628 thele,' the contract fs lJinding, although the law of the placeo'f 'performance may require the contract to be in writing." Citing Dacosta/v. Dams, 24 N. J. Law, 319. ' It is further said by the court that"Matters bearing upon tbe execution,tbe interpretation, and the validity of 8 contract are determined by the law of the place where the contract is made. Matters connected with its p\lrformance are regulated by ,the law prevailing at the place ot I:lerformance. Matters respecLing the remedy, sucb as the 1:Jringing of suits, admissibility of evidence, statutes of limitation, depe!1d upon the law of the place where the suit is brought." In Pritchard v. Nortnn., 196 U. S. 130, 1 Sup. Ct. Rep. 102, the foregoing propositions are See, also, Matthews v. Murchwem, 17 Fed. Rep. 768, It follows from the foregoing principles and authorities that, the contract in having, been' executed at Louisville, Ky., its validH)'; and binding operation is not to be by tile of 18'74, set up as a defense by the fifth para-, graph of the answer, and plaintiff's demurrer thereto should have been sustained.,. Other presented need not be specially referred to; as the foregoing conclusioDsdispose pf the case. We think the plaintiff's assignments of erlQr are well ta,l\:en, and that the action of the lower court in plaintUi's demurrer, and in. sustaining defendant's, demurrer to the petition as amended" and in dismissing the suit, was and should be reversed·. It, is accordingly so ordered and adju'dged,and the cause will be reml1-nded to<the circuit court for the district of Kentucky for furthElJ' proceedings therein in conformity with this ,opinion, ",od with leav,e toplaintUftl>furtheramend its petition SOM to show the citizenship of its members, if it is an association or limited partnership and not a corpory.tion, as may,be necessary umier the autuC)rity of Ohapman V" Barneg,129 U. S.682, 9 Sup. Ct. Rep. 426. '
POST ". PULASXI COUNTY.
(Circuit Court of AppeaZ8. Seventh
March 8,t899,)
L 0011NTT BoNn$.:-REoiTAL-NoTIOE.
A recital iii county bonds that they are issued pursuant to an omerof the connty court "JilutsaU persons dealing in the bonda upon inquiry as to. the of the order. : . ' , . ,,'. , ' ,
.. SA1tlE"':"RAlLnoAD AID BoNllS:-VALJDITY. l and
,A;0t"Mal'ch6; 1867, i!10()rpPrating the C. &I V. :a. Co:' empowered municipal corporatlOns, wh'!n authorlzedoy popular vote. to subscribe for stock in the Company, issue bonds in payment,therefor. A county agreed, by popular vote, wsu!); scribe fOr, '100,000 of. swck:. and, issue bonds therefor, but bt'lfore issuance of the .bonds theooullty authorit\ell agreed w sell the stock back to the company in exOhange for tl5,OOO in bonds." .In fact, only$95,ooO of bonds were issued 'and delivered to the ?Ompally,and ,no.stook. receivctdby the, tbl't the bonds were void, smce theuaosactlon, being a gift and not a subscription, was no't'authorized by:the stat1;lte.nor assented to by the popular vote. Oh0i88eT v. People, (IlL Sup.) lW N. E. Rep.:!I#J. followed. ;, ,, " ,
tl. PULASKI COUNTY.
629
8. Bun-CONsTITUTIoIUL LAw. . " Act Feb. 9,1869, (8 Prlv. Laws 1869, p. 2119,> amendinl/: the chaner of said railroad company, which to validate all contracts between said company andmu-. nicipalities, whereby the latter agreed to sell to the companyata nominal price the stock for which they had subscribed has no elrect, where the contract was made by the municipal authorities without being submitted to popular vote, as required by law, since the legislature cannot impose an obligation upon a municipality without its coIlsent,legallyexpressed. OhoiBserv. Peopl.e, (Ill: Bup.) 29 N.E. Rep. 546, followed.
Error to the Circuit Court of the United States for the Southern District of Illinois. A88'UR1tp8it by Mary E. Post, as administratrix of the· estate of A. T. Post, decelUled, against tbe county of Pulaski. Judgment for defendant. Plaintiff brings error. Affirmed. . CO'(l.nolly Mather and John F. Dillon, for plaintiff in error. Saml. P. Wheeler, (L. M. Bradley and Brown, Wheeler« Brown, of counsel,) for defendant in error. Before GRESHAM, Circuit Judge, and BLODGETT and JENKINS, District Judges. '
«
BLODGE'rJ.', This is an action of aBIlUmpsit upon 196 interest coupons, of $20 each, cut from 30 bonds of the defendant county; said bonds bE-ing for the sum of $500 each,of like :tenor, all dated 000-, tober 17, 1872, payable 20 years after date, with interest at the rate of 8 per cent. per annurp, payable on the 1st days of January and July in each year, as by coupons attached; said borids being part of an iSS1l6 of 200 bonds,oflike tenor and amount, issued by the defend.ant corinty in aid of the construction of the Cairo & Vincennes Railroad. Defendant pleaded the general issue, and filed with its plea an' affidavit denying theexecutionbythe county of the instruments sued upori. By .stipulation in writing between the parties, a jury was waived, and the case tried by the court, who found the issues for the defendant, and entered judgment upon the finding. . The evidence in th!3 bill of exceptions, and the opinion of the court below, which is found in the record, show that the case was. heard and ,considered solely upon'the question of the power of the county to issue \he bollds from which the coupons in question were cut. The bonds in ljuestionellph recital: " "This is one of two hundred, of like tenor and amount, of the SaI)18 lssue,and is issued pursuant to ali order of the county court of said count'y, .authorized by a majority of the legal votes cast at ali election held in said .county, pursuant to law, on the 5th day of November, A.D. 1867. This bond is .also iss.ued under the provisions of an · Act to incorporate the Catro & Vincel}nesRailroad Company,' approved March 6th,18f$7, dnd under the. provisionsof an act tO,amend said act, approved February 9th, 1869; der the prov,isions of an act entitled 'An act to fund and provide for ment of the railroad debts of counties, townships, cities, .and towns,' approved' April 16th,·i869·.andis in part payment of a subscription to tlJecapitallitock 8um of one hnndred .of the Cairo & Vincennes Railroad Company, in the tboulland dpUa..r!'... The special statutory authority for the issue of bonds by the county :in aid of; Jilie ·railroad named is found in the tenth section ofthe act of
630
FEDERAL Rl!:l'OnTlm,
vol. 49.
the general assewbly of Illinois, approl1ed March. 6) 1867,eIltitled"An act to incorporate the Cairo & Vinoennes Railroad Company," (2 Priv. 4ws 1867, p. 561,) as follows: or cO!lntles nearw.hlch saldrailroad "The several shall paslil may subscno6 .for and take· stock 10 tills company, .and may issue bonds in payment for such stock of five hundred dollars each, bearing interest at the rate of eight per cent. per annum, or less. payable half-yearly in the city of New York on the 1st days of January and July ot each year, said bonds to run not longer than twenty.five years. And a tax of not more than one dollar on each one hundred dollars' worth of taxable property may be levied and collected in such town, city, or county, per annum, to pay the installments on such stock, or to pay the interest and pl'incipal of bonds issued in paJ'ment for such stock: provided, that no .liluch subscription shall be made, 110 such hond:! shall be Issued, and no such tax Shall be levied unless a majority of the legal Yoters of Said town, city, or county shall vote for the same at an election to be held under order of the corporate authorities in cases of towns 0l'ciliell, and of the county cou£,t in caaes of counties: provided, further, that amajoi'ityof legal Yoters at any.such election shall bEl held as a majority of the legal Yoters of any such town, city, or county, and the questions of making a subscription. is:\uing bonds. and levying taxes maybe submitted liS olle question or as separate questions at such elt'ction, and either or all of said questions may be submitted to an election at any time, in the discretion of the autlJorities authorized to call such elect-on." Power.is also given a municipal corporation to issue bonds in payment of subscription to the stock in railroad corporations by an act approved November 6, 1849, entitled" An act supplemental to an act entitled ' An act to provide lor a general system of railroad incorporations.'" Withqut discussing all the questions made on the argument of the case, we. think the record shows one so obvious ground for sustaining the the that no other need be considered. The bonds recite that they 'are issued "pursuant to an order of the county court 6f'said county ,* * * in part payment of a s.ubscription to the capital stock of the Cairo & Vincennes Railroad Company." This recital, that the bonds were issued pursuant to an order of the county court, undoubtedly putaH persons dealing in the bonds on inquiry as to the . " . f' of that order. An examination of the records of the county terms , court of the county would have shown, as clparly from the proof in this case, thaton the 17th day Of September, 1867, the court ordered that an election be held in the. county, at the various vQting precincts, on the of November, 1867, to vote upon the que!>LlOn of subscribing ,the ,.SUlD of to the capital stock of the Cairo & Vincennes Railroad Company, and the issue of the bonds of the county in the denolninations of $500 each, payable in 20 years, bearing interest at 8 per payable on the 1st days of January and JU,ly' in ea.chyear,in payment for ,such stock, and that on the 2d day 1867, the county court enteL'ed into a cvntract with the railroad company, .which recites that, at an election held in the county on the 5th day of November, 1867, the county court \\las authorized to make a subscription of $100,000 to the capital stock of said railroad company, and to .pay for said stock in bonds of the county. It
'l>OST t1. PULABKt COUNTY.
631
was therefore agreed thattbe county should sell to the railroad company the $100,000 of stock so to be issued to the county in payment for said bonds for the sum of $5,000 in bonds,-in other. words, that the county should give $95,000 of its bonds for $5;{l(j}O of stock in the railroad company; and by orders of the county court. entered upon their 'recordsat the July term, 1870, June term, 1871, and March term, 1872, which in terms purported to extend from time to time the period within which the railroad should be completed, and yet be entitled to receive the bonds, this provIsion in regard to the sale of the stock to the railroad company was retained in full force. No actual subscription by the county for the stock of the railroad company was made until March 1872, when the county court, for the first time, made a sl:ibscriptiQn for the $100,000 ()f the stock Qf the railroad company; and, in the order this subscription, it was expressly provided that the subscription should in no way invalidate the contract then in force between the county and the railroad company, by which the capital stock received by the county is sold to tberailtoad company; and ina subsequent order, entered the same day,in regard to the same subject-matter, is the following paragraph: "And it is further agreed that upon the completion of said road and thedeo livery of sald bonds, upon the terms and conditions ,hereinbefore expressed. this county will accept and receive the balance of said sum of $100,000, towit, $5.000, due. to said cOIllpany. in full payment for the sum of $100,000 stock hl Said road, and wlll the actual issue to said county." There enn be ,no doubt, tnat the legal effect of this contract and the orders' 'of :the county court was to donate or give the railrond company $95,000 in the bonds of the county. 'The county was to receive nO stock, give the rJlilroad company $95,000 of its bonds. The election held on the 5th of November, 1867, was to upon the question of subscribing for $100,000 of the stock of the company, and issuing thl3 bonds of the county in payment therefor. No special or general statute of the state, thell in force, authorized the county to make a donation ofltl!l money or bonds ill. aid of this railroad company. 'That there. is anelilsential difference. be'tween a to subscribe for stock in a railroad company. and thereby become a stockholder, with a right to share in the profits of its business and have ,a voice in the management and policy of the company,and a proposition to make a donation of bonds or money to the railroad company, is too plain to require argument or the citation of authority. The order of the county court, making the subscription to the stock and directingthe issue of the bonds, and which must be read into each bond and coupon, shows in takable language, so plain that it requires no technical skill to construe or apply it, that the bonds were issued as a donation to the railroad eompany, and notin paymeI1tof a subscription to its stock. The case of Chaisser v. People, 29 N. E: Rep. 546,lately decided by the sqpremecOurt of Illinois,-the manuscript ppinion of which has been banded .lIS since the argument of tIlis case,-.is almost identiCal' in ita facts,as far as the questions consideration are concerned,
632
QDERAL REPQRTER,
with this case. It irivolved an issue of bonds by another county (Saline) in aid of the construction of the same railroad, and in pursuance of the same section of the charter of the railroad company. An agreement between that county and the rlll1lroad company was made afte! the vote authorizing the subscription, in substantially the slime terms as was made in the case now under consideration., And in that case the court, speaking by Mr. Justice BAILEY, says in regard to this cOHtract: "That in its consummation, if not in its inception, the transaction was a donation, pure and simple. is too plain to admit of serious controversy. In the and until :the election was had, the guise of a subscription was to, so as ,to ,bring the municipal aid sought to be obtained 'at Jeast. within tliepower conferred upon the county by the tenth secrailroad'company's charter.': But, when viewed in the light of the interpretatiOliput up,on the transaction by the sUbsequent acts of the pMties,it appears too transparent to mislead. The bonds being essentially a dpoatio%\"itwas not within the power of the county courttp issue them, and be held to be ultra vires and void." , " :It, is tWrther urged in behalf ,of the appellant that the action of the county,<iourtin making the contract in question railroad coin.. pany was validated by the third section of "An act to amend an act en", titled.i'An act to incorporate the Cairo & Vincennes Railroad Company,'" approved Februnry9,1869,(3Priv. Laws Ill. 1869,',p. 259.) This section :pro,vides:- : ,,'. ' .., ' " . :, .. Tha,t all contracts made by cipes, and counties,' through, or near which the Cairo & Vincennes'l:W,ilroad shall run, whereby,as an inducement :fQr tbe construction of said railrOad, sllchtowns,citjes, /lnd counties ag;reed. ,qpon the completion of certain portions of sald railroad, .to sell to tbe said company, at 8 n0I:9:inal price,.tbestock of said ,company, for which such towns, (jities, or counties, by a vote of their electors,h'ad theretofore sUbscribed and agreed to issue bonds in paymeut therefOr, thereby, in effect, ltgreeing to make a donation to said company of certain amounts of the bonds of such towns, cities,or counties,as an, inducement for the ,construction of said ranroad, are hereby declared to be valid and binding upon such towns, cities, and counties, and shall be carried into effect, in good faith, by the same; and all for and notices of elections, and elections and returns of such electionil;in' respect to such subscriptions of stock to.said company, in any such towns,cities, and counties, are hei'eby declared to be valid and binding upon such towns, cities. 01' counties." In refeteri:bd to the validity of this statute, wectmnot express our own views clearly or forcibly thl;tn by queting from the opinion of the learned judge in the .case just referred to, in which he says: ". The QJ;llypropositlon which had been submitted to the vote of the people of the county, and the only proposition which, under existing laws, the county court had 'power to submit to them,was that of making a subscription to the capital stock of the railroad company, the stock to be received 8S the consideration, and, pres,umably, the equivalent, for the county bonds to be issued in pursuance of the The proposition to donate in county bonds to sa,id railroad cOJ;npany was never submitted to the,People of said county, was iieyer voted, lipon by th'em, and could not, under then existing been' submitted to such vote. The subsequent contract entered into by the county court, to seU back the stock subscribed 'for for a nominal consideration, so as to effectually transmute the proposition to subscribe $100-
IN RE XUBSHEEDT KANUF'G 00.
633
000 to the capital stock of saId company; to whtchthe people of the county bad given their assent, Jnto a proposition to donate to the railroad company $95,000 of county boIlds, to which the people of the county had not,and could not have, given their assent, was clearly void, so as to confer no rights * * In the present case the amendatory act and im pose DO of 1869, if effectual at all, can be held to operate only by way of a eontract for a donation which, by reason of want of' power, as well ali the absence of either an intention or opportunity on the part of the legal voters of the county to give their assent to it, was ultm vires and void. Declaring 8ltch void. contract to be valid and binding, and providing that it should be carried into effect in good faith, as said amendatory act unqertook to do, Was an attempt to impose upon the county an obligation in aid of the railroad without its own consent, expressed in any legal form." For these reasons, we are of opinion that whoever dealt in those bonds is chargeable with notice from the records of the county court of Pulaski county that the bonds were donated to the railroad company, and were issued by the county in payment of a subscription to the stock of the company. The recitals in the bonds that they were issued pursuant to an order of the county court put whoever should come into the possession of those bonds, even if purchased tor value upon the open market, upon inquiry as to the term8 of that order; and it needs no judicial terpretationof the contract referred to in the orders of the county court, to see that the county did not, in legal effect, subscribe for the stock of this railroad, but agreed to donate, and did donate, its bonds in aid of this railroad. The decree of the court below is therefore affirmed.
In re
KURSHEEDT MANUF'G
Co.
(Cwcuit COUTt, 8. D. New YO'I'7c. March 9, 1892.) L CUSTOMS DtlTIEs-ADMINISTRATIVE CUSTOMS ACT JUNE 10, 1890-FINDINGOJ' BOARD OF UNITED STATES GENERA.L APPRAISERS. .. In.a case arising under section 14, and brought for review before the United States circuit court under section 15 of the administrative cust.oms act of June 10, 18IJO, (chapter 407,26 St. U. S. p. UU,) a finding upon a question of fact by the board of United States general appraisers, in the absence of any further or different testimony than that returned to that court by that board, will not be disturbed, but will be afllrmed, by,that court. S. BAME-TARIlI'll' ACT OOT. 1,181lO-VELVETEEN DRESS FACINGS. , Articles ·composed of cotton, which are made from colored cotton velvet or velveteen by cutting the same bias into narrow strips or short lengths, and lapping ovel' the ends of such strips, and then sewing together such ends so lapped, and which are pl'incipally used for facing skirts of dresses, and not for trimming dresses,liLnd are known commercially, not as trimmings, but as velveteen dress facings, are not dutiable at the rate of 14 cents per square yard, and 20 per centum ad valorem, under tbe provision for "velvets, * * * velveteens, * * * and all pile fabrics composed of cotton, * * * colored n contained in paragraph 350 of the tariff set of October 1, 1890, (chapter 1244, 26 St. U. S. p.567,) or at the rate of 60 per centnm ad valorem as trimmings composed of cotton, under the provisiGn for such trimminp contained in paragraph 573 of the same tariff act, but are dutiable at the rate of 40 per centum ad val,orem, 8S "manufactures of cotton, n tinder the prOVision for such manufactures contained in paragraph S55 of the same tariil act..
At Law.
"EEDERAL'
·
vo1.4 9.,' r 1
,1391·the 'K\Trsheedt. Man'Ofactllring 'Company' im.. coun'try" irit6' the United States at this port eel'havl,t;lg been by the local appraiSer as' colored out ,into strip,s pne and wide, and sewed'together, and intended for binding, facing, or trimming dresses. wascls.ssifiad as colored velveteen or velvet, composed of cotton, under thelirovision for such velveteens,and velvets containeddn paragraph 350 ?f'the tariff act of October I" 1890, (chapter 1244, 26 St. U. s. p.,J567,) and duty at the ,rate of 14 cents per square yard, and 20 per thereon cent. ad valorem, as prescribed byJhat paragraph, custQWi1at this, port. this classification thilil: ,the claiming that this merchandise the of 40per cent. ad aSa of
rate
the papers and connected the Said collectol'l>ursuant t()section 14 of,. actof June. 10,1890, (chapter 407, 26 St. 131,) a,ftertaking ,telltimony, found, amoQ.lt principally used for of (l¥ld .notfoi' trimming (2). that it was composed of cotton;. (3) that it was commerciaUyknownas "velveteen 'dress facings;" (4) that it was made from cotton velvet or velveteen; (5) that it differed from cotton velvet ribbons and cotton velvet piece goods, it having been cut bias into narrow strips of short lengths, and the ends thereof lapped over and sewed together, thus rendering square-yard measurement difficult, if not almost hnpossible; (6) that it was not, commercially known as trimmings, nor was it chiefly 'used as trimmings; (7) that it was not velveteens, other pile fabrics composed of cotton, dutiable as under the provisions for such velvets, velveteens, and pile fabrics, cantained<in saidparagra:ph 350, or, as claimed by the said collector, if not the of 60 per centum ad valorem" as trimmings comso posed of. cotton,under the provision for such trimmings contained in paragraph 373,. but 'W.lla a manufacture ofcotton at the rate of 40'per centum ad valorem, under the provision for such manufactures contained in said paragraph 355, as claimed by thElitppellant. From this decision of the board of generalappl'aisers the cOllector, pursuant to sectiont5 'of tbesaid administrative customs act, appealed to theUnited States circuit court for a review of the questions of law and fact involved therein. The case WIl,S tried upon the return made by the board of general appraisers, ., ,". . . EdwardMif4teU; U and Thoma8 Greenwood, Asst. U. S. Atty., ' . .. . for appellant. ." Aleza1uler E." Kur8heedt, for appellees. LACOMBE, Circuit Judge. I do not think that I should in.terfere with the finding of the board of general appraisers. This is a case where, un-
irivoice';'l?f:)hill
COMBS 11. ERHARDT.
635
der the old practice, Isho'uld send it to the jury to determine whether, by the ordinary processes of manufacture, the article had been advanced, in the meaning as understood in trade and commerce, outside of and beyondthegroupof'articles included in paragraph 350j and their ver· dictjoD;<sucb evide11ce as thilre'is here, I should not disturb, whatever it might be. Under these circumstances, I shall not disturb the finding of the board of general appraisers. Decision affirmed.
CoMBS
et aZ.
'D. ERHARDT.
(CiIJ"cuit Cou'l't, & D. NfItO York. CUSTOMS DUTIBs-ACT. OJ!' MAROH
November lU, 189L)
.
mounts, brass and iron castings, bedstead tubes, bedstead knobs, vases, castors, etc;, for use in the manufacture of metallic bedsteads, held not dutiable as "house and cabinet furniture in piece or rough, and not finished," at SO per cent. ad val., under Scheq.ule D, par. Act March S,1883, but at 45 per cent. ad va£.,as "manufac1iuTes of metal, .. under SchedUle C, par. 216, of saId aot.
8, 1888-MBTALLIO BBDSTBADS.
At Law. The plaintiffs, Henry W. Combs & Co., in July, 1890, imported into the port of New York certain brass and iron castings, iron tubes, brass knobs, castors, etc., for use in the manufacture (If metal bedsteads. The defendant, collector of customs at the port of New York, levied and a duty of 45 per cent. ad Valorem upon the importation as "manufactures of metal," under paragraph 216, Schedule 0, of the titriff act of March 3, 1883. The plaintiffs protested, claiming that the mer· chandisewas dutiable as "house and cabinet furniture in piece or rough, and not finished,"at the rate of 30 per cent. ad valorem, under paragraph 229 of Schedule D of the same act. The articles in suit were manufactured at Birmingham, England. They were not made in the same factories in Birmingham where metal bedsteads or metal furniture of any kind were manufactured. The manufacture of such articles as those in suh is in En!l;land a separate trade from the furniture. They did not constitute, on their arrival, all the completed parts of metallic bedsteads, and were not then in a condition to be put together, without further manipulation, to form completed metal bedsteads. At the close of the testimony the United States attorney, in behalf of the defendant, moved for a direction of a verdict in his favor, on the grounds (1) that the at· ticles in suit, in the condition in which they were imported, were not "furniture" in any proper or correct sense of the term, and were not, therefore, covered by paragraph 229 of Schedule Dj and (2) thattheartides in suit, being manufactured entirely of brass, iron, or other metal, were covered by the furniture paragraph, (229,) which relates only and exclusively to furniture made of wood, or of which wood is the component material of chief value. Hoffroon Miller, for plaintiffs.