National Republican., 1883-01-23

accorded by tho law of tho state to all classes
OF persons, as, for instance, the right to make
n contract, bring n suit, or give evidence,
cannot be authorized bynn amendment which
simply prohibits slavery and involuntary ser
vitude.
There is another view which strengthens
this conclusion. If congress has comstitu-
| tional authority under the thirteenth amend
| mcnt to punish u conspiracy between two per-
| sons to do an unlawful act, it can punish the
act ITSELF whether done by one or more per-
sons. The only way in which one private
person can deprive another of the equal pro-
| lection of the laws is by the commission OF
some oflenso against the laws which pro.
tect the rights of persons, as by theft
| burglary, arson, libel, assault, or murder
| If therefore this court should hold
that section 5519 is warranted by
the thirteenth amendments, il would
by virtue of that amendment accord to con-
gress tho power TO punish every crime by
which the right of any person to life, liberty
property, or reputation is invaded. Thus
under provision of the constitution, which
simply abolished slavery, we should, with few
exceptions, invest congress with power over
the whole catalogue of crimes. construc-
tion of the amendment which leads to such a
result Is clearly unsound.
| There Is only one other clause in the con.
stitution of the United States which can, in
any degree, be supposed to sustain thesection
under consideration, and that is the second
section of article 4, which declares that the
citizens of each state shall be entitled to all
the privileges and immunities of citizens of
the several states. But this section, like the
| fourteenth amendment, is directed against
state action. 1t was never supposed that ii
conferred on congress the power to enact q
law which would punish a private citizen for
an invasion of the rights of his fellow citizens
conferred, by the state of which they were
both residents, upon all its citizens alike.
The court, as above appears has been un-
able to find any constitutional authority for
the enactment of section 55l0 of the Revised
Statutes. The point in reference to which the
| judges of tho circuit court were divided i'm
opinion must be decided against the constitu-
tionality of the law.
| Mr.. Justice Harlan dissentcd from the opin-
ion of the majority of the court upon the
question of its jurisdiction, but expressed no
opinion with regard to the merits of the case.
A decision was also rendered by the court
to-day in the case of Il. A. Clark, tax collec-
| tor, &C., VS.. John Y. Keath. In error to tho
supreme court of Tennessee. When this case
was here ON a former writ Of error, il was de-
| cided that Keith, the collector, was bound in
the law to receive the genuine notes of the
bank of Tennessee, issued after May g. 1861,
in payment of taxes due the state of Ten
nessee, unless he showed in defense that the
notes rendered were issued for the pur-
pose of aiding the rebellion. The aflirma-
tive of this issue was put on the collec-
tor. The court holds that that ques-
tion Is no longer open in this case for the
reason that it has long been settled that what
ever has been decided here on writ of error
cannot be re-examined on subsequent writ
brought in the same suit. The ruling of the
supreme court of Tennessee sustaining the
instruction of the court below to the Jury af-
ter the case was rcmanded is the only error
assigned on the record brought up with the
present writ. As the instruction was in exact
conformity with the former decision of this
court which the court declines to re-eXaminc
in the present case the Judgment is affirmed.
Opinion by Chief Justice Waite.
decision was also rendered by the court
yesterday in the marine insurance case of che
Sun Mutual Insurance company of New York
city, appellant, against the Ocean Insurance
company of Portland, Nc.
This litigation arises out of the reinsur-
ance by tho Sun company of n risk taken
originally by the Ocean company upon prop
erty on board the ship G. S. Penncll, chartered
for u voyage from New York to san Fran
cisco. 1t is alleged by the Sun company that
in obtaining this reinsurance the Ocean
company virtually concealed some of the facts
relating to the extent of the charter of the
ship, and that therefore it (tho sun company
is not liable as reinsurer for the loss incurred.
The court below did not coincide in this viow,
but found as II conclusion of law that the
policy was not void because of any conceal
ment Of the Ocean company. This court,
however, holds that there was concealment of
material facts, and that such conCcalmeut
whether intentional or inadvertcnt avoided
the policy, if actually intended to cover tho
risk for which the claim is made. In respect
to the duty of disclosing all material facts,
the case of reinsurance does not differ, in tho
opinion of this court from that of an original
insurance. The duty of communication
indeed is independent Of the intention
and is violated by the fact of cOncealmcnt
even whore there is no design to deceive
This duty may in some instances be greater
and more binding in II case Of reinsurance
than as between the parties 10 an original
insurance. In the former the party seeking
TO shift the risk he has taken, is bound to
communicate his knowledge of the
character of the original insurance where
such information would be likely to
influence the judgment of an underwater,
while in the latter the party is not bound,
nor could it be expected, that he should speak
evil of himself" In this case the Ocean
company, in imposing upon the sun company
the whole risk of tho insurance, without COM
municating its knowledge Of the circum-
ssances which might have made the latter
unwilling to assume it, violated almost every
principle of the general rule of law applicable
to such cases. For these reasons, and without
passing upon other questions discussed, this
court holds that the decree of tho circuit
court must be reversed and the cause re-
manded, with directions TO enter decree dis
missing the libel. Opinion by Justice Mat
thews, Justices Miller, and Bradley, and the
chief justice dissenting.
The other cases decided to-day were as fol-
lows:
No. 49, Reuben IIorheins, appellant, VS.. c.
Russell & Co. ct al, Appeal from the circuit
court of the United States for the northern
district of Ohio. Decree GGsmissing the bill
affirmed, with costs. Opinion by Justice
Blatchford.
No. 1884. Andrew Albright ct al, appellants,
vs.. Andrew Teas. Appeal from the circuit
court of the United States for the district Of
New Jersey. Decree affirmed, with costs.
Opinion by Justice Woods.
Nos. IS and 20. The Town of Thompson,
plaintiff in error, VS.. Orlando Pcrrinc. In
error to the circuit court of the United States
for the southern district of New York. Judg-
ment affirmed, with costs and interests. Opin-
ion by Justice Harlan.
No. 49, The City of Detroit, appellant, VS..
Thompson Dean and the Mutual Gas Light
company. Appeal from the circuit court of
the United States for the eastern district Of
Michigan. Decree reversed, with costs, and
cause remandcd, with directions to dismiss
the bill without prejudice. Opinion by JUS
tice Field.
No. 125, Augustus I. Amber appellant, vs..
Charles p. Chouteau ct al. Appeal from tho
circuit court Of the United States for the
eastern district of Missouri. Decree affirmed,
with costs Opinion by Chief Justice Waite.
The other business transacted to-day was as