« ForrigeFortsett »
The next document referring to the matter | nunc pro tuno." On March 10, 1893, a mo is the following:
tion for judgment was filed on behalf of the
plaintiff. Office of the
Without action being had on the excepCommissioners of the District of Columbia. tions and motions referred to, the adminis. Washington, January 11, 1892. tratrix of Bailey, on August 8, 1893, insti.
tuted an action at law, numbered 34,564, in Ordered, that J. J. Johnson is hereby ap- the supreme court *of the District of Colum-[166) pointed referee in the matter of the suit of bia, seeking to recover from the District the Bailey, Administratrix of Bailey, Deceased, v. sum of $10,519.20, basing the right to such District of Cclumbia.
l'ecovery upon the claim that the finding of Official copy furnished Mr. J. J. Johnson. Mr. Johnson was, in fact, a final decision and By order: W. Tindall, Secretary. award. In the affidavit filed with the dec
laration, 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 inade to obtain were consolidated." While the motion to froin 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 con- The consolidated action came on for trial cluded on July 18, 1892, when Mr. Johnson January 13, 1898. At the trial W. Preston placed on the files of the supreme court of the Williamson, a witness for the plaintiff, tesDistrict of Columbia in action numbered tified that he had sent to the commission24,279 his report as referee. The report did ers the communication of September 16, not refer to the mode by which its author 1891. Under objection and exception he had become referee. It was entitled in the was permitted to testify to conversations cause, purported to contain a synopsis of the had separately with two of the commissionpleadings, the plaintiff's claim, a statement ers, which tended to show that in the event of of the facts and the findings of “J. J. John the appointment of an arbitrator or referee, son, referee.” The report concluded as fol. it was the intention of the commissioners to lows:
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 zighty-nine cenis, 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[1671 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 sides costs."
matter. The indorsements on the letter of The referee al 30 fixed his fee at $550, which Mr. Williamson, the letter of the assistant was paid by the administratrix.
attorney of the District, and other memoOn September 23, 1892, exceptions were randa heretofore set out were put in evidence filed on behalf of the District to this report. on behalf of the plaintiff. Mr. Hazleton, a Upon the exceptions, the attorney for the former attorney for the District, also testiplaintiff made the following ndorsement: fied for the plaintiff, in substance, under ob"I consent that these exceptions be filed "jection and exception, that it was the inten171 U. S.
tion of the commissioners, as he knew from offer made, but it is unnececeary to notice the
J. J. Johnson also testified on behalf of the best thing, the only thing, that could then be plaintiff, under objection and exception, as done, and that he thought it would be simply a to the understanding had with him at the matter of form, and he would have confirmahearing before him as referee, by the counsel tion at once of the award, and that the money for the respective parties, regarding the would be paid; but the District, instead of finality of any decision made by him, and as doing that, violated its agreement; that witto the filing of the amended declaration for ness *did not remember ever consenting to the[1697 the extra half inch oi resurfacing. He tes-filing of exceptions to the award. Now that tified that he filed the report made by him counsel shows him the paper which is the exin court of his own mction, and averred that eption to the award, witness remembers that certain written matter filed with his report he signed the paper conserting that the exwas not a part of the report, and that it did ceptions should be filed nunc pro tunc. Mr. not contain all the evidence, though it con- Richardson came to him and asked him if tained all the oral testimony given before him. he would make any special objection to the
The report was next put in evidence, ob- exceptions being filed; that it ought to be jections being first separately interposed to filed, so that the District might make their its introduction on the grounds: 1, that the objections, and for that purpose he did it, and papers and evidence attached thereto should did not consent to it because he thought it also be put in evidence; and, 2, that the was not final; that there was not a copy of referee was without authority to make an the award served by him on the commisaward. To the overruling of each objection sioners; that Mr. Johnson was their arbitra. the defendant duly excepted.
tor, and it was not for witness to serve them John W. Douglass, one of the commission with a copy.” ers for the district in cffice at the time of the The evidence was then closed. The trial appointment of the referee, testified on be judge granted a request of the defendant that
half of the plaintiff that the intention of the the jury be instructed to render a verdict for 1.68]*commissioners was to make the reference the defendant in the first action, and an excep
final. The evidence for the plaintiff was tion was duly noted on behalf of the adminis.
without authority to agree to submit the After Mr. Ross had concluded his testi- matters in controversy in the case of Ruiley, mony, the record and proceedings in action Adm'r, v. The District of Columbia, at law, No. 24,279 were introduced in evidence on No. 24,279, to the final award of an arbitra. behalf of the defendant. On the settlementtor, but that said commissioners had authorof the bill of exceptions a dispute arose as to ity to agree to refer the case for the award whether the papers attached to the report of and report of a referee, subject to the approv. the referee had been put in evidence by the I al of the court."
ceded that the words "in the United States" | facture, but we may say generally that an should be considered as being incorporated article which can only be used for a particular into the section after the word "manufac purpose, in which the process of manufacture tured." The provision would be senseless stops short of the completed article, can only without this interpolation. The objects of the be said to be partially manufactured within section were evidently not only to build up the meaning of this section; nor can we rean export trade, but to encourage manufac- gard the mere assembling and nailing totures in this country, where such manu-gether of parts complete in themselves and factures are intended for exportation, by destined for a particular purpose as a comgranting a rebate of duties upon the raw or plete and separate manufacture. Thus, prepared materials imported, and thus en- chairs are made of bottoms, backs, legs, and abling the manufacturer to compete in for rounds, each one of these parts being_made eign markets with the same articles manu- separately and in large quantities. If imfactured in other countries. In determining ported in this condition from abroad, and the whether the articles in question were wholly parts were assembled and glued or screwed manufactured in the United States, this ob- together here, we think it entirely clear that ject should be borne steadily in mind. such chairs would not be wholly manuThe primary meaning of the word "manufactured in the United States; and the same facture" is something made by hand, as distinguished from a natural growth; but as machinery has largely supplanted this primitive method, the word is now ordinarily used to denote an article upon the material of which labor has been expended to make the finished product. Ordinarily, the article so manufactured takes a different form, or at least subserves a different purpose from the original materials; and usually it is given a different name. Raw materials may be and often are subjected to successive processes of manufacture, each one of which is complete in itself, but several of which may be required to make the final product. Thus, logs are first manufactured into boards, planks, joists, scantlings, etc., and then by entirely different processes are fashioned into boxes, furniture, doors, window sashes, trimmings, and the thousand and one articles manufactured wholly or in part of wood. The steel spring of a watch is made ultimately from iron ore, but by a large number of processes or transformations, each successive step in which is a distinct process of manufacture, and for which the article so manufactured receives a different name.
The material of which each manufacture is formed, and to which reference is made in [2173019, is not necessarily the original raw material-in this case the tree or log-but the product of a prior manufacture; the finished product of one manufacture thus becoming the material of the next in rank. This case, then, resolves itself into the question whether the materials out of which these boxes were constructed were the boards which were manufactured in Canada or the shooks which were imported into the United States.
may be said of the staves heads, and hoops which constitute a barrel Upon the theory of the claimant, if all the parts which constitute a wooden house were made separately, as they sometimes are, and imported from abroad and put together in this country in the form of a house, it would follow that the house must be said to have been wholly constructed in this country.
It may be said generally, although not universally, that a complete manufacture is either the ultimate product of prior *succes-[218) sive manufactures, such as a watch spring, or a penknife, or an intermediate product which may be used for different purposes, such for instance as pig iron, iron bars, lumber, or cloth; while a partial manufacture is a mere stage in the development of the material toward an ultimate and predestined product, such for instance as the different parts of a watch which need only to be put together to make the finished article. If, for instance, the wheels, chain, springs, dial, hands, and case of a watch were all imported from abroad, and merely put together in this country, we do not think it could be said that the watch was wholly manufactured within the United States. The same remark we think may be made with reference to the shooks in this case, which were practically worthless except for being put together for a box of a definite size.
The distinction here made was alluded to in the opinion of this court in Worthington v. Robbins, 139 U. S. 337 [35: 181], in which the question arose whether "white hard enamel," used for various purposes, including watch dials, was dutiable as "watch materials," or as a simple manufacture. In deivering the opinion of the court Mr. Justice While the planing and cutting of the boards Blatchford said: "The article in question was, in Canada into the requisite lengths and to all intents and purposes, raw material. If shapes for the sides, ends, tops, and bottoms it were to be classed as 'watch materials,' it of the boxes, was doubtless a partial manu- would follow that any metal which could ulfacture, it was not a complete one, since the timately be used, and was ultimately used, boards so cut are not adaptable as material in the manufacture of a watch, but could be for other and different objects of manu- used for other purposes also, would be dutiafacture, but were designed and appropriate ble as 'watch materials.' In order to be only for a particular purpose, i. e., for the 'watch materials' the article must in itself manufacture of boxes of a prescribed size, and bear marks of its special adaptation for use were useless for any other purpose. It is in making watches. The fact that the arnot always easy to determine the difference ticle in question was used in the manufacture between a complete and a partial manu-of watches has no relation to the condition
v. Wilcox, 12 Wend. 503; Green v. Putchen, I their award, and the submission itself implies 13 Wend. 293; Mooers v. Allen, 35 Me. 276, an agreement to abide the result, even if no 58 Am. Dec. 700; Crooker v. Buck, 41 Me. such agreement were expressed." It was be355; Eddings v. Gillespie, 12 Heisk. 548; cause a submission to arbitration had the Jewell v. Blankenship, 10 Yerg. 439; Muck- force of a contract, that at common law a ey v. Pierce, 3 Wis. 307; Cunningham v. submission by a corporation aggregate was Craig, 53 Ill. 252. required to be the act of the corporate body (Russell, Arbitrators, 5th ed. p. 20); which act was of necessity required to be evidenced in a particular manner.
Mr. Justice White delivered the opinion of the court:
The decision of this controversy involves It is true that an executor, at common two propositions. Did the commissioners of law, had the power to submit to an award. the District of Columbia have the power to But this power arose by reason of the full agree to submit the claim in issue to the don.inion which the law gave the executor award of an arbitrator? And if they did or administrator over the assets, and the full have the power, did they lawfully exercise discretion which it vested in him for the setit? To answer either of these questions it be-tlement and liquidation of all claims due to comes essential to ascertain whether an agree- and from the estate. Wheatley v. Martin, ment to submit to arbitration involves the 6 Leigh, 64; Wamsley v. Wamsley, 26 W. Va. power to contract. Both of the matters above 46; Wood v. Tunnicun, 74 N. Y. 43. Whilst, stated depend upon this last inquiry, because however, the agreement of the executor to a both the claim that the District of Columbia common-law submission was binding upon did not in valid form exercise the power to him, such a consent on his part did not prosubmit to arbitration, and the assertion that tect him from being called to an account by if they so did they were not authorized to the beneficiaries of the estate, if the submisthat end, rest on the claim that the submission proved not to be to their advantage, besion was not made in the form *required by cause the submission was a voluntary act of law to constitute a contract, and even if the alleged award was in legal form, nevertheless the District commissioners were without power to contract for that purpose.
the executor and was not the equivalent of
In determining whether an agreement to arbitrate involves the power to contract we eliminate at once from consideration consents to arbitrate made under a rule of court, by "As a general proposition, municipal corconsent, in a pending suit, and shall consider porations have, unless specially restricted, only whether an agreement to arbitrate not the same powers to liquidate claims and inunder rule of court or within the terms of a debtedness that natural persons have, and statute enacted for such purpose is or is not a from that source proceeds power to adjust all contract. We do this, because there is no disputed claims, and when the amount is aspretense in the case at bar that the submis- certained to pay the same as other indebtedsion to arbitration was under a rule of court ness. It would seem to follow therefrom that or equivalent thereto. Indeed, the courts be-a municipal corporation, unless disabled by low held that the submission of the claim in positive law, could submit to arbitration al! question to arbitration was a purely common- unsettled claims with the same liability to law one and not made under a statute or rule perform the award as would rest upon a of court; and in consequence of these views natural person, provided, of course, that such the courts held it to be their duty to make power be exercised by ordinance or resolution the award executory by rendering a judg- of the corporate authorities." ment thereon, on the assumption that the parties, having agreed to a common-law submission, were bound by reason thereof to abide by the award of the arbitrator.
In the early case of Brady v. Mayor, etc. of Brooklyn, 1 Barb. 584, 589, the power of a municipal corporation to submit to arbitration was ascribed to the capacity to contract, The general rule is, "that everyone who is with a liability to pay, and it was held that capable of making a disposition of his prop-corporations have all the powers of ordinary erty, or a release of his right, may make a parties as respects their contracts, except submission to an award; but no one can, who when they are restricted expressly, is either under a natural or civil incapacity by necessary implication. In the case of contracting." Kyd, p. 35; Russell, Arbi- of minor public officials or corporations," trators, p. 14. And Morse, in the opening such as selectmen and school districts, paragraph of his treatise on Arbitration and the power to arbitrate has been clearly Award (p. 3), says: "A submission is a con- rested upon the existence of the right tract." And again, at p. 50: "The submis- to adjust and settle claims of the parsion is the agreement of the parties to refer. ticular character which had been subIt is therefore a contract, and will in general be governed by the law concerning contracts." In Witcher v. Witcher, 49 N. H. 176, the supreme court of New Hampshire said (p. 180): "A submission is a contract between two or more parties, whereby they agree to refer the subject in dispute to others and be bound by
mitted to arbitration. Dix v. Town of Dummerston, 19 Vt. 262; District Township of Walnut v. Rankin, 70 Iowa, 65. Indeed, the proposition that an independent agreement to submit to an award must depend for its validity upon the existence of the right to contract is so elementary that further cita
the owner through mesne conveyance of a large tract of land in the territory of Arizona, known as the Rancho de San Jose de Sonoita; that he had not voluntarily come into the court to seek a consideration of his title; that the title was open to question, and was in fact invalid and void; that the other defendants claimed some interests in the land, and praying that they all might be brought into court and be ruled to answer the petition, set up their titles and have them settled and adjudicated.
In an amended answer the administrator set forth the nature and extent of his title, and prayed that it be inquired into and declared valid. Reply having been filed, the ease came on for trial, which resulted in a decree on March 30, 1894, that the claim for 221 confirmation of title be disallowed *and rejected. The opinion by Associate Justice Sluss contains this general statement of the facts:
the fees and charges required to be paid, and
The conclusion reached was that "the en-
Messrs. Rochester Ford and James C.
John K. Richards, Solicitor General, for ap-
Mr. Justice Brewer delivered the opinion
"In obedience to this order the officer proceeded to make a survey of the tract, which The controversy in this case does not turn was made on the 26th and 27th days of June, upon any defect in the form of the papers. 1821, and on the completion of the survey he | The contentions of the government are that caused it to be appraised, the appraised value the officers who assumed to make the grant being one hundred and five dollars. There-and to execute title papers had no authority upon the proposed sale was advertised for to do so, and upon this ground it was held by thirty consecutive days by proclamation made by a crier appointed for that purpose, beginning on June 29, and ending on the 28th day of July, 1821. Thereupon, on the 31st day of July, 1821, the officer took the testimony of three witnesses to the effect that Herreros had property and means to occupy the tract. On October 20, 1821, the proceedings above mentioned, being reduced to writing, were by the officer returned to the intendente.
"On October 25, 1821, the intendente referred the proceedings to the promoter fiscal for his examination.
"On November 7, 1821, the promoter fiscal reported to the intendente the regularity of the proceedings and recommending that the land be offered for sale at three public auctions, and thereupon the auctions were ordered to be held.
"The first auction was held on November 8, 1821, the second on November 9, and the third on November 10, 1821.
"At the conclusion of the third auction the land was struck off to Herreros at the appraised value by the board of auction, of which board the intendente was a member and the president.
"All these proceedings being concluded, on the 12th day of November, 1821, Herreros paid to the officers of the treasury the amount of tire appraisement, together with
the court of private land claims that the
It appears that the proceedings to acquire
Few cases presented to this court are more perplexing than those involving Mexican grants. The changes in the governing power as well as in the form of government were so frequent, there is so much indefiniteness and lack of precision in the language of the statutes and ordinances, and the modes of procedure were in so many respects essentially different from those to which we are accustomed, that it is often quite difficult to determine whether an alleged grant was