110
FEDERAL REPORTER,
vol. 47.
issuing the bonds to ascertain, determine, and certify the existence of the facta upon which their power, by the terms of the law, was made to depend; not inclu\ling, of course, that class of cases in which the controversy related, not to conditions precedent, on which the right to act at all depended, but upon conditions affecting only the mode of exercising a power admitted to have come into being. In the present case there was no power at all conferred to issue bonds in excess of an amount equal to ten per cent. upon the assessed valuation of the taxable property in the county."
That is the principle upon which Lake Co. v. Graham was decided. This decision is cited in that opinion. The principle is that, when power is not given to the county to issue the bonds, no recital whatever binds the county. There must pe power to act in the first place; when the power exists, recitals that it is exercised in conformity to the IIlW are conclusive. In this instance, as said in Lake Co. v. Graham, there was no power. ,The power not existing, 01 course the bonds issu!)d are void. The judgment will be for defendant. As counsel for the plaintiff in this suit resides abroad, 90 days will be allowed him to file a bill of exceptions, and bond on writ of error will be in the sum of $500.
In re
PERRY
et al. April 27, 1891.)
(Circuit Court, S. D. New York.
1. 2.
CUSTOMS DUTIES. SAME.
Painted glass windows, specially imported in good faith for the use of a society or institution incorporated or established for religious purposes, and not intended for sale, are free of duliy, under paragraph 677. Painted glass windows held to be "paintings," within the definition of that term in paragraph 677 of the list; and the particular use of the importation, as therein described, constitutes'a more specifio designation thereof than the language used in paragraph.122. . '.', ",. , .
S.
SAME..
At Law·. Appeal from decision of board of United States general appraisers. . Perry & Ryerimported intothe port of New York, per Rugia, Novemstained or painted glass windows Of paintings on .ber 24, 1890, glass wh!ch were specially imported in good faith for the use of the Convent of the Sacred Heart at Philadelphia, and not intended for sale. They were invoiced as "three cases paintings," and were returned by the appraiser as attaining to the rank.of wdrks of art. The conector of customs at the port of New York assessed duty thereoh'at 45 per centuDl ad valorem under the provisions of paragraph 122 of Schedule B of the tariff act ofOctober 1, for that rate of duty upon "all stained or painted window.glassand stained or painted glass windows." The importers duly protested, claiming that the said paintings were entitled to exemption from duty under the provision in the free list of said
IN RE PERRY.
111
act, paragraph 677, for "paintings * * * specially imported in good faith for the use of any society or institution incorporated or established for religious * * * purposes, and not intended for sule." The importers duly appealed from the decision of the collector to the board of United States general appraisers, under the act of June 10, 1890, ent.itled "An act to simplify the laws in relation to the collection of the revenues." The board of United States general appraisers on "March 6, 1891, affirmed the decision of the collector. S. S. 10,902 G. A. 397. The importers thereupon made appljcation under section 15 of the act of June 10, 1890, for a review by the United States circuit court of the questions of law and fact involved in such decision. The appeal was heard upon the return of the board of United States general appraisers, filed in the United States circuit court on "March 28,1891, and upon additional evidence taken before Hon. George H. Sharpe, one of said general appraisers, as provided by law. W. Wickham Smith, for importers. Edward MitcheU, U. S. Atty., and He;nry C. Platt, Asst. U. S. Atty., for collector. LACOMBE; Circuit Judge, (ora.Uy.) The board of appraisers in their decision state that the word "paintings" is no doubt sufficiently comprehensive to embrace paintings on glass as well as on other substances, and add that the practice of the treasury department for a long series of years has been to classiiy paintings on glass of the kind under consideration as "paintings" within.the meaning of the former tariff acts. at least. when they attained to the llignity of works of art. That finding of the board. seems entirely borne o;ut by the decisions of the treasury departmentwhich have been read here, and commends itself to the good sense of everyone. It seems also to have been the meaning which congress attached to the word "paintings," because, in paragraph 757, where it madeprovision.with regard to pictorial paintings on glass, it expressly excepted from that classification "stained or painted window-glass or stained or painted glass windows." Evidently congress understood that, unless it thus excepted "painted window-glass or painted glass window13," the particullir article referred to would fall within the general phraseology, "pictorial paintings on glass." Therefore, when we find the word "paintings" in section 677, it is manifestly the generic word" paintings." There is nothing to limit or qualify,so far as I can see, its broad meaning. That being so, we have, then-Jilir8t, the broad and generic term "paintings," and, 8econdly, as a class or group included under that generic tern'l, the particular variety of painting which is known as "painteq. window-glass or' painted glass windows." Of course, if it were only a question as to "paintings" on the one side, and the particular kind of pain,ting which is known as "painted glass windows" on the other, there could be no doubt that the latter should be held the more specific designation ofthe two. We have, however, in paragraph 677 a provision, not for paintings in general, but for" paintings imported in good faith for the use of any religious eociety, and not intended for sale." I am
112
at a IDss to conceive of any more specific designation than that which is limited by the particular llse of the individual article w11i0h isYhe sub. ject of importation. Under these circumstances, it seems to me that the articles here,-there being no dispute as to the purpose for which they were imported, or as 'to the fact that they were brought here in good can be no doubt, it seems to faith, and are not intended for me, that they fall within paragraph 677, and are free. For that reason I shall reverse the dfOcision of the board of appraisers, and direct the assessment of duty in accordance with the terms of this ion.
UNITED STATES V. EGAN
et 01. July 9, .1891.)
(District Court, D. Minnesota, Third Divf8ion, IN'.l'ERSTATE COMMERCE.,-LJMITBD TICll:ETS,'
Where a railroad company has adveJ'll sed one rate for unli rnitEld first-class tickets between certain points and a leas rate fot' limitlld first-class tickets between such points, it may sell at t1;e latter rate tickets which, though not lilll :ted as to time of use, do not entitle the, holder to the right to stop over at intermediate stat,ions, as is allowed under the unlimited tickets, s'loce the requirement that the ticket shall be used only for a continuous passage renders it a "l;mited ticket.'" j,
At ,Law.
This is an indictment for an alleged violation of certain provisions of the interstate commerce act; in selling tickets at less than the rates scheduled, published, and posted in the proper places,and flIed with the interstatecommerce commission; 'fhe indictment consists of four counts, the second and fourth of wHich are merely formal. The first count, omitting the preliminary averments, is as follows: "That on the said 12th day:ofMarch,A. D. 1890. John M. Egan was general manager of said railway company and Charles H. Holdridge was general agent of ,the passenger departJIlent of said rail,way company. That on said day ,said, Chicago, Saint Paul, and Kansas City liail way COll1pany had f'stablished'a certain rate, fare, and cqarge for the first-class, unliU1ited transpurtacIties of Minneapolis Saint Paul to said tion of passengers from cityo! Chicago, which said rate, ,fare, and charge haq been duly published and wlls;in force on salddajr, and has been ever since. A copy of the schedule showing :said rate. fare, and: charge established as aforesaid had been duly ,filed by said common carrier and railway company with the interstlitecoOl' merce, c01DqJission. created by the act of congress as aforesaid., That said rate, fare, and charge for said trans portatlOll of passengers from said cities of Minneapolis and Si\int Paul to'.suid city of Chicago as aforesaid, as estaplislled by said raIlway company as aforesaid. and duly pUblished, and a copy of said schedule filed with said interstate commission was eleven dollars and fifty cents ($11.50) for each pass.enger for first-class unlimited transportation from each of said cities of Minneapolis and Saint Paul to said city of Chicago as aforesui<l. That ,Eiaid rate, fare, and charge of eleven doJIarsand fifty cents ($11.50) for each passenger wag the legal r!ite, fare, and charge whic.h common carrier and railway company as aforesaid, or any director, officer,' of agent thereof, or any perSoll acting for or employed by said common carrier and rail way company, could J'egally charge. demand, collect, and recei ve from
