((lircuit Court, D.> California. . March W, 18S4,)
bUSTOMB DUTIES-GRAIN BAGS-':RE-ENT,RY FREE OF DUTy-POWERS OF BEORE(: TARY,
.'rhecW'toms a.nd revenue laws provide that" grainba.gll, the manufacture of the when exporteQ, :filled A.merican products, may be returned to the United8tate,s free of du.ty, such rules and regulations. as shall he prescribed by the secret ary' of the treasury." Grain bags manufactured '. in this imported ma,terials were exported of ,Oalifornia wheat. The received according to law, out .of the public treas. ury, the 'drawback due him on account of the duty formerly collected upon the n'll\teria18' of which the bags were made. Upon the retlltnof the grain bags, heJ,d. that they were entitled to paBs free of duty. :rhe of the secratan to prescribe rules and regulations does not authorize him to impose a duty, not . 'provided for by congress, in repayment of the draWback. '
At Law. ; Pageet Eells and Milton Andro8, for plaintiffs. ·8. G. Hilborn, U. S. Atty., and Ward .iUcAllister, ABSt. U. S. Atty., for-defendant; SAwm:a, J. This is ·ttsuit tot-Mover of defendant the sum of $180, collected as duties on 11,850 grain bags, which collection of duties is claimed to be unlawful. The grain bags had been manufructured by Detrick & Co., manufacturers of bags, at San Francisco, out of mll.· terial of .foreign production, upon which the importers had paid the proper duties. The bags were stamped, "Detrick-Drawback Right Reserved," and sold to grain producers of the state of These· bagshaving beenpul'chased by the grain growers, and filled with wheat produced in California, were, with their contents, after. wards sold to plaintiffs, in the ordinary course of business in the grain market, who shipped the wheat in the bags, as so purchased of the prodncers; to Liverpool, England, where the whelit was sold, and emptied from the bags, and the bags were afterwards brought bac.k to, San Francisco, whence they had been shipped by plaintiffs, the ownership of the bags remaining in the .plaintiffs from the time of their purohase,filled with California wheat, till·their return to San Francisco empty. Upon their leaving San Francisco, filled with wheat, Detrick & Co. claimed the drawback of duties paid on the material used in themanufactnreof the bags, and the drawback was paid to them"in assumed pursuance of the provisions of section 3019 of the Revised Statutes oftha United States, and the regulations of the secretary of the treasury forc'arrying those provisions into effect. On the return of the bags' the plaintiffs chtimed, upon various grounds, that they we;reentitletlto bring the bags to San Francisco and receive them free of duty. The collector took the ground that the drawback having been paid :on exportation, in pursuance of section 3019, and the, regulations of the secretary of the treasury, duties must be paid; and plaintiffs were compelled to pay the duties claimed in order
to obtain the bags. The action of the collector, in collecting the duties, was affirmed by thesecretaty:of the treasury, and this action is brought to recover. the duties so collected. .. Section 9 of the act of congress of February 8, 1875, "To amend existing customs and internaL revenue laws, and for 'otherpurposeB," mantifaetureofthe (Sup'p; Rev. St. 130,) provides that "grain bti:gs, United States, when exported, w.ith American products, m(jy be returned to the United States/ree of duty, under such rules and regul.ations as shall be prescribed by the secretary of the treasury." There is no exception to these provisions. The bags, whatever may be said of the material, were "the manufacture .of the United States," and they were exportedjilled with American products, and being such were entitled under this act to "be return(ld to the. United Statef'i free of duty." It does not appear to me that this explici.t is open to construction. The only exception is that they shall be. returned "under such rules and regulations /,LS shall be. prescribed by the secretary of the treasury." The authority of the secretary only extends to the modus operandi-the course to be pursued ill ing and returning the "grain bags;" and that power does" not extend to an imposition of a duty in the face of the provision of the statute that they "may be returned · · · free of duty."The statute in no sense authorizes the imposition of a duty, of the rules and regulations to be prescribed by him. The omission to provide for a repayment of the drawback in such cases may be an oversight on the part of congress. But whether so or not, to require by regulation the collection· of the regular duties upon bags manufactured in the United States, because the bags, when exported, paid a "drawback" for duties on the material of which they were factured, is to ingraft an exception on thtl provisions of the act, authorizing the bags which were "exported filled with American pro;. ducts," "to be returned · · · free of duty," which congress either did not see fit or omitted to adopt. The secretary of the treasury was not authorized to make any such exception. Morrill v. Jones. 106 U. S. 466; S. C. 1 Sup. Ct. Rep. 423; Merritt v. Welsh,. 104 U. S. 702; Balfour v. Su.llivan, 8 Sawy. 648; S. C. 17 FED. REP. 23l. Under the provision of the act cited the bags in question were entitled to re-enter the United States "free of duty," and the duties on that ground were illegally demanded and collected. None of the other provisions of the statute cited affect this ground relied on for a recovery, and they therefore need not be discussed. There must be a judgment for plaintiffs for the amount of duties unlawfully collected, .and it is so ordered.
CITY OF SAORAMENTO.
(Oircuit Oourt, D. Oalifornia. February 18, 1884./
MUNICIPAL BONDS-SACRAMENTO CITy-No ACTION MAINTAINABLE.
The legislature of California in 1858 enacted th3t thereafter no action should be brought against the city of Sacramento bl. its creditors; that the city should issue its bonds for the purpose of funding Its debt, and should levy an annual tax of 1 per cent., of which a specified portion should be set aside for the payment of the bonds. Those who held claims against the city surrendered their evidences of indebtedness, and took the bonds instead. Held, that no action would lie upon the bonds, but that the remr'dy of the bondholders was by man. damu8 against the proper officers to compel them to carry out the terms of the statute. The creditors, by accepting the honds, contracted that the city should not be liable to be sued. In 1863 the legislature revised the act of 1858, re-enacted its provisions with regard to the payment of the bonds, except that the terms of the re-enacted clause, sanctioning a tax of 1 per cent., was permissive instead of mandatory. But, held, that the provision was still compulsory, since words in a statute permitting officers to discharge a public duty are to be construed as mandatory. If the act were of any other construction it would impair the obligation of contracts. The constitution of the state provided that all corporations should be subject to be sued like natural persons. Held, that (even supposing the clause to apply to municipal corporations) the bondholders had by thcir contract divested themselves of their constitutional right.
OF CONSTITUTIONAL RIGHT.
STATUTE PERMITTING PlllRFORMANOE OF A DUTY CONSTRUED AS 1I'IANDATORY.
8. W ArVER
At Law. J. W. Winans, for plaintiff. J. H. McKune, A. P. Catlin, and W. A. Anderson, for defendant. SAWYER, J., ,orally.) This is an aotion brought to recover $9,000 due on ooupons of the Saoramento city bonds. It is an ordinary aotion upon the instruments, not a mandamus against the offioers of the city, but an action against the city of Sacramento to reoover on these coupons as upon a oontract. Under the charter of Sacramento, of 1851, a large amount of indebtedness had aocrued, for which bonds were issued. In 1858 the city and oounty of Sacramento were oonsolidated into a municipal oorporation, like the city and county of San Francisoo; the boundaries of the oity and oounty being oo-extensive with the former boundaries of the county. In that aot consoli. dating the oity and county, provision was made for funding the then existing debt of the city and of the oounty of Saoramento, and provision was made iIn the act for the purpose of liquidating, funding, and paying the olaims against the oityand oountyof Sacramento hereinafter speoified. "The treasurer shall cause to be prepared suitable bonds for the oounty of Saoramento, not exoeeding the sum of six hundred thousand dollars, and for the oity of Saoramento not exoeeding one million six hundred thousand dollars, bearing interest at the rate of six per cent. per annum, from the first day of January, 18!l9." St. 1858, p. 280, § 37. Then it provides I for raising a fund for the payment of the interest, and ultimate extinguishment, of that