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31, 1852, chap. 108, § 12 (10 Stat. at L. 99). | A master was appointed and testimony was It bears the unusual form of a positive re-taken. At the hearing before him the quirement. “If the decree be against the United States put in the registro, or instruUnited States, an appeal shall be entered to ment of grant, which was in fact the original the Supreme Court of the United States." instrument, although the document of title This is a provision based on a specific policy under Spanish law is a copy delivered to the with regard to a certain class of claims. It grantee, while the registro is retained by the is not a matter of general principle, but a government. It appeared upon inspection special trust. See also act of May 23, 1828, that this instrument had been altered in the chap. 70, $ 9 (4 Stat. at L. 284, 286); May date to January 10, from February 20, 1818, 26, 1824, chap. 173, § 9 (4 Stat. at L. 55). the true date making the grant void under It stands on the same ground of peculiar the treaty. Thereupon the petitioners asked importance that is the foundation of the leave to amend by adding an allegation that express grant of certain direct appeals in the grant was made on February 20, 1818, 5 of the act of 1891. Therefore, without but had been altered so that it purported to considering whether the case at bar falls have been made on January 10. The result within the other exceptions, we are of of this amendment was that, whereas the opinion that the jurisdiction of this court ground of recovery previously had been the given by § 11 of the act of 1860 remains un treaty, now it was that the act of 1860 had changed.
given a right to recover in a case which the The petition was filed on March 3, 1875, treaty put an end to in so many words. It by the heirs of John Forbes. It alleged a abandoned the old ground, and that no grant to John Forbes by the Captain Gen- longer could be relied upon if the amenderal of Cuba, on January 10, 1818; that is, ment was allowed. The amendment, ala grant made in time to escape the 8th arti- though filed, was not formally allowed becle of the treaty with Spain, of February fore the hearing, and after the hearing the 22, 1819 [8 Stat. at L. 258], declaring all United States filed a suggestion that it had such grants made after January 24, 1818, been treated as allowed, and that an order void. On the other hand, it invoked the should be made nunc pro tunc that the earlier part of the same article, by which all amendment had been allowed. Thereupon grants made by the King of Spain or by the order suggested was made, and an adhis lawful authorities, in the territories ditional answer was filed, setting up the ceded to the United States, before January treaty and the limitation in the statutes. 24, were to be confirmed to the same extent We do not perceive that the United States, as if the territories had not been sold. On by its course, lost its right to maintain that December 14, 1878, an amendment was al- the amendment set up a new cause of action, lowed, by which the grant was alleged to which was barred by the limitation fixed by have been made to John Forbes & Company, the statutes on the matter, and it urges a partnership consisting of Forbes, James that defense. Union P. R. Co. v. Wyler, 158 Innerarity, and John Innerarity, and the U. S. 285, 298, 39 L. ed. 983, 991, 15 Sup. Ct. Innerarity heirs were joined as parties. The Rep. 877. rights of the United States, especially under It has been decided that a decree upon a the statute of limitations, were saved, and bill to have a patent declared void as forfeitone question argued is whether this amended under an act of Congress was a bar to a ment could be allowed, when the time for subsequent bill for the same purpose upon bringing suit under the act of 1860 had ex. the different ground that the land was expired. We shall not find it necessary to discepted from the grant as an Indian resercuss this question, and shall assume, for the vation. United States v. California & O. purposes of decision, that the amendment Land Co. 192 U. S. 355, 48 L. ed. 476, 24 Sup. properly was allowed. United States v. Ct. Rep. 266. In that case it was intimated Morant, 123 U. S. 335, 343, 31 L. ed. 171, 173, that in general a judgment is a bar to a 8 Sup. Ct. Rep. 189. We shall assume that second attempt to reach the same result by the proceeding is to establish the claim and a different medium concludendi. But while appropriate the land to it, rather than to such a decision might be persuasive on the determine in detail the present holders of question whether the cause of action is the the claim. See Butler v. Goreley, 146 U. S. same or different for the purposes of 308–310, 36 L. ed. 984, 985, 13 Sup. Ct. Rep. amendment, it has been decided that an 84, 147 Mass. 8, 12, 16 N. E. 734; Pam-to-pee amendment could not be allowed in a Misv. United States, 187 U. S. 371, 379, 380, 47 souri district, changing the ground of reL. ed. 221, 225, 226, 23 Sup. Ct. Rep. 142. covery from the common law to the com
It is unnecessary to trace all the vicissi- mon law as modified by a Kansas statute, tudes of the case or to explain the delays. which did away with the defense that the It is enough for our purposes to say that negligence complained of was that of a felthe parties reached an issue on May 29, 1903. low servant, in actions against railroads.
Union P. R. Co. v. Wyler, 158 U. S. 285, 39 that what was aimed at was the so-called T. ed. 983, 15 Sup. Ct. Rep. 877. In the disputed territory lying west of the river present case the change is a change in the Perdido, of which a short and clear account allegations of fact, and was most material, is to be found in United States v. Lynde, 11 because it necessarily was followed by a Wall. 632, 20 L. ed. 230. In the light of that direct facing about with regard to the law. history and in view of the alternative We shall not dispose of the case on this ground of decision kept open in United ground, but we think it proper to say that States v. Morant, if there are no other posthe difficulties in the way of upholding this sible distinctions between that case and amendment under the last-mentioned de- this, we also shall leave it open whether the cision have not been removed from our intimation in that case is right, or whether minds.
the same justice was more accurate when he The fundamental questions in the case are said, even with regard to grants of land in whether the petitioners are within the act the disputed territory, that the intention of of 1860, and, if they are, whether they are the act was to validate them, “subject, of not met by an exception to which we short-course, to the express exceptions of the ly shall refer. The former we shall not de- treaty of 1819 and the supplementary declacide. The statute by g 1 gave a petition to ration of the King of Spain finally annexed any persons "who claim any lands lying thereto.” United States v. Lynde, 11 Wall. within the states of Florida, Louisiana, or 632, 646, 647, 20 L. ed. 230, 234, 235. See Missouri, by virtue of grant.
ema- McMicken v. United States, 97 U. S. 204, nating from any foreign government, bear- 208, 209, 24 L. ed. 947, 948, 949; United ing date prior to the cession to the United States v. Clamorgan, 101 U. S. 822, 825, 826, States of the territory out of which said 25 L. ed. 836 (“which passed by the Louisistates were formed, or during the period ana purchase,” in 25 L. ed. 836). when any such government claimed sov However it may be as to the question ereignty or had the actual possession of the upon which we have touched, we
are of district or territory in which the lands so opinion that this case “comes within the claimed are situated.” And somewhat purview of the 3d section of this act” (of similar language is used in § 11, allowing 1860) in the words of § 11, in which event a proceeding in the district court. There, the petition is not allowed to be mainhowever, the words apply only in case of a tained. The 3d section provides for a complete grant or concession and separation division of the claims into three classes, from the mass of the public domain prior numbers one and two containing claims to the cession to the United States, “or which ought to be confirmed, number three where such title was created and perfected containing those which ought to be reduring the period while the foreign govern- jected, "Provided, that in no case shall such ments from which it emanated claimed commissioners embrace in said classes numsovereignty over, or had the actual pos- ber one and number two any claim which session of, such territory.”
has been heretofore presented for confirmaThe petitioners rely upon the words of tion before any board of commissioners, or the act and upon United States v. Morant, other public officers acting under authority 123 U. S. 335, 31 L. ed. 171, 8 Sup. Ct. Rep. of Congress, and rejected as being fraudu189. That case involved lands in Florida, lent, or procured or maintained by fraudulying, like the present, east of the river lent or improper means." We are of opinion Perdido, of which the grant was made before that this proviso excludes the petitioners, January 24, 1818, but the survey was not for the reasons which we proceed to state. completed until afterwards. The court, Before the act of 1860 was passed, an act while intimating that such a grant well of May 23, 1828, chap. 70, $ 6 (4 Stat. at L. might have been held to be saved by the | 284, 285), authorized the presentation of treaty, pointed out that the treaty was not certain land claims in Florida to a judge signed until February 22, 1819, or possession of the superior court of West Florida, subtaken until July 1822, and held that the ject to the restrictions of the act of May case was within the act.
26, 1824, chap. 173 (4 Stat. at L. 52). This On the other hand, there must be, and it claim was presented by the Inneraritys for has been intimated that there are, some themselves and the Forbes heirs, and after limits to the generality of the words of the a trial the prayer for confirmation of the statute. Certain large grants were ex- title was "refused and rejected" for the pressly excepted from recognition by the reasons set forth in an opinion which is King of Spain on his ratification of the in the record before us. The general ground treaty. The act was not intended to bring was the unwarranted alteration of the them to life. There is a strong argument registro, which we have mentioned above. that it no more was intended to validate all The judge was careful not to implicate the other grants expressly annulled, but rather public officer, remarking that it would be
unjust, when he was not a party and had In the next place, it is said the claim was no opportunity of defense. He also stated not found to be fraudulent or maintained by that it was not intended to implicate the fraudulent or improper means. With reparties in interest. But he pointed out that gard to this we think that we have said the inducement for an alteration of the enough already. The claim was found to registro a year or two after it was made, be based upon an alteration, the motive for when the time became essential in conse which was pointed out, and to be mainquence of the treaty, was obvious, and as tained by a reliance upon the unlawful plainly intimated that he considered the alteration. The main contention is that the alteration fraudulent, as he could without judge had no jurisdiction to reject the claim saying so in words. He simply avoided on that ground, because, the moment that finding by whom the alteration was made. he decided the true date of the grant to be He quoted the Curia Filipica for the in- after January 24, he fell within a proviso validity of a public instrument which does of the act of May 23, 1828, chap. 70 § 6 (4 not authenticate alterations by a salvado, Stat. at L. 285), which excluded him from and he concluded that the claimants had no taking cognizance of any claims annulled by legal grant prior to January 24, 1818. He the treaty. United States v. Baca, 184 U. relied upon the absence of a salvado, no S. 653, 46 L. ed. 733, 22 Sup. Ct. Rep. 541. doubt, but only as one of the grounds for It appears to us that this argument rests deciding that the alterations were made on too narrow a view of the statutes and of without authority of law, and as leading to what was done. The claim as presented was the further consequence that the instrument within the judge's jurisdiction. He had au. was void.
thority to inquire whether it was so in fact. The United States set up this adjudication The document produced by the petitioner as a bar under the above-mentioned § 3. showed a claim which he could decide upon The petitioners make several replies. In the the merits, for the copy did not disclose the first place they contend that if a decision by alteration. When the registro was put in a judge had been embraced within the pro- it appeared that the date had been altered. viso of g 3, he would not have been referred He still had authority to decide whether the to in a slight, subordinate, and alternative alteration was valid. He decided that it way, under the general head of "other pub- was unlawfully and fraudulently made. It lic officers acting under authority of Con- would be an extraordinary refinement to gress," after the specific mention of "any say that he had authority to decide that it board of commissioners.” The reason seems was made unlawfully, but not to decide why plain enough, however. The whole scheme it was unlawful. The illegality did not folof the earlier acts was that the claims low from the mere fact of alteration. Had should be presented to a board of commis- there been a salvado it might have been sioners. Act of May 8, 1822, chap. 129 (3 valid. He could not come to his conclusion Stat. at L. 709); March 3, 1823, chap. 29 (3 without some definite ground. Stat. at L. 754); February 8, 1827, chap. 9 Moreover, while it is true that the limi. (4 Stat. at L. 202). The right to present a tation in § 6 of the act of 1828 in form proclaim to a judge came in only by way of a vides that the act shall not be taken to late supplement in a limited number of authorize the judge to take cognizance of
Act of May 23, 1828, chap. 70, 6 any claim annulled by the treaty, etc., in (4 Stat. at L. 284, 285). The judges re- substance it is addressed to maintaining the ferred to were judges of a territorial court invalidity of the excluded claims. The established by the acts of March 30, 1822, jurisdiction of the judge was no different chap. 13, § 6 (3 Stat. at L. 654), and March from what it would have been if the pro3, 1823, chap. 28, § 7 (3 Stat. at L. 750). viso had declared that nothing in the act They were not district judges, and there should be taken to validate or to authorize was a certain ambiguity in their standing the recognition of any claim which the which was under discussion when the act treaty declared void. We are of opinion of 1828 was passed, and has been discussed that the judge had authority to find the since. American Ins. Co. v. 356 Bales of claim to be fraudulent and maintained by Cotton, 1 Pet. 511, 7 L. ed. 243; McAllister improper means. v. United States, 141 U. S. 174, 35 L. ed. 693, The decree "rejected” the claim upon the 11 Sup. Ct. Rep. 949. It was most natural grounds which we have stated, and an opinto use cautious words, but there was no ion was expressed that the grant was not other public officer which the act of 1860 is merely annulled by the treaty, but void likely to have had in mind. No further under Spanish law. But the objection reargument seems necessary to justify the mains to be answered that even if "reject” conclusion that these judges were embraced was a proper term for the decree in such a within the actual, as well as the literal, case, and even if the jurisdiction to reject meaning of the words used.
included authority to find that the claim
had been saved from the treaty by fraud, Mr. Justice Holmes delivered the opinion still there was no jurisdiction to pass upon of the court: its validity apart from the treaty, and that, This case comes before us on a certificate therefore, the claim now may be set up from the circuit court of appeals. It is a since the act of 1860 has brought it to life. libel brought by the owners of a steamer The proviso in § 3 of the act of 1860, it may against the members of the Virginia Pilot be said, refers to claims rejected on their Association, and seeks to hold them all merits, when all the merits as admitted by liable for the alleged negligence of Guy, one that act were open. We are of opinion that of their number. For the proceedings in the there is no reason for thus artificially nar- district court see 127 Fed. 228, 135 Fed. 429. rowing words that on their face include all The negligence occurred when Guy was actcases. They include as well any claiming as pilot of the steamer and led to a which previously had been rejected as collision, for which the owners of steamer fraudulent maintained by improper paid damages to the other vessel in order to means, when the fraud addressed itself to end a suit. The questions certified are (1) avoiding the treaty, as when it related to whether the members of the association are some other fact material to the validity of partners on the facts set forth; (2) whether, the claim at the time when it was created. if partners, they are liable to owners of The fraud went to the merits of the case. piloted vessels for the negligence of each For, by the meaning of the act of 1828, as other; (3) whether, if not technically partjust explained, the date of the grant was as ners, they nevertheless are so liable. material to the validity of the claim as The facts appear in the third article of the authority of the Captain General of the libel, which was excepted to, and in Cuba to convey on behalf of the King. answers to interrogatories. They are as fol. Therefore it is our opinion that the claim is lows: The defendants are a voluntary, unbarred by the decree, even if it could escape incorporated association. By their agreefrom the other objections upon which we ment they take turns in boarding vessels rehave found it unnecessary to pass.
quired by law to take a pilot, and the fees, Decree reversed.
which otherwise would be paid to the pilot that boarded the vessel, are paid, except in cases of national vessels and disputed bills,
to the association upon bills made out by FRANK W. GUY, W. T. Stanworth, et al. it, and go into a common fund, from which
the association pays the expenses of the JOHN A. DONALD.
business, including office rent. At the time Pilots—liability for each other's negligence. of the accident the net profits were divided
Members of a voluntary, unincorpo- according to the number of days the several rated pilot association, which, under the pilots were upon the active list. The consti. state laws, could neither select nor dis- tution and by-laws of the association are charge its members, nor control or direct exhibited and will be referred to. It is them in the performance of their duties as proper to add here a few words as to the licensed pilots, whether technically partners Virginia law. By the Code of 1887 a board or not, are not liable to the owners of pilot- of commissioners is instituted to examine ed vessels for the negligence of each other because, instead of taking their fees as they persons applying for branches as pilots; and earn them, such fees go into a common fund, the commissioners are given "full authority and, after deducting expenses, are distribut to make such rules as they may think necesed to the several members according to the sary for the proper government and regunumber of days they respectively were on lation of pilots licensed by them.” § 1955. the active list. *
There are details as to the qualification and [No. 90.]
classification of pilots and their duties, in
cluding a requirement as to boats, of the Argued November 8, 1906. Decided Decem- pilot "or the company to which he belongs." ber 3, 1906.
§ 1960. Acting as pilot without authority
is punished. § 1963. Certain vessels are reON States Circuit Court of Appeals for the services or to pay full pilotage. § 1965.
to Fourth Circuit, presenting questions as to See § 1976. The amount of pilotage is fixed. the liability of members of a pilot associa- $ 1969. A personal liability is imposed for tion for the negligence of each other. the amount, and it is to be noticed that it Answered in the negative.
is a liability to the individual pilot emThe facts are stated in the opinion. ployed. § 1978. The pilot's right to collect
Messrs. D. Tucker Brooke and R. C. his account is fortified by a penalty. § 1979. Marshall for Guy et al.
The board of commissioners is authorized to Mr. Robert M. Hughes for Donald. decide any controversy between licensed
*Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pilots, $ 19.
pilots or between a pilot and the master, but who would have prevented it if they owner, or consignee of a vessel, and to enter could, and who have done what they could judgment, which, if for money, may be col- to prevent it, so far as the qualifications and lected by a sheriff, etc. § 1980. But a judg-employment of the pilot were not taken out ment of suspension against a pilot is limited of their hands by law. Why they should in general to between one and twelve have to pay is the problem recurring through months. § 1981. And the board cannot de-agency in all its forms, and whatever may cide upon the liability of "a pilot” to any be thought of some of the reasons that have party injured by his negligence. § 1982. been offered when the obligation has been Pilots demanding or receiving more or less imposed, it is certain that something more than their lawful fees are subjected to a and better must be found than that the deforfeiture. § 1985. And certain further fendants divide the pay for the work that duties are prescribed.
they have done, or that it is a convenience The rules of the board of commissioners to the party aggrieved to discover a full provide for the appointment by them of a purse to which to resort. supervisory board from the pilot association, Whether the ground be policy or trato report to the president of the board of dition, such a liability is imposed, as we all commissioners all cases of insubordination, know, in many cases. When a man is carrybreach of rules, etc., or any misdemeanor, ing on business in his private interest and afloat or on shore, on the part of any mem- intrusts a part of the work to another, the ber of the association. A pilot desiring to world has agreed to make him answer for go off duty for five days or longer is re- that other as if he had done the work himquired to apply to the board of com- self. But there is always a limitation. It missioners. Suspensions, by whomsoever is true that he is not excused by care in ordered, are to be reported within twenty- selection or orders sufficient to secure right four hours to the president of the board, conduct, if obeyed. But when he could not and are to be acted upon by the board. All select, could not control, and could not dispilots are required to look out for their charge, the guilty man, he does not answer turns, and each pilot is held responsible for for his torts. As a familiar instance, the whatever turn he may hold upon the list, servants of an independent contractor are officers being prohibited from having any not the servants of the contractee. The liathing to do with the swapping of turns. It bility of a vessel when in the hands of a will be seen that the rules of the board, compulsory pilot is not put upon the ground made under the authority of this statute, that the pilot is the agent or servant of the recognize the association, as does the Code, owners, and therefore does not bear upon more vaguely, in 1960, quoted above. The the question. The China (The China v. rules also recognize the substitution of Walsh) 7 Wall. 53, 19 L. ed. 67. Now, we turns for the free competition of which are not curious to inquire what form of test there are traces in the Code. The rules shall be accepted as the most profound for the tacitly assume that every pilot is a member existence of a partnership when considering of the association. All punishment and sus- liability for debts; but it is plain that when pension is in the hands of the board, except, we are considering a liability for torts under as may be added here, that the by-laws of the circumstances supposed no stricter or the association impose a fine of $10 for a different criterion ought to be applied than first violation of the rules of the associa- in those cases where agency is the admitted tion, of $20 for a second offense, and provide ground. The rule, however stated, presses that a third shall be reported to the board of to the verge of general principles of liability. pilot commissioners. Thus substantially the It must not be pressed beyond the point for whole government of the association is in which we can find a rational support. the hands of the board.
So far as appears, the Virginia Pilot AsThe questions certified very properly go sociation had no one of the three powers beyond the question of the existence of a which we have mentioned. Seemingly it partnership. As long as the matter to be could neither select nor discharge its memconsidered is debated in artificial terms bers, as certainly it could not control or there is a danger of being led by a technical direct them in the performance of their definition to apply a certain name, and then duties as pilots. To take the last first, it is to deduce consequences which have no re- quite plain that the Virginia Code conlation to the grounds on which the name templates a bond of mutual personal liawas applied. The substance of the case is bility between the master of a vessel and this: A man who is responsible before the the pilot on board. If we imagine such a law is alleged to have committed a tort. It pilot performing his duties within sight of is proposed to make other men pay for it the assembled association, he still would be who not only have not commanded it or any sole master of his course. If all of his felact of which it was the natural consequence, 'lows passed a vote on the spot that he