« ForrigeFortsett »
upon him by section 1962 of the Revised Stat-skins could have been sold, namely, $300,000.
"Eighteenth. The defendant did not pre-
The circuit court made these conclusions
"First. That the said defendant, having "Thirteenth. That 20,000 bachelor seals received the said 7,500 seal skins taken from could have been killed upon the said islands the said islands during the year 1893, is liable during the year 1893 in the customary way, to pay the said plaintiff therefor the said without injury to or diminution of the herd, sum of $94,687.50, with interest thereon from and the said defendant would have taken that the first day of April, 1894; and the said number had it been permitted so to do. plaintiff is entitled to recover in this action "Fourteenth. That if the said defendant said sum, with interest as aforesaid, from had been allowed to and had taken in the the said defendant. vear 1893. under its said lease, 20,000 seal *skins, there would have been due to the said plaintiff the $60,000 rental and for the per capita of seven dollars and sixty two and one half cents and the revenue tax of two dcllars per skin, the sum of $192,500, making together the sum of $252.500-that is, twelve dollars and sixty-two and one half cents for each seal skin taken; that for the 7,500 rereived by the said defendant, as above set forth, it owes to the said plaintiff the said sum of twelve dollars and sixty-two and one half cents apiece, amounting to the sum of $94,687.50.
"Twelfth. That in the year 1893 the United States government itself, through the agents of the Treasury Department, took up on the said islands 7,500 seals; that the said defendant was permitted to co-operate in selecting the seals so killed, and to take, and it did take and retain the skins of those seals, and in this way, and in this way only, the defendant received those 7,500 skins.
"Fifteenth. The defendant could have sold 12,500 more seal skins if it had been allowed to take the same cn the said islands during the year 1893, at the average market price of twenty-four dollars for each skin; which for the said number of 12,500 which it might have taken, but was prevented from taking by the act of the government of the United States, would amount to $300,000; that for such 12,500 seal skins the said defendant would have been liable to pay, according to the terms of its lease if it had taken 20,000 seal skins during that year, the sum of twelve dollars and sixty-two and one half cents each, amounting to $157,812.50, which, being deducted from the price at which such
"Second. That by reason of the breach of the said lease by the said plaintiff, prohibiting the said defendant from taking any seal skins during the year 1893, the said plaintiff is liable to the said defendant for the said sum of $142,187.50, with interest thereon from the first day of December, 1894.
"That on account of the same claim of the said defendant against the said plaintiff for damages for breach of the said lease not having been presented to and disallowed by the accounting officers of the Treasury, it cannot be allowed as a counterclaim or credit in this action, and the said counterclaim is therefore dismissed, but not on the merits thereof, and without prejudice to the right of the said defendant to enforce the same by any other proper legal proceeding."
Mr. James C. Carter for plinta in error.
Mr. John W. Griggs, Attorney General, for defendant in error.
Mr. Chief Justice Fuller delivered the opinion of the court:
By the act of July 27, 1868 (15 Stat. at L 240, chap. 273), the laws of the United States relating to customs, commerce, and navigation were extended over all the mainland, is
[ lands, and waters of the territory ceded to the United States by the Emperor of Russia, March 30, 1867, so far as applicable, and by § 6 of that act it was made unlawful for any person or persons to kill any otter, mink, marten, sable, or fur seal, or other fur-bearing animal within the limits of said territory, or in the waters thereof; provided that the Secretary of the Treasury might authorize the killing of any such fur-bearing animal, except fur seals, under such regulations as he might prescribe, and it was made his duty to prevent the killing of any fur seal, and to provide for the execution of the provisions of the section until otherwise provided by law. On the 3d of March. 1869, a resolution was approved (15 Stat. at L. 348, No. 22), entitled "A Resolution More Efficiently to Protect the Fur Seal in Alaska," declaring the islands of St. Paul and St. George in Alaska "a special reservation for government purposes," and that, until otherwise provided by law, it should be unlawful for any person to land or remain on either of said islands, except by the authority of the Secretary of the Treasury.
July 1, 1870, an act entitled "An Act to Prevent the Extermination of Fur-bearing Animals in Alaska" was approved. 16 Stat. at L. 180, chap. 189. By the 1st section it was made unlawful to kill any fur seal upon the islands of St. Paul and St. George or in the waters adjacent thereto, except during the months of June, July, September, and October in each year, or to kill such seals at any time by the use of firearms, or to use other means tending to drive the seals away from said islands. Provided, that the natives should have the privilege of killing such young seals as might be necessary for their own food and clothing during other months, and also such old seals as might be required for their own clothing and for the manufacture of boats for their own use, which killing should be limited and controlled by such regulations as should be prescribed by the Secretary of the Treasury.
By § 2 it was made unlawful to kill any female seal, or any seal less than one year old, at any season of the year, except as above provided; and also to kill any seal in the waters adjacent to the islands, or on the beaches, cliffs, or rocks where they haul up from the sea to remain. 120] *The 3d section read as follows:
"Sec. 3. That for the period of twenty years from and after the passage of this act the number of fur seals which may be killed for their skins upon the island of St. Paul is hereby limited and restricted to seventy-five thousand per annum; and the number of fur seals which may be killed for their skins upon the island of St. George is hereby limited and restricted to twenty-five thousand per annum: Provided, That the Secretary of the Treasury may restrict and limit the right of killing if it shall become necessary for the preservation of such seals, with such proportionate reduction of the rents reserved to the government as shall be right and proper; and if any person shall knowingly violate either of the provisions of this section, he shall, upon
due conviction thereof, be punished in the same way as provided herein for a violation of the provisions of the first and second sections of this act."
The 4th section provided that immediately after the passage of the act the Secretary of the Treasury should lease for the rental mentioned in the 6th section of the act, to the best advantage of the United States, having due regard for the interests of the government, the native inhabitants, parties theretofore engaged in trade, and the protection of the seal fisheries, for a term of twenty years from the 1st day of May, 1870, "the right to engage in the business of taking fur seals on the islands of St. Paul and St. George, and to send a vessel or vessels to said islands for the skins of such seals," giving a lease duly executed, and not transferable, and taking from the lessee or lessees a bond, conditioned "for the faithful observance of all the laws and requirements of Congress and of the regulations of the Secretary of the Treasury touching the subject-matter of taking fur seals, and disposing of the same, and for the payment of all taxes and dues accruing to the United States connected therewith; and in making said lease the Secretary of the Treas ury shall have due regard to the preservation of the seal fur trade of said islands, and the comfort, maintenance, and education of the natives thereof."
The 5th section read:
*"Sec. 5. That at the expiration of said term of twenty years, or on surrender or forfeiture of any lease, other leases may be made in manner as aforesaid, for other terms of twenty years; and any person who shall kill any fur seal on either of said islands, or in the waters adjacent thereto, without authority of the lessees thereof, and any person who shall molest, disturb, or interfere with said lessees, or either of them, or their agents or employees in the lawful prosecution of their business, under the provisions of this act, shall be deemed guilty of a misdemeanor, and shall for each offense, on conviction thereof, be punished in the same way and by like penalties as prescribed in the second section of this act; and all vessels, their tackle, apparel, appurtenances, and crews shall be found engaged in any violation cargo, whose of either of the provisions of this section, shall be forfeited to the United States; and if any person or company, under any lease herein authorized, shall knowingly kill, or permit to be killed, any number of seals exceeding the number for each island in this act prescribed, such person or company shall, in addition to the penalties and forfeitures aforesaid, also forfeit the whole number of the skins of seals killed in that year, or, in case the same have been disposed of, then said person or company shall forfeit the value of the same.
By the 6th section it was provided that "the annual rental to be reserved by said lease shall not be less than fifty thousand dollars per annum, and in addition thereto, a revenue tax or duty of two dollars is hereby laid upon each fur-seal skin taken and shipped from said islands during the con
tinuance of such lease to be paid into the pany shall, in addition to the penalties and Treasury of the United States; and the Secre-forfeitures herein provided, forfeit the whole tary of the Treasury is hereby empowered number of the skins of seals killed in that and authorized to make all needful rules and year, or, in case the same have been disposed regulations for the collection and payment of of, then such person or company shall forfeit the same, for the comfort, maintenance, edu- the value of the same. cation, and protection of the natives of said islands, and also for carrying into full effect all the provisions of this act."
These provisions as well as others from the prior legislation were carried forward into the Revised Statutes, approved June 22, 1874, $§ 1954 to 1976 constituting chapter 3 of title 23, relating to the territory of Alaska, and §§ 1956 to 1976 thereof to the subject un
"Sec. 1969. In addition to the annual rental required to be reserved in every lease, as provided in section nineteen hundred and sixtythree, a revenue tax or duty of two dollars is laid upon each fur-seal skin taken and shipped from the islands of Saint Paul and Saint George, during the continuance of any lease, to be paid into the Treasury of the United States; and the Secretary of the Treasury is empowered to make all needful regulations for the collection and payment of the same, and to secure the comfort, maintenance, education, and protection of the natives of those islands, and also to carry into full effect all the provisions of this chapter except as otherwise prescribed."
Sections 1962, 1963, 1968, 1969, 1972, and 1973 were as follows:
"Sec. 1972. Congress may at any time hereafter alter, amend, or repeal sections from nineteen hundred and sixty to nineteen hundred and seventy-one, both inclusive, of this chapter.
"Sec. 1962. For the period of twenty years from the first of July, eighteen hundred and seventy, the number of fur seals which may be killed for their skins upon the island of "Sec. 1973. The Secretary of the Treasury St. Paul is limited to seventy-five thousand is authorized to appoint one agent and three per annum; and the number of fur seals assistant agents who shall be charged with which may be killed for their skins upon the the management of the seal fisheries in Alasisland of St. George is limited to twenty-ka, and the performance of such other duties five thousand per annum; but the Secretary as may be assigned to them by the Secretary of the Treasury may limit the right of kill- of the Treasury." ing, if it becomes necessary for the preservation of such seals, with such proportionate reduction of the rents reserved to the government as may be proper; and every person who knowingly violates either of the provisions of this section shall be punished as provided in the preceding section.
Pending the adoption of the Revised Statutes, and on March 24, 1874 (18 Stat. at L. 24, chap. 64), the act of July 1, 1870, was amended so as to authorize the Secretary of the Treasury to designate the months in which fur seals "may be taken for their skins on the islands of St. Paul and St. George, "Sec. 1963. When the lease heretofore in Alaska, and in the waters adjacent theremade by the Secretary of the Treasury to to, and the number to be taken on or about "The Alaska Commercial Company,' of the the islands respectively." Thus the Revised right to engage in taking fur seals on the Statutes were in effect amended so that islands of Saint Paul and Saint George, pur- whereas by § 1960 the months of June, July, suant to the act of July 1, 1870, chapter 189, September, and October had been designated or when any future similar lease expires, or as the months in which fur seals might be is surrendered, forfeited, or terminated, the taken on the islands and in the waters adSecretary shall lease to proper and responsible jacent thereto, for their skins, and by § 1962 parties, for the best advantage of the United the maximum number which might be killed States, having due regard to the interests of on the island of St. Paul was limited to the government, the native inhabitants, their 75,000, and on the island of St. George to comfort, maintenance, and education, as well 25,000, per annum, the Secretary of the as to the interests of the parties heretofore en-Treasury was authorized by the amendatory gaged in trade and the protection of the fish- act to designate the months in which fur eries, the right of taking fur seals on the seals might be taken, and the number to be islands herein named, and of sending a vessel taken on or about each island respectively. or vessels to the islands for the skins of such The times of killing and the number to be seals for the term of twenty years, at an an- killed were left to the judgment of the Secnual rental of not less than fifty thousand retary of the Treasury. dollars, to be reserved in such lease and secured by a deposit of United States bonds to that amount, and every such lease shall be duly executed in duplicate, and shall not be transferable."
By § 1960 the killing of any fur seals upon the islands or their adjacent waters was forbidden, except during June, July, September, and October in each year, etc., with the same proviso as in the 1st section of the act of 1870.
Manifestly the object the government had in view throughout this legislation was the preservation by proper regulations of the furbearing animals of Alaska, including, and particularly, the fur seals.
"Sec. 1968. If any person or company, under any lease herein authorized, knowingly kills, or permits to be killed, any number of seals exceeding the number for each island in exclusive right to take fur seals upon the this chapter prescribed, such person or com-islands of St. Paul and St. George, Alaska,
The first twenty years being about to expire the Secretary of the Treasury on December 24, 1889, advertised for proposals "for the
as it can prevent, in any year a greater num-
for the term of twenty (20) years from the | first day of May, 1890 agreeably to the provisions of the statutes of the United States." Among other things, the advertisement It was also agreed that "the annual rental, stated: "The number of seals to be taken together with all other payments to the Unit- for their skins upon said islands during the ed States provided for in this lease, shall be year ending May 1, 1891, will be limited to made and paid on or before the first day of sixty thousand (60,000), and for the succeed-April of each and every year during ing years the number will be determined by the Secretary of the Treasury, in accordance with the provisions of law."
the existence of this lease, beginning with the first day of April, 1891." The lease also provided that the number of fur seals to be There were twelve proposals or bids, of taken and killed for their skins during the which the North American Commercial Com-year ending May 1, 1891, should not exceed pany put in three, numbered 10, 11, and 12, 60,000. each of which offered a gross sum as rental, and, in addition to that and the revenue tax, a royalty per capitem. The three bids set forth the advertisement at length. No. 10 contained a proviso that the proposal was made on the express condition that the United States should not through the Secretary of the Treasury, or otherwise, limit the skins to be taken to any number less than 100,000 skins per annum *after the first year of the lease; and No. 12 made the express condition that the United States should protect the exclusive right of the fur-seal fisheries in and within the islands and the waters known as the "Behring Sea." No. 11 contained no such express conditions, and it was this bid which was accepted by the government. The lease in question was thereupon entered into "in pursuance of chapter 3 of title 23, Revised Statutes," as it recites.
By its terms, the company undertook, in consideration of the lease for twenty years of "the exclusive right to engage in the business of taking fur seals on the islands of St. George and St. Paul, in the territory of Alaska, and to send a vessel or vessels to said islands for the skins of such seals," "to pay to the Treasurer of the United States each year during the said term of twenty years, as annual rental, the sum of sixty thousand dollars, and in addition thereto agrees to pay the revenue tax or duty of two dollars upon each fur-seal skin taken and shipped by it from the islands of St. George and St. Paul, and also to pay to said Treasurer the further sum of seven dollars sixty-two and one half cents apiece for each and every fur-seal skin taken and shipped from said islands,
1. It is contended on behalf of the company that, conceding that the right of killing in 1893 had been duly limited to 7,500 seals, and that it took and received that num ber of skins as full performance of the cove nants of the lease on the part of the government, it is entitled under § 1962 of the Revised Statutes to a proportionate reduction of the rent reserved, that is, in the proportion that 7,500 bears to 100,000; and that this reduction applies to the per capita of $7.622 for each fur-seal skin taken and shipped by it, as well as to the $60,000 annual rental. On this theory, the company tendered to the United States, before action brought, the sum of $23,789.50, being $15,000 for the tax on 7,500 skins; $4,500, three fortieths of the annual rental; and $4,289.50, three fortieths of the full royalty on the skins.
The latter branch of this contention may be dismissed at once as untenable. By the terms of the lease, the per capita of $7.622 for each and every skin was not a part of the annual rental. The lease is explicit that the annual rental is the sum of $60,000, and that in addition the lessee shall pay the rev. enue duty of $2 per skin, and also pay the further sum of this royalty on each and every skin. United States bonds were to be deposited "to secure the prompt payment of the sixty thousand dollars rental above referred to," and "the annual rental, together with all other payments to the United States provided for in this lease," was to be paid on or before the 1st of April of each and every year.
We think the rent reserved as such was this specified ennual rental, and that the per capita payment was in the nature of a bonus in the sense of an addition to the stated consideration.
and to secure the sixty thousand dollars rental
*The Secretary was to lease to the best ad-
it will not kill, or permit to be killed, so far at the time the lease was made it is evident
The next document referring to the matter | nunc pro tunc." On March 10, 1893, a mo-
Office of the
Ordered, that J. J. Johnson is hereby ap-
Official copy furnished Mr. J. J. Johnson.
Without action being had on the excep tions and motions referred to, the administratrix of Bailey, on August 8, 1893, instituted an action at law, numbered 34,564, in the supreme court *of the District of Colum- bia, seeking to recover from the District the sum of $10,519.20, basing the right to such recovery upon the claim that the finding of Mr. Johnson was, in fact, a final decision and award. In the affidavit filed with the declaration, as authorized by the rules of pracUnder this appointment, on February 17. tice of the court, what purports to be a copy 1892, the attorneys for the respective parties of the resolution appointing Mr. Johnson appeared before Mr. Johnson. It was claimed referee is set out, but the words "of the suit" by witnesses for the plaintiff at the trial of are omitted from before the words "of Bailey, the action subsequently brought to enforce administratrix." On September 2, 1893, the finding of the referee, that at the com- pleas were filed on behalf of the District, demencement of the hearing the latter gentle-nying that it had agreed to submit the matman, as well as the attorney for the administers of difference referred to in the declaratratrix, raised the question whether or not tion to the award and arbitrament of Johnunder the order of appointment the decision son, and averring that Johnson had not made of the referee was to be final, and were as an award concerning the same. The various sured by the attorney for the District that steps in the original action (No. 24,279) the decision of Mr. Johnson was to be a final were stated, and it was alleged that motions determination of the case. *Such witnesses to set aside award and for judgment were also testified that subsequently, when a ques- still pending. It was also averred that the tion arose with respect to permitting an alleged award was not under seal and was amended declaration to be filed, setting up a never delivered to the defendant; that the claim for an extra half inch of resurfacing, defendant never undertook and promised in the referee and attorneys discussed as to the manner and form as alleged, and that the whether the decision of the referee "was to District was not indebted as alleged. The wind up finally the whole matter," and plaintiff joined issue. On October 8, 1895, an affirmative conclusion was arrived at. on motion of the plaintiff, the two causes No attempt, however, was made to obtain were consolidated. While the motion to from the commissioners of the District any consolidate was opposed by the District, no modification or amplification of the writing exceptions were taken to the entry of the or of January 11, 1892. der of consolidation.
The hearing before the referee was concluded on July 18, 1892, when Mr. Johnson placed on the files of the supreme court of the District of Columbia in action numbered 24,279 his report as referee. The report did not refer to the mode by which its author had become referee. It was entitled in the cause, purported to contain a synopsis of the pleadings, the plaintiff's claim, a statement of the facts and the findings of "J. J. Johnson, referee." The report concluded as follows:
The consolidated action came on for trial
January 13, 1895. At the trial W. Preston Williamson, a witness for the plaintiff, testified that he had sent to the commissioners the communication of September 16, 1891. Under objection and exception he was permitted to testify to conversations had separately with two of the commissioners, which tended to show that in the event of the appointment of an arbitrator or referee, it was the intention of the commissioners to submit to the individual selected as referee "Upon the evidence and the law I have al- or arbitrator the final determination of the lowed the plaintiff for the unexecuted bal- entire controversy referred to in Williamance of 11,385 square yards, $4,440.15, being son's letter. Also under objection and exthe profit between the cost of resurfacing the ception, the witness testified that after the streets at fifty cents per square yard and order appointing Mr. Johnson referee was sighty-nine cents, the price received, and for made by the commissioners, he and the attorthe extra one-half inch I have allowed the ney for the District, in the presence of the plaintiff $6,079.05 at the contract price, ag- referee, discussed the scope of the submission, gregating the sum of $10,519.20. I do there- *and agreed that the decision of the referee fore find that there is due to the plaintiff was intended by the parties to the controfrom the defendant the sum of $10,519.20, be-versy to be a final disposition of the whole
The referee al30 fixed his fee at $550, which was paid by the administratrix.
On September 23, 1892, exceptions were filed on behalf of the District to this report. Upon the exceptions, the attorney for the plaintiff made the following indorsement: "I consent that these exceptions be filed
matter. The indorsements on the letter of