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Appeal from the Supreme Court of the Territory of Washington.

On motion to dismiss appeal.

A. H. Garland and W. W. Upton, for the motion. Leander Holmes, in opposition.

WAITE, C. J. The facts on which this motion rests are these: A judgment was rendered by the supreme court of the territory of Washington, July 18, 1885, dismissing an appeal. On the fifteenth of July, 1886, Lorenzo D. Brown and Leander Holmes presented a bond as security for an appeal from this judgment to one of the justices of that court, and he, on the twenty-first of that month, indorsed upon it his approval. On the seventeenth of November, 1886, a citation was signed by the same justice, requiring McConnell, as appellee, to appear in this court to answer the appeal "on the second Monday in October next," which was the first day of the present term. This citation was served on McConnell the day of its date. On the twenty-third of May, 1887, which was the last Monday in our term of 1886, the appeal was docketed and dismissed under rule 9, on motion of counsel for the appellee. On the fourth of August, 1887, the case was again docketed by the appellants. This motion is to dismiss upon that docketing.

Even if it should be conceded that an appeal was allowed by the approval of the bond July 21, 1886, that appeal became inoperative by the failure of the appellants to docket the case at our term of 1886, and by the order to dismiss made upon the docketing by the appellee. The rights of the parties depend, therefore, on the legal effect of the signing of the citation on the seventeenth of November, 1886, returnable to this term without taking any new security. The statute makes no special provision as to the form of an allowance of an appeal, but this court has said that, "as there can be no appeal without the taking of security, either for costs, or costs and damages, and this is to be done by the court, or a judge, or justice, the acceptance of the security, if followed, when necessary, by the signing of a citation, is, in legal effect, the allowance of an appeal." Sage v. Railroad Co., 96 U. S. 712, 714; Draper v. Davis, 102 U. S. 370, 371; Brandies v. Cochrane, 105 U. S. 262. In the present case there was the signing of a citation returnable to the present term, but no acceptance of security, and the question presented is whether that is enough of itself to constitute an allowance of an appeal such as will give this court jurisdiction, and, if it is, whether, before dismissing the case peremptorily, we may permit the appellants to give the requisite security here. O'Reilly v. Edrington, 96 U. S. 724, 726.

An appeal to this court, in a proper case, is matter of right, and its allowance is in reality nothing more than the doing of those things which are necessary to give the appellant the means of invoking our jurisdiction. A writ of error is the process of this court, and it is issued, therefore, only upon our authority; but an appeal can be taken without any action by this court. All that need be done to get an appeal is for the appellant to cite his adversary in the proper way to appear before this court, and for him to docket the case here at the proper time. Such a citation as is required may be signed by a judge of the circuit court from which the appeal is taken or by a justice of this court. Rev. St. § 999. As appeals from territorial courts are to be taken in the same manner, and under the same regulations, as from the circuit courts, (Rev. St. § 703,) it follows that citations on such appeals may be signed by a judge or justice of the territorial court, or by a justice of this court. If an appeal is taken by the action of the court in session before the end of the term at which the decree is rendered, no formal citation is necessary, because, both parties being constructively in court during the entire term, they are charged by law with notice of all that is done in the case affecting their interests. But, if the necessary security is not taken until after the term, a citation is required to bring the appellee before us; although, if the case is docketed here in time, it

will not be dismissed at the return-term until an opportunity has been afforded the appellant to give the requisite notice. The appeal taken in open court, if docketed here in time, gives this court jurisdiction of the subject-matter, and invests it with power to make all orders, consistent with proper practice, which are needed in furtheranee of justice. This subject was fully considered in Hewitt v. Filbert, 116 U. S. 142, 6 Sup. Ct. Rep. 319. To get an appeal after the term at which the decree is rendered, a party must apply to the proper justice or judge to sign a citation. If he signs it, he furnishes the appellant the means of getting his case into this court, and in legal effect allows an appeal. All the appellant has to do after that to give this court jurisdiction, both of the subject-matter of the appeal and of the parties, is to serve his citation, and to docket the case here in time.

By section 1000, Rev. St., the justice or judge is required, when he signs a citation, to take good and sufficient security that the appellant shall prosecute his appeal to effect, and, if he fail to make his plea good, answer all costs. The failure to take such security is an irregularity, but it does not necessarily avoid the citation. The security is required, however, in the due prosecution of the appeal, and, if the case is docketed here in time, it will not ordinarily be dismissed because of the neglect or omission of the justice or judge to require the security until the appellant has been afforded a reasonable opportunity of curing the defect. The taking of security is not jurisdictional in its character, and its omission affects only the regularity of the proceedings. Such being the case, permission to supply it here may properly be given in furtherance of justice.

There is nothing in the case of Castro v. U. S., 3 Wall. 46, or in that of U. S. v. Curry, 6 How. 106, which is at all inconsistent with our present ruling to the effect that in ordinary cases the signing of a citation in time by the proper justice or judge is a sufficient allowance of an appeal. Castro's Case arose under the act of March 3, 1851, (9 St. 631, c. 41,) to ascertain and settle private land claims in California, which required (section 9) appeals to be granted by the district court on the application of the party against whom the judgment was rendered. Clearly, a citation signed by a judge out of court would not be the allowance of an appeal under that statute, because that appeal must be allowed by the court. Curry's Case arose under the act of May 26, 1824, (4 St. 52, c. 173,) which required an appeal to be taken within one year from the time of the rendition of the judgment, (section 2,) and the citation was not signed before the end of that time. The jurisdiction of this court depended, therefore, entirely on the first appeal, which had become inoperative by a failure to docket it at the return term.

It is therefore ordered that the cause stand dismissed, unless the appellants shall, on or before the nineteenth day of March next, file with the clerk of this court a bond in the penal sum of $500, conditioned according to law for the purposes of the appeal, with sureties to be approved by the justice of this court allotted to the Ninth circuit.

Similar orders may be entered in Nos. 987 and 668, which were submitted on like motions.

STEWART v. MASTERSON.
(January 30, 1888.)

APPEAL TO UNITED STATES SUPREME COURT-CITATION-SECURITY.

A citation upon an appeal to the United States supreme court is sufficient, without any taking of security, to constitute the allowance of an appeal such as will give that court jurisdiction; and if security be not taken in accordance with Rev. St. U. S. § 1000, by the judge signing the citation, the irregularity may be subsequently cured; following Brown v. McConnell, ante, 559.

Appeal from the Circuit Court of the United States for the Western District of Texas.

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On motion to dismiss appeal of James Reid Stewart.

S. S. Henkle, for the motion. Chas. C. Lancaster, in opposition.

WAITE, C. J. The facts on which this motion rests are these: The decree from which the appeal was taken was rendered November 7, 1884, and contained on its face the allowance of an appeal to this court. That appeal was returnable to October term, 1885, which began October 12th of that year. It does not appear that any bond was approved during the term at which the decree was rendered, but one was approved October 10, 1885, which was before the beginning of the return-term. A citation was signed November 2, 1885, after that term began, requiring the appellee to appear in this court on the second Monday in October, 1886. This citation was served February 17, 1886, but the case was not docketed in this court until June 11, 1886, which was after our term of 1885 ended, but before that of 1886 began.

The bond approved October 10, 1885, must be deemed to have been taken under the appeal allowed in open court, and, as that appeal became inoperative by reason of the failure to docket it here during the term of 1885, the only question we have now to determine is whether the signing of the citation November 2, 1885, was in effect the allowance of a new appeal, returnable at the term of 1886. We have just decided in Brown v. McConnell ante, 559, that it was; but as the bond which was executed October 10, 1885, became inoperative by the failure to docket the first appeal in time, we now order that this appeal be dismissed, unless the appellant shall, on or before the nineteenth day of March next, file with the clerk of this court a bond in the penal sum of $500, conditioned according to law for the purposes of the appeal, with sureties to the satisfaction of the justice of this court allotted to the Fifth circuit.

WORTHINGTON, Collector, v. ABBOTT, et al.1
(January 30, 1888.)

CUSTOMS DUTIES-CLASSIFICATION-NAIL-RODS.

Swedish iron nail-rods should be classified as a description of "rolled and hammered iron not otherwise provided for," and not as "bar-iron, rolled or hammered, comprising flats less than three-eighths of an inch or more than two inches thick, or less than one inch or more than six inches wide."

In Error to the Circuit Court of the United States for the District of Massachusetts.

Sol. Gen. Jenks, for plaintiff in error. Chas. Leri Woodbury, for defendants in error.

BLATCHFORD, J. This is an action brought in the circuit court of the United States for the district of of Massachusetts, by the members of the copartnership firm of Jere Abbott & Co., against Roland Worthington, collector of customs, to recover the sum of $56.11, as an alleged excess of duties on Swedish iron nail-rods imported by them into the port of Boston. After issue joined, a jury trial was duly waived, and the case was tried by the court without a jury, and a judgment was entered for the plaintiffs for the above amount of damages and for costs, to review which the defendant has brought a writ of error.

There is a bill of exceptions, which states that the defendant liquidated the duties on the nail-rods, under section 2504, Rev. St., Schedule E, (2d Ed.) p. 464, as "bar-iron, rolled or hammered, comprising flats less than three-eighths of an inch or more than two inches thick, or less than one inch or more than six inches wide," at "one cent and one-half per pound;" that the plaintiffs contended that the duties should have been liquidated under the following 1Affirming 20 Fed. Rep. 495.

clause in Schedule E of section 2504, (page 465:) "All other descriptions of rolled or hammered iron not otherwise provided for, one cent and one-fourth per pound;" and that the plaintiffs paid the duties as liquidated under protest, took due appeal to the secretary of the treasury, and seasonably brought this action to recover the excess claimed to have been illegally exacted. The bill of exceptions then proceeds: "It further appeared in evidence at the trial, that the merchandise in controversy was rolled iron, in straight flat pieces, about twelve feet long, three-eighths of an inch wide, and three-sixteenths of an inch thick, slightly curved on their edges, and that they were made for the special purpose of making nails. It further appeared in evidence that prior to and in 1874, and subsequently, such iron was known in commerce as nail-rods,' and had not been bought or sold as bar-iron,' and that, in a commercial sense, nail-rods are not known as bar-iron;' that, in similitude, the iron in question most resembles scroll-iron, in its shapes and sizes, but it was not known commercially as scroll-iron.' The defendant thereupon requested the court to rule that, in the provision of the statutes under which the duties were liquidated, bar-iron, comprising certain sizes and descriptions, was used in the sense of iron in bars,' comprising those sizes and descriptions, and was not used in a commercial or technical sense; that, as the iron imported came directly within the statute description of bar-iron, rolled or hammered, comprising flats less than three-eighths of an inch or more than two inches thick, or less than one inch or more than six inches wide,' the duties were properly assessed and liquidated; and that, on the evidence in the case, the plaintiffs were not entitled to recover. But the court declined so to rule, and ruled that nailrods, having acquired a specific commercial designation among traders and importers, and having been designated by a specific name in previous legislation, would not properly come under the general term 'bar-iron' in the Revised Statutes, but should be classified as a description of rolled or hammered iron not otherwise provided for, and so subject to a duty of one and onefourth cents a pound. To which rulings and refusals to rule the defendant then and there duly excepted, and prays that his exceptions may be allowed. The foregoing exceptions presented by the defendant are allowed."

The opinion of the circuit court, which accompanies the record, and is reported in 20 Fed. Rep. 495, proceeds upon the ground that as the article in question was known commercially as "nail-rods," and was not bought or sold as bar-iron, and was rolled iron, it did not come within the description of "bariron, rolled or hammered," but came within the description of "rolled or hammered iron not otherwise provided for." Although the article in the present case was in straight, flat pieces less than one inch in width, and less than threeeighths of an inch in thickness, yet it is distinctly found that it had not been bought or sold as "bar-iron," and was not known in a commercial sense as "bar-iron." Therefore, although, in one sense, it might properly have been called "iron in bars," it was not "bar-iron," although it was rolled iron. It was known in commerce as "nail-rods;" and it is found that, in a commercial sense, nail-rods were not known as "bar-iron." The article, therefore, was a description of rolled iron "not otherwise provided for." The commercial understanding as to the description of the article by congress must prevail. Arthur v. Morrison, 96 U. S. 108; Arthur v. Lahey, 96 U. S. 112. The judgment of the circuit court is affirmed.

SMITH V. STATE OF ALABAMA.

(January 30, 1888.)

CONSTITUTIONAL LAW-INTERSTATE COMMERCE-LICENSING ENGINEERS.

The act of the general assembly of Alabama of February 28, 1887, requiring locomotive engineers to be examined and licensed by a board appointed by the governor, and prescribing penalties for its violation, is not unconstitutional, as a regulation of interstate commerce, even when applied to the case of an engineer operating a locomotive attached to a passenger and express train running from a point in that state to points in other states. BRADLEY, J., dissenting.

In Error to the Supreme Court of the State of Alabama.

This is a writ of error bringing into review a judgment of the supreme court of the state of Alabama, affirming a judgment of the city court of Mobile. The proceeding in the latter court was upon a writ of habeas corpus sued out by the plaintiff in error, seeking his discharge from the custody of the sheriff of Mobile county, in that state, under a commitment by a justice of the peace, upon the charge of handling, engineering, driving, and operating an engine pulling a passenger train upon the Mobile & Ohio Railroad used in transporting passengers within the county of Mobile, and state of Alabama, without having obtained a license from the board of examiners appointed by the governor of said state, in accordance with the provisions of an act entitled "An act to require locomotive engineers in this state to be examined and licensed by a board to be appointed by the governor for that purpose, approved February 28, 1887, and after more than three months had elapsed from the date of appointment and qualification of said board. The plaintiff in error, upon complaint, was committed by the examining magistrate to the custody of the sheriff to answer an indictment for that alleged offense. The ground of the application for discharge upon the writ of habeas corpus in the city court of Mobile was that the act of the general assembly of the state of Alabama, for the violation of which he was held, was in contravention of that clause of the constitution of the United States which confers upon congress power to regulate commerce among the states.

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The facts, as they appeared upon the hearing upon the return of the writ, are as follows: The petitioner, at the time of his arrest on July 16, 1887, within the county of Mobile, was a locomotive engineer in the service of the Mobile & Ohio Railroad Company, a corporation owning and operating a line of railroad forming a continuous and unbroken line of railway from Mobile, in the state of Alabama, to St. Louis, in the state of Missouri, and as such was then engaged in handling, operating, and driving a locomotive engine, attached to a regular passenger train on the Mobile & Ohio Railroad, within the county and state, consisting of a postal car carrying the United States mail to all parts of the Union, a southern express car containing perishable freight, money packages, and other valuable merchandise destined to Mississippi, Tennessee, Kentucky, and other states, passenger coaches, and a Pullman palace sleeping car occupied by passengers to be transported by said train to the states of Mississippi, Tennessee, and Kentucky. The petitioner's run, as a locomotive engineer in the service of the Mobile & Ohio Railroad Company, was regularly from the city of Mobile, in the state of Alabama, to Corinth, in the state of Mississippi, 60 miles of which run was in the state of Alabama, and 265 miles in the state of Mississippi; and he never handled and operated an engine pulling a train of cars whose destination was a point within the state of Alabama when said engine and train of cars started from a point within that state. His train started at Mobile, and ran through without change of coaches or cars, on one continuous trip. His employment as locomotive engineer in the service of said company also required him to take charge of and handle, drive, and operate an engine drawing a passenger train which started from St. Louis, in the state of Missouri, des

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