
    MADDOX’S CASE. Joseph H. Maddox et al. v. The United States.
    
      On Demurrer.
    
    
      The petition shows an agreement between the claimants and a Treasury agent for bringing out the products of insurrectionary States during the rebellion; an order of the President securing to them free passage through and safe conduct within the lines ; a subsequent purchase of the products in Richmond, January 1865; and then that the property so purchased was in part “burned and destroyed t>y tlie military forces:” “in part taken t>y tlie military forces,” “ and converted to the use of tlie United States,” and in part destroyed by the fire in Richmond “ incident to tlie capture of that city.” It is conceded on the a/rgument that the case is not within the provisions of the Abandoned or captured x>roperty act, and that if “ the opinion of the Supreme Court in the case of Lane were to be taken here as the resolution of the court and as law, it would be an end of this case;” bid it is insisted that the point really decided in Lane’s Case does not affect the case now at bar.
    
    I. There is a difference between the dicta of a judge and the alternative propositions of a court. If a point, of law is not within the facts of a case, it is not within the decision. But if the facts present a number of points, it is within the propier office of the court to determine any or all of them; and when an axipellate court has announced a decision uxion several x»oints involved, an inferior tribunal cannot select one as the true resolution of the court, and reject the others as needlessly decided. The rule is that every proposition of law enunciated, if actually involved in the facts of the case, is to be taken as a principle of law, stare decisis.
    
    II. The decision of the Supireme Court in Lands Case, construing the Acts July 13, 1861, and July 2, 1864, (12 Stat. L., p. 255; 13 Stat. L., p. 375,) examined and exx>lained.
    
      The Assistant Attorney General in support of the demurrer:
    I. The petition does not allege the loyalty of the petitioners, as required by law. Act March 3,1863, section 12, (12 Stat. L., p. 765.)
    II. The contract set forth in the petition, as the basis of this action, is void for want of authority in the officer by whom it purports to be executed on behalf of the United States. (United, States v. George W. Lane, recently decided in the Supreme Court.)
    The petition shows that the petitioners at the time of entering into this contract were not the owners of the tobacco, the value, of whiph they now seek torecoverv
    
      III. The petition alleges of some of this tobacco a mere conversion to the use of the United States. This is an allegation not of contract but of tort, and cannot be the. foundation of a judgment in the Court of Claims against the United States. (Gibbons v. The United- States,_ recently decided in the Supreme Court.)
    The petition does not allege that the proceeds of any of this tobacco have reached the Treasury of the United States.
    IY. The tobacco alleged to be converted to the use of the United States, as well as all the other tobacco mentioned in the petition, this court will find, upon an inspection of the petition, was destroyed, appropriated, or damaged by part of the army of the United States engaged in the supimession of the rebellion. Accordingly the petition presents a claim not within the jurisdiction of this court. Aet July 4, 1864, (13 Stat. L., p. 381.)
    
      Mr. James Hughes in opposition to the demurrer:
    This is not a suit upon an implied contract. It is a suit upon an express contract, made under the authority of a statute and certain regulations made in pursuance thereof. The Attorney General abandons the first point in his brief as to the loyalty of the petitioner, and it is not necessary to discuss that.
    The objection that the petition does not allege that the proceeds of any of this tobacco reached the Treasury of the United States, is only valid under the assumption that we could only recover here under the captured and abandoned property act of March 1863. We do not profess to sue under that act, and unless we find some other foundation for our suit than that, we expect to fail.
    The allegation that the conversion of property is an act of tort, and not of contract, which is supported by a reference to the case of Gibbons, is inapplicable to this case, because we proceed upon an express contract which contains a clause that the party shall deliver the products unless prevented by the authority of the United States, and we are not suing for a tort in taking the property, nor are we suing for a tort that is to be called a tort, arising from the conversion of the property. We are suing upon our contract. And if the United States made a contract with the claimant and then interposed to prevent his performing it, they are liable to him for damages. "
    
      In the act of July 4,1864, where the words “ appropriation of” are nsed, it has been defined by the Supreme Court in one of the decisions read by the Attorney General, expressly to except the case of a contract. So that does not apply; and the Supreme Court in their decision expressly excepts all cases of contract, like the case before the court.
    As to the objection which is in these words:
    “ The petition shows that the petitioners at the time of entering into this contract were not the owners of the tobacco, the value of which they now seek to recover.” That objection is true in point of fact. But we expect to show that it is untenable as a matter of law. We expect to show that, under the acts of Congress, and the “ Trade Regulations” made in pursuance of them by the Secretary of the Treasury and the President, and enforced by the Secretaries of War and the Navy, it was not necessary that the party should own the property at the time he made the contract with the government to sell it under the 8th section of the act of July 2,1864. It is true that the petition does say, in regard to the products which were included in this contract, “that it was understood and expected that your petitioners would purchase these products in or about the city of Richmond, in the State of Virginia.” That allegation is true in point of fact, but it is an unnecessary allegation in the petition, and hereafter we shall ask to amend the petition (upon that point) by striking it out. But the same in substance occurs again upon page 4, as the Attorney General states. The fact that we did purchase the products after the making of the contract, as is alleged, we will permit to remain.
    Now, if the court please, this narrows the discussion of this case, so far as I propose to occupy the attention of the court, to the first clause of the second objection, which is that—
    • “ The contract set forth in the petition, as the basis of this action, is void for want of'authority in the officer by whom it purports to be executed on behalf of the United States,” and I cite the case of The United States v. George W. Lane in the Supreme Court. If everything that is said in the opinion of the Supreme Court in the case of Lcme were to be taken here as the resolution of the court, and as law, it would be an end of this case, I freely admit. But I propose to take up the decision in the Lane case, and to separate from the dicta the point that was resolved and decided by the court. When that is done, this court will perceive that the decision of the Supreme Court has no application to this case. Then, after admitting freely that the statements and reasoning of the opinion, passing over the point resolved, militate directly against this case, I shall endeavor to show this court that it is eminently a proper case to give the Supreme Court an opportunity ro review their opinion.
    The citation of a case in a legal argument is only authority so far as there has been a point decided. Now, what was the point decided in the Lane case ? There were certain acts of Congress providing for the purchase of products of the insurrec-tionary States, and those acts conferred express authority upon the Secretary of the Treasury and the President to make regulations to carry them out. No law ever was passed, no regulation ever was made, which authorized the taking out of an outgoing cargo ás an original fact in a transaction of that sort. The Supreme Court treated the fact that Lane was authorized to take an outgoing cargo in the vessel which he had purchased at a cost of $18,000, with a Treasury agent on board; they treated it as a fact which constituted a part of the contract, or “arrangements,” as they say. They use the words “contract and arrangement; ” and they say that, in the Lane Case, the, contract which was made was never authorized either by law or by regulations, for the reason that he was allowed to take an outgoing cargo. And he was arrested in crossing blockaded lines, which is expressly excepted in his contract. So the Supreme Court disposed of the case of Lane by expressly deciding the point that his contract was one unauthorized either by law or regulations, and therefore not to be enforced. That is all the point there was in the case. They then go on to discuss the general policy of the statutes and regulations under which our contract was made; and I say they lay down doctrines in those discussions that militate strongly against us, but which are no part of the decision. It is the merest dicta in the world, and capable of the most conclusive refutation.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover $735,644, with interest on that sum since March 6,1865, for certain personal property, consisting of 4,042 boxes of tobacco captured, converted, and destroyed by the armies of tbe United States during the war of the rebellion.

The' ease comes before the court upon demurrer. The petition which is thus questioned shows an agreement made with a Treasury agent for bringing out this product from the insur-rectionary States; an order made by President Lincoln securing to the claimants free and unmolested passage through the lines and safe conduct within the lines ; a subsequent purchase at Bichmond in January and February 1865 of the property; and then that, of the property so purchased, a part was “ burned, And destroyed by the military forces of the United States,” a part was “ talcen by the military forces of the United States and converted to the use of the United States,” and a part was turned back by the army and destroyed by the fire in Bichmond “ incident to the capture” of that city.

The petition does not allege that the proceeds of any of this tobacco ever reached the Treasury so as to bring the case within the provisions of the Abandoned or captured property act; and the counsel for the claimants has expressly said “we do not profess to sue under that act, and unless we find some other foundation for our smt we expect to fail? The foundation for the suit .is thought to be found in the violation of an “express contract made under the authority of a statute.”

It is conceded by the learned counsel that “if everything that is said in the opinion of the Supreme Court in the case of Lane were to be taken here as the resolution of the court, and as law, it would be an end of this case.” The learned counsel then proceeds to show that most of the opinion and reasoning of the court were merely “ dictaf and that the point really decided does not affect the case now at bar.

There is a difference between the dicta of a judge and the alternative propositions of a court. A point to be determined must be & point involved. If not within the facts of the case, it is not within the decision of the court. But where the facts present a number of points all going to the merits, it is within the proper office of the court to determine any or all of them; and when an appellate court has thus announced a decision upon several points involved, an inferior tribunal cannot select one of the points determined, as the true resolution of the court and reject the others as needlessly decided. The true and only rule, I apprehend, is that every proposition of law enunciated, if actually involved in tlie facts of the case, is to be taken as a principle of law stare decisis.

The only case I bave noticed where any such question was raised as is here discussed, is that of James v. Patten in the New York Court of Appeals, (2 Seld., New York Reports, p. 9i) It was contended that the question there involved had not been expressly determined by the Court of Errors in Davis v. Shields, (26 Wend. R., p. 341,) because, as two distinct questions had been discussed in the opinions in that case, and as most of the members of the court voted silently, it was impossible to discover on which of the two questions a majority of tiie court voted for reversal, although, as was conceded, all of the opinions read were in favor of a reversal on both grounds. It was by no means contended, as is here done, that where two questions are discussed and involved, either of which will be sufficient for a reversal, an inferior court may say that the one was decided rightly and the other wrongly, and hold the latter question to be still open. The length to which the argument went was merely that the silence of the majority of the judges left it uncertain whether they agreed with the members who spoke in all that they said.

Mr. Justice Paige thus expresses the opinion of the Court of Appeals:

“Where a court consists of several judges, two or more of whom deliver .opinions, and all arrive at the same general result in the cause, but for different reasons, and the residue of the judges give a silent vote of concurrence with them in a decision for the one party or the other, there, as it does not appear that a majority of the court agreed as to any one question in particular as the ground of the decision, the case cannot be considered as authority on any of the questions which arose in the cause. But where several questions arise in the cause and the opinions delivered agree in regard to all of them, and the other members of the court give a silent vote of concurrence, 'then all the questions will be deemed to have been determined by a majority of the court, and the case will be regarded and respected as an authoritative adjudication of all such questions.”

In the case of Lane, the action rested on a contract made by a Treasury agent, similar to the contract in this case, and the validity of the contract was necessarily involved in the case. The reasoning of the learned judge who delivered the opinion of the court may rest overmuch on the fact of an outward cargo being included in what the Supreme Court terms the “arrangements” of the voyage, but the decision is emphatically clear that “the contract was unauthorized, and had no power to bind the government

The real point of the decision in Lane’s Case is, that under the Acts July 13, 1861, and July 2, 1864, (12 Stat L., p. 256; 13 Stat. L., p. 375,) a resident within the insurrectionary districts might bring out cotton and take back supplies, but that a citizen within loyal territory could not engage ill trade and commerce with the enemy by virtue of the provisions of these statutes. Upon this point the opinion, after a full examination of the statute, says that the Treasury agent “was not authorized in making any contract with a person occupying the status of Lane.” In this case the claimants occupied the same status, and the contract was made by the same Treasury agent. It may have been different from Lane’s, but the decision of the Supreme Court extends to “any contract.” The judges of the Supreme Court may have been mistaken in their construction of the statutes, and misinformed as to the practice and policy of the governm ent, but that court has decided that a Treasury agent had no power to contract with a northern citizen, and that court must correct its own errors.

Apart from the decision of the Supreme Court, we think it questionable whether this case comes within our own favorable decision in Lane’s Case, (2 C. C1s. R., p. 184.) The decision there rested upon the ratification of the acts of the seizing officer by the government. In the subsequent case of Burnside, (3 0. Cls. B., p. 366,) the seizure was not ratified by an executive department, and it was held that the acts of the seizing officers did not raise a liability on the part of the defendants. The decision of the Supreme Court in Lane’s Case relieves us, however, from the examination of this question.

The judgment of the court is, that the demurrer is well taken, and that the petition be dismissed.

Casey, Ch. J.:

I concur in the conclusion that the action cannot be sustained, and that the petition should be dismissed.  