Citations
- 98 F.2d 166
Full opinion text
GARDNER, Circuit Judge.
There are here presented an appeal and a cross-appeal from the decree construing the obligations of a lease with respect to rent, and refusing a forfeiture of the lease.
The Emery Bird Thayer Dry Goods Company and the Emery Bird Thayer Realty Company were plaintiffs below, while Moses Williams, William Minot, Edwin D. Brooks and William B. Baker, Trustees of Boston Ground Rent Trust, were defendants. The defendants are trustees of the Boston Ground Rent Trust, a common-law or Massachusetts trust, and are owners of the property involved. The original owner of the building on the property had acquired the fee to the land and was erecting a building on it prior to the execution of the lease. An agreement was entered into, by which the then owner sold the premises to the defendants’ predecessors, and they concurrently executed a ninety-nine year lease to the then owner. The deed and lease to the property were concurrently executed in April, 1890, and as a part of the same transaction. In 1898, the lessee assigned the lease to the plaintiff, Emery Bird Thayer Dry Goods Company. In 1908, the plaintiff, Emery Bird Thayer Realty Company, was organized, and the lease was then assigned to it, and the Dry Goods Company, by a concurrently executed instrument, then became sublessee of the Realty Company for a term ending three months prior to the expiration of the lease. The Dry Goods Company expressly assumed the obligations of the lessee under the leasa
Prior to the execution of the lease, there were certain negotiations, evidence concerning which was for the most part excluded. The lease is dated April 11, 1890, and is for a term of ninety-nine years from its date. It contains provision for payment of rent as follows:
“Said lessee covenants and agrees to deliver to the lessors, as yearly rental for said demised premises, at such office of the lessors, or their agent, or at such' bank, in said city of Kansas City, or in the City of New York, or in the City of Boston, as the lessors may, from time to time, designáte, Thirty-three Thousand Dollars ($33,000) in gold coin of .the United States of the present standard of weight and fineness, in four quarterly yearly installments, each in advance, of Eight Thousand Two Hundred and Fifty Dollars ($8,250) each, on the First days of April, July, October, and January, in each and every year during the first four years of this lease, the first delivery to be made on the First day of April, 1890; Eighty Thousand Dollars ($80,000) in such gold coin in four instalments as follows, namely: — Fifty-seven Thousand Five Hundred Dollars ($57,500) on the First day of April, 1894, Seven Thousand Five Hundred Dollars ($7,500) on the first day of July, 1894, Seven Thousand Five Hundred Dollars ($7,500) on the First day of October, 1894, and Seven Thousand Five Hundred Dollars ($7,500) on the first day of January, 1895, during the fifth year of this lease; Seventy-seven Thousand Dollars ($77,000) in such gold coin in four instalments as follows, namely: — Fifty-six Thousand Seven Hundred and Fifty Dollars ($56,750) on the first day of April, 1895, Six Thousand Seven Hundred and Fifty Dollars ($6,750) on the first day of July, 1895, Six Thousand Seven Hundred and Fifty Dollars ($6,750) on the first day of October, 1895, Six Thousand Seven Hundred and Fifty Dollars ($6,750) on the first day of January, 1896, during the sixth year of this lease; Seventy-four Thousand Dollars ($74,000) in such gold coin, in four instalments as follows, namely: — Fifty-six Thousand Dollars ($56,-000) on the first day of April, 1896, Six Thousand Dollars ($6,000) on the first day of July, 1896, Six Thousand Dollars ($6,000) on the first day of October, 1896, and Six Thousand Dollars ($6,000) on the first day of January, 1897, during the seventh year of this lease; and Five Hundred and Fifty-seven Thousand, Two Hundred and Eighty (557,280) grains of pure, unalloyed gold, in four quarter-yearly instalments, each in advance, of One Hundred find Thirty-nine Thousand, Three Hundred and Twenty (139,320) grains each, on the first days of April, July, October and January, in each and every year during the remaining ninety-two (92) years of said period of ninety-nine (99) years, the first delivery of such pure gold to be made on the First day of April, 1897.
“Provided, however, that the lessors may, from time to time at their option, require in lieu of any such quarter-yearly delivery of pure, unalloyed gold, the payment, at the time and place appointed for such delivery, of the sum of Six Thousand Dollars ($6,000), in such lawful currency of the country as the lessors may designate.”
Up to January 1, 1934, all payments due the lessors were made by checks or drafts, which the lessors accepted and cashed.
On June 5, 1933, a Joint Resolution of the Congress (48 Stat. 112) became effective. Other congressional legislation (the Emergency Banking Act of March 9, 1933 (48 Stat. 2), and the order of the Secretary of the Treasury of December 28, 1933) became effective in that year, so that on January 1, 1934, it became and ever since has been impossible for plaintiffs to deliver gold to the defendants as required by this lease.
Defendants demanded payment in gold, but offered temporarily to accept in lieu of the 139,320 grains of gold, the number of dollars equal to the amount which the Government would then pay for a like amount of newly mined gold. They threatened forfeiture unless plaintiffs paid $10,158.75 per quarter. Plaintiffs, coerced by these threats, paid to defendants, under protest, the amounts per quarter demanded until and including the payment falling due April 1, 1935. As a precautionary measure, plaintiffs attempted to procure from the Treasury Department a license to acquire gold, newly mined or otherwise, to comply with the terms of the lease, but in this it was unsuccessful.
The payments of the several quarter-annual amounts of $10,158.75, made by plaintiffs to defendants, were receipted for by defendants in the following form:
“The Trustees of the Boston Ground Rent Trust have this day received from Emery Bird Thayer Dry Goods Co. its check for Ten Thousand One Hundred Fifty Eight and 7BAoo ($10,158.75) Dollars. This check (subject to collection) is accepted by said Trustees as equivalent to the delivery to them of 139,320 grains of pure unalloyed gold (on the basis that the gold content of the dollar was established January 31, 1934, by proclamation of the President of the United States, issued under Act of Congress, as fifteen and %ist (15%i) grains of gold, nine-tenths (%o) fine, as the quarterly delivery of rent, due July 1, 1934, under the lease * *
Plaintiffs’ amended bill of complaint prays that the court adjudge (1) that the provisions of the lease requiring the delivery of gold bullion as rental are unlawful and void; (2) that the quarter yearly rental under the lease is .and may be satisfied by the payment of $6,000 in lawful currency of the United States; and (3) that the defendants be perpetually enjoined from forfeiting or attempting to forfeit the lease, as long as plaintiffs shall pay the rent in the amount of $6,000 quarter-annually and perform the other covenants of the lease.
Defendants in their answer and cross-complaint, deny the applicability of the Joint Resolution or other Acts of Congress to the lease, and challenge their constitutionality as applied to the lease. They ask decree of forfeiture of the lease because plaintiffs have not tendered gold since January 1, 1934, in satisfaction of the rentals thereunder.
The lower court denied forfeiture, but decreed that plaintiff must pay an amount in currency equal’to the present value of the required gold if lawfully delivered.
On this appeal plaintiff contends: (1) That the Joint Resolution of June 5, 1933, applies to the provision for the delivery of gold; and (2) that the measure of compensation is $6,000.00 quarter-annually.
The defendants,' on their cross-appeal, contend that the lease could only be satisfied by the delivery of gold, and since it could not be delivered, the lease became subject to forfeiture.
The Joint Resolution of June 5, 1933, 48 Stat. 112 (31 U.S.C. § 463, 31 U.S. C.A. § 463) provides as follows:
“Whereas the holding of or dealing in gold affect the public interest, and are therefore subject to proper regulation and restriction; and
“Whereas the existing emergency has disclosed that provisions of obligations which purport to give the obligee a right to require payment in gold or a particular kind of coin or currency of the United States, or in an amount in money of the United States measured thereby, obstruct the power of the Congress to regulate the value of the money of the United States, and are inconsistent with the declared policy of the Congress to maintain at all times the equal power of every dollar, coined or issued by the United States, in the markets and in the payment of debts. Now, therefore, be it
“Resolved by the Senate and House of Representatives of the United States of America in Congress Assembled, That (a) every provision contained in or made with respect to any obligation which purports to give the obligee a right to require payment in gold or a particular kind of coin or currency, or in an amount in money of the United States measured thereby, is declared to be against public policy; and no such provision shall be contained in or made with respect to any obligation hereafter incurred. Every obligation, heretofore or hereafter incurred, whether or not any such provision is contained therein or made with respect thereto, shall be discharged upon payment, dollar for dollar, in any coin or currency which at the time of payment is legal tender for public and private debts. Any such provision contained in any law authorizing obligations to be issued by or under authority of the United States, is hereby repealed, but the repeal of any such provision shall not invalidate any other provision or authority contained in such law.
“(b) As used in this resolution, the term ‘obligation’ means an obligation (including every obligation of and to the United States, excepting currency) payable in money of the United States; and the term ‘coin or currency’ means coin or currency of the United States, including Federal Reserve notes and circulating notes of Federal Reserve banks and national banking associations.”
Putting aside for the moment the alternative optional provision of the lease, which provides for payment of $6,000.00 in currency, the first question presented is whether the • provision for payment “in grains of pure unalloyed gold” is within the scope of the congressional Joint Resolution. The Resolution, in subsection (a) of the first section, declares' that “every provision contained in or made with respect to any obligation” which purports to give the obligee certain rights of payment are against public policy. Subsection (b), however, limits the meaning of the word “obligation” to one “payable in money of the United States.”
It is a general rule that where a statute defines the meaning of words used therein, the statutory definition must prevail, regardless of what other meaning may be attributable to it by other authorities, or even by common understanding. Fox v. Standard Oil Co., 294 U.S. 87, 55 S.Ct. 333, 79 L.Ed. 780. The meaning of a statute must first be sought in the language which it employs. United States v. Standard Brewery, 251 U.S. 210, 40 S.Ct. 439, 64 L.Ed. 229; Lansdown v. Faris, 8 Cir., 66 F.2d 939. No definition of the term “money of the United States” is found in the Joint Resolution. The provisions of the lease under consideration do not in terms make the obligation for rent “payable in money of the United States,” but it is made payable “in grains of pure unalloyed gold.” Can it be said that “grains of pure unalloyed gold” is equivalent to the expression “money of the United States”? The term “money of the United States” is susceptible of more than one meaning. Webster’s New International Dictionary gives a number of definitions of money, among others the following:
“Metal, as gold, silver, or copper, coined or stamped, and issued by the recognized authority as a medium of exchange; coin in general.”
“In a comprehensive sense, anything customarily used as a .medium of exchange and measure of value, as sheep, wampum, copper rings, quills of salt or of gold dust, shovel blades, etc., hence, Econ., anything having a conventional use (1) either as a medium of exchange or a measure of value or (2) as a measure of value alone.”
The word “bullion” may import money. Counsel v. Vulture Mining Co., 5 Daly, N. Y., 74. Primarily the coinage does not create the standard by which other commodities are measured, but the intrinsic value of the precious metal in the markets of the world. The stamp which the Government impresses upon the coin is simply a guaranty of weight and fineness. The science of economics teaches that originally gold and silver were employed as money in their uncoined form, each transaction calling for a pair of scales with which to weigh the amount needed for a given transaction, but as time went on, to avoid this cumbersome practice, metals of convenient size were made and a mark was placed upon them to indicate weight and quality. These precious metals were fundamentally the basic money or monetary commodities of commerce and as such they furnished the standard of value with which all other values were compared. From 1900 until the Joint Resolution became law, gold was the standard money of the United States, all other forms of coins or currencies being of a fiduciary nature, and their value as a medium of exchange being based on exchange for or redemption by gold.
The Federal Constitution and statutes indicate that there may be a difference between the word “coin” and the word “money.” Article 1, Section 8, of the Constitution, U.S.C.A.Const. art. 1, § 8, gives Congress power “to coin Money, regulate the value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.” The power given is “to coin money.” This must mean to put an imprint upon that which is adopted as money.
In Ling Su Fan v. United States, 218 U.S. 302, 31 S.Ct. 21, 54 L.Ed. 1049, 30 L.R.A.,N.S., 1176, the court says (page 23):
“ * * * public law gives to such coinage a value which does not attach as a mere consequence of intrinsic value. Their quality as a legal tender is an attribute of law aside from their bullion value. They bear, therefore, the impress of sovereign power which fixes value and authorizes their use in exchange.”
“To coin money,” therefore, is the act of impressing symbols on bullion that has already been adopted as the money of a government. Bronson v. Rodes, 7 Wall. 229, 19 L.Ed. 141. Succeeding language in the same clause of the Constitution, to “regulate the Value thereof, and of foreign Coin,” emphasizes this thought. The value to be regulated is the value of money. As to foreign coin, no such power is asserted, but the power there granted is “to regulate” the value of coin. Article 1, Section 8, U.S.C.A. art. 1, § 8, also confers the power to provide for the punishment of counterfeiting the securities and current coin of the United States. The significance of this lies in the fact that while previously in the same clause, the power given is to coin money, the punishment of counterfeiting, as respects metals, is confined to coins, the product of the act of coinage, and not money.
Statutes observe this same distinction. The Bureau of Mints has under its control all mints for the manufacture of coin. 31 U.S.C.A. § 251. In 1893, it was declared to be “the policy of the United States to continue the use of both gold and silver as standard money, and to coin both gold and silver into money of equal intrinsic and exchangeable value, such equality to be secured through international agreement, or by such safeguards of legislation as will insure the maintenance of the parity in value of the coins of the two metals, and the equal power of every dollar at all times in the markets and in the payment of debts.” 31 U.S.C.A. § 311. In this statute, the first reference to money is the comprehensive term, while immediately following is a reference to it as the product of coinage. 31 U.S.C.A. § 312, provides for representation of the United States at an international conference called “with a view to securing by international agreement a fixity of relative value between gold and silver as money by means of a common ratio * * *.” Revised Statutes, § 3511, Act of March 14, 1900, § 1, 31 U.S.C.A. § 314, provided that the dollar, consisting of 255io grains of gold %o fine, should be the standard unit of value, and all forms of money issued or coined by the United States should be maintained at a parity of value with that standard. Gold coins, silver coins, and minor coins of the United States have been designated by statute. Revised Statutes, §§ 3511, 3513 and 3515, 31 U.S.C.A. §§ 315-317. There have also been passed from time to time statutes for forming gold and silver bullion into bars. Revised Statutes, §§ 3518 and 3520, 31 U.S.C.A. §§ 325, 328. Revised Statutes, § 3536, 31 U.S. C.A. § 349, provides for money of account of the United States to be expressed in dollars, or units, dimes or tenths, cents or hundredths, and mills or thousandths. Provision is also made for issuing currency. 31 U.S.C. §§ 401-430.
Our investigation indicates that any one of three meanings may be attributable to the term “money”: (1) Gold or silver as the monetary standard of the Nation; (2) coins and currency actually circulating as a medium of exchange; or (3) the unit of value, the dollar. This third meaning is sustained by judicial authority. Thus, in United States v. Van Auken, 96 U.S. 366, 24 L.Ed. 852, the court said (page 368):
“A dollar is the unit of our currency. It always means money, or what is regarded as money.”
An exhaustive study of the authorities bearing on this subject has not, of course, been possible, but we think it has been demonstrated that the word “money” is not one that, apart from the context or setting in which it is used, may have an absolutely definite, unvarying, and fixed meaning. Recurring now to the Joint Resolution, it is observed that the words “money of the United States,” and the words “coin” and “currency” are found in juxtaposition, and in subsection (b) of the first section manifestly used as terms or subjects of definition. Apparently, Congress did not treat “money of the United States” as synonymous with “currency or coin of the United States.” If the terms gold and silver, or currency and ■coin, or all of them, should be substituted by definition in the first part of subsection (a), as the equivalent of obligation of the United States, so that it would read, “every provision contained in or made with respect to any obligation payable in gold, silver, coin or currency of the United States,” then there would be a manifest repetition, if not absurdity, in continuing on to the latter words, “which purports to give the obligee a right to require payment in gold, or-a particular kind of coin or currency, or in an amount in money of the United States (gold, silver, coin, or currency) measured thereby.” Congress may, of course, express itself tautologically (United States v. Lucius Beebe & Sons, 1 Cir., 122 F. 762), but that it has done so is a conclusion or interpretation to be avoided if fairly possible. A construction resulting in absurdity or unreasonableness should not be adopted if another construction is equally tenable.
If the obligation, payable in money of the United States, is construed as one payable in dollars, then what follows in subsection (a) of the first section is entirely consistent. Such exactions are then made contrary to public policy, whether payable in gold, or a particular kind of coin or currency, or in an amount in money of the United States (dollars) measured thereby. This construction is strengthened by the following sentence:
“Every obligation, heretofore or hereafter incurred, whether or not any such provision is contained therein or made with respect thereto, shall be discharged upon payment, dollar for dollar, in any coin or currency which at the time of payment is legal tender for public and private debts.” (Italics supplied).
Such conversion is to be from dollar to dollar.
An agreement to pay or deliver a certain number of grains of gold is not, we think, within the Joint Resolution. The argument that the acts' of the parties, as well as the language of the lease, demonstrated that the agreement for delivery of gold was an agreement for the delivery of gold as an equivalent of money is aside from the point. Congress has not legislated as to such contracts. Language from the case of Holyoke Water Power Co. v. American Writing Paper Co., 300 U.S. 324, 57 S.Ct. 485, 81 L.Ed. 678, is cited as authority for the proposition that an equivalence is sufficient. But the agreement considered by the court in that case was to pay a quantity of gold which should be equal in amount to 1500 dollars of the gold coin of the United States, of the standard of weight and fineness of the year 1894, or the equivalent of “this commodity” in United States currency. The court said (page 488) :
“A contract for the payment of gold as the equivalent of money, and a fortiori a contract for the payment of money measurable in gold, is within the letter of the Joint Resolution of June 5, 1933, and equally within its spirit.”
Other language in the opinion, we think, throws light on what was intended by the court by the use of these quoted words. It is further said:
“But very definitely, the evil does include transactions whereby gold, coined or uncoined, is to be delivered in satisfaction of a debt expressed in terms