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18 L. ed., 749; State Ton. Tax case, 12 Wall., 212, 20 L. ed., 373; and Peete v. Morgan, decided at the last term, and not yet reported [ante, 201].

This is a much wiser course, and Congress is a much safer depositary of the final exercise of this important power than the ill-regulated and overtaxed towns and cities, which are not likely to look much beyond their own needs and their own interests.

We are of opinion that the ordinance under which the levee dues were assessed upon the plaintiff's vessel is unconstitutional and void.

The judgment of the Supreme Court of Louisiana is, therefore, reversed, and the case remanded to that court for further proceedings in conformity to this opinion.

In the first of these cases the late Chief Justice, who delivered the opinion, seemed inclined to guard against too narrow a construction of the clause, lest its spirit and purpose might be evaded. He says, "that in the most obvious and general sense, it is true, the words describe a duty proportioned to the tonnage of the vessel; a certain rate on each ton. But it seems plain that in this restricted sense, the constitutional provision would not fully accomplish its intent. The general prohibition against laying duties on imports or exports 582*] *would have been ineffectual if it had not been extended to duties on the ships which serve as the vehicles of conveyance. This extention was, doubtless, intended by the prohi- Treaty bition of any duty on tonnage. It was not only a pro rata tax which was prohibited, but any duty on the ship, whether a fixed sum upon its whole tonnage, or a sum to be ascertained by comparing the amount of tonnage with the rate of duty." The other two cases fully sustain the proposition as we have stated it.

In saying this we do not understand that this principle interposes any hindrance to the recovery from any vessel landing at a wharf or pier owned by an individual or by a municipal or other corporation, a just compensation

the use of such property. It is a doctrine for

ELISHA BASSE, Plff. in Err.,

v.

CITY OF BROWNSVILLE.

of Guadaloupe Hidalgo-jurisdiction over state judgment.

tion to property included in the State of Texas. The Treaty of Guadaloupe Hidalgo had no rela

Where the record does not show that any question was made in the state court, or decided, as to the effect of a State Act upon the plaintiff's title, and the case was disposed of without reaching that question, this court has no jurisdiction. 109.]

[No.

Argued Dec. 18, 1874.

Decided Jan. 11, 1875.

IN ERROR to the Supreme Court of the State

of Texas.

well settled, and a practice too common and too This was an action of trespass to try title, essential to the interests of commerce and navi-brought by the plaintiff in error in a District gation to admit of a doubt, that for the use of such structures, erected by individual enterprise, and recognized everywhere as private property, a reasonable compensation can be exacted. And it may be safely admitted also that it is within the power of the State to regulate this compensation, so as to prevent extortion, a power which is often very properly delegated to the local municipal authority.

Nor do we see any reason why, when a city or other municipality is the owner of such structures, built by its own money, to assist vessels landing within its limits in the pursuit of their business, the city should not be allowed to exact and receive this reasonable compensation as well as individuals. But in the exercise of this right, care must be had that it is not made to cover a violation of the Federal Constitution in the point under consideration. We are better satisfied with this construction of the Constitution from the fact that this is one of the few limitations of that instrument on the power of the States which is not absolute, but which may be removed wholly or modified by the consent of Congress.

The cases which have recently come before this court in which the State by itself or by one 583*] of its municipalities *has attempted to levy taxes of this character, clearly within the letter and the spirit of the constitutional prohibition, show the necessity of a rigid adherence to the demands of that instrument. If hardships arise in the enforcement of this principle, and the just necessities of a local commerce require a tax which is otherwise forbidden, it is presumed that Congress would not withhold its assent if properly informed and its consent requested.

Court of Texas. Judgment having been given for the plaintiff, the defendant sued out a writ of error to the Supreme Court of the State, by which the said judgment was reversed; whereupon the plaintiff sued out this writ of error. The plaintiff in error claimed that, by the Treaty of Guadaloupe Hidalgo, the title to the lands in question was confirmed in his grantors, and that the Supreme Court of Texas had erred in refusing to give that effect to said Treaty; also that the State of Texas impaired the obligation of a contract with the plaintiff, by its legislation in regard to the lands of the City of Brownsville, in this: that the State, by Act of February 10, 1852, granted the lands to plaintiff, and subsequently granted them to the City of Brownsville, by the Act of February 7, 1853, which last grant was sustained by the Supreme Court of Texas.

Messrs. Edgar Ketchum, James R. Cox, Wm. G. Hale, O. Robinson and Walton & Green, for plaintiff in error.

Messrs. Powers & Maxau and Durant & Hornor, for defendant in error.

Mr. Chief Justice Waite delivered the opinion of the court:

This writ of error is dismissed for the want of jurisdiction. In McKinney v. Saviego, 18 How., 240, 15 L. ed. 367, it was decided that the Treaty of Guadaloupe Hidalgo had no relation to property included within the State of Texas. The record does not know that any question was made in the court below, or decided as to the effect of the Act of 7th February, 1853, upon the plaintiff's title. So far as anything does appear, the case was disposed of without reaching that question.

517*] *UNITED STATES, Appt.,

บ.

ANDREW J. GILL.

(See S. C., 20 Wall., 517-520.) Government, when liable for goods

amount.

about one quarter remained in the ricks, although in a worthless condition.

III. After Lieutenant Dunn was relieved at Camp Fillmore, his successor, Lieutenant Dennison, assumed the responsibility of the custody used-of the hay, and in June, 1865, the post commander at Fort Lyon ordered the quartermaster there to receive the balance of the hay remaining, so as to relieve Lieutenant Dennison from responsibility. A board of survey being demanded, it was found that the balance remaining was spoiled and worthless, and no receipt was given, or responsibility assumed by the post quartermaster.

1. Where the Government uses hay belonging to a person, it is liable for its value, although there is no valid express contract to purchase it. 2. Its value at the time it was received should be allowed for it, and not its subsequent higher value

of the time it was actually used.

[No. 365.]

Submitted Jan. 14, 1874. Decided Jan. 11, 1875.
PPEAL from the Court of Claims.

IV. The fair and reasonable value of the hay in November, 1864, was $38.50 per ton, and

A The petition in this case was filed in the during the winter, at the time it was used, $45 court below by the appellee, to recover for a certain quantity of hay.

The court below found the following facts, viz.:

I. In November, 1864, the claimant was the owner of 536 tons of hay, at Point of Rocks, near Fort Fillmore and Fort Lyon, in the Territory of Colorado. On the 27th November, 1864, he applied to Lieutenant Clark Dunn, the commanding officer at Fort Fillmore, to purchase the same for the use of the defendants. Lieutenant Dunn declined to make the purchase, on the ground that he was not authorized; but he gave to the claimant his receipt in writing, wherein it was stated that he had received of A. J. Gill, five hundred thirty-six tons of hay, in good order and well ricked, for the use of the Government, and which was signed "Clark Dunn, First Lieutenant, 1st Cav. Comdg. Fort Fillmore;" and he at the same time referred the claimant to the commander of the district, and to the quartermaster at Den ver, who could purchase the hay if they saw fit. The commander of the district was applied to, but declined to purchase at that time. During the same month the military inspector of the District of Colorado, anticipating a short supply of hay for the winter, ordered Lieutenant Cossett the quartermaster of Fort Lyon, to take the hay belonging to Andrew J. Gill, and use it for government stock. After this 518 the claimant exercised no control over the hay, and the defendants having proved on the trial that the claimant left Colorado, on the 4th February, 1865, on business of his own, and that he did not return until the summer of 1866, and that in consequence of Indian troubles then existing, it was unsafe for small parties to remain outside of government posts, he was compelled to leave the hay without anyone in charge of it; but in July, 1865, his agent visited the place and found the entire 536 tons gone. The court finds, as matter of fact, that the claimant did not abandon or intend any abandonment of the hay, and that at the time he left the Territory, it had gone into government use, as set forth in the next finding.

II. In the month of December, 1864, and during the winter of 1864-5, the quartermaster and forage master at Fort Lyon, directed gov ernment trains to go to the hay and quarter there. A military expedition having about 2,000 horses, was also quartered there and used the hay. In the spring, about one half of the hay had been fed to government animals; about one quarter had been thrown out of the ricks, trampled down, wasted and destroyed; and

a ton.

Upon the foregoing facts the Court of Claims decides, as a conclusion of law:

There being no valid express contract founded upon advertisement of military exigency, for the sale and purchase of the hay, the defendant is not liable for the entire quantity alleged to have been sold in November, 1864, at $38.50 per ton. But the defendant is liable for the hay taken and used at [*519 its fair and reasonable value at the time of taking, and it is responsible for the waste and destructive manner in which it was taken and

used; and the claimant should recover for three

fourths of the entire quantity ricked at the rate of $45 per ton.

Judgment having been given accordingly, the defendant took an appeal to this court.

Messrs. Geo. H. Williams, Atty. Gen., and John Goforth, Asst. Atty. Gen., for appellant:

1. There was no valid express contract found-ed upon advertisement (Act March 2, 1861, 12 Stat. at L., 220), or military emergency (Act 4th July, 1864, 13 Stat. at L., p. 394), and, therefore, the defendant was not liable for the hay alleged to have been sold, if the taking was not a trespass by government troops. The refusal of the district commander to receive the 536 tons of hay belonging to the claimant, was a notice to the claimant, as well as to all officers and agents of the defendants, that the hay would not be purchased for the use of the government animals. The direction of the district inspector, to the post quartermaster at Fort Fillmore, to use claimant's hay was illegal and of none effect, as it was not within the line of his duty, or within his power to declare an emergency. The law provides that when an emergency shall exist, it shall be lawful for the commanding officer to procure supplies during the continuance of the emergency, but no longer, in the most expeditious manner and without advertisement.

Act July 4, 1864, 13 Stat. at L., 394; Henderson's Case, 4 Court of Claims, 75. In the present case the court decided that no military exigency existed.

If the hay was taken and used by order of an officer without authority to act, or by government troops and parties, without the claimant's knowledge and consent and when he had left the territory, a fortiori if they scattered and trampled it under foot, it was a trespass, and the Court of Claims had no jurisdiction of the case. The Supreme Court in the case of

Gibbons v. U. S., 8 Wall., 269, 19 L. ed. 453, said: "The language of the statutes which confer jurisdiction upon the Court of Claims, excludes, by the strongest implication, demands against the government founded on torts."

The taking and using of the hay by the government troops and parties was an appropria- | tion within the Act of July 4, 1864, 13 Stat. at L., 381, and the Court of Claims has no jurisIdiction of the action.

Filor v. U. S., 9 Wall., 45, 19 L. ed. 549. The memorandum receipt given to claimant by Lieutenant Dunn, or any other officer, was not binding upon the United States, there being no delivery or acceptance of the same on the part of Lieutenant Dunn, or any other officer; but, on the other hand, it was accompanied by a statement by Dunn that he was not authorized to make the purchase, and was given as an accommodation to the claimant, in order that the district commander might know that he, Dunn, was cognizant of the fact that the claimant had 536 tone of hay cut and ricked in the vicinity of Fort Fillmore.

The claimant demanded compensation for his hay at the rate of $38.50 per ton, and no more, and offered to sell the same to the Govern

ment for that price, and it was improper for the court to rate it as worth $45 per ton.

Messrs. Durant & Hornor, for appellee:

The question, whether there was an implied promise, is a question of fact in which the finding of the Court of claims is conclusive. So, too, in regard to the damages recovered on the quantum meruit or quantum valebat; the measure of damages in such cases becomes a question of evidence as to the value of the property or services; what the thing or property is worth. See, Sedg. Dam.; 254, ed. 1869; also, J. H. Clarke & Co.'s case, opinion by Justice Grier, published 7 Ct. Claims, 32.

We understand that Your Honors will steadfastly adhere to the doctrine enunciated in your construction of the rules of court regulating appeals from the Court of Claims; "their purpose was to bring nothing here for review but questions of law."

Mahan v. U. S., 14 Wall., 111, 20 L. ed. 765; Shrewsbury v. U. S., 18 Wall., 668, 21 L. ed. 851, a case in which a certiorari, to bring up a most important and written evidence, was denied; U. S. v. Adams, 9 Wall., 661, 19 L. ed. 608, and many other cases.

"Certainty in practice is of the essence of Denefit."

Pease v. Norwood, 4 L. R. C. P., 258.
We submit:

First. That on general demurrer to the facts constituting the case, in the court below, the judgment here would be in favor of Gill.

Second. That if there is any error in the decrees, or in the statement of facts, amount awarded, imperfect justice contrary to evidence, or if the United States has fault to find with the doings of the court, or has discovered any evidence, a motion for a new trial is the remedy provided, as it seems to us, by law, the time for which will not expire until October 21, 185. Act, June 25, 1868, 15 Stat. at L., 65.

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Argued Deo. 17, 1874.

Decided Jan. 11, 1875.

IN ERROR to the Circuit Court of the United

States for the District of Nebraska.

This was an action brought in a Nebraska district court and removed to the court below, to recover the value of certain gold-dust, which, on the 29th day of February, 1864, the defendant in error intrusted to the plaintiff in error, to be carried by it from Nebraska City to New York. While it was being transported in due course across the state of Missouri, on the Hannibal and St. Joseph Railroad, on the 3d of October, 1854, the train was seized and robbed by armed bands, claimed to be connected with the Confederate soldiers, and the gold-dust taken.

The court charged the jury upon the Statute of Limitations as follows:

The defendant pleads the Statute of Limitations, in that the cause of action did not accrue within five years before this suit was commenced. The loss happened, it is agreed, October 3, 1864. Suit is commenced, as the Statute of this State provides, when summons is served, and summons was served on the defendant February 24, 1870. The Statute does not run if, when the cause of action accrued, the defendant is out of the State and does not begin to run until he, the defendant, comes into the State, so that he can be sued therein.

The statute provides that "When the defendant is a foreign corporation, having a managing agent in the State, the service (of summons) may be made upon such agent." R. S., 404.

The petition alleges that at the date of the receipt of the property sued for, September 29, 1864, the "defendant had at that tiine an office and a managing agent in said Nebraska City, for the transaction of its business therein." The answer denies all allegations of the petition not admitted. The petition was filed in the state court September 28, 1868, and on the 29th day of September, 1868, the sheriff returned on the summons, that after diligent search, he could

Mr. Chief Justice Waite, delivered the opinnot find the United States Express Co., or an ion of the court:

authorized agent thereof, in his bailiwick. On

the 15th day of December, 1869, another summons was issued, which the sheriff returned December 15, 1869, as served on "Edward Sheldon, the managing agent of the defendant."

On January 14, 1870, defendant filed an affidavit that Sheldon was only a local agent and not a managing agent, and that the managing agent for the State was one Quick, and on this the state court quashed, on defendant's motion, the service made on the summons.

Another summons was issued February 24, 1870, and served same day upon Edward Sheldon, Clerk of the United States Express Co. The defendant moved to quash this service, because not served on any managing agent of the Company, and this the court overruled. If you

find that the defendant had a managing agent

within the State at the time of the loss, then the Statute began to run from that time, and if it had such agent in the State for the next five years after the loss, then this action is barred, but otherwise it is not. In other words, to bar this action the plaintiff must have been able, for five years before suit brought, to have sued the defendant in this State, and compelled it to answer the suit by a service upon a managing agent therein. The time during which the plaintiff is thus disabled from suing by reason of defendant having no managing agent in this State, is not to be counted as part of the five years' limitation.

Mr. J. M. Woolworth, for plaintiff in er

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1. The provision in the charter of an insurance company, that every contract, bargain, agreement and policy shall be in writing or in print, and be under the seal of the corporation, refers only to executed contracts or policies of insurance, and not to the preliminary contract to make insurance or issue a policy.

2. A contract to issue a policy, as an executory agreement to insure, is binding without a written memorial of it.

3. Credit allowed for the payment of the premiNOTE. Validity of oral insurance contract-see notes, 22 L. R. A. 768; 24 L. ed. U. S. 291.

um was an indulgence which the agents were authorized by general usage to give, and did not impair the preliminary contract.

4. The contract, being valid, can be enforced in a court of equity, and having been enforced by the procurement of a policy, an action can be maintained upon the instrument; or the court, in enforcing the execution of the contract, may enter a decree for the amount of the insurance. policy which they had, previous to the loss, stipu5. Insurance agents may, after a loss, fill up a lated to deliver.

6. Where the policy, filled up after the loss, was, by express stipulation, to be held by the agents in their safe for the assured, no actual manual transfer was essential to perfect the latter's title.

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[No. 93.]

Argued Dec. 2, 3, 1874. Decided Jan. 11, 1875. IN ERROR to the Circuit Court of the United States for the District of Connecticut. Suit was brought in the Superior Court of Connecticut by the defendant in error, to recover upon a certain contract of insurance, and was removed upon petition of the defendant to the court below.

On the 26th of August, 1870, there was completed a parol contract of insurance with NevCo., and Samuel C. Colt, to insure certain propers and Havens, agents of the Fire Insurance erty for the term of five years from said date, the insurance to be binding on and from that

date.

Credit was given for the payment of the premium until the first of October then next, and it was agreed that a policy should be made; in their possession for said Colt until the that Nevers and Havens should keep the policy

first of October, for his convenience.

20th day of September, 1870. The property was destroyed by fire on the

The policy was not made until after the fire, and the Company had no knowledge of any negotiations or of the contract to insure, until after the fire, except the knowledge of these agents.

The Company was specially empowered to make insurance against losses by fire, etc., in and by its charter, and it is also explicitly provided therein, that "Every contract, bargain, agreement, policy and other instrument to be made by said Corporation," for the insurance of property, "shall be in writing or in print.”

The main question raised by the exceptions is: had Nevers and Havens power, under the charter of the Company, to bind it by the parol agreement of 26th of August?

Judgment having been given for the plaintiff, the defendant sued out this writ of error: Messrs. Franklin Chamberlain, N. Shipman and E. Hall, for plaintiff in error:

"All persons dealing with a corporation (even a foreign one) are bound to take notice of every limitation upon its powers contained

in its charter."

Hoyt v. Thompson, 19 N. Y., 222.

"A corporation has no inherent power to make a contract, and it can contract only in the mode and manner prescribed in its charter. The Act of incorporation is an enabling Act. It gives to the corporation all the power it possesses; it enables them to contract, and when it prescribes to them a former contracting, they must observe the mode of the instrument, or the instrument no more creates a contract than if the body had never been incorporated."

Head v. Prov. Ins. Co. 2 Cranch, 166, opin

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ion by Ch. J., Marshall; New York F. Ins. Co. v. Ely, 5 Conn., 568; Catlin v. Eagle Bank, 6 Conn., 240; Berlin v. School Society New Britain, 9 Conn., 180; Hood v. N. Y. & Ñ. H. R. Co., 22 Conn., 17-18, 508; Mut. Sav. Bank, etc., v. Meriden Agt. Co., 24 Conn., 163; Couch v. City Fire Ins. Co., 38 Conn., 187; Bank of Augusta v. Earle, 13 Pet., 587; Bank of U. S. v. Dandridge, 12 Wheat. 69; Walker v. Metropolitan Ins. Co., 56 Me., 371; Com. Mut. Ins. Co. v. Union Mut. Ins. Co., 19 How., 321, 15 L. ed, 637; 1 Phil. Ins., 10.

We admit that no exact rule can be laid down, by which a court can always declare a particular expression in a charter or statute to be mandatory or directory. The court must sometimes judge the intent of the Legislature from the importance of the subject, and from the strength of the language which the Legislature has used.

U. S. Bank v. Dandridge, 12 Wheat., 64. See, also, the able and vigorous dissenting opinion of Ch. J. Marshall, pp. 90 and on, including recital of case of Head v. Providence Co., on pp. 98, 100.

In the charter of the plaintiff the language is as mandatory and vehement as it is possible for a draftsman to frame, unless he had also added negative words and prohibited any other form.

The phraseology certainly implies a prohibition of any contract, unless in writing or in print.

Per Mansfield, in Rex v. Loxdale, 1 Burr, 145. "Statutes directing a mode of proceeding by public officers, have always been treated as advisory, and not intended to invalidate the va lidity of the proceedings themselves, unless expressly so provided."

Holland v. Osgood, 8 Vt., 280; People v. Cook, 14 Barb., 290, 8 N. Y., 89.

"Statutes intended to promote method, system, uniformity in modes of proceedings, are directory."

Torrey v. Millbury, 38 Mass., 67; Sedg. Stat. L., 368.

So, also, in case of a parliamentary commission organized under a Statute of Parliament, the court saying: "The statute says that contracts shall be signed by the Commissioners or by any three of them. It does not say they shall be void unless so signed."

Cole v. Green, 6 Man. & Gr., 890; 46 Eng. C. L., 872, 887.

Under an English marriage Act, requiring consent of parents to marriage, Lord Tenterden held as follows: "The language of this section is merely to require consent. It does not proceed to make the marriage void, if solemnized without consent."

Rex v. Birmingham, 8 Barn. & C., 29.

"When statutes direct certain proceedings to be done in a certain way or in a certain form, and a strict compliance with these provisions of time or form does not appear essential to the judicial mind, the proceedings are held valid, though the command of the statute is disre

When the charter prescribes a mode in which the agents must act, that mode must be strict-garded or disobeyed." ly pursued, to render their acts binding on the Company.

Homersham v. Wolverhampton Water Works Co., 4 Eng. L. & E., 429; Williams v. Chester & Holyhead Railway, 5 Eng. L. & E., 497.

It may be true that this Corporation might enter by parol into preliminary negotiations looking to a contract, and before it could be reduced to writ'ng the property might be destroyed. In such case, facts might exist upon proof of which the insured would be equitably entitled to his insurance. But in such case the remedy, as Judge Grier suggests in Constant's case, would be equitable to compel the Company to execute and deliver a policy, but no action at law could be sustained upon the parol negotiations.

Constant v. Alleghany Ins. Co. 10 Am. L. Reg. (N. S.), 116.

The parol contract not being executed or evidenced by writing, until after the destruction of the property by fire, the Company's agentshad no authority subsequent to the fire, to make and execute a written policy which would be binding upon the Company. Such policy could only take effect as evidence of a prior, valid parol contract.

Bentley v. Columbian Fire Ins. Co., 17 N. Y.,

421.

Messrs. Richard D. Hubbard and Henry C. Robinson, for defendant in error:

The prescription of the charter is one of form and not of substance, and does not declare void any act or contract not executed in conformity to the prescription nor make the prescription a condition precedent.

"There is a known difference between circumstances which are the essence of things required to be done by an Act of Parliament, and things merely directory."

Sedg. Stat. L., 368.

This principle is made applicable even to the organic laws of the State.

As, for instance, constitutional directions, that every public Act shall be read on three different days; or shall contain no more than one subject to be expressed in its title; or requiring the question on the final passage of the bill to be taken upon its last reading, and the yeas and nays to be entered on the journal; or requiring a call of the yeas and nays in the Common Council of New York City.

Striker v. Kelly, 7 Hill, 24.

The prescription of the charter, if regarded as absolutely mandatory, would work most monstrous frauds and injustice to the people. This is a proper test for determining its construction.

Bank of U. S. v. Dandridge, 12 Wheat., 81; see, also, Delancey v. Ins. Co., 52 N. H., 581.

By the statutes of Pennsylvania, "All marriages shall be solemnized by taking each other for husband or wife." Held, directory.

Rodebaugh v. Sanks, 2 Watts, 10.

The whole world now trusts to the power of general agents to bind these companies, and the business of insurance is conducted on this assumption. The insured looks to and relies on the agent who has persuaded him to effect insurance, as the full and complete representative of the company in all that is said or done in making the contract. Has he not a right so to regard him?

Ins. Co. v. Wilkinson, 13 Wall., 234, 20 L. ed. 623.

The principal case extending in a different direction, and the only one worthy of consideration, is Head v. Providence Ins. Co., 2 Cranch, 127. But this case was decided at a very early day, when the rule obtained that a cor.

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