The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-11-27
Rev DR.. Newman. OF this CITY, and paid his respects
to tho President
UNITED STATES SUPREME COURT
FremonVs War Observation-Disclosures
Of tho Tax LAW Of 1S67-Righfs Of Beiiige.
rents 20 Destroy Private Property.

of tho Tax Law Of 1S67-Righfs Of Beiiise.
rents 20 Destroy Private Property.
WASHINGTON, Nov. 26. 1859.
Tne following cases were argued yesterday:-
No l24. December Term, lses-7ne United states
us. fhhoaore Adams. ApDeat rom the court Or
CtQHS-Ihis case Is familiar to the public from fire.
quent publication. II was founded upon claim FOR
compensation for the construction or certain mortar
ana tugboats for General Fremont. The amount de-
nahaed IN tho petition lied was nearly $4,000.
Inc Court Our OF Of Claims gave partial judg-
TINS court the Judgment reversed and the cause
remanded. with directions 10 the Court OF Claims
10 DISMISS the petition. Motion ~ now made 10
amend the mandate OF this court which directs the
petition OF the claimant TO be dismissed Dy striking
Out that order and allowing the Judgment OF the
Court or Claims TO stand as simply reversed. This
motion Is based on the allegation tnat the statement
OF findings OF fact az embodied ~ the record IL de-
lectVe inasmuch as u ls simply the Introductory
part OF the opinion OF the court below which
regarded as unmportant certain facts land did not
state them which this court have held to be or vital
import and which were In evidence below, but 40
not appear In the record. II Is also said that certain
facts were Incorrectly stated in the record john A.
Wells for the motion; 4. X. Hoar Attorney General,
opposed.
This cause Is brought here on certificate or div-
sion between the Judges OF the Circuit Court for the
Eastern district or Michigan. The defendant was
indicted In the District Court under section twenty
nine OF the act OF March z 1867. for selling. at De-
troit, In November OF that year, quantity or oil
made from petroleum for Illuminating purposes,
infammable at less temperature and Dre-test than
10 degrees Fahrenheit contrary the statute This
indictment having been remltted to the Circuit Court
the defendant demurred, and afterwards. on argu-
ment, the Judges were divided in opinion as TO the
constltutionality OF the section OF the act under
which the Indictment was found, and the following
questions were certified ups
L. Whether the facts charged In the Indictment
constitute any offence under any valid and consIu-
tlonal law OF the United states.
q Whether tho twenty-nlnth section or the act
OF March 2, 1867, Is valid and constitutional law
OF the United States.
The government submits that the validity OF
a.
ton OF the constitution is shown beyond reasonable
doubt. Congress may establish police regulations
well as the Legislatures OF the States confnIng
their operation, however to subjects over which 1t
has control under the constitution. 1t Is contended
that instances OF the exercise OF this power
tam instruments or agencies OF commerce for the
protection OF life and property found various
acts or Congress which have been held to
be valid. In the license tax cases II was he'd
by this court that the provisions OF the Internal
Revenue laws requiring the payment Of special
tax or Of license tax, and prohibiting. under GER
tain penalties. certain kinds OF business within
s tate without such special tax or license having
been paid, are only modes OF enforcing the payment
of such excise taxes, and that the payment thereof
conveys to the icensee no authority to carry the
licensed business within State which prohibits it;
but that such provisions Of law. as incidental the
taxing power, are not unconstitutional. Although
IL ID conceded the main purpose OF the enactment IN
question may be the protection or consumers against
danger from the use OF oil too 1nnammabe Tor
safety, substantial reason for Its enact
ment may be the regulation OF commerce be-
tween the States and with foreign countres
tween the States and between the United
States and foreign countries from danger to pro-
perty and the lives Of persons In Transporting oil
mixed sold In violation OF this act, and the pro-
lection Of federal revenue officers IN the examina-
ton, gaugng, marking and storing or such oil, and
the proper distinction between, and classification
OF, different classes OF mineral oils made necessary
for tue convenient assessment and collection OF ex
else taxes 1t may be well commended, it Is said,
that i'd the absence OF any Regulation by State the
regulations OF this section OF the act In question are
fairly incidental to the exercise OF tue power 10 regu
late commerce. or oil the taxing power, and, as sucn
constitutional. .
Il. r. Hoar, Attorney General, and W. A. Field,
Assistant Attorney General, for government the
defendant not being represented.
No. $50. Pitzer Mitte1, PldtntiF In Error ps.
Ldrhfn Mckenzie Ell dL--The plaintiff was owner OF
$50 bales OF cotton which were In salisbury, i've
miles east of Grand Junction. on the Memphis and
Charleston Railroad. In July, 1862 the defendants
burned $50 bales OF the cotton and carried away and
sold the balance and divided the proceeds among
themselves. After the close OF the war this action
was commenced to recover OF them the value OF the
cotton. The defence was that a clvll war existed
1nd Mckenzie was q captain OF Mississippi
under the order Of the Governor OF the State,
aud that the other defendants were members OF MS
company; that the plaintln and defendants were
respectively citizens OF countries at war with each
other, and being enemies the taking was a lawful
act or war. The Court instructed the jury that
begerent rights having been accorded TO those
engaged In armed hostility to the United States
those engaged therein were excused for acts done
pursuance OF military orders issued by their CON-
manding officers, allowable under the rules Of
civilized warfare. This charge and the refusal to
instruct the contrary are assigned as errors and
present the questions TO be decided by this court.
Thomas Wilson for plaintlG In error, defendant not
appearing.