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of July, 1883, the following sections," be- begun on the 28th of February, 1884. It ing 23 sections, one of which is section 2502, was tried on April 6, 1886. The writ of erwith Schedules A to N, "shall constitute ror was sued out August 5, 1886, while the and be a substitute for title 33 of the Re-writ of error in the present case was vised Statutes of the United States," thus brought September 29, 1886. The two abolishing all enactments found in the transcripts of record were filed in this original title 33, in regard to duties on im- court the same day, October 13, 1886; but ports. It is thus seen that, by the act of the Langfeld Case was advanced, on mo1883, no duty is imposed upon silk ribbons tion, and heard February 15, 1888, while by name. Under the Revised Statutes of the present case has stood on the docket 1874 silk ribbons, being charged by name until reached in its regular order. The artiwith a duty of 60 per cent., were not cles in the Langfeld Case were velvet ribcharged with a duty of 50 per cent. as bons made of silk and cotton, in which silk "manufactures of silk, or of which silk is was the material of chief value. The colthe component material of chief value, not lector assessed upon them a duty of 50 per otherwise provided for," because they cent., under that clause of Schedule L of were otherwise provided for; and they section 2502 of title 33 of the Revised could not have been liable to a duty of 30 Statutes, as enacted by the act of March 3, per cent., as "trimmings * used for 1883, (22 St. 510,) before quoted, which ornamenting hats, bonnets, and reads as follows. "All goods, wares, hoods," and not otherwise provided for, and merchandise, not specially enumerbecause they were otherwise provided for, ated or provided for in this act, made of in Schedule H, as silk ribbons, by name, at silk, or of which silk is the component 60 per cent. But, when we come to the act material of chief value, fifty per centum of 1883, silk ribbons are not therein specifi- ad valorem." The plaintiffs in the suit cally named, in Schedule L or elsewhere, claimed, and the jury found under the inand are not dutiable at 50 per cent., as silk structions of the court, that the duty goods not specially enumerated or provid- ought to have been assessed under the ed for in the act of 1883, because in the paragraph in Schedule N of section 2502 of clause in regard to "hats and so forth, the same title, providing for "hats, and materials for," they are specially enumer- so forth, materials for,' above quoted, ated and provided for in that act, as and that the duty should have been only trimmings used for making or ornament-20 per cent. The goods in question there ing hats, bonnets, and hoods, and composed of some other substance or material than the seven substances specially named, and are not otherwise specially enumerated or provided for in that act, and are therefore dutiable at 20 per cent.

The question, however, is not only clear on principle, on a review of the statutory provisions, but it is disposed of by decisions of this court.

were "trimmings," and were used "for making or ornamenting hats, bonnets, and hoods." There was no evidence that they were used exclusively for that purpose. The testimony on the part of the plaintiffs tended to show that they were used chiefly for making or ornamenting hats, bonnets, and hoods, but that they might also be, and sometimes were, used for trimming dresses. The testimony on the part of the defendant tended to show that they were dress trimmings equally with hat trimmings, and were commonly used as much for the one purpose as the other. The circuit court charged the jury that the use to which the articles were chiefly adapted, and for which they were used, determined their character, within the meaning of the statute; and that if the articles were hat trimmings, chiefly used for making and orna. menting hats, the jury should find a verdict for the plaintiffs, the suit having been brought by the importers against the collector, to recover the difference between 20 per cent. and 50 per cent. The defendant had requested the court to charge the jury that if the articles were not specially enumerated or provided for, and silk was their component material of chief value, they were dutiable at 50 per cent., under the clause before quoted, and the verdict should be for the defendant; also that if the jury should find that silk was the component material of chief value in them, and But the question in regard to goods sub- they were not exclusively or specially used stantially identical with those in question for hat trimmings, they were not subject in the present case was presented to this to the 20 per cent. duty; also that if the court and decided by it in the case of jury should find that the articles could Hartranft v. Langfeld, 125 U. S. 128, 8 properly be classified, under the above Sup. Ct. Rep. 732. The goods in that case were imported into Philadelphia, and entered at the custom-house there in September and October, 1883. The suit was

In Arthur v. Zimmerman, 96 U. S. 124, the articles imported were composed of cotton, and were known commercially as "hat braids." The collector imposed duty upon them under that clause of section 6 of the act of June 30, 1864, (13 St. 209,) which provided for a duty of 35 per cent. on "cotton braids, insertings, lace trimmings, or bobbinets, and all other manufactures of cotton." The importers claimed that they were dutiable at only 30 per cent. It appeared that the articles were used exclusively for making and trimming hats and bonnets, and the circuit court and this court held them to be dutiable at only 30 per cent., under that clause of section 8 of the act of July 14, 1862, c. 163, (12 St. 551,) and of Schedule M of section 2504 of the Revised Statutes, (2d Ed. 476,) which imposed that rate of duty on trimmings used for making or ornamenting hats, bonnets, and hoods, and composed of other material than the substances specifically named, and not otherwise provided for.

rules, as liable to 20 per cent. duty, and also as liable to 50 per cent. duty, they were dutiable at the higher rate, and the verdict should be for the defendant; and

also that unless the jury should find that | Rep. 806; Railroad Co. v. Bank, 123 U. S. the articles were not specially provided 727, 733, 8 Sup. Ct. Rep. 266. Judgment for, and were fitted only for use for mak- affirmed. ing or ornamenting hats, their verdict

(132 U. S. 632)

should be for the defendant. The circuit CLAYTON v. PEOPLE OF THE TERRITORY OF court declined to give those instructions, and the defendant excepted.

UTAH ex rel. DICKSON, United States Attorney.1

(January 6, 1890.)

TERRITORIAL OFFICERS-APPOINTMENT-JURISDIC-
TION OF SUPREME COURT.

1. In an action in a territorial court to oust

an officer claiming title under a territorial act, and to compel the surrender of the office to one appointed by the governor, by virtue of the authority conferred by the act of congress creating the territory, where the territorial supreme court bases on the governor by the act of congress, an "authority exercised under the United States" is “drawn March 3, 1885, (23 U. S. St. at Large, 443,) § 2, in question," within the meaning of Act Cong. which provides for appeals and writs of error from the supreme courts of the territories in such cases. It is not necessary under this clause that the decision should be against the "authority" asserted. 2. As the office of auditor of public accounts is not a township, district, or county office, but a general office, for the benefit of the entire territory, so much of the acts of Utah of Jan. 20, 1852, and Feb. 22, 1578, as provide a mode for the appointment of that officer by the territorial legislature, or by election by the people, is inconsistent with act of congress Sept. 9, 1850, authorizing the governor to appoint all officers "not herein otherwise specially provided for, " and making special provision for the ficers, "though section 6 of that act provides "that appointment of "township, district, and county ofthe legislative power of said territory shall extend to all rightful subjects of legislation consistent with the constitution of the United States and the provisions of this act;" and acquiescence of the people, legislature, and officers of the territory in such acts is immaterial.

It appears by the opinion of this court that it was contended here, on the part of the defendant, that the true construction of the statute was not only that the use of the material must be for making or ornamenting hats, bonnets, and hoods, but that the material itself must be in some one of the forms named in the clause regarding "hats, and so forth, materials for." This court, however, held that, un-its decision for plaintiff on the power conferred der the charge of the court as given, the objection was not well taken that the charge would have authorized a recovery if the goods in question were materials used for making or ornamenting hats, although not coming within the enumeration of the articles so specified. This court further said that the circuit court instructed the jury that they must find the goods in question to be "trimmings," chiefly used for making or ornamenting hats, bonnets, and hoods, composed of a material not otherwise specially enumerated or provided for. This court also said that velvet ribbons were not specially mentioned as subject to a duty by that name or description; that they were manifestly trimmings, according to the natural meaning of that word, and because they were used to trim either hats or dresses; and that the real controversy was as to the purpose for which, as" trimmings," they were principally used. As to the request of the defendant to charge the jury that, if they should find that the articles could be classified properly as subject to 20 per cent. duty, and also as sub-eral, for appellees. ject to 50 per cent. duty, they were liable to duty at the higher rate, under the provision of section 2499 of the Revised Statutes, this court said that the principle of that section was not applicable to the case, because the ribbons were found by the jury to be trimmings chiefly used for making or ornamenting hats; that this brought them within the provision of Schedule N, which fixed the duty at 20 per cent.; and that, being thus specially provided for, they were excluded from the operation of all other provisions. On these views, this court affirmed the judgment of the circuit court.

Eppa Hunton, Jeff. Chandler, J. G. Sutherland and J. R. McBride, for appellant. P. L. Williams and The U. S. Attorney Gen

MILLER, J. This is an appeal from the supreme court of the territory of Utah.

The action was commenced in the district court of the third judicial district of Utah territory, county of Salt Lake, by a complaint in the name of the people of the territory of Utah, by William H. Dickson, United States attorney of said territory, against the present appellant, then defendant, Nephi W. Clayton, under the allegation that he had usurped and intruded into the office of auditor of public accounts in and for said territory in the year 1879, and ever since that time had held, and does still Therefore, in addition to the conclusion hold and exercise, the functions of said ofwhich results from considering the his- fice, without authority of law. An additory of the legislation on the points in- tional allegation in the complaint is that volved, we are of opinion that the decis-on the 13th day of March, 1886, and after ion in the case of Hartranft v. Langfeld the final expiration and adjournment of controls this case, and that is was prop- the legislative assembly and council of the er for the circuit court to direct a verdict | territory, Eli H. Murray, governor of said for the plaintiffs. Such practice has been often sanctioned by this court. There was no question of fact for the jury, and the defendant did not ask to go to the jury. Bevans v. U. S., 13 Wall. 56; Walbrun v. Babbitt, 16 Wall. 577; Hendrick v. Lindsay, 93 U. S. 143; Arthur v. Zimmerman, 96 U. S. 124; Arthur v. Morgan, 112 U. S. 495, 5 Sup. Ct. Rep. 241; Anderson Co. v. Beal, 113 U. S. 227, 242, 5 Sup. Ct. Rep. 433; Marshall v. Hubbard, 117 U. S. 419, 6 Sup. Ct.

territory, duly appointed Arthur Pratt to be auditor of public accounts of said territory, and that thereupon said Pratt was qualified by taking the oath of office and the execution of an official bond, with sufficient sureties, as required by law, and, on the 17th of March aforesaid, was commissioned as such officer; and that, after being so appointed and commissioned, and 'Affirming 11 Pac. Rep. 206.

989.

and deliver up to the said Arthur Pratt the said office of territorial auditor, and all the books, papers, keys, safes, furniture, property, moneys, and records belonging or pertaining to the said office, or the business thereof; and that the said plaintiff have and recover of and from said defendant the costs herein, taxed at twenty-two dollars and fifty cents.' On appeal to the supreme court of the territory, taken by Clayton, both these judgments were affirmed. 11 Pac. Rep. 206, 213.

so qualified, the said Pratt, on the day last mentioned, demanded of defendant that he surrender to him the office, and the insignia thereof, which demand was then and there refused by the defendant. The petition also states that on several occasions during the session of the legislative assembly previous to March, 1886, the governor had nominated and presented to said council | the name of a fit person to fill the office of auditor of public accounts, but the council at each of said sessions failed and refused to take any action thereon; and that this The legislature of Utah, by an act apwas done with the full knowledge of said | proved January 20, 1852, created the offices council that the defendant was then unlaw-of treasurer and auditor of public accounts, fully holding the office, and exercising its and defined the duties of each. It declared functions. The defendant answered this that those officers should be elected by the complaint, denying almost every allega- joint vote of both houses of the legislative tion of the petition specifically, or by stat-assembly, and that their term of office ing that he is without knowledge on the should be four years, and until their sucsubject of its averments, and then proceed-cessors were elected and qualified, unless ed to say that on the 1st day of August, in sooner superseded by legislative election. the year 1880, he was a citizen of the United An act of the legislature approved FebruStates, of the age of 21 years, and was eli- ary 22, 1878, declares that the territorial gible to hold office under the laws of Utah | treasurer and auditor of public accounts territory; that at the regular election of shall be elected by qualified voters of the that year, on the 2d day of August, 1880, territory at the general election in August, he was duly elected auditor of public ac- 1878, and biennially thereafter. The case counts for the territory of Utah; and that being tried on complaint and answer, the thereafter, to-wit, in September, 1880, Eli allegation of the defendant, Clayton, that H. Murray, the governor of Utah, issued to he was elected under that law, in 1880, to him, under his hand and the seal of said the office of auditor of public accounts, reterritory, a commission as auditor, which ceived the commission of the governor was also signed by the secretary of the ter- upon that election, was duly qualified, ritory. And he further alleged that since gave bond, and entered upon the duties of said election of 1880 no one had been elect- his office, must be taken as true; also, the ed to fill the office, nor had defendant re-allegation that no other person has since signed, and that he is, by virtue of that elec-been elected to the same place, and that he tion and the commission of the governor, holds over under the act of 1852, is to be acting as auditor of public accounts of said taken as correct. It must also be considterritory. The defendant also demurred ered as established in the case that the govto the complaint, and the case was after-ernor undertook to exercise the power to wards heard upon the demurrer of the de- appoint a suitable man auditor of public fendant upon the pleadings on file, and on accounts, and that he made proper and fit the motion of plaintiff for judgment of ouster against the defendant. In regard to the motion, the court rendered the following judgment: "It is now ordered and adjudged that the said demurrer of the said defendant be, and the same is hereby, overruled and denied; and it is further ordered and adjudged that the answer of the said defendant is insufficient as a defense or justification for his holding and exercising the functions of said office; that the said defendant, Nephi W. Clayton, is guilty of usurping and unlawfully holding and exercising the said office of territorial auditor of Utah territory, and that said defendant be, and he is hereby, excluded from the said office, and from exercising any of the duties pertaining thereto." As to the application of Pratt to be admitted into and hold the office of territorial auditor, it rendered the following judgment: "It is further consid-ple of the territory at a general election, ered, ordered, and adjudged that the said were void, as being in conflict with the Arthur Pratt is the lawfully appointed and seventh section of the organic act of Sepcommissioned auditor of said territory, tember 9, 1850, creating the territory of and is entitled, after taking the oath of Utah. That act is the fundamental law office and executing such official bond as which confers upon the territory, upon its by law required, to use, hold, and exercise legislature, and upon its territorial officers, the said office, and perform the duties there- all the powers which the government of of, and receive the emoluments thereto be- the United States intended they should exlonging, until his successor is duly ap-ercise. 9 St. 453. The seventh section is

nominations to fill that office to the council of the territory at various times, upon which they declined to act; that on the 13th of March, 1886, when such legislative body was not in session, he duly appointed Arthur Pratt to be auditor of public accounts of said territory; that Pratt thereupon qualified by taking the proper oath and executing a sufficient official bond, and was on the 17th of March, aforesaid, commissioned as such officer; that he demanded of the defendant that he surrender to him the said office, which demand was then and there refused. The district court of the third judicial district decided that the act of 1852, which vested the appointment of the auditor of public accounts in the legisla ture by a joint vote of its two branches, and the act of 1878, which transferred the power to fill this office to an election by the peo

pointed and qualified. And it is further in the following language: "That all ordered and adjudged that the said defend- township, district, and county officers not ant, Nephi W. Clayton, do forthwith yield herein otherwise provided for shall be ap

*637

pointed or elected, as the case may be, in | public accounts de jure, and the action of such manner as shall be provided by the the governor in appointing another person governor and legislative assembly of the to the place was valid. It will be observed territory of Utah. The governor shall that this second section of the statute, nominate and, by and with the advice and while it is based upon the general principle consent of the legislative council, appoint which is found in the act of congress allowall officers not herein otherwise provided ing writs of error from this court to the for: and in the first instance the governor highest courts of a state, namely, to proalone may appoint all said officers, who tect parties against the exercise of an unshall hold their offices until the end of the lawful power on the part of the state aufirst session of the legislative assembly, thorities, does not use the language which and shall lay off the necessary districts for is found in that act, that to give this court members of the council and house of repre-jurisdiction the decision of the state court sentatives, and all other offices." This must be against the right or power set up part of the statute is reproduced almost by the party under the laws of the United verbatim in section 1857 of the Revised States. On the contrary, this peculiar featStatutes of the United States, as applica-ure of the appellate jurisdiction of this ble to all the territories.

court over that of the state courts is left 1. The first question presented to us for out when the matter comes to be applied decision concerns the jurisdiction of this to the territories, and it is held sufficient court to entertain the appeal from the su- that there should be drawn "in question preme court of the territory. The law the validity of a treaty or statute of, or which governs that jurisdiction now is the an authority exercised under, the United act of congress of March 3, 1885, (23 St. 443,) States;" and it is not required that the deand is as follows: "Be it enacted by the cision of the state court should be against senate and house of representatives of the the validity of treaty, statute, or authorUnited States of America in congress as-ity so exercised or claimed. We are, theresembled, that no appeal or writ of error fore, very clear that, as the supreme court shall hereafter be allowed from any judg- of the territory of Utah based its decision ment or decree, in any suit at law or in upon the power conferred upon the governequity in the supreme court of the District or, by the seventh section of the organic of Columbia, or in the supreme court of any act of Utah, to make appointments to ofof the territories of the United States, un-fice, this power was drawn in question, less the matter in dispute, exclusive of costs, and gives the defendant, Clayton, a right shall exceed the sum of five thousand dol- to have the judgment of this court upon it. lars. Sec. 2. That the preceding section The motion to dismiss the case for want shall not apply to any case wherein is in- of jurisdiction is therefore overruled. volved the validity of any patent or copy- 2. The next question presented to us is right, or in which is drawn in question the the alleged error of the supreme court of validity of a treaty or statute of, or an au- the territory in holding that this power thority exercised under, the United States; was vested exclusively in the governor and but in all such cases an appeal or writ of council, as regards the office of auditor of error may be brought without regard to public accounts. We are at some loss to see the sum or value in dispute." In regard how there can be any doubt upon this questo the amount in controversy required by tion, if it be admitted that in case of a conthe first section of this act, we are not at all flict between the organic act creating the satisfied that any such value can be ap- territory, of September 9, 1850, (9 St. 453,) plied to the office of auditor of public ac- and any act of the territorial legislature, counts; but we have no difficulty in hold- the act of congress must prevail. That ing that the record before us presents a statute is not at all ambiguous in its diviscase in which there was drawn in question ion of the power of appointment. "All an authority exercised under the United township, district, and county officers, not States, within the meaning of the second herein otherwise provided for, shall be apsection. This authority was that exer-pointed or elected, as the case may be, in cised by the governor in the appointment such manner as shall be provided by the of Arthur Pratt, acting upon the hypothe-governor and legislative assembly of the sis that there was a vacancy in that office territory of Utah." This defines very clearwhich he had a right to fill. If the legis-ly the power of the legislature of Utah in lation of the territory of Utah vesting providing for appointments to office. The this appointment at first in the legislature of the territory, and afterwards in the votes of the people at a popular election, is valid, of course the governor had no right to make such appointment, and the commission issued upon the election of Clayton in 1880 continues him in the office until his successor is appointed. Under the pleadings in the case, as presented to us, it must be held that no successor has been appointed, unless the appointment of Pratt be a valid one. If, therefore, the governor had authority, and was the only person who had authority, under the act organizing the territory of Utah, and under section 1857 of the Revised Statutes, to make this appointment, then Clayton never was legally appointed, never was auditor of

next sentence in the same section declares* that the governor shall nominate and, with the advice and consent of the council, appoint all officers not herein otherwise provided for; that is to say, all officers of the territory who are township officers, district officers, or county officers, shall be appointed in such manner as shall be provided by law, namely, by a statute made by the governor and legislative assembly of the territory, but all other officers, which are not local or confined in their duties to some particular township, district, or county, shall be nominated by the governor, and, by and with the advice and consent of the council, appointed. That this mode of dividing the power of appointing to offices within the territories is one to

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