Michigan Central Railroad Co. v. Michigan Southern Railroad Co. et al.

that the judgment of the State court only involved the construction of State statutes which both parties in the cause admitted to be valid, the writ of error will be dismissed on motion.

THIS case was brought up from the Supreme Court of the State of Michigan, by a writ of error issued under the twentyfifth section of the judiciary act.

The case is fully stated in the opinion of the court.

Mr. Walker moved to dismiss the writ of error for want of jurisdiction, which motion was sustained by himself in argument, and opposed by Mr. Joy on behalf of the plaintiffs in

error.

Mr. Justice GRIER delivered the opinion of the court.

This case is before us on a motion to dismiss for want of jurisdiction.

It is a bill in chancery originating in the Circuit Court of Wayne county, in the State of Michigan, and afterwards taken by appeal to the Supreme Court of the State.

In order to give this court jurisdiction under the 25th section of the judiciary act, the record of the case must show, by direct averment or necessary intendment, that one of the questions enumerated in that section did arise, and was decided by the State court, as required.

If the subject of complaint be, that a State statute is repugnant to the Constitution of the United States, and therefore void, and that the State court has declared it to be valid, this fact should appear by some direct averment, either on the bill or answer, or in the decree of the court.

After scrutinizing with great care the rather prolix pleadings of this case, we are unable to find any complaint, by the bill or answer, that the Legislature of Michigan have passed any act affecting the rights of either party which "impairs the obligation of a contract;" nor is there an intimation in the decree that any such question arose in the case; nor is there any necessary intendment that such a question did arise, and was necessarily decided, from anything that does appear in the pleadings, evidence, or decree; on the contrary, it shows affirmatively that no such question did or could arise.

This will clearly appear from an examination of the bill and

answer.

The bill alleges, that the complainants were incorporated by an act entitled "An act to authorize the sale of the Central railroad and to incorporate the Michigan Central Railroad Company," approved March 28, 1846; that they purchased the Central railroad, according to the terms of their charter, and

Michigan Central Railroad Co. v. Michigan Southern Railroad Co. et al.

have since that time completed and run said railroad; that, at the time of the act, the State of Michigan owned both the Central and Southern railroads; that the management of the Central road was found onerous and unprofitable; that it was an object to sell the same; that the road was not worth, to exceed $800,000; and that the franchises and exclusive rights secured by the charter alone made it worth the sum they paid, viz: $2,000,000; and that it was for the interest of the State to grant such franchises and exclusive rights, and that the exclusive privileges secured to them by the following provision in section five of their charter were especially valuable to them, and without which they would not have purchased said road:"

"And no railroad or railroads from the eastern or southern boundary of the State shall be built or constructed or maintained, or shall be authorized to be built, constructed, or maintained, by or under any law of this State, any portion of which shall approach, westwardly of Wayne county, within five miles of the line of said railroad, as designated in this act, without the consent of this company.

The bill further alleges, that the State at the same time resolved to sell the Southern railroad, but that said sale was only to take effect on the completion of the sale of the said Central railroad; that it was well understood by the complainants, the State, and the defendants, (the Southern Railroad Company,) that the sale of said Southern railroad was subordinate to the sale of the Central railroad, and that the act incorporating the said Michigan Southern Railroad Company, approved May 9, 1846, was subject to the complainants' charter; and that, by the sixth section of that act of incorporation, it is provided as follows:

"And the said Southern Railroad Company shall also, within three years after the passage of this act, extend, construct, and complete the Tecumseh branch from the village of Tecumseh, by way of Clinton, to the village of Jackson, by way of Manchester, and along the line of railroads formerly authorized to be constructed by the Jacksonburgh and Palmyra Railroad Company, or so far along the same as may not conflict with the provisions of an act entitled 'An act to authorize the sale of the Central railroad, and to incorporate the Michigan Central Railroad Company,' approved March 28, 1846, and put the same in operation, with sufficient motive power to do the business of the country depending on said branch."

The bill further alleges, that the defendants are threatening to construct, and are taking the preliminary steps for constucting, said Tecumseh branch to the village of Jackson, and that ten miles of said branch railroad, if constructed, will be within

Michigan Central Railroad Co. v. Michigan Southern Railroad Co. et al.

five miles of the complainants' railroad; and that said branch, together with the Erie and Kalamazoo railroad from Toledo to Adrian, and the Michigan Southern railroad to Monroe, will, in fact and effect, constitute one railroad, both to the eastern and southern boundary of the State, and therefore will be an invasion of the rights and privileges guarantied to the complainants by that provision of their charter before cited, and beyond the powers granted to said Southern company; and therefore an injunction is prayed for.

The answer of the defendants denies that the provision of the complainants' charter above cited applies to such a road as the Tecumseh branch, but only to parallel roads, or those nearly so; it avers that the Legislature could not grant powers so large and exclusive as those set up by the complainants; and that the Tecumseh branch, if built, would not, in fact or effect, together with the other railroads named, constitute one line of railroads, either to the eastern or southern boundary of the State, and the construction of the same would be no violation of the rights and privileges guarantied to the complainants by their charter, and that by their own charter they are not only authorized, but required, to construct said branch to Jackson.

The gravamen of the bill is, that the defendants are acting without legislative authority, and are usurping rights not granted to them by their charter. It nowhere asserts that they are acting under authority conferred on them by a legislative act which infringes the rights previously granted in the complainants' charter, or impairs the obligation of their contract. The answer puts in issue nothing but the construction of certain statutes which both parties admit to be valid. It is therefore abundantly apparent that this court has no jurisdiction to review the judgment of the Supreme Court of Michigan in this case.

A manuscript opinion of one of the judges of the Supreme Court of Michigan has been referred to by the counsel, in their argument in support of our jurisdiction. But even if this opinion had introduced some speculations on points not involved in the pleadings of the case, this court cannot resort to anything therein contained in order to support their jurisdiction. In the case of the Ocean Insurance Company v. Polleys, we have decided, "that it is to the record, and to the record alone, that this court can resort to ascertain its appellate jurisdiction under the twenty-fifth section of the judiciary act."

The writ of error must therefore be dismissed for want of jurisdiction.

· Ballard et al. v. Thomas.

ALBERT BALLARD, CHARLES CHADBOURNE, ELIPHALET GILMAN, AND HENRY W. HEIRD, TRADING UNDER THE FIRM OF BALLARD, CHADBOURNE, & Co., v. PHILIP F. THOMAS, COL

LECTOR.

In estimating the duty payable at the custom-house upon imported iron, it was proper to levy it on the prices at which the iron was charged in the invoices; and the entry in the invoices, that the importer would be entitled to a deduction for prompt payment, could not affect the amount of duty chargeable.

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Maryland.

The case is stated in the opinion of the court.

It was argued by Mr. Schley for the plaintiffs in error, and by Mr. Cushing (Attorney General) for the defendant.

Mr. Justice NELSON delivered the opinion of the court. This is a writ of error to the Circuit Court of the United States for the district of Maryland.

The suit was brought in the court below by the plaintiffs against the defendant, collector of the port of Baltimore, to recover back an excess of duties paid under protest on an importation of iron.

The iron was shipped from Liverpool, and, on an appraisal at the custom-house in Baltimore, the invoice price was adopted as the minimum market value upon which to assess the duties. The plaintiffs claimed that the iron ought to be appraised at the actual cash market value, or cash wholesale price, instead of the actual market value or wholesale price at a credit of four months, the usual time in the purchase of iron. But the collector insisted upon the invoice price as the minimum valuation. Two invoices are given in the record as specimens of those produced at the trial. One of them contains the price of the iron, with a deduction of two and a half per cent. for prompt payment, which means cash; the other adds at the foot, four months credit, which is the customary credit in the trade.

The court charged the jury, that it being admitted that the duties were levied on the prices at which the iron was charged in the invoices, they were lawfully exacted, and the plaintiffs not entitled to recover; and that the entry in the invoice, that the plaintiffs would be entitled to a deduction for prompt payment, could not affect the amount of duty chargeable.

The eighth section of the act of 1846 (9 U. S. St., p. 43) provides, "that under no circumstances shall the duty be assessed

Ballard et al. v. Thomas.

upon an amount less than the invoice value, any law of Congress to the contrary notwithstanding."

It is claimed that this section has been repealed by the act of Congress of March 3, 1851, (9 St. U. S., p. 629,) which provides that the collector shall "cause the actual market value, or wholesale price thereof at the period of the exportation to the United States, in the principal markets of the country from which the same shall have been imported, &c., to be appraised, &c., and to such value or price shall be added all costs and charges, &c., as the true value at the port where the same may be entered," &c.

Previous to this act, the time when the value of the article in the foreign market was to be ascertained, was the time of the purchase, (Act 30th August, 1842, sec. 16, 5 St. U. S., p. 563;) now, by the act of 1851, the time of exportation. There is no change, however, in the rule which must govern in making the valuation-it is the actual market value or wholesale price in the principal markets of the country from which the article shall have been imported. The only real change, therefore, in respect to this matter, under the law of 1851, from that of 1842 and 1846, would seem to be a change of the time when the valuation is to take place, without intending to interfere with any other of the regulations in the former laws. This was the interpretation given by the Department of the Government having charge of this subject, soon after the passage of the act in question, and, we think, may be sustained upon the principles that this court has uniformly applied in interpreting these revenue laws.

The construction is also borne out by the case of Stairs et al. v. Peaslee, (18 How., 522.) That case recognises the eighth section of the act of 1846 as in force since the act of 1851, and the clause in question is a part of it.

In respect to the deduction from the price on account of prompt payment, we think the fact does not vary or affect the price of the article, as stated in the invoice. It relates simply to the mode of payment, which may, if observed, operate as a satisfaction of the price to be paid by the acceptance of a less sum.

We think the ruling of the court below right, and that the judgment should be affirmed.