Johnson v. McAdoo (45 App. D.C. 440)/Brief for Appellee
_________________________________________________________________________
_________________________________________________________________________
IN THE
Court of Appeals, District of Columbia
APRIL TERM, 1916.
_________
No. 2918.
_________
H. N. JOHNSON, et al., Appellants,
vs.
WM. G. McADOO, Secretary of the Treasury, Appellee.
_________
BRIEF FOR APPELLEE.
_________
JOHN E. LASKEY,
United States Attorney, D.C.;
MABRY C. VAN FLEET
Special Assistant U.S. Attorney, D.C.,
- For Appellee.
_________________________________________________________________________
_________________________________________________________________________
J. D. Milans & Sons, Law Printers 707 8th Street, N.W., Washington, D.C.
[page i]
TABLE OF CONTENTS.
_________
The Case |
1 |
Points |
5 |
Argument |
6 |
… I. SUIT IS AGAINST THE UNITED STATES. |
6 |
… II. THERE IS NO EQUITY IN THE SUIT. |
9 |
… III. THAT SUIT IS BARRED BY GROSS LACHES. |
17 |
… IV. APPELLANTS' REMEDY, IF ANY, IN ANY ASPECT OF THE CASE, IS IN THE COURT OF CLAIMS. |
18 |
Appendix |
21 |
… RECEIPTS AND DISBURSEMENTS OF THE UNITED STATES. |
21 |
CASES CITED.
Belknap vs. Schild, 161 U.S., 10 |
9 |
Carr vs. United States, 98 U.S., 433 |
11 |
Craig vs. Beatty, 11 South Carolina, 375 |
12 |
Crease vs. Parker, Fed. Cas. No. 3,376 |
13 |
Curry vs. Curry, 30 Georgia, 253 |
11 |
Farrington vs. Saunders (not reported) |
3 |
Francois vs. Lobrano, 10 Rob. (Louisiana) |
12 |
Gildersleeve vs. New Mexico Mining Company, 161 U.S., 573 |
18 |
Gist vs. Toohey, 2 Rich. Law (South Carolina), 424 |
12 |
Godden vs. Kimmell, 99 U.S., 201 |
18 |
Goldberg vs. Daniels, 231 U.S., 218 |
6 |
Graves vs. Allan, 52 Kentucky (13 B. Mon.), 190 |
11 |
Hall vs. United States, -; United State vs. Roach, 92 U.S., 27 |
13 |
Hammond vs. Candler, 30 Georgia, 275 |
13 |
Hartman vs. Greenhow, 102 U.S., 672 |
9 |
Hume vs. Beale, 17 Wallace, 336 |
18 |
Hunter vs. Pittsburgh, 207 U.S., 161 |
10 |
Jackson vs. Lervey, 5 Cow. (New York), 397 |
12 |
Jenkins vs. Brown, 25 Tennessee (6 Hump) 299 |
13 |
Levy vs. Stockslager, 129 U.S., 470 |
9 |
Livaudais' Heirs vs. Fon, 8 Martin, O. S. (Louisiana), 161 |
12 |
Louisiana vs. McAdoo, 234 U.S., 627 |
6 |
Lupton vs. Janney, 13 Peters, 381 |
17 |
Malinda vs. Gardner, 24 Alabama, 719 |
13 |
Pennoyer vs. McConnaughy, 140 U.S., 1 |
7 |
Piatt vs. Vattier, 9 Peters, 405 |
18 |
[page ii]
Index — Continued.
Postal Supply Co. vs. Bruce, 194 U.S., 601 |
9 |
Scranton vs. Wheeler, 179 U.S., 141 |
9 |
Simmons vs. Burlington, etc., R. Co., 159 U.S., 278 |
17 |
Smith's Admr. vs. Betty, 11 Grattan (Virginia), 752 |
13 |
State vs. Van Lear, 5 Maryland, 91 |
12 |
Strader vs. Graham, 10 Howard, 82 |
10 |
Thomas vs. Brockenbrough, 10 Wheat., 146 |
17 |
Trotter vs. Blocker, 6 Port. (Alabama), 269 |
11 |
Turner vs. Smith, 12 Louisiana Ann., 417 |
12 |
United States vs. Lee, 106 U.S., 196 |
9 |
University of North Carolina vs. Cambreling, 14 Tennessee (6 Yerg.), 79 |
12 |
Wells vs. Nichols, 104 U.S., 444 |
9 |
Wells vs. Roper, Volume 44, Washington Law Reporter, 34 |
19 |
IN THE
Court of Appeals, District of Columbia
APRIL TERM, 1916.
_________
No. 2918.
__________
H. N. JOHNSON, et al., Appellants,
vs.
WM. G. McADOO, Secretary of the Treasury, Appellee.
_________
BRIEF FOR APPELLEE.
_________
THE CASE.
The appellants' original and amended bills, filed on the Equity side of the Supreme Court of the District of Columbia, seek an accounting from William G. McAdoo, Secretary of the Treasury, appellee herein, in respect to, and a recovery from him, of the sum of sixty-eight million seventy-two thousand three hundred and eighty-eight and 99/100 dollars ($68,072,388.99) ($1.8 billion in 2022 dollars), which sum the appellants allege and claim came into possession of [p2] appellee, William G. McAdoo, as Secretary of the Treasury under the following circumstances:
During the years from 1859 to 1868, the appellants claim that they and their ancestors were dominated and subjected to a system of involuntary servitude, and that under said system, they were forced to labor in the cultivation of, and otherwise prepare for general market purposes, many millions of bales of cotton; that said alleged services were rendered by the appellants in the Southern States of the United States; that by the system of the said involuntary servitude, the appellants being placed under duress and coercion, as is alleged by them, and as a result of the alleged system aforesaid, when the cotton was produced by them,
"it was conveyed away from the places of production without notice or consideration of any rights these appellants might have had in said fruit of their labor";
and it is further alleged by the appellants that they did not receive any compensation for said labor. The appellants further allege, as a cause of action, that the said cotton was disposed of without payment therefor to the appellants for the alleged labor in the production thereof, and that they are entitled to a lien upon the proceeds derived from the sale of said cotton, and the appellants further allege that they are informed that the Secretary of the Treasury has the custody of the said sixty-eight million seventy-two thousand three hundred and eighty-eight and 99/100 dollars ($68,072,388.99),
"which said money is part of the fruit of the cotton produced by these appellants,"
as it is alleged in said amended bill. The original bill states, as to the source from which was derived the sixty-eight million seventy-two thousand three hundred and eighty-eight and 99/100 dollars ($68,072,388.99) as follows: [p3]
* * * "being a portion of the proceeds of the identical cotton heretofore mentioned, and that said money is designated on the books of the defendant, named on said books and known as 'Internal Revenue Tax on Raw Cotton.' "
The amended bill contains no statement as to the source from which the sum above referred to was derived.
Counsel for appellee deem it proper to set out a resume of data having relation to the Cotton Tax:
The tax on raw cotton, which at first was one-half cent per pound, was levied under the 75th section of "An Act to provide internal revenue to support the Government and to pay interest on the Public Debt," approved July 1, 1862 (12 Stat., 432, 462-465).
The tax became effective October 1, 1862, and by a proviso to the law all cotton owned and held by any manufacturer of cotton fabrics on the first day of October, 1862, and prior thereto, was exempted from the tax.
The tax was increased to two cents per pound by Section 4 of the Act of March 7, 1864 (13 Stat., 15, sec. 4), and further increased to three cents per pound by Section 1 of the Act of July 13, 1866 (14 Stat., 98). By the Act of March 2, 1867 (14 Stat., 471, sec. 1), the tax was reduced to two and one-half cents per pound on and after September 1, 1867, and Congress, by "An Act to provide for the exemption of cotton from internal tax," approved February 3, 1868 (15 Stat., 34), exempted all cotton grown in the United States after the year 1867. The total collections during the time the tax was in force amounted to $68,072,388.99.
The constitutionality of the tax on cotton was raised in the case of William M. Farrington vs. Rolfe M. (p4) Saunders, Internal Revenue Collector for the Eighth District of the State of Tennessee, September Term, 1867, wherein it was held that the tax was constitutional and valid. On appeal to the Supreme Court of the United States, the court was equally divided, with the effect that the judgement of the court below was affirmed. The case is not found in the Supreme Court reports, but the record is included in "Transcripts of Records, Supreme Court of the United States" (Volume 1, December Term, 1870, page 178), and the briefs and arguments, in "File Copies of Briefs, Supreme Court of the United States" (Vol. 1, December Term, 1870). No separate or distinct account, known or described as "Cotton Tax Fund," or otherwise designated as a separate fund or account, was ever kept on the books of the Treasury Department. The moneys derived from the tax on cotton were deposited in the general fund of the Treasury as receipts from internal revenue and expended for the support of the Government and payment of interest on the public debt, as the law provided. Moneys of the United States derived from taxes levied and collected under laws enacted by Congress when paid into the United States Treasury constitute a part of the general fund of the Treasury, consisting principally of duties collected on merchandise imported into the United States and from internal revenue taxes that Congress makes the necessary appropriation for the support of the Government, the payment of the principal and interest of the public debt, and the support of the Army and Navy. Appropriations by Congress under Section 8 of Article [p5] I of the Constitution of the United States are not made by naming custom duties, internal revenue taxes, etc., as applicable to such appropriations, but are made from "any moneys in the Treasury not otherwise appropriated."
The title of the Internal Revenue law of July 1, 1862, under which (Section 75) the cotton tax was levied, was declaratory of the object of the law, and the moneys derived from the taxes imposed by that law, and amendments thereto, being paid into the general fund of the Treasury were appropriated and expended for objects, of Government authorized by Congress, consequently no moneys derived from the cotton tax now remain in the United States Treasury. This will more fully appear from the last column headed "Surplus (+) or deficit (—) on all receipts," in an excerpt from "RECEIPTS AND DISBURSEMENTS OF THE UNITED STATES—RECAPITULATION OF RECEIPTS BY FISCAL YEARS," which shows the various years (from 1856 to 1915, inclusive) wherein there was a deficit in the Treasury, caused by disbursements being in excess of receipts, for the particular years. (See appendix to this brief.)
POINTS.
Counsel for the appellee contend:
- 1. That the case made by the appellants is a suit against the United States, though nominally the relief is prayed against appellee.
- 2. That there is no equity in the suit.
- 3. That if any right the appellants have, the same is barred by gross laches as appears by the original and amended bills. [p6]
- 4. The appellants' remedy, if any, in any aspect of the case, is in the Court of Claims.
- 1. That the case made by the appellants is a suit against the United States, though nominally the relief is prayed against appellee.
Argument.
I.
SUIT IS AGAINST THE UNITED STATES.
In the late case (1914) of Louisiana vs. McAdoo, 234 U.S., 627, the Supreme Court has shown no departure from the proposition that the United States cannot be sued without its consent. And the impossibility is quite the same whether it is sued directly or indirectly. Louisiana applied for leave to file a petition for mandamus to compel the Secretary of the Treasury to collect from Cuba a larger duty on sugar than he had officially determined was collectible. At the threshold of the case, Mr. Justice Lurton, speaking for the court, at page 627, said:
"No principle is better established than that the United States may not be sued in the courts of this country without its consent. * * * "That the United States is not named on the record is true. But the question whether it is in legal effect a party to the controversy is not always determined by the fact that it is not named as a party on the record, but by the effect of the judgment or decree here rendered." Citing: 185 U.S., 373, Minnesota vs. Hitchcock. 204 U.S., 331, Kansas vs. U.S.
In Goldberg vs. Daniels, 231 U.S., 218, although the Supreme Court found ample ground for affirmance upon the branch of the case upon which it was considered in this court, Mr. Justice Holmes, speaking for the court (p. 221), dismissed the application. [p7]
"We see no sufficient reason for throwing doubt upon the premise for the decision, but there is another that comes earlier in point of logic. The United States is the owner in possession of the vessel. It cannot be interfered with behind its back, and, as it cannot be made a party the suit must fail." Goldberg vs. Daniels (supra).
In all the cases in the Supreme Court bearing upon the question, whether as a matter of law the suit is one against the sovereignty, be it State or nation, it has been the nature of the complaint or the nature of the relief sought, or both, which has determined the matter. A glance at some of the numerous cases is necessary.
Mr. Justice Lamar, delivering the opinion of the court in Pennoyer vs. McConnanghy, 140 U.S., 1, 9, made use of the following language:
"The question, then, of jurisdiction is first presented for determination. Is this suit, in legal effect, one against a State, within the meaning of the Eleventh Amendment of the Constitution? A very large number of cases involving a variety of questions arising under this amendment have been before this court for adjudication; and, as might naturally be expected, in view of the important interests and the wide-reaching political relations involved, the dissenting opinions have been numerous, still the general principles enunciated by these adjudications will, upon a review of the whole, be found to be such as the majority of the court and the dissentients are substantially agreed upon.
"It is well settled that no action can be maintained in any Federal court by the citizens of one State against a State, without its consent, even [p8] though the sole object of such suit be to bring the State within the operation of the constitutional provision which provides that 'no State shall pass any law impairing the obligation of contracts.' This immunity of a State is absolute and unqualified, and the constitutional provision securing it is not to be so construed as to place the State within the reach of the process of the court. Accordingly, it is equally well settled that a suit against the officers of a State, to compel them to do the acts which constitute a performance by it of its contracts, is, in effect, a suit against the State itself.
"In the application of this latter principle two classes of cases have appeared in the decisions of this court, and it is in determining to which class a particular case belongs that different views have been presented.
"The first class is where the suit is brought against the officers of the State, as representing the State's action and liability, thus making it, though not a party to the record, the real party against which the judgment will so operate as to compel it to specifically perform its contracts. In re Ayers, 123 U.S., 443; Louisiana vs. Jumel, 107 U.S., 711; Antoni vs. Grcenhow, 107 U.S., 769; Cunningham vs. Macon & Brunswick Railroad, 109 U.S., 446; Hagwood vs. Southern 117 U.S., 52.
"The other class is where a suit is brought against defendants, who, claiming to act as officers of the State, and under the color of an unconstitutional statute, commit acts of wrong and injury to the rights and property of the plaintiff acquired under a contract with the State. Such suit, whether brought to recover money or property in the hands of such defendants, unlawfully taken by them in behalf of the State, or for compensation in damages, or in a proper case, where the remedy at law is inadequate, for an injunction [p9] to prevent such wrong and injury, or for a mandamus, in a like case, to enforce upon the defendant the performance of a plain, legal, duty, purely ministerial—is not, within the meaning of the Eleventh Amendment, an action against the State." Osborn vs. Bank of the United States, 9 Wheat., 738; Davis vs. Gray, 16 Wall., 203; Tomlinson vs. Branch, 15 Wall., 460; Litchfield vs. Webster, 101 U.S., 773; Allen vs. Baltimore and Ohio Railroad, 114 U.S., 311; Board of Liquidation vs. McComb, 92 U.S., 531; Poindexter vs. Greenhow, 114 U.S., 270.
Among other cases in which the same questions have been presented to the Supreme Court of the United States and which follow the same classification are:
- In the class of Osborn vs. Bank (supra):
- 104 U.S., 444, Wells vs. Nichols.
- 179 U.S., 141, Scranton vs. Wheeler.
- 102 U.S., 672, Hartman vs. Greenhow.
- 106 U.S., 196, U.S. vs. Lee.
- 104 U.S., 444, Wells vs. Nichols.
- In the class of In re Ayers:
- 98 U.S., 433, Carr vs. U.S.
- 161 U.S., 10, Belknap vs. Schild.
- 194 U.S., 601, Postal Supply Co. vs. Bruce.
- 129 U.S., 470, Levy vs. Stockslager.
- 98 U.S., 433, Carr vs. U.S.
Argument.
II.
THERE IS NO EQUITY IN THE SUIT.
Counsel for appellee submit that it is unlikely that a more unfounded claim than this was ever presented to any court. So apparent is this, that counsel for appellee, in considering the question involved here, cannot refrain [p10] from having in mind the view expressed by the Supreme Court of the United States in Hunter vs. Pittsburgh, 207 U.S., 161, 177, where Mr. Justice Moody, referring to the fact that no authority or reason in support of a cause of action had been offered to the court, said:
"It is difficult to deal with a proposition of this kind except by saying that it is not true."
But this apart, it is clear that the claim of appellants, if any they have, could only arise as a property right ex contractu or on a quantum meruit, for compensation for the services alleged by them to have been rendered. Such claim cannot be asserted by them as arising against the Federal Government under any constitutional or statutory provision of the United States, for the Supreme Court in Strader vs. Graham, 10 Howard, 82, which was a suit to recover for the value of escaped slaves, said:
"Every State has an undoubted right to determine the status, or domestic and social condition, of the persons domiciled within its territory; except insofar as the powers of the States in this respect are restrained, or duties and obligations imposed upon them, by the Constitution of the United States. There is nothing in the Constitution of the United States that can in any degree control the law of Kentucky upon this subject. And the condition of the negroes, therefore, as to freedom or slavery, after their return, depended altogether upon the laws of that State, and could not be influenced by the laws of Ohio. It was exclusively in the power of Kentucky to determine for itself whether their employment in another State should or should not make them free on their return. The Court of Appeals have de-[p11]termined, that by the laws of the State they continued to be slaves. And their judgment upon this point is, upon this writ of error, conclusive upon this court, and we have no jurisdiction over it." Page 93, et seq.
Hence, it appears that as the separate States fixed the status and the consequent property and contractual rights, if any, of persons rendering chattel service therein, it must follow that the claim of appellants, if any they have, is one against the State or States wherein the alleged services in producing the cotton in question were rendered.
Relative to the property and contractual rights of persons performing chattel service under the system formerly in force in certain of the States of the Union, counsel for appellee respectfully invite the attention of the court to the following cases selected from decisions in Alabama, Georgia, Kentucky, Louisiana, Maryland, New York, South Carolina, Tennessee, Virginia, the District of Columbia, and in the Supreme Court of the United States.
| Case | Decision |
|---|---|
| Trotter vs. Blocker, 6 Port. (Alabama), 269: | Slaves have not the capacity to take property by purchase or descent; and a bequest in trust for a slave will not be enforced for his benefit, but the bequest will lapse. |
| Curry vs. Curry, 30 Georgia, 253: | A bequest of money in trust for slaves, the interest of which is to be paid them after their removal to a free State, is invalid. |
| Graves vs. Allan, 52 Kentucky (13 B. Mon.) 190: | Slaves cannot become the legal owners of property. By the assent of their masters, they have [p12] the physical possession and use of property. They cannot take as legatees, nor can their owners derive title to any property bequeathed or devised to a slave. |
| Livaudais Heirs 7's. Fon, 8 Martin, O. S. (Louisiana) 101: | Slaves are incapable of inheritance. |
| Francois vs. Fob ratio, 10 Rob. (Louisiana), 450: | A slave cannot, until legally and absolutely emancipated, own any property without his master's consent. |
| Turner vs. Smith, 12 Louisiana Ann., 417: | A slave can neither sue for alimony nor inherit. |
| State vs. Van Lear, 5 Maryland, 91: | A slave can acquire no rights under a deed which either a court of law or of equity can enforce. |
| Jackson vs. Lervey, 5 Cow. (New York), 397: | At common law a slave could not take lands, either by descent or purchase. |
| Gist vs. Toohey, 2 Rich. Law (South Carolina), 424: | All the acquisitions of the slave in possession are the property of his master, notwithstanding the master's promise that the slave shall have certain of them. |
| Craig vs. Beatty, 11 South Carolina, 375: | Held, as a testatrix intended to create a trust for the benefit of slaves, that the bequest was therefore void. |
| University of North Carolina vs. Cambreling, 14 Tennessee (6 Yerg.), 79: | A slave owner is entitled to the warrant issued to the slave for military service rendered by him. |
| [p13] Jenkins vs. Brown, 25 Tennessee (6 Humph.), 299: | A slave can make no contract obligatory on himself or the other party; and money acquired by him by permission of his master inures to the benefit of his master. |
| Smith's Admr. vs. Betty, 11 Grattan (Virginia), 752: | A conveyance of land and slaves in trust to allow the slaves to occupy the land, and receive the profits thereof and of their labor, is void. |
| Malinda vs. Gardner, 24 Alabama, 719: | The children of a slave, born during slavery, are not such heirs as will prevent the escheat of his property in the event of his death intestate after he has obtained his freedom. |
| Crease vs. Parker, Fed. Cas. No. 3,376 (1 Cranch, C. C., 448); Id. Fed. Cas. No. 3,377 (1 Cranch, C. C., 506): | A promise by a slave to repay money advanced to him to enable him to purchase his freedom is not binding, and it cannot be enforced, though the slave acknowledges his liability after emancipation. |
| Hammond Z's. Candler, 30 Georgia, 275: | A slave cannot become free by lapse of time. |
| Hall vs. United States.—United States vs. Roach, 92 U.S., 27: | The essential facts in this case were as follows: |
Hall vs. United States.—United States vs. Roach, 92 U.S., 27
"Hall is a man of color, of Indian and African descent, and claims to have been free born. His mother was of Indian extraction, residing at the time of his birth in the city of Alexandria as a free woman. " '8. [Warren] Hall, with other slaves, was taken from a slave-market in Washington, D.C., by one Thomas Williams, to New Orleans, La.; and there [p14] he, with other slaves, was sold by a trader to the claimant [Mary] Roach's father, who sent him up to the Bachelor's Bend plantation, in Mississippi. Hall was sent to the plantation in 1844, and remained there as the slave of Roach's father until the latter's death in 1847, and after that as the slave of the claimant Roach, who succeeded to the estate of his father, and remained there until after the cotton in question was seized in 1863. He was treated all the time as a slave, fed and clothed by his master, and worked with the other slaves, sometimes as a field-hand, and at others as a stock-minder. " '9. On the contrary. Hall now claims to have been a free man while living with claimant Roach, and that, as such, Roach was justly indebted to him on account of stock, hogs, pork, etc., which he had raised on Roach's plantation, and sold and delivered to him, and that the cotton now in suit was given him by Roach in discharge of his indebtedness. " '10. Hall, under this claim of title, followed the cotton, after its seizure, to the river, and made affidavit that he was the lawful owner thereof. Roach's overseer, McDowell, hearing of Hall's claim to the cotton, immediately contested his right to it before the officers of the United States having it in charge; and Hall afterward admitted to McDowell, the overseer, that the cotton was not his, and that his oath, in which he asserted a claim thereto, was false. " 'Afterward, however, Hall continued to prosecute his efforts to obtain the release of the cotton, and finally brought suit to recover the proceeds in this court. " 'I. On the foregoing facts, the court holds as conclusions of law, that, under the laws of the State of Mississippi, the claimant Hall, in his condition of servitude, could not lawfully contract with his master, or hold the property he claims to [p15] have given in consideration of the cotton, and that no title to it was ever vested in Hall.' " Page 28, et seq.
"It was an inflexible rule of the law of African slavery, wherever it existed, that the slave was incapable of entering into any contract, not excepting the contract of marriage. Stephens on West Ind. Slav., 58; Hall vs. Mullin, 5 Har. & J., 190; Gregg vs. Thompson, 2 Const. Ct. Rep. (S.C.), 331; Jenkins vs. Broun, 6 Humph., 299; Jackson vs. Lewey, 5 Cow., 397; Emerson vs. Howland, 1 Mas., 45; Bland vs. Dowling, 9 Gill & J., 27. "This regulation was harsher than that which obtained in regard to the Roman bondsman, the Saxon villein, Russian serf, and the German and Polish slave. Cobb on Slav., sect. 266. "In the light of these authorities, it is clear that if Hall did contract with Roach, as he alleges he did, the contract was an utter nullity. In the view of the law, it created no obligation, and conferred no rights as to cither of the parties. It was as if it were not. This case must be determined as if slavery had not been abolished in Mississippi and the laws referred to were still in force there. The destruction of the institution can have no [p17] effect upon the prior rights here in question" Page 30, ct seq. (Italics ours.) |
Counsel for appellee regard the case last cited as decisively against the right of appellants to maintain the suit at bar, for, if a slave could not create a property right in himself by entering into a contract with, and thereby establishing a liability against, his master, how then can these appellants establish a claim against the United States, which, in its essence, can arise only as a property right upon a contractual basis?
It is respectfully submitted that appellants have no cause of action, and that, therefore, there is no equity in the suit.
Argument.
III.
THAT SUIT IS BARRED BY GROSS LACHES.
The Thirteenth Article of Amendments to the Constitution, abolishing slavery and involuntary servitude, was proclaimed by the Secretary of State, December 18, 1865, and became a part of the Constitution. Fifty years, in round numbers, elapsed between that date and the day of the filing of this suit, without the assertion of a claim by these appellants. Neither in appellants' original or amended bills is any excuse shown for not before asserting their claim. A court of equity always refuses its aid to stale and antiquated demands.
- Simmons vs. Burlington, etc., R. Co., 159 U.S., 278, 291.
- Thomas vs. Brockenbrough, 10 Wheat., 146, 149.
- Lupton vs. Janney, 13 Pet., 381, 386.
- Simmons vs. Burlington, etc., R. Co., 159 U.S., 278, 291.
In Gilderslccvc vs. New Mexico Mining Company, 161 U.S., 573, the Supreme Court quoted with approval the following:
"Independently of any statute of limitations, courts of equity uniformly decline to assist a person who has slept upon his rights and shows no excuse for his laches in asserting them. 'A court of equity,' said Lord Camden, 'has always refused its aid to stale demands where the party slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where these are wanting, the court is passive and does nothing. Laches and neglect are always discountenanced, and, therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court.' "
Independently of any statute of limitations, courts of equity uniformly decline to assist a person who has slept upon his rights and shows no excuse for his laches in asserting them.
- Hume vs. Beale, 17 Wallace, 336.
- Piatt vs. Vattier, 9 Peters, 405.
- Goddcn vs. Kimmcll, 99 U.S., 201.
- Hume vs. Beale, 17 Wallace, 336.
Argument.
IV.
APPELLANTS' REMEDY, IF ANY, IN ANY ASPECT OF THE CASE, IS IN THE COURT OF CLAIMS.
The principle that a sovereignty cannot be sued, except by its consent thereunto, expressly given, is too well established to require a citation of authorities. [p19]
It is contended that appellants' remedy, if any, is in the Court of Claims, and that the principle laid down by this court, in Wells vs. Roper, Volume 44, Washington Law Reporter, 34, is applicable to this case.
It is submitted that the action of the court below, in dismissing appellants' original and amended bills, was proper and should be affirmed.
Respectfully submitted,
John E. Laskey,
United States Attorney, D.C.;
Mabry C. Van Fleet,
Special Assistant U.S. Attorney, D.C.,
- For Appellee.
APPENDIX
| RECEIPTS AND DISBURSEMENTS OF THE UNITED STATES. RECAPITULATION OF RECEIPTS BY FISCAL YEARS. | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Year. | Ordinary receipts. | Postal revenue. | Total ordinary receipts and postal revenue. | Surplus (+) or deficit (-) on ordinary receipts, including postal deficiencies. | Panama Canal receipts - proceeds of bonds and premium. | Public-debt receipts. | Excess of deposits to retire national-bank notes over redemptions. | Total of all receipts. | Surplus (+) or deficit (-) on all receipts. | |||||||
| Customs. | Internal revenue. | Miscellaneous. | Total ordinary receipts. | Proceeds of bonds and other securities. | Premium received. | Total public debt. | ||||||||||
| Sale of public lands. | Direct tax. | Other miscellaneous items. | ||||||||||||||
| 1856......................... | $64,022,863.50 | ................ | $8,917,644.93 | ................ | $1,116,190.81 | $74,056,699.24 | $6,920,821.66 | $80,977,520.90 | +$5,330,349.23 | ................ | $200.00 | ................ | $200.00 | ................ | $80,977,720.90 | +$1,330,557.67 |
| 1857......................... | 63,875,905.05 | ................ | 3,829,486.64 | ................ | 1,259,920.88 | 68,965,312.57 | 7,353,951.76 | $76,319,264.33 | +1,330,903.64 | ................ | 3,900.00 | ................ | 3,900.00 | ................ | $76,323,164.33 | -2,305,374.80 |
| 1858......................... | 41,789,620.96 | ................ | 3,513,715.87 | ................ | 1,352,029.13 | 46,655,365.96 | 7,486,792.86 | $54,142,158.82 | -27,327,126.88 | ................ | 23,717,300.00 | ................ | 23,717,300.00 | ................ | $77,859,458.82 | -11,689,520.78 |
| 1859......................... | 49,565,824.38 | ................ | 1,756,687.30 | ................ | 1,454,596.24 | 52,777,107.92 | 7,968,484.07 | $60,745,591.99 | -16,216,491.85 | ................ | 28,287,500.00 | $709,357.72 | 28,996,857.72 | ................ | $89,742,449.71 | -1,904,677.28 |
| 1860......................... | 53,187,511.87 | ................ | 1,778,557.71 | ................ | 1,088,530.25 | 56,054,599.83 | 8,518,067.40 | $64,572,667.23 | -7,146,275.82 | ................ | 20,776,800.00 | 10,008.00 | 20,786,808.00 | ................ | $85,359,475.23 | -213,717.82 |
| 1861......................... | 39,582,125.64 | ................ | 870,658.54 | ................ | 1,023,515.31 | 41,476,299.49 | 8,349,296.40 | $49,825,595.89 | -25,173,913.59 | ................ | 41,861,709.74 | 33,630.90 | 41,895,340.64 | ................ | $91,720,936.53 | -2,015,672.95 |
| 1862......................... | 49,056,397.62 | ................ | 152,203.77 | $1,795,331.73 | 915,327.97 | 51,919,261.09 | 8,299,820.90 | $60,219,081.99 | -417,650,980.56 | ................ | 529,692,460.50 | 68,400.00 | 529,760,860.50 | ................ | $589,979,942.49 | +16,012,557.85 |
| 1863......................... | 69,059,642.40 | $37,640,787.95 | 167,617.17 | 1,485,103.61 | 3,741,794.38 | 112,094,945.51 | 11,163,789.59 | $123,258,735.10 | -606,639,330.67 | ................ | 774,583,361.57 | 602,345.44 | 775,185,707.01 | ................ | $898,444,442.11 | -10,436,258.73 |
| 1864......................... | 102,316,152.99 | 109,741,134.10 | 588,333.29 | 475,648.96 | 49,590,595.99 | 262,711,865.33 | 12,438,253.78 | $275,150,119.11 | -602,257,235.50 | ................ | 1,086,312,896.82 | 1,875,206.88 | 1,088,188,103.70 | ................ | $1,363,338,222.81 | +97,919,902.71 |
| 1865......................... | 84,928,260.60 | 209,464,215.25 | 996,553.31 | 1,200,573.03 | 30,693,916.49 | 327,283,518.68 | 14,556,158.70 | $341,839,677.38 | -967,815,770.90 | ................ | 1,468,064,910.85 | 6,431,086.40 | 1,474,495,997.25 | ................ | $1,816,335,674.63 | -100,493,985.44 |
| 1866......................... | 179,046,651.58 | 309,226,813.42 | 665,031.03 | 1,974,754.12 | 66,903,980.19 | 557,817,230.34 | 14,436,986.21 | $572,254,216.55 | +38,794,874.00 | ................ | 612,035,278.05 | 215,389.72 | 612,250,667.77 | ................ | $1,184,504,884.32 | +120,757,951.16 |
| 1867......................... | 176,417,810.88 | 266,027,537.43 | 1,163,575.76 | 4,200,233.70 | 29,192,365.70 | 477,001,523.47 | 15,297,026.87 | $492,298,550.34 | +130,272,197.69 | ................ | 473,024,790.29 | 13,632,486.80 | 486,657,277.09 | ................ | $978,955,827.43 | +29,995,625.29 |
| 1868......................... | 164,464,599.56 | 191,087,589.41 | 1,348,715.41 | 1,788,145.85 | 39,680,390.13 | 398,369,440.36 | 16,292,600.80 | $414,662,041.16 | +28,030,306.54 | ................ | 537,099,974.00 | 7,268,642.96 | 544,368,616.96 | ................ | $959,030,658.12 | -38,051,314.22 |
| 1869......................... | 180,048,426.63 | 158,356,460.86 | 4,020,344.34 | 765,685.61 | 26,373,628.03 | 369,564,545.47 | 18,344,510.72 | $387,909,056.19 | +48,373,947.72 | ................ | 100,069,071.06 | 1,379,201.74 | 101,448,272.80 | ................ | $489,357,328.99 | +9,436,292.16 |
| 1870......................... | 194,538,374.44 | 184,899,756.49 | 3,350,481.76 | 229,102.88 | 28,236,255.67 | 411,253,971.21[1] | 19,772,220.65 | $431,026,191.89 | +117,596,966.09 | ................ | 31,569,916.00 | 1,506.39 | 31,571,422.39 | ................ | $462,597,614.28 | -7,638,809.25 |
| 1871......................... | 206,270,408.05 | 143,098,153.63 | 2,388,646.68 | 580,355.37 | 30,986,381.16 | 383,323,944.89 | 20,037,045.42 | $403,360,990.31 | +100,163,551.38 | ................ | 91,603,212.47 | ................ | 91,603,212.47 | ................ | $494,964,202.78 | -24,927,570.54 |
| 1872......................... | 216,370,286.77 | 130,642,177.72 | 2,575,714.19 | ................ | 24,518,688.88 | 374,106,867.56 | 21,915,426.37 | $396,022,293.93 | +103,547,171.65 | ................ | 173,717,750.00 | ................ | 173,717,750.00 | ................ | $569,740,043.93 | -15,571,348.65 |
| 1873......................... | 188,089,522.70 | 113,729,314.14 | 2,882,312.38 | 315,254.51 | 28,721,800.94 | 333,738,204.67 | 22,996,741.57 | $356,734,946.24 | +48,498,879.33 | ................ | 38,681,450.00 | ................ | 38,681,450.00 | ................ | $395,416,396.24 | -14,479,076.24 |
| 1874......................... | 163,103,833.69 | 102,409,784.90 | 1,852,428.93 | ................ | 37,612,708.54 | 304,978,756.06 | 26,471,071.82 | $331,449,827.88 | +3,739,955.85 | ................ | 183,235,866.00 | ................ | 183,235,866.00 | ................ | $514,685,693.88 | +9,157,257.53 |
| 1875......................... | 157,167,722.35 | 110,007,493.58 | 1,413,640.17 | ................ | 19,411,195.00 | 288,000,051.10 | 26,791,360.59 | $314,791,411.69 | +13,376,658.26 | ................ | 133,118,500.00 | ................ | 133,118,500.00 | ................ | $447,909,911.69 | -4,655,478.22 |
| 1876......................... | 148,071,984.61 | 116,700,732.03 | 1,129,466.95 | 93,798.80 | 27,794,148.11 | 293,790,130.50 | 28,644,197.50 | $322,434,328.00 | +28,689,045.91 | ................ | 132,928,950.00 | 305,734.78 | 133,234,684.78 | ................ | $455,669,012.78 | -4,204,784.11 |
| 1877......................... | 130,956,493.07 | 118,630,407.83 | 976,253.68 | ................ | 30,687,068.20 | 281,250,222.78 | 27,531,585.26 | $308,781,808.04 | +39,915,747.92 | ................ | 141,134,650.00 | 156,195.80 | 141,290,845.80 | ................ | $450,072,653.84 | +29,967,068.67 |
| 1878......................... | 130,170,680.20 | 110,581,624.74 | 1,079,743.37 | ................ | 15,931,830.39 | 257,763,878.70 | 29,277,516.95 | $287,041,395.65 | +20,799,551.90 | ................ | 198,850,250.00 | ................ | 198,850,250.00 | ................ | $485,891,645.65 | +75,651,808.00 |
| 1879......................... | 137,250,047.70 | 113,561,610.58 | 924,781.06 | ................ | 20,593,801.87 | 272,330,241.21 | 30,041,982.86 | $302,372,224.07 | +5,382,357.68 | ................ | 617,578,010.00 | 1,496,943.25 | 619,074,953.25 | ................ | $921,447,177.32 | +144,575,084.77 |
| 1880......................... | 186,522,064.60 | 124,009,373.92 | 1,016,506.60 | 30.85 | 21,978,525.01 | 333,526,500.98 | 33,315,479.34 | $366,841,980.32 | +68,678,863.62 | ................ | 73,065,540.00 | 110.00 | 73,065,650.00 | ................ | $439,907,630.32 | -141,485,744.21 |
| 1881......................... | 198,159,676.02 | 135,264,385.51 | 2,201,863.17 | 1,516.89 | 25,154,850.98 | 360,782,292.57 | 36,785,397.97 | $397,567,690.54 | +101,130,653.76 | ................ | 678,200.00 | ................ | 678,200.00 | ................ | $398,245,890.54 | +14,637,023.93 |
| 1882......................... | 220,410,730.25 | 146,497,595.45 | 4,753,140.37 | 160,141.69 | 31,703,642.52 | 403,525,250.28 | 41,876,410.15 | $445,401,660.43 | +145,543,810.71 | ................ | 225,300.00 | ................ | 225,300.00 | ................ | $445,626,960.43 | -20,736,144.84 |
| 1883......................... | 214,706,496.93 | 144,720,368.98 | 7,955,864.42 | 108,156.60 | 30,796,695.02 | 398,287,581.95 | 45,508,692.61 | $443,796,274.56 | +132,879,444.41 | ................ | 304,372,850.00 | ................ | 304,372,850.00 | ................ | $748,169,124.56 | -1,178,462.55 |
| 1884......................... | 195,067,489.76 | 121,586,072.51 | 9,810,705.01 | 70,720.75 | 21,984,881.89 | 348,519,869.92 | 43,325,958.81 | $391,845,828.73 | +104,393,625.59 | ................ | 1,404,650.00 | ................ | 1,404,650.00 | ................ | $393,250,478.73 | +4,531,941.09 |
| 1885......................... | 181,471,939.34 | 112,498,725.54 | 5,705,986.44 | ................ | 24,014,055.06 | 323,690,706.38 | 42,560,843.83 | $366,251,550.21 | +63,463,771.27 | ................ | 58,150.00 | ................ | 58,150.00 | ................ | $366,309,700.21 | +17,479,285.84 |
| 1886......................... | 192,905,023.44 | 116,805,936.48 | 5,630,999.34 | 108,239.94 | 20,989,527.86 | 336,439,727.06 | 43,948,422.95 | $380,388,150.01 | +93,956,588.56 | ................ | 39,850.00 | ................ | 39,850.00 | ................ | $380,428,000.01 | +49,412,595.20 |
| 1887......................... | 217,286,893.13 | 118,823,391.22 | 9,254,286.42 | 32,892.05 | 26,005,814.84 | 371,403,277.66 | 48,837,609.39 | $420,240,887.05 | +103,471,097.69 | ................ | 40,900.00 | ................ | 40,900.00 | ................ | $420,281,787.05 | -24,447,370.46 |
| 1888......................... | 219,091,173.63 | 124,296,871.98 | 11,202,017.23 | 1,565.82 | 24,674,446.10 | 379,266,074.76 | 52,695,176.79 | $431,961,251.55 | +119,612,116.09 | ................ | 48,650.00 | ................ | 48,650.00 | ................ | $432,009,901.55 | +36,527,710.58 |
| 1889......................... | 223,832,741.69 | 130,881,513.92 | 8,038,651.79 | ................ | 24,297,151.44 | 387,050,058.84 | 56,175,611.18 | $443,225,670.02 | +105,053,443.21 | ................ | 24,350.00 | ................ | 24,350.00 | ................ | $443,250,020.02 | -33,503,357.76 |
| 1890......................... | 229668584.6 | 142,606,705.81 | 6,358,272.51 | ................ | 24,447,419.74 | 403,080,982.63 | 60,882,097.92 | $463,963,080.55 | +105,344,496.03 | ................ | 21,650.00 | ................ | 21,650.00 | ................ | $463,984,730.55 | -19,601,877.53 |
| 1891......................... | 219,522,205.23 | 145,686,249.44 | 4,029,535.41 | ................ | 23,374,457.23 | 392,612,447.31 | 65,931,785.72 | $458,544,233.03 | +37,239,762.57 | ................ | 13,750.00 | ................ | 13,750.00 | 40,018,392.25 | $498,576,375.28 | -34,132,372.16 |
| 1892......................... | 177,452,964.15 | 153,971,072.57 | 3,261,875.58 | ................ | 20,251,871.94 | 354,937,784.24 | 70,930,475.98 | $425,868,260.22 | +9,914,453.66 | ................ | 15,250.00 | ................ | 15,250.00 | ................ | $425,883,510.22 | -27,673,266.32 |
| 1893......................... | 203,355,016.73 | 161,027,623.93 | 3,182,089.78 | ................ | 18,254,898.34 | 385,819,628.78 | 75,896,993.16 | $461,716,621.94 | +2,341,674.29 | ................ | 22,900.00 | ................ | 22,900.00 | ................ | $461,739,521.94 | -4,445,400.21 |
| 1894......................... | 131,818,530.62 | 147,111,232.81 | 1,673,637.30 | ................ | 17,118,618.52 | 297,722,019.25 | 75,080,479.04 | $372,802,498.29 | -69,803,260.58 | ................ | 50,014,250.00 | 8,633,295.71 | 58,647,545.71 | 5,708,247.75 | $437,158,291.75 | -5,703,914.32 |
| 1895......................... | 152,158,617.45 | 143,421,672.02 | 1,103,347.16 | ................ | 16,706,438.48 | 313,390,075.11 | 76,983,128.19 | $390,373,203.30 | -42,805,223.18 | ................ | 81,165,050.00 | 11,339,344.62 | 92,504,394.62 | ................ | $482,877,597.92 | +46,192,425.01 |
| 1896......................... | 160,021,751.67 | 146,762,864.74 | 1,005,523.43 | ................ | 19,186,060.54 | 326,976,200.38 | 82,499,208.40 | $409,475,408.78 | -25,203,245.70 | ................ | 131,168,800.00 | 11,166,246.41 | 142,335,046.41 | ................ | $551,810,455.19 | +104,580,230.86 |
| 1897......................... | 176,554,126.65 | 146,688,574.29 | 864,581.41 | ................ | 23,614,422.81 | 347,721,705.16 | 82,665,462.73 | $430,387,167.89 | -18,052,454.41 | ................ | 3,250.00 | ................ | 3,250.00 | 4,356,614.50 | $434,747,032.39 | -25,071,091.91 |
| 1898......................... | 149,575,062.35 | 170,900,641.49 | 1,243,129.42 | ................ | 83,602,501.94 | 405,321,335.20 | 89,012,618.55 | $494,333,953.75 | -38,047,247.60 | ................ | 5,950.00 | ................ | 5,950.00 | 6,034,510.00 | $500,374,413.75 | -61,948,849.60 |
| 1899......................... | 206,128,481.75 | 273,437,161.51 | 1,678,246.81 | ................ | 34,716,730.11 | 515,960,620.18 | 95,021,384.17 | $610,982,004.35 | -89,111,559.67 | ................ | 199,201,210.00 | ................ | 199,201,210.00 | 5,324,234.50 | $815,507,448.85 | +100,791,521.35 |
| 1900......................... | 233,164,871.16 | 295,327,926.76 | 2,836,882.98 | ................ | 35,911,170.99 | 567,240,851.89 | 102,354,579.29 | $669,595,431.18 | +79,527,060.18 | ................ | 117,770.00 | ................ | 117,770.00 | ................ | $669,713,201.18 | +23,038,214.12 |
| 1901......................... | 238,585,455.99 | 307,180,663.77 | 2,965,119.65 | ................ | 38,954,098.12 | 587,685,337.53 | 111,631,193.39 | $699,316,530.92 | +77,717,984.38 | ................ | 3,700.00 | ................ | 3,700.00 | ................ | $699,320,230.92 | +21,215,743.65 |
| 1902......................... | 254,444,708.19 | 271,880,122.10 | 4,144,122.78 | ................ | 32,009,280.14 | 562,478,233.21 | 121,848,047.26 | $684,326,280.47 | +91,287,375.57 | ................ | 2,370.00 | ................ | 2,370.00 | 12,650,160.00 | $696,978,810.47 | +33,672,596.43 |
| 1903......................... | 284,479,581.81 | 230,810,124.17 | 8,926,311.22 | ................ | 36,180,657.20 | 560,396,674.40 | 134,224,443.24 | $694,621,117.64 | +54,307,652.36 | ................ | 2,050.00 | 1,484,048.00 | 1,486,098.00 | ................ | $696,107,215.64 | +26,266,651.54 |
| 1904......................... | 261,274,564.81 | 232,904,119.45 | 7,453,479.72 | ................ | 38,084,749.88 | 539,716,913.86 | 143,582,624.34 | $683,299,538.20 | +7,479,092.55 | ................ | 2,600.00 | 455,336.00 | 457,936.00 | ................ | $683,757,474.20 | -66,634,546.21 |
| 1905......................... | 261,798,856.91 | 234,095,740.85 | 4,859,249.80 | ................ | 43,852,911.06 | 544,606,758.62 | 152,826,585.10 | $697,433,343.72 | -18,753,335.00 | ................ | 2,750.00 | ................ | 2,750.00 | ................ | $697,436,093.72 | -26,574,076.13 |
| 1906......................... | 300,251,877.77 | 249,150,212.91 | 4,879,833.65 | ................ | 40,436,017.99 | 594,717,942.32 | 167,932,782.95 | $762,650,725.27 | +45,312,516.97 | ................ | 2,050.00 | 530,324.00 | 532,374.00 | 10,408,537.00 | $773,591,636.27 | +35,211,862.93 |
| 1907......................... | 332,233,362.70 | 269,666,772.85 | 7,878,811.13 | ................ | 53,346,713.24 | 663,125,659.92 | 183,585,005.57 | $846,710,665.49 | +111,420,530.88 | $31,210,817.95 | 5,100.00 | 1,509,234.00 | 1,514,334.00 | 5,023,165.50 | $884,458,982.94 | +91,372,090.65 |
| 1908......................... | 286,113,130.29 | 251,711,126.70 | 9,731,560.23 | ................ | 53,504,906.05 | 601,060,723.27 | 191,478,663.41 | $792,539,386.68 | -20,041,667.37 | 25,367,768.67 | 15,436,500.00 | ................ | 15,436,500.00 | 24,797,980.00 | $858,141,635.35 | -26,890,097.74 |
| 1909......................... | 300,711,933.95 | 246,212,643.59 | 7,700,567.78 | ................ | 48,964,344.52 | 603,589,489.84 | 203,562,383.07 | $807,151,872.91 | -58,734,954.93 | 30,731,008.21 | ................ | ................ | ................ | ................ | $837,882,881.12 | -118,795,919.63 |
| 1910......................... | 333,683,445.03 | 289,933,519.45 | 6,355,797.49 | ................ | 45,538,953.05 | 675,511,715.02 | 224,128,657.62 | $899,640,372.64 | +15,806,323.94 | ................ | ................ | ................ | ................ | ................ | $899,640,372.64 | -19,480,752.43 |
| 1911......................... | 314,497,071.24 | 322,529,200.79 | 5,731,636.88 | ................ | 58,614,466.08 | 701,372,374.99 | 237,879,823.60 | $939,252,198.59 | +47,234,377.10 | 18,102,170.04 | ................ | ................ | ................ | 5,255,715.00 | $962,610,083.63 | +33,501,368.58 |
| 1912......................... | 311,321,672.22 | 321,612,199.66 | 5,392,796.75 | ................ | 53,451,796.74 | 691,778,465.37 | 246,744,015.88 | $938,522,481.25 | +37,214,501.90 | 33,189,104.15 | 459,280.00 | ................ | 459,280.00 | $972,170,865.40 | +26,975,552.86 | |
| 1913......................... | 318,891,395.86 | 344,416,965.65 | 2,910,204.69 | ................ | 57,892,663.64 | 724,111,229.84 | 266,619,525.65 | $990,730,755.49 | +41,340,524.33 | ................ | 1,929,840.00 | ................ | 1,929,840.00 | ................ | $992,660,595.49 | +3,319,156.71 |
| 1914......................... | 292,320,014.51 | 38,0041,007.3 | 2,571,774.77 | ................ | 59,740,370.13 | 734,673,166.71 | 287,934,565.67 | $1,022,607,732.38 | +34,418,677.00 | ................ | 3,118,940.00 | ................ | 3,118,940.00 | ................ | $1,025,726,672.38 | +28,093.79 |
| 1915......................... | 209,786,672.21 | 415,669,646 | 2,167,136.47 | ................ | 70,287,372.90 | 697,910,827.58 | 287,248,165.27 | $985,158,992.85 | -33,488,931.53 | ................ | 933,540.00 | ................ | 933,540.00 | 4,347,457.00 | $990,439,989.85 | -57,442,509.75 |
| .............TOTALS:............ | $11,378,619,331.85 | $10,095,945,620.18 | $224,818,139.83 | $15,387,252.76 | $1,818,524,142.36 | $23,533,294,486.95 | $4,694,420,008.90 | $28,227,714,495.88 | -$514,336,122.33 | $138,600,869.02 | $8,301,555,697.35 | $69,304,075.52 | $8,370,859,772.87 | $123,925,013.50 | $36,861,100,151.27 | $249,224,828.14 |
Notes
[edit]- ↑ Note: The correct total is $411,253,971.24, not the $411,253,971.21 amount listed in the brief.