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repealed nor the right of recovery barred by the Appropriation Act of July 12, 1870.

2. A sexton at Arlington Cemetery is not within the words of the Joint Resolution, nor a plate printer, working under a contract.

[Nos. 733-746.]

same or higher rates than was paid by private individuals or corporations for the same work. Messrs. N. P. Čhipman, A. A. Hosmer, C. P. Culver and J. Daniels, for claimants. Messrs. G. H. Williams, Atty. Gen., and John Goforth, Asst. to Atty. Gen., for the United

Argued Apr. 22, 1874. Decided May 4, 1874. States.

APPEALS from the Court of Claims.

The general nature of these cases is explained in the opinion.

Thomas Fugitt was employed as a machinist in the Navy Yard at Washington, D. C., upon daily wages, at the agreed sum and price of $3.25 per day.

J. D. Townley was employed as copper-smith on the Treasury extension, upon daily wages. He was employed and paid at the highest market price then paid by private parties for similar services. Under specific appropriation for the construction of the Treasury extension, contracts were entered into for finished work, comprehending both materials and labor; materials separately, and labor by the day separately. The services claimed were rendered

under the latter contract.

John Cullen was a watchman upon the capitol extension at daily wages, and was employed and paid at the highest market price then paid by private parties for similar services. His compensation changed during the year.

Charles Wood was employed as a laborer upon monthly wages in the Quartermaster's Department in the City of Washington.

Timothy Craven was employed in the Treasury extension as a laborer upon daily wages.

John Wild was employed by the authority of the Surgeon-General of the Army, as a carpenter at the depot for receiving and distributing medical supplies in Washington.

John Donnelly was employed as a watchman, laborer and teamster, by the Quartermaster's Department at the City of Washington.

Ó. H. O. Hoffman was employed by one of the Quartermasters on duty in the Department at Washington.

The facts in the case of Patrick Welsh are the same as in the case of J. D. Townley. James Hannan was employed as a laborer by the Commissary Department at Washington. Thomas Durkin was employed as a laborer upon daily wages at the Washington Arsenal, by General George D. Ramsey.

Mr. Justice Clifford delivered the opinion of the court:

Additional compensation is claimed by the respective appellants, as employees in the civil service of the United States in the city, by virtue of the Joint Resolution of the 28th of February, 1867, which provides that twenty per cent. additional compensation shall be allowed and paid to certain classes of such employees in Washington, as therein designated.

Civil officers, whose annual salaries do not exceed $3,500, and all clerks, whether temporary or permanent, and messengers and watchmen, are specifically named in the Resolution, *including enlisted men detailed as such, [*184 and the provision is that the additional allowance shall be computed upon the gross amount of the compensation received by such employee as fixed by law, or where no salary is fixed by law, upon the pay of the employee for that fiscal year, and that the benefit of the Resolution shall extend to employees, male and female, in the executive mansion and in any of the following named departments, or any bureau or division thereof, to wit: state, treasury, war, navy, interior, post-office, attorney-general, and agricultural and including civil officers and all clerks and employees, male and female, in the offices of the coast survey, naval observatory, navy yard, arsenal, paymaster-general, bureau of refugees, freedmen and abandoned lands, quartermasters, capitol and treasury extension, city postoffice, and commissioner of public buildings; to the photographer and assistant photographer of the Treasury Department, to the superintendent of meters, and to lamp-lighters under the commissioner of public buildings.

Judgments rendered by the Court of Claims, involving controversies of a like character, were removed into this court by appeal on a former occasion, when it became the duty of this court to examine the Joint Resolution in question and to determine what, in the judgment of the court, is its actual scope and true intent and meaning, as applied to the several cases then

The facts in the case of John Smith are the before the court. same as in the case of John Donnelly.

Maurice Tucker was employed in the secret service division of the Treasury Department in the capacity of detective, and at a monthly salary of $150.

George A. Bell was a plate printer, in the bureau of Printing and Engraving in the Treasury Department. He was paid the market price for his work, the price being neither a salary nor a per diem compensation, but a fixed rate for the work done. In the performance of his duties he employed and paid an assistant, but the pay of the assistant was received directly by her from the disbursing officers of the Treasury and was deducted by them from the amount earned by claimant. The amount paid to him after such deduction was $1,184.30, for 20 per cent. of which the court below entered judgment.

Each of the above employees was paid at the

Attempt was then made in argument to convince the court that the words of the Resolution, "in the civil service of the United States," as there employed, should be restricted to persons filling offices or holding appointments established by law, but the court rejected that narrow construction of the phrase and unanimously decided that neither a commission nor a warrant of appointment is necessary to entitle an employee to the benefits of the Joint Resolution, provided he was actually and properly employed in the executive mansion, or in any of the departments, or in any bureau or division thereof, or in any of the offices specifically *desig- [*185 nated in the said Joint Resolution; that persons so employed here are properly to be regarded as employees in the civil service of the United States within the true intent and meaning of that phrase as there used, if they were employed 'by the head of the department, or of the bureau

or any division of the department, charged with that duty and authorized to make such contracts and fix the compensation of the person or persons employed, even though the particular employment may not be designated in an appropriation Act. Twenty Per Cent Cases, 13 Wall., 576, 20 L. ed., 708.

Such was the unanimous opinion of the court as to the true construction of the Joint Resolution under consideration on that occasion, and the court, with equal unanimity, adheres to that conclusion in the cases before the court. Many persons, not employed as clerks or messengers of a department, are in the public service by virtue of an employment by the head of a department, or by the head of some bureau of a department or division thereof authorized to make such contracts, and such persons are as much in the civil service of the United States, within the meaning of the Joint Resolution, as the clerks and messengers employed in the rooms of the department building. U. S. v. Belew, 2 Brock., 280; Graham v. U. S., 1 Nott & H., 380; Com. v. Sutherland, 3 Serg. & R., 149. Much discussion of that topic, however, is unnecessary, as the question was explicitly determined in our former decision, to which reference is made for a full exposition of the present views of the court upon that subject.

Grant all that; still it is insisted that the Joint Resolution has been repealed since that decision was made, and that the effect of the repealing Act is to bar the right of recovery in all of the cases under consideration; in support of which proposition reference is made to the 4th section of the Appropriation Act of the 12th of July, 1870, 16 Stat. at L., 250, which enacts that all Acts and Joint Resolutions or parts thereof, and all Resolutions of either House of Congress granting extra compensation 186*] *or pay, be, and the same are hereby repealed, to take effect on the first day of July in the same year.

Two propositions are submitted by the United States, based upon that repealing Act to show that the respective appellants in these cases cannot recover: (1) That the repeal of the Joint Resolution prevents the officers of the treasury from paying the additional compensation after the date of its passage. (2) That the repealing Act, even if the Resolution created in implied contract and gave jurisdiction to the Court of Claims to enforce it. devested the Court of Claims of all jurisdiction in such controversies. Both of the propositions, as it seems to the court, overlook the material facts of the case, all of which are undisputed. They are as follows: (1) That the Joint Resolution ceased to be operative at the end of the fiscal year in which it was enacted. (2) That such additional compensation is allowed only for that year. (3) That the claims in these cases are only for such additional compensation during that fiscal year. (4) That the Joint Resolution ceased to be operative at the close of that fiscal year. (5) That the right to such additional compensation became fixed and vested when the year's services were faithfully performed. (6) That the repeal ing Act, which it is supposed constitutes a bar to the cause of action in these cases, did not become a law until more than three years after the right to the additional compensation had

become fixed and vested, and the Joint Resolution had ceased to be operative in respect to prospective services.

Viewed in the light of these suggestions grave doubts arise whether the repealing Act in question applies at all to the Joint Resolution, as it is difficult to believe that Congress would deem it necessary to repeal a provision which had expired by its own limitation more than three years before they acted upon the subject.

Mere supererogation, however, it is said, can not properly be imputed to the National Legis lature; and there would be *much force [*187 in the suggestion if the Joint Resolution had at that time been in operation and had been the only provision of the kind to which the descriptive words of the repealing Act would apply, but the fact is plainly otherwise, as there are several Acts of corresponding import which were in full force at that date and which, it must be admitted, are unquestionably included within those descriptive words. 12 Stat. at L., 587; 14 Stat. at L., 206; 15 Stat. at L., 77.

Enough appears in the repealing Act itself to show that Congress did not intend to give it any retroactive effect, except as therein provided, as the Act expressly enacts that the provision in question shall take effect on the first day of July next before the day it was approved, which affords a demonstration that Congress never intended that it should retroact to any other or greater extent. 16 Stat. at L., 250.

Courts of justice agree that no statute, however positive in its terms, is to be construed as designed to interfere with existing contracts, rights of actions, or with vested rights, unless the intention that it shall so operate is expressly declared or is to be necessarily implied, and pursuant to that rule courts will apply new statutes only to future cases, unless there is something in the nature of the case or in the language of the new provision which shows that they were intended to have a retroactive operation. Even though the words of a statute are broad enough in their literal extent to comprehend existing cases, they must yet be construed as applicable only to cases that may hereafter arise, unless the language employed expresses a contrary intention in unequivocal terms. Pott. Dwar., 161; Wood v. Oakley, 11 Paige, 403; Butler v. Palmer, 1 Hill., 325; Jarvis v. Jarvis, Edw., 466; McEwen v. Den, 24 How., 242, 16 L. ed., 672; Harvey v. Tyler, 2 Wall., 329, 17 L. ed., 871; Blanchard v. Sprague, 3 Sumn., 535; U. S. v. Heth, 3 Cranch, 399.

Such a law, if passed by a State, and construed to have the effect claimed for it in this case by the appellants, would be unconstitutional and void; but it is not necessary to discuss any such proposition in this case, as there is not a word in the repealing Act to support the conclusion that Congress intended [*188 to rescind any antecedent contract, or to enact any bar to the right of recovery in such cases where the service had been faithfully performed before the repealing Act was passed.

Apply those rules to the cases before the court and it is clear the appellees in the first twelve are entitled to recover, as the finding of the court below shows that the claimant in each of those cases is included within the Joint Resolution as construed and defined by this court.

States for the Northern District of Illinois. The plaintiffs in error doing business as distillers in Chicago by the name and style of H. J. Pahlman & Co., filed their declarations in assumpsit in the Circuit Court of Cook County, Illinois, against the defendant as Collector of Internal Revenue in said district, for the recovery of certain sums of money illegally assessed upon them as such distillers, and collected of them under protest by defendant.

But the other two claimants, to wit: United | IN ERROR to the Circuit Court of the United States v. O. H. O. Hoffman and U. S. v. George A. Bell, are not entitled to recover, the former because he was employed as sexton at the Arlington Cemetery, in the State of Virginia, and not "in Washington," and, consequently, his claim is not within the words of the Joint Resolution. Nor was the latter, in the civil service of the United States within the meaning of that provision, as he was a plate printer working under a contract at an agreed rate "per one hundred sheets of face printing and per one hundred sheets of back printing." He employed an assistant, for whose compensation he was responsible; but the finding of the subordinate court shows that the assistant was paid directly by the disbursing officer, and that the sum thus paid was deducted from the gross earnings of the claimant. Suffice it to say that the claimant was a contractor, and that he employed another to do most or all of the work, and in the judgment of the court such a contractor is not entitled to the additional compensation allowed and directed to be paid by the Joint Resolution under consideration.

Judgment affirmed in the twelve cases first named. Judgment reversed in the two cases last named, and the causes remanded, with directions to dismiss the respective petitions.

Mr. Justice Swayne, dissenting:

I dissent from the judgment of the court in 189*] these cases in *favor of the claimants, and will give my views as briefly as may be. When the Resolution giving the twenty per cent. was passed nearly eight months of the year to which the allowance related had elapsed. The allowance was a mere gratuity. Hence there was no vested right arising from the Resolution and there could be none. But the Resolution was operative in each case until the claimant was paid. When repealed, the gratuity which it gave fell with it. The repeal necessarily had that effect. I see no reason for giving the repealing section a more limited construction. It was intended to take away from all those who had not then been paid, the right to be paid thereafter. I think, therefore, that the judgments of the Court of Claims should be reversed. I am authorized to say that Mr. Chief Justice Chase and Mr. Justice Davis concur in this opinion.

HERMAN J. PAHLMAN et al., Plffs. in Err.,

V.

HERMAN RASTER.

On petition of defendant, the cause was removed from the Circuit Court of Cook County to the Circuit Court of the United States for the Northern District of Illinois. On hearing the argument upon the demurrer to the declaration, the circuit court sustained the demurrer, and rendered judgment for costs against the plaintiffs; and they now prosecute a writ of error on the judgment out of this court.

The case further appears in the opinion. Messrs. Walter B. Scates and Whitney, for plaintiffs in error:

1. The law taxes the capacity of our distillery to mash and ferment grain.

2. The time which each distiller will take to ferment, he is allowed and required to determine for himself before he commences operating, and to strictly abide by the same.

3. The corollary is therefore obvious, as we think, that the law taxed the capacity of our distillery to mash and ferment grain according to the mode and time of fermentation provided for by the law and naturally used, and not according to a mode and time of fermentation contrary and repugnant to the law, and not used at all.

4. If the Commissioner's action in prescribing a fermenting period is proper, then the provision of section 6, as to distiller's notice of time of fermenting, and the action of Congress in making such a provision, are utterly incompre

hensible.

5. As between the distiller's notice as to length of fermenting period, and the survey of the Assessor on the same subject, the latter is conclusive while it remains, and this only upon the assumption of its truth; but when the distiller's notice is admitted to be true, and the Assessor's survey to be false, the truth should prevail over the acknowledged error in all courts of justice.

6. By the face of the record the tax which we claim a refunding of, was erroneous and illegal.

7. While the law might have given authority to the Commissioner to order the assessment of this tax as it is now claimed, in which case it might have been within the limits of constitu

(See 8. C., "Pahlman v. The Collector," 20 Wall., tional power and hence proper, yet Congress

189-201.)

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Submitted Apr. 13, 1874. Decided May 4, 1874.

did not confer this power; hence its exercise was unauthorized and void.

8. And redress for this invasion of a citizen's rights is by express law denied to all other authority, and expressly confided to the U. S.

courts.

Messrs. Geo. H. Williams, Atty. Gen., and S. F. Phillips, Solicitor Gen., for defendant in error.

Mr. Justice Strong delivered the opinion of the court:

In pursuance of a stipulation of the parties,

the common counts, which the declaration originally contained, had been stricken out, and the only issue for determination, therefore, is that presented by a demurrer to the special counts. These are substantially alike, and the demurrer to them raises the question whether, under the Act of Congress of July 20, 1868, entitled "An Act Imposing Taxes on Distilled Spirits and Tobacco and for Other Purposes," 15 Stat. at L., 125, the Assessor and his assistant, in estimating the true producing capacity of the distillery, are empowered to fix, as the true fermenting period, any other than that which the distiller in his notice to the Assessor, required by the 6th section, has declared he would use for fermentation, and which he actually did use.

may direct the Assessor to make another survey. Thus a measure of taxation is fixed, and the distiller is notified of it before he commences distilling. The section also enacts that if at any time the Commissioner shall be satisfied that such report of the capacity of a distillery is in any respect incorrect or needs revision, he may direct the Assessor to make another survey. All this leaves no doubt that the reported survey was intended by Congress to be conclusive until corrected by direction of the Commissioner.

On or about the 1st of August, 1870, the plaintiffs, intending to engage in the business of distilling alcohol from grain, gave notice to the Assessor, as required in that section, among other things, that they would ferment each tub of mash or beer used by them in the manufacture of alcohol for the period of seventy-two hours. But when, afterwards, the Assessor and his skilled assistant estimated and determined the producing capacity of the distillery, pursu-hension of the statute. The 6th section requires ant to the directions of the 10th section of the Act, the capacity was determined by assuming the period of fermentation to be forty-eight hours. This assumption was made in accordance with the regulations prescribed by the Commissioner of Internal Revenue, and the tax, of which the plaintiffs in error complain, was assessed and collected according to the survey thus made.

That the producing capacity of a distillery is conclusively determined by the survey and estimate made under the 10th section of the Act, 15 Stat. at L., 129 (that survey, however, being subject to revision by the Commissioner of Internal Revenue), was ruled in Collector v. Beggs, 17 Wall., 182, 21 L. ed., 624. In that case we said "the survey and estimate of producing capacity made under the 10th section were conclusive while they remained, though subject to revision under the direction of the Commissioner of Internal Revenue. And the extent of liability to taxation was, by the Act of Congress, directed to be measured, not by the actual product of spirits, but by what should have been the product of the materials used according to the estimate made under the 10th section." And this is very plainly the intention of the law; for by that section, the only one which expressly provides for the ascertainment of the producing capacity, it was made the duty of the Assessor, with the aid of some competent and skillful person to be designated by the Commissioner of Internal Revenue, to make survey of each distillery registered, or intended to be registered, for the production of spirits in his district, not only to estimate, but to determine its producing capacity. Of this estimate and determination the Assessor and his assistant are required to make a written report in triplicate, signed by them, one original of which is to be furnished to the distiller; one retained by the Assessor; and the third is to 198*] be transmitted to the Commissioner of Internal Revenue. It is also provided that if the Commissioner shall at any time be satisfied that such report of the capacity of a distillery is in any respect incorrect, or needs revision, he

But while this is not denied by the plaintiffs in error as a general proposition, it is insisted that in estimating and determining the producing capacity of the distillery, the Assessor must be controlled by the notice which the distiller is required to give him by the 6th section of the Act, and must base his calculations upon the period of fermentation fixed in that notice. It is said he has no power to adopt any other period of fermentation, even though ordered to do so by the Commissioner and, if he does, that his estimate and determination are not conclusive. In this objection we cannot concur. It is founded, we think, upon a misappreevery person engaged in or intending to be engaged in the business of a distiller or rectifier, to give notice in writing to the Assessor of the district within which he proposes to carry on the business, stating therein his name, his as sociates, if any, and his proposed place of business. If he be a distiller, he is required to state in his notice the kind of stills and the cubic contents thereof, the number and kind of boilers, the number of mash-tubs and fermenting-tubs and the cubic contents of each tub, the number of receiving cisterns and the cubic contents of each cistern, together with a particular description of the lot or tract of land on which the distillery is situated, with the size and description of the buildings thereon, and of what material constructed. The distiller is also required to state in his notice the number of hours in which he will ferment each tub of mash or beer; and the estimated quantity of distilled spirits which the apparatus is capable of distilling every twenty-four hours.

*The object of these requirements is [*199 too plain to be misunderstood. Clearly it is not to enable the distiller to determine for himself the producing capacity of his distillery, and thereby partially fix the extent of his liability to taxation. It is to furnish protection against frauds, and possibly to assist in the ascertainment of the quantity of spirits actually distilled. If intended at all to bear upon the estimate of the producing capacity of the distillery, it can only be regarded as suggestive, not as controlling. It is after this notice has been given that the Assessor and his skilled assistant are required as by the 10th section of the Act, to make an estimate and determination of the producing capacity. They are no more required to take the fermenting period designated in the notice as the true fermenting period than they are controlled by the distiller's statement of the number and cubical contents of the stills, mash-tubs, and cisterns he intends to use; or by his estimate of the capability of his apparatus. They are required to calculate and report what the distillery can produce, not what the distiller proposes to pro

pacity, and not what the distillery will produce in the distiller's proposed mode of running it. There is, therefore, no well founded objection to the conclusiveness of the survey in this case, and as the tax assessed and collected was in accordance with the survey, the plaintiffs have no right of action to recover it back.

Nor is there any such hardship as is suggested. We have seen that a report of the surveyor's determination of producing capacity is by the law required to be placed in the hands of the distiller before he commences business. If dissatisfied with it, he may apply to the Commissioner for another survey. He is thus Informed of the extent of his liability to taxation. He has, therefore, little reason to complain; when he commences distilling, and does not produce at least eighty per cent. of what his distillery can produce, as determined by the survey, if he is taxed according to a standard which is not false, and of which he had thus early notice.

The judgment of the Circuit Court is affirmed.

NEILL MCPHAUL, Plff. in Err.,

duce, or what the apparatus would produce if | mine *and report the true actual ca- [*201 employed in a particular manner. To enable them to discharge this duty the provisions of the 9th section were enacted. That section requires the distiller to furnish to the Assessor an accurate plan of the distillery and distilling apparatus, showing the location and mode of construction of the apparatus and the cubical contents of each vessel. Undoubtedly, the main elements necessary for a determination of the producing capacity are the size of the stills, mash-tubs and cisterns, and the duration of the fermenting period. There is, unquestionably, in the nature of things, a true fermenting period, dependent on the operation of natural processes, a period which may be variant from that selected by a distiller. This period may vary somewhat in different latitudes, but it is everywhere ascertainable, and the Commissioner, we think, is authorized by the 2d section of the Act to prescribe regulations for ascertaining it. By that section he is authorized to adopt and prescribe for use such hydrometers, saccharometers, weighing and gauging instru200*] ments, meters, or other means for ascertaining the quantity, gravity and productive capacity of any mash, wort or beer used or to be used in the production of distilled spirits, as he may deem necessary. This is inconsistent with the idea that the notice of the distiller is to determine the producing capacity. And though in his notice he is required to state the time in which he will ferment his mash, and also an estimate of the quantity of distilled spirits which the apparatus is capable of distilling every twenty-four hours, that is his estimate. Nowhere in the Act is any provision made that his statement and estimate shall be obligatory upon the Assessor and his skilled assistant. Nor is there to be found in the Act any rule by which the producing capacity of a distillery is to be determined, except that the Commissioner of Internal Revenue is, by the 2d and 103d sections, empowered to make necessary regulations. The declaration shows that such regulations were made, and they were followed by the Assessor. The survey was made accordingly. If instead of following the instructions given by the Commissioner, the Assessor must adopt a period for fermentation given to him by the distiller-a period which may or may not be a true one; that is, the period within which complete fermentation takes place it is obvious there can be no

certainty in the ascertainment and determina

tion of the actual producing capacity of the distillery, and the object which the law has in view will be defeated. At most, all the Assessor and his assistant can do will be to ascertain the actual product. The possible product cannot be ascertained; yet, as we have had occasion to say heretofore, when giving a construction to this Act of Congress, both the producing capacity and the quantity of spirits actually produced are made by the law measures of taxation, and provision is made for the determination of each. U. S. v. Singer, 15 Wall., 111, 21 L. ed. 49.

But without pursuing the subject further, we have said sufficient to show that in our opinion the notice given by the distiller of the time he will ferment each tub of mash or beer does not control the survey. The Assessor must deter

v.

JOHN W. LAPSLEY.

(See S. C., 20 Wall., 264-288.) Affidavit, when not filed in time-copy of instrument, when evidence-secondary and parol evidence, when inadmissible.

1. Under a law of Texas requiring an affidavit of certain time, in order to prevent the instrument bethe forgery of an instrument to be filed within a ing given in evidence, an affidavit filed under such law, later than the time therein mentioned, was properly stricken from the files.

2. A copy of an original instrument, made by the officer by whom the instrument was executed was, by the Spanish law and the law of Texas, "a second original," and of equal validity and effect with the prior one, and was properly received in evidence. 3. A party is not permitted to give secondary evidence where it presupposes better evidences within his reach, which he fails to produce.

4. Parol evidence to impeach an instrument more than forty years old which had never been questioned by the grantors, and under which large and diversified interests had grown up, of one who claimed under a hostile title; held, properly excluded.

[No. 301.]

Argued Apr. 17, 20, 1874. Decided May 4, 1874.
N ERROR to the Circuit Court of the United
I
States for the Western District of Texas.
Lapsley, the defendant in error, sued Mc-
Phaul, Goode and others, in the District Court
of McLennan County, Texas, to recover pos-
session of eleven square leagues of land, and
damages for illegal occupation, etc. Goode sev-
ered, and there was a judgment in his favor ac-
cording to an agreement between him and Laps-
ley. McPhaul, for himself and children, and
Ann E. Tipton, another of the original defend-
ants, for herself and minor children, answered,
claiming title to one league of land under a
grant to Peter Fleming, made in 1835, by the
Government of Coahuila and Texas, and dis-
claiming title to all except that league; also,
that they had bought an outstanding title from
one Tomas de la Vega. Appended to the answer
was a statement of de la Vega that he had sold

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