Sidebilder
PDF
ePub

county commissioners, except in those respects where limitations are placed upon their power, or are to be necessarily implied from the provisions of the act. As the circuit court remarked, in de ciding the case at bar, if the temporary board of county commissioners provided for by the act relative to the organization of new counties is denied the right to contract any indebtedness in the name of the county, or to issue warrants as an evidence thereof, such board would be unable to carry out the purposes for which it was created.

In the absence of any express provision contained in the act withholding the power to issue warrants, it must be held that the legislature intended that such boards should have the same power to issue warrants that is exercised by other boards throughout the state. No error was committed, therefore, in sustaining the demurrer to the fourth paragraph of the answer, which simply alleged, as before stated, that the county had not become fully organized. In the condition in which we find the record, the foregoing are all the questions that this court can review.

The judgment of the circuit court is therefore affirmed.

SALMON v. MILLS et al.
(Circuit Court of Appeals, Eighth Circuit. May 20, 1895.)

No. 545.
ATTACHMENT-SUFFICIENCY OF AFFIDAVIT.

In a statute which makes it ground for attachment that defendant has disposed of his property with the intent to cheat, hinder, and delay his creditors, or is about to do so with the same intent (Mansf. Dig. Ark. c. 9, 8 309, subds. 6–8), the word "property" does not mean all the debtor's property, and hence there is no inconsistency in alleging in the affidavit for attachment that defendants have disposed of their property, and that they are about to dispose of the same. In Error to the United States Court in the Indian Territory. This was a suit by G. Y. Salmon against Abram Mills and Jackson Mills to recover judgment on two promissory notes. An attachment was levied upon certain property, and thereupon one C. M. Condon obtained leave to intervene, asserting that he was the owner of the attached property. The issue on the attachment was tried by jury, and found for the plaintiff. The court granted a new trial, and afterwards, on motion to vacate the attachment, held that the affidavit upon which the attachment was issued was insufficient. Plaintiff then moved to amend the same, which motion was denied. He thereupon brought the case on error to this court, which on February 1, 1892, reversed the judgment, with instructions to permit the plaintiff to amend the affidavit. 1 C. C. A. 278, 49 Fed. 333. The amendments were accordingly made, whereupon, on motion of defendant, the second and third grounds of attachment alleged therein were stricken out, and plaintiff was compelled to proceed to trial upon a single ground of attachment. This ground was not sustained by the evidence, and the attachment was accordingly dissolved. Plaintiff again brought the case on error to this court. Defendants heretofore moved to dismiss the writ of error on the ground that the judgment below was not a final judgment, but the motion was denied. 13 C. C. A. 372, 66 Fed. 32. The case has now been heard on the merits.

George E. Nelson filed brief for plaintiff in error.
Nelson Case (W. B. Glasse, on the brief), for defendants in error.
Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER, Circuit Judge. This case was before this court at a former term, and is reported in 4 U. S. App. 101, 1 C. C. A. 278, 49 Fed. 333. Before the case was retried, G. Y. Salmon, the plaintiff in error, who was also the plaintiff in the trial court, filed an amended affidavit for an attachment, alleging therein the following grounds, to wit:

"First, that the above-named defendants are about to remove and have removed their property, or a material part thereof, out of the Indian Territory, not leaving enough therein to satisfy the plaintiff's claim or the claim of defendants' creditors; second, that they have sold, conveyed, and otherwise disposed of their property, and suffered and permitted it to be sold, with the fraudulent intent to cheat, hinder, and delay their creditors; third, and that they are about to sell, convey, and otherwise dispose of their property with such intent."

These are declared to be grounds of attachment by the Arkansas statute concerning attachments, which has been extended over and is in force in the Indian Territory. Mansf. Dig. Ark. c. 9, § 309, subds. 6-8.

The defendants moved to strike out the second and third grounds of attachment above stated because they were inconsistent and rendered the affidavit uncertain and misleading, which motion was sustained by the trial court. The plaintiff was thereupon compelled to proceed to trial on an affidavit which alleged but a single ground of attachment. The single ground of attachment not having been sustained by the evidence, the attachment was dissolved, and the case has been brought to this court on a writ of error. An exception was duly taken to the action of the trial court in sustaining the motion to strike out the second and third grounds of attachment, and its action in that behalf is the only error which we feel called upon to notice.

Counsel have attempted to sustain the action of the trial court by the contention that the word "property,” as used in the affidavit and in subdivisions 7 and 8 of the Arkansas statute, supra, must be taken to mean all of the defendants' property, and that an affidavit which first alleges that a defendant has sold and conveyed his property with intent to cheat, hinder, and delay his creditors, and in the next sentence alleges that he is about to sell and convey his property with such intent, is necessarily inconsistent and selfdestructive. The error in the argument consists in the assumption that the word “property," as used in the statute, means all of the debtor's property. If that is the correct construction of the statute, then it follows that an attaching creditor seeking to maintain an attachment on the ground that the debtor has sold and conveyed his property with intent to cheat, hinder, and delay his creditors must fail unless he shows a fraudulent sale or conveyance by the debtor of all his property. This is not a correct interpretation of the statute. A creditor is entitled to a writ of attachment if he succeeds in showing that the debtor has disposed of a portion of his property with the fraudulent intent of cheating his creditors. It was so held in Nelson v. Munch, 23 Minn. 229, and such is undoubtedly the general understanding of the profession in all of those states where a fraudulent sale or conveyance of property is

made a ground of attachment. Smith v. Baker, 80 Ala. 318; Drake, Attachm. (7th Ed.) SS 101, 102, and cases there cited. A construction of the statute which would require an attaching creditor, in order to sustain an attachment, to prove a fraudulent sale or conveyance by the debtor of all his property, would render that clause of the statute concerning attachments of little practical value. It must be held, therefore, that the second and third grounds of attachment stated in the affidavit were neither inconsistent, uncertain, nor misleading. It may have been true that the defendants had sold and conveyed a portion of their property with intent to cheat, hinder, and delay their creditors, and that they were about to sell another portion of their property with the same intent. The plaintiff was entitled to an opportunity to prove either or both of these facts, to sustain the writ, and proof of either fact would have sufficed to sustain it. While it is to be regretted that a case of such long standing as the one at bar must be reversed the second time for the reasons above indicated, yet the error is of such nature that it cannot be disregarded.

The judgment of the lower court is reversed, and the cause is remanded to the United States court in the Indian Territory, with directions to vacate so much of its order made on January 31, 1894, as sustained the motion to strike out the second and third grounds of attachment contained in the affidavit for attachment on that day filed. And inasmuch as the record discloses that the original affidavit for attachment has been many times amended, and that numerous motions have already been made by the defendants either to strike out portions of the affidavit or to dissolve the attachment, it is further ordered that the retrial of the case be had on the lastamended affidavit for an attachment, which appears to have been filed on January 31, 1894, and that the plaintiff be allowed an · opportunity to establish, if he can, either one or all the three grounds of attachment therein alleged.

UNITED STATES V. HARDEN.

(Circuit Court of Appeals, Second Circuit. May 28, 1895.)

CUSTOMS DUTIES- CLASSIFICATION-EMBROIDERED AND HEMSTITCHED HANDKER

CHIEFS.

Hemstitched handkerchiefs composed of cotton or other vegetable fiber, and embroidered with only an initial letter, are not dutiable at 60 per cent. ad valorem as "embroidered and hemstitched handkerchiefs," under paragraph 373 of the act of October 1, 1890, but should be assessed at 50 per cent., under paragraph 349, as "handkerchiefs" simply.

Appeal from the Circuit Court of the United States for the Southern District of New York.

This was an application by James Harden, importer of certain handkerchiefs, for a review of the decision of the board of general appraisers reversing the action of the collector of the port of New York as to the rate of duty imposed upon such merchandise.

The

circuit court affirmed the decision of the board of general appraisers, and the United States appealed.

James T. Van Rensselaer, Asst. U. S. Dist. Atty., for the United
States.

W. Wickham Smith, for importer.
Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

SHIPMAN, Circuit Judge. After October 1, 1890, James Harden imported into the port of New York sundry invoices of handkerchiefs composed of cotton or other vegetable fiber, which were hemstitched, and contained an initial embroidered thereon. The collector assessed the merchandise for duty at 60 per cent. ad valorem, as embroidered and hemstitched handkerchiefs, under paragraph 373 of the tariff act of October 1, 1890, which imposed that duty upon "embroidered and hemstitched handkerchiefs

composed of flax, jute, cotton or other vegetable fiber.” The importers duly protested, and set forth in their protest that the goods were dutiable at 50 per cent. ad valorem, as handkerchiefs, under paragraph 349 of the same act, which imposed that rate of duty upon "handkerchiefs * * composed of cotton or other vegetable fiber made up or manufactured wholly or in part by the

manufacturer.” Upon these protests, and other like protests by other importers upon this class and other classes of handkerchiefs, the board of general appraisers took a large amount of testimony, and found that at and prior to the passage of the act of October 1890, the term “hemstitched and embroidered handkerchiefs” was a trade term, having a commercial meaning which excluded hemstitched handkerchiefs which were embroidered simply with an initial letter, and that this class of handkerchiefs is and was at the time of the passage of the act a separate and distinct class of goods from the one which the importers and large dealers were accustomed to designate as "hemstitched and embroidered.” The record abundantly discloses that, in the speech of commerce, these goods, though embroidered with an initial, were not classified or regarded as embroidered. Apart from the question whether the term is or is not one of commercial designation, we agree with the circuit judge that the embroidery of a single letter upon the corner of the handkerchief is so limited in its extent and of such comparative narrowness as not to require that the handkerchiefs should be regarded as embroidered. The decision of the circuit court is affirmed.

[ocr errors]

WEBSTER v. BELL

(Circuit Court of Appeals, Fourth Circuit June 5, 1895.)

No. 118.

INTERSTATE COMMERCE-EXPRESS COMPANIES-LICENSE TAX.

An ordinance imposing a license tax upon “every express company having an office in the city of A., Va., and receiving goods, * * * and forwarding them to points within the state of Virginia, or receiving goods

* * * within the state of Virginia, and delivering them in the city of A.,” is repugnant to the interstate commerce law, and is Void.

Appeal from the Circuit Court of the United States for the Eastern District of Virginia.

This was an application for a writ of habeas corpus by Lewis McK. Bell, who claimed that he was illegally restrained of his liberty by James F. Webster, captain of the police force of the city of Alexandria, Va. The circuit court granted the writ, and discharged the relator. The respondent appeals. Affirmed.

This case comes up by way of appeal from the circuit court of the United States for the Eastern district of Virginia. Lewis McK. Bell was in custody of James F. Webster, captain of the police force of the city of Alexandria, under conviction before the mayor of that city for the violation of a city ordinance. The city of Alexandria, on 12th May, 1894, passed an ordinance containing the following provision:

“Sec. 49. On every express company having an office in the city of Alexandria, Virginia, and receiving goods, wares and merchandise, and forwarding them to points within the state of Virginia, or receiving goods, wares or merchandise within the state of Virginia, and delivering them in the city of Alexandria, there shall be levied and collected a license tax of $150. This ordinance Shall be of force from its passage.” \

The United States Express Company, a joint-stock company under the laws of New York, is engaged as common carrier in the express business throughout many states of the Union. It has an office in the city of Alexandria, in which Lewis McK. Bell is the chief manager and agent. A part of the business of the company is transporting from other states into the city of Alexandria packages of goods, wares, and merchandise, and in delivering them in that city, and in receiving goods, wares, and merchandise in Alexandria, and transporting and delivering them elsewhere. All express packages sent from Alexandria elsewhere are forwarded to Washington, in the District of Columbia, and thence forwarded to their destination. Very many express packages so forwarded are destined for points in the state of Virginia, and are thus sent from Alexandria through Washington to those points in Virginia. The express company refused to pay this license tax. Thereupon the proceedings were instituted against Lewis McK. Bell, its manager and agent, under Which he was convicted and was in custody as Stated. An application was made for his release under habeas corpus before the circuit court of the United States; and, upon hearing the application, Bell was released from custody, upon the ground that the express company was engaged in interstate commerce, and that the ordinance in question was a regulation of interstate commerce, and so void. This is an appeal from this decree.

Samuel G. Brent and E. B. Taylor, for appellant.
John M. Johnson, for petitioner.

Before GOFF and SIMONTON, Circuit Judges.

SIMONTON, Circuit Judge (after stating the facts). Is this ordinance of the city of Alexandria a regulation of and a tax upon commerce between the states? There can be no question that a state, and municipal corporations within a state, acting under state authority, can impose a license upon all business conducted by common carriers within a state. W. U. Tel. Co. v. Texas, 105 U. S. 460; W. U. Tel. Co. v. Alabama State Board of Assessment, 132 U. S. 472, 10 Sup. Ct. 161; Postal Tel. Cable Co. v. City Council of Charleston, 153 U. S. 692, 14 Sup. Ct. 1094. But in the imposition of such tax the interstate business must be discriminated from the infra state business, or it must be made capable of such discrimination, so that it may clearly appear that the infra state business alone is taxed.

« ForrigeFortsett »