Jessup v. United States, 106 U.S. 147

“The condition of the foregoing obligation is such, that whereas t e said William Henry Jessup is a manufacturer of friction or other matches, cigar-lights, or wax-tapers; and whereas, under the proV1sions of the 161st section of an act entitled ‘ An Act to provide p. 148internal revenue to support the government, to pay interest on the public debt, and for other purposes,’ approved June 30, 1864, the Commissioner of Internal Revenue is authorized, from time to time, to furnish, supply, and deliver to any manufacturer of friction or other matches, cigar-lights, or wax-tapers, a suitable quantity of adhesive or othei' stamps, such as may be prescribed for use in such cases, without prepayment therefor, on a credit not exceeding sixty days, requiring in advance such security as he may judge necessary to secure payment therefor to the treasury of the United States within the time prescribed for such payment; and whereas adhesive stamps have been delivered, or hereafter may be delivered, to said William Henry Jessup by virtue of said authority: Now, therefore, if the said William Henry Jessup shall make a faithful return, whenever so required, of the moneys received by him for such adhesive stamps as have been or may hereafter be delivered to him, and of all quantities or amounts thereof undisposed of, whenever required so to do, and shall do and perform all other acts of him required to be done in the premises according to law and regulations, shall well and truly pay, or cause to be paid, to the Treasurer of the United States, for the use of the United States, all and every such sum or sums of money as the said William Henry Jessup may owe to the United States for adhesive stamps which have been or shall be delivered to him, or which have been or shall be forwarded to him, according to his request or order, within the time prescribed for payment for the same according to law, and shall and will pay, or cause to be paid, to the said Treasurer, for the use aforesaid, each and every sum of money as shall become due or payable to the United States, at the time and on the days each sum shall respectively become due or payable, then the above obligation to be void and of no effect; otherwise to be and remain in full force and virtue.”

Section 161 of the act of June 30, 1864, c. 173, entitled “An Act to provide internal revenue to support the government, to pay interest on the public debt, and for other purposes,” provides as follows: “ That the Commissioner of Internal Revenue may, from time to time, furnish, supply, and deliver to any manufacturer of friction or other matches, cigar-lights, or wax-tapers, a suitable quantity of adhesive or other stamps, such as may be prescribed for use in such cases, without prepayment therefor, on a credit not exceeding sixty days, requiring in advance such security as he may judge necessary to secure p. 149payment therefor to the Treasurer of the United States within the time prescribed for such payment. And upon all bonds or other securities taken by said commissioner, under the provisions of this act, suits may be maintained by said Treasurer in the Circuit or District Court of the United States, in the several districts, where any persons giving said bonds or other securities reside or may be found, in any appropriate form of action.”

The first of these grounds is based on the assumption that the section referred to requires the bond to be given to the Treasurer of the United States and not to the United States, and, as the bond in suit is payable to the United States, that it p. 151is absolutely void; the contention of the plaintiffs in error being that the United States cannot take a valid bond except when and in the terms directed by the statute. But the bond is not required to be made payable to the Treasurer. It may be payable directly to the United States, and conditioned that payment for stamps advanced shall be made to the Treasurer, and not depart from any express provision of the law.

United States v. Linn, 15 Pet. 290, was an action against a receiver of public moneys and his sureties. The statute required him to give bond for the faithful discharge of his trust. p. 152The instrument given and sued on was without seal, and, therefore, not the security required by the statute. The court, nevertheless, held it to be a valid and binding obligation.

But the penalty of the bond was payable directly to the p. 153United States, and its condition was that Jessup should pay, or cause to be paid, to the Treasurer of the United States, for the use of the United States, all and every such sum or sums as he might owe the United States for adhesive stamps. This being a valid bond, any evidence which tended to show that Jessup was indebted to the United States for adhesive stamps was competent, and it was quite immaterial whether the stamps were furnished by the Assistant Treasurer or by the Commissioner of Internal Revenue.

The bond in this respect conforms to the statute, which p. 154authorizes the Commissioner of Internal Revenue from time to time to supply and deliver to any manufacturer of friction-matches a suitable quantity of adhesive or other stamps, without prepayment therefor, on a credit not exceeding sixty days. What we have said covers all the errors assigned.

This case arises upon a libel filed in the District Court for the Southern District of New York by S. J. Quick, master and owner of the canal-boat “ Kate Green,” for himself and for F. A. McKnight, against the steamship “Nevada,” in a cause of collision. The libel alleges that McKnight was invested by subrogation, or otherwise, with the interest of the Western Insurance Company of Buffalo, who were insurers of 8,100 bushels of corn, the cargo of the “ Kate Green ” at the time of the collision; that on the 27th of September, 1871, whilst the p. 155boat was lying securely fastened in a slip in New York City, between piers No. 46 and No. 47 on the North River, the “Nevada,” which had been moored in the same slip on the north side of pier No. 46, proceeded on her way to sea, and carelessly and negligently ran into and struck the “ Kate Green ” with her propeller, causing her to sink, whereby she was greatly injured and her cargo destroyed, resulting in a total damage of $12,000.

“ 11. There was an abundance of time after the breaking of the fastenings of the ‘ Hart,’ and after the ‘ Green ’ began to p. 157swing, and after the hail of her master, to have stopped the propeller, before the collision.

Then, how is it with the “ Nevada ? ” Did those on board of her do all that was reasonably required of them ? It is significantly asked by her counsel, whether a steamship is to be precluded from the use of her own means of locomotion ? Must she be subjected to the inconvenience and expense of employing a tug to tow her out into open water? That does not necessarily follow. If, indeed, the action of her propellers is such as to cause unavoidable injury to other craft in a crowded harbor, or in a confined space like that of a slip or dock used by vessels of every kind, she might be justly required to find other means of moving in a position involving so much peril. This is no more than is required in analogous cases. Railroad companies are compelled to slacken the speed of their trains in passing through cities, and are often either prohibited from using ordinary locomotive engines in the more public streets, or required to guard their tracks by means of gates, bars, or fences, in order to prevent accidents and collisions. Incidental inconveniences, it is true, attach to the use of many of the great improvements of the age; inconveniences which must be submitted to in order that the public may have the benefit of those improvements. Almost every new machine inflicts loss of employment upon some portion of the laboring class, which are thus obliged to seek other fields of industry. Steamboats have taken the place of sailing-vessels; railroads have interfered with steamboats, and have rendered useless thousands of stage-coaches, and the appliances connected with them. The vast power and speed of the modern locomotive engine, carrying its thousand passengers, or its hundreds of tons of merchandise, require the private carriage and the country team to await its passage and give it the right of way. The large steamer which navigates our rivers creates an agitation of the waters which cannot be prevented without staying its speed and crippling its usefulness, and which requires from smaller vessels in its neighborhood increased attention and care to avoid being foundered or injured. Horse railroads in cities incumber the streets with their iron tracks, and render the passage of private vehicles more difficult and dangerous. But whilst these incidental and unavoidable inconveniences must be submitted to in order that the greater benefit derived from p. 159the new improvements may be enjoyed, there still remains the duty of so managing and operating them as to do the least possible injury consistent with the fair attainment of their substantial benefits. The ocean steamer is one of the great inventions of the century, and one of the advanced instrumentalities of modern civilization ; but whilst it may freely exercise its powerful propeller and sport its leviathan proportions on the ocean or in deep and open waters, it is justly required to observe extraordinary care and watchfulness when surrounded by feebler craft in a crowded harbor.. Under some circumstances, and within a limited space, it may even be required to dispense with the use of its ordinary means of locomotion, and resort to the employment of towage or other safe and quiet means of changing its position and effecting its necessary movements. Such a modification of the use of its power, when absolutely required for the safety of other vessels rightfully located in its vicinity, would produce no material diminution of its efficiency in the accomplishment of its principal design.

However, we do not mean to say that, in the application of these principles to the present case, it was the duty of the “Nevada” to remit the use of her propeller in leaving her place in the slip where she lay. The court does not find her in fault for using it, but for not having a lookout at her stern, and on the side next to the slip, who could have seen the breaking away of the “ Hart ” and the “ Kate Green ” from their fastenings, and, by giving timely alarm, could have averted the disaster by a.momentary stopping of the “ Nevada’s ” engine. In such a place, and in the midst of such a crowd of vessels as then filled the slip, since she did put her propeller in motion, she was bound to use the utmost caution and circumspection in order to avoid doing injury. The least that could be expected of her was a constant lookout at every part. But the court finds that “ no one on board of the ‘ Nevada ’ knew of the parting of the * Hart’s ’ lines, or of the swinging of the ‘ Green,’ or of the accident, until after they arrived at Liverpool. If a man had looked from her deck over her side into the slip, he could not have failed to see what was going on all the time, from the first movement of the propeller, and before, until she got out.” And the court further finds that “ there p. 160was abundant time after the breaking of the fastenings of the 4 Hart,’ and after the ‘ Green ’ began to swing, and after the hail of her master, to have stopped the propeller before the collision.”