USDC - District of New Hampshire - Cases from the USDC for New Hampshire

Home < General Information < History < Cases from the USDC for New Hampshire

A Case of Judge Sullivan

The following case, heard at Portsmouth on June 7, 1791, is believed to be one of the first cases brought before the United States District Court for the District of New Hampshire. The text below is partially transcribed from the Court records:

Joseph Whipple Esq., collector for the port of Portsmouth, libellant of five bags, one barrel and one half barrel of Coffee, marked B, as in his complaint and libel exhibited to this Court the ninth day of March, 1791 - wherein was set forth that some person or persons, to the informant unknown, did lately import into the port of Portsmouth, within said District, from beyond the seas in some vessel unknown to said informant, five bags, one barrel, and one half barrel of coffee marked B, and unloaded the same within the port aforesaid without lawfully entering it at the said collector office and paying or to be paid the duties due, to the said United States, contrary to the law in such case made and provided. Whereby the said coffee with the barrels and bags containing the same became forfeited to be duly possessed of as the said law directs. Wherefore he caused the same two barrels seized, and on the advisement of this honorable court thereon and that the said coffee with the barrels and bags containing the same might be taken into the custody of the officers of this court and be decreed to remain forfeited, one for the use of the United States and the other in equal shares as the law directs. Whereupon it was ordered by the Court that the Marshal or his Deputy should immediately take into custody the aforesaid articles complained against and have them at a Special District Court to be [held] at Portsmouth in said District on the first Tuesday of June 1791 for trial and that the said Marshal or his Deputy should give notice of said libel with the order of Court thereon as the law in such cases directs. And now on the said seventh day of June 1791 solemn proclamation being made for any person to appear and show cause, if any they had, why the aforesaid Coffee, with the barrels and bags containing the same should not be declared forfeited, and no one appearing to make answer thereto or claim the same, the said Coffee with the barrels and barges aforesaid are, by the Court, declared and decreed forfeited and it is therefore ordered by court that the said Coffee with the barrels and bags containing the same be sold at public auction on the twenty second day of June instant, and that the proceeds thereof, after deducting all proper costs and charges, be disposed of in the following manner. One [amount] thereof to and for the use of United States and the other [amount] to be divided into three equal parts and paid to the Collector, Naval Officer, and Surveyor of the District of New Hampshire. Cost of prosecution is taxed at ten dollars and twenty one cents.

A Case of Judge Pickering

This case is thought to be the last case that Judge Pickering heard before his impeachment by the United States Congress. The following comes from the case as it appears in original court records:

The United States of America plaintiff against Lewis Barnes of Portsmouth in said District. Defendant is a plea of debt, for that the said Lewis the twenty fourth day of March 1802, at a place left Boston [arrived] at said Portsmouth by his writing obligatory of that date by his signed sealed in Court be produced acknowledges himself held and bound to said United States in the form of fifteen hundred dollars to be paid on demand. Yet tho' often requested, he has paid said firm, but neglects it to the damage of the said United States, as they say the sum of fifteen hundred dollars. The said Lewis being publicly called in court doth not appear [and] makes default and the United States, by then Attorney, appearing and proving their declaration, it is thereupon considered by the Court that the said United States recover against the said Lewis Barnes the sum of five hundred fifty three dollars and seventeen cents debt and costs of suit taxed at fifteen dollars and eighty two cents.

Top of Page

A Case of Judge Harvey

A large number of cases heard while Judge Harvey served on the district court involved naturalization. The majority of people seeking naturalization were from Great Britain and Ireland; however, there was also a significant number from other areas such as Nova Scotia, Canada and France. The following text is partially transcribed from the court records of Daniel Collins' naturalization which occurred in the December Term of 1858. It demonstrates a typical naturalization case.

Daniel Collins a free white person resident in Portsmouth in said District of New Hampshire, and heretofore an alien and a subject of the Queen of Great Britain and Ireland having presented to this court his petition to be admitted to become a citizen of the United States, and in appearing to this court, by the testimony of two citizens of the United States, that said Collins was born in the county of Cork in Ireland, on or about the tenth day of May, in the year of our Lord, one thousand eight-hundred and twenty nine, that he emigrated from Ireland, and arrived in Boston in the United States, on or about the eighth day of May, A.D. 1845, that he has resided in the United States for five years last-past, and ever since he was eighteen years of age, and within the State of New Hampshire for one year last-past, and that he has, during all the time of his residence in the United States, behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposes to the good order and happiness of the same, that he hath this day in the Court, made report of himself and declared his intention to become a citizen of the United States, according to law, and that for more than three years last-past, in good faith intended to become a citizen of the United States, the said Collins was permitted to take and subscribe, and did, on the twenty fourth day of December, A.D. 1858, take and subscribe in open Court; a solemn oath that he does absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign Prince, Potentate, State, or Sovereignty whatever, and particularly to Victoria Queen of the United Kingdom of Great-Britain and Ireland, and that he will support the Constitution of the United States, and was admitted to become a citizen of the United States.

Top of Page

A Case of Judge Clark

This case is partially transcribed from early court records and concerns a dispute that arose out of a violation of Internal Revenue laws. In one sense, this case was a harbinger of what this country would witness fifty years later during Prohibition. United States v. One Still was heard during the December Term of 1871:

Be it remembered that on this nineteenth day of September in the year of our Lord one thousand eight hundred and seventy one, comes in his own proper person Henry P. Rolfe Esquire of Concord is said District Attorney of the United States for the District aforesaid, and in the name and behalf as well of the United States as of Elijah M. Topliff Collector of Internal Revenue of the second collection District of New Hampshire and of all the persons concerned propounds and gives the said Judge to understand and be informed that on the fifth-day of May one thousand eight hundred and seventy at Manchester in said District and within said second collection District the said Elijah M. Topliff Collector as aforesaid seized and caused to be seized the following goods to wit: one still of the value of one hundred dollars and now hath the same in his custody as being forfeited to the United States for the causes hereinafter named, to wit: for that heretofore on a day prior to said seizure, that is to say in the month of December in the year of our Lord one thousand eight hundred and sixty nine, and in the month of January one thousand eight hundred and seventy, the said still was used in distilling spirituous liquor at said Manchester by one John Smith without having paid a license for carrying on the business of a distiller contrary to the form of the Statute in such case made and provided by reason whereof the said still become and is forfeited to the United States. Wherefore the said Attorney prays that process in due form of law may issue against the said property to enforce the forfeiture thereof and requiring notice to be given to all persons concerned to appear and show cause on the return day of said process why said forfeiture should not be decreed.

And now, due notice having been given and no person appearing to claim the goods labelled, it is ordered that the same be sold by the Marshall and the proceeds thereof paid into the Registry of the Court and that the same be declared condemned and forfeited according to the statute in such case made and provided and that the cause abide the further order of the Court.

Top of Page

A Case of Judge Morris
United States v. Northern Railroad, et al.
Civil No. 29, September 1939

With the conflict in Europe escalating into war, the United States Secretary of War began to involve the country in projects that maintained and prepared the defenses of the United States. These projects included the building of roads, the upgrading of waterways, and the construction of public works on rivers and harbors. Along with these efforts came litigation from individuals and companies whose lands had been altered, destroyed, or appropriated by the government. The following text illustrates the consequent battles over land rights, and comes from a petition to the United States District Court for the District of New Hampshire:

To the Honorable George F. Morris, Judge of the District Court of the United States for the District of New Hampshire.

This petition of the United States of America, brought by Alexander Murchie, United States Attorney for the District of New Hampshire, acting under the instructions of the Attorney General and at the request of the Secretary of War, respectfully shows as follows:

That by the Acts of Congress entitled 'An act to facilitate the prosecution of works projected for the improvement of rivers and harbors', approved April 24, 1888 (25 Stat. 94, 33 U.S.C. 591); Section 5 of 'An act making appropriations for the construction, repair and preservation of certain public works on rivers and harbors, and for other purposes', approved July 18, 1918 (40 Stat. 911, 33 U.S.C. 594); 'An act authorizing the construction of certain public works on rivers and harbors for flood control and for other purposes', approved June 22, 1936 (49 Stat. 1570), as amended by 'An act authorizing the construction of certain public works on rivers and harbors for flood control, and for other purposes', approved June 28, 1938 (52 Stat. 1215) . . . the Secretary of War is authorized and empowered to cause proceedings to be instituted in the name of the United States of America in any court having jurisdiction of such proceedings for the condemnation of land, rights of way, or material needed to enable him to maintain, operate and prosecute works for the improvement of rivers and harbors for which provision has been made law.

That the Secretary of War has found and determined that it is necessary to acquire the land hereinafter described because the same is needed in connection with the Franklin Falls Reservoir on the Pemigewasset River, a flood control project in the Merrimack River Basin.

That the efforts of the Secretary of War to acquire the said land at a reasonable price, by purchase, have failed and, therefore, the Secretary of War has determined that it is necessary to acquire the land by condemnation, under judicial process.

That the Legislature of the State of New Hampshire, in which State the said land lies, has by Chapter 149 of the New Hampshire Laws of 1939 consented to the acquisition by the United States of America, by purchase, condemnation, or otherwise, of any land within said State required for use in connection with the construction, maintenance and operation of the said Franklin Falls reservoir.

Upon consideration, [by the Court] of the petition for condemnation . . . [i]t is ordered that the Secretary of War shall have the right forthwith to take immediate possession of the land sought to be condemned herein, to the extent of a fee simple interest therein, and to proceed with such public works thereon as have been authorized by Congress.

Top of Page

A Case of Judge Conner
Charles L. Morley v. Cranmore Skimobiles, Inc.
Civil Action No. 411; July 5, 1945

Charles L. Morley v. Cranmore Skimobiles, Inc.,is interesting because it illustrates the dilemma that the potential for litigation can impose on the manufacturer of a product -- to manufacture and market new products is to open new avenues to liability actions. In this case, the defendant is a ski lift manufacturer accused of negligence in the operation of a new ski lift.

The said defendant on to wit February 16, 1944 at said Conway and prior thereto was the proprietor of and engaged in the business of carrying passengers for hire by means of a certain contrivance or device known as a ski tow or skimobile, designed for the purpose of transporting from the base of Cranmore Mountain, so-called, in said Conway to the top of a certain slope or slopes of said mountain, by means of cars conveyed along a certain track by endless cable, persons with skiing equipment desiring transportation to the top of said slope or slopes.

On said date the said plaintiff was at the invitation of the said defendant a passenger for hire in one of said cars. While the said defendant was engaged in carrying said plaintiff as a passenger as aforesaid the said defendant...stopped or permitted said ski tow or skimobile, including the car which the said plaintiff was a passenger, to be stopped and permitted the same to remain in a stationary position for a period of time upon a section of the track high above the ground, without notice to the plaintiff of any purpose either to assist him to leave said car or to resume the operation of said ski tow or skimobile. The said plaintiff after waiting a reasonable period for said ski tow to resume operation, in the exercise of due care undertook to leave said car and travel upon foot along said track to a point from which he could conveniently reach the ground. While the said plaintiff was walking upon said track as aforesaid, said defendant, its agents or servants, without warning to the said plaintiff, placed said ski tow or skimobile in operation, including the car which the said plaintiff had previously vacated, so that to avoid being struck and thrown from said track, the said plaintiff was obliged to jump from the track to uneven ground below.

The said plaintiff . . . suffered great and serious personal injuries including a ruptured spleen, causing him great mental and physical anguish, has been put and will be put to great expense for medical care and attendance, has been and will be incapable to perform his usual labor, and has suffered and will suffer other losses; all to his damage as he says in the sum of twenty thousand dollars ($20,000).

Wherefore the said Charles L. Morley demands judgment against the said Cranmore Skimobiles, Inc. in the sum of twenty thousand dollars ($20,000), and for such other relief as may be just.

It is considered by the Court, the Honorable Aloysius J. Connor, District Judge, that the plaintiff take nothing by his complaints. [The court does not find any means of negligence on the part of the defendant. The court finds this case frivolous and also finds that defendant have judgment on the verdict against the plaintiff, and recover from said plaintiff its costs.

Top of Page

A Case of Judge Bownes
George and Maxine Maynard v. Neal R. Wooley, Individually
and
as Chief of Police of Lebanon, N.H.
Civil Action No. 75-57; February 9, 1976

Maynard v. Wooley arose out of dissatisfaction with the New Hampshire statute which "required that all number plates for non-commercial vehicles, with some exceptions, shall have the state motto 'Live Free or Die' embossed on them." Another statute stated that it is, "a misdemeanor knowingly to obscure the figures or letters on the license plates, and under New Hampshire Law, the 'letters' include the state motto."

The Maynards, who were members of Jehovah's Witnesses, were "arrested, prosecuted, and convicted" on three occasions for violating the statutes. Bringing an action seeking declaratory and injunctive relief against enforcement of the state statute, the Maynards contended that the New Hampshire State motto, "Live Free or Die", was "repugnant to their moral, religious, and political beliefs, and therefore object[ed] to having the motto displayed on their automobile license plates." The District Court faced an important constitutional question.

It is the practice to have three judges form a panel when the court is faced with a constitutional issue. This practice was mandated by article 28 of the U.S.C. § 2284. The three-judge panel allows for a better researched and considered judgement to be made. In this instance of a three-judge decision, the court held that:

[the] doctrine of equitable restraint did not apply where plaintiffs were seeking relief against future arrest and prosecution and were not seeking to enjoin a pending criminal prosecution; that acts of plaintiffs in covering the motto on their license plates, pursuant to their religious beliefs, constituted 'symbolic speech' within the ambit of the First Amendment; and that the state had not demonstrated a sufficient interest to justify regulation thereof, so that the statute was unconstitutional as applied to plaintiff.

This decision was appealed to the Supreme Court of the United States, which granted certiorari. Writing the opinion of the Court upholding the District Court ruling, Chief Justice Warren Burger held that:

The state may not constitutionally require individuals to participate in dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public; and that the state could therefore not require plaintiffs to display the state motto upon their vehicle license plates.

Top of Page

A Case of Judge Devine
Sandra Garrity, et al. v. Hugh J. Gallen, et al.
Civil Action No. 78-116-D; August 17, 1981

In Garrity v. Gallen, a trial lasting forty days before the court, a class action was brought by residents of a New Hampshire school for the mentally retarded asserting that their right to habilitation required that they be placed in the least restrictive environment, i.e., community placement. Chief Judge Devine found that: (1) residents had an implied private right of action against Secretary of Health and Human Services for purpose of compelling him to perform his mandatory duties under Developmental Disabilities Assistance and Bill of Rights Act but residents were precluded from proceeding with a civil rights suit based on such Act against state defendants; (2) residents possessed a private right of action which could be enforced pursuant to the Rehabilitation Act; (3) the Rehabilitation Act could not be construed so broadly as to require deinstitutionalization of residents, but state officials had violated the Act by denying to certain individuals the benefit of individual service plans and by making placements and disbursing services based on the generalized assumption that certain groups were unable to benefit; (4) residents were entitled to relief under the Education of the Handicapped Act and state statutes; and (5) residents did not have substantive due process right to habilitation in a least restrictive environment, i.e., community placement.

This case is representative of a growing number of cases that attempt to deal with the increasingly complicated problems of a society that cherishes its right to liberty: "this litigation inhabits the twilight area of developing law concerning...rights of the...mentally retarded." Garrity v. Gallen was appealed to the United States Court of Appeals, and affirmed.

Top of Page

A Case of Judge Loughlin
United States, et al. v. Ottati & Goss, Inc., et al.
No. C80-225-L, December 9, 1985
Cited as F. Supp. 1361 (D.N.H. 1986):

Actions were brought by federal, state, and local governments against operators and former operators of drum reconditioning businesses, owners of property, and generators of wastes contained in drums sent for reconditioning under various theories including violations of federal waste disposal laws, common-law nuisance and violations of municipal ordinances. The District Court, Loughlin, J., held that: (1) evidence was sufficient to find that liability was joint and several; (2) the Environmental Protection Agency was not, by failure, to first give generators of hazardous waste opportunity to take remedial action; and (3) evidence was sufficient to find liability of firms generating wastes in light of failure to show that all their drums had been removed prior to initiation of cleanups.

This case first appeared in court on May 15, 1980, and ended on March 17, 1988. It is undoubtedly the longest case that has ever been brought before the United States District Court for the District of New Hampshire. The trial was bifurcated (divided) into two phases for efficiency: a liability phase in which the defendants were assessed for blame, and a damage phase in which degree of damages was assessed. There were 119 days of testimony during the liability phase of the trial and 68 days during the damage phase. The cleanup operations ordered by the court will continue into the twenty-first century.

United States v. Ottati & Goss will be remembered as the first major hazardous waste litigation in the country. It will also stand as a memorial to the character of fundamental fairness attributed to Judge Loughlin. While finding the generators jointly liable and assessing significant damages as well as injunctive relief, Judge Loughlin also criticized the Environmental Protection Agency (EPA) and denied the EPA's claim for certain indirect costs.

In his opinion with regard to the damage phase, Judge Loughlin stated:
To add further fuel to the fire, the United States has the temerity to state there is no reason for its ustulation by the court.

Without reiterating what is self-evident, the cavalier and hubristic actions of the EPA in this litigation warrant the use of punitive measures by the court. This litigation appears to be interminable and this ruling may be considered a harbinger if future court hearings are necessitated relative to monitoring.