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tion of cases in this court, and to relieve it from the oppressive burden of general litigation; but the rights of review by appeal or writ of error, and of invoking the supervisory jurisdiction of this tribunal, were sought to be amply secured, and should not be circumscribed by too narrow a construction.

If, in the case at bar, the question of jurisdiction had been raised by the United States in the circuit court, and the jurisdiction sustained, and the decision on the merits had then been rendered against the government, would the United States have been compelled to waive their contention on the merits, and have the question of jurisdiction certified to this court, or would they have waived the question of jurisdiction by taking the case to the circuit court of appeals? We do not think the act involves such a dilemma, but, on the contrary, are of opinion that the government would have had the right to carry the cause to the court of appeals, which could have then certified the question of jurisdiction to this court for determination. Of course, the power to certify assumes the power to decide; but, if decided there, by certiorari, when necessary, the same review could be obtained here as on certificate for Instruction; and, although the question of jurisdiction was not put in issue in the circuit court, still, as the objection in the circuit court of appeals went to jurisdiction over the subject-matter, no omission in that regard could supply absolute want of power, and the circuit court of appeals was bound to take notice of the question.

It is conceded that the United States assigned errors on the merits as well as the error under consideration; and as the question of jurisdiction lay at the threshold, and the intent of the act of March 3, 1891, was that that question should be determined by this court, the circuit court of appeals properly suspended any consideration of the case upon the merits until that question could be determined upon certificate. This was in accordance with the early case of McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118, in which it was held that the writ of error or appeal could be taken only after final judgment, except in the cases specified in section 7 of the act; and Mr. Justice Lamar, delivering the opinion, said: "When that judgment is rendered, the party against whom it is rendered must elect whether he will take his writ of error or appeal to the supreme court upon the question of jurisdiction alone, or to the circuit court of appeals upon the whole case. If the latter, then the circuit court of appeals may, if it deem proper, certify the question of jurisdiction to this court." The same course was pursued in New Orleans v. Benjamin, 153 U. S. 411, 14 Sup. Ct. 905. The case was one in which the question of jurisdiction was raised in the circuit court, the jurisdiction maintained, and judgment rendered on the merits. The

defendant did not ask that the question of jurisdiction be certified to this court by the circuit court, but carried the whole case to the circuit court of appeals, and that court certified to us the questions involving the jurisdiction, which were accordingly answered.

Giving the act a reasonable construction, taken as a whole, we conclude: (1) If the jurisdiction of the circuit court is in issue, and decided in favor of the defendant, as that disposes of the case, the plaintiff should have the question certified, and take his appeal or writ of error directly to this court. (2) If the question of jurisdiction is in issue, and the jurisdiction sustained, and then judgment or decree is rendered in favor of the defendant on the merits, the plaintiff, who has maintained the jurisdiction, must appeal) to the circuit court of appeals, where, if the question of jurisdiction arises, the circuit court of appeals may certify it. (3) If the question of jurisdiction is in issue, and the jurisdiction sustained, and judgment on the merits is rendered in favor of the plaintiff, then the defendant can elect either to have the question certified and come directly to this court, or to carry the whole case to the circuit court of appeals, and the question of jurisdiction can be certified by that court, (4) If, in the case last supposed, the plaintiff has ground of complaint in respect of the judgment he has recovered, he may also carry the case to the circuit court of appeals on the merits, and this he may do by way of cross appeal or writ of error, if the defendant has taken the case there, or independently, if the defendant has carried the case to this court on the question of jurisdiction alone; and in this instance the circuit court of appeals will suspend a decision upon the merits until the question of jurisdiction has been determined. (5) The same observations are applicable where a plaintiff objects to the jurisdiction, and is, or both parties are, dissatisfied with the judgment on the merits.

Glaspell's Case illustrates this situation, though arising under somewhat different circumstances. Glaspell brought an action in the district court of Stutsman county, in the then territory of Dakota, against the Northern Pacific Railroad Company, and recov ered a verdict of $12,545.43. After the state of North Dakota was admitted into the Union, including Stutsman county, the defendant petitioned for the removal of the case into the circuit court of the United States for the district of North Dakota, and it was removed accordingly. Glaspell moved to remand, which motion was denied. The circuit court then granted a new trial, and the case was retried in that court, Glaspell insisting throughout upon his objection to the jurisdiction, and resulted in a verdict for the plaintiff of $1,120, upon which judgment was entered with costs. From that judgment, Glaspell prosecuted a writ of error on the 16th day of June, 1891, from this court, upon the question of jurisdiction. While

his writ of error was pending, July 30, 1891, the defendant, upon alleging errors occurring upon the trial on the merits, sued out a writ of error from the circuit court of appeals for the Eighth circuit; and Glaspell filed in that court a motion to dismiss the writ of error, on the ground that the court was without jurisdiction, for the reason that the action was pending on the writ of error from this court, which was duly issued and served before the writ from the circuit court of appeals was allowed. But the motion to dismiss was overruled, and the cause continued, awaiting our decision upon the question of jurisdiction. Railroad Co. v. Glaspell, 4 U. S. App. 238, 1 C. C. A. 327, 49 Fed. 482.

This court subsequently held that the circuit court for the district of North Dakota had no jurisdiction, and reversed the judgment, and remanded the case, with directions to remand it to the state court. Glaspell v. Railroad Co., 144 U. S. 211, 12 Sup. Ct. 593.

In Carey v. Railroad Co., 150 U. S. 170, 14 Sup. Ct. 63, it appeared that two appeals had been prayed from the decree by the losing party, one to this court and one to the circuit court of appeals for the Fifth circuit, which appeals had been severally allowed and duly perfected; but as we held, for reasons therein given, that we had no jurisdiction, the circumstance became unimportant.

In Railroad Co. v. Amato, 144 U. S. 465, 12 Sup. Ct. 740, a suit was brought in the supreme court of New York against a railroad corporation created by an act of congress, to recover damages for personal injuries sustained by the plaintiff from the negligence of the defendant, and was removed by the defendant into the circuit court of the United States, where a trial was had, which resulted in a verdict and judgment for the plaintiff. The defendant took a writ of error from the circuit court of appeals for the Second circuit, which affirmed the judgment. On a writ of error taken by the defendant from this court to the circuit court of appeals, a motion was made by the plaintiff to dismiss or affirm; and it was ruled, among other things, that as it did not appear by the record that on the trial in the circuit court the defendant made any objection to the jurisdiction of that court, and the petition for removal recognized the jurisdiction, the plaintiff could not be heard to assert, as a ground for the motion to dismiss, that the defendant might have taken a writ of error from this court to the circuit court, under section 5 of the said act of 1891, and had, by failing to do so, waived this right.

We are of opinion that the circuit court of appeals was in the proper exercise of jurisdiction in certifying the question which it did, and that our jurisdiction to answer it is properly invoked.

The decision in U. S. v. Klingenberg, 153 U. S. 93, 14 Sup. Ct. 790, covers the case, and requires the question certified to be answered in the affirmative; and it is so ordered.

(155 U. S. 156)

PITTSBURGH, C. & ST. L. RY. CO. et al.
V. KEOKUK & H. BRIDGE CO.
(November 19, 1894.)
No. 633.

RAILROAD COMPANY-CONTRACT WITH BRIDGE
COMPANY-RELEASE.

The I. C. R. Co. and three other railroad companies executed a contract with a bridge company by which such railroad companies were granted the right to use in perpetuity a certain bridge, and agreed to pay certain monthly tolls; and, if such tolls fell below a certain sum, each agreed to pay one-fourth of the deficiency. The I. C. R. Co. executed the contract at the request of the P. R. Co. and the Pa. R. Co., which agreed to assume all the liabilities of such contract, "the same as if it had been specifically named and made a part of the ninth article of a" lease by the I. C. R. Co. of its road to the P. R. Co. for 99 years, dated 3 days after the bridge contract. By such ninth article the lessee agreed to assume and carry out certain existing contracts for transportation over roads of other companies, and the Pa. R. Co. guarantied performance by the P. R. Co. Held, that the contracts between the bridge company and the P. and Pa. R. Cos. were so independent of such lease that the contracts were not affected, nor such companies released from liability under them, by a termination of the lease by eviction or otherwise.

On a Certificate from the United States Circuit Court of Appeals for the Seventh Circuit. This was a bill in equity, filed in the circuit court of the United States for the Northern district of Illinois by the Keokuk & Hamilton Bridge Company (hereinafter called the "Bridge Company") against the Pittsburgh, Cincinnati & St. Louis Railway Company (hereinafter called the "Pittsburgh Company") and the Pennsylvania Railroad Company, to recover deficiencies in tolls for the use of the plaintiff's bridge since March 1, 1883. under a contract, dated January 19, 1869, and modified June 6, 1871, by the Bridge Com-1 pany with the Columbus, Chicago & Indiana Central Railway Company (hereinafter called the Indiana Central Company) and three other railroad corporations, by which the Bridge Company agreed to build and maintain a railway bridge across the Mississippi river, and granted to these four railroad companies in perpetuity the right to use it for the passage of their trains; and they agreed to pay monthly certain tolls, and, if those should fall below a certain sum, each to pay onefourth of the deficiency.

This contract was executed by the Indiana Central Company upon the requests in writing of the presidents of the Pittsburgh Company and of the Pennsylvania Company, by which these two companies agreed to "assume all the liabilities and obligations, and be entitled to all the benefits, of said bridge contract, the same as if it had been specifical

ly named and made a part of the ninth ar ticle of" a lease of the Indiana Central Company to and with the Pittsburgh Company and the Pennsylvania Company, dated January 22, 1869.

By that lease, the Indiana Central Company leased its railroad to the Pittsburgh Company for 99 years; the Pittsburgh Company covenanted to pay a certain proportion of the earnings of that road to the Indiana Central Company, and, by the ninth article, to assume and carry out, receiving and enjoying the benefits thereof, certain existing contracts for transportation over railroads of other companies not mentioned above; and the Pennsylvania Company guarantied the performance of the covenants of the Pittsburgh Company.

The bridge aforesaid, with the railroads of the Pennsylvania Company, the Pittsburgh Company, the Indiana Central Company, and other railroad companies named in the bridge contract, formed a continuous line of railroad transportation from Philadelphia to Des Moines.

The provisions of the bridge contract and of the lease, and the circumstances attending and following their execution, are more fully set forth in the case between the same parties in 131 U. S. 371, 9 Sup. Ct. 770; but the above abstract is sufficient for the purposes of the present case.

* In June, 1871, immediately after the modification of the bridge contract, the bridge was accepted by the Bridge Company and was opened for use, and thenceforward was used by the Pittsburgh and Pennsylvania Companies in the exercise of the control asserted by them under the contract and lease aforesaid, The Bridge Company demanded payment directly from the Pittsburgh Company, semiannually, of the sums payable by the Indiana Central Company for tolls and deficiencies under the modified bridge contract; and from June, 1871, to September, 1874, the Pittsburgh Company paid to the Bridge Company the amount both of such tolls and of such deficiencies. After that time, like payments were demanded by the Bridge Company of the Pittsburgh Company, and the tolls, only, paid.

On July 25, 1881, the Bridge Company filed a bill in equity against the Pittsburgh Company and the Pennsylvania Company to recover deficiencies in tolls for the use of the bridge from September 1, 1874.

To that bill the defendants answered that the Indiana Central Company, the Pittsburgh Company, and the Pennsylvania Company never authorized their officers to execute the bridge contract, or to bind them by it, and that the contract was beyond the scope of their corporate powers.

The Pittsburgh Company also, by way of supplemental answer, set up that in 1875 the trustees named in a mortgage made by the Indiana Central Company of its railroad, rights, and franchises, before the execution

of the bridge contract, brought a bill in equity to foreclose that mortgage, and were thereupon appointed receivers, and, pursuant to decrees of foreclosure, there were conveyed by the Indiana Central Company to the receivers, and by them on January 10, 1883, sold and conveyed to three individuals, as trustees, for a smaller sum than the debt secured by the mortgage, its road, rights, and franchises, with the right to affirm or disaflirm the lease aforesaid, and the purchasers, on February 21, 1883, notified the Pittsburgh Company that they disaffirmed the lease; and further averred "that, in accordance with said decrees, possession of said, railway property, rights, and franchises has been surrendered to the said purchasers, and that it has been wholly ousted and evicted from all and singular the premises, rights, and franchises leased to it as aforesaid, and it relies upon the cancellation of said lease and the ouster and eviction, as aforesaid, as a full and perfect answer to the relief sought in the bill."

To those answers a general replication was filed, and the case was referred to a master. who reported that there was due from the Pittsburgh and Pennsylvania Companies to the Bridge Company, as one-fourth part of the deficiency in the receipts of the Bridge Company from September 1, 1874, to March 1, 1883, the sum of $118,076.89; and that the road, rights, and franchises of the Indiana Central Company had been sold and conveyed, as alleged in the supplemental answer of the Pittsburgh Company, to trustees, and by them on March 17, 1883, to the Chicago, St. Louis & Pittsburgh Railroad Company. The circuit court confirmed the master's report, and entered a decree for the Bridge Company for the sum found due; and, on appeals by the Pittsburgh Company and the Pennsylvania Company, that decree was af firmed by this court. 131 U. S. 371, 9 Sup. Ct. 770.

The present bill was filed September 12, 1889, and set forth the proceedings and de cree in the former suit. In an amended answer to this bill, the Pittsburgh Company and the Pennsylvania Company set up that the interlocutory decrees in the suit for foreclosure, appointing the receivers and directing a conveyance to them, were subject to the qualification that until further order of the court the receivers should not disturb the possession of the Pittsburgh Company; and that no order was made that they should disturb its possession, until and unless by the decrees of sale; but that, on the contrary, the Pittsburgh Company remained in undisturbed possession of the railroad property of the Indiana Central Company until March 17, 1883, when it was wholly dispossessed of the same and evicted therefrom, and from all rights under the lease, by the Chicago, St. Louis & Pittsburgh Railroad Company, to which the same had been conveyed by the purchasers under the decree

of foreclosure, "by virtue of which eviction the said Pittsburgh Company and the Pennsylvania Company lost and ceased to have any right, title, or interest to, or any claim or demand upon, said railway premises, property, and franchises, in or under said lease or amended lease, and became relieved thereby from all obligations, duties, and liabilities imposed by the ninth clause of said lease, and by the said requests, or either of them, and by the said original bridge contract, or any amendment or modification thereof." To this answer the plaintiff filed a general replication.

The circuit court entered a decree for the plaintiff, and the defendants appealed to the circuit court of appeals for the Seventh cir cuit, which certified to this court, under the act of March 3, 1891, c. 517, § 6, that at the hearing "there arose upon the pleadings in the cause certain propositions of law, concerning which the instruction of the supreme court of the United States is desired. And because this court is in doubt whether, in view of the decision of the supreme court of the United States in the cause between the parties hereto, referred to in the pleadings, and reported in 131 U. S. 371, 9 Sup. Ct. 770, it is at liberty to consider or sustain the eviction pleaded in this case as a valid defense to the claim of the appellee, and whether the contracts with the Bridge Com pany could be avoided by any transaction with respect to the lease, it is therefore ordered that the pleadings in this case, to wit, the bill, the amended answer, and the replication, be certified to the supreme court of the United States for its opinion and instruction upon the following questions:

"(1) Is this court at liberty, in view of the decision and decree in the former case between these parties, referred to in the pleadings, to consider or sustain the defense of eviction pleaded in this case?

"(2) Are the contracts between the Bridge Company and the appellants so independent of the lease that they would not be affected, nor the defendant railway companies released from liability thereunder, by termination of the lease by eviction or otherwise?"

George Hoadly, for Pittsburgh, C. & St. L Ry. Co., and others. Edwin Walker, Lyman Trumbull, and Perry Trumbull, for Keokuk & H. Bridge Co.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.

In the former case between these parties, reported 131 U. S. 371, 9 Sup. Ct. 770, it was decided that the Pittsburgh and Pennsylvania Companies were the real, though not the formal, parties to the bridge contract executed by the Indiana Central Company at their request and for their benefit; that this contract was within the scope of their corporate powers, and made them directly liable to the Bridge Company for the proportion of tolls

and deficiencies which by the terms of that contract were chargeable to the Indiana Central Company; that the bridge contract was a separate and distinct agreement from the lease (to which the Bridge Company was not a party) between the Indiana Central Company and the Pittsburgh and Pennsylvania Companies; and that the validity and effect of the bridge contract did not depend upon the validity or invalidity of the lease, or upon the question whether these two companies, by reason of eviction, were no longer liable upon the lease.

In that case, this court, after discussing the terms of the lease, of the bridge contract, and of the agreement contained in the request of the Pittsburgh and Pennsylvania Companies to the Indiana Central Company to execute that contract, said:

"The reference in that request and agreement to the ninth article of the lease was for the purpose of defining the extent of the liabilities and benefits assumed, and perhaps of Indicating that the Pittsburgh Company alone was bound as principal, and the Pennsylvania Company as guarantor only; but it did not make the bridge contract a part of the lease."

"The sole ground of our decision is that the bridge contract is independent of the lease, and is valid and binding as between the parties to this suit, whether the lease is valid or invalid. This being so, the question argued at the bar, whether the appellants, by reason of eviction, are no longer liable on the lease, becomes immaterial." 131 U. S. 387, 390, 9 Sup. Ct. 770.

The reason and principle of that decision, so far as concerns the present inquiry, were that, while the ninth article of the lease might be referred to for the purpose of defining the extent, or measure, and perhaps the nature or character, of the liabilities and benefits which the Pittsburgh and Pennsylvania Companies assumed by reason of the terms of the bridge contract, and of the agreement contained in their request for its execution, yet the bridge contract was not made part of the lease, nor was the whole lease made part of the bridge contract, or of the agreement expressed in the request, nor did the liability of the Pittsburgh and Pennsylvania Companies to the Bridge Company upon the bridge contract, for deficiencies in tolls upon the bridge, depend upon the question whether the lease of the road of the Indiana Central Company to the Pittsburgh Company was valid or invalid, or upon the question whether that lease remained in full force between the parties to it, or had been terminated by eviction of the lessee or otherwise.

The same reason and principle are no less applicable to the eviction as now pleaded than to the eviction as pleaded in the former suit.

Consequently, the second question certified by the circuit court of appeals must be

answered in the affirmative; and no further solution of the doubts expressed by that court in the first question, and in the preamble thereof, is necessary to the disposition of the case.

Ordered accordingly.

Mr. Chief Justice FULLER, having been of counsel, did not sit in this case, or take any part in its decision.

(155 U. S. 124)

ERHARDT, Collector, v. SCHROEDER et al. (November 12, 1894.) No. 31.

CUSTOMS DUTIES-LEAF TOBACCO-TESTS-CLASSI

FICATION.

1. Rev. St. § 2939, providing that the collector of the port of New York shall not direct to be sent for examination and appraisement less than one package of every invoice, and one package at least out of every ten packages of merchandise, provided that when the secretary of the treasury is of the opinion that examination of a less number will protect the revenue he may direct examination of a less number, is not mandatory, so that though, without any special direction, a less number than one out of ten packages of an invoice is examined, the examination is not void.

2. Though in an action, under Rev. St. 8 3011, to recover duties paid under protest, the value of the merchandise as fixed by the ap praiser cannot be questioned, his classification of tobacco, which depends on the size, fineness of texture, and weight of the leaves, is open to review.

3. Inder tariff act 1883, schedule F, par. 246, declaring the duty on leaf tobacco of which 85 per cent. is of the requisite size and fineness of texture to be suitable for wrappers, and of which more than 100 leaves are required to weigh a pound, the percentage test is to be applied to the bale as a unit, if the leaves are of such uniform character as to be collectively of one class, otherwise to the amount of each class in the bale; the separate hands in the bale are not to be taken as the unit.

4. The test of size is to be applied, not to a leaf as a whole, but to each half as divided by the stem, and there must be 85 halves out of each 100 halves having a portion sufficiently fine in texture, of the requisite size, to make at least one wrapper.

5. The test of whether "100 leaves are required to weigh a pound" is applied to the whole leaves.

In Error to the Circuit Court of the United States for the Southern District of New York.

Asst. Atty. Gen. Whitney, for plaintiff in error. Edwin B. Smith, for defendants in

error.

Mr. Justice SHIRAS delivered the opinion of the court.

The defendants in error commenced this action in the superior court of the city of New York on May 6, 1889, against Joel B. Erhardt, collector of the port of New York, to recover the sum of $32,040.60, which amount they alleged had been unlawfully exacted from them by that officer as customs duties on leaf tobacco. The case was removed by certiorari into the circuit court of

the United States for the Southern district of New York, in which court the complaint was filed, and the case proceeded to trial before the court and a jury.

As appears by the bill of exceptions, the defendants in error, partners as Schroeder & Bon, on November 5, 1888, imported from Amsterdam, and entered at the port of New York for warehouse, 429 bales of leaf tobac co, described in the invoice as Sumatra tobacco. The protest filed in this case related to 398 of those bales, but on the trial a recovery was abandoned of duties paid on such bales of the invoice as were withdrawn be fore May 6, 1889, for the reason that those duties had been paid to the predecessor in office of the defendant.

On that day, as the bill of exceptions further shows, the importers withdrew from warehouse 5 bales of the tobacco, upon one of which they paid duty at the rate of 75 cents a pound on 125 pounds of the tobacco in the bale, and 35 cents a pound upon 54 pounds thereof, and upon 4 of which bales they paid a duty of 75 cents a pound. On the following day they withdrew 5 more bales, upon all of which they paid duty at the rate of 75 cents a pound.

The importers, contending that they should have been compelled to pay but 35 cents a pound on all of the 10 bales, asserted that the amount constituting the difference be tween duties at that rate and at the rate of 75 cents a pound had been exacted from them unlawfully by Erhardt, and that amount, with interest, or $708.12, was sought on the trial to be recovered.

The evidence introduced by the importers showed that within 10 days after the liquidation of their warehouse entry they had filed with the collector a protest against his decision, assessment, and liquidation of the duties; that within 30 days from the liquida. tion of the entry they had duly appealed to the secretary of the treasury, and that, that officer having decided against them on appeal, they had within 90 days after his de cision brought suit to recover the duties alleged to have been erroneously exacted.

It appeared from the invoice and the testimony of the examiner of tobacco at the appraisers' stores, called as a witness for the importers, that upon the entry of the tobacco the collector had designated 5 of the 429 bales for examination at the public stores; that subsequently, upon the request of the appraiser, 25 additional bales, and no more, had been sent to the public stores for examination; that of the plantation lots, about 13 in number, of which the invoice was composed, 4 plantation lots, containing respec tively 10, 27, 20, and 10 bales, were represented in the 10 bales in controversy,-2 of these 4 lots being represented by 4 bales from each, and 2 of the 4 lots by 1 bale from each; that among the 30 bales sent to the public stores was 1 bale from each of the said 4 plantation lots; that 1 of the

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