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FREEDMAN'S SAVING & TRUST CO. v. SHEPHERD SHEPHERD v. THOMPSON.
FREEDMAN'S SAVING & TRUST CO. et al. v. SHEPHERD et al. SHEPHERD v. THOMPSON.
Enoch Totten, for appellant, Freedman's Savings & Trust company.
M. F. Morris and H. H. Wells, for appellee John W. Thompson.
Wm. F. Mattingly and A. C. Bradley, for Alexander R. Shepherd.
What rights did the trust company acquire, under Bradley's deed, in respect to the income or rents of the mortgaged property, accruing after the execution of that instrument? This is the principal question presented for our consideration, and will be first examined. In Gilman v. Telegraph Co., 91 U. S. 603, 616, the question was as to the disposition of certain earnings of a railroad, accruing after a decree of foreclosure and sale, and before the purchaser at the sale was let into possession. The first, in point of time, of the mortgages conveying the property to secure the company's bonds, provided, among other things, that it might remain in possession, and operate the road, enjoying the revenues thereof, until default occurred in paying the interest or the principal of its bonds at maturity; and if such default continued six months, or if the company failed to set apart, deposit, and apply certain moneys, as required by the mortgage, then the trustees might, and it should be their duty, to enter upon and take possession of, and, by agents, operate the mortgaged property. The second mortgage contained substantially the same provisions. After the decree of foreclosure and sale was passed, a judgment creditor of the company, proceeding under the local law, garnished, in the hands of the company's agents at its various stations, moneys received by them from the operation of the road, the company having been permitted to remain in possession up to the time of the sale under the decree. The trustees in the mortgage claimed that these moneys should be applied in payment of the balance remaining unpaid on their mortgage bonds. This claim was denied. The court, following the previous case of Railroad Co. v. Cowdrey, 11 Wall. 459, said: 'It would have been competent for the court in limine, upon a proper showing, to appoint a receiver, and clothe him with the duty of taking charge of the road, and receiving its earnings, within such limit of time as it might see fit to prescribe. It might have done the same thing subsequently, during the progress of the suit. When the final decree was made, a receiver might have been appointed, and required to receive all the income and earnings until the sale was made and confirmed, and possession delivered over to the vendee. Nothing of this kind was done. There was simply a decree of sale. The decree was wholly silent as to the possession and earnings in the mean time. It follows that neither during that period was in anywise affected by the action of the court.' Again: 'It is clearly implied in these mortgages that the railroad company should hold possession and receive the earnings until the mortgagees should take possession, or the proper judicial authority should interpose. Possession draws after it the right to receive and apply the income. Without this the road could not be operated, and no profit could be made. * * * If the mortgagees were not satisfied, they had the remedy in their own hands, and could, at any moment, invoke the aid of the law, or interpose themselves withouti t. They did neither.' In Bridge Co. v. Heidelbach, 94 U. S. 798, 800, the mortgage included the rents, issues, and profits of the mortgaged property, so far as it was necessary to keep it in repair, and pledged such rents, issues, and profits to the payment of the interest on the mortgage bonds as it matured, and to the creation of a sinking fund for the redemption and payment of the principal. In the event of a continuous default for six months in meeting the interest, the trustees, upon the written request of the holders of one-half of the outstanding bonds, were authorized to take possession of the mortgaged premises, and receive all rents and claims due and to become due to the company. In a contest between the trustees and a judgment creditor, as to which was entitled to certain moneys in the hands of the mortgagor, the decision was in favor of the creditor, the court saying: 'In this case, upon the default which occurred, the mortgagees had the option to take personal possession of the mortgaged premises, or to file a bill, have a receiver appointed, and possession delivered to him. In either case, the income would thereafter have been theirs. Until one or the other was done, the mortgagor, as Lord MANSFIELD said in Chinnery v. Blackman, 3 Doug. 391, was 'owner to all the world, and entitled to all the profit made." In Kountze v. Hotel Co., 107 U. S. 378, 392, 2 Sup. Ct. Rep. 911, it was held that a bond given on appeal with supersedeas, from a final decree of foreclosure and sale, did not cover rents and profits, or the use and detention of the property, pending the appeal. The court said that 'in the case of a mortgage, the land is in the nature of a pledge; and it is only the land itselfthe specific thingwhich is pledged. The rents and profits are not pledged; they belong to the tenant in possession, whether the mortgagor or a third person claiming under him. * * * The taking of the rents and profits prior to the sale does not injure the mortgagee, for the simple reason that they do not belong to him. * * * But perception of rents and profits is the mortgagor's right until a final determination of the right to sell, and a sale made accordingly.' It is, of course, competent for the parties to provide in the mortgage for the payment of rents and profits to the mortgagee, even while the mortgagor remains in possession. But when the mortgage contains no such provision, and even where the income is expressly pledged as security for the mortgage debt, with the right in the mortgagee to take possession upon failure of the mortgagor to perform the conditions of the mortgage, the general rule is that the mortgagee is not entitled to the rents and profits of the mortgaged premises until he takes actual possession, or until possession is taken in his behalf by a receiver, (Teal v. Walker, 111 U. S. 242, 4 Sup. Ct. Rep. 420; Grant v. Insurance Co., 121 U. S. 117, 7 Sup. Ct. Rep. 841;) or until, in proper form, he demands, and is refused, possession, (Dow v. Railroad Co., 124 U. S. 652, 654, ante, 673.) See, also, Sage v. Railroad Co., 125 U. S. 361, ante, 887. The principles announced in these cases are decisive against the claim of the trust company to the rents of the property represented by the two drafts delivered by the United States to Wilson. Bradley's deed pledged the property, not the rents accruing therefrom, as security for the payment of his notes. It is true, it provides, generally, that the mortgagor may remain in possession, and receive rents and profits, until there is default upon his part. But the only effect of that provision was to open the way to compel him to submit to a sale, and thereby lose possession. The deed did not give the mortgagee or the trustees the right, immediately upon such default, to take possession, and appropriate the rents of the property. It only gave the trustees authority, when such default occurred, to sell upon short notice, and, in that way, oust the mortgago, and suspend his right to further appropriate the income of the property. Even if the deed had expressly pledged the imcome as security for the debts named, the mortgagor, according to the doctrines of the cases cited, would have been entitled to the income, until, at least, possession was demanded under the deed; or until his possession was disturbed by a sale under the deed of trust; or, in advance of a sale, by having a receiver appointed for the benefit of the mortgagee. As was said in Kountze v. Hotel Co., 107 U. S. 395, 2 Sup. Ct. Rep. 911: 'Courts of equity allows have the power where the debtor is insolvent, and the mortgaged property is an insufficient security for the debt, and there is good cause to believe that it will be wasted or deteriorated in the hands of the mortgagor, as by cutting of timber, suffering dilapidation, etc., to take charge of the property, by means of a receiver, and preserve not only the corpus, but the rents and profits, for the satisfaction of the debt. When justice requires this course to be pursued, and it is resorted to by the mortgagee, it will give him ample protection.' In the present case, it appears that prior to the time fixed for the sale under Bradley's deed of trust, and before the trust company filed its cross-bill asking, among other things, for a receiver of the rents of the mortgaged property, Bradley and Shepherd, with the consent of Shepherd's trustees, had pledged the rents of the property as security for Thompson's debts. As Bradley's deed of trust did not pledge the rents as security for his notes to the trust company, the pledge of such rents by himself and Shepherd, his assignee, for Thompson's benefit, did not violate any right secured to it; for, as we have shown, until a sale was had pursuant to the deed of trust, and possession taken under such sale, it had no right, by the terms of the deed, to take the income of the trust property. So that, if a receiver had been appointed immediately upon the filing, October 25, 1877, of the cross-bill of the trust company, and if all the rents represented by the two drafts of $1,800 and $3,475 had been collected by the receiver, they would still, in virtue of the assignment of June 21, 1877, by Bradley and Shepherd, have belonged to Thompson, as between him and the trust company, unless, as contended, the transfer by Bradley to Shepherd of the lease to the United States, and their assignment for the benefit of Thompson, are absolutely void for every purpose, and as to everybody, under the provisions of the statutes relating to the transfer and assignment of contracts with, or claims against, the United States.
It is insisted by the trust company that the transfer by Bradley to Shepherd of the lease of June 6, 1873, was void under section 3737 of the Revised Statutes, which provides: 'No contract or order, or any interest therein, shall be transferred by the party to whom such contract or order is given to any other party, and any such transfer shall cause the annulment of the contract or order transferred so far as the United States are concerned. All rights of action, however, for any breach of such contract by the contracting parties are reserved to the United States.' This provision was brought forward from an act of congress, approved July 17, 1862, entitled 'An act to define the pay and emoluments of certain officers of the army, and for other purposes.' 12 St. 596. In the original act it immediately followed a section providing 'that all contracts made for, or orders given for, the purchase of goods or supplies by any department of the government, shall be promptly reported to congress by the proper head of such department, if congress shall at the time be in session, and if not in session, said reports shall be made at the commencement of the next ensuing session.' We are of opinion that, whatever may be the scope and effect of section 3737, it does not embrace a lease of real estate to be used for public purposes, under which the lessor is not required to perform any service for the government, and has nothing to do, in respect to the lease, except to receive from time to time the rent agreed to be paid. The assignment of such a lease is not within the mischief which congress intended to prevent. Although a lease such as Bradley made is a 'contract' in the broadest sense of that word, we are not prepared to hold that it is of the class of contracts the transfer of which, or of any interest therein, is prohibited by section 3737.
It is also contended that the assignment made on June 21, 1877, by Bradley and Shepherd is void under section 3477, Rev. St. which provides that 'all transfers and assignments made of any claim upon the United States, or of any part of it, or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other autnorities for receiving payment of any such claim or any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof.' This court has frequently had occasion to construe this section. U. S. v. Gillis, 95 U. S. 407. Erwin v. U. S., 97 U. S. 392; Spofford v. Kirk, Id. 484; Goodman v. Niblack, 102 U. S. 556; Bailey v. U. S., 109 U. S. 432, 3 Sup. Ct. Rep. 272; Railroad Co. v. U. S., 112 U. S. 733, 5 Sup. Ct. Rep. 366; Hobbs v. McLean, 117 U. S. 567, 6 Sup. Ct. Rep. 870. Undoubtedly, the lease made by Bradley to the United States created in his favor what, in some sense, was a 'claim upon the United States' for each year's rent as it fell due. And, if the statute embraces a claim of such a character, there could not have been any valid transfer or assignment of it in advance of its allowance, which could have been made the basis of a suit by the assignee against the United States, or which would compel the government to recognize the transfer or assignment. It is, perhaps, also true that, under some circumstances, the assignor, before the allowance of the claim and the issuing of the warrant, may disregard such an assignment altogether. But when the government ascertained the amount of rent due under Bradley's lease, and, with his consent, allowed the same to him for the use of Shepherd, for the use of Taylor, Bacon, and Cross, trustees, we perceive nothing in the words or the policy of the statute preventing Thompson from asserting his rights either against the parties or any of them, named in the warrants issued by the government, or against the trust company, the mortgagee of the premises. The object of the statute, as was said in Bailey v. U. S., 109 U. S. 432, 3 Sup. Ct. Rep. 272, was to protect the government, and not the claimant, and to prevent frauds upon the treasury; and that 'an effectual means to that end was to authorize the officers of the government to disregard any assignment or transfer of the claim, or any power of attorney to collect it, unless made or executed after the allowance of the claim, the ascertainment of the amount due thereon, and the issuing of the warrant for the payment thereof.' Here, the officers of the government chose to recognize the assignment, and of their action neither Bradley nor Shepherd, nor Shepherd's trustees, can rightfully complain. The government is acquitted of any liability in respect to the claim for rent, for its officers have acted in conformity with the directions, not only of the original claimant, but of his assignee, Shepherd, and of Shepherd's trustees. The simple question is whether the money received from the government shall be diverted from the purpose to which Bradley, Shepherd, and Shepherd's trustees agreed in writing that it should be devoted, namely, to the payment of the debts Thompson holds against Shepherd. This question mustb e answered in the negative; and in so adjudging we do not contravene the letter or the spirit to the statute relating to the assignment of claims upon the United States.
Upon the whole case, we are of opinion that there is no error in the decree to the prejudice of either of the appellants, and it is, in all respects, affirmed.
WILLIS et al. v. EASTERN TRUST & BANKING CO.
MARTIN v. NATIONAL SURETY CO. et al.
PRUDENCE CO., Inc., v. FIDELITY & DEPOSIT CO. OF MARYLAND et al.
W. B. WORTHEN CO. ex rel. BOARD OF COM'RS OF STREET IMPROVEMENT DIST. NO. 513 OF LITTLE ROCK, ARK., et al., v. KAVANAUGH.
GORDON, Secretary of Banking, et al. v. WASHINGTON et al. SAME v. O'BRIEN et al.
UNITED STATES TRUST CO. OF NEW YORK v. WABASH W. RY. CO. WABASH W. RY. CO. v. UNITED STATES TRUST CO.
JOSEPHINE P. McGOWAN, Executrix of Jonas H. McGowan, Deceased, and Elijah V. Brookshire, Appts., v. EMILY E. PARISH, Executrix of Joseph W. Parish, Deceased.
PRICE et al. v. FORREST et al.
NATIONAL BANK OF COMMERCE OF SEATTLE, Appt., v. R. E. DOWNIE, Trustee; St. Paul & Tacoma Lumber Company, Barber Asphalt Paving Company, Mukilteo Lumber Company, Gamwell & Wheeler, Bankrupts, and the Seattle National Bank. NO 31. SEATTLE NATIONAL BANK, Appt., v. R. E. DOWNIE, Trustee; St. Paul & Tacoma Lumber Company, Barber Asphalt Paving Company, Mukilteo Lumber Company, Gamwell & Wheeler, Bankrupts, and National Bank of Commerce of Seattle. NO 32.

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The Constitution not only looks to an indestructible union of indestructible States, Texas v. White, 7 Wall. 700, 74 U. S. 725, but to a union of equal States as well.
The facts, which involve the constitutionality of a legislative act of Oklahoma, providing for the removal of the capital of the State from Guthrie to Oklahoma City, are stated in the opinion.
This is a writ of error to the Supreme Court of Oklahoma to review the judgment of that court upholding a legislative act of the State providing for the removal of its capital from Guthrie to Oklahoma City, and making an appropriation from the funds of the State for the purpose of carrying out the act by the erection of the necessary state buildings. (Act of Oklahoma, December 29, 1910) not yet published.
"The capital of said State shall temporarily be at the city of Guthrie, and shall not be changed therefrom previous to Anno Domini Nineteen Hundred and Thirteen, but said capital shall after said year be located by the electors of said State at an election to be provided for by the legislature; provided, however, that the legislature of said State, except as shall be necessary for the convenient transaction of the public business of said State at said capital, shall not appropriate any public moneys of the State for the erection of buildings for capital purposes during said period."
of Oklahoma and the Indian Territory to form a Constitution and State Government and be admitted into the Union on an equal footing with the original States, and to Enable the People of New Mexico and Arizona to form a Constitution and State Government and be admitted into the Union on an equal footing with the original States,' approved June the sixteenth, Anno Domini, Nineteen Hundred and Six."
duty of guaranteeing to "every State in this Union a republican form of government." The position of counsel for the appellants is substantially this: that the power of Congress to admit new States and to determine whether or not its fundamental law is republican in form are political powers, and, as such, uncontrollable by the courts. That Congress may, in the exercise of such power, impose terms and conditions upon the admission of the proposed new State which, if accepted, will be obligatory, although they operate to deprive the State of powers which it would otherwise possess, and therefore not admitted upon "an equal footing with the original States."
The definition of "a State" is found in the powers possessed by the original States which adopted the Constitution, a definition emphasized by the terms employed in all subsequent acts of Congress admitting new States into the Union. The first two States admitted into the Union were the States of Vermont and Kentucky, one as of March 4, 1791, and the other as of June 1, 1792. No terms or conditions were exacted from either. Each act declares that the State is admitted "as a new and entire member of the United States of America." 1 Stat.
189, 191. Emphatic and significant as is the phrase admitted as "an entire member," even stronger was the declaration upon the admission in 1796 of Tennessee, as the third new State, it being declared to be "one of the United States of America," "on an equal footing with the original States in all respects whatsoever," phraseology which has ever since been substantially followed in admission acts, concluding with the Oklahoma act, which declares that Oklahoma shall be admitted "on an equal footing with the original States."
such form is not changed to one anti-republican -- Minor v. Happersett, 21 Wall. 162, 88 U. S. 174, 88 U. S. 175 -- but it obviously does not confer power to admit a new State which shall be any less a State than those which compose the Union.
"that all the conditions and terms contained in said third section should be considered, deemed and taken as fundamental conditions and terms upon which the said State is incorporated into the Union."
"All Congress intended was to declare in advance to the people of the territory the fundamental principles their constitution should contain; this was every way proper under the circumstances; the instrument having been duly formed and presented, it was for the national legislature to judge whether it contained the proper principles, and to accept it if it did or reject it if it did not. Having accepted the constitution and admitted the state 'on an equal footing with the original States in all respects whatever,' in express terms, by the act of 1812, Congress was concluded from assuming that the instructions contained in the act of 1811 had not been complied with. No fundamental principles could be added by way of amendment, as this would have been making part of the state constitution; if Congress could make it in part, it might, in the form of amendment, make it entire. The conditions and terms referred to in the act of 1812 could only relate to the stipulations contained in the second proviso of the act of 1811, involving rights of property and navigation, and, in our opinion, were not otherwise intended. "
within the State, and that they should remain at the sole disposal of the United States, and a second, that all of the navigable waters within the State should forever remain public highways and free to the citizens of that State and of the United States, without any tax, duty or impost imposed by the State. These provisions were relied upon as a "compact" by which the United States became possessed of all such submerged lands between the shores of navigable rivers within the State.
"held the absolute right to all of their navigable waters and the soil under them for their common use, subject only to the rights since surrendered by the Constitution."
"forever disclaim all rights and title to the waste or unappropriated lands lying within the said territory, and that the same shall be and remain at the sole and entire disposition of the United States,"
"Full power is given to Congress 'to make all needful rules and regulations respecting the territory or other property of the United States.' This authorized the passage of all laws necessary to secure the rights of the United States to the public lands, and to provide for their sale, and to protect them from taxation. "
"And all constitutional laws are binding on the people, in the new states and the old ones, whether they consent to be bound by them or not. Every constitutional act of Congress is passed by the will of the people of the United States, expressed through their representatives, on the subject matter of the enactment, and, when so passed, it becomes the supreme law of the land, and operates by its own force on the subject matter, in whatever State or Territory it may happen to be. The proposition, therefore, that such a law cannot operate upon the subject matter of its enactment without the express consent of the people of the new State, where it may happen to be, contains its own refutation, and requires no farther examination. The propositions submitted to the people of the Alabama Territory, for their acceptance or rejection, by the act of Congress authorizing them to form a constitution and state government for themselves, so far as they related to the public lands within that Territory, amounted to nothing more nor less than rules and regulations respecting the sales and disposition of public lands. The supposed compact relied on by the counsel for the plaintiffs, conferred no authority, therefore, on Congress to pass the act granting to the plaintiffs the land in controversy."
been admitted into the union on an equal footing with the original States, the constitution, laws, and compact to the contrary notwithstanding."
This deduction finds support in Permoli v. First Municipality, 3 How. 589, from which we have heretofore used an excerpt, and in Strader v. Graham, 10 How. 82; Withers v. Buckley et al., 20 How. 84, 61 U. S. 93; Escanaba Co. v. Chicago, 107 U. S. 678, 107 U. S. 688; Van Brocklin v. Tennessee, 117 U. S. 151, 117 U. S. 160; Huse v. Glover, 119 U. S. 543; Sands v. River Co., 123 U. S. 288, 123 U. S. 296; Ward v. Race Horse, 163 U. S. 504; Bollin v. Nebraska, 176 U. S. 83, 176 U. S. 87.
That the power of Congress to regulate commerce among the States involves the control of the navigable waters of the United States over which such commerce is conducted is undeniable; but it is equally well settled that the control of the State over its internal commerce involves the right to control and regulate navigable streams within the State until Congress acts on the subject. This has been the uniform holding of this court since Willson v. Black Bird Creek Marsh Co., 2 Pet. 245; Gilman v. Philadelphia, 3 Wall. 713; Escanaba Co. v. Chicago, 107 U. S. 678,6 107 U. S. 83.
of the general subject by Congress, but as a result of a supposed compact, condition or restriction accepted by the State as a condition upon which it was admitted into the Union.
It may well happen that Congress should embrace in an enactment introducing a new State into the Union legislation intended as a regulation of commerce among the States, or with Indian tribes situated within the limits of such new State, or regulations touching the sole care and disposition of the public lands or reservations therein, which might be upheld as legislation within the sphere of the plain power of Congress. But, in every such case, such legislation would derive its force not from any agreement or compact with the proposed new State, nor by reason of its acceptance of such enactment as a term of admission, but solely because the power of Congress extended to the subject, and therefore would not operate to restrict the State's legislative power in respect of any matter which was not plainly within the regulating power of Congress. Williamette Bridge Co. v. Hatch, 125 U. S. 1, 125 U. S. 9. Pollard's Lessee v. Hagan, supra.
"In considering this act of Congress of March 1st, 1817, it is unnecessary to institute any examination or criticism as to its legitimate meaning, or operation, or binding authority, farther than to affirm that it could have no effect to restrict the new State in any of its necessary attributes as an independent sovereign government, nor to inhibit or diminish its perfect equality with the other members of the Confederacy with which it was to be associated. These conclusions follow from the very nature and objects of the Confederacy, from the language of the Constitution adopted by the States, and from the rule of interpretation pronounced by this court in the case of Pollard's Lessee v. Hagan, 3 How. p. 44 U. S. 223."
"Whatever the limitation upon her powers as a government whilst in a territorial condition, whether from the ordinance of 1787 or the legislation of Congress, it ceased to have any operative force, except as voluntarily adopted by her, after she became a State of the Union. On her admission, she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original States. She was admitted, and could be admitted, only on the same footing with them. The language of the resolution admitting her is 'on an equal footing with the original States in all respects whatever.' 3 Stat. 536. Equality of constitutional right and power is the condition of all the States of the Union, old and new.
Illinois, therefore, as was well observed by counsel, could afterwards exercise the same power over rivers within her limits that Delaware exercised over Black Bird Creek, and Pennsylvania over the Schuylkill River. Pollard's Lessee v. Hagan, 3 How. 212; Permoli v. First Municipality, id., 44 U. S. 589; Strader v. Graham, 10 id. 51 U. S. 82."
States, even if it had the power to do so, and attempt to impose more onerous conditions upon her than upon them, or that, in cases arising in Nebraska, a different construction should be given to her constitution from that given to the constitutions of other States. But this court has held in many cases that, whatever be the limitations upon the power of a territorial government, they cease to have any operative force except as voluntarily adopted after such territory has become a State of the Union. Upon the admission of a State, it becomes entitled to and possesses all the rights of dominion and sovereignty which belonged to the original States, and, in the language of the act of 1867 admitting the State of Nebraska, it stands 'upon an equal footing with the original States in all respects whatsoever.'"
"should remain valid and secure under the laws of the proposed State of Kentucky, and should be determined by the laws now existing in this (Virginia) State."
sanctioned by the Constitution, while the one here sought to be enforced is one having no sanction in that instrument.
Beecher v. Wetherby, 95 U. S. 517, involved the validity of the grant of every sixteenth section in each township for school purposes. The grant was made by the act providing for the organization of a state government for the Territory of Wisconsin, and purported to be upon condition that the proposed State should never interfere with the primary disposal of the public lands of the United States, nor subject them to taxation. The grant was held to operate as a grant taking effect so soon as the necessary surveys were made. The conditions assented to by the State were obviously such as obtained no force from the assent of the State, since they might have been exacted as an exertion of the proper power of Congress to make rules and regulations as to the disposition of the public lands. Minnesota v. Bachelder, 1 Wall. 109, is another case which involved nothing more than an exertion by Congress of its power to regulate the disposition of the public lands.
"impair the rights of persons or property pertaining to the Indians of said territory so long as such rights shall remain unextinguished by treaty with such Indians."
within the power of a State to make, whether made with the United States for the benefit of its Indian wards or with a private corporation for the supposed advantages resulting. Certainly the case has no bearing upon a compact by which the general legislative power of the State is to be impaired with reference to a matter pertaining purely to the internal policy of the State. See Stearns v. Minnesota, 179 U. S. 223.
"thereupon the proposed State of Oklahoma shall be deemed admitted by Congress into the Union under and by virtue of this act, on an equal footing with the original States."
In Texas v. White, 7 Wall. 700, 74 U. S. 725, Chief Justice Chase said in strong and memorable language that, "the Constitution, in all of its provisions, looks to an indestructible Union, composed of indestructible States."
"The people of the United States constitute one nation, under one government, and this government, within the scope of the powers with which it is invested, is supreme. On the other hand, the people of each State compose a State having its own government, and endowed with all the functions essential to separate and independent existence. The States disunited might continue to exist. Without the States in union, there could be no such political body as the United States."

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


text:
Inventory of Correspondence from Governor Lee, 1949-1956.
This series includes both incoming and outgoing correspondence retained by Governor Lee's office.This correspondence documents Lee's communication regarding both state and national issues, as well as his views and policies. Interspersed in the series are a variety of other documents including reports, minutes, newspaper clippings, publications, and a few photographs. In most cases these documents accompanied letters to the Governor's office or were sent to the Governor for informational purposes and not produced by the Governor's office. This series contains considerable correspondence relating to the administration of various State agencies. It includes official correspondence with the State Legislature, as well as more general correspondence regarding pending legislation. Correspondents include members of Utah's Congressional Delegation, as well as Federal officials and other state governors. The series includes numerous letters from Utah citizens, especially those who were appealing to Governor Lee regarding an individual in a state institution such as the State Mental Hospital, or an individual receiving aid through the State Department of Welfare. Governor Lee also received countless letters and telegrams came from people outside of Utah who admired his stand on various national issues.
In addition to a variety of state legislation, the issues documented in this series include the construction of state highways and planning for an interstate freeway system through Utah, the Korean War and involvement of the Utah National Guard in the conflict, the debate over state control of liquor, the administration of a civil defense program, the development of water resources (especially the Colorado River), and education (including the proposed transfer of state junior colleges to the LDS Church). The series includes one folder of material relating to the Short Creek polygamy raids. Materials in the series provide valuable documentation of Lee's view on a number of national issues and the national prominence he gained from his outspoken stance on those issues. He became particularly noted for his opposition to Communism, the United Nations, the federal income tax, and the federal foreign aid program. He gained notoriety for his refusal to celebrate United Nations Day in Utah and for his much-publicized refusal to pay federal income taxes.
This series is arranged roughly alphabetically by topic, department name, or name of correspondent, thereunder roughly chronologically by year or multiple year grouping. This arrangement is documented by the microfilm copy made in 1979 and presumably represents the order in which the records were received from the Governor's office. Despite numerous inconsitencies in arrangement of materials in the series, the order found in the 1979 filming has been maintained as the best approximation of the original order of the series.
The structure of the original filing system used in the Governor Lee's office is evident in the series, but many folders are now out of the order originally intended. The system and the actual filing were not always consistent and some documents are clearly misfiled. Researchers will find that documents in this series may be filed under one heading, but may relate to other subjects as well. Some topics may be covered under multiple headings. For example, correspondence regarding specific welfare cases may be found under the heading "Welfare Cases" as well as under the heading "Welfare Department". Letters about a particular issue may be found under the name of the issue, under the state department responsible for handling the issue, or under the name of the correspondent. Because the series is not in the strict arrangement intended by the filing system and because the system and filing practice were not always consistent, researchers will want to approach their search broadly, scanning the entire container list and looking under any and all headings that could relate to the research subject.
Newspaper clippings from the Governor Lee, Series 214, includes information about the gubernatorial campaign of 1956 and issues facing state government at the time.
Press releases from the Governor Lee, Series 215, contains statements released to the press by Governor Lee, along with correspondence between Lee and news media representatives.
Proclamations from the Governor Lee, Series 216, includes official proclamations issued by Governor Lee.
Speeches from the Governor Lee, Series 217, includes text of Governor Lee's speeches, correspondence in reaction to his speeches, and source material for speeches.
Miscellaneous committee reports from the Governor Lee, Series 13852, contains various reports submitted to Governor Lee.
French Merci Train gifts. from the Governor Lee, Series 20732, contains gifts presented by the people of France to the people of Utah and officially accepted by Governor Lee.
Extradition case files from the Governor Lee, Series 23594, includes files from two extradition cases handled by Governor Lee.
This series was microfilmed in 1979 and the hard copy kept because of the intrinsic value of the papers. It was processed by Alan Barnett in January 2004 and scheduled in accordance with the Utah State Agency General Retention Schedule.
1 2 2 1949; Agriculture, Misc.
1 2 5 1950; Agriculture, Misc.
2 2 10 1951; Agriculture, Misc.
2 2 14 1952; Agriculture, Misc.
2 3 2 1953; Agriculture, Misc.
2 3 8 1954; Agriculture, Misc.
7 8 8 1951; Bennett, Senator Wallace F.
7 8 9 1952; Bennett, Senator Wallace F.
7 8 10 1953; Bennett, Senator Wallace F.
7 8 11 1954; Bennett, Senator Wallace F.
7 8 12 1955-1956; Bennett, Senator Wallace F.
8 10 7 1954; Business Regulation, Misc.
11 14 7 1954; Colorado River, Hearings, Reports, Etc.
13 16 10 1953; Dawson, Representative William A.
13 16 11 1954; Dawson, Representative William A.
13 16 12 1955-1956; Dawson, Representative William A.
16 20 13 1950; Ewing, O. W.
18 24 3 1955-56; ""F"" Correspondence, [Misc].
29 37 4 1949-1952; Granger; Walter K.
35 43 2 1949-1950; Insurance Commission (Department of Business Regulation), Reports by Lincoln G. Kelly & Co.
36 43 10 1951-1956; Isaacson, Thorpe B.
39 48 1 1950-1956; ""L"" Correspondence, Misc.
42 51 13 1953; Legislature, Federal Legislation, ""Gypsy Bills""
44 54 9 1951-1956; McKay, David O.
46 57 9 1949-1950; Monuments, Brigham Young Statue Commission, Washington D. C.
47 58 1 1947-1956; Monuments, ""This is the Place""
51 63 2 1954-1956; Prison, Utah State, Report of Body Taken from G. S. L.
55 68 9 1953; Road Commission, Utah State, Relocation of U. S. 91, Washington Co.
55 68 10 1954; Road Commission, Utah State, Relocation of U. S. 91, Washington Co.
57 71 5 1954; Safety Council, Utah, ""Safety Driving Day""
58 71 12 1953-1956; Safety Council, Utah, "" Golden Rule Club""
62 77 10 1953; Mountain States Telephone and Telegraph Co.
63 78 3 1949; Teachers, Retirement, etc.
63 78 4 1952; Teachers, Retirement, etc.
63 78 5 1953; Teachers, Retirement, etc.
63 78 6 1954; Teachers, Retirement, etc.
65 80 2 1952; Tax Commission, Utah State, Borden, E. A.
72 89 9 1949; Watkins, Arthur V.
72 89 10 1950; Watkins, Arthur V.
72 89 11 1951, Jan-May; Watkins, Arthur V.
73 90 3 1952; Watkins, Arthur V.
73 90 4 1953; Watkins, Arthur V.
73 90 5 1954; Watkins, Arthur V.
73 90 6 1955; Watkins, Arthur V.
73 90 7 1956; Watkins, Arthur V.
79 96 11 1950-1951; Legislature, Misc.

matches: V. V. V. V. V. V. V. V.


Release fails under Florida’s law because it is only an assumption of risk form, not a release in a Go-Kart case.
Release probably not written by an attorney and never had specific language that stated that the plaintiff’s claims for negligence would be barred by signing the agreement.
This is a very short decision by the Florida appellate court about a release used in a Go Kart case.
Prior to riding the Go-Karts the plaintiff signed a release. The trial court dismissed the plaintiff’s claims because of the release. The plaintiff appealed, and the appellate court reversed finding the release did not meet the necessary requirements under Florida’s law.
That means that the author bears the burden and the loss if the contract is written poorly. That applies to all contracts and releases. What that means, unless the parties agree in advance in the document, any mistakes in the document are held against the person who wrote the document.
There was no language in the alleged release that specifically states the plaintiff is giving up their legal rights.
There is language pointing out to the plaintiff that she cannot sue if she is injured due to the negligence of the defendant.
This was a simple case. The release was not a release. It did not have the necessary language to provide notice to people signing it that they were giving up their legal right to sue.
At the trial court, the defendant might still be able to win by using the failed release as an assumption of risk document. The assumption of risk document will be effective if the injury the plaintiff complains of is identified in the assumption of risk document as a risk the plaintiff agreed to assume.
Release lacked one clause and consequently, failed to protect the defendant sending the case to trial.
This is an interesting case. The activity is outside the normal area of the law covered by this site; however, the legal issues are very important to everyone reading these posts.
The plaintiff was injured driving a go-kart around the defendant’s go-kart track. This was the second time the plaintiff had been at the go-kart track; the first time was about six months prior.
While driving around the track a piece of plastic from the guard rail was sticking into the track. The plaintiff drove past it and it hit is leg giving him a two-inch laceration.
The plaintiff had signed a release the first time he attended the go-kart track which was six months prior to the date of his injury. He did not sign one the second time when he was injured. The defendant stated that people who have already signed a release are not asked to sign one again.
The defendant filed a motion for summary judgment based on the release the Pennsylvania Premises Liability Act. The act stated that a defendant’s business did not owe a duty to the business invitee for open and obvious hazards.
First, the court reviewed the requirements for a release to be valid in Pennsylvania.
First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly; each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.
The next issue was whether a release for recreational issues violates public policy in Pennsylvania. Again, releases for recreational activities do not violate Pennsylvania public policy concerns. Participants are free to go to any recreational facility or none at all.
In the context of recreational activities, releases generally function as a bar to liability because the party executing the release is free to choose whether or not he or she wants to participate in the activity. Such releases do not contravene public policy. However, where the injury was caused by recklessness or gross negligence, enforcement of the release would contravene public policy and the releases are thereby rendered void under those circumstances.
Generally, time frames are to be determined by the parties to the agreement. If not by the parties, then the language of the release is to be examined for an indication of time. Failing language in the release terminating the agreement, the court can infer from the parties intended performance, which must be within a reasonable amount of time.
Since the release had no language on termination, then the court determined the release terminated within a reasonable amount of time. Since this was not defined, then a term, phrase or clause was missing from the release.
In this case, the release Plaintiff executed is silent as to duration. Based on the foregoing case law, the Court determines that this is an essential term which is left out of the agreement. Therefore, a reasonable term is to be imposed instead of invalidating the release as a whole. Id. Because contract principles further dictate that contractual duration is presumed to be for a reasonable amount of time in the absence of a specified time for performance, the parties’ release must therefore be deemed to apply for a reasonable period of time.
Consequently, Defendant’s argument in support of summary judgment based on the existence of a release must be denied. Summary judgment is only appropriate where there is no genuine issue of material fact. Whether six months following the execution of a release for a recreational activity constitutes a reasonable amount of time is a question more appropriately posed to a finder of fact. The reasonableness of the duration in question is therefore, a genuine issue of material fact and summary judgment is inappropriate.
The simple phrase stating the release is valid for a year or more sent this case back to the jury for trial.
The other issue argued by the defendant was the definition of a business invitee which as defined did not create liability on the part of the defendant. A landowner does not owe a duty for open and obvious conditions on the land. In this case, the open and obvious condition would be the piece of plastic sticking out into the track.
As a general rule, possessors of land are not liable to invitees for physical harm caused to them by activities or conditions on the land whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness.
The issue of open and obvious then was reviewed as it is defined in Pennsylvania.
However, here again whether something is open and obvious in this case, a plastic part peeling off a guard rail is something that must be determined by the factfinder.
Nonetheless, the question of whether conditions on land were, in fact, open and obvious is generally a question of fact for a jury to decide. Id. It may be decided by a court where reasonable minds could not differ as to the conclusion.
Because in both cases, the release and the definition of the law required completion by the fact finder, the case was sent back for trial.
Summary judgment would not be appropriate on these grounds because there are factual issues regarding constructive notice and whether there were appropriate steps undertaken by Defendant. Testimony before a factfinder is necessary to assess whether and to what extent the employees were aware in advance of the existence of the dangerous condition. These are all factual questions to be resolved by a factfinder.
Here again, the release failed either because of a lazy program, an ineffective system or with both those failing a release that is missing components.
Either every time someone comes to your facility, event or business, they sign a release, or you have a system that tracks when people have signed the release and not and a release that covers that period of time.
At a minimum, you should have someone sign your release yearly. Season’s change, activities change and you might change your business, program, activities, anything and everything. That change may need to be placed in your release and at least follows up on.
This change in your program or start of the new year or season is the perfect opportunity to have an attorney review your release. Inform your attorney of any changes in your operation. Have your release checked to make sure it will do the job you and your insurance company expect it to do.
COUNSEL: [*1] Robert G. Bauer, Esq. for Plaintiff.
Ian T. Baxter, Esq. for Defendant.
JUDGES: Douglas G. Reichley, J.
IT IS ORDERED Defendant’s Motion is DENIED for the reasons set forth in the accompanying Memorandum Opinion.
Lehigh Valley Grand Prix, Inc., Defendant, owns and operates a go-kart track located at 649 South 10th Street, Allentown, Lehigh County, Pennsylvania. Nicholas Weinrich, Plaintiff, filed the instant action alleging he was injured while patronizing the facility. On May 19, 2015, Defendant filed a Motion for Summary Judgment. For the reasons set forth herein, Defendant’s motion is denied.
According to the Complaint, on June 4, 2012 at approximately 8:15 p.m, Plaintiff was operating a go-kart on Defendant’s track during which time a piece of the plastic covering the guardrail broke and was sticking out toward the track. As Plaintiff drove around the track, the plastic caught his go-kart’s bumper causing it to snap into his [*2] left leg. Plaintiff sustained a laceration on his leg less than two inches wide.
During depositions, Plaintiff testified that six months prior to the incident, he patronized Defendant’s facility without issue. On the date in question, Plaintiff completed two laps and did not notice the plastic covering jutting out. On his third lap, Plaintiff came around the adjacent turn and maintained momentum. He was near the wall, and the piece of the plastic guard was hanging out, bent toward him. He heard a loud snap, and subsequently felt pain in his calf.
Deposition testimony from Defendant’s staff indicated that the protrusion onto the track was common enough that employees were trained on how to repair it. Defendant’s owner conceded that it was possible for the plastic piece on the wall to snap and protrude onto the track.
Plaintiff filed his Complaint on April 4, 2014. Defendant filed its Answer on April 29, 2014. On May 19, 2015, Defendant filed the instant Motion for Summary Judgment. Plaintiff filed his response on June 19, 2015. Defendant filed a sur-reply brief on August 6, 2015. The Court heard oral argument on August 12, 2015, after which time the matter was taken under advisement.
Liss & Marion, P.C. v. Recordex Acquisition Corp., 603 Pa. 198, 983 A.2d 652, 657 (Pa. Super. 2009).
Defendant seeks summary judgment on two grounds. First, Defendant argues that Plaintiff executed a voluntary waiver which bars his recovery. Second, Defendant argues that even if the release were not binding and valid, as a landowner, Defendant cannot be held liable under these circumstances under a premises liability theory.
In Pennsylvania, exculpatory agreements must be strictly construed. Employers Liability Assurance Corp. v. Greenville Business Men’s Assoc., 423 Pa. 288, 224 A.2d 620, 623 (1966). Releases from liability are disfavored as a matter of public policy, but are nonetheless “valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (quoting Topp Copy Products, Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993)).
The courts of Pennsylvania have traditionally determined the effect of a release using the ordinary meaning of its language and interpreted the release as covering only such matters as can fairly be said to have been within the contemplation of the parties when the release was given. Moreover, releases [*5] are strictly construed so as not to bar the enforcement of a claim that had not accrued at the date of the execution of the release.
Fortney v. Callenberger, 2002 PA Super 182, 801 A.2d 594, 597 (Pa. Super. 2002) (citations and internal quotation marks omitted).
In the context of recreational activities, releases generally function as a bar to liability because the party executing the release is free to choose whether or not he or she wants to participate in the activity. Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 47 A.3d 1190, 1197 (Pa. 2012). Such releases do not contravene public policy. Id. However, where the injury was caused by recklessness or gross negligence, enforcement of the release would contravene public policy and the releases are thereby rendered void under those circumstances. Id.
Plaintiff argues that the waiver was no longer valid on the date in question because he executed it six months prior to the date of the accident. In support of this argument, Plaintiff does not cite any case law from Pennsylvania or any federal [*6] authority interpreting Pennsylvania law on this matter. The sole case upon which Plaintiff relics is a Florida case, Cain v. Banka, 932 So.2d 575 (Fla. 5th DCA 2006), which held a release unenforceable because the release contained no express language advising the plaintiff that it covered every future visit to a motocross track.
There are not any Pennsylvania cases reflecting the Florida court’s holding. Federal cases interpreting Pennsylvania law merely look at the language of the release to gauge its degree of applicability. See Savarese v. Camelback Ski Corp., 417 F.Supp.2d 663, 667 (M.D. Pa. 2005) (applying Pennsylvania law, language on the back of a ski lift ticket constituted a valid exculpatory agreement once the plaintiff purchased the ticket).
The salient issue in evaluating the instant waiver is that the language on the form neither limits the time for its applicability nor specifies the event or occasion to which it applies. When asked about the release’s duration during oral argument, Defendant’s counsel maintained that the waiver would be effective forever without limitation.
“As a general rule, releases encompass only such matters as may fairly be said to have been within the contemplation of the parties when the release was given.” Farrell v. Lechmanik, Inc., 417 Pa. Super. 172, 611 A.2d 1322, 1323 (Pa. Super. 1992). “[I]t is axiomatic that releases are construed in accordance [*7] with traditional principles of contract law, fundamental to which is the directive that the effect of a release must be determined from the ordinary meaning of its language.” Maloney v. Valley Med. Facilities, Inc., 2008 PA Super 32, 946 A.2d 702, 706 (Pa. Super. 2008) (internal quotation marks and citations omitted). Under contract principles, where a contract is silent as to the time for performance, courts must infer that the parties intended that performance occur within a reasonable amount of time. Cashdollar v. Mercy Hosp. of Pittsburgh, 406 Pa. Super. 606, 595 A.2d 70, 76 (Pa. Super. 1991) (“When the exact period for which the parties intended to contract cannot be ascertained, the agreement is not vitiated; rather, an agreement for a ‘reasonable time’ will be inferred.”).
In construing a contract, courts must adopt “an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.” Metzger v. Clifford Realty Corp., 327 Pa. Super. 377, 476 A.2d 1, 5 (Pa. Super. 1984) (citation omitted). “If an essential term is left out of the agreement, the law will not invalidate the contract but will include a reasonable term.” Stephan v. Waldron Elec. Heating & Cooling LLC, 2014 PA Super 205, 100 A.3d 660, 668 (Pa. Super. 2014) (quoting RegScan, Inc. v. Con-Way Transp. Services, Inc., 2005 PA Super 176, 875 A.2d 332 (Pa. Super. 2005)).
In this case, the release Plaintiff executed is silent as to duration. Based on the foregoing case law, the Court determines that this is an essential term which is left out of the agreement. Therefore, a reasonable [*8] term is to be imposed instead of invalidating the release as a whole. Id. Because contract principles further dictate that contractual duration is presumed to be for a reasonable amount of time in the absence of a specified time for performance, Metzger, 476 A.2d at 5, the parties’ release must therefore be deemed to apply for a reasonable period of time. What constitutes a reasonable time, however, is generally a question of fact to be resolved by the factfinder. See, e.g., Yates v. Clifford Motors, Inc., 283 Pa. Super. 293, 423 A.2d 1262, 1268 (Pa. Super. 1980) (in the Uniform Commercial Code context, whether goods were rejected within a reasonable amount of time where contract was silent as to time for rejection was question of fact for jury).
Consequently, Defendant’s argument in support of summary judgment based on the existence of a release must be denied. Summary judgment is only appropriate where there is no genuine issue of material fact. Whether six months following the execution of a release for a recreational activity constitutes a reasonable amount of time is a question more appropriately posed to a finder of fact. The reasonableness of the duration in question is therefore a genuine issue of material fact and summary judgment is inappropriate.
Defendant also argued in its motion [*9] that even if the release was not binding and valid, as a landowner, Defendant cannot be held liable under these circumstances under a premises liability theory. Plaintiff in this case was an invitee for premises liability purposes. An invitee is someone who is “invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.” Restatement (Second) of Torts §332 (1965).
As a general rule, possessors of land are not liable to invitees for physical harm caused to them by activities or conditions on the land whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness. Restatement (Second) of Torts, § 343A. A danger is deemed to be “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 123-24 (Pa. 1983) (citation omitted). “For a danger to be ‘known,’ it must not only be known to exist, but … also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.” Id. at 124.
Nonetheless, the question of whether conditions on land were in fact open and obvious is generally [*10] a question of fact for a jury to decide. Id. It may be decided by a court where reasonable minds could not differ as to the conclusion. Id.; see also Long v. Manzo, 452 Pa. Super. 451, 682 A.2d 370, 373 (Pa. Super. 19%) (citation omitted) (issues of plaintiff’s knowledge of condition creating unreasonable risk of harm usually for jury to decide, but may be decided by court where reasonable minds could not differ).
In the context of amusement facilities, Pennsylvania courts have held that there is no duty to protect participants against the typical risks attendant to those activities. See Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525 (Pa. Super. 1983) (roller rink has no obligation to protect patrons from falling down or being bumped by other skaters). A duty arises only where the risks at play are atypical. See id. (liability found where accident attributable to a condition unique to defendant skating rink, i.e. a 60-foot wide opening in the rink and a 6″ drop-off on its side).
With respect to the requirement for notice, Plaintiff argued that Defendant’s employees’ depositions demonstrate an acute awareness that the sort of dangerous condition at issue–the broken plastic piece protruding into the racetrack–was something for which they were trained. While the record is devoid of evidence supporting [*11] actual notice, Plaintiff argued Defendant had constructive notice.
Neither the witnesses who were deposed nor Plaintiff testified that the plastic was protruding into the track for an extended period of time. The testimony at the depositions indicated that there are three scheduled inspections of the racetrack per day: morning, noon, and night. None of those inspections revealed the dangerous condition. There is also a visual inspection of the track in between each race according to the testimony offered by Michael McCreary, Defendant’s owner. Defendant’s employees, Michael Achey (manager) and Corey Dewalt (track marshal) conceded that it was possible that the protruding plastic could have been missed.
Because there is an outstanding factual issue concerning whether six [*12] months after execution of the subject release is a reasonable period of time for the release to remain in effect, Defendant’s Motion for Summary Judgment on the ground of the release must fail. Further, there are outstanding factual questions concerning constructive notice which render summary judgment inappropriate on that basis. Accordingly, Defendant’s Motion for Summary Judgment is denied.


Laws addressing retail distribution of beer including State-run, private licensed sellers, or combination systems.
The retail distribution system for malt beverages containing more than 13.9 percent ABV is not specifically addressed in Alabama statutes or regulations.
The retail distribution system for malt beverages containing more than 8 percent ABW is not specifically addressed in Mississippi statutes or regulations.
Prior to October 1, 2009, beer was defined as being a malt beverage containing not more than 7% ABW. As of October 1, 2009 the upper alcohol content limit for beer was raised to 14% ABV. Beer products “in which the sugars used for fermentation of the alcoholic beverage are at least 75% derived from malted cereal grain measured as a percentage of the total dry weight of the fermentable ingredients” and containing more than 8.75% ABV would still be only available alongside liquor. Also, “caffeinated or stimulant-enhanced malt beverage” was defined as being “liquor” and therefore excluded from the definition for beer. See Mont. Code Ann. § 16-1-102 and § 16-1-106.
Prior to July 18, 2007, New Hampshire law specified that beer containing from .5 percent to 12 percent ABV could be sold in licensed premises. The law was indeterminate regarding beer containing greater than 12 percent ABV. Effective July 18, 2007, the New Hampshire State Liquor Commission can approve “specialty beer” brands greater than 12 percent ABV for sale in licensed premises.
The retail distribution system for malt beverages containing more than 15 percent ABV is not specifically addressed in North Carolina statutes or regulations.
Although malt beverages are not specifically identified in Oregon statutes and regulations as being among the alcoholic liquors distributed by the Oregon Liquor Control Commission, the most reasonable construction of Oregon’s statutory scheme is that the Commission is authorized to distribute, at retail, malt beverages containing greater than 5 percent ABV.
The retail distribution system for malt beverages containing more than 14 percent ABV is not specifically addressed in Oregon statutes or regulations.
Flavored malt beverages containing at least 0.50% ABV and with no specified upper alcohol content level are included within the definition of “liquor” and distributed through the state-run system in Utah. See Utah Code Ann. § 32B-1-102 (prior to July 1, 2011, the definition of "flavored malt beverages" was found in Utah Code Ann. § 32A-1-105) and 2008 Utah Laws 391, §1, effective May 5, 2008. Prior to May 5, 2008, flavored malt beverages of 4% ABV or less were treated as “beer” and distributed through a license system, and flavored malt beverages of greater than 4% ABV were treated as “liquor” and distributed through the state-run system.
In 1990, the West Virginia legislature declared its intent to privatize the retail sale of liquor (currently defined as alcohol, wine, spirits, and any beer greater than 9.60 percent ABW), while retaining control over the distribution of liquor at wholesale. See W. Va. Code § 60-3A-2. This transition is effected by W. Va. Code § 60-3A-3, which states that “[n]otwithstanding any provision of this code to the contrary, the sale of liquor by retail licensees in accordance with the provisions of this article is lawful,” and that “[u]pon the opening of a retail outlet in any market zone, the State shall, as soon as practicable, discontinue operating any and all State liquor stores and agency stores within the market zone so long as a retail outlet is in operation in the market zone.” Retail sales, by license, of beer containing from .50 percent ABV to and including 9.60 percent ABW, which West Virginia defines as "nonintoxicating beer," are authorized by W. Va. Code §§ 11-16-5, 11-16-9.


Duty to inform according to §5 E-Commerce Law, §14 Unternehmensgesetzbuch, §63 Gewerbeordnung and disclosure obligation according to §25 Mediengesetz.
In accordance with the Ordinance on Online Dispute Resolution in Consumer Matters (ODR Ordinance), we would like to inform you about the Online Dispute Resolution Platform (OS Platform).
Consumers have the opportunity to submit complaints to the European Commission's online dispute resolution platform at http://ec.europa.eu/odr You will find the necessary contact data above in our imprint.
However, we would like to point out that we are not willing or obliged to participate in dispute resolution proceedings before a consumer arbitration body.
We are constantly developing the contents of this website and make every effort to provide correct and up-to-date information. Unfortunately, we cannot assume any liability for the correctness of all contents on this website, especially for those provided by third parties.
If you notice problematic or illegal contents, please contact us immediately, you will find the contact details in the imprint.
Our website contains links to other websites for whose content we are not responsible. According to § 17 ECG, we are not liable for linked websites, since we had no knowledge of illegal activities and have had no knowledge of such illegal activities, we have not noticed such illegal activities up to now and we would remove links immediately if we became aware of illegal activities.
If you notice any illegal links on our website, please contact us, you will find the contact details in the imprint.
All contents of this website (pictures, photos, texts, videos) are subject to copyright. If necessary, we will prosecute the unauthorized use of parts of the contents of our site.
The pictures, photos and graphics on this website are protected by copyright.
We have drawn up this data protection declaration (version 15.06.2018-221064327) in order to explain to you in accordance with the provisions of the Basic Data Protection Regulation (EU) 2016/679 and the Data Protection Act (DSG) what information we collect, how we use data and what decision-making options you have as a visitor to this website.
Unfortunately, it is in the nature of things that these explanations sound very technical, but we have tried to describe the most important things as simply and clearly as possible.
in files (web server log files).
Usually web server log files are stored for two weeks and then automatically deleted. We do not pass on this data, but we cannot exclude the possibility that this data may be viewed in the event of illegal behaviour.
According to Article 6(1)(f) of the DSGVO (lawfulness of processing), the legal basis is that there is a legitimate interest in enabling the faultless operation of this website through the collection of web server log files.
Personal data that you transmit to us electronically on this website, such as your name, e-mail address, address or other personal data in the context of submitting a form or comments in the blog, will only be used by us together with the time and IP address for the purpose stated in each case, will be kept securely and will not be passed on to third parties.
We therefore use your personal data only for communication with those visitors who expressly request contact and for the processing of the services and products offered on this website. We will not pass on your personal data without your consent, but we cannot exclude the possibility that this data may be viewed in the event of unlawful behaviour.
If you send us personal data by e-mail - away from this website - we cannot guarantee secure transmission and protection of your data. We recommend that you never send confidential data by e-mail without encryption.
According to Article 6 paragraph 1 a DSGVO (Legality of processing), the legal basis is that you give us your consent to process the data you have entered. You can revoke this consent at any time - an informal e-mail is sufficient, you will find our contact details in the imprint.
We use https to transmit data securely over the Internet (data protection through technical design Article 25 paragraph 1 DSGVO). By using TLS (Transport Layer Security), an encryption protocol for secure data transmission over the Internet, we can ensure the protection of confidential data. You can recognize the use of this data transmission security by the small lock symbol in the upper left corner of the browser and the use of the https scheme (instead of http) as part of our Internet address.
Our website uses HTTP cookies to store user-specific data.
A cookie is a short data package that is exchanged between web browser and web server, but is completely meaningless to them and only becomes significant for the web application, e.g. an online shop, such as the content of a virtual shopping basket.
There are two types of cookies: first-party cookies are created by our website, third-party cookies are created by other websites (e.g. Google Analytics).
There are three categories of cookies: essential cookies to ensure basic website functions, functional cookies to ensure website performance and targeted cookies to improve the user experience.
If you do not wish the storage of data in cookies, you can set your browser so that it informs you about the setting of cookies and you only allow this in individual cases. You can delete cookies that are already on your computer or deactivate cookies at any time. The procedure varies from browser to browser, the best way is to search for the instructions in Google with the search term "Delete cookies Chrome" or "Disable cookies Chrome" in the case of a Chrome browser or replace the word "Chrome" with the name of your browser, e.g. Edge, Firefox, Safari.
We use Google Analytics from Google LLC (1600 Amphitheatre Parkway Mountain View, CA 94043, USA) on this website to statistically evaluate visitor data. Google Analytics uses goal-oriented cookies.
o Usage: Used to throttle the requirement rate. If Google Analytics is provided via the Google Tag Manager, this cookie gets the name _dc_gtm_ <property-id>.
Our concern in the sense of the DSGVO is the improvement of our offer and our website. Since the privacy of our users is important to us, the user data is pseudonymised. Data processing is carried out on the basis of the legal provisions of § 96 Paragraph 3 TKG and Art 6 EU-DSGVO Paragraph 1 lit a (consent) and/or f (legitimate interest) of the DSGVO.
We have concluded a direct customer agreement with Google for the use of Google Analytics by accepting the "data processing supplement" in Google Analytics.
We have implemented the IP address anonymization of Google Analytics on this website. This feature was developed by Google to enable this website to comply with the applicable data protection regulations and recommendations of local data protection authorities if they prohibit the storage of the complete IP address. The IP is anonymised or masked as soon as the IP addresses arrive in the Google Analytics data collection network and before the data is stored or processed.
More information on IP anonymization can be found at https://support.google.com/analytics/answer/2763052?hl=en.


with one of our products and what we will offer in case you do. Whatever it may be, rest assured, that our highest priority is your complete satisfaction!
Where can I purchase EQVIS products?
We operate by means of direct distribution, which means avoiding extra charges - like the rent and salaries of stationary boutiques - for you, our valued customers, by only selling our products through our eShop.
How can I try your products before purchasing?
For now, you can't, but we offer a 14 day return policy on our watches and accessories. We grant a full refund if you are not satisfied with the product and return it in the condition you've recieved it. Should you decide to return the watch within the 14 days after having worn it, it is technically not a new, unworn watch anymore so that we will not be able to grant a full refund.
What other charges do I have to expect when ordering products from your eShop?
The only charges we can not handle for you are the custom‘s duties and import tax of your country, should it not be a member of the European Union. However, if that is the case, the 19% value added tax already included in the sales price of our products, will be deducted from the purchase price during check-out.
My EQVIS watch is not working properly out of the box, how can this happen?
Every single watch leaves our distribution center in perfect working condition, our multiple quality checks make sure of this. However, the package can travel quite a distance and although we've secured it to the highest standards, it may get tossed around quite a bit on its journey and sometimes that can result in malfunctions of the time piece or a damaged box. Any and all of what can happen is covered by our 2 year warranty.
What exactely do you mean by 100% Swiss Made?
Just that! Every component of the watch was designed by us and produced by several different Swiss companies and then assembled in Switzerland. This is not something we need to do, as only 60% of Swiss value is needed in order to be allowed to officially write Swiss Made on a product.
Do I need different tools for changing straps and rings?
You will only need the one tool that is supplied with the watch, as all screws used on the outside of the watch are exactely the same. We chose this way, because it makes things a lot easier for all of us.
Your EQVIS Varius has a water-resistance of at least 10 ATM when the crown is screwed down to the secure position. ATM is short for atmospheres and describes the amount of water pressure the watch is able to handle. Important for you to know is, that you can swim and even scuba dive with yor EQVIS Varius without having to worry about water leaking into it, as long as you make sure, that the crown is screwed down all the way. To ensure that your EQVIS Varius continues to function perfectly, you should rinse it thoroughly with tap water after exposure to salt water. Should you feel that your Varius is not functioning properly after swimming, diving or after exposure to unusually harsh conditions, we recommend you have it tested in our Service Center in Switzerland.
Our leather watch straps are hand made from high quality italian calf leather, which is a natural and permeable material. Make sure, therefore, that it does not come into contact with water, oily substances, solvents, cleaning agents or cosmetic products. This way you can prevent discoloration and premature ageing of the material. If you want to go swimming or diving with your EQVIS Varius, please make sure to exchange the leather watch strap with one, that can be exposed to water, like the black synthetic velcro™ strap, that is also part of your Varius starter package.
Although the parts in your EQVIS Varius are all manufactured from top-quality materials, a number of components are subject to natural wear and tear. It is particularly important to ensure that the points at which wear occurs are always well lubricated and that oil contaminated by metal abrasion is regularly removed. For this reason, we recommend that you have your watch serviced approximately every five years. To do so, please contact or send your EQVIS Varius directly to our Service Center in Switzerland.
Every EQVIS Varius has been manufactured to the highest standards available in Swiss Watchmaking. It has also been tested and inspected several times before it is sent to the buyer. Nevertheless, it is a small machine consisting of many different parts interacting with each other over long peroids of time, so that it could take just one defective part for it to not work properly anymore. Should this happen within the first 2 years of your purchase, the service it will require is for you free of charge. After this time period we will need to charge a service fee according to the amount of work the watch is in need of. All that needs to be done in case of a warranty issue is to contact us at service@eqvis.net with a brief summary of the issue the watch has encountered, the order-number as well as the customer-number. We will then guide the buyer through every step necessary to get the watch back in perfect working condition as soon as possible.
In order to benefit from the two year international warranty, it is necessary to include the duly completed warranty card along with the defective EQVIS Varius, when sending it to our Swiss Service Center.
Defects and/or damages due to normal wear and tear.
Defects and/or damages due to loss, theft and/or fire.
Defects and/or damages resulting from deliberate misuse or negligence and/or resulting from accidents.
Defects and/or damages caused by improper use like hard knocks, denting, crushing etc., alteration, dismantling, or repairs done by anyone other then by the EQVIS Service Center.
The packaging including the wooden watch box, the leather travel case including its contents and the paperwork.
Except to the extent prohibited by applicable law, this limited warranty shall be the exclusive manufacturer warranty. Neither this limited warranty nor any other warranties, whether expressed or implied, including, but not limited to, any implied warranty or merchantability or of fitness to any particular purpose, shall extend beyond the peroid of twenty-four months from the date of purchase.
The liabililty of EQVIS is limited soley and exclusively to repair or replacement as stated herein. EQVIS shall not be liable, by virtue of this limited warranty or otherwise, for any loss or damage arising out of the use of or inability to use this wrist watch or for any incidental or consequential damages relating in any way to this wrist watch.
Some states, provinces or territories do not allow limitations on how long an implied warranty lasts, or the exclusion of limitations of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
This EQVIS limited warranty gives you specific rights and you may have other rights which vary from state, province or territory to another.
§1.1 All deliveries and services of EQVIS GmbH, Alsterdorfer Strasse 394, 22297 Hamburg, Germany, subsequently EQVIS, are made solely on the basis of the following general terms and conditions valid at the time of the order. Differing terms and conditions do not apply, unless they are expressly agreed in writing.
§1.2 In the sense of these Terms and Conditions, customers are both consumers and entrepreneurs. Consumers are natural persons concluding contracts for a purpose that is neither commercial nor which can be attributed to their professional activity. Entrepreneurs within the meaning of the terms and conditions are natural or legal persons or partnerships having legal capacity, which in concluding the contract, exercise their commercial or independent professional activity.
§1.3 The purchase contract is concluded with EQVIS GmbH, Alsterdorfer Strasse 394, 22297 Hamburg, Germany, legally registered with the District Court Hamburg under the registration number HRB 146866 HH.
§2.1 Our offers are always subject to changes and are not binding. The illustrations of products in the EQVIS eShop do not represent a legally binding offer, but a non-binding online catalogue. We reserve the right to errors in images to pictures, descriptions, dimensions, weights and design changes without prior notice. Images are for reference only and serve as illustrations and may differ from the final product. An order given via our website or by e-mail, internet auctions, phone, fax or mail by the customer shall be binding. After receipt of the order, the customer receives an email that confirms the receipt of his order (order confirmation). This order confirmation contains no declaration of acceptance of the offer, but is for information only. An effective purchase contract is created only with our delivery confirmation or delivery of the goods.
§3.1 We save your order and the order data entered. We will send you via e-mail an order confirmation with all order data. You also have the option to print both the order and the terms and conditions before placing the order with us. If you have an account with us, you have access at any time to the orders you have made.
§4.1 The following revocation right is valid only for consumers: Right of Cancellation. Right of withdrawal. You are entitled to withdraw from this contract within fourteen days, without stating reasons. The withdrawal period is fourteen days from the day on which you, or a third party designated by you, other than the sponsor, take(s) possession of the goods.
To exercise your right to withdraw, you must inform EQVIS GmbH, Alsterdorfer Strasse 394, 22297 Hamburg, Germany, phone: +49 40 500 161 88, e-mail: hello@eqvis.net, Internet: www.eqvis.net, by way of an unambiguous declaration (e.g. in a letter sent by post mail or email) of your decision to withdraw from this contract. It is sufficient for you to send us notice that you are exercising your right of cancellation before the cancellation period has expired.
Consequences of cancellation: If you withdraw from this contract, we will refund payments made by you - complete or reduced accordingly, depending on the condition of the returned goods we have received from you - including shipment charges (with the exception of additional costs arising when you chose a different delivery method to the most cost-efficient standard delivery offered by us), immediately and at the latest within fourteen days from the day we received the goods. The repayment will be made using the same payment method as used for the original transaction, unless otherwise explicitly agreed with you; under no circumstances will you be charged fees for this repayment. We will withhold the refund, complete or reduced accordingly, until the items have been returned to us. The buyer shall return the goods promptly and in any event no later than fourteen days from the date on which the right of withdrawal was exercised. The deadline will be deemed to have been observed if you send the items before the fourteen-day deadline has expired. We shall bear the cost of returning the items. You will only be liable for any potential reduction in value of the items if this reduction in value is due to handling on your part which was not necessary for testing the quality, characteristics, and functioning of the items.
A right of withdrawal does not apply to contracts for the delivery of goods which are not prefabricated and the production of which required an individual choice or decision by the consumer, or which are clearly tailored to the personal needs of the consumer.
§5.1 The prices are ex warehouse as individual prices in EURO and include the current, german value-added tax (VAT). 19%, hereinafter referred to as value of goods. All prices are valid until a new price list is published.
§5.2 The shipping costs, Packaging, handling and any other fees are included in the price.
§6.1 Payment is to be made in advance by either credit card, PayPal or by immediate bank transfer. With advance payment, we will provide our bank details in the order confirmation and deliver the goods 2-5 work days after you submit your transfer order to your bank. The invoice amount is to be transferred within 10 days to our account. Payments by credit card will be charged when the order is fulfilled. When paying by Paypal or immediate transfer you will be taken directly from the ordering process to the payment pages of the payment company and you can accept the immediate payment here.
§6.2 If you are a consumer, interest on the purchase price upon the occurrence of late payments during the delay will be charged to the amount of 5% above the base rate. If you are not a consumer, the interest rate for a delay in payment is 8% above the base rate. We reserve the right to prove and claim higher damages caused by delay.
§7.1 Delivery is usually within 8 business days after receipt of payment ... In accordance with payment system. If delivery is delayed, we will inform you immediately.
§7.2 Information about the delivery date are non-binding for the Seller and merely constitute a non-binding estimate. Fixed transactions will not be entered into. If the non-compliance of an agreed delivery period is attributable to force majeure, labour dispute, fire, machine breakdown, unforeseen obstacles or other circumstances beyond the seller‘s control, the delivery period shall be extended for the duration of such events. This applies accordingly in the event that the seller is in default of delivery when entering one of these events.
§7.3 Transport damages detected by the customer after receipt of the products are, if they were not already shown to the deliverer, to be notified to the shipping company or to us, within 24 hours after receipt of the item, otherwise no compensation or replacement is possible.
§8.1 The customer is exclusively responsible for the payment of import duties, customs fees, or taxes in the recipient country.
§9.1 We reserve ownership of the delivered goods until all claims from the delivery contract are paid in full.
§10.1 We inform our customers of the fact that we save and process their data to the extent necessary for business purposes and permissible under the Federal Data Protection Act. The data will not be disclosed to third parties.
§10.2 We use your personal data exclusively to process your order. All customer data will be processed and stored by us in compliance with relevant regulations of the Federal Data Protection Act (BDSG) and the Teleservices Data Protection Act (TDDSG). You always have a right to free information, correction, blocking and deletion of your stored data. Please contact hello@eqvis.net or send us your request by regular mail.
§10.3 We do not disclose to third parties your personal data, including your home address and email address, without your explicit and revocable consent. This does not include service partners who need to transmit data for order processing (e.g. the mail-order company handling the delivery and the bank responsible for processing payments). In these cases, the amount of data disclosed is limited to the required minimum.
§10.4 We use technical and organisational security measures to protect your data maintained by us against accidental or intentional manipulation, loss, destruction and against access by unauthorised persons.
§10.5 We store your email address in a news list. From time to time you will receive information from us. If you do not want this, a simple cancellation by email is sufficient.
§10.7 For registered customers, information about the contents of the basket are stored in our database, which can then be called up at the next visit. If you would like to register with us or place an order, we will need your customer data. If you are already a customer with us, you can easily sign in with your email address and your personal password. The data stored in the database saves you time when filling in forms.
§11.1 German law applies to the exclusion of the UN Sales Convention. In case of doubt about the meaning and interpretation of clauses of the English version of these terms and conditions, the German wording shall prevail.
§11.2 For customers who conclude the contract for a purpose that cannot be attributed to the professional activity (consumer), this choice of law applies only insofar as they have not been withdrawn from them by mandatory provisions of law of the country in which he is habitually resident.
§11.3 For all disputes arising from the contractual relationship if the customer is a merchant, a legal entity under public law or is a public special fund, the jurisdiction of Pinneberg in Germany applies.
§12.1 The contract language is English.
§12.2 If one or more provisions of these terms and conditions is invalid, the contract will remain valid. If provisions are invalid, the content of the contract shall be governed in accordance with statutory regulations.