that it was supposed that 60,000 seals might by $ 4 of the act of 1870 the character of the be taken annually, and on that basis the per lease was described, and a provision for fur. capita royalty would be the principal com- ther leases was made in § 5, which referred pensation of the government. This made it back to the description in $ * by saying that directly to the interest of the government other leases might be made, “in manner as to allow the largest possible catch, which aforesaid, for other terms of twenty years," was undoubtedly a reason for the offer of When, however, the statutes were revised, the lessee in that form, as tended to induce the first lease had been executed and was great circumspection in prescribing any lim- running, and the words "in manner as aforeitation.

said” were eliminated. The provision for sucOn the other hand, it may be that each cceding leases was made the subject of g seal would cost more as the number taken 1963, and, in declaring what they should be, was less, and that, if the price of skins did not the same language was used as that emkeep up, the company might be subjected to ployed in the original act, whereby the chara loss, no matter how many it took, and the acter of future leases was indicated. loss might be greater the more it took. But *And § 1968, taken from the latter part of[129) that was a risk the company assumed, and no § 5 of the act of 1870, provided for the forreason is perceived for relieving it from the feiture of all the skins "if any person or comconsequences.

pany, under


lease herein authorized, The reduction of what the company agreed knowingly kills, or permits to be killed, any to pay, so far as the per capita was con number of seals exceeding the number for cerned, regulated itself. The smaller the each island in this chapter prescribed.” number of skins, the less the company would It is said that the words “under any lease pay, the larger the number, the more. We herein authorized,” were intended to apply conclude tnat there is no adequate ground to the then penuing lease, and that the purfor holuing that there should be any reduc-pose of the section was to provide for a fortion on the per capita, which necessarily had | feiture against any new lessee who might to be paid.

come in under a lease made on the happening By § 1962 of the Revised Statutes it was i of either of the contingencies mentioned in provided, as it had been by § 3 of the act of $ 1963, as applied to the first lease, but we 1870, that for the period of twenty years from think the operation of the section was not inJuly 1, 1870, the number of fur seals which tended to be thus restrained, and that it remight be killed for their skins on the ferred to any lease authorized under the island of St. Paul was limited to 75,000 per chapter, and applied the forfeiture to the annum, and the number which might be killing of seals in excess of the maximum

killed on the island of St. George to 25,000: number prescribed, which was to remain, if, 128]but *the Secretary of the Treasury might limit when the time arrived for a new bidding, no

the right of killing if it became necessary for change had been made by Congress.
the preservation of such seals, “with such The revision of the statutes was approved
proportionate reduction of the rents reserved June 22, 1574, but by the last section, $5601,
to the government as may be proper.” provision was made that legislation between

By $ 5 of the act of 1870, that at the ex. December 1, 1873, and the date of enactment piration of the first term of twenty years, or should take effect as if passed subsequently. its termination by surrender or forfeiture, Accordingly the act of May 24, 1874, opero other leases might be made "in manner as ated by way of amendment, and by author. a foresaid, for other terms of twenty years;” izing the Secretary to designate the months and by $ 1963 of the Revised Statutes, that, during which seals might be taken and the when the first lease, or any future similar number to be taken on or about each island lease, expired, or was surrendered, forfeited, respectively, removed the restrictions imor terminated the Secretary should again posed by $$ 1960 and 1962 in those regards lease for the term of twenty years.

The next day after the approval of the act, It is argued with great force on behalf of the then Secretary availed himself of it by the governinent that whether reference be entering into an agreement with the com. had to the act of 1870. or to the Revised Stat- pany that the lease of 1870 should be amended utes, the limitation of the inaximum number so as to provide that not more than 90,000 was expressly made only for a period of seals should be killed per annum on the istwenty years from July 1, 1870; that that land of St. Paul, anu not more than 10,000 limitation deterinined with the expiration of on the island of St. George, and that no seals that period, and that consequently the pro- should be killed in any other nonth cxcept vision for a proportionate reduction of rental the months of June, July, August to the 15th, in case of a limitation by the Secretary did September, and October. It seems to us reanot afterwards apply. But, taking the en- sonably clear that the specific restriction as tire legislation into consideration, as we may, to number, whicn, with the other restriction and indeed must, in accordance with well as to the months, it was the object of the settled rules of construction, when interpreta- act to remove, had relation to the distribution results in fairly differing meanings tion *as between the two islands “respective (130) (United States v. Lacher, 134 U. S. 624, 626 ly,” and if it were proper to resort to what [33: 1080, 1082]; Barrett v. United States, passed in Congress no doubt could be enter169 U. S. 218, 227 [42: 723, 726]), we are not tained on the subject. When the bill was persuaded that this position is correct. ported from the committee on commerce no

la giving authority to make the first lease, written report was made, but its purpose and

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scope were explained on behalf of that com. might have been taken without an undue mittee in each house, and those explanations diminution of the seal herds.” And it apdeclared the object to be as above indicated. pears that the United States originally pre

Although the authority conferred as to the sented as part of its case a claim for the retimes of killing and the number to be killed covery of the damages which it and its lessee was continuing and discretionary, and al. had sustained by reason of the limitation to though the company in the present lease cove- 7,500, but this claim was certainly not prenanted that it would not kill in any year a sented as a claim which the company could greater number than was authorized by the maintain against the United States under the Secretary, yet we think it would be going lease, and it involved no question of the power much too far to hold that the original provi- of the Secretary in respect of the lessee under sion for a maximum number, and a propor- the covenants of that instrument. There tionate reduction nf the fixed rental in case was no element of estoppel about the transof a limitation, was done away with by im- action, and counsel had no authority to bind plication.

the government for any other purpose than Repeals where the intention to do so is not the pending cause. expressed are not favored, and moreover, here Moreover, counsel for the United States the mischiefs sought to be remedied are quite were constrained to expressly admit that the obvious. One was that it was evidently evidence failed to establish that an additional thought that seals might properly be taken take over and above the 7,500 could have during the first half of August, and the ex- been safely allowed. In the argument on beisting statute forbade this; the other was, half of the United States, Judge Blodgett, one that the maximum was fixed for each island, of the counsel, and all the counsel concurred, whereas it had probably been ascertained that made this statement: “Frankness requires the distribution was erroneous, or that the us, as we think, to say that the proofs which numbers that might be safely taken on one appear in the counter case of the United or the other might vary, and consequently states as to the condition of the seal herd on that greater elasticity was desirable. The the Pribiloff islands show that the United language by which these objects were at. *States could not have allowed its lessees to[132) tained was entirely reconcilable with the have much, if any, exceeded the number of prior law so far as it did not purport to skins allowed by the modus vivendi of 1892 change it.

without an undue diminution of the seal The legislation from the beginning was di- herd, and upon this branch of the case we rected to the preservation of the fur seals, simply call the attention of the tribunal to and the act of 1870 recognized that it might the proofs, and submit the question to its debe necessary to such preservation that the cision." And later, counsel announced that number to be killed in the different years the United States would not ask the tribunal should be varied, and the discretion to do this for any finding for damages upco and under was vested in the Secretary, but while this article 5. autliority was made more comprehensive Our opinion is, that, assuming ihat the lesby the act of 1874, and a redistribution as be see took all the risk of a catch, reduced by tween the two islands authorized, we cannot natural causes, yet that when the number accept the view that it was the intention by that might be killed was limited by the act that act to wholly change the scheme of leas- of the government or its agent, the Secretary, ing by making the discretion of the Secretary the company was entitled to such reduction purely arbitrary, and dispensing with any on the rental reserved as might be proper, maximum or reduction.

and that the rule to be observed in that re3181) *It should be added that the action of the gard would be a reduction in the same pro

Treasury Department in the matter of the portion as the number of skins permitted to abatement of rent for 1890, 1891, and 1892 be taken bore to the maximum." This would does not impress us as amounting to such de- reduce the annual rental for the year under partmental construction as entitles it to any consideration from $60,000 to $4,500; the tax particular weight, and the views of the De- due would be $15,000, and the per capita $57,partment of Justice were conflicting. 187.50, making a total of $76,687.50.

Reference is made to article 5 of the treaty 2. Laying out of view the concession unof 1892 extending the modus vivendi and the der the first proposition, the company furaction taken under it before the tribunal of ther contended that the prohibition by the arbitration, as if amounting to an estoppel, United States, by agreement with Great or an admission against interest, or at the Britain, of seal killing in excess of 7,500, to be least as having some considerable bearing on taken on the islands for the subsistence of the the construction of the lease and the statutes. natives, relieved the company from its covThat article provided, among other things, enants for the payment of rent and royalty, that “if the result of the arbitration shall be and that no action could be maintained thereto deny the right of British sealers to take for on the lease. seals within the said waters, then compensa- The evidence disclosed that prior to 1890 tion shall be made by Great Britain to the the number of seals annually resorting to United States (for itself, its citizens and les. these islands was rapidly diminishing. This sees) for this agreement to limit the island was attributed to the open sea or pelagic sealcatch to 7,500 a season, upon the basis of the ing, whereby the als, especially the females, difference between this number and such lar- who were exempt from slaughter under the ger catch as in the opinion of the arbitrators I laws of the United States, were interrupted in

their passage to the islands by the crews of hibited and prevented the said company from foreign vessels and were killed in great num- taking any seals whatever from the said bers while in the water. For several years islands during the year 1893, and thus dethe United States, asserting that it had terri. prived the said defendant of the benefit of its torial jurisdiction over Behring sea, had been said lease.” We think this so far partakes of striving to prevent vessels of foreign nations a conclusion of law that we are not shut up to from seal hunting on the open waters thereof. treating it as a finding of fact. The power to Great Britain denied the territorial jurisdic- regulate the seal fisheries in the interest of

tion of the United States and denied that the the preservation of the species was a sovereign [133]United States *had a right of property in the protective power, subject to which the lease

fur seals while on the high seas during their was taken, and if the government found it
progress to or from the islands of St. Paul necessary to exercise that power to the ex.
and St. George, and it became necessary to re- tent which this finding asserts, and if we as.
sort to international regulation to prevent the sume that the company might thereupon have
extermination of the seals. Indeed, it ap-treated this contract as rescinded, it is suffi.
pears that the Treasury agent in charge made cient to say that it took no such position, but
a report to the Secretary of the Treasury af- accepted the performance involved in the de-
ter the season of 1890, in which he strenuous-livery of the 7,500 skins. The company did
ly urged the necessity of stopping sealing for not wish to rescind or abandon, and it could
a number of years absolutely upon the islands not but recognize that, as the modus was en-
as a necessary measure for the preservation tered into in an effort to save the seal race
of the seals. On the 15th of June, 1891, an from extermination, and thereby to pre-
agreement for a modus vivendi was concluded serve something for the future years of the
between the government of the United States lease, the prohibition was so far for its bene-
and the government of Her Britannic Majesty fit
"in relation to the fur seal fisheries in Behring Again, although the government acted in
sea” (27 Stat. at L. 980), whereby with a view making the lease by the hand of the Secre-
to promote the friendly settlement of the tary, it was the real contracting party, ex.
questions between the two governments ercising the power of regulation through the
touching their respective rights in Behring Secretary, so that it was immaterial whether
sea, "and for the preservation of the seal the Secretary on his own judgment or in com-
species," it was agreed that seal killing should pliance with the will of the government con-
be prohibited until the following May, al fined the number of scals taken in the year
together by Great Britain, and by the United 1893 to 7,500.: Undoubtedly the government
States "in excess of seventy-five hundred, to could have directed the Secretary by law to
be taken on the islands for the subsistence restrict the killing to 7,500 seals, and the
and care of the natives." This was followed treaty was nothing more.
by a convention submitting to arbitration the The company could not object that the
questions concerning the jurisdictional rights Secretary was constrained to impose the lim.
of the United States in Behring sea; "the itation, for the Secretary was bound to obey
preservation of the fur 'seal in, or habitually the instructions of his principal, and the com-
resorting to, the said sea," and the right to pany *could not make it the subject of a con-[135]
take such seals, which was proclaimed May test in pais as to whether the preservation
9, 1892 (27 Stat. at L. 947).

of the herd in fact required the limitation.
And under the same date the modus virendi The whole business of taking seals was con-
was renewed during the pendency of the ar- ducted under the supervision of the govern.
bitration. 27 Stat. at L. 952.

ment, and by $ 1973 the Secretary was auThe arbitral tribunal sat in Paris in 1892–thorized to appoint-agents, who were charged 93, and the prohibition covered the killing with the management of the seal fisheries. period for which recovery is sought in this The record shows that instructions were

issued to the government supervising agent The learned circuit judge held that the on. April 26, 1893, and a copy delivered to the limitation under the modus vivendi was not superintendent of the company before the a designation by the Secretary, but was a commencement of the season of that year. prohibition by the government; and, conse. These instructions directed the number quently, that if the lessees had not received of seals to be taken during the season of 1893 any skins the action could not have been to be limited to 7,500. It was stated by the maintained. But he held that as the 7,500 Secretary that it was believed “that if the skins were received by the lessees they must killing be confined between the first of June

make compensation for them; that a proper and the tenth of August, a better quality of (134]way to determine *this was to ascertain what skins would be obtained and less injury

the fair product of the year, which might would be done to the rookeries;" and he
safely be taken, was, and compute what each added: “This matter is, however, left, as
skin would have cost the company, assuming above stated, to your discretion, and in refer-
they had taken that number; and by this cnce thereto you will confer fully with the
mode of computation, having found that representative of the company, its interests
20,000 might properly have been taken, he and those of the government in the preser.
reached the sum of $94,687.50 as the amount vation of the fur seals being identical.”
due to the government.

In the letter of the attorney of the com-
The circuit court found that the United pany of November 15, 1893, he said: “During
States, pursuant to the modus vivendi. "pro-l the present year this company, in strict com-

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pliance with the orders of the Treasury De erred in its disposition of the counterclaim.(137) partment, restricted its catch to 7,500." In *The seal fisheries of the Pribiloff islands other words, it appears that both parties re- a branch of commerce and their garded the Secretary of the Treasury as au- regulation involved the exercise of power as thorizing the taking of 7,500 skins in the a sovereign and not as a mere proprietor. year 1893.

Such governmental powers cannot be contractUnder the law of 1870 and the various sec- ed away, and it is absurd to argue that in this tions of the Revised Statutes the power was instance there was any attempt to do so, or expressly reserved to the government to make any sheer oppression or wrong inflicted on the whatever restrictions of the business it might lessee by the government in the effort to prosee fit to make; the lease recognized this to tect the fur seal from extinction. the full extent; and it was, moreover, ex- The privilege leased was the exclusive pressly stipulated that the company was not right to take fur seal, but it was subject, and to kill or permit to be killed a greater num. expressly subjected, from the beginning, to ber than the Secretary might authorize. The whatever regulations of the business the Unitcompany was offered 7,500 skins for 1893: jed States might make. If those regulations took them; paid the amount fixed by the reduced the catch, the company was protected Secretary under the lease for compensation by a reduction of the rental, and paid taxes to the natives for taking and loading the and per capita only on the number taken. skins, and subsequently tendered the sum oi | The other expenses to which it bound itself $23,789.50 as, according to its computation, were part of the risk of the venture. The

the full amount due under the lease. These catch for 1893 was lawfully limited to 7,500 (136]particular seals *were killed by the govern- and the company accepted and disposed of

ment agent, but notice of the killing, from the skins. It cannot now be heard to in. time to time, was given to the company, and sist that that limitation was in breach of the the company requested to select the skins obligations of the government, for which, it desired, which it did. The government did though still claiming the contract to be out. not regard the lease as broken, but proceeded standing, it is entitled to recover damages. under it, and delivered the 7,500 skins as full The judgment of the Circuit Court is reperformance of the covenant on its part, for versed, and the cause remanded with a directhe privilege of taking the seals was subject tion to enter judgment in favor of the Unitto such limitation on the number as the govo ed States for $76,687.50, with interest from ernment believed it necessary to impose; and the first day of April, 1894; and to enter the company acquiesced in that view by tak- judgment in favor of the United States on the ing the 7,500 skins without dissent.

counterclaim. It was after this that the question arose, pot of breach of contract, but as to what bum, if any, was due from the company under PULLMAN'S PALACE CAR COMPANY/138] the lease more than it had tendered. Was

Appt., the company entitled to a reduction on what it had agreed to pay, and, if so, how CENTRAL TRANSPORTATION COM much?

I'ANY. 3. Finally, the company claims that the United States are liable to it in damages to (See S. C. Reporter's ed. 138-161.) the extent of $287,725 for skins it could have taken during the season of 1893, without un- The right to appealwhen a complainant in reasonable injury to or diminution of the equity may dismiss his suit-prejudice to seal herd, and which the United States pre- defendant-review of motion to disconvented it from doing; and that it can avail

tinue-when leave to discontinue may be itself of this claim in this suit by way of re- denied-cross bill for affirmative reliefcoupment and counterclaim.

property transferred under iliegal conThe circuit court rejected this counter- tract-right to recover-measure of value claim on the ground that the claim had not -value of contracts and patents transbeen presented and disallowed by the ac- ferred-earnings of the property-loss by counting officers of the Treasury, and dis- breaking up of business. missed it, not on the merits, but without prejudice. The company prosecuted its writ of 1., The right to appeal directly to this court

fron the circuit court because of a constitu. error from the circuit court of appeals for the second circuit, and assigned as errors,

NOTE.--ds to what acts and contracts of a among others, that the circuit court erred in corporation are ultra vires; contracts in violaadjudging that its claim for damages was not tion of statute or public policy; executed conduly presented; that the court did not allow tracts; instances; cstoppel or ratification of

trussactions ultra vires,--see note to Central its counterclaim; and that judgment_was Transp. Co. v. Pullman's Palace Car Co. 35: 55. not directed in favor of the company.


As to what laros are void as impairing obli. what we have already said it will have been gation of contracts,-see note to state, Ranger, seen that we are of opinion that the company v. New Orleans, 26 : 132. cannot maintain this claim for damages, and

As to what remedy at laro will prevent rem. that, assuming that the claim had been duly ady in equity,-see note to Tyler v. Savage,

36:83. presented and disallowed, and that, if meri.

A8 to account stated; bar to bill in equity, Torious, it might be availed of by way of re

defenses must be made in original action,--see coupment in this action, the circuit court note to Chappedelaine v. Dechenaus, 2: 629.

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tional question is not waived by taking an

[Nos. 141, 496.) appeal also to the circuit court of appeals. 2 A complainant in an equity suit may gener. Argued March 24, 25, 1898. Decided May 31, ally dismiss his bill at any time before the hearing; but leave to dismiss a bill is not

1898. granted where, beyoud the annoyance of a second litigation upon the subject-matter, such action would be manifestly prejudicial

APPEAL from a judgment of the Circuit to the defendant.

Court of the United States for the Eastern 3. Legal prejudice to defendant to authorize a District of Pennsylvania and also on certiodenial of a motion by plaintiff to discontinue rari to the United States Circuit Court of Apmust be other than the mere prospect of peals for the Third Circuit to review a judg. future litigation.

ment of the Circuit Court in favor of the 4. The decision of a motion for leave to dis- Central Transportation Company against the continue will not be reviewed in this court ex. Pullman's Palace Car Company, for the sum cept for abuse of the discretion of the court, of $4,235,044, for the value of certain property or an obvious violation of a fundamental rule which was leased by the Central Transporta. of a court of equity.

tion Company to the Palace Car Company by 6. Leave to discontinue a suit in equity to re- an ultra vires lease, and which was to be restrain bringing suits for rent, alleging an elec- turned or paid for by the latter company; tion to terminate the lease by virtue of its provisions and that the lease was ultra vires,

Reversed, and case remitted to the United and offering to do what is equitable and right States Circuit Count for the Eastern District for the property demised, and asking the

of Pennsyivania with directions to enter a court to decree the compensation or relief to judgment for the Central Transportation be made, is properly denied after the lease Company in accordance with the opinion. has been held void in another case, and after

See same case, 139 U. S. 24 [35: 55), also an injunction has been granted against recov.

same case below, 39 U. S. App. 307, 76 Fed. ering rent and testimony has been taken on the issues involved in the suit, when defend. Rep. 401, 22 C. Ć. A. 246. ant opposes such discontinuance and asks leave to file a cross bill to avail itself of the Statement by Mr. Justice Peckham: tenders made in the original bill.

The record in this case shows that in 1870 6. A cross bill for affirmative rellef 18 properly the Central Transportation Company, hereallowed to be filed by defendant for the re- after called the Central Company, was a corturn of property delivered under an illegal poration which had been in 1862 incorporated lease and to determine the liability of the under the general manufacturing laws of the complaicant, where he has alleged an election to terminate the lease, and also alleged its in- state of Pennsylvania. It was engaged in validity and offered to do what the court the business of operating railway sleeping should decree to be just.

cars and of hiring them to railroad companies 7. The right to a recovery of property trans- under written contracts by which the cars

ferred under an illegal contract is founded were to be used by the railroad companies upon the implied promise to return or make for the purpose of furnishing sleeping con. compensation for it.

veniences to travelers. The corporation at 8. The right to recover property delivered on this time had contracts with a number of dif. der an illegal contract rests upon a disaffirm- ferent railroad companies in the east, princiance of the contract, and is permitted only to pally, but not exclusively, with what is do justice to the party who has thus deliv. known as the Pennsylvania Railroad system, ered it.

and it had been engaged in its business with 9. The market value of the stock of a corpora: those companies for some time prior to 1870. tion is uot a proper measure of the value of its property transferred by an ultra vires In the year last named the Pullman's Palace lease, and which must be returned or paid Car Company, hereafter called the Pullman for.

Company, was a corporation which had been 10. The value of contracts with third parties, incorporated under the laws of the state of

or of patents owned by a company when it Illinois. It was doing the same general kind transfers its property under an ultra vires of business in the west that the Central Comlease, and which bave expired when the oblipany was doing in the east. For reasons not gation to restore the property or make com material to detail, the two companies entered pensation therefor is enforced, cannot be con into an agreement of lease, which was exesidered in determining the value of such prop cuted February 17, 1870. erty, when payment for the use of such pat. ents and contracts for the time they were

By its terms the Central Company leased used was included in the rept paid, and they to the Pullman Company its entire plant and bad become valueless at the time of their personal property, together with its contracts expiration.

which it had with railroad companies for the 11. The earnings of property transferred under use of its sleeping cars on their roads, and

an ultra vires lease cannot be included in the also the patents belonging to it. The lease compensation to be paid the lessor in lieu of was to run for ninety-nine years, which was the property on disafirmance of the contract. the duration of the charter of the Central 12. The loss sustained by the lessor in an ultra Company. vires lease on account of the breaking up of

It was also agreed that the Central Comits business and the loss of contracts witb third persons when the lense is repudiated pany would not engage in the business of cannot be recovered as part of its relief, ou manufacturing, using, or hiring sleeping carg recovering compensation for the property while the contract remained in force. transferred and not restored.

In consideration of these various obliga

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