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On August 15, 1908, Ceballos & Company , been carried to Spain, and that it had recommenced this action in the court of claims fused payment as to the remaining 24, beto recover a balance alleged to be due under cause twice counted. the Philippine contracts for the carriage The dispute as to compensation arose of 3,445 cabin passengers, at $215 each; | from the contention by Ceballos & Com415 minor children, carried in cabin at half pany that it had carried the wives and rate, $107.50; 13,647 steerage passengers at children of Spanish military officers and $73.75 each, and 20 minor children carried civil officials in the cabin, and the cabin in steerage at half steerage rate, $36.75 rate was properly chargeable, while the each. For this service it was averred $1,- government insisted that the steerage rate 792,491.25 had been earned, and after de- applied and had been paid. Ceballos & ducting payments of $1,544,595 there was Company also contended that, for the carstill due Ceballos & Company, $247,896.25. riage of other noncombatants, who were enSubsequently an amended petition was filed, titled to be considered prisoners of war, the in which full adult cabin and steerage rates cabin rate applied, whereas the government were demanded for minor children, increas- contended that all noncombatants were em. ing the alleged indebtedness of the United braced within the category of “other per: States to the sum of $293,246.25.

sons," who, under the contract, were to be A counterclaim, contained in three num carried in the steerage and paid for at the bered paragraphs, was filed on behalf of the steerage rate. United States. In paragraph first it was The court rejected the first and second in substance averred that the United States counterclaims of the government, and alwas entitled to recover back from the claim. lowed the third. It sustained the contenants the sum of $371,988.75, paid for the tion of the United States as to the number transportation of persons under the alleged of persons carried to Spain, and the rate oral contract in November and December, of transportation which governed, except it 1898, and January, 1899, because the same was held that Ceballos & Company, instead was paid without authority of law, prior of being paid half adult steerage rate for to the execution of any contract, expressed the transportation of minor children, should or implied, between the United States and have been allowed the full adult rate for Ceballos & Company, or anyone in its be each child, and judgment was entered on half. In paragraph second indebted that basis, in favor of Ceballos & Company ness from Ceballos & Company of $12,- for the sum of $5,391.25. 42 Ct. Cl. 318. 788.75 was alleged, because of moneys paid Without hereafter reproducing the findto the firm for the transportation of per- ings verbatim, we+shall state, in a con.

who not actually landed" in densed form, such of the facts found as we Spain, as required by the contract. In think material to be recited. paragraph third it was averred that as to Ceballos & Company alone have appealed, two shipments made on November 25, 1899, and the argument at bar on their behalf and December 18, 1899, the claimants, by has been confined to two questions: 1, The means of a supplemental bill, had collected construction of the contruct in respect to a second time transportation charges for the persons entitled to be carried at cabin. fourteen military officers (at the rate of rates; 2, the correctness of the action of the $215 each) and 91 enlisted men (at the court below in disallowing the claim for rate of $73.75 each), whereby $9,721.25 had the alleged transportation of 198 persons, been overpaid by the United States to Cebal. asserted to have been actually carried under los & Company.

the contracts. *There was contention then in the court The court below substantially followed below in regard to the number of persons the construction of the contract adopted by carried from the Philippines to Spain, and the Attorney General, and decided that the as to the compensation to be paid. For the higher rate” specified in the contract regovernment it was urged that, deducting the lated to one class, and the lower rate to overcharge covered by the third counter another class, and within the second class claim for the transportation of 105 per the contract embraced priests, nuns, sisters sons, payment in full had been made for all of charity, all women and children, and persons legally shown to have been trans- every other person designated within the ported; viz., 17,305. On the other hand, term "prisoners” by the United States, and the appellants contended that 17,527 per. whether carried in the cabin or steerage. sons had been carried,-a difference of 222 Civil officials were held entitled to be classipersons. As to such excess, the govern- fied with military officers, and their transment alleged it had refused payment as to portation properly chargeable at the cabin 198 persons because it had not been shown rate. by the evidence stipulated for in the con In disposing of the questions arising for tract that such persons had embarked and I consideration we will first consider that re

sons

were

lating to the 198 persons claimed by the , included in the count at the time and place appellants to have been transported to of embarkation. The accounts presented to Spain, but for whose transportation the the Treasury for payment asked compensaUnited States refused to make payment. As tion for the transportation of such persons, already mentioned, for the first twenty-five based upon certificates signed by the Amerishipments of prisoners of war from the can consul at the landing place in Spain, Philippine Islands to Spain payment was to the effect "that the following Spanish made by the government of the United prisoners," classifying the persons subStates upon the certificates of the masters stantially as in the requisitions above reof the respective ships on which said ferred to, had been "furnished transportaprisoners of war and other persons were tion from Manila, Philippine Islands, to transported, showing the different classes Spain," by the appellants on a * named • of passengers certified to be correct at the steamship. For the reason that the method place of landing.

prescribed by the contract for determining The method of determining the persons the initial fact that the persons had been entitled to transportation under the written taken on board in the Philippine Islands contract was, however, changed as to the by the appellants had not been pursued, last fifteen shipments,-running from Febru- and further, because the evidence did not ary 20, 1900, to July 14, 1901, during which establish to the satisfaction of the court time it is claimed said 198 persons were that said 198 persons, although certified by

carried to Spain,-so that requests for the counsel to have been landed in Spain, os transportation with reference to available were entitled to transportation under the

space were required to*be made upon the contract, the court of claims refused to appellants. Thereupon the United States make any allowance for the transportation quartermaster at Manila made demand upon of such persons. The passages of the con. the appellants in writing to furnish trans. tract relating to this branch of the controportation "to the following Spanish prison. versy are as follows: ers,” separately enumerating, as the case "An account of the number of officers, en. might be, the number of commissioned of listed men, or other persons to be taken at ficers, the number of enlisted men, the num- the time of embarkation by a representative ber of civil officials, the number of wives of of the government of the United States and officers and officials, the number of children a representative of the said J. M. Ceballos under three years of age, the number of & Company, and payment to the said comchildren between three and ten years of pany shall be made upon the basis of the age, the number of children over ten years number of officers, enlisted men, and persons of age, etc.

counted on each ship.” Pursuant to the requisition of the After reciting the compensation to be Quartermaster General, all the men who paid, the contract recited : were placed on the list of passengers for “The said sums to be due and payable each shipment were required to be at a upon evidence that said officers, enlisted particular place at a certain time in the men, or persons have been transported, submorning, and they were counted by an of- sisted, and delivered on shore in Spain." ficer of the Quartermaster's Department, In refusing to make any allowance for the and taken aboard launches, and carried out asserted transportation of these 198 per. to the Spanish vessel, ready to sail; and, sons, we cannot say, in view of the findings as they went on board, the persons men of the court below, that error was commit. tioned in the requisitions were counted by ted. another United States officer, accompanied We come to consider the remaining subwith the officer who represented the steam-ject of contention, which is thus succinctly ship company. Occasionally permission was stated in the third specification of error given to officers of considerable rank to go made in the brief of counsel for Ceballos & aboard in their own conveyances, and these Company: “The court erred in holding that were checked off when they went aboard by the wives and children of Spanish officers, an officer representing the government and civil and military, and other noncombatant an officer representing Ceballos & Com- prisoners of war, although transported as pany, and were thereby included in the first-class passengers, and afforded cabin acnumbers called for by the requisitions.

commodations aboard ship, were to be paid No objections were offered by Ceballos & for at the third-class rate specified in the Company at the time of the change in the contract, to wit, $73.75." method of computing the number of persons The principal question involved in this to go aboard.

assignment is whether the United States The 198 persons in question were not em- shall pay cabin rates for the transportation braced in the requests sent by the quarter of the wives and children of Spanish ofmaster for transportation, nor were they I ficers, and other officials of equal rank, who

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were in fact returned to *Spain with such the appellants intended to commit such an officers as cabin passengers.

As stated in act of inhumanity as would necessarily the findings, the oral agreement made in have arisen if the written contract required October or November, 1898, between Cebal. that the family of an oficer should be los & Company and the Secretary of War, separated from the husband and father on was “to transport such of the Philippine shipboard, and be relegated to the discomprisoners as the United States desired to re forts of the steerage and the society of en. turn to Spain,” the compensation therefor listed men and other persons. Clearly, the to be fixed by the written contract which spirit of the contract is opposed to any was expected to be thereafter entered into. such conception. The wives and children There was no substantial change in the of the officers and enlisted men were assomethod of carrying out this oral contract ciated with them in the written terms of from that pursued with respect to the capitulation of the Spanish forces at MaCuban contract. In the Philippines, as in nila, signed August 14, 1898, the 5th article Cuba, the United States tendered with the which, again reproduced, is as follows: military officers and civil officials which it “All questions relating to the repatridesired carried to Spain their wives and ation of officers and men of the Spanish children. The proposals invited as the basis forces, and of their families, and of the exof a written contract were couched in simi. penses which said repatriation may occalar phraseology to that employed in the sion, shall be referred to the government of Cuban contract, and called for proposals for the United States at Washington.” the transportation "of the Spanish prison Under the Cuban contract, the wives and ers of war now in the Philippine Islands children of officers were treated as entitled

in number estimated about to be classed with the head of the family in 16,000 officers and enlisted men.” When, respect to the accommodation to be suptherefore, Ceballos & Company submitted a plied, and, in the performance of the Phil. bid for furnishing such transportation, in ippine oral contract, a like practice was reason they held themselves out as ready, pursued. In effect, therefore, by a course of if the United States tendered for transpor-conduct, the United States had associated tation the wives and children of the officers the wives and children of the officers and and enlisted men of the Spanish forces, to enlisted men with such officers and men for regard them as entitled to the same treat the purpose of the transportation to be furment required by the government for the nished and the treatment to be accorded head of the family. We cannot impute to them on the homeward voyage. the parties to the contract an intention to in the opinion rendered by the Attorney condemn and refuse to give effect to the General, civil officials of equal grade with practice which had been pursued in carrying military officers were assimilated to such out the oral agreement, that is, the treating officers in construing the terms of the conthe wives and children as entitled to trans. tract, so we think an enlarged meaning must portation, and as being, for the purpose of be taken as intended by*the terms "ufficers the accommodations to be furnished, of the and enlisted men” where employed in the class to which the government had in effect written contract. As observed by the Atassigned their male relatives. That the torney General, in the light of the purpose classification referred to as "such other per- of the contract, which was to carry out the sons as may be designated by the Secretary engagements made by this government with of War" was not intended to embrace the Spain, a liberal construction should be acwives and children of officers is, it seems corded to the terms eni ployed, in order to to us, manifest from the entire text. The effectuate to the fullest extent the purposes government was concerned not only with the intended by the treaty. Construing the furnishing of safe but of comfortable ac written contract of March 4, 1908, accord.

commodation to those were to be carried on ing to its manifest spirit, and looking to as the long voyage from Manila to Spain. It the prior conduct of the parties, we are of • exacted from*Ceballos & Company a stipula- opinion that such contract, and the oral

tion that it should provide "safe and com- contract which was dependent upon it, so fortable transportation” for those to be car. far as the wives and children of officers and ried; the officers with “cabin accommoda- enlisted men were concerned, should receive tion that it should provide "safe and com- the same construction as under the Cuban dations, space, and ventilation to be supplied contract; viz., that the wires and children for the enlisted men and other persons on of Spanish officers tendered by the United board each ship.” It is to be presumed that States for transportation were to be classed the agents of the United States in the with such officers, and the wives and chil. Philippines saw to it that this stipulation dren of enlisted men were to receive like of the contract was observed. It is incon- accommodations as were given to enlisted ceivable, however, that the government or

Just as,

men.

OF

.70

As it is not questioned by the United for such service to a further payment as to States that civil officials representing the each child of $70.6242, aggregating for the Spanish government in the Philippines were 395 children $27,896.87. From the total of entitled, both under the oral and written these sums, viz., $215,335.62, must, howcontracts, to cabin accommodations, we have ever, be deducted the overpayment recited assumed that construction to be well found in the third counterclaim (which countered. It follows from the reasoning heretofore claim the court below sustained), viz., $9,employed that the wives and children of 721.25, leaving due to Ceballos & Company such officials were likewise entitled, when the sum, $205,614.37. tendered by the agents of the United States It results that the judgnient of the Court for transportation, to receive cabin accom- of Claims must be reversed, with instrucmodations, and Ceballos & Company, on tions to enter a judgment in favor of the furnishing such accommodations, were enti- appellants for the sum of $205,614.37; and tled to compensation at the rate stipulated it is so ordered. for cabin service. In view, however, of the distinction shown to have been made in the

(214 U. S. 33) requisitions for space between adults and

MERCHANTS NATIONAL BANK minor children, the practice shown as to

BALTIMORE, Appt., payments made under the contract, and the original demand of Ceballos & Company in

UNITED STATES. the court below, we think it results that the parties, in actual practice, treated the

INTERNAL REVENUE (8 9*)-TAXATION OF full rate for children under ten years as but NATIONAL BANK CIRCULATION. half the adult rate specified in the contract, A national bank whose outstanding cir. and we think that rate ought to have been culating notes amount to less than 5 per applied by the court below for each minor cent of its capital is not exempted from child, whether carried in the cabin or in the payment of the half-yearly duty imthe steerage.

posed by U. S. Rev. Stat. § 5214, U. S. * We are unable to yield our assent to the Comp. Stat. 1901, p. 3500, upon the avcontention that other noncombatants than erage amount of its notes in circulation, by the wives and children of officers, enlisted 1901, p. 2248), that the outstanding cir

the provision of § 3411 (U. S. Comp. Stat. men, and officials of the government of culation of any bank, association, corporaSpain, should be embraced in the class en- tion, company, or person shall be free from titled as of right to cabin accommodations, taxation when reduced to an amount not for which appellants were entitled to be exceeding 5 per cent of its capital, although compensated at cabin rates. The mere cir- the latter section is, by g 3417 (U. S. cumstance that a particular person, al. Comp. Stat. 1901, p. 2251), expressly made though a noncombatant, was a constructive since it was so made applicable, as clearly

applicable to national banking associations, prisoner, did not—at least, in the absence appears from the legislation from which of evidence that the United States tendered its provisions were drawn, in order to give such person as a cabin passenger-serve to national banks representing state banks take the person out of the category of per- the benefit of the presumption of loss or sons whom the Secretary of War might inability to retire the circulation of the designate to receive transportation in the state bank when 95 per cent thereof had steerage at third-class rates.

been actually retired. From finding 14 it appears that the wives enue, Dec. Dig. $ 9.*)

(Ed. Note.- For other cases, see Internal Rovand children above the age of ten years of military officers and civil officials aggregat

[No. 20.) ed 1,327, and that the appellants were paid for the transportation of each the steer. Argued March 12, 15, 1909. Decided May age rate of $73.75, instead of the cabin rate

17, 1909. of $215 each. The appellants are, there. fore, entitled to a further payment on account of the transportation of such persons

review a judgment denying the right of $141.25 each, in all, $187,438.75. It is of a national bank to be exempted from also shown in such finding that the number the statutory tax on its outstanding cir: of children of Spanish military officers and culation where the amount of such circu civil officials who were carried to Spain and lation was less than 5 per cent of its capiwere under the age of ten years aggregated tal. Affirmed. 395, and that Ceballos & Company were paid See same case below, 42 Ct. Cl. 6.

their transportation $36.8742 each, one The facts are stated in the opinion. half the adult steerage rate, instead of Messrs. R. E. Lee Marshall, James H. $107.50 each, one half the adult cabin rates. Hayden, and J. Hanson Thomas for apCeballos & Company were therefore entitled 'pellant.

*For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

29 S. C.–38.

88.

Assistant Attorney General John Q. “2. The said court erred in holding and Thompson and Mr. Philip M. Ashford deciding that g 3411, Revised Statutes, refor appellee.

lates solely to the taxation of the outstand

ing circulating notes of state banks which *Mr. Justice White delivered the opinion had ceased to exist, or had been converted of the court:

into national banks, and did not limit the Organized as a state bank in 1834, the claimant's liability to taxation on its own appellant was converted, in June, 1865, into outstanding circulation.” a national banking association. For nearly Without presently determining whether thirty [sic] years after its organization as a the right to be refunded, even if otherwise national bank, that is, up to July 1, 1904, well founded, was without merit because of the bank was assessed for and paid the duty the voluntary nature of the payments or the of one-half of 1 per cent upon the average effect of the statute of limitations, we come amount of its notes in circulation, in con- to consider the merits of the contention. It formity with § 5214, Rev. Stat. (U. S. Comp. depends upon whether § 5214, Rev. Stat., Stat. 1901, p. 3500). Availing itself of the is limited and controlled by the provisions of right conferred by $ 5218, Rev. Stat., copied § 3411, Rev. Stat. The two sections are as in the margin,t the bank made application follows: to be refunded the sum of $4,713.01, on the “Sec. 5214. In lieu of all existing taxes, ground that, in making certain of the half- every association shall pay to the Treasurer yearly payments under $ 5214, there had of the United States, in the months of Janu. been a miscalculation, and besides, because ary and July, a duty of one half of one per of an error of law, some of the half-yearly centum each half-year upon the average payments had been exacted when the bank amount of its notes in circulation, and a was exempt. We put aside so much of the duty of one quarter of one per centum each claim as was based upon mere errors of cal. half-year upon the average amount of its culation, as no contention on that subject deposits, and a duty of one quarter of one is here presented.

per centum each half-year on the average The alleged error of law or asserted right amount of its capital stock, beyond the to exemption rests upon the assumption amount invested in United States bonds." that, by the operation of § 3411, Rev. Stat. “Sec. 3411. Whenever the outstanding (U. S. Comp. Stat. 1901, p. 2248), the bank circulation of any bank, association, corpo was not liable to pay the half-yearly duty ration, company, or person is reduced to an on its outstanding circulation whenever the amount not exceeding five per centum of amount of its circulation fell below 5 per the chartered or declared capital existing at cent of its capital,-a contingency which, it the time the same was issued, said circuwas insisted, had arisen during certain of lation shall be free from taxation; and the half-yearly periods between January, whenever any bank which has ceased to is1888, and July, 1904. The request to be sue notes for circulation deposits in the refunded having been rejected by the Treas. Treasury of the United States, in lawful urer of the United States, this suit was money, the amount of its outstanding circommenced, and this appeal was taken from culation, to be redeemed at par, under such a judgment in favor of the United States. regulations as the Secretary of the Treas42 Ct. Ci. 6.

ury shall*prescribe, it shall be exempt from In the argument for the bank it is stated any tax upon such circulation.” that all the errors relied upon are embraced It is insisted that the sections, considered in the following propositions:

as applicable to the same subject, are har* "1. The said court erred in holding and monious, and that giving effect to both, deciding that the claimant, being a national while leaving a national banking association bank, was not exempt from taxation on its liable to the duty imposed by $ 5214, will notes in circulation during the half-yearly yet entitle it to the exemption provided in periods when the average amount of its said $ 3411 when the contingency stated in that notes was less than 5 per centum of its section has come to pass. And as this rechartered capital.

sult, it is argued, is clear and free from all +Sec. 5218. In all cases where an associa- doubt, considering the text of the two section has paid or may pay in excess of what tions, recourse may not be had to legislation may be or has been found due from it, on prior to the Revised Statutes, from which account of the duty required to be paid to the provisions of the sections were drawn, the Treasurer of the United States, the as- in order to arrive at their correct meaning. sociation may state an account therefor, Reference to such prior legislation, it is in. which, on being certified by the Treasurer sisted, cannot be resorted to for the purof the United States, and found correct by the First Comptroller of the Treasurer, pose of creating a doubt, but only to solve shall be refunded in the ordinary manner

one otherwise arising from the text, citing by warrant on the Treasury.

Hamilton v. Rathbone, 175 U. S. 418, 44 L

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