UNITED STATES ". ONE SORREL STALLION AND ONE ROAN HORSE.

877

<>r assignable. The plaintiff in error, as the assignee of John Shillito & Co., cannot set up or assert the estoppel, if any, which may have existed in favor of said firm. There is another fatal objection to the right of the plaintiff in error to maintain this suit: The claim on which it is founded being one against the United States, which had hot been liquidated and allowed, could not be legally transferred and assigned by John Shillito & Co. to the plaintiff. Said assignment was void under section 3477, Rev. St. U. S. U. S. v. Gillis, 95 U. S. 407; Erwin v. U. S., 97 U. S. 392; Phelps v.MeDemald, 99 U. S. 298; and Goodman v. Niblack, 102 U. S. 556. It follows that plaintiff in error, as assignee, can maintain no suit on said -claim. We find no error in the judgment of the circuit court, and the flame is accordingly affirmed, with costs.

UNITED STATES V. ONE SORREL STALLION AND

OJltlJ!l

ROAN

HoBSll:.

(District Oourt, S. D. Oalifornia. August 29, 1892.)
1..

OUSTOMS'DuTlES-VIOLA.TION Oll' LAWS-FoRll'EITURES.

Rev. St. §§ 8098 8099, providing that every person coming from a foretltfl country adjacent to .the trnited States with dutiable merchandise shall deliver a vedfied manifest of it at the nearest collection office. on pain of forfeiture of SUch merchandise, applies to a horse and stallion borrowed temporarily from a across the Mexican line, the one for herding stock and the other for breeding purposes; the latter not coming within the clause of Act Oct. I, 1890, (SUpp. Rev. lilt. P. 812,) admitting free certain thoroughbred duly-registered horses. In the absence of a petition for the remission of the forfeiture. under Rev. Bt. 5 5292, it was immaterial whether or not a deputy collector told the parties ,that the horses were not subject to duty, since such deputies have no authority to waive the requirements of tbe law, and since Act June 22, 1874, (18 St. at Large, p. 189,) § 16, requiring the court not to impose the forfeiture when there was no intent to defraud, was repealed by the act of June 10, 1890.

SAME-EVIDENCE Oll' INTENT-REMISSION ,Oll' FORFEITURES.

At Law. Libel to enforce a forfeiture under revenue laws. ment of condemnation. J. L.(Jopelund, for claimant. M. T. Allen, U. S. Atty., for the United States,

Judg.

Ross,District Judge. The libel in this case is to enforce the forfeiture ,of two horses, under the provisions of sections 3098, 3099, Rev. St. So far as necessary to be stated, they provide, in effect, that every per. son coming from any foreign territory adjacent to the United States into the United States with merchandise subject to duty shall deliver, immediatelyon his arrival within the United'States, a verified manifest of the merchandise so brought from such foreign territory at the office of .anycollectol' 01' deputy collector which shall be nearest to the boundary line,orhearest to the road or waters by which such merchandise is brought; and it is provided that· if any person bringing such merchan-dise,$bil.ll neglect or refuse to deliver such manifest, or pass byot avoid

'87'8

:lIudi:offit'l8.lth"lIlerehandise subje,cHo d\\ty, and 110 imported, shall be !fodertedto! the, Unitecl States. .' " . ' , '
The act of October 1, 1890, entitled ClAn act to reduce the revenue ,and:equaliZe:,duties on imports,and for. other purposes," (Supp. Rev. St.p. 812,) imposes, with certain excepUQns, a duty on horses imported from foreign countries of $30 per bead: :prQvided, that horses valued at 8150 and over shl1.llpayll duty of 30'per centum advalorern. The aot of October 1, 18UO,(Supp, Rev. St., p. 847,) exempts Jrom duty any ·s,nil,l'lal illlportedspecially for breeding purposes: ':"Provtded. thatlJdsucbanlmal shllilbeadmitted free unle!lspure bred.ofa :!ileognizedbreed, and duly reu-isleret.l in the buok of l'ecoi!Qestllblished for t118t" certificate of, sll!'b rel'OI'lJ and of the pedigree of Buch animal shall be produced a,nd suumitted to the customs officer, duly authenticated by the proper ciJst'odian of sucliboOk of rt'corll, together with the atllllavit of the owner, aA'ent, or importer that sueh an, mal is the idpntical animal llescribeg In Bai,l certificate of record and pedigree. The 8l'Cretary of the trt'lIslIry may prescribe Buch addilional regulatioDs 018 may be required for the strict enforcement of this provisioD."

"SebUon same act from duty" Animals bro,nsht 111 to the talll-porarHy for ,Il period not exep,edsix monlhs, for the purpose a! exhihilloll or cO,llpetitioll for pl'izes ott'ered by any agricultural or hnt.a bondshalJ, given. in act wft,h, rlfg111lltionsprt'Bcribed by the secretary of the treasury;,lIlso, teums of,anltmds.incl utlinlf'their harnl'slIand tackle. the Wllgons or other from forei!tncountries to the ;P'n1ted. theIr ,f'Hlllhes. anll in actual use for the ,purpose of sucb rl:'gllllllionsll8 the,secretllry of tilt! treli.'lllry may preBcribe; lind wild animals illtlollil...<l for eXhiblllon in colltlClions, for anI! ,not for saJe or ptollt."
stipulation respective parties these: ,OneY()rua. a citizen and reHident of the ·fepUl,Jieo('l\Iexico.nnd"one,: of the United Stu"tes, own acljoiuing ranchos; the Iinethnt divides the two theli,nq that , The roan horse in question is the property of Yorua, amI was loaned by him to his neighhor, M<.,oCurthy. to be use,l by his men in Trey were llCC\1stollled to ride: h;:m' 011 hoth sides of the line, and the loan was intended to be but temporary. Yorba was also part o\\'ner, and in posth!3,stnllio,n question, and jnthe spring or of McCarthy, loaned the stal. hjllll,or breeding pm'pose!J, the understanding that he W88 ; returned, tQ \'ory/-, W,lJf3I1' ;the brelJl,lillg season ,Qv:er. The liItal· · to hhl)\vithin the of tJ1el).ct 1 .. ,There wall no attempt at oonboth kept by ,10,10.loans nnt!! in this g, them to th"e. c,usto,ln,,8"; Q.!P9iaI8'. qr, pay,i,ng ;c·prOOfl." . .' 40,ty, fucts and, circumstances ,of 't1)11 case :sPPJV, I.·,thinlc r or wruugl" neither YutlJllo

un

,
UNITED STATES V. OKE SORREL STALLION AND ONE ROAN

HORBE.879

that either horse to duty. both of themte,9tified that the deputy collectdr. of custon1s at San told them· that they were riot Bosubject; l;mtthetestimony of the deputy w!lsto the con. .. trary. . I do not find it necessary to decide this controverted question of fact, for, assuming that. the deputy did so inform them, such· fact, in this proceeding, would be unimportant. "Deputy collectors have no power to waive the requirements of law.": 134,901 Feet of Pine Lumher,4 BIatchf. 138. Revenue laws are necessarily rigid, for the oppartunities and temptations to perpetrate frauds upon them are very great. They inflict forfeitures and penalties for the nonobservanctl of their injunctions, without in general, to the motives of the offender. Conk. severity, however," as said by J\\dge HOFFMAN in U. S. v. Three Trunks, 8 Fed. Rep. 584, "was, from II. \Tery early period in the history of our "government, tempered by enactments which permitted the offending or interested ,party to calise a summary inqui.ry into the facts of the case by the Udistrict judge, by whoin the facts so ascertained were to be reported to the secretary of the treasury; and if, in the opinion of that officer, the penalty or forfeiture had been incurred without willful negor any intention to defraud, he was authorized to grant a remission.': ,And the learnl;}d judge adds: "In permitting a remission after such proof is f\1rnish'ed,the act went as far as justice or reason re<luires, or as is consistent wi,th .the efficient execution of the revenue laws." The same proV'isirin of law is yet in force. 'Rev. St. § 5292. But no step was taken by the owner or parties interested in the property in question to secure the bene-fit ofit. By section 16 of an act approved 22, 1874,(18 Skp... l:8·9,) it was ';, "In all actions, suits, and 'proceedings in any of the United States now ppIi.lling, or hereafter commenced or prosecuted, to enforce. or the forfeiture of any ware!!!, or merchandise, "'* * by reason of .any violation of the provisiollS,·llf the custollls revenue laws, or any of such provisions, in which said actionar proceeding an ii;lsue or issuesof't'act shall haVe been jOl1led, it shall be the duty of the collrt. on the trial thereof, ·suhmlt to the jury, as a separattland distinct propositioo;whether the alleged werlJ with an act,\lal intentiol) to defraud the United States, and to · '. require, upon such proposition, a special finding by such jury; or, if such issue be tried by the court without a jury, it'8ha11 be.. theduty Of the ,court to pass upon and decide such propositiun as a distinct and separate finding of fact;alld in such to defraud MBO found',n\) fine,penalty, or forfeiture shall be.nnPQsed." .. ' ,
If this act was still in'foree, I would not hesitate to dismiss the .libel in thilj case, for I from the evidence that there was in this instance 110 intention upon the part of either Yorba or to the revenue laws or to defraud the United States. Yorba cer·t.ainly: had nothing to gain by doing so, and it would be.unrea,sbQ.able to suppose that he would have loaned the horses to McOarthy if. he had had jl.uy idea that by doing 80.he would have subjected his property to forfeitu!e·.. ,'But section 16. of the act of June 22, 187'4, was sOmetimes ;found to result in afaiIi:lreof jlistice, as in the case of U. S;v. P1J:l'isaima

880

FEDERAL REPORTER,

voL 51.

Statutes, to afford protection,against the rigoroue application of the laws to Cases of accidental and innocent violation of their provisions. The positionthnt the horses in. question cannot be regarded as having been imported into this country because only intended for temporary use here cannot be sustained. Not only would it be a most dangerous precedent to establish that. property brought into the United States from foreign countries for temporary use here, and with the in.,tention ofretuming it tothe9puntry from which it comes, is for that 'reag()D exempt from duty .imposed upon it, but it would be contrary to ,the .manifest intent as evinced by the fact that property brought into this cp,QptrY,froQl foreign countries temporarily foroor.tain purposes, the present case does not come, is expr6$sly,exempted from dutY9therwise imposed upon it. There must be judgment of CQJ.ldE/mnation. and it is so ordered.

.Gmc8pci.on,24 Fed. Rep. 358, and.was repealed by the act of June 10, St. pp. 34, 755.) leaving eection5292 of the, Revised 1890,

..

!.

U'NlTED. STATES ll:!l.

(Otrcuit

rel.

p.

DAVIS 11. KNOX CoUNTY

ee

al.

E. D. June 29.1891.)

NO.

1. RAILROAD

AID

1,188.

. holders of county bonds issued under the charter of the Missouri & Misst.. sillPi Company (Acts Mo. 186f, 'pp. 86,88, § IS) are entitled, after ex· hausting'\heapeciaHax of onetwentteth of 1 per cento, to reSQrt to the general funds of the county. crllated ;by a of not less than one h\llf of 1 per cent.; that ¥ingthe county purpoSljS t!le time the bonds were issued; U. S. v. mark,O()., 96 U.S. 211; U. S. v. Mrwon 00., 99 U. S. 589; and Oounty Oourt v. U. S., S Sup.Ot.-Rep.131,109 U. S.229,...;..followed.
. .

rro.

l'AYQN'l'·

9.BAlIIE.

Acts Mo. 1879. p. ·198. (Rev. St. Mo, 576112,) a tax of one half of 1 per county purposes, Wl!o!lllo, mere substitute for previous laws aucent. for thorizing".s.uch.l!o tax, and not a new t,.x; and therefore a county which issued bonds under thecbarter of 'said railroad company cannot be compelled to levy a tax for their payment, of one half of 1 percent., in addition to the tax authorized by the act of 1879.
S. SAlIIE-GBLIIIA.T10J,q'OJ' CoNTRAOTS. , ,

The fact that, under existing laws! cert!join county expenses for roads and bridges are now payable out of the general lUnd oreatedby the 'tax of one half of 1 per cent., which expenses were not chargeable against such fund when the bonds were issued, does not impair the obligation of the contract evidellood by the bonds.
. . ,

.

"SAllIE-TAXATION.,.

The provision of the Missouri constitution, and of the act of 1879, that the limitation therein imposed upon taxation for county purposes shall not apply to taxes levied to.plloY valid bonded indebtedness. does not authorize counties which issued bonds under the charter of the Missouri & MississiJ;lpi Railroad Company to levy taxes without limit to pay the Hme; tor' such proVlsioll applies only to counties whioh had tBsue4 honds under laws taxation without limit.

.Applicationby the United States. at the relation of Samuel C. Davis, for a writ of mandamus aga.inat Knox county and o,thers, 'to compel the