown that in the mouth of December, 1864, there was a sale of cotton at Cincinnati, and sundry bales of cotton marked with the claimant's mark were sold. Whether the person conducting the sale was the supervising agent of the Treasury Department did not appear.

The Court of Claims found on this case that the 73 bales of the petitioner had been sold and the proceeds paid into the treasury, and the identity of the several lots of cotton coming from Atlanta having been lost, the court gave the claimant judgment for a pro rata amount of the proceeds of all the cotton seized at that place.

From this decree the United States appealed.

Opinion of the court.

Mr. B. H. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-General, for the appellants, contended that the 73 bales were not sufficiently traced, and that there was no sufficient identification of them; nor any sufficient evidence that the money had been paid into the treasury, and that whether or not the Court of Claims had done wrong to give a pro tanto judgment.

Messrs. Hughes, Denvers, and Peck, contra:

One of two conclusions is inevitable, either that the army and other officers did their duty, or that they committed an offence for which they were liable to be degraded and otherwise punished. The first presumption is a natural one; the last, not one to be made in the face of statutes denouncing fines, penalties, confiscation, imprisonment, degradation, and dismissals from service against every officer or person who should attempt to move this property, except in the authorized manner. The government asks the court to believe that the cotton did not take the only course which under the circumstances it was possible for it to take.

If the cotton was unidentified, the reason was that the quartermaster was absent from Atlanta when it was delivered at the depot, and when it was shipped; and therefore it went forward unidentified on the books of the treasury agent, as did other bales. The pro rata judgment was a right one, in view of the case.

The CHIEF JUSTICE delivered the opinion of the court. Presuming that the officers of the government performed their duty, there can be no doubt that the quartermaster at Atlanta forwarded to the officer in charge of military railroad transportation the cotton of the claimant; and that this officer turned over the cotton to the agent at Nashville, by whom it was forwarded to Cincinnati and sold by the supervising agent there. The presumption in this case is strengthened by the fact that heavy statutory penalties would be incurred by neglect of duty. There is nothing in the case to repel this presumption. If any evidence to this effect exists,

Statement of the case.

it must be contained in the books of the Treasury Department, and these are under the control of the defendant.

We think, therefore, that the conclusion of the Court of Claims, that the proceeds of the 73 bales of cotton belonging to the claimant were paid into the treasury, and that the claimant was entitled to judgment, was right.

JUDGMENT Affirmed.

Mr. Justice DAVIS, with whom concurred Mr. Justice SWAYNE and Mr. Justice MILLER, dissenting.

In my opinion, the burden of proof in this case is on the claimant to show that the money which he seeks to obtain under the Captured and Abandoned Property Act has been paid into the treasury. The court, in its opinion, throws the burden of proof, on this point, on the United States, and on that account I am constrained to dissent from the judgment in the case.

COCKROFT V. Vose.

the court reiterates the proposition that unless it can be seen from the record that a State court decided the question relied on to give this court jurisdiction, the writ of error will be dismissed.

MOTION by Mr. E. C. Benedict, to dismiss a writ of error to the Supreme Court of New York, taken under the assumption that the case was within the 25th section of the Judiciary Act; a section abundantly known to most lawyers practicing in this court, but which as it makes the basis of the judgment in this and several cases which follow, is partially copied for the benefit of any who do not at all times recall its phraseology.

"SEC. 25. And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had,

Statement of the case.

"Where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is AGAINST their validity;

"Or where is drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is IN FAVOR of such their validity;

"Or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is AGAINST the title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error."

The case was thus:

The State of New York passed "An act to provide for the collection of demands against ships and vessels," and authorizing warrants of attachment and seizure of the vessel, much in the style of admiralty proceedings. Under this act one Vose, professing to have claims against the vessel, had a warrant issued and the vessel seized. For the purpose of discharging the vessel from the custody of the sheriff, and in pursuance of the statute, one Cockroft gave his bond to Vose, whereby he became bound to pay to Vose the amount of all such claims and demands "as shall have been exhibited, which shall be established to have been subsisting liens" upon the vessel pursuant to the statute above mentioned. On this bond Vose brought the suit below; setting forth in his declaration or petition the warrant, seizure, and giving of the bond sued on; all spoken of as having been made in pursuance of the statute.

The defence, which did not deny in any way the validity of the statute, though it professed not to know more than that there had been a "pretended seizure," and a discharge, chiefly relied on the alleged fact that the supplies furnished had not been furnished on the credit of the vessel, but on

Argument against the jurisdiction.

the credit of the master exclusively. The case was tried upon that issue, and judgment entered in favor of the plaintiffs. From this judgment the defendants appealed to the General Term, by which the judgment was affirmed. From that judgment an appeal was taken to the Court of Appeals, which affirmed the judgment, and on the remittitur from the Court of Appeals final judgment was entered in the Supreme Court in favor of the plaintiffs.

The published opinions of the Court of Appeals showed that the constitutionality of the statute was not raised in the Supreme Court or in the General Term, and was discussed for the first time in the Court of Appeals. It was there argued by counsel that the obligors having given the bond and got the benefits of the statute by having their vessel released, were estopped to deny the validity of the statute under which they took that benefit. In the decision of the Court of Appeals the opinion is expressed that the statute was invalid, as being against the provision of the United States.

Messrs. J. M. Carlisle and C. N. Black, against the motion to dismiss:

The State statute is plainly void, because it infringes upon the exclusive jurisdiction of the Federal courts.* Now the face of this record shows that the Court of Appeals sustained the validity of this State statute. What reasons the judges may have assigned in their opinions for what they did is unimportant. The important matter is, that if this judgment is enforced, the obligors in the bond will be compelled to pay a judgment founded upon an unconstitutional and void State statute.

The jurisdiction of the Supreme Court cannot be ousted by a State court assigning reasons for supporting a judgment founded on an unconstitutional statute, that do not in words declare the law constitutional. Does the plaintiff recover under a plainly unconstitutional and void statute? That is

*The Moses Taylor, 4 Wallace, 411; The Hine, Ib. 555.