408 0,
I'EDERAL REPORTER,
vol. 61.
"The cj,alPplng arm, Fig. 6, consists of a thumb piece, D, clamp, L, and heel, :who]esupported In position by the pins, N, N." "At its forward end, L, thq clamp bar. is slotted · .' · for the reception of the nose of the driver." "lJ:J, front of this slot Is the bifurcation, M (which may be a slot or a of this is to embrace the sides of the pin, F (located at I In the base), and force the papers which may be placed in the clamping jaws down upon the 811,1:11e, so that they may be held from slipping while others are placed upon * · This pin mar also, for special purposes, be dispensed with sometimes. Beneath the L, when In place, lsa raised part of the bilse, J,:,forming a block, upon which the slotted pOrtion, L, of the clamplngnrm restS, and which, together with it, forms the jaws whereby the papers ate held firmly together." "The clamping arms, Fig; 6. are so constructed "that when the thumb lever Is depressed the heel, O. will pass sufficiently far beneath the bearlpg, N, to hold the slotted portioq; L, raised from the base, J, until the end, M; is pressed Upol/" wilen it will close with a snap, and drive the papers down upon the pin, F (Fig. 1). In'usln,:..two of these clips, they are set open, and stand thUliluntilthe paper's are ,'laid in place, when they are successively closed, or the thumb pieCeS, D, D, may be connected by a crosl;l'bar, so that both are actuated simultaneously.'"
The this carefully described arrangement of parts, wher,eby the' be set open or "cock,ed" while the papers being inserted, thus leaving both handfJ,.free for arwere ranging them suitably in place, and whereby, so placed, it might be closed with a snap, was part of the device described, and must be re.a.d into the clainf,,':asbeing the "paper-filing clip, B D." In thisopinioll we concur. '··' The specification contains no suggestion that ,this particular arryngement of parts mlil,y be dispensedw:ith, as it does with regard to, the pin, F; and where a patentee has thus carefully and specifically: pointed out the details of a details, as he show,!:!!,' discharge a stated function, it is not for the court 'to declare themjmmaterial. Defendant haeno such arrangement of parts. TheHJlper arm of intermedihis Clip is held in engagement with the base, or ate spring impinging upwardly upon th(;) piece, and not permitting the thumb piece to be set back br,cocked. It seems probable" that, in consequence, defendant's clip is not as convenient in use as the complainant's, but certainly it does not inSo far as the patent of 1883 is there is nothing to add court. In view of the to the opinion of the judge of the state of the art; there was no invention in altering the slots of the guide as to perplit the staple .driver to be inserted both crosswise aI!d lengthwise, nor so as sufficient room to drive a staple with a proje.cting eye. Thed'ecree of the circuit court is affirmed, with costs.,
i
R. , ' ADMIRALTy--REVIEW()F .
co.' v. ':
NAPIER SHIPPING CO., ,,,..
CoW't of i
./,
Secpnd 'Olrcuit. FnmING8.
.
April .18, 1894.)
The findings oJ a, commissioner appointed to ascertain damages in relation to questiona/of .tact depending on conflicting ,evidence should not be disturbed unless error or mistake is clearly apparent. l!}
PANA?44:
a;
00. V.' NAJ;>IER ;SRIl'PlbtG
co.
409
Appeal from the Circuit Court of the United States for the Southern District of New York. This was a libel by the Napier Shipping Company, Limited, against the Panama RailrQad Company, to recover damages for injuries received by libelant's steamer Stroma while lying at respondent's pier at Colon, Panama. The district court originally dismissed the libel (42 Fed. 922), and libelant appealed to the circuit court, where the decree was affirmed pro forma, and an appeal taken to this court. On February 16, 1892, this court reversed the decree (1 C. C. A. 576, 50 Fed. 557), with directions to ascertain the amount of libelant's loss, and render a decree therefor with costs. The cause was accordingly referred to a commissioner, and on the coming in of his report the· exceptions taken thereto by respondent w.ere overruled, and the report adopted. From this decree respondent has now appealed. Coudert Bros., for appellant. Butler, Stillman & Hubbard (Wilhelmus Mynderse, advocate), for appellee. Before WALLACE and SHIPMAN, Circuit Judges. PER CURIAM. The only questions raised by this appeal relate to the award of damages made by the decree of the circuit court upon overruling the exceptions of the appellant to the report of the commissioner to whom it was referred to ascertain the libelant's damages. The exceptions, aside from those taken to the allowance of interest, challenge the correctness of the commissioner's findings upon matters of fact. The only ones relating to the allowance of interest which have beeu argued orally or in the brief of counsel for the appellant also depend upon the correctness of the commissioner's findings upon matters of fact, the contention being that interest should only have been allowed upon the amount of damages which Should have been awarded, instead of upon the amount actually awarded. We think the court below properly adopted the commissioner's findings of fact, and correctly overruled the exceptions. The conclusions of such an officer, like those of a master iu chancery, will not be disturbed as to matters of fact which depend upon conflicting testimony, unless error or mistake is clearly apparent. Whether the expenses of the libelant in raising and patching the steamer at Colon were reasonably incurred under the circumstances, whether it was more judicious to bring her to New York, in view of theextensive repairs which were necessary, than to attempt to have them made at New Orleans, whether the repairs made in New York were necessarily consequent to the injuries inflicted by the negligence of the appellant, or were in part consequent upon the negligence of the servants of the libelant, whether the sum paid for repairs was reasonable in amount or not, and whether the expenses and losses incurred by the libelant were or were not enhanced by any want .of diligence or prudence on its own part, were all questions de-
:oontttdhiJ3'·: lana iDference8 j 0,"', "fact. ;Tlie circuit court could not have safely disturbedtlle conCluSioll8of the oOn1D1i.. ' u ' i ", , : (: '. ,,:! , The,decteeisaffirmed,Rith bltereS,t,llnd costsflf both courts. ",.!
"
;;
;,
llll'!', ;
,'!
,;
,
.... TWQ;I,IUNPRED AND FIFTY J¥lilQS OF NAILS, eourlotAppea1S. Nlntb,OLl.'c::l11t. AprU No.1S9.
of Mipping
'between ports :in,forelgn: vesseili (Rev. St. § 4:i:l4:7),lS,Dot vlolatedby NpW' ¥ork In one and aftertl)ElIfl to a ,Oalifornia. port,liltholigh this was the iDteil.tloJi' trlim the' . ,' " " ,,,.
Appeal from the District Court of tqe United States for the E;outhern of " ' . " ,.;, , '. ,' ",: ' This wal'l' 11 libel by tlfe't:1nited States s'eekmgthe forfEiiture of 250 kegs of nails for violation of Rev.St. § 4347. The circuit court over· ruled a demurrerw against the United States, from which they have appealed. ,(iteorger fol' t;n'I,:pnitedSta,tes. Page & Eells :and &; Frank,for, appellee. ,Before McKENNA. aindGILBERT,Circuit Judges; and HAN· FORD, District Jndge.: ;/ 'J;
GILBERT, CirCuit Judge: The United States dIed a, libel of information for theforfeitu'l'e of merchandise claimed to have been unlawfully 'transported fnom one liOn of the United, States Willnother port therein, in vessels owned by'8ubjectB ofa'foreign powel', in violation 'of .leCtion 4347'oUhe Revised StatuteS. The owner of the merchandise made a special defense,setting forth the facts constituting the shipment. These facts are that the mel'chandise was wholly of the produce and manufacture of the United States; that it was shipped at New York in a Belgian vessel, consigned, under regular bills of lading, to a c.ommercial house at Antwerp; that tllere the merchandise was discharged and J.aJ1ded, and was subsequently shipped ona Bl'itish vessel, ,consigned: to the ownel'$ at the port of, Redondo" in California, !under bills, signed, by the master of the British ship, and' was. cal'ried where it at the customhouse as a wanufactuJl'e, of the United States which had been exported, and WUnow retllrned to country; tll.aJ the owners pro'duced the ceI1:iJicate frQm New, ,¥ork, and presented to the ,collector Jl,t RedQn,d.()the evidenCe requireilbythe regulations that the merchandise was entitled to tl'ee entl'Y;' that, from New York, it was tQlIind, the good",4t Antwerp, afterwards '", ',' , forward .tb,em·by, another ,vessel to demurred tothis8,#swer upon the ground that the same cUd not state facts snft!.c.ient, in law, a defense. i
UNITED STATES V. TWO HUNDRED AND FIFTY KEGS OF NAIJ1l.
411
The demurrer was· overruled, and decree entered against the libela,nt,and from that decision this appeal is taken. The decision of the case upon the appeal must depend upon the proper construction to be given to section 4347 of the Reyised Statutes, which reads as follows: "No merchandise shall be transported, under penalty of forfeiture thereof, from one port of the United States to another port of the United States in a vessel belonging wholly or in part to a subject of any foreign power; but this s,ection shall not beo construed to prohibit the sailing, of any foreign vessel from one to another port of the United States·. provided no merchandise other than that imported in such vessel from some foreign port, and which shan not have been unladen, shall be carried from one port or place to another in the United States."
Is the transportation of merchandise which is described in the answer rendered illegal by the language of the. statute? The facts set forth in the defense show that the merchandise in question was not tran.sported directly from one port to another port of the United States, nor was it transported in one foreign vessel.' On the other hand, it was carried from a port of the United States to a foreign port in a foreign vessel, and was there reloaded into a second foreign vessel, and thence carried to another port of the United States. The laws of the United States for the protection of shipping, and for the collection of revenue in duties, are intended for the practical use of men engaged in commerce. They are intended to be read in the light of commercial usage, and they are to be interpreted "according to the cOInmercial understanding of the term used." Elliott v. Swartwout, 10 Pet. 137. In interpreting the provisions of such a statute, it is rather the letter of the law, than its spirit, which is to be regarded. In the. plain and ordinary meaning of the words, "to transport goods from one domestic port to another" means to carry goods in one continuous voyage, either directly from the one port to the other, or by the customary voyage pursued in commerce between the ports. It does not mean to carry them in two distinct and separate voyages, or in two distinet vessels. When the merchandise in this case was carried from New York to Antwerp, in an opposite direction from its ultimate destination, and was there discharged, there clearly had been, so far, no violation of the statute. Neither was the subsequent reloading and transportation to Redondo, in itself, a violation of the statute. But it is said that the two voyages are to be regarded as one, and that, viewed in the light of the result, the penalty of the statute has been incurred. But it is not the result that is prohibited by the statute. Were these goods transported from one port in the United States to another port in a vessel belonging in whole or in part to foreign subjects? If they were, the penalty denounced by the statute has been incurred. If they were not, then it makes no difference that the result accomplished was that which is intended to be obviated by the statute. It was the intention of congress, by this act, to protect American shipping. It was evidently not considered necessary to extend the protection further than the words of the statute indicate. It was
412
,''1
FEDERAL REPORTER,
vol. 61·
. noteoutemplated that Americansh.ipping, in carrying goods between domestic ports, would evelll,)e put to the strain of competition by transportation in the circuitous method disclOl!ledJ.n'tb.l$ case. The protection of the statute goes no further than the words, in their plain, obvious sense, indic'ate. Shippers are still left free to transport goods from.New York of to :RellQJld.oby sea in any method they see fit, provided they do not ship them direct, from' the one. port to the other in the. prohibited vessel.. The protection of thesfatu,te was intended to be limited, and the eourt has not right to. it further than ,to the transportati(liD.;precisely described in the ,terms oHhe statute. . But it is urged that the facts disclosed in this case amount to a palpable e:vasion of and.that such is .admitted to have ;inteIJ-tipn tIle parties to }4,e transacti.on.. purpose been haillJl .make no difference WIth t]aemterpretathe tion of. th.e. statute.. They practiced, no concealmentQr fraud upon . Their were done openly. They had the statthe ute beforethexn for theirgriidance. unlawful act there defined was mal't'rmp-rqhi'bitum The statute left them free to ship goods fr0p;t.i$ew York to:tk?ondo in any manner they saw fit, save and except tl).erem prohibited. They followed a method not sti:ttute. They had the rightto assume that the whole ihteption of. c()ugress had been expressed in the words of . . '. . . the statute.. This 'vie1V is sustained.by.thesubsequent legislation of congress upon the. subject. $l;lction 4:3t7 is a re-enactmerit of the act of congress pf 1, .entitlea "A.n actconcerning the navigation' of the 'United States:" 3 stat. 351. On July 18, 1866, in of evasions. Of that law. committed or. threat.ened on frontier, cOJIgress passedap. act which is now embodied in the Revised §tatlltes as .section 3110, and reads as follows: .. . l
."If any merchandise shall 'itt,any port in the United States on the northern, northeastern Qr northwestern trontlm-s thereof, be laden on any vessel belonging in whole or ,in part to It subject of a foreign country, and shall be taken thence to a foreign port to be reladenand reshipped to any other port in the United :States .on such 'tr.ontlers, either by the same or any other vessel, foreign or A1Derican, with the intent tc> evade the provisions relating to the transportatlol1 o.fmerchandlse from one Port of the United States to another port of the United States ina vessel belonging in whole .or in part to the subject of a foreign power, the merchandise shall, on its arrival at such last and forfeited to rthe United States, and the vessel shall named port, be pay a tonnage duty of fifty cents per ton on her admeasurement."
This section of the statutes expresses the legislative intentioD upon the snbject of the evasion of the provisions of section 4:347. It furnishes conclusive proof that that subject was brought to the attention of congress. Congress thereupon passed' the· act prohibit. ing such evasion, but confined the prohibition to transportation between ports within certaindeftned' territorial lim.its,-the ports of the northern, northeastern, and northwestern frontier. The will of congl'ess with reference to this subject having been expressed by this enactment in regard to certain specified ports, transportation
UNITED STATES V. TWO HUNDRED AND FIFTY KEGS OF NAILS.
413
by this method between all other domestic ports is, by implication, .excluded from the prohibition. But it is contended that the force of this consideration is overcome by the fact that sp-ction 3110 imposes a new penalty,-a penalty to be enforced against the ship, in addition to the forfeiture of the cargo; and the argument is that 'it WllS.. the purpose of congress to impose additional restrictions to transportation on the northern frontier by way of the Canadian ports in evasion of section 4347, and to leave other violation of that section to be punished by the penalty therein provided. We find no warrant for so narrowing the scope of section 3110. No reason can be suggested why congress should intend one punishment for eva· sion of the law by transportation via Canadian ports, and another for other transportation evasive of section 4347. Section 3110 contains the expression of the will of congress concel'ning the whole subject of the evasion of the previous statute. It is probable that, at that tbne, evasion of the law by transportation by way of a Europeanporl was not contemplated, or if thought of, was deemed so improbable as to require no prohibition. But if the terms of section 4347 are admitted to be ambiguous and uncertain, so that the court may be left in doubt concerning their application to the facts presented in this case, then it follows, from settled legal principles of construction of that class of statutes, that the doubt must be resolved against forfeiture. Sutherland, in his work on Statutory Constructions (section 361), says: "No case has arisen in which a penalty or forfeiture has been sustained for being within the supposed intention of the statute when not within Its terms."
'And he quotes fWm Dwarris on the same subject as follows: "Judges, therefore, where clauses are obscure, wlll lean against forfeitures; leaving it to the legislature to correct the evil, if there be any. With this view, the ship-registry acts, so far as they apply to defeat titles and create forfeiture!,!, are to be construed strictly, as penal, and not liberally, as remedial, laws."
This principle has been universally applied to provisions of the revenue acts. In Adams v. Bancroft, 3 Sumn. 384, Fed. Cas. No. 44, Story, J., said: "Laws imposing duties are never construed beyond the natural import of the language, and duties are never imposed upon the citizens upon doubtful Interpretations; for every duty imposes a burthen on the public at large, and is construed strictly, and must be made out, in a clear and determinate manner. from the language of the statute."
In the case of U.· S. v. Breed, 1 Sumn. 160,1 it appeared that the duty on white or powdered sugar was 4 cents a pound; and on loaf sugar, 12 cents a pound. Certain sugars were imported, which were powdered and white; but it was contended that the sugar was in fact loaf sugar, highly refined, and that it had been crushed for the purpose of evading the act. But the court said: "To constitute an evasion of a revenue act which shall be deemed, in point of law, a fraudulent evasion, it Is not sufficient that the party introduces another article, perfectly lawful, which defeats the policy contemplated by th& 'Fed; Oas. No. 14,638.
'FRDERAIl REPORTER,
ful :lntroductlon of the .verY thing taxed, or intent t}1e a.ot. *, .· ,. ":h' .lunlsfort\lne incldkt to al1laws that. ther are necessarily tmperfect;and,' o'Ih human short of aU the iIIItended objects. But In all BUcll !cil'iles It Is the business of 'legislation, 311d not lofcourts of justice, to correctitheeviI."
be
·","iQreat stress 'Is lllJd on the that! st\gars are manufactured' In dark ! 'ColorS (m purpos,e tlfevade our dutl!ls:;', this Is true. Has not a man'\ifacturier a tight'to J:llake If they are less market'able,.it Is Ills !.QS/fnu If th!3y are not"feM. has a right to comIf «;lltlesare atfecte«:l·. is a plain rewe\!)';·. Congress can always. adopt .and it may deeme¥pedlent for proof the governmEmt!',', ' . . ' tecting the
The princ(plbshtrnounced in thedecis'ion of the {lourt in the' dike ,of Merritt v. WelS,h, 104, U. S.'694,fnwhich the court, sR14: ' r' . : '" ' ' , ,"
' I t Qlay be since of present suit .·. has section 4347; and has made its extend to transportation such as. :'ra;S hlld in this case, py inserting in rthatsection t;hefollowing words:,: "And, of merchandls!3 ,In any such vesselor vessels from <lne port of the Ul;l,lted States to another po,rt of the United Statea via any forport be deemed a violation C?f the foregoing provision." 27 Stat. 455.
It is the iudJW;ent of the court .that the decree be affirmed.
UNITED STATES v. REED. (Circul1: ,:.
C?tirt of Appeals. Second CirCuit. 'No. 94'I i
April 19.,l894.) ;
Under Act J'urie 26, 1884, c. 121, § 27, which provides tor audit and payment of expenses of shipping commissioners, expenditures required to enable a compllssloner to discharge'hi,9 official dutiel;! lj.nd to maintain the therefor required by Rev. St.. *, 4507, are a proper charge against the United States, and the provisions of, the act in that respect are not repealed by Act June 19, 1886, § 1, providing for payment of cQmpensatlonto the commissioners and their clerks only.
EXPENDITURES."
'
Appeal from the Circuit Court of the United States for the Southern District of New York. This was an action by James C. Reed against the United States, brought llnder;A.ctMarch 3, 1887 (24 Stat.. 505), for expenditures by ,him as The circuit court rendered judgmentfor· plaintiff. The United States appealed. i'Henry c.Platt/,U. s. Atty., andOharles D. Baker, Asst. U. S. Atty., for the United States. , George E. P. Howard, for appellee. . Before .L4dd;MBE and SHIPMA.1tl,. Circuit Judges. LACOMBE, Circuit Judge. The plaintiff, prior to July 1, 1884, had been appointed shipping commissioner of the United States
UNITJjlD STATES 11. REED.
415
at-the port of New York; had duly qualified, and entered upon the discharge of his dutieli!:: He continued to hold thatoflice discharge its duties until March 1, 1891. During part of this period he occupied rooms in the United States barge office. Subsequently, by direction of the secretary of the treasury, he removed his offices from said barge office, and procured offices at No. 25 Pearl street, and storage room for deceased seamen's effects' at No. 19 Pearl street, in said, city. Between the 1st day of July, 1886, and the 1st day of Ma.rch, 1891, the'plaintiff incurred various expenses and made variout:! disbursements, amounting in the aggregate to the sum of $4,033.71, for rent of offices and storage of deceased seamen's effects, costofsnid removal of his offices, for stationery, telephone service, for Maritime Register, ice, freight on blanks, safe-deposit vault, telegrams, repairs, etc. The record shows that these were proper, necessary, and reasonable expenditures, required to enable the commissioner to comply with the statutes and regulations relating to hisofticial duties. Without them, it would not be practicable for hini to discharge those duties, to make his official or to maintain the "suitable premises" for the transaction of the public business which the law requires. . Rev. St. U. S. § 4507. That any of the items charged for are unreitsonable in amount, or the prices excessive, nowhere appears. It is unnecessary to enter into any extended discussion as to the provisions of the original act of 1872, which created the office, regulated its administration, and fixed the fees to be paid and theeompensation to be received by the commissioner out of those fees. Refbe had to In re Shipping Com'r of Port of New York, 13 BIatchf. 339, Fed. Cas. No. 12,792. Nor has section 4507, Rev. St. U. S., which requires the commissioner to lease suitable premises at his own cost, any bearing upon the questions here raised, inasmuch as the subsequent act of June 26, 1884, c. 121, § 27 (23 Stat. 59), is controlling of the case at bar. It reads as follows: "Section 27. The secretary of the treasury shall appoint a commissioner for each port of entry which is also a port of ocean navigation, and which in his judgment may require the same; such commissioner to be termed a shipping commissioner. and may from time to time remove from office any such com· missioner whom he may have reason to believe does not properly perform his duties, and shall then provide for the proper performance of his duties until another person is duly appointed in his place. Provided, that shipping commissioners now in office shall continue to perform the duties thereof until others shall be appointed in their place. Shipping commissioners shall monthly render a full, exact and itemized account of their receipts and expenditures to the secretary of the treasury, who shall determine their compensation and shall from time to time determine. the number and compensation of the clerks appointed by such commissioner with the approval of the secretary of the tr'easury subject to the limitations now fixed by law. The secretary of the treasury shall regulate the mode of conducting business in the shipping offices to be es· tablished ,by the shipping' commissioners, as hereinafter provided, and shall have full and COmplete control over the same, subject to the provisions herein contained; and aU expendit'rires by shipping commisslo'ners shall be audited and adjusted in the treasury department in the mode and manner provided for expenditures in the collection of customs. All fees of shipping commissIoners shall be paid into the treasury of the United States, and sball constitute a fund wbich shall be used under the direction of tbe secretary of the treasury to pay
FEDERAI.: REPORTER, 1\'01.
61.
" ' i
Expenses such· as now under .consideration appear to have beenilRudited by the treasury department, as a propel' charge against the United States,and paid down to July 1, 1886. Where the statute which such expenditures a necessary incidentto an office does not expressly or by clear implication. provide that they shall be paidf6t by the incumbent· of the office out of his' compensation, they are, under the authorities, a proper charge against the United States.4ndrews v. U. S.,2 Story, 202, Fed. Cas. No. 381; U. S. v. Flanders, 112 U. S. 92, o Sup. Ct. 61. The statute last quoted ex·, . pressly provides for their audit, adjustment, and payment. refers to the act of June 19, 1886 (24 79), the of which isalil: follows: "Section 1. On and after;ruly 1, 1886,. no' fees shall be charged or collected by of steam-vessels or shipping-commissioners, for, the follOWing services to vessels of the United States. [E:ere follows a long enumeration.] Collectors' or other officers, inspectors of steam-vessels and shipping commisreport sioners who are paid Wholly or partly by lees shall make a {If SUch Ii.etv'ices and fE)esprovided bylaw, to the secretIWY of the treasury, llJ,l.der such regulation afl,that officer ]Day prescribe; aad the secretary 'Of treasury shall allow and pay' from any money in the treasury not ()therwiseappropriated, said ofIicers such compensation for said services as each would have received, prior to the passage of this act; also such compensati911. to clerks. of shiIlPip.g commissioliWs as would have been paid them had" act .not passed: provided, that .such services have, in the opinion of tl,le sedremry of the been nec'essarilY rendered,""
the
as to e,x:penditures by Iilhipping commis.sioners other is wh,olly Without :J;Uerit. There is nqtbing in the act :last. quotEld which iS8usceptibie of .any such construction. It containli!, ;t;lO: repealing clause, it does not refer directly or indirectly to such expenditures, nor does it. necessarily imply any intention to impose the burden of maintaining suitable premises for the transactionofthepubli(l business, which the shipping commissioner is ex· pressly required to procure (section 4507, U. S. Rev. St.), upon him instead .of upon the government, which requires it to be maintained, and which had assumed the obligatio,n of maintaining it, and paying the necessary expenses thereof, under the acts of 1872 and 1884. There no weight in the suggestion that, at the time the compensation of the shipping co;mmissioner was fixed. under the section .above quoted from the act of 1884, "he .was informed that it was to be understood that from such com.pensation he should pay all his oftlcialexpenses except for employes and rent." The law regulating this subject is to be found, not in "understanding" of some former secretary of the treasury, nor in the "information" given to. the plaintiff, but in the statute itself, which is too clear and uuambiguo,us to admit of but one construction. The judgment of the -circuit court is .affirmed.
.of
The contention that this section repeals the provisions of the act
SWOPE
e.
VILLARD.
417
BOT SPRINGS INDEPENDENT SCHOOL mST. No. 10, OF FALL RIV· ER COUNTY, v. FIRST NAT. BANK OF HOT SPRINGS et aL (Circuit Court, D. South DiLkota, W. D. March 1, 1894.) No. SO. RlllKOVAL 01' CAUSES-ACTION UNDER UNITED STATES LAWs-NATIONAL BANKS
A suit to compel the receiver of a national bank to pay to complainant certain assets of the bank in his hands is one arising under the laws of the United States, within the meaning of the acts of March 3, 1887, and August 13, 1888, in regard to the jurisdiction of the federal courts.
Suit by the Hot Springs Independent School District No. 10, of Fall River Oounty, 8. D., against the First National Bank of Hot Springs and Alvin Fox, receiver of said bank. Martin & Mason and Anderson & Anderson, for complainant. William R. Steele and Henry Frawley, for defendants. to the state court on the ground that it is not a suit "arising under
SANBORN, Circuit Judge. This is a motion to remand this Bult
the constitution or laws of the United States" under the act of March 8, 1887, as corrected by the act of August 13, 1888 (25 Stat. 433; Supp. Rev. St. p. 612, § 2). This suit is brought to compel the receiver of this insolvent national bank to first pay to the complainant, out of the funds of the bank in his hands, several thousand dollars, before he pays any dividend to any creditors, on the ground that this receiver holds this sum of money as a trust fund for the complainant, and not as a part of the property of the bank, to be distributed among its creditors. Whatever funds and property this receiver has, he has received from this insolvent bank, and he holds them by virtue of the laws of the United States relative to the appointment and action of receivers of such banks. His defense to this suit, and to every suit brought against him as receiver, is based upon these laws of the United States under which he holds his appointment, and in accordance with which he must discharge the trust devolved upon him. In this suit he has interposed a demurrer to the plea of the complainant, and the question now at issue is, what construction shall be placed upon the provisions of the national banking laws with reference to the distribution of the funds of insolvent banks by receivers under the admitted facts of this case? I am clearly of the opinion that this case is one arising under the laws of the United States, and the motion to remand is denied. Sowles v. Witters, 43 Fed. 700; Sowles v. Bank, 46 Fed. 513 i San Diego Co. v. California Nat. Bank, 52 Fed. 59.
SWOPE v. VILLARD et aL (CIrcuIt Court, S. D. New York. May 16, 1894.)
1.
CoRPORATIONS-RIGHT 01' STOCKHOLDER TO SUE IN BEHAI.F' Oll' CORPORATION-RECETVE"RS.
A stockholder ot a corporation that Is In a receIver's hands has no right to sue upon a cause of action in favor of the corporation upon refusal of
v.61F.no.5-27