# Kinkead v. United States/Dissent Shiras

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* Opinion of the Court
* Dissenting Opinion Shiras
United States Supreme Court
150 U.S. 483
Kinkead v. United States
Mr. Justice SHIRAS, dissenting.
In the case of U.S. v. Percheman, 7 Pet. 51, 86, Chief Justice Marshall said:
'It may not be unworthy of remark that it is very unusual, even is cases of conquest, for the conqueror to do more than to displace the sovereign, and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged,-if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed. If this be the modern rule, even in cases of conquest, who can doubt its application to the case of an amicable cession of territory?'
Upon this view of the subject it might be justly expected that when, in 1867, a treaty for the cession of the dominions of Russia in America was concluded between the United States and the emperor of Russia, the rights of private property would remain undisturbed. Nor would that just expectation be disappointed, for, on reading the treaty, we find explicit provisions preserving and excluding from the operation of the cession private property. It, however, appears that portions of the ceded territory had been occupied by an association or company known as the Russian-American Company, and which seems to have claimed and exercised an almost despotic control over the sparse population, whether native or Russian, and also to have been possessed, by grant from the Russian government, of certain franchises and privileges, the precise nature and extent of which are not disclosed. Aware of the existence of this company, and apparently fearful lest troublesome contentions as to such special privileges and franchises might afterwards arise, the government of the United States insisted on the insertion in the treaty of an explicit article, providing that the cession of territory and dominion should be declared to be free and unincumbered by any reservations, privileges, franchises, grants, or possessions by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties except merely private individual property holders.
The fourth article of the treaty provided that the emperor of Russia should appoint an agent or agents for the purpose of formally delivering to a similar agent or agents, appointed on behalf of the United States, the territory, dominion, property, dependencies, and appurtenances which were ceded, and for doing any other act which might be necessary in regard thereto.
Subsequently, and in pursuance of the fourth article of the treaty, the Russian government appointed Alexis Pestchouroff, and the United States appointed Gen. Lovell H. Rousseau, as their respective commissioners, and these commissioners proceeded to fulfill the duties of their appointment under instructions from their respective governments. The instructions from the government of the United States were as follows:
'Pursuant to the stipulations of the treaty, that transfer will include all forts and military posts and public buildings, such as the governor's house, and those used for governmental purpose, dockyards, barracks, hospitals, and schools; all public lands, and all ungranted lots of land at Sitka and Kodiak. Private dwellings and warehouses, blacksmiths' joiners', coopers', tanners', and other similar shops, ice houses, flour and saw mills, and any small barracks on the islands, are subject to the control of their owners, and are not to be included in the transfer to the United States.'
The instructions to Capt. Pestchouroff from the Russian government were as follows:
'(3) All the forts and military posts will be delivered at once to the American military forces that may follow the United States commissioner. * * *
'(4) The public buildings, such as the governor's house, the buildings used for government purposes, dockyards, barracks, hospitals, schools, public grounds, and all free lots at Sitka and Kodiak, will be delivered by Captain Pestchouroff to the American commissioner as soon as practicable.
'(5) All the houses and stores forming private property will remain, to be disposed of by their proprietors. To this same category belong smiths', joiners', coopers', tanners', and other similar shops, as well as ice houses, saw and flour mills, and any small barracks that may exist on the islands. * * *' H. R. Ex. Doc. No. 177, 40th Cong. 2d Sess. p. 19.
The commissioners proceeded to fulfill the duties imposed upon them, and on October 26, 1867, signed a protocol or statement of their action. It thereby appears that there was delivered to Gen. Rousseau, for the United States, the government archives, papers, and documents relating to the territory and dominion therein named; also the forts and public buildings, including the governor's house, dockyards, blockhouses, barracks, batteries, hospital, wharves, and schools in the town of New Archangel, an inventory whereof, marked 'A,' was attached to the protocol. It further appears that an inventory, marked 'B,' was attached, describing the church buildings, etc., left in the hands of the Greco-Russian Church; and that an inventory, marked 'C,' was attached, giving a list of certain lots and houses held in fee simple by persons named; and an inventory, marked 'D,' was likewise attached, showing the houses and buildings owned by private individuals in New Archangel, the owners thereof having no title in fee to the land on which the buildings were situated.
The building in question in this case was specified in inventory 'D' as private property.
Subsequently, on October 28, 1868, the Russian-American Company, by Prince Maksoutoff, its chief administrator, (who had assisted the Russian commissioner in making the delivery and inventory of the property under the treaty,) sold and conveyed the property in question to Louis Sloss, describing it as 'that piece or parcel of land situate near and adjoining to the public wharf of said city, upon which is erected building No. 1, and described as a warehouse in the map and inventory 'D,' attached to and made a part of the protocol of the transfer of said territory to the United States by Russia, and therein declared to be private property.' The title of Louis Sloss, by deed of October 28, 1887, was declared to have been taken and held by him for and on account of John H. Kinkead and Samuel Sussman.
After the transfer, William S. Dodge was appointed collector of customs at Sitka, and in June or July, 1868, he was in the possession and occupancy of the northern part of the building described in the claimants' petition, which he used as a customs warehouse. At the same time, and afterwards, the claimant Sussman was in the occupancy of another part of the building. Dodge continued so to occupy the northern part of the building until about the 1st of December, 1868, when he turned it over to Hiram Ketchum, Jr., his successor in the office of collector, who continued in the same occupancy till March 4, 1869, when he resigned the office, and turned the warehouse over to Samuel Falconer, the deputy collector of the port.
Before and after the last-named date, Gen. Jefferson C. Davis, United States army, was at Sitka, in command of the department of Alaska.
On the 26th of February, 1869, there was sent to him from the war department the following order:
'It having been reported to this department that a very large portion of the property which belonged to the Russian Fur Company in Alaska is now enjoyed by persons claiming title under a purchase from Prince Maksoutoff since the cession of that territory to the United States, the secretary of war directs that you take possession of and retain in your charge all posts, buildings, etc., which are not in fact entitled to be considered individual property.'
In pursuance of this order, Gen. Davis, on the 2d of June, 1869, authorized Falconer to take possession of and use the whole building for government purposes pertaining to the treasury department, except the three lower rooms of it, situated on the southeast side of the lower passageway, which rooms were reserved by Gen. Davis for the storage of army stores, and were, in the month of September, following, placed under the control of the quartermaster's department of the army.
From that time to the present the whole building has remained in the possession and use of the government, Falconer continuing in the occupancy of the part of it so assigned to him until August, 1869, when he turned it over to William Kapus, who had been appointed collector of the port.
On June 2, 1869, the claimants protested in writing to Gen. Davis against his action in taking possession of said building, alleging that the building had been designated as private property by the commissioners appointed by the governments of Russia and the United States; that it had been purchased of Prince Maksoutoff, chief factor of the Russian-American Company; and that the title acquired through that purchase was good, valid, and legal.
Failing to get redress from the agents and officers of the United States, Kinkead and Sussman brought an action in the court of claims for use and occupation of the premises, which suit was by that court dismissed for a supposed want of jurisdiction. Kinkead v. U.S., 18 Ct. Cl. 504.
Thereafter congress passed the following act:
'An act referring to the court of claims for adjudication the claims of John H. Kinkead, Samuel Sussman, and Charles O. Wood.
'Whereas John H. Kinkead, of Nevada, and Samuel Sussman, of California, did, on the twenty-eighth day of October, eighteen hundred and sixty-eight, purchase a certain building situate on lot known as number one on the official plat of the town of Sitka, in the territory of Alaska, from the Russian-American Company, the owner of said building; and
'Whereas said building had been declared by the protocol of the transfer of Russian America to the United States to be private property; and
'Whereas thereafter the collector of customs of the United States did take from said Kinkead and Sussman a lease of a portion of said building and entered thereupon; and
'Whereas afterwards General Jefferson C. Davis did seize the whole of said building, on the ground that the same was the property of the United States, notwithstanding the commissioners appointed to ascertain private property had certified the same to be private property; and
'Whereas afterwards said Kinkead and Sussman did present their petition to the United States court of claims claiming rent for the said building; and
'Whereas said court did, on the eleventh day of June, eighteen hundred and eighty-three, dismiss said claim for want of jurisdiction only; and
'Whereas Charles O. Wood, of Ohio, did in like manner purchase a certain other building situate on lot known as number twenty-four from said Russian-American Company, and did in like manner present his petition to the court of claims for rent of the same, the same having been in like manner seized for the use of the United States, notwithstanding the same had been certified to be private property; and
'Whereas said court of claims did in like manner dismiss the claim of said Wood for want of jurisdiction only: Therefore
'Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that jurisdiction be, and is hereby, conferred on the court of claims to hear the claims of John H. Kinkead and Samuel Sussman and Charles O. Wood for the rent and value of certain buildings in the town of Sitka, in the territory of Alaska, alleged by them to have been acquired by virtue of purchase from the Russian-American Company, upon the evidence already filed in said court and such additional legal evidence as may be hereafter presented on either side; and if said court shall find that said parties acquired a valid title to said buildings respectively alleged to have been purchased by them, said court shall award to said parties a fair and reasonable rent for the use of the said buildings for the time (if any) the same have been occupied by the United States, and also a suitable indemnity for said buildings themselves, and the receipt of such rent and indemnity shall thereafter bar any further claim by said parties for the use of said buildings or for the value thereof, and before receiving the same all of said parties shall execute a release to the United States for all right, title and interest whatsoever in and to the said property, and any defense, setoff, or counter-claim may be pleaded by the United States as defendants as in cases within the general jurisdiction of the court, and either party shall have the same right of appeal as in such cases.
'Approved January 17, 1887.'
The claimants thereupon filed in the court of claims their petition claiming, under the terms of the special act, 'a fair and reasonable rent for the use of said buildings for the time, if any, the same had been occupied by the United States, and also a suitable indemnity for the buildings themselves.'
That court, on May 13, 1889, decreed that the claimants' petition should be dismissed, and from that judgment the appeal before us was brought.
It was contended in the court below, on behalf of the claimants, that under the terms of the act it was not open for the court to determine whether the claimants were precluded by the treaty from maintaining their claim, but that, as the act, in its recitals, declared that the Russian-American Company was the owner of said building, the court's inquiry was restricted to finding whether the claimants had acquired a valid title to the buildings alleged to have been purchased by them, and to fixing a fair and reasonable rent for the time the same had been occupied by the United States, and also a suitable indemnity for the buildings themselves; and it was also contended that, even if the act of congress allowed the court of claims to inquire into the meaning and effect of the treaty, yet that the claimants were, taking into view the treaty, the protocol, and the act of congress, entitled to recover.
The court of claims decided both contentions against the claimants. It held that, notwithstanding the terms of the act, the court had a right to interpret the terms of the treaty, and having found, as it did, that under the terms of the treaty the building in question had become the property of the United States, it further held that there was nothing in the acts of the commissioners characterizing the building as private property, or in the act of congress, referring the matter to this court, which created or conferred any right or title in the building to the claimants.
To sustain their contention that the act of congress, referring their claim to the court of claims, did not leave any question for the court as to the meaning and effect of the treaty, the claimants cite the case of U.S. v. Jordan, 113 U.S. 418, 422, 5 Sup. Ct. 585. There an act of congress provided for the refunding to persons named therein of the amount of taxes assessed upon and collected from them contrary to the provisions of the regulations therein mentioned, and it was held that there was no discretion vested in the court of claims to determine whether the sum awarded to the suitor was or was not the amount of a tax assessed contrary to the provisions of such regulations. This court said, through Mr. Justice Blatchford: 'The court of claims held that the statute did not leave open any question for the court, except the identity of the claimants with the persons named in it; and that its language, taken together, was too clear to admit of doubt that congress undertook, as it had a right to do, to determine not only what particular persons by name should have relief, but also the exact amount which should be paid to each one of them. We concur in this view. * * * Although the act speaks of the sums as being the amount of taxes assessed upon and collected from the said named persons contrary to the provisions of the regulations, there is no indication of any intention to submit to any one the determination of the question whether the taxes in any case were collected contrary to the provisions of such regulations, or of the question how those provisions are to be construed. On the contrary, the clear import of the statute is that congress itself determines that the amounts named were collected contrary to the provisions of the regulations.'
Claimants likewise cite the case of Dahlgren v. U.S., 16 Ct. Cl. 30, where the court of claims, through Judge J. C. B. Davis, construing an act of congress which had referred a claim to that court, said that, 'where the government has a special defense to a claim, and the facts constituting the defense are well known to congress, it is unreasonable to suppose that congress would refer the claim to this court with the intent that the special defense should be set up and the claim defeated thereby.'
It is to be observed that in the case of the act which was the subject of construction in U.S. v. Jordan the decisive language was in the enacting part of the statute, whereas in the statute now before us it is in the preamble. Still it must be conceded that the language relied upon, although in the preamble, is in absolute, and not in conditional, terms. The Russian-American Company is spoken of as 'the owner of said building.' The only uncertainty or contingency appears in the language of the enacting clause, wherein it is provided that, 'if the court shall find that said parties acquired a valid title to said building alleged to have been purchased by them, the court shall award,' etc. It was further contended on behalf of the complainants that the action of the international commissioners in distinguishing between public property which should pass to the United States and private property which should not be disturbed, is to be regarded as an act of a diplomatic and political character, and which it was not competent for congress to refer to the court of claims for review or re-examination. To sustain the proposition that the decisions of international commissions, rendered within the scope of their authority, are final and conclusive, a number of authorities are cited in the brief for the appellants; among others, the leading case of Comegys v. Vasse, 1 Pet. 193. That case arose out of the treaty whereby Spain ceded Florida to the United States, and wherein commissioners were invested with power and authority to receive, examine, and decide upon the amount and validity of asserted claims upon Spain for damages and injuries. This court held, per Story, J., that the decision of the commissioners within the scope of their authority was final and conclusive; that the parties must abide by it as the decree of a competent tribunal of exclusive jurisdiction. The court held likewise that, though the finding of the amount and right to receive was final, yet the jurisdiction of the commissioners did not extend to determining any disputes that might arise as to the subsequent ownership of such claims. 'The validity and amount of the claim being once ascertained by their award, the fund might well be permitted to pass into the hands of any claimant, and his own rights, as well as those of all others who asserted a title to the fund, be left to the ordinary course of judicial proceedings in the established courts, where redress could be administered according to the nature and extent of the rights or equities of all the parties.'
Applying the reasoning of that and of kindred cases to the present, it is argued that the finding of the commissioners of Russia and the United States was final as to the status of the properties passed upon by them as public or private, that being the purpose for which they were appointed;that it was competent for congress to refer the dispute that subsequently arose between the United States and the claimants to the court of claims; but that the court, in passing upon the case, could not go back of the action of the commissioners, and retry the question under what category, public or private, the property in question was to be regarded.
The court below did not accept the claimants' propositions, but held that it was open to it, under the terms of the act referring the claim to it, to disregard the preamble of the act itself, to go back of the action of the international commissioners, and to decide for itself the meaning and effect of the treaty.
These rulings of the court cannot, in my opinion, be sustained. In the first place, as it seems to me, we must get at the intention of congress in passing the act referring the claim to the court of claims, by bringing into view the history of the claim. In a general way, it certainly cannot be denied that the treaty, in its terms, preserved private property rights. Nor can it be denied that the commissioners were appointed to distinguish public from private property, and to make a finding thereof. It is also indisputable that the commissioners excluded the building in dispute out of the class of public property, and included it in the class of private property. And it is admitted that congress, having been made aware that the claimants had been turned out of the court on an alleged want of jurisdiction, removed that obstacle, and directed the court to hear the claims of Kinkead and Sussman, and, if it should find that they had acquired a valid title to said building, alleged to have been purchased by them, then to award a fair and reasonable rent for its use, and a suitable indemnity for the building itself. I do not feel constrained to hold that the mere recital in the act that the Russian-American Company were the owners of the building at the time the claimants purchased it from them of itself concludes the court from finding otherwise. But I think that, reading the statute in the light of all the facts in the case, it is highly improbable that congress intended to supersede the action of the international commission, and to submit the treaty to the court for its construction; and I think that the language of the preamble is entitled to be considered, in connection with the other facts of the case, to enable us to give a fair and reasonable construction to this remedial statute.
The conclusion, then, in my judgment, is that congress intended that the court of claims should inquire whether these claimants had validly derived their title from the Russian-American Company; and, if so, what was a fair rent for the use of the building, and what a suitable indemnity for the building itself.
But, in the second place, if I am wrong in this view, and if the court of claims had a right to go back of the language of the statute and of the action of the international commissioners, I think the court erred in their interpretation of the treaty.
In the first article the treaty provided that the emperor of Russia should cede to the United States 'all the territory and dominion now possessed by his majesty on the continent of America.' The second article provides that 'in the cession of territory and dominion made by the preceding article are included the right of property in all public lots and squares, vacant lands, and all public buildings, fortifications, barracks, and other edifices which are not private individual property.' The view of the court below was that by the terms 'private individual property' was meant property owned by an individual, as distinguished from a company or corporation; and the court thought that it was aided in this view by the provisions of the sixth article, which declared that 'the cession of territory and dominion herein made is hereby declared to be free and unincumbered by any reservations, privileges, franchises, grants, or possessions by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties except merely private individual property holders.'
The origin of this sixth article was in the claims and pretenses of the Russian-American Company which had exercised a despotic control over these dominions, and the evident purpose of the sixth article, as is plain from the communication of Secretary Seward to the Russian minister, was to prevent any territorial or political or corporate privileges from being subsequently asserted. It was clearly not intended to include or affect private property as such.
If this were a controversy between private parties, in a court where only municipal law is administered, like a court of common pleas, it may be that the narrow view put on this treaty by the court below might properly prevail; but when we consider that we are dealing with an international instrument, conferring territorial dominion from one sovereign to another, a broader and more liberal construction should be put on the language used. Hauenstein v. Lynham, 100 U.S. 483; Head Money Cases, 112 U.S. 583, 5 Sup. Ct. 247. Viewed in this light, I think that the treaty meant to distinguish public property, of the various kinds enumerated, from property held by individual persons, or by companies composed of individuals, for private uses and purposes. Such was the view taken by the commissioners, and, as I think, by congress; and their interpretation ought to be respected and adopted by the courts.
Even when corporations are dissolved by writs of scire facias or decrees in equity, at the suit of the sovereign, their moneys and property not essential to the exercise of their franchises are not forfeited, but are left to the ownership of the stockholders. In construing the treaty as a mere municipal regulation, and as an act of forfeiture, I think the court below grievously erred.
Upon the whole, I am of opinion that the judgment of the court below was erroneous, and should be reversed, and that the record should be remanded, with directions to proceed, under the provisions of the act of January 17, 1887, to examine whether the claimants have lawfully derived title from the Russian-American Company, and, if so, to award them a fair rent for the use and suitable indemnity for the loss of the building owned by them.
Mr. Justice FIELD concurs in this dissent.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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