The New York herald., 1875-07-15

McCleIand ct al VS.. The United states.-Appeal
from the Court OF Claims. Mr.. aStlce Bradley
delivered the opinion OF the Court
This was an action OF ass umpslt, brought by the
platntifs in error against the defendant In error,
to recover a charge or bonus OF four cents per
pound paid by the plaintifs to the defendant as
surveyor OF the port Of Nashville, Tennessee, from
chase ana shin TO the loyal States certain lots OF
cotton, amounting 20 over 100000 pounds. This
payment was one OF the fees or charges required
by the regulations or the Treasury Department to
be made as condition OF carrying on the said
trade between those portions OF the insurTectlon-
airy states Wltnln the lines OF occupation OF the
/. Union forces and the loyal States. BY the bill
OF exceptions IL appears to have been admitted
on the trial tnat the defendant was acting sur
veyor OF customs at Nashville during the period
In question, and was the only person that could
grant the necessary permits and that tue plain
factors various lois OF cotton, specified
IN the pin OF exceptions, wnic6 had
decree Of the President and the regulations Of
the secretary Of the Treasury In tnat regard that
tney applled 10 the defendant for permits to ship
and transport said cotton from Nashville TO a
loyal state, and that the defendant in obedience
TO SAID regulations and instructions, refused 10
grant sucn permits except Cd payment OF the four
cents per ponnd. 1t s also admitted that the
regulations were well and publicly known at Nash
Vlle, ana directed seizure and connscaton OF all
cotton shipped without snch payment or permit
ana tnat tine plaintn made no formal protest
against the payment OF the charge. but paid the
same, and thaI the same was paid by the d efend-
ant Into the Treasury OF the United States before
tne commencement Of this action. IL was also
within the lines OF military occupation OF the
United States. The plaintn then put In evidence
OF the shipment OF the cotton IN ques-
tion. These regulations prohibited the trans
from any state or part Of State in insurrsction
exceptunder permits, certificates ana clearances,
as provided theretn and the surveyors of tue GUS
toms at Nashville ana other places were desg-
mated as the of1cers TO grant such permits. Au-
thority to purchase and transport goods was TO
be granted only TO those who should make the
prescribed affidavit and enter into bond to pay all
fees required Dy the regulations; ana no permit
was to be granted for such purchase ana trans
portation except upon the payment or such
fees or the giving or bond TO secure the
same. Tne fees referred to and and appended TO
the regulations, and making part thereof. con-
sisted Of various items and charges to oe paid
and, among others, "For each permit TO purchase
port the same to a loyal State, per pound, four
cents" This IL the fee or charge which was paid
FOR the permit to purchase and transport the COT
ton In question and which IL sought 10 be recov-
cred. The plalntlrfs insisted, and requested the
Court to charge substantially as follows:-
That this exacton Illegal and VOID; that II was
gress which alone has the power to impose thar
that extent unconstitutional and void and that under
pares the psynent was nYoiGnsry and gS no pfOtes
the money thus illegally exaeted
The Court refused TO charge as requested by the
plaintns, but charged as iollows:-
First-That the act Of July ls 1861 entitled IAN act
and for other purposes conferred power the
rerary Of the Treasury to authorize the
TONED IN said plaintiffs declaration.
Seeotd-Ihat whether said act Of July Is 1861, con-
ferred such power not action of the secretary
the Treasury in imposing and of the defendant in maxi
ing said exactions ratified and made valid by the
OF July 1854, entitled IAN actin addition the
several acts concerning commercial Intercourse between
loyal and iusurrectionary States and to provIde the
coeSton OF captured and abandoned property and the
prevention OF frauds in tates declared in nsurrecon
ThtTd-lhat plaintiffs could not main tain action
back said exaconS, f they mad been Illegal
for want of having protested against them at the time
OF payment
To this charge exceptions were taken, and we
are called upon TO decide as to the correctness Of
these propositions.
There can be no question that the condition re-
curing the payment OF four cents per pound for
permit to purchase cotton In, and transport IL
rom the lnsurTectlonary states during the
war power OF the United Estates govern
ment TO impose. The war was public one.
The government In prosecuting it. had at
least all the rights which any beligerent Power
has when prosecuting pubic war. That war was
itself suspension OF commercial intercourse be-
tween the opposing sections of the country. No
cotton or other merchandise could be lawfully
purchased IN the insurrectionary States and
transported to the loyal States without the
consent OF the government. II such a
course OF dealing were to be permitted at
ali, IL would necessarily be upon such conditions
as the government chose 60 prescribe. The war
power vested In the government Implied all this
without any specific mention OF 1t In the consti-
tuition. In long opinion the Court reviews the
questions presented, and affirms the rulings I'D
Judgment Of the Court below.
The second case ls decided by the judgment In
a