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tion of cases in this court, and to relieve it defendant did not ask that the question of from the oppressive burden of general litiga- jurisdiction be certified to this court by the tion; but the rights of review by appeal or circuit court, but carried the whole case to writ of error, and of invoking the super the circuit court of appeals, and that court visory jurisdiction of this tribunal, were certified to us the questions involving the ju. sought to be amply secured, and should not risdiction, which were accordingly answered. be circumscribed by too narrow a construc Giving the act a reasonable construction, tion.

taken as a whole, we conclude: (1) If the If, in the case at bar, the question of juris- jurisdiction of the circuit court is in issue, diction had been raised by the United States and decided in favor of the defendant, as in the circuit court, and the jurisdiction sus that disposes of the case, the plaintiff should tained, and the decision on the merits bad have the question certified, and take his ap then been rendered against the government, peal or writ of error directly to this court. would the United States have been compelled (2) If the question of jurisdiction is in issue, to waive their contention on the merits, and and the jurisdiction sustained, and then have the question of jurisdiction certified to judgment or decree is rendered in favor of the this court, or would they have waived the defendant on the merits, the plaintiff, who question of jurisdiction by taking the case to has maintained the jurisdiction, must appeal the circuit court of appeals? We do not to the circuit court of*appeals, where, if the think the act involves such a dilemma, but, question of jurisdiction arises, the circuit on the contrary, are of opinion that the gov court of appeals may certify it. (3) If the ernment would have had the right to carry question of jurisdiction is in issue, and the the cause to the court of appeals, which could jurisdiction sustained, and judgment on the have then certified the question of jurisdic merits is rendered in favor of the plaintit, tion to this court for determination. then the defendant can elect either to have course, the power to certify assumes the pow the question certified and come directly to er to decide; but, if decided there, by cer this court, or to carry the whole case to the tiorari, when necessary, the same review circuit court of appeals, and the question of could be obtained here as on certificate for jurisdiction can be certified by that court. Instruction; and, although the question of ju- (4) If, in the case last supposed, the plaintiff risdiction was not put in issue in the circuit | has ground of complaint in respect of the court, still, as the objection in the circuit judgment he bas recovered, he may also court of appeals went to jurisdiction over the carry the case to the circuit court of appeals subject-matter, no omission in that regard op the merits, and this he may do by way of could*supply absolute want of power, and the cross appeal or writ of error, if the defendcircuit court of appeals was bound to take ant has taken the case there, or independent. notice of the question.

ly, if the defendant has carried the case to It is conceded that the United States as this court on the question of jurisdiction signed errors on the merits as well as the er alone; and in this instance the circuit court ror under consideration; and as the ques- of appeals will suspend a decision upon the tion of jurisdiction lay at the threshold, merits until the question of jurisdiction has and the intent of the act of March 3, 1891, been determined. (5) The same observations was that that question should be determined are applicable where a plaintiff objects to by this court, the circuit court of appeals the jurisdiction, and is, or both parties are, properly suspended any consideration of the dissatisfied with the judgment on the merits. Rise upon the merits until that question Glaspell's Case illustrates this situation, could be determined upon certificate. This though arising under somewhat different cir. was in accordance with the early case of Mc cumstances. Glaspell brought an action in Lish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118, the district court of Stutsman county, in the in which it was held that the writ of error then territory of Dakota, against the Northor appeal could be taken only after final ern Pacific Railroad Company, and recorjudgment, except in the cases specified in ered a verdict of $12,545.43. After the state section 7 of the act; and Mr. Justice Lamar, of North Dakota was admitted into the delivering the opinion, said: "When that Union, including Stutsman county, the dejudgment is rendered, the party against fendant petitioned for the removal of the whom it is rendered must elect whether he case into the circuit court of the United will take his writ of error or appeal to the States for the district of North Dakota, and supreme court upon the question of jurisdic. it was removed accordingly. Glaspell moved tion alone, or to the circuit court of appeals to remand, which motion was denied. The upon the whole case. If the latter, then the circuit court then granted a new trial, and circuit court of appeals may, if it deem prop the case was retried in that court, Glaspell iner, certify the question of jurisdiction to this sisting throughout upon his objection to the court." The same course was pursued in jurisdiction, and resulted in a verdict for New Orleans v. Benjamin, 153 U. S. 411, 14 the plaintiff of $1,120, upon which judgment Sup. Ct. 905. The case was one in which was entered with costs. From that judg. the question of jurisdiction was raised in the ment, Glaspell prosecuted a writ of error on circuit court, the jurisdiction maintained, the 16th day of June, 1891, from this court, and judgment rendered on the merits. The upon the question of jurisdiction. While

his writ of error was pending, July 30, 1891, The decision in U. S. v. Klingenberg, 153 the defendant, upon alleging errors occur U. S. 93, 14 Sup. Ct. 790, covers the case, and ring upon the trial*on the merits, sued out requires the question certified to be ana writ of error from the circuit court of swered in the affirmative; and it is so orappeals for the Eighth circuit; and Glaspell dered. filed in that court a motion to dismiss the writ of error, on the ground that the court

(155 U. S. 156) was without jurisdiction, for the reason that the action was pending on the writ of error

PITTSBURGH, C. & ST. L. RY. CO. et al.

V. KEOKUK & H. BRIDGE CO. from this court, which was duly issued and served before the writ from the circuit court

(November 19, 1894.) of appeals was allowed. But the motion to

No. 633. dismiss was overruled, and the cause con

RAILROAD COMPANY-CONTRACT WITH BRIDGE tinued, awaiting our decision upon the ques

COMPANY-RELEASE.

The I. C. R. Co, and three other railroad tion of jurisdiction. Railroad Co. v. Glas

companies executed a contract with a bridge pell, 4 U. S. App. 238, 1 C. C. A. 327, 49 Fed. company by which such railroad companies 482.

were granted the right to use in perpetuity a This court subsequently held that the cir

certain bridge, and agreed to pay certain

monthly tolls; and, if such tolls fell below a cuit court for the district of North Dakota

certain sum, each agreed to pay one-fourth of had no jurisdiction, and reversed the judg. the deficiency. The I. C. R. Co. executed the ment, and remanded the case, with direc

contract at the request of the P. R. Co. and tions to remand it to the state court.

the Pa. R. Co., which agreed to assume all Glas

the lia hilities of such contract, “the same as if pell v. Railroad Co., 144 U. S. 211, 12 Sup. it had been specifically named and made a Ct. 593.

part of the ninth article of a" lease by the I. In Carey V. Railroad Co., 150 U. S. 170,

C. R. Co. of its road to the P. R. Co. for 99

years, dated 3 days after the bridge contract. 14 Sup. Ct. 63, it appeared that two appeals | By such ninth article the lessee agreed to ashad been prayed from the decree by the los sume and carry out certain existing contracts ing party, one to this court and one to the

for transportation over roads of other compa

nies, and the Pa._R. Co. guarantied performcircuit court of appeals for the Fifth circuit,

ance by the P. R. Co. Held, that the conwhich appeals had been severally allowed tracts between the bridge company and the and duly perfected; but as we held, for rea

P. and Pa. R. Cos. were so independent of sons therein given, that we had no juris

such lease that the contracts were not affected,

nor such companies released from liability andiction, the circumstance became unimpor der them, by a termination of the lease by tant

eviction or otherwise. In Railroad Co. V. Amato, 144 U. S. 465, On a Certificate from the United States Cir12 Sup. Ct. 740, a suit was brought in the cuit Court of Appeals for the Seventh Circuit. supreme court of New York against a rail This was a bill in equity, filed in the circuit road corporation created by an act of con court of the United States for the Northern gress, to recover damages for personal inju district of Illinois by the Keokuk & Hamilton ries sustained by the plaintiff from the Bridge Company (hereinafter called the negligence of the defendant, and was re "Bridge Company") against the Pittsburgh, moved by the defendant into the circuit Cincinnati & St. Louis Railway Company court of the United States, where a trial was (hereinafter called the “Pittsburgh Compahad, which resulted in a verdict and judg- | ny”) and the Pennsylvania Railroad Compament for the plaintiff. The defendant took ny, to recover deficiencies in tolls for the use a writ of error from the circuit court of ap of the plaintiff's bridge since March 1, 1883. peals for the Second circuit, which affirmed under a contract, dated January 19, 1869, and the judgment. On a writ of error taken by * modified June 6, 1871, by the Bridge Comthe defendant from this court to the circuit pany with the Columbus, Chicago & Indiana court of appeals, a motion was made by the Central Railway Company (hereinafter called plaintiff to dismiss or affirm; and it was the Indiana Central Company) and three othruled, among other things, that as it did not er railroad corporations, by which the Bridge appear by the record that on the trial in Company agreed to build and maintain a the circuit court the defendant made any railway bridge across the Mississippi river, objection to the jurisdiction of that court, and granted to these four railroad companies and the petition for removal recognized the in perpetuity the right to use it for the pasjurisdiction, the plaintiff could not be* beard sage of their trains; and they agreed to pay to assert, as a ground for the motion to dis monthly certain tolls, and, if those should miss, that the defendant might have taken fall below a certain sum, each to pay one a writ of error from this court to the circuit fourth of the deficiency. court, under section 5 of the said act of 1891, This contract was executed by the Indiana and had, by failing to do so, waived this Central Company upon the requests in writright.

ing of the presidents of the Pittsburgh ComWe are of opinion that the circuit court pany and of the Pennsylvania Company, by of appeals was in the proper exercise of which these two companies agreed to "asjurisdiction in certifying the question which sume all the liabilities and obligations, and it did, and that our jurisdiction to answer it be entitled to all the benetits, of said bridge is properly invoked.

contract, the same as if it had been specifical

"117

ly named and made a part of the ninth ar. of the bridge contract, brought a bill in ticle of" a lease of the Indiana Central Com- equity to foreclose that mortgage, and were pany to and with the Pittsburgh Company thereupon appointed receivers, and, pursuant and the Pennsylvania Company, dated Janu to decrees of foreclosure, there were convey. ary 22, 1869.

ed by the Indiana Central Company to the By that lease, the Indiana Central Compa- receivers, and by them on January 10, 1883, ny leased its railroad to the Pittsburgh Com sold and conveyed to three individuals, as pany for 99 years; the Pittsburgh Company trustees, for a smaller sum than the debt covenanted to pay a certain proportion of the secured by the mortgage, its road, rights, and earnings of that road to the Indiana Central franchises, with the right to affirm or disCompany, and, by the ninth article, to as aflirm the lease aforesaid, and the purchassume and carry out, receiving and enjoying ers, on February 21, 1893, notified the Pittsthe benefits thereof, certain existing con burgh Company that they disaffirmed the cracts for transportation over railroads of lease; and further averred “that, in accord. other companies not mentioned above; and ance with said decrees, possession of said the Pennsylvania Company guarantied the railway property, rights, and franchises has performance of the covenants of the Pitts been* surrendered to the said purchasers, burgh Company.

and that it has been wholly ousted and evictThe bridge aforesaid, with the railroads of ed from all and singular the premises, rights, the Pennsylvania Company, the Pittsburgh and franchises leased to it as aforesaid, and Company, the Indiana Central Company, and it relies upon the cancellation of said lease other railroad companies named in the bridge and the ouster and eviction, as aforesaid, contract, formed a continuous line of railroad as a full and perfect answer to the relief transportation from Philadelphia to Des sought in the bill.” Moines.

To those answers a general replication was The provisions of the bridge contract and filed, and the case was referred to a master, of the lease, and the circumstances attending who reported that there was due from the and following their execution, are more fully Pittsburgh and Pennsylvania Companies to set forth in the case between the same par the Bridge Company, as one-fourth part of ties in 131 U. S. 371, 9 Sup. Ct. 770; but the the deficiency in the receipts of the Bridge above abstract is sufficient for the purposes Company from September 1, 1874, to March of the present case.

1, 1883, the sum of $118,076.89; and that the In June, 1871, immediately after the modifi- road, rights, and franchises of the Indiana sation of the bridge contract, the bridge was Central Company had been sold and conveyaccepted by the Bridge Company and was ed, as alleged in the supplemental answer of opened for use, and thenceforward was used the Pittsburgh Company, to trustees, and by by the Pittsburgh and Pennsylvania Compa them on March 17, 1883, to the Chicago, St. nies in the exercise of the control asserted by Louis & Pittsburgh Railroad Company, them under the contract and lease aforesaid, The circuit court confirmed the master's reThe Bridge Company demanded payment di- | port, and entered a decree for the Bridge rectly from the Pittsburgh Company, semi Company for the sum found due; and, on annually, of the sums payable by the Indiana appeals by the Pittsburgh Company and the Central Company for tolls and deficiencies | Pennsylvania Company, that decree was af. under the modified bridge contract; and from firmed by this court. 131 U. S. 371, 9 Sup. June, 1871, to September, 1874, the Pitts Ct. 770. burgh Company paid to the Bridge Company The present bill was filed September 12, the amount both of such tolls and of such de 1889, and set forth the proceedings and de ficiencies. After that time, like payments cree in the former suit. In an amended an. were demanded by the Bridge Company of swer to this bill, the Pittsburgh Compauy the Pittsburgh Company, and the tolls, only, and the Pennsylvania Company set up that paid.

the interlocutory decrees in the suit for foreOn July 23, 1881, the Bridge Company filed closure, appointing the receivers and directa bill in equity against the Pittsburgh Com ing a conveyance to them, were subject to pany and the Pennsylvania Company to re the qualification that until further order of cover deficiencies in tolls for the use of the the court the receivers should not disturb bridge from September 1, 1874.

the possession of the Pittsburgh Company; To that bill the defendants answered that and that no order was made that they the Indiana Central Company, the Pittsburgh should disturb its possession, until and unCompany, and the Pennsylvania Company less by the decrees of sale; but that, on the never authorized their officers to execute the contrary, the Pittsburgh Company remained bridge contract, or to bind them by it, and in undisturbed possession of the railroad that the contract was beyond the scope of property of the Indiana Central Company their corporate powers.

until March 17, 1883, when it was wholly disThe Pittsburgh Company also, by way of possessed of the same and evicted therefrom, supplemental answer, set up that in 1875 the and from all rights under the lease, by the trustees named in a mortgage made by the Chicago, St. Louis & Pittsburgh Railroad Indiana Central Company of its railroad, Company, to which the same had been con. rights, and franchises, before the execution veyed by the purchasers under the decree

•100

of foreclosure, “by virtue of which eviction and deficiencies which by the terms of that the said Pittsburgh Company and the Penn contract were chargeable to the Indiana Cen. sylvania Company lost and ceased to have tral Company; that the bridge contract was any right, title, or interest to, or any claiin a separate and distinct agreement from the or demand upon, said railway premises, lease (to which the Bridge Company was not property, and franchises, in or under said a party) between the Indiana Central Comlease or amended lease, and became relieved pany and the Pittsburgh and Pennsylvania thereby from all obligations, duties, and lia Companies; and that the validity and effect bilities imposed by the ninth clause of said of the bridge contract did not depend upon lease, and by the said requests, or either of the validity or invalidity of the lease, or them, and by the said original bridge con upon the question whether these two compatract, or any amendment or modification nies, by reason of eviction, were no longer thereof." To this answer the plaintiff filed a liable upon the lease. general replication.

In that case, this court, after discussing The circuit court entered a decree for the the terms of the lease, of the bridge conplaintiff, and the defendants appealed to the tract, and of the agreement contained in circuit court of appeals for the Seventh cir the request of the Pittsburgh and Pennsylcuit, which certified to this court, under the vania Companies to the Indiana Central act of March 3, 1891, C. 517, § 6, that at the Company to execute that contract, said: hearing "there arose upon the pleadings in “The reference in that request and agreethe cause certain propositious of law, con ment to the ninth article of the lease was cerning which the instruction of the supreme for the purpose of defining the extent of court of the United States is desired. And the liabilities and benefits assumed, and because this court is in doubt whether, in perhaps of Indicating that the Pittsburgh view of the decision of the supreme court Company alone was bound as principal, of the United States in the cause between and the Pennsylvania Company as guarthe parties hereto, referred to in the plead antor only; but it did not make the bridge ings, and reported in 131 U. S. 371, 9 Sup. Ct. contract a part of the lease." 770, it is at liberty to consider or sustain the "The sole ground of our decision is that eviction pleaded in this case as a valid de. the bridge contract is ind lent of the fense to the claim of the appellee, and lease, and is valid and binding as between whether the contracts with the Bridge Com. the parties to this suit, whether the lease pany could be avoided by any transaction is valid or invalid. This being so, the ques. with respect to the lease, it is therefore or tion argued at the bar, whether the appeldered that the pleadings in this case, to wit, lants, by reason of eviction, are no lorger the bill, the amended answer, and the repli liable on the lease, becomes immaterial." cation, be certified to the supreme court of 131 U. $. 387, 390, 9 Sup. Ct. 770. the United States for its opinion and instruc The reason and principle of that decision, tion upon the following questions:

so far as concerns*the present inquiry, were (1) Is this court at liberty, in view of the that, while the ninth article of the lease decision and decree in the former case be might be referred to for the purpose of detween these parties, referred to in the plead fining the extent, or measure, and perhaps ings, to consider or sustain the defense of the nature or character, of the liabilities eviction pleaded in this case?

and benefits which the Pittsburgh and Penn"(2) Are the contracts between the Bridge sylvania Companies assumed by reason of Company and the appellants so independent the terms of the bridge contract, and of the of the lease that they would not be affected, agreement contained in their request for its nor the defendant railway companies re execution, yet the bridge contract was not leased from liability thereunder, by termina made part of the lease, nor was the whole tion of the lease by eviction or otherwise?" lease made part of the bridge contract, or

of the agreement expressed in the request, George Hoadly, for Pittsburgh, C. & St. L

nor did the liability of the Pittsburgh and Ry. Co., and others. Edwin Walker, Ly.

Pennsylvania Companies to the Bridge Comman Trumbull, and Perry Trumbull, for

pany upon the bridge contract, for defiKeokuk & H. Bridge Co.

ciencies in tolls upon the bridge, depend

upon the question whether the lease of the * Mr. Justice GRAY, after stating the case, road of the Indiana Central Company to delivered the opinion of the court.

the Pittsburgh Company was valid or inIn the former case between these parties, valid, or upon the question whether that reported 131 U. S. 371, 9 Sup. Ct. 770, it was lease remained in full force between the decided that the Pittsburgh and Pennsylva- | parties to it, or had been terminated by nia Companies were the real, though not the eviction of the lessee or otherwise. formal, parties to the bridge contract execut The same reason and principle are no ed by the Indiana Central Company at their less applicable to the eviction as now plead. request and for their benefit; that this con ed than to the eviction as pleaded in the tract was within the scope of their corporate former suit. powers, and made them directly liable to the Consequently, the second question certified Bridge Company for the proportion of tolls by the circuit court of appeals must by

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—CLA881

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 be may direct examination of a less number, is not mandatory, so that though, without any special direction, a less number than one out of ter 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 appraiser 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. I'ndes tariff act 1883, schedule F, par. 246, declaring the duty on leaf tobacco of which 8.5 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 bands 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 ball as divided by the stein, and there must be 85 halves out of each 100 halses 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.

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, 1838, 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 liqui. dation 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 repre sented 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 tbe

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

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