[206] [No. 112.] of the decree rendered against him severally. of errors, so that there was a valuable consid-IN ERROR to the Circuit Court of the United eration to sustain the contract whereby a less The offer on the part of the plaintiffs in error States for the District of Massachusetts. The case appears in the opinion. Mr. G. A. Jenks, Solicitor-Gen., for plaintiff in error. Mr. Charles Levi Woodbury, for defendants in error. Mr. Chief Justice Waite delivered the opinion of the court: " The single question in this case is as to the duty payable in the latter part of 1878 and the early part of 1879 on webbing made of India rubber, wool and cotton," and known as "wool elastic webbing," as distinguished from "union elastic webbing," made of rubber, silk and cotton, and "cotton elastic webbing,' made of rubber and cotton. It is used for gores and gussets in the manufacture of Congress boots, and without the rubber would not be adapted to that use. In its manufacture it is not wrought by hand or braided by machinery, but is woven in a loom. In the court below, three clauses of section 2504 of the Revised Statutes were brought under consideration, to wit: [261] First. Schedule L, "Wool and woolen goods" (Revised Statutes, page 475): "Webbings, beltings, bindings, braids, galloons, fringes, gimps, cords, cords and tassels, dress trimmings, head nets, buttons, or barrel buttons or buttons of other forms for tassels or ornaments, wrought by hand or braided by maThe technical difficulty, that there can be no chinery, made of wool, worsted, or mohair, or satisfaction and discharge of a judgment or de- of which wool, worsted, or mohair is a compocree, except by matter of record (Mitchell v. nent material: 50 cents per pound, and in adHawley, 4 Denio, 414, 47 Am. Dec. 260), can-dition thereto, 50 per cent ad valorem." not be interposed. At common law actual payment of a debt of record could not be pleaded in bar of an action for the recovery of the debt. This has been changed by statute both in England and in this country, and no reason can be assigned why an accord and satisfaction should not have the same effect. In the pres- Third. Schedule L, "Wool and woolen ent case the action is not on the decree, but on goods" (Revised Statutes, page 475): "Woolen the appeal bond, and for the recovery of dam-cloths, woolen shawls, and all manufactures of ages arising from the breach, as to which mat- wool of every description, made wholly or in ters in pais, such as payment or accord and part of wool, not herein otherwise provided [262] satisfaction, were always a good plea. for: 50 cents per pound, and, in addition thereJudgment affirmed. to, 35 per cent ad valorem. True copy. Test: James H. McKenney, Clerk Sup. Court, U. 8. Second. Schedule M, "Sundries" (Revised Statutes, page 477): "India rubber, articles composed of.-Braces, suspenders, webbing or other fabrics, composed wholly or in part of India rubber, not otherwise provided for, 35 per cent ad valorem." " the solicitor-general, in his argument for the In the Tariff Act of August 30, 1842, chap. 270, 5, subdivision tenth, 5 Stat. at L. 555, was this provision: "On India rubber oil-cloth, webbing, shoes, braces, or suspenders or other fabrics or manufactured articles composed wholly or in part of India rubber, 30 per centum ad valorem." In the Act of July 5, 1846, chap. 74, § 11, schedule C. 9 Stat. at. L. 44, this was the language: "Braces, suspenders, webbing, or other fabrics composed wholly or in part of India rubber, not otherwise provided for." The same provision was made in the Act of March 2, 1861, chap. 68, § 22, 12 Stat. at L. 191, and in the Act of July 14, 1862, chap. 163, § 13, 12 Stat. at L.566, which increased the duties on these articles 5 per centum ad valorem. In the last of these Acts, section 8, p. 552, was the following provision: "On manufactures of India rubber and silk, or of India rubber and silk and other materials, fifty per centum ad valorem." These provisions of the Acts of 1861 and 1862 were re-enacted in substantially the same language as part of the Revised Statutes. That in relation to manufactures of India rubber and silk, and India rubber and silk and other materials, is found in section 2504, immediately preceding the second of the clauses above referred to. In 1873, while the Acts of 1861 and 1862 were in force, and before the enactment of the Revised Statutes, Davies & Co.imported into New [263] York "suspenders or braces manufactured of rubber, cotton and silk," and the Collector exacted a duty of 50 per centum ad valorem as upon a manufacture of India rubber and silk and other materials; but this court held in Arthur v. Davies, 96 U. S. 135 [24: 810], that they were only dutiable at the rate of 35 per centum ad valorem, as suspenders or braces composed wholly or in part of India rubber, and that they were not "otherwise provided for," as manufactures of India rubber and silk and other materials, because for thirty years before the importation in that case, and in four different statutes, braces and suspenders, composed wholly or in part of India rubber, had been a subject of duty eo nomine." During the same year Faxon, Elms & Co. imported into Boston from Liverpool webbing which was a manufacture of India rubber, silk and cotton, known as "Union Gussett," "Union Web," or "Union Elastic Web," and used in the manufacture of the gores or gussets of Congress boots. In this case, also, the Collector exacted a duty of 50 per centum ad valorem, under section 8 of the Act of 1862, as on manufactures of India rubber, and silk and other materials; but this court held at its October Term, 1878, in Furon v. Russell, not reported, on the authority of Arthur v. Davies, that the goods were only dutiable as webbing composed wholly or in part of India rubber. These cases, with which we are entirely satis- True copy. Test; (See S. C. Reporter's ed. 354-363.) Mandamus to compel tax to pay judgment on Under the Act of the General Assembly of Ken- Mr. Justice Harlan delivered the opinion of the court: Merriwether, the plaintiff in error, obtained a judgment in the court below against the County of Muhlenburg, in the State of Kentucky, for the amount of certain unpaid coupons of bonds, issued by it in payment of a subscription to the capital stock of the Elizabethtown and Paducah Railroad Company. Execution having been returned "no property found to satisfy the same or any part thereof," and the county court of the county having refused to levy a tax sufficient to pay the judgment, Merriwether filed the petition in this case against the Judge of that court, praying for a mandamus compelling the levy and collection of such tax. The plaintiff bases his right to relief upon the ninth section of an Act of the General Assembly of Kentucky, approved February 24, 1868, amending the charter of the Elizabethtown and Paducah Railroad Company. That section provides: [354] "That in case any county, city, town, or election district shall subscribe to the capital stock of said Elizabethtown and Paducah Railroad Company, under the provisions of this Act, and issue bonds for the payment of such subscription, it shall be the duty of the county court of such county, the city council of such city, and the trustees of such town, to cause to be levied and collected a tax sufficient to pay the semi-annual interest on the bonds issued and the cost of collecting such tax, and paying the interest, on all the real estate and personal [355] property in said county, city, or town, subject to taxation under the revenue laws of the State, including the amounts owned by residents of such county, city, or town, or election districts, which ought to be given in under the equaliza James H. McKenny, Clerk, Sup. Court, U. 8. tion laws." Sess. Acts 1867-8, p. 622. peace of the county shall sit with the presiding This proceeding having been instituted against the Judge of the county court alone, a demurrer to the petition, on the ground of defect of parties, raised the objection that, within the meaning of the foregoing statute, the justices of the peace of the county must be a part of the court when making a levy for the purpose asked by the plaintiff. The court below, The same provisions substantially are to be being of opinion that the point was well taken, found in the General Statutes of the State, which sustained the demurrer. An amended petition went into effect in 1873. Gen. Stat. Ky. 269, was filed stating, among other facts, that there chap. 27; Id. 304, chap. 28, arts. 15, 16, 17. were no justices of the peace of the county; It is clear that the levying and collection of a that the justices elected from time to time, and tax to meet a county subscription to the stock of [357. who had qualified, resigned their positions in a railroad company, is not a business connected order that there might be no officers in exist with the laying of the county levy, or with apence who could, under the theory of the defend-propriations of money out of such levy. But ant, levy the required tax. A demurrer to the it is insisted that it is a matter relating to the amended petition having been sustained, and "fiscal affairs" of the county, and is "financial the plaintiff having elected not to amend fur- business of the county," the control or managether, the action was dismissed. ment of which belongs, under the law, to the county court, composed of the presiding judge and the justices of the peace. On the other hand, the plaintiff in error contends, this case is taken out of the operation of the general statute by the fact that the special statute, under which the county made the subscription and issued the bonds in question, imposes upon the county court, held by the presiding judge, the absolute duty of levying the necessary tax. The only question necessary to be considered is whether the justices of the peace of Muhlenburg County constitute a necessary part of the county court when levying a tax to pay plaint iff's judgment. Upon this point there seems to be a settled course of decision in the highest court of Ken. tucky; and upon such a subject as the organization or composition of a tribunal established by the fundamental law of the State, those decisions are, at least, entitled to great weight. Burgess v. Seligman, 107 U. S. 20, 34 [27: 359, 365]; Claiborne Co. v. Brooks, 111 U. S. 400, 410 [28: 470, 474]; Norton v. Shelby County, 118 U. S. 425 [ante, 178]. The Constitution of Kentucky, adopted in 1850, provided for the organization of a county court in each county, to consist of a presiding judge and two associate judges, any two of the three to constitute a quorum; with power in the General Assembly to abolish the office of associate judges whenever it was deemed expe[356] dient, "In which event they may associate with said court any or all of the justices of the peace" elected in the several districts into which the county is divided. Const. art. IV. It is also declared in the same instrument that "The General Assembly may provide, by law, that the justices of the peace in each county shall sit at the court of claims and assist in laying The first case in the Court of Appeals of Kenthe county levy and making appropriations.' tucky upon this question is Bowling Green & Id. § 37. The words "court of claims" are Madisonville R. R. Co. v. Warren County, 10 here employed to designate the county court Bush, 711, decided in 1875. That was a prowhen it sits for the purpose, among others, of ceeding to compel the county court to execute ascertaining the claims against, and the ex- and deliver bonds in payment of a subscription penses incurred by, the county, and of provid: to the stock of the railroad company-a subing for their payment by appropriations out of scription sustained by a majority of the legal the county levy; such levy being the annual voters at an election held under the order of tax imposed for county purposes, not upon the county court, composed of the presiding property, but upon persons residing in the judge alone. The defense was that the county county, without reference to the value of their court held by that officer, the justices being property. 1 Rev. Stat. Ky. 296, chap. 26. The absent, was without authority to call the eleccounty court is also described as "the county tion there in question. The court speaking by court of levy and disbursements" when refer- Pryor, J., after observing that, as a general ence is made to its duty "to erect and keep a rule, when reference is made to a county court, sufficient county jail.” Id. 329, chap. 27, art.or the action of a county court, it is understood 21, § 7. as a court presided over by the county judge alone, said: The Revised Statutes provide that the county courts shall have jurisdiction to lay and superintend the collection and disbursement of the county levy; to erect, superintend, and repair all needful county buildings and structures; and "To superintend and control the fiscal affairs and property of the county, and to make provision for the maintenance of the poor." Id. 827, chap. 27, art. XIX. They also provide that "The office of associate judge of the county court is abolished," and that "a county court shall be held in each county at the seat of justice thereof by a presiding judge of the court, on the days prescribed by law," except that "at the court of claims the justices of the "A county court, held by the county judge or by the judge in conjunction with the justices, has no power to impose such taxation as this on the people of the county, or to submit the question of taxation to the popular vote, without some special legislative enactment; and in and (358) the absence of any such original jurisdiction belonging to either mode of organization, it remains to be determined whether the legislative intent, to be gathered from the provisions of appellant's charter, and particularly the sixteenth section, was to empower the county judge alone to exercise this right, or to require that the justices of the county should be associated [359] with him. If the direction of the Legislature | agement of the general financial interests of In this case the Legislature seems to have departed from the usual course of legislation with reference to such charters, and instead of exercising its own judgment as to the interests of the people in this particular locality, or of permitting them primarily to do so, required that the county court, preliminary to a vote on the question by the people, should first, in its discretion, determine the propriety of such legislative action. This action on the part of the county court was certainly not judicial. The appellant had no right or claim on the people to make the subscription, or upon the county court to order the vote. The company was empowered by this Act to make a request only of the county court, that it might in its discretion accede to or refuse. *** It was a matter of vital importance to the people of the County of Warren, as well as the other counties to whom such a proposition might have been made by appellant, that they should fully understand the nature of the burden they were about as suming; and the Legislature in its wisdom saw proper to give them the benefit of the judgment of those who represented the various localities and interests in each county, in order that they might determine whether the benefits to be derived from the construction of this railway would be an equivalent for the large expenditure to be made." So the mandamus was refused, upon the ground that the special statute intended that the question of submitting & subscription to the vote of the electors should be determined, in the first instance, by the county court, composed of the judge and justices. The same point again arose in the Court of Appeals of Kentucky in Logan County v. Caldwell, 1880, and in Cook v. Lyon County, 1884. Neither of these cases is reported in the printed volume of decisions, but a copy of the opinion in each has been submitted to us. The case of Logan County v. Caldwell involved the validity of a subscription to the capital stock of the Owensville and Russellville R. R. Co., and of the bonds issued in payment thereof-the subscription having been voted at a popular election called by the county court held by the judge alone. The court, speaking by Chief Justice Cofer, reaffirmed the rule announced in Bowling Green & Madisonville R. R. Co. v. Warren County, observing that it proceeded upon the idea that, as the justices of the peace are by law part of the county court in laying the levy, in making appropriations of money, and generally when the financial interests of the county are involved, it ought to be presumed, when a discretion is given by law to the county court in respect to a matter relating to the financial affairs of the county, that the Legislature intended by the phrase, "county court," that tribunal to which it had committed the man the county. Adhering to this rule, the court sustained the subscription and bonds of Logan County upon the ground that an Act, amendatory of the charter of the company, and which was in force when the election was held, imperatively required the county court to make the subscription and issue the bonds, in accordance with the vote of the majority; and hence, as held in the former case, it was "immaterial whether a court composed of the justices or held by the presiding judge alone made the order, as either must obey.' In Cook v. Lyon County the question was as to the validity of certain bonds and coupons issued in conformity with a popular vote at an election called by the county court, held by the presiding judge alone, upon the question of a subscription to the stock of the Elizabethtown and Paducah Railroad Company, under the very Act now before us. The court said: "It is urged that the bonds and coupons are not valid, because the county judge, in ordering the election to take the vote as to whether the county should subscribe stock to said road, and in making the subscription and issuing the bonds therefor, acted alone and without associating the justices of the county with him. The Act in question provides that all this shall be done by the county court,' and contains no language from which it can be even inferred that the Legislature intended that it should be done by the county levy or fiscal court of the county; and, although there is some reason in the claim that when the term 'county court' is used as to fiscal matters it refers to the fiscal court, yet, as a general rule, when reference is made to a county court, or the action of a county court, it means a court presided over by the county judge alone, and should be held to so mean when used in connection with fiscal matters if it relates to mere ministerial duties. Moreover, in this instance the direction of the Legislature to the county court to do these ministerial acts was imperative; and it is, therefore, immaterial whether it was done by the county judge alone or by him and the justices, even admitting (as we do not) that a bona fide holder of the bonds can be affected by such matters.' Taking these decisions as the basis upon which to rest our judgment in this case, it only remains to inquire whether the provisions of the Act of February 24, 1868, are mandatory in their character, or only invested the county court with a discretion in respect to the material matters involved in the subscription by Muhlenburg County. When the railroad company requests the county court of any county, through or adjacent to which it is proposed to construct the road, to subscribe, either absolutely or conditionally, a specified amount to its stock, the Act provides that "the county court shall forthwith order an election to be held," etc. The sections authorizing subscriptions by precincts, cities or towns are equally imperative. Secs. 5 and 6. When a county *** subscribes under the provisions of the Act, “it shall be the duty of the county court *** to issue the bonds of such county," etc., to be signed by the "county judge and countersigned by the clerk." Sec. 7. In case of a subscription by an election district in any county, "it shall be the duty of the county court of such county to issue the [360] [361] bonds of such district or districts in payment which the attention of the court below does not The counsel for the defendant in error refer It is sufficient to say that, as that provision, It would be difficult, we think, to frame an Act more mandatory in its character than that of February 24, 1868. None of its provisions leave room for the exercise of discretion by the county court, in respect to any matter upon which it is required to act. The learned court below announced that, except for the fourth section of this Act, it would decide-following the decisions in Bowling Green & Madisonville R. Co. and Logan County v. Caldwell-that the county court" in the company's charter meant a court held by the presiding judge alone. That section provides: "4. That the person acting as sheriff at the several precincts shall return to the clerk of the county court within (three) days after the day of such election the [362] poll books of their respective precincts, and on the next day thereafter the county judge and county clerk shall count the vote; and if it shall appear that the majority of those voting voted in favor of the subscription of stock as pro- ALANSON W. BEARD, Collector of Cus posed, the county judge shall order the vote to We are unable to concur in the suggestion election, or in issuing the bends, or in levying taxes to pay the bonds and the interest thereon. James H. McKenney, Clerk, Sup. Court, U. 8. BARTHOLD SCHLESINGER ET AL., Co- toms. SAME v. UNITED STATES. (See S. C. Reporter's ed. 264-268.) Duties-"wrought scrap iron"-punchings and reference to whether it is new or old; and all waste dutiable as 46 [Nos. 129, 130.] IS ERROR to the Circuit Court of the United States for the District of Massachusetts. The history and facts of the case appear in Messrs. William S. Hall and L. S. Dab ney, for plaintiffs in error. [363) [264] |