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city to repudiate its contract, would be both unjust and inequitable. The contract of sale of 1904 may not be lawfully rescinded now, because it is impossible to place the parties in the same situations in which they stood when the city accepted the offer.
The conclusion is that the stipulation that the price of the waterworks, based upon their productive worth, shall be determined by appraisers chosen by the parties presents no valid objections to the enforcement of the specific performance of this contract by a court of equity, because this stipulation is not a condition nor the essence of the agreement, but a subsidiary and incidental part of it, because the contract has been partly performed, the city has received substantial benefits from it, and the parties cannot be placed in statu quo, and because a failure to enforce it might, and probably would, result in a gross injustice by permitting the city to take advantage of its own wrong-of its refusal to select appraisers, as it agreed.
The repeated remark of counsel for the city that the basis of the price-the productive worth of the waterworks is not their reasonable or their fair value, that it is susceptible of misrepresentation by false accounts and fraudulent practices, and that for this reason an enforcement of the contract would be unjust, has not escaped attention. But the parties to this contract were of the opinion that the productive worth of the property indicated its fair value and a fair price for it, for they agreed that this should be its price. This conclusion commends itself to our judgment, and we concur in it. No more equitable or rational basis for the appraisal of the value of the property has occurred to us. The apprehension of falsity in the account is without basis to support it. There is no allegation or indication that the complainant has not kept just and true accounts, nor that it will fail to faithfully disclose the income and the expenses of the property. The presumption is that its accounts are correct and true, and that it will faithfully discharge its duty. When the contrary appears, ample time will remain to consider its effect. No injustice can therefore result from an enforcement of the sale at the price stipulated in the agreement.
Finally, counsel object to the maintenance of this suit upon the ground that the complainant has an adequate remedy at law. But the adequate remedy at law which will deprive a court of equity of jurisdiction must be as certain, complete, prompt, and efficient to attain the ends of justice as the remedy in equity. Boyce's Ex'rs v. Grundy, 3 Pet. 210, 215, 7 L. Ed. 655; Williams v. Neely, 134 Fed. 1, 67 C. C. A. 171, 180, 69 L. R. A. 232. An action at law for damages for the refusal of the city to appoint appraisers, or an action at law for the price of the works, necessarily involves an accounting of the income and expenses of the property-an accounting which a court of equity with its deliberate methods, its power to select men of training and experience in work of this nature, its authority to consider and to modify their reports after exceptions and hearings, is alone competent to fairly take and justly determine. No remedy at law which necessitates the submission of such questions to a jury is either adequate or as efficient to attain the ends of justice as this remedy in equi
ty. Gunn v. Brinkley Car Works, etc., Co., 66 Fed. 382, 384, 13 C. C. A. 529, 531; Fechteler v. Palm Bros. & Co., 133 Fed. 462, 465, 66 C. C. A. 336; Hayden v. Thompson, 71 Fed. 60, 63, 17 C. C. A. 592, 595. The water company cannot deliver the waterworks to the city, and bring an action at law for their price because the municipality refuses to accept them. The company cannot tender the works and then abandon them and bring its action at law, because these works supply the city and its citizens with water, and the public interest, the danger of fire, the domestic necessities of the people of the city forbid the cessation of their operation. Barton v. Barbour, 104 U. S. 126, 134, 26 L. Ed. 672; Joy v. St. Louis, 138 U. S. 1, 47, 11 Sup. Ct. 243, 34 L. Ed. 843. A court of equity alone possesses powers sufficiently elastic and comprehensive to continue the operation of the works, if the interest of the public demands it, to fairly take the accounting which conditions their productive worth, and to render a decree that the property be conveyed, and that the price be paid at such time and on such terms as will best conserve and enforce the rights of all the parties in interest. It alone has plenary power to enforce this contract, and the water company has no remedy at law as complete and efficient as the remedy in equity. It has no remedy at law that will secure it adequate relief. The demurrer should be overruled, the defendant should be permitted to answer, and, unless a defense not yet suggested is presented, the court below should appoint a master to ascertain, under its direction and subject to its approval, the productive worth of the works, and should enforce the performance of the contract of sale. The decree below is accordingly reversed, and the case is remanded to the court below for further proceedings not inconsistent with the views expressed in this opinion.
UNITED STATES v. HYAMS.
(Circuit Court of Appeals, First Circuit. May 24, 1906.)
1. UNITED STATES CLAIMS-TUCKER ACT-FINDINGS AND DECISION.
It was sufficient in this case for the court to refuse the government's requests for findings and rulings in gross.
The United States objected that the claim was invalid because not reverified after an error in computation, discovered by a deputy collector, had been corrected as required by the regulations, such objection involved in this case a finding of fact, and therefore not reviewable.
4. COURTS-JURISDICTION-CLAIMS AGAINST UNITED STATES.
Tucker Act (Act Cong. March 3, 1887, c. 359, 24 Stat. 505 [U. S. Comp. St. 1901, pp. 752, 753]) § 1, declares that the court of claims shall have jurisdiction over all claims against the United States founded on the Constitution of the United States or any law of Congress except for pensions, Held, that the circuit court had jurisdiction of a claim, involving the requisite amount, for a tobacco tax rebate granted by Act Cong. April 12, 1902, c. 500, § 4, 32 Stat. 97 [U. S. Comp. St. Supp. 1905, p. 445], though it involved no contractual liability.
5. INTERNAL REVENUE-TOBACCO REBATE-RECOVERY-CONDITION PRECEDENT—
Act Cong. April 12, 1902, c. 500, § 4, 32 Stat. 97 [U. S. Comp. St. Supp. 1905, p. 445], provides that on all original and unbroken factory packages of smoking and manufactured tobacco and snuff held by manufacturers or dealers on July 1, 1902, on which a higher tax has been paid than that provided by the preceding section of the act, there shall be allowed a drawback or rebate equal to the full amount of the difference between the tax paid and the tax imposed by the act, etc. The section also requires that the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, adopt such rules and regulations as may be necessary to carry the act into effect. Held, that a provision in such rules and regulations which made it an absolute prerequisite to the recovery of the rebate that the proofs offered the executive officers should be satisfactory to them, is invalid as applied to this case.
In Error to the Circuit Court of the United States for the District of Massachusetts.
For opinion below, see 139 Fed. 997.
William H. Garland, Asst. U. S. Atty. (Asa P. French, U. S. Atty., on the brief).
Wilfred Bolster (Charles W. Bartlett, on the brief), for defendant in error.
Before COLT, PUTNAM, and LOWELL, Circuit Judges.
PUTNAM, Circuit Judge. This case arose under the fourth section of the act of April 12, 1902, c. 500, 32 Stat. 97 [U. S. Comp. St. Supp. 1905, p. 445], as follows:
"Sec. 4. That on all original and unbroken factory packages of smoking and manufactured tobacco and snuff held by manufacturers or dealers on July first, nineteen hundred and two, upon which there has been paid a higher tax than that provided for in the preceding section of this act, there shall be allowed a drawback or rebate equal to the full amount of the difference between such higher tax and the tax imposed by this act, after making the proper allowance for discounts and rebates heretofore authorized, but the same shall not apply in any case where the claim has not been presented within sixty days after July first, nineteen hundred and two; and no claim shall be allowed or drawback paid for a less amount than ten dollars. It shall be the duty of the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, to adopt such rules and regulations and to prescribe and furnish such blanks and forms as may be necessary to carry this section into effect."
In accordance with the closing sentence of the section quoted, the Commissioner of Internal Revenue, with the approval of the Secretary
of the Treasury, adopted certain rules and regulations pertaining thereto, one of which required that the proof entitling a petitioner to a drawback or rebate should be satisfactory to the Commissioner, and the other that the claim, after it was signed and sworn to, should be forwarded to the Collector, or Division Deputy Collector, of Internal Revenue for the proper district. Under the interpretation which we place on the statute, though the provision that the proof should be satisfactory to the Commissioner in order to entitle the petitioner to recover may be valid for regulating the personal conduct of his own office, it is invalid for the purposes now claimed by the United States. Of course, under the statute, the claim must be presented to the Commissioner, and the petition alleges that the same was done. The record shows that the claim was filed with the Collector of Internal Revenue for the District of Massachusetts, which undoubtedly, under the regulation which we have cited, can be and must be accepted as in legal effect a presentation of it to the Commissioner.
The proceeding in the Circuit Court was in accordance with what is known as the Tucker act, approved on March 3, 1887, c. 359, 24 Stat. 505 [U. S. Comp. St. 1901, p. 752]. The learned judge of that court filed two papers, one entitled a decree for the petitioner, and the other entitled the opinion of the court, each on the same day. The seventh section of the Tucker act reads as follows:
"Sec. 7. That it shall be the duty of the court to cause a written opinion to be filed in the cause, setting forth the specific findings by the court of the facts therein, and the conclusions of the court upon all questions of law involved in the case, and to render judgment thereon." 24 Stat. 506 [U. S. Comp. St. 1901, p. 755].
The United States apparently claim that certain formalities are required with reference to the specific findings of fact and the conclusions on questions of law called for by the statute; but such a position is not in harmony with the spirit of the law, and in United States v. Swift (C. C. A.) 139 Fed. 225, 226, we held in effect that it is sufficient if the record presents understandingly the questions of law involved. In that case the record consisted largely of an agreed statement of facts, with an opinion of the learned judge of the Circuit Court elaborating and adding thereto. It was in no respect any more formal than the present record. Having in view the explanation we have made in reference to the manner of presenting the claim to the Commissioner, what was filed by the learned judge of the Circuit Court entitled a decree for the petitioner sets out sufficient findings of fact to sustain his conclusions. It appears that, at the hearing in the Circuit Court, the United States presented certain requests for findings and rulings, meaning, of course, by this findings of fact and rulings of law. As to all those the learned judge observed in his opinion, which under the Tucker act may be a part of the record, that it was sufficient to say that the requests should be regarded as refused. This, of course, covered the requests for findings of fact, and was a holding in lump that the proofs sustained none of the propositions of the United States in reference thereto. This was as effectual as though the learned judge had taken each request for a
finding of fact, and denied the same seriatim. The result meets all the requirements of United States v. Swift, and the record clearly and fully presents all the questions of law which could arise. Nothing more can be required.
The requests of the United States for findings of fact were filed, but they were not brought up; neither has any formal suggestion of diminution of the record been made. Neither, however, is of any consequence in view of the consideration that the proofs taken in the Circuit Court are not before us. We could not, therefore, revise the findings of fact against the United States made by the Circuit Court, even if the law, on any state of the record, would permit us so to do. Consequently, the omission from the record which we have named is wholly unimportant, and the entire case is before us, so far as, under the statutes and rules of law, one of this character can ever be presented on appeal.
Only a few propositions arise. One is disposed of by the observation that it relates entirely to a question of fact. The United States maintain that after the original claim had been signed and sworn to by the claimant, it was delivered to a deputy collector, who called attention to an error in certain columns of figures which were thereupon changed without the claim being again signed and sworn to, and that this was in violation of the regulations. This, however, involves so much a matter of finding of fact that it cannot be revised by us. The United States also claim that it does not clearly appear here that the amount was sufficient under the second section of the Tucker act, that is to say, in excess of $1,000, to give the Circuit Court jurisdiction under that act as distinguished from the District Court; but the findings of the Circuit Court necessarily dispose of this proposition. The United States also claim that there is no contractual obligation here on their part, and, therefore, that there exists no jurisdiction to maintain this suit. Reliance is placed on the expression found in Schillinger v. United States, 155 U. S. 163, 167, 15 Sup. Ct. 85, 39 L. Ed. 108, which case was brought under the Tucker act, where it was said that "some element of contractual liability must lie at the foundation of any action." Like observations may be found in Harley v. United States, 198 U. S. 229, 234, 25 Sup. Ct. 634, 49 L. Ed. 1029, and in some other opinions; but the clear language and settled construction of the first section of the Tucker act are so positive that all such expressions must be held to be limited by the subject matter of the various cases in which they are used. In none of them was the demand based on any statute. On the other hand, in Dooley v. United States, 182 U. S. 222, 224, 21 Sup. Ct. 762, 45 L. Ed. 1074, the precise language of the first section so far as it relates to this topic is given; and the opinion of the court analyzes it, and expressly reiterates as one ground of jurisdiction claims founded on laws of Congress. Campbell v. United States, 107 U. S. 407, 2 Sup. Ct. 759, 27 L. Ed. 592, which we will hereafter refer to again, would be sufficient to make it clear that the Supreme Court has not in any way derogated from that portion of