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pilots or between a pilot and the master, | but who would have prevented it if they owner, or consignee of a vessel, and to enter could, and who have done what they could judgment, which, if for money, may be col- to prevent it, so far as the qualifications and lected by a sheriff, etc. § 1980. But a judg- employment of the pilot were not taken out ment of suspension against a pilot is limited of their hands by law. Why they should in general to between one and twelve have to pay is the problem recurring through months. § 1981. And the board cannot de-agency in all its forms, and whatever may cide upon the liability of "a pilot" to any be thought of some of the reasons that have party injured by his negligence. § 1982. Pilots demanding or receiving more or less than their lawful fees are subjected to a forfeiture. § 1985. And certain further duties are prescribed.

been offered when the obligation has been imposed, it is certain that something more and better must be found than that the defendants divide the pay for the work that they have done, or that it is a convenience to the party aggrieved to discover a full purse to which to resort.

The rules of the board of commissioners provide for the appointment by them of a supervisory board from the pilot association, Whether the ground be policy or trato report to the president of the board of dition, such a liability is imposed, as we all commissioners all cases of insubordination, know, in many cases. When a man is carrybreach of rules, etc., or any misdemeanor, ing on business in his private interest and afloat or on shore, on the part of any mem- intrusts a part of the work to another, the ber of the association. A pilot desiring to world has agreed to make him answer for go off duty for five days or longer is re- that other as if he had done the work himquired to apply to the board of com- self. But there is always a limitation. It missioners. Suspensions, by whomsoever is true that he is not excused by care in ordered, are to be reported within twenty-selection or orders sufficient to secure right four hours to the president of the board, conduct, if obeyed. But when he could not and are to be acted upon by the board. All pilots are required to look out for their turns, and each pilot is held responsible for whatever turn he may hold upon the list, officers being prohibited from having anything to do with the swapping of turns. It will be seen that the rules of the board, made under the authority of this statute, recognize the association, as does the Code, more vaguely, in § 1960, quoted above. The rules also recognize the substitution of turns for the free competition of which there are traces in the Code. The rules tacitly assume that every pilot is a member of the association. All punishment and suspension is in the hands of the board, except, as may be added here, that the by-laws of the association impose a fine of $10 for a first violation of the rules of the association, of $20 for a second offense, and provide that a third shall be reported to the board of pilot commissioners. Thus substantially the whole government of the association is in the hands of the board.

select, could not control, and could not discharge, the guilty man, he does not answer for his torts. As a familiar instance, the servants of an independent contractor are not the servants of the contractee. The liability of a vessel when in the hands of a compulsory pilot is not put upon the ground that the pilot is the agent or servant of the owners, and therefore does not bear upon the question. The China (The China v. Walsh) 7 Wall. 53, 19 L. ed. 67. Now, we are not curious to inquire what form of test shall be accepted as the most profound for the existence of a partnership when considering liability for debts; but it is plain that when we are considering a liability for torts under the circumstances supposed no stricter or different criterion ought to be applied than in those cases where agency is the admitted ground. The rule, however stated, presses to the verge of general principles of liability. It must not be pressed beyond the point for which we can find a rational support.

So far as appears, the Virginia Pilot AsThe questions certified very properly go sociation had no one of the three powers beyond the question of the existence of a which we have mentioned. Seemingly it partnership. As long as the matter to be could neither select nor discharge its memconsidered is debated in artificial terms bers, as certainly it could not control or there is a danger of being led by a technical direct them in the performance of their definition to apply a certain name, and then duties as pilots. To take the last first, it is to deduce consequences which have no re- quite plain that the Virginia Code conlation to the grounds on which the name templates a bond of mutual personal liawas applied. The substance of the case is bility between the master of a vessel and this: A man who is responsible before the the pilot on board. If we imagine such a law is alleged to have committed a tort. It pilot performing his duties within sight of is proposed to make other men pay for it the assembled association, he still would be who not only have not commanded it or any sole master of his course. If all of his felact of which it was the natural consequence, 'lows passed a vote on the spot that he

408

Limitations of actions-threefold damages under antitrust act.

should change, and shouted it through a speaking trumpet, he would owe no duty to 2. The limitation of five years preobey, but would be as free as before to do what he thought best. Then, as to the scribed by U. S. Rev. Stat. § 1047, U. S. selection of members, there is no indication Comp. Stat. 1901, p. 727, for any "suit or prosecution for any penalty or forfeiture, of any in the Code, the rules of the board, pecuniary or otherwise, accruing under the or the constitution and by-laws of the as-laws of the United States," does not apply sociation. Nothing is said about membership, and the implication is plain that a condition of the association being permitted by the board to exist is that every pilot belongs to it. Probably, while it exists, a pilot scarcely would find it possible to compete from the outside. It is still plainer that the only provision for expulsion is that which would follow upon a pilot's being deprived of his license. The association has

no power over that.

to the action for threefold damages for injury to "business or property," authorized by the antitrust act of July 2, 1890, § 7, in cases of violations of that act. Limitation of actions-threefold damages under antitrust act.

3. The ten years limitation prescribed by Tenn. Code, § 2776, for "all other cases not expressly provided for," rather than the for "statute penalties," or the three years one year limitation prescribed by § 2772 limitation prescribed by § 2773 for injuries to personal or real property, governs an action for threefold damages for injury to "business or property" brought under the antitrust act of July 2, 1890, § 7, in which the right of recovery is based on the excessive price for iron water pipe which a municipality was led to pay by reason of an illegal arrangement between the members of a trust or combination formed in violation of that act.

[No. 94.]

All that there is upon which to base a joint liability is that the pilots, instead of taking their fees as they earn them, accomplish substantially the same result by mingling them in the first place, and then, after paying expenses, distributing them to those on the active list according to the number of days they respectively have been there. Apart from the possible slight difference between the proportion of days on the active list and days of active service, the case is the same as if each pilot kept his fees, merely contributing to keep up a common Argued November 3 and 12, 1906. Decided office from which his bills might be sent out and where a few details of common interest could be attended to. In the latter case this suit hardly would have been brought. The distinction between it and the one at bar is not great enough to justify a different result. See The City of Dundee, 47 C. C. A. 581, 108 Fed. 679, 684, 103 Fed. 696. The second and third questions certi

fied are answered "No."

IN

December 3, 1906.

ERROR to the United States Circuit

Court of Appeals for the Sixth Circuit to review a judgment which affirmed a judg ment of the Circuit Court for the Eastern District of Tennessee, in favor of plaintiff, in an action to recover threefold damages for injury to business or property, sustained

by reason of a violation of the antitrust act. Affirmed.

The facts are stated in the opinion. Messrs. Frank Spurlock and Foster V. Brown for plaintiffs in error.

Messrs. George Westmoreland, Churchill P. Goree, Linton A. Dean, and J. L. Foust for defendant in error.

Mr. Justice Holmes delivered the opinion of the court:

Monopolies-antitrust act-action for threeThis is an action by the city of Atlanta fold damages. 1. The action for threefold damages for (Georgia) against two Tennessee corporainjury to "business or property" authorized tions, members of the trust or combination by the antitrust act of July 2, 1890 (26 Stat. held unlawful in Addyston Pipe & Steel Co. at L. 209, chap. 647, U. S. Comp. Stat. 1901, v. United States, 175 U. S. 211, 44 L. ed. 136, p. 3202), § 7, in cases of violations of that 20 Sup. Ct. Rep. 98. The object of the suit act. may be maintained by a Georgia munic- is to recover threefold damages for alleged ipal corporation against the foreign corpo- injury to the city in its business or property, rate members of a combination forbidden by under § 7 of the act of July 2, 1890, chap. that act, where the municipality was led, by 647 (26 Stat. at L. 209, U. S. Comp. Stat. reason of the illegal combination, to pur-1901, p. 3202). The alleged injury is that chase from an Alabama corporation at an excessive price the iron pipe needed for its the city, being engaged in conducting a waterworks system. system of waterworks, and wishing to buy

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27 8. C.-5.

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iron water pipe, was led, by reason of the | money of the plaintiff, which is owned withillegal arrangements between the members in some particular state. In other words, of the trust, to purchase the pipe from the if Congress had power to make the acts Anniston Pipe & Foundry Company, an Ala- which led to the damage illegal, it could bama corporation, at a price much above authorize a recovery for the damage, alwhat was reasonable or the pipe was worth. though the latter was suffered wholly withThe purchase was made after a simulated in the boundaries of one state. Finally, the competition, at a price fixed by the trust, fact that the sale was not so connected in its and embracing a bonus to be divided among terms with the unlawful combination as to the members. The plaintiffs in error de- be unlawful (Connolly v. Union Sewer Pipe murred to the declaration, and pleaded not Co. 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. guilty, and that the action accrued more Rep. 431) in no way contradicts the proposithan one year and more than three years tion that the motives and inducements to before the suit was brought, relying upon make it were so affected by the combination §§ 2772 and 2773 of the Code of Tennessee, as to constitute a wrong. In most cases the eastern district of Tennessee being the where the result complained of as springing district in which the suit was brought. from a tort is a contract, the contract is The demurrer to the declaration was over-lawful, and the tort goes only to the motives ruled and the plaintiff had a verdict and which led to its being made, as when it is judgment in the circuit court. The verdict induced by duress or fraud. was for the difference between the price paid The limitation of five years in Rev. Stat. and the market or fair price that the city §1047, U. S. Comp. Stat. 1901, p. 727, to any would have had to pay under natural con- "suit or prosecution for any penalty or ditions had the combination been out of the forfeiture, pecuniary or otherwise, accruing way, together with an attorney's fee. The under the laws of the United States," does judgment trebled the damages. It was af not apply. The construction of the phrase firmed by the circuit court of appeals, the "suit for a penalty," and the reasons for plaintiffs in error having saved their rights that construction, have been stated so fully at every stage. The discussions of the law took place before the jury trial was reached. by this court that it is not necessary to reThey will be found in 64 L.R.A. 721, 61 C.peat them. Indeed, the proposition hardly C. A. 387, 127 Fed. 23, and 101 Fed. 900. For our purposes it seems unnecessary to state the case at greater length.

U. S. 657, 668, 36 L. ed. 1123, 1128, 13 Sup. is disputed here. Huntington v. Attrill, 146 Ct. Rep. 224; Brady v. Daly, 175 U. S. 148, 155, 156, 44 L. ed. 109, 112, 113, 20 Sup. Ct. Rep. 62.

The facts gave rise to a cause of action under the act of Congress. The city was a person within the meaning of § 7 by the Thus we come to the main question of the express provision of § 8. It was injured in case, namely, which limitation under the its property, at least, if not in its business laws of Tennessee is applicable, the matter of furnishing water, by being led to pay being left to the local law by the silence of more than the worth of the pipe. A person the statutes of the United States. Rev. whose property is diminished by a payment Stat. § 721, U. S. Comp. Stat. 1901, p. 581; of money wrongfully induced is injured in Campbell v. Haverhill, 155 U. S. 610, 39 L. his property. The transaction which did the ed. 280, 15 Sup. Ct. Rep. 217. The material wrong was a transaction between parties in provisions of the Tennessee Code are as foldifferent states, if that be material. The lows: By article 2769 (Shannon, 4466) all fact that the defendants and others had civil actions are to be commenced within the combined with the seller led to the excessive periods prescribed, with immaterial excepcharge, which the seller made in the inter- tions. By article 2772 (Shannon, 4469) est of the trust by arrangement with its actions, among others, for "statute penalmembers, and which the buyer was induced ties, within one year after cause of action to pay by the semblance of competition, accrued." By 2778 (Shannon, 4470) "actions also arranged by the members of the trust. One object of the combination was to pre-actions for the detention or conversion of for injuries to personal or real property; vent other producers than the Anniston Pipe & Foundry Company, the seller, from competing in sales to the plaintiff. There can be no doubt that Congress had power to give an action for damages to an individual who suffers by breach of the law. W. W. Montague & Co. v. Lowry, 193 U. S. 38, 48 L. ed. 608, 24 Sup. Ct. Rep. 307. The dam-peals held that the case did not fall within age complained of must almost or quite always be damage in property, that is, in the

personal property, within three years from the accruing of the cause of action." By 2776 (Shannon, 4473) certain actions enumer ated, "and all other cases not expressly provided for, within ten years after the cause of action accrued." The circuit court of ap

2772 or 2773, but only within 2776, and therefore was not barred. Although the

268.

Judgment affirmed.

decision is appealed from, as this question | pressly provided for." On the whole case involves the construction of local law, we we agree with the court below. cannot but attribute weight to the opinion of the judge who rendered the judgment, in view of his experience upon the supreme court of Tennessee. And although doubts were raised by the argument, we have come to agree with his interpretation in the main.

The CHIEF JUSTICE and Mr. Justice Peckham dissent.

(203 U. S. 360)

CITY OF MONTEREY, Plff, in Err.,

Private

V.

DAVID JACKS.

land claims-state control over pueblo lands.

ties of the city of Monterey of pueblo lands confirmed to that city by the United States and afterwards patented to it, its successors and assigns.

As to the article touching actions for statute penalties, notwithstanding some grounds for distinguishing it from Rev. Stat. § 1047, which were pointed out, so far as this liability under the laws of the United States is concerned we must adhere to the construction of it which we already 1. The California legislature could enhave adopted. The chief argument relied act the act of April 2, 1866, ratifying conupon is that this suit is for injury to person-veyances made by the corporate authori al property, and so within article 2773. It was pressed upon us that formerly the limitations addressed themselves to forms of action; that actions upon the case, such as this would have been, were barred in three years, following Stat. 21 Jac. I. chap. 21, § 3, and that when a change was necessitated by the doing away with the old forms of action, it is not to be supposed that the change was intended to affect the substance, or more than the mode of stating the time allowed. Of course, it was argued also that this was an injury to property, within the plain meaning of the words. But we are satisfied, on the whole, and in view of its juxtaposition with detention and conversion, that the phrase has a narrower intent. It Argued and submitted October 16, 1906.

may be that it has a somewhat broader scope than was intimated below, and that

Error to state court-Federal question.

2. The question whether the California legislature could enact the act of April 2, 1866, ratifying conveyances made by the corporate authorities of the city of Monteby the United States, and afterwards patrey of pueblo lands confirmed to that city ented to it, its successors and assigns, is not so far unsubstantial as to justify dismissal of a writ of error to a state court.

some wrongs are within it besides physical I

[No. 27.]

Decided December 3, 1906.

N ERROR to the Supreme Court of the
State of California to review a judg

damage to tangible property. But there is a sufficiently clear distinction between in- ment which affirmed a judgment of the Sujuries to property and "injured in his busi-perior Court of the County of Monterey, in ness or property," the latter being the lan- that state, in favor of defendant in an acguage of the act of Congress. A man is in- tion to quiet title to pueblo lands. Affirmed. See same case below, 139 Cal. 542, 73 Pac. jured in his property when his property is 436. diminished. He would not be said to have suffered an injury to his property unless the harm fell upon some object more definite and less ideal than his total wealth. A trademark, or a trade name, or a title, is property, and is regarded as an object capable of injury in various ways. But when a man is made poorer by an extravagant bill we do not regard his wealth as a unity, or the tort, if there is one, as directed

The facts are stated in the opinion. Mr. Hamilton Gay Howard for plaintiff in error.

Messrs. W. I. Brobeck, John Garber, and Frederic D. McKinney for defendant in er

ror.

Mr. Justice McKenna delivered the opinion of the court:

against that unity as an object. We do not tiff in error (and, being plaintiff in the court Action to quiet title, brought by plaingo behind the person of the sufferer. We say that he has been defrauded or subjected perior court of the county of Monterey to below, we will so designate it) in the suto duress, or whatever it may be, and stop 1,635.03 acres of land, situate in Monterey there. It was urged that the opening article county, state of California. Plaintiff alto which we have referred expressed an in- leged title in fee simple, and contends that tention to bar all civil actions, but that such title has come to it as successor of hardly helps the construction of any par- the pueblo of Monterey of Upper California. ticular article following, since the dragnet There is no dispute that the land was part at the end, 2776, catches all cases not "ex-of the pueblo of Monterey, and that, after

proper proceedings had in pursuance of acts | fendant, David Jacks, and in the conveyof Congress, the title of the city of Monte-ance the proceedings taken by the trustees rey was confirmed by a decree of the board of land commissioners, and a patent issued to the city November 19, 1891.

in the matter of such sale were recited. This conveyance was recorded in the county recorder's office of the county of Monterey on June 11, 1859. On April 2, 1866, the act to incorporate the city of Monterey was amended to read as follows: 'Sec. 2. All sales and conveyances made by the corpo

The defendant gets his title through one D. R. Ashley, who was the attorney for the city, to present and prosecute its claim to the land before the board of land commissioners. To pay the indebtedness in-rate authorities of said city since the 8th curred for his services the land was sold under the authority of certain acts of the legislature of the state, and purchased by him. The validity of the title so derived, as against the title of the city as successor of the pueblo of Monterey, free from the control of the legislature, makes the question in the casc. Judgment passed for the defendant in the trial court and was affirmed by the supreme court. 139 Cal. 542, 73 Pac. 436. This writ of error was then allowed.

day of February, 1859, and which conveyances purport to have been recorded in the county recorder's office of Monterey county, purporting to convey public lands, or lands confirmed to said city of Monterey, in pursuance of the act of Congress of March 3, 1851 (9 Stat. at L. 631, chap. 41), and entitled “An Act to Ascertain and Settle the Private Land Claims in the State of California," are hereby ratified and confirmed.'

On September 4, 1869, Ashley conveyed all his interest in the land in controversy to the defendant.”

The contentions of the parties are in part made to turn upon the kind of right the city of Monterey derived as the successor of the pueblo of Monterey, whether proprie tary or in trust, and, because in trust, subject to the disposition of the legislature of the state. This distinction was expressed by the supreme court and the case deter

The city of Monterey was incorporated by an act of the legislature of the state of California, March 30, 1850, and became thereby successor of the former pueblo to its pueblo lands. In 1857 the charter of the city was amended, and by 7 thereof the trustees were empowered to pay off the expenses of prosecuting the title of the city before the United States land commissioners and before the United States courts, and for that pur-mined by it, and the court supported its pose sell and transfer any property, right, or franchise upon such terms and for such price as might by them be deemed reasonable. It was found by the lower courts (and we quote from the opinion of the supreme court) that

action by a citation of prior decisions. It was said: "There is a marked difference, however, between lands which are held by a municipality in trust for public, municipal purposes, such as pueblo lands, and lands acquired by a municipality through purchase or special grant, and held in proprietary right." Of the latter class it was said: "That it is beyond the power of the state to control its disposition without the consent of the municipality." In the other case, "the lands, being simply ancillary to the execution of the public trust,-lands in which the pueblo never had an indefeasible proprietary interest, and which were subject to the supreme political dominion of the former Mexican government, became equally subject to the sovereignty of the state of California through its legislature upon the change of government."

"On January 24, 1859, said Ashley presented to the trustees of the city of Monterey a claim amounting to $991.50 for services as its attorney in presenting such pueblo claim to the commissioners. The claim was approved and allowed, and there being no funds in the treasury to pay it, the board of trustees passed a resolution directing that a sale of all the pueblo lands of the city, or so much of them as might be necessary to pay the claim of said Ashley, be made at public auction on the 9th day of February, 1859. Due notice of the time for holding said sale was given, and the same was held at the time and in accordance with the no- Plaintiff attacks this conclusion, and contice, at which sale the entire pueblo tract tends that the title to the lands vested, was bid in by the said D. R. Ashley and not in the state of California as succeeding the defendant, David Jacks, for the sum of sovereign, but in the United States, and the $1,002.50, being the amount of the indebted- United States, having the title, passed it by ness and the necessary expenses of sale; the patent of November 19, 1891, to the no one offering to purchase less than the plaintiff. And this contention, plaintiff aswhole, or bid a higher amount. Thereafter serts, presents the Federal question to be said trustees made, executed, and delivered decided. At one time this might have been a conveyance of said lands, dated February regarded as a serious question, but it is 9, 1859, but acknowledged February 12, 1859, no longer so. Whatever of legal power the in favor of said D. R. Ashley and the de-state of California may exercise over its

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