AMERICAN CaNST. co;
V.
JACKSONVILLE, T.
&
K. W. RY. co.
937
The assignment of errors covers every ruling of the lower court which allowed to the plaintiff below any item ofbis account. The plaintiff did not appeal from the judgment disallowing certain items of his account. and hence the correctnesl of the ruling of the lower court as to those items is not before us.
Maurice D. O'Connell, U. S. Dist. Atty., for the United States. A. J. Van Duzee, pro Be. Before CALDWELL and SAl\BORN, Circuit Judges. PER CURIAM. Weare satisfied with the findings of fact and the conclusions of lawreached by the learned district judge who decided this case in the district court as expressed in his opinion, and the judgment of the district court is therefore affirmed.
Al!IERICAN CaNST. CO. v. JACKS6NVILLE,
T. & K. W. Ry. Co.
'(Oircuit Oourt, N.D. Flor:!da. November 19, 1892.)
1.
CONTEMPT-l'ROCEDURE-PETITiON AND RULE FOR ATTACHMENT-TIME FOR ANS"lvER.
Petition and rule for attachment is a' proper method to pursue in a proceeding for contempt in disobeying an order of court, although not the only remedy; ana, when a cppy of such petition containing the specific clil\rges is served on aefendant, six days is sufficient time in which to make answer thereto, or to ask for addi· tional tim(il iu which to make such answer. Ona motion for attachment against a railroad company and its officers for'contempt violating a temporary injunction and an order appointing a receiver, ,an objection that the motion does not specify any person by name, whom it is sought to attach, cannot avail, when such officers are well known to the court, have been servedw,ith a copy of the petition, have appeared in their official capacity, and as counsel in litigation connected with the road, and when a proper order, if necessary, may be made from the record. ,
la.
SAME-PROCEEDING AGAINST CORpORATION AND OFFICERS.
8.
SAME-WHAT CONSTITUTES;
After a receiver of a railroad has been appointed, a collection by the vice president of money due the company under a mail contract, and depositing same in bank ,to the company's credit, alldattempting to dictate what disposition thereceiver should make of it, constitute contempt. An order appointing.a receiver of a railroad company among other things provided that "all the books, vouchers, and p'apers touching the operation of the road ,. should be delivered by its officers, servants, and agents to such receivers. Held that the order included all books relating to the previous history of the corporation' and all records of its transactions, and was not confined to books relating to the future operation of the road, or to such as the receiver might specifically demand. When an order of court appointing a receiver of a railroad company provides for the deHvery to such receiver of "all and every part of the properties, interest, effects, moneys, receipts, earnings, It etc., such order embraces the company's seal.
4. RECEIVERS OF RAILROAD COlllPAl>IES-ORDER FOR DELIVERY OF BOOKS-INTERPRETATIO:-r.
5.
SAlliE-ORDER FOR DELIVERY, OF PROPERTY.
On Motion for an Attachment for Contempt. Motion granted. BiBbee &: Rinehert, for complainant. Cooper &:Cooper and T. M.Day, Jr., for defendant. SWAYNE, District Judge. This is a motion by the complainant company for an attachment against the, defendant company and its officers
938 fow'B!contemptand:v1'0Jia.tion of the
.
'.
2. order of July
Young reCeIver"OP. ;Augllst 4, 1892., i);'lns" prqceedmg was commenced November 7, 1892, a copy of which was by petition filed in served upon C. C: Dennilg, vice presidentofthe defendant company, in Jersey City, N. J., November 12, 1892" and a noticeof the petition was served on delfendant's cohnsel here iIi Jacksonville some days previous to the bearing. The Illatter was argued. by both parties on the 18th of Novemher. 1892, and taken under advi,&ement by the court. No answer was offered to the petition. No, eXtension of time was requested for privilege to file an answer, although itwas argued anhe time by the counsel for the respondent that tlie time was not suffiCient in which to appear and answer. By the rules of New York, in which said vice president Deming resides, he would have- been allowed four days in which to answer. By the record here he had six days in which to do ,court was ample for thatp,urpose. . It further 1101ds' that, while a petitlon and' ruIEI' fur attll.chmentare not the only methods which maybe pursued in an ,action for contempt, it is a proper method, and in thilt cRSEl'gave the deren'datit railroad '<Jornpany and Mr. Qftpe time.l;\qd,privileges ,thltt tlley would have been entitled wunder a rule to show cause. He was served with an exact copy of specific charges made Ilgainst him, and he had six,daysin,which to make answerther.eto or ask for additional time in which to make sai4,answer. " As understands his position, but res.tedhis.defense,tO the motion on technical objec'Honsto,tbe complainant's'method He didc()me in, however, at the'eleventh rhour, on the morning on which this opinion was delivered, and asked that, if it shoQldbe'llgainst him, he might have further time in'whicn to' answer. ." . . '. This, therefore, being a proper method of proceeding, the defendant com'panyand its vice 'presig,ent. Mr. Demil!g, beirigboth in court, with ample notice of the charges against them,and with ample time in which the and having failed,toqo so, itrenwins to be inquired to whether'there is evidence before the court to sustain the charges in the petition. Thatportidnofthe tempohiryrestraining, order claimed to be violated reads as follows: ' . "That the said railway company, its officers, agents, attorneys. servants. and employes. are hereby enjoined and restrained from remitting. sending. or removing in any manner whatsoever any of the ,incomes. tolls. or revenues of the said defet'Jdant company from the jurisdiction of this court. either to its treasurer in :New York or to any other officer or person whatso... It appears by 8'l6ucher produced before thecClurt at this hearing that the oefendant, the Jacksonville, Tampa & Key West Railway Company, on July 11, :1892,. paid to Cooper' & <Cooper) counsel, the sum of $2,500. It further appears that this money was paid on the authority of !\.Ir.. C: C. president, approved by Mr. R. B. Cable, general mapager, alld,byT.M. Day, Jr.,attorney"and audited by Mr.
AMERICA.N
"
iA:CKSONVILLE,T.& K.
w.
RY.
co.
939
J. E. 'Strrtke,'general It ia claimed in this acti611 that sl;leh' ofthESorder of July 6, 1892, and it renpayment was a willful dered all the patties who are responsible therefor gujlty of contempt in willfully disregarding the order of this court. The fact that the managers and directors of Ii charged with fraud ahd mismanagement of that corporation, should take the money of the corporation with which to defend theuiselves against that charge, presents certain novel features for the consideration of the court, the decision of which had perhaps best be reserved until the final terminatIon' of the original suit. The court, therefore, at this time expresses no opinion upon tho propriety or impropriety of the use of that $2,500 which it appears has heen made. The order of August 4, 1892, by which Mason Young was appointed receiver of the JacksonviUe, Tampa & Key WestlW:lway Company, contained'the following language: , "And It, is further ordered tbe said, defendant company, its officers l'nd agents. and all persons who may have possellsion of any oftba said railroad, properties or, appurtenances or rights and pri vilegesthereof. deliver over to tbe said receh'er all and every part of the properties. interests, effects. moneys, receipts. and earnings. and all the books. vouchers, and papers touching the operation of the sadd railroads or either of them, and all books of and vouchers touching or relating to the moneys, finances. and assets of the said defendant company. including the stock bookS and stock ledgers, oJ tlJe sai\! defendant company."
!
It is upon the part of the defendant that the motion does not specify any person by name whom it is sought to attach. The motion fofattachrnent is against the defEmdant compauy, the Jacksonville, Tampa & Key West Railway Company, and its officers. It is known to the court, as well as to all parties concerned in this litigation, that Mr. C. C. Deming, who was served with copy of this petition on November 12, 1892, was the vice president of the· defendant company, and one of the parties against whom the orders of July 6 and August 4, 1892, were made. He appeared in court in person at the hearing of that cause, not only as vice president, filing an affidavit therein, but also as comlsel, taking an active part in the proceedings. The court knows him to be a proper party, and, further, that he and his counsel are aware ofthe same fact, and, if it becoines necessary, will have no difficulty in making a proper order for the attachment from the record. i Further objections are made by the defendant that Mr. Pennington was not a properly authorized agent of the receiver to demand the books and other property of the defendant company; and yet it appears that Mr. Deming and his counsel treated with him as such agent, and failed to make any such objection up to the date of this argument. It is evident, however, to the court that, at the time the demand was made for the Looks and property. Mr. Pennington was' a proper agent to make that demand. The principal objection or argumentused by defendant's counsel at this hearing, to clear his client from the charges hrought against him, is that the language of the order of August 4th is not clear; that
940,
pDERAL REPORT;E1!-,
vol. 52.
there was no order in it .for turning, over books of former companies; there was nQ in it of any particular books, such as bills payable or the NeW, .York cash book ,01' that they were in possession of the defendants. The court does not understand that there is any reason in such objections, or that there is any possibility of drawing such an uJ;lderstanding from the construction of the of the order. There is no reason why .the words in the order, "all the books, vouch,ers,nnd papers touching the operatio,n ofsaid railroad," should be construed by Mr. Deming or his New York attorney to be limited to mean those only touching the future operation of the railroad, nor that the order for" all bookS of account," etc., should. be limited to those that the receiver should happen to demand or be able to guess that existed, he be required to in whose indivi,dual hands each and sepArate bOok might. be found at the time of making the demand. There is nohody in this case who is' better aware than Mr. peming himself that the books that were wanted, arid that were intended by the 01'der,to bedelivefed, and which were so ordered by the order of August 4', :1892, were the booKs' that would the receiver to determine' the the offioors of the JackSonville, Tampa & J{ey 'West were tr\1e or false. Those.books, of course, included all that related to the previous history of the defendant corporation, and all the records that· went to compose it, aodan transactions which took place betw'een them; ahd'whilethe court doelhiot now say that the refusal to deliver those books to the receiver, and' the effort made to thwart the order for their delivery, w¥ made for the purpose of preventing investigacoveripgup the frauds alleged, yet that mmt necessarily be tion one of thecQnclusions to. which sucbattempt must force everyone. It is true there is nothing in the order about the delivery of the seal of the company , and yet the order is very explicit and full when it says, every part of the properties, interests, effects, moneys, receipts, and .earnings," etc. There can be no doubt in the mind of any one for one moment that that order covered the delivery of the seal, and it should have been prompdy delivered on demand to the receiver or his agent. .The showing made by Mr. Pennington in his affidavit that it was the. purpose .of ,Mr. Deming to delay and prevent the delivery of the company's rooks to the receiver as xpuch as possible, notwithstanding the ol'derof court made by said Deming, and promiseto comply with the delays that were occasioned by him and his attorney from the 15th of August, 1892, for SOme weeks thereafter, indicate ,that purpose beyond all His action in collecting the money under the cont(actfor carrving the mail, after of the receiver, and thfl. deposit qf it in a bank under the ,name and to the credit of the ,Tacks9nviUe, Tampa & .Key West RailwflY Company, when it should have b.een paid to the receiver in the first instance, and his efforts to dictate to ",hat the receiver should apply that money indicate a disposition bispartto interfere with the duties of the court's officer, and render@ clearly. guilty of contempt in that mll<tter.
IERE HERRMAN;
941
The judgment of the court, therefore, is (that the parties herein charged are guilty of willful cOllteIIl'pt 'in violating the previous' orders of the court, and they are so adjudged. In view of the fact, however, that time has been asked this morning in which to file further answer, attachment will not issue at once, but 10 days will be allowed the partiE1s in whi9h to purge themselves of contempt, if they desire to do so. Contempt, however, being a crirninal action,and personal service being required in each case, :Mr. Deming, being the only individual who has been personally served, is the only one against whom attachment can issue at present.
In re
HERRMAN
et al.
(Circuit Court, 8. D. New Yor".June, 1892.)
·
I.
CuSTOMS DUTIES-CLASSIFIOATION-" ASTRAOBANS...
So-called "astrachans, .. being a woven material consisting of a cotton foundat,iou or weft, and a rough and mqre or less curled pile warp composed of goat hair, in which, in some of the samples, .the loops of the pile were cut and in others remained uncut, the goat hair being the material of chief value, MId, that the merchandise was dutiable as a manufacture in whole or in 'part of goat hair, under Scbed,ule K, par. '892 of the tariff act of October 1, 1890, at the rate of 44 cents a pound and 50 per cent. ad valorem, and uot, as claimed by the collector and the government, as "pile fabrics," under paragraph 396 of the same Bchedule and act, at cents a pound and 60 per cent. ad valorem. .. The fact tllat congress, before framing .the tariff acts, advises with manufacturing experts, does not give rise to any rule of oonstruction whereby words used therein may be interpreted according tt;> the. technical understanding of manufacturers. A word used in a tariff act may be susceptible of a trade meaning as designating a specialgrollp of articles, although each article in the group is always bought and sold by its specific name, Whereby it happens that no articles are bought and sold by the group designation. .
Ja.
SAME-CONSTRUQTION OF, ACTS-UNDERSTAND.ING OF MANUIIA.CTURERB.
S.
SAME-TRADE MEA.NING.
At Law. This was an application by the importers under the provisions of section 15'0£ theM-called" Customs Administrative Act" of June 10, 1890, for a review by the circuit court of the decision of the board :of United States general appraisers affirming the decision of the collector 'Of the port of New York in the classification for customs duties of certain merchandise entered· a.t that port October 27 ,and November 17, 1890, which consisted of goods commonlykuownas "astrachans," or "astra<;han cloth," which were returned by the United States appraiser as "manufactures,goat hair and cottoQ, goat hair chief value, as pile fabrics," and duty was accordingly assessed thereon by the collector at 49, <lents per pound and GO per <,-ent. additional ad valorem, under the proviRions of paragraph 396 of Schedule K of the tariff act of October 1, 1890, which; omitting inlmaterial portions, is as follows: "396. On .. * *' and plushes and other pile fabrics. all the foregoing 'Composed wholly or in parU,fthe hair oithe camel. goat, alpac3,