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should change, and shouted it through a speaking trumpet, he would owe no duty to obey, but would be as free as before to do what he thought best. Then, as to the selection of members, there is no indication of any in the Code, the rules of the board, or the constitution and by-laws of the association. Nothing is said about membership, and the implication is plain that a condition of the association being permitted by the board to exist is that every pilot belongs to it. Probably, while it exists, a pilot scarcely would find it possible to compete from the outside. It is still plainer that the only provision for expulsion is that which would follow upon a pilot's being deprived of his license. The association has
no power over that.
Limitations of actions-threefold damages under antitrust act.
2. The limitation of five years prescribed by U. S. Rev. Stat. § 1047, U. S. Comp. Stat. 1901, p. 727, for any "suit or prosecution for any penalty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States," does not apply to the action for threefold damages for injury to "business or property," authorized by the antitrust act of July 2, 1890, § 7, in cases of violations of that act. Limitation of actions-threefold damages under antitrust act.
3. The ten years limitation prescribed by Tenn. Code, § 2776, for "all other cases not expressly provided for," rather than the one year limitation prescribed by § 2772 for "statute penalties," or the three years limitation prescribed by § 2773 for injuries to personal or real property, governs an action for threefold damages for injury to "business or property" brought under the antitrust act of July 2, 1890, § 7, in which the right of recovery is based on the excessive price for iron water pipe which a municipality was led to pay by reason of an illegal arrangement between the members of a trust or combination formed in violation of that act.
All that there is upon which to base a joint liability is that the pilots, instead of taking their fees as they earn them, accomplish substantially the same result by mingling them in the first place, and then, after paying expenses, distributing them to those on the active list according to the number of days they respectively have been there. Apart from the possible slight difference between the proportion of days on the active list and days of active service, the case is the same as if each pilot kept his fees, merely contributing to keep up a common Argued November 9 and 12, 1906. Decided office from which his bills might be sent out and where a few details of common interest could be attended to. In the latter case
this suit hardly would have been brought.
The distinction between it and the one at bar is not great enough to justify a different result. See The City of Dundee, 47
C. C. A. 581, 108 Fed. 679, 684, 103 Fed.
696. The second and third questions certi
fied are answered "No."
December 3, 1906.
IN ERROR to the United States Circuit
by reason of a violation of the antitrust
The facts are stated in the opinion. Messrs. Frank Spurlock and Foster V. Brown for plaintiffs in error.
Messrs. George Westmoreland, Churchill P. Goree, Linton A. Dean, and J. L. Foust for defendant in error.
Mr. Justice Holmes delivered the opinion of the court:
Monopolies-antitrust act-action for threeThis is an action by the city of Atlanta fold damages. 1. The action for threefold damages for (Georgia) against two Tennessee corporainjury to "business or property" authorized tions, members of the trust or combination by the antitrust act of July 2, 1890 (26 Stat. held unlawful in Addyston Pipe & Steel Co. at L. 209, chap. 647, U. S. Comp. Stat. 1901, v. United States, 175 U. S. 211, 44 L. ed. 136, p. 3202), § 7, in cases of violations of that 20 Sup. Ct. Rep. 38. The object of the suit act, may be maintained by a Georgia munic- is to recover threefold damages for alleged ipal corporation against the foreign corpo- injury to the city in its business or property, rate members of a combination forbidden by under § 7 of the act of July 2, 1890, chap. that act, where the municipality was led, by 647 (26 Stat. at L. 209, U. S. Comp. Stat. reason of the illegal combination, to pur-1901, p. 3202). The alleged injury is the' chase from an Alabama corporation at an excessive price the iron pipe needed for its the city, being engaged in conducting system of waterworks, and wishing to waterworks system.
27 S. C.-5.
money of the plaintiff, which is owned within some particular state. In other words, if Congress had power to make the acts which led to the damage illegal, it could authorize a recovery for the damage, although the latter was suffered wholly within the boundaries of one state. Finally, the fact that the sale was not so connected in its terms with the unlawful combination as to be unlawful (Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. Rep. 431) in no way contradicts the proposition that the motives and inducements to make it were so affected by the combination as to constitute a wrong. In most cases where the result complained of as springing from a tort is a contract, the contract is lawful, and the tort goes only to the motives which led to its being made, as when it is induced by duress or fraud.
iron water pipe, was led, by reason of the illegal arrangements between the members of the trust, to purchase the pipe from the Anniston Pipe & Foundry Company, an Alabama corporation, at a price much above what was reasonable or the pipe was worth. The purchase was made after a simulated competition, at a price fixed by the trust, and embracing a bonus to be divided among the members. The plaintiffs in error demurred to the declaration, and pleaded not guilty, and that the action accrued more than one year and more than three years before the suit was brought, relying upon §§ 2772 and 2773 of the Code of Tennessee, the eastern district of Tennessee being the district in which the suit was brought. The demurrer to the declaration was overruled and the plaintiff had a verdict and judgment in the circuit court. The verdict was for the difference between the price paid and the market or fair price that the city would have had to pay under natural conditions had the combination been out of the way, together with an attorney's fee. The judgment trebled the damages. It was affirmed by the circuit court of appeals, the plaintiffs in error having saved their rights at every stage. The discussions of the law took place before the jury trial was reached. They will be found in 64 L.R.A. 721, 61 C.peat them. Indeed, the proposition hardly C. A. 387, 127 Fed. 23, and 101 Fed. 900. For our purposes it seems unnecessary to state the case at greater length.
The limitation of five years in Rev. Stat. §1047, U. S. Comp. Stat. 1901, p. 727, to any "suit or prosecution for any penalty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States," does not apply. The construction of the phrase "suit for a penalty," and the reasons for that construction, have been stated so fully by this court that it is not necessary to re
U. S. 657, 668, 36 L. ed. 1123, 1128, 13 Sup. is disputed here. Huntington v. Attrill, 146 Ct. Rep. 224; Brady v. Daly, 175 U. S. 148, 155, 156, 44 L. ed. 109, 112, 113, 20 Sup. Ct. Rep. 62.
The facts gave rise to a cause of action under the act of Congress. The city was a person within the meaning of § 7 by the Thus we come to the main question of the express provision of § 8. It was injured in case, namely, which limitation under the its property, at least, if not in its business laws of Tennessee is applicable, the matter of furnishing water, by being led to pay being left to the local law by the silence of more than the worth of the pipe. A person the statutes of the United States. Rev. whose property is diminished by a payment Stat. § 721, U. S. Comp. Stat. 1901, p. 581; of money wrongfully induced is injured in Campbell v. Haverhill, 155 U. S. 610, 39 L. his property. The transaction which did the ed. 280, 15 Sup. Ct. Rep. 217. The material wrong was a transaction between parties in provisions of the Tennessee Code are as foldifferent states, if that be material. The lows: By article 2769 (Shannon, 4466) all fact that the defendants and others had civil actions are to be commenced within the combined with the seller led to the excessive periods prescribed, with immaterial excepcharge, which the seller made in the inter- tions. By article 2772 (Shannon, 4469) est of the trust by arrangement with its actions, among others, for "statute penalmembers, and which the buyer was induced ties, within one year after cause of action to pay by the semblance of competition, accrued." By 2773 (Shannon, 4470) "actions also arranged by the members of the trust. for injuries to personal or real property; One object of the combination was to pre-actions for the detention or conversion of vent other producers than the Anniston Pipe & Foundry Company, the seller, from competing in sales to the plaintiff. There can be no doubt that Congress had power to give an action for damages to an individual who suffers by breach of the law. W. W. Montague & Co. v. Lowry, 193 U. S. 38, 48 L. ed. 608, 24 Sup. Ct. Rep. 307. The dam-peals held that the case did not fall within age complained of must almost or quite always be damage in property, that is, in the
personal property, within three years from the accruing of the cause of action." By 2776 (Shannon, 4473) certain actions enumerated, "and all other cases not expressly provided for, within ten years after the cause of action accrued." The circuit court of ap
2772 or 2773, but only within 2776, and therefore was not barred. Although the
decision is appealed from, as this question | pressly provided for." On the whole case involves the construction of local law, we we agree with the court below. cannot but attribute weight to the opinion of the judge who rendered the judgment, in view of his experience upon the supreme court of Tennessee. And although doubts were raised by the argument, we have come to agree with his interpretation in the main.
The CHIEF JUSTICE and Mr. Justice Peckham dissent.
CITY OF MONTEREY, Plff. in Err.,
Private land claims-state control over pueblo lands.
1. The California legislature could enact the act of April 2, 1866, ratifying conveyances made by the corporate authorities of the city of Monterey of pueblo lands confirmed to that city by the United States and afterwards patented to it, its successors and assigns.
Error to state court-Federal question.
As to the article touching actions for statute penalties, notwithstanding some grounds for distinguishing it from Rev. Stat. § 1047, which were pointed out, so far as this liability under the laws of the United States is concerned we must adhere to the construction of it which we already have adopted. The chief argument relied upon is that this suit is for injury to personal property, and so within article 2773. It was pressed upon us that formerly the limitations addressed themselves to forms of action; that actions upon the case, such as this would have been, were barred in three years, following Stat. 21 Jac. I. chap. 21, § 3, and that when a change was necessitated by the doing away with the old forms of action, it is not to be supposed that the change was intended to affect the substance, or more than the mode of stating the time allowed. Of course, it was argued also that this was an injury to property, within the plain meaning of the words. But we are satisfied, on the whole, and in view of its juxtaposition with detention and conversion, that the phrase has a narrower intent. It Argued and submitted October 16, 1906. Decided December 3, 1906. may be that it has a somewhat broader scope than was intimated below, and that
2. The question whether the California legislature could enact the act of April 2, 1866, ratifying conveyances made by the corporate authorities of the city of Monterey of pueblo lands confirmed to that city by the United States, and afterwards patented to it, its successors and assigns, is not so far unsubstantial as to justify dismissal of a writ of error to a state court.
The facts are stated in the opinion. Mr. Hamilton Gay Howard for plaintiff in error.
Messrs. W. I. Brobeck, John Garber, and Frederic D. McKinney for defendant in er
some wrongs are within it besides physicalN ERROR to the Supreme Court of the State of California to review a judg damage to tangible property. But there is a sufficiently clear distinction between in- ment which affirmed a judgment of the Sujuries to property and "injured in his busi-perior Court of the County of Monterey, in ness or property," the latter being the lan- that state, in favor of defendant in an acguage of the act of Congress. A man is in- tion to quiet title to pueblo lands. Affirmed. See same case below, 139 Cal. 542, 73 Pac. jured in his property when his property is 436. diminished. He would not be said to have suffered an injury to his property unless the harm fell upon some object more definite and less ideal than his total wealth. A trademark, or a trade name, or a title, is property, and is regarded as an object capable of injury in various ways. But when a man is made poorer by an extravagant bill we do not regard his wealth as a unity, or the tort, if there is one, as directed against that unity as an object. We do not go behind the person of the sufferer. We say that he has been defrauded or subjected to duress, or whatever it may be, and stop there. It was urged that the opening article to which we have referred expressed an intention to bar all civil actions, but that hardly helps the construction of any particular article following, since the dragnet at the end, 2776, catches all cases not "ex
Mr. Justice McKenna delivered the opinion of the court:
Action to quiet title, brought by plaintiff in error (and, being plaintiff in the court below, we will so designate it) in the superior court of the county of Monterey to 1,635.03 acres of land, situate in Monterey county, state of California. Plaintiff alleged title in fee simple, and contends that such title has come to it as successor of the pueblo of Monterey of Upper California. There is no dispute that the land was part of the pueblo of Monterey, and that, after
proper proceedings had in pursuance of acts | fendant, David Jacks, and in the conveyof Congress, the title of the city of Monte-ance the proceedings taken by the trustees rey was confirmed by a decree of the in the matter of such sale were recited. board of land commissioners, and a patent This conveyance was recorded in the county issued to the city November 19, 1891.
The defendant gets his title through one D. R. Ashley, who was the attorney for the city, to present and prosecute its claim to the land before the board of land commissioners. To pay the indebtedness incurred for his services the land was sold under the authority of certain acts of the legislature of the state, and purchased by him. The validity of the title so derived, as against the title of the city as successor of the pueblo of Monterey, free from the control of the legislature, makes the question in the case. Judgment passed for the defendant in the trial court and was affirmed by the supreme court. 139 Cal. 542, 73 Pac. 436. This writ of error was then allowed.
The city of Monterey was incorporated by an act of the legislature of the state of California, March 30, 1850, and became thereby successor of the former pueblo to its pueblo lands. In 1857 the charter of the city was amended, and by § 7 thereof the trustees were empowered to pay off the expenses of prosecuting the title of the city before the United States land commissioners and before the United States courts, and for that purpose sell and transfer any property, right, or franchise upon such terms and for such price as might by them be deemed reasonable. It was found by the lower courts (and we quote from the opinion of the supreme court) that
recorder's office of the county of Monterey on June 11, 1859. On April 2, 1866, the act to incorporate the city of Monterey was amended to read as follows: 'Sec. 2. All sales and conveyances made by the corporate authorities of said city since the 8th day of February, 1859, and which conveyances purport to have been recorded in the county recorder's office of Monterey county, purporting to convey public lands, or lands confirmed to said city of Monterey, in pursuance of the act of Congress of March 3, 1851 (9 Stat. at L. 631, chap. 41), and entitled "An Act to Ascertain and Settle the Private Land Claims in the State of California," are hereby ratified and confirmed.' On September 4, 1869, Ashley conveyed all his interest in the land in controversy to the defendant."
The contentions of the parties are in part made to turn upon the kind of right the city of Monterey derived as the successor of the pueblo of Monterey, whether proprietary or in trust, and, because in trust, subject to the disposition of the legislature of the state. This distinction was expressed by the supreme court and the case determined by it, and the court supported its action by a citation of prior decisions. It was said: "There is a marked difference, however, between lands which are held by a municipality in trust for public, municipal purposes, such as pueblo lands, and lands acquired by a municipality through purchase or special grant, and held in proprietary right." Of the latter class it was said: "That it is beyond the power of the stateto control its disposition without the consent of the municipality." In the other case, "the lands, being simply ancillary to the execution of the public trust,-lands in which the pueblo never had an indefeasible proprietary interest, and which were subject to the supreme political dominion of the former Mexican government,--became equally subject to the sovereignty of the state of California through its legislatureupon the change of government."
"On January 24, 1859, said Ashley presented to the trustees of the city of Monterey a claim amounting to $991.50 for services as its attorney in presenting such pueblo claim to the commissioners. The claim was approved and allowed, and there being no funds in the treasury to pay it, the board of trustees passed a resolution directing that a sale of all the pueblo lands of the city, or so much of them as might be necessary to pay the claim of said Ashley, be made at public auction on the 9th day of February, 1859. Due notice of the time for holding said sale was given, and the same was held at the time and in accordance with the no- Plaintiff attacks this conclusion, and contice, at which sale the entire pueblo tract tends that the title to the lands vested, was bid in by the said D. R. Ashley and not in the state of California as succeeding the defendant, David Jacks, for the sum of sovereign, but in the United States, and the $1,002.50, being the amount of the indebted- United States, having the title, passed it by ness and the necessary expenses of sale; the patent of November 19, 1891, to the no one offering to purchase less than the plaintiff. And this contention, plaintiff aswhole, or bid a higher amount. Thereafter serts, presents the Federal question to be said trustees made, executed, and delivered decided. At one time this might have been & conveyance of said lands, dated February regarded as a serious question, but it is 9, 1859, but acknowledged February 12, 1859, no longer so. Whatever of legal power the in favor of said D. R. Ashley and the de-state of California may exercise over its
municipalities has received decisive defini- as shall be, by the lessors, actually real. tion in many decisions. The cases are quot-ized." *
ed by the supreme court in the case at bar. Whatever power the United States may
ber 3, 1906.
exercise, or, by refraining from exercising, Argued October 17, 1906. Decided Decemyield to the state of California to exercise, has long been decisively settled. not review the cases. An exposition of them can be found in United States v. Santa Fe, 165 U. S. 675, 41 L. ed. 874, 17 Sup. Ct. Rep. 472.
If the United States was, as contended, a paramount sovereign, and, as such, possessed the power to direct the trust to which pueblo lands were subject, it did not do so, but conveyed land to the "city of Monterey, its successors and assigns." In other words, the conveyance was made to a municipality of the state of California,-a creature of the laws of the state and subject to the state. Payne v. Treadwell, 16 Cal. 220; San Francisco v. Canavan, 42 Cal. 541. See also Atty. Gen. ex rel. Kies v. Lowrey, 199 U. S. 233, 50 L. ed. 167, 26 Sup. Ct. Rep. 27. And we may observe that the United States, by an act passed June 15, 1906, has designated the city of Monterey as trustee of the original grant, and confirmed the land to the city as patented. 34 Stat. at L. 267. We do not think, however, that the Federal question presented is so far unsubstantial as to justify a dismissal of the
writ of error, and the motion to dismiss is denied.
N ERROR to the United States Circuit Court of Appeals for the First Circuit to review a judgment which affirmed, on a second writ of error, a judgment of the Circuit Court for the District of Massachusetts in favor of defendant in an action for rent. Affirmed.
See same case below, 139 Fed. 5, 71 C. C.
The facts are stated in the opinion.
ion of the court:
This is an action on contract brought in the circuit court of the United States for the district of Massachusetts, for rent alleged to be due under the terms of a lease made by Henry Parkman and others to the Broadway National Bank.
The original lessors sold the land and building leased to the International Trust Company, plaintiff in error. Defendant in error is agent of the shareholders of the Broadway National Bank.
The premises leased were the first floor of the building and the basement under the same, "to be used as the business offices of said corporation and for no other purpose." COMPANY, The lease contained a provision for re-entry upon breach of any covenant. "And thereupon the lessors may, at their discretion, relet the premises, at the risk of the lessee, who shall remain for the residue of said term responsible for the rent herein reserved, and shall be credited with such amounts only as shall be by the lessors actually realized."
JOHN W. WEEKS, Agent of the Shareholders of the Broadway National Bank.
Courts-jurisdiction of circuit court-action to wind up affairs of national bank. 1. An action for rent, brought against the agent for the shareholders of an insolvent national bank to whom the Comptroller of the Currency has released the estate of the bank, is one to wind up the affairs of the bank, and, as such, is within the jurisdiction of a Federal circuit court. Landlord and tenant-rent after re-entryeffort to relet.
2. Rent after re-entry cannot be recovered by the lessors unless a reasonable effort has been made to relet the premises, where the lease provides that after re-entry for breach of any covenant the lessors "may, at their discretion, relet the prem: ises, at the risk of the lessee, who shall remain, for the residue of said term, responsible for the rent herein reserved, and shall be credited with such amounts only
On December 16, 1899, the bank became insolvent, and the Comptroller of the Currency appointed a receiver. On February 15, 1900, the Comptroller released the estate of the bank to defendant in error as the stockholders' agent. Between December 16, 1899, and January 5, 1900, the trust company entered upon the premises and repossessed itself of the same as of its former estate. The receiver occupied the premises for a while, but it was stipulated that such occupation was not to affect the rights of the parties. Defendant in error occupied the premises until May 19, 1900. He contended in defense of the action that upon the termination of the lease it was the duty
*Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, § 763.