(115 U. S. 25)

HADDEN and others, Surviving Partners, v. MERRITT, Collector, etc.

(May 4, 1885.)

CUSTOMS DUTIES--VALUE OF FOREIGN COINS-WHO TO JUDGE FINALLY.

The value of foreign coins, as ascertained by the estimate of the director of the mint, and proclaimed by the secretary of the treasury, is conclusive upon customhouse officers and importers.

In Error to the Circuit Court of the United States for the Southern District of New York.

H. E. Tremain, M. W. Tyler, and W. B. Coughtry, for plaintiff in error. Sol. Gen. Phillips, for defendant in error.

MATTHEWS, J. This was an action brought by plaintiffs in error against the collector of the port of New York to recover an excess of duties, alleged * to have been illegally exacted, and paid under protest. A verdict was returned for the defendant, under instructions to that effect by the court, and judgment rendered accordingly. To this ruling of the court exceptions were duly taken, and it is now assigned for error. The plaintiffs' case was this:

In the year 1879 they imported from China several invoices of merchandise, subject to an ad valorem duty, the value of which was stated in the invoices in Mexican silver dollars, the currency of the country whence the goods were exported. In converting the value of the invoices, as expressed therein, from Mexican silver dollars into the value by which the actual ad valorem duty upon them was to be ascertained, the dutiable value was arrived at in each case by estimating the value of the Mexican dollar in accordance with the value of such coin as estimated by the director of the mint, and proclaimed by the secretary of the treasury on the first day of January of the year during which the importations were made; and the value of the Mexican dollar so ascertained, estimated, and proclaimed was $1.01 5-10, and duties were as sessed upon the importations accordingly.

The plaintiff offered to prove that this valuation of the Mexican dollar, as estimated and proclaimed, was erroneous in this, to-wit, that it was based on the value of the Mexican dollar as compared with the silver dollar of the United States, whereas it ought by law to have been estimated and proclaimed by relation to the value of the gold dollar of the United States, and that this would have diminished the dutiable value of the goods imported, by the difference between from 84 2-10 cents to 86 7-10 cents, and 101 5-10 cents, as the value of the Mexican dollar, varying according to the dates of the several importations, with the commercial difference in value between gold and silver. The evidence offered on this point was rejected, and the ruling of the court in its instruction to the jury to return a verdict for the defendant, was based on the proposition that, in assessing the duties collected on the value of the invoices, reduced from Mexican silver dollars to the money of account of the United States, the collector and importer were concluded by the estimate of the director of the mint, proclaimed by the secretary of the* treasury, and then in force. In opposition to that, it is contended that such estimate is not conclusive in a case where it can be shown that it is based on the value of the foreign silver coin computed in terms of the silver dollar, instead of the gold dollar of the coinage of the United States, in violation, it is argued, of the statutory rule prescribed for making such estimate, which requires that the value of the foreign coin, so estimated, shall be expressed in the money of account of the United States, the standard unit of value of which is assumed to be the gold dollar and not the silver dollar.

Section 2838, Rev. St., requires all invoices of merchandise, subject to a duty ad valorum, to be made out in the currency of the place or country from whence the importation shall be made, and that they shall contain a true statement of the actual cost of such merchandise in such foreign currency or v.58-74

currencies, without any respect to the value of the coins of the United States, or of foreign coins, by law made current within the United States, in such foreign place or country. Section 3564, Rev. St., is as follows: "The value of foreign coin, as expressed in the money of account of the United States, shall be that of the pure metal of such coin of standard value; and the values of the standard coins in circulation of the various nations of the world shall be estimated annually by the director of the mint, and be proclaimed on the first day of January by the secretary of the treasury."

The value of foreign coins, as ascertained by the estimate of the director of the mint and proclaimed by the secretary of the treasury, is conclusive upon custom-house officers and importers. No errors alleged to exist in the estimate, resulting from any cause, can be shown in a judicial proceeding, to affect the rights of the government or individuals. There is no value, and can be none, in such coins, except as thus ascertained; and the duty of ascertaining and declaring their value, cast upon the treasury department, is the per formance of an executive function, requiring skill, and the exercise of judgment and discretion, which precludes judicial inquiry into the correctness of the decision. If any error, in adopting a wrong standard, rule, or mode of computation, or in any other way, is alleged to have been committed, there is but one method of correction. That is to appeal to the department itself. To permit judicial inquiry in any case is to open a matter for repeated decision, which the statute evidently intended should be annually settled by public authority; and there is not, as is assumed in the argument of the plaintiff in error, any such positive and peremptory rule of valuation prescribed in the statute, as serves to limit the discretion of the treasury department in making its published estimate, or would enable a court to correct an alleged mistake or miscalculation. The whole subject is confided by the law exclusively to the jurisdiction of the executive officers charged with the duty; and their action cannot be otherwise questioned.

Such was the principle announced in the case of Cramer v. Arthur, 102 U. S. 612. It was there said, (page 616:) "That valuation, so long as it remained unchanged, was binding on the collector and on importers,-just as binding as if it had been in a permanent statute, like the statute of 1846, for example. Parties cannot be permitted to go behind the proclamation, any more than they would have been permitted to go behind the statute for the purpose of proving, by parol or by financial quotations in gazettes, that its valuations are inaccurate. The government gets at the truth as near as it can, and proclaims it. Importers and collectors must abide by the rule as proclaimed. It would be a constant source of confusion and uncertainty if every importer could on every invoice raise the question of the value of foreign moneys and coins. * * * " Page 619. "If existing regulations are found to be insufficient, if they lead to inaccurate results, the only remedy is to apply to the president, through the treasury department, to change the regulations." There was no error in the ruling of the circuit court, and the judgment is affirmed.

CORPORATIONS-INJUNCTION TO RESTRAIN DIRECTOR OF A CORPORATION FROM VOTING. A president of a mining company, who apprehends that his official rights may be infringed by the enforcing of a rule made in his absence by a majority of the directors, cannot obtain from a court of equity aid to restrain a director from attending a meeting of the directors, and voting for the enforcement of such a rule. Appeal from the Circuit Court of the United States for the District of California.

Whit. M. Grant, for appellant. John N. Rogers and John Johns, for appellee.

*WAITE, C. J. This is a bill in equity filed by a stockholder and director of the Fresno Enterprise Company, a California corporation owning the Enterprise mine, against another stockholder and director, to restrain him "from attending any meeting of the board of directors to enforce" certain resolutions passed at a previous meeting, "which give the vice-president authority to sign checks or certificates of stock," when the complainant, the president of the company, is "not in the city of San Francisco, or which authorize the superintendent to draw drafts on the company when" the complainant is "not at the mine," and also restraining the defendant "from voting on * * * five thousand six hundred and sixty shares of stock, issued to him under the contract of third May, 1881, or any other shares of stock owned by him, at any meeting of the stockholders for electing directors, or amending the bylaws;" and "that on the final hearing" the complainant "be decreed to have a continuing proxy for said five thousand six hundred and sixty shares." The general ground on which the complainant seeks his relief is this: In May, 1881, an association of capitalists, called in the bill a "syndicate," to which both the complainant and defendant belonged, bought 51,000 of the 100,000 shares of the capital stock of the company, and, in the contract under which the syndicate was formed, it was agreed that the complainant was "to control the management of the mine." In the purchase the complainant became the owner of 17,000 shares, and the defendant of 5,660. Other persons divided the remaining 28,340 shares between them. The 49,000 shares note purchased were held by persons outside of the syndicate. At a meeting of stockholders, held a few days after the purchase, for the election of directors, the complainant and the defendant, with one other member of the syndicate, were elected directors, as the representatives of the purchasers, and two others not in the syndicate as representatives of the minority stockholders. The complainant was elected president of the board of directors, and general manager of the mine. The defendant and the directors who were elected in the interest of the minority stockholders seem to have been of opinion that some additional rules for the government of the affairs of the company were necessary, and so, as is alleged, by false representations, the defendant, in December, 1881, induced some of the members of the syndicate to agree to the adoption of the following resolutions by the directors:

"Resolved, that the Bank of California, the treasurer of this company, be, and is hereby, instructed to pay only such checks as are signed by the president or vice-president and countersigned by the secretary.

"Resolved, that all orders for supplies and materials from San Francisco for the company shall be made through the head office in San Francisco, and payment for the same shall be made by checks signed by the president or vicepresident and countersigned by the secretary, at the office in San Francisco. "Resolved, that in the absence of the president from the office of the company in San Francisco, the vice-president, in accordance with the by-laws, be, and is hereby, authorized to sign all certificates of stock that are legally issued by the secretary, as well as all papers requiring the signature of the president, if he were present at the office.

"Resolved, that in the absence of the president from the mine, that the superintendent at the mine be, and is hereby, instructed to draw drafts on the company at San Francisco for all indebtedness accruing at the mine."

These resolutions were adopted by the board on the fourth of January, 1882, at a regular meeting held that day, of which the complainant had knowledge, but which he did not attend. A quorum of directors was present at the meeting, and the defendant voted for the resolutions. It was to restrain the defendant from aiding the directors in the enforcement of these resolutions, and from voting his shares acquired under the syndicate contract, except in accordance with the will of the complainant, that this bill was brought.

We are unable to discover any ground for equitable relief in the case made

1

by the bill. It is undoubtedly true that the defendant was anxious to have the complainant interested in the mine, and was willing to become one of a number of persons, of whom the complainant should be one, to purchase enough of the stock to make the aggregate of their holdings a majority of the entire capital of the company. It is also true that the defendant, and all the other members of the syndicate, yielded to the condition insisted on by the complainant, that "he should have the control of the management of the mine" if the purchase of a majority of the stock was made; but this was necessarily subject to such reasonable rules and regulations as should be adopted in a proper way, either by the stockholders or the directors, for the government of the conduct of the officers of the company. No attempt has been made to remove the complainant from his office of general manager. He still “controls the management of the mine," so far as anything appears in the bill. All that the directors have done by their resolutions, of which complaint is made, is to prohibit the Bank of California, the treasurer of the company, from paying any checks of the company except such as are signed by the president or vicepresident, and countersigned by the secretary; to direct that all orders for supplies and materials from San Francisco should be made through the head office in San Francisco, and paid for in checks signed and countersigned as above; to authorize the vice-president to sign certificates of stock, and all other papers requiring the signature of the president, when the president was away from the office; and authorizing the superintendent at the mine, in the absence of the president, to draw drafts on the company at San Francisco for debts incurred there. We see nothing in this inconsistent with the conAtrol of the mine itself by the complainant "as if he owned it."

* Without, therefore, deciding whether, if the members of the syndicate should undertake to remove the complainant from the control of the management of the mine without just cause, he could have preventive relief in equity, we affirm the decree. Affirmed.

(115 U. S. 69)

THE CHARLES MORGAN and others v. KOUNS and others.

(May 4, 1885.)

1. COLLISION-PRESUMPTION OF FAULT.

So long as the findings in the case show that the signals of approaching boats were understood, and there is no complaint in the pleadings touching the point, there is not to be presumed a misunderstanding by the boats.

2. SAME-PRACTICE AMENDMENTS-DISCRETION OF COURT.

Amendments allowed by admiralty rule No. 24 are to be regulated according to the discretion of the trial court.

3. SAME-EVIDENCE-FINDINGS OF LOCAL BOARD OF INSPECTORS.

The finding of a board of local inspectors, and documents connected therewith, are not admissible "as tending to affect the evidence offered by the libelants to show that" one of the vessels was in her proper position in the river, and had proper watches and lights set at the time of the collision."

4. SAME CONTRADICTORY DECLARATIONS-BASIS TO BE LAID.

The contradictory declarations of a witness, whether oral or in writing, made at another time, cannot be used for the purpose of impeachment until the witness has been examined upon the subject, and his attention particularly directed to the circumstances in such a way as to give him full opportunity for explanation or exculpation, if he desires to make it.

Appeal from the Circuit Court of the United States for the Eastern District of Louisiana.

R. H. Marr and T. D. Lincoln, for appellants. C. B. Singleton and R. H. Browne, for appellees.

WAITE, U. J. This is a suit in admiralty, brought by the owners of the steam-boat Cotton Valley to recover for the loss of their boat, and certain

articles of personal property belonging to Martin H. Kouns alone, in a collision on the Mississippi river with the steam-boat Charles Morgan. In the original libel filed in the district court claim was made only for the value of the boat, and for an itemized account for clothes, jewelry, furniture, etc., of the libelant Kouns. The district court found the Morgan in fault, and referred the cause to a commissioner to take testimony and report the damages. The commissioner reported that the libelants were entitled to recover the value of the boat, and also the value of stores and supplies, $1,376.16, and $500 cash in the safe of the boat, and belonging to her, lost at the time of the collision; he also reported that Martin H. Kouns, one of the libelants, should recover the value of a lady's gold watch, $150; of a gentleman's gold watch, $120; and $75 cash lost. The claimant of the Morgan excepted to the allowances for stores and supplies, and for cash in the boat's safe, on the ground that they had not been sued for. The district court sustained this exception, and gave a decree only for the value of the boat, and the allowances by the commissioner to Kouns. From this decree both parties appealed to the circuit court. When the case got into the circuit court leave was granted the libelants to file a supplemental and amended libel setting up their claim for stores, supplies, and cash, proved before the commissioner in the district court, but rejected by that court because not included in the original libel.

Upon the hearing in the circuit court that court found, among other things, that at the time of the collision the Cotton Valley, bound for Red River, was the ascending boat, and the Charles Morgan, bound for New Orleans, the descending boat; that the collision occurred near Bringier's point, about three miles below Donaldsonville; that both boats were properly officered and manned, and had proper watches and proper lights set. "Third. That prior to the collision the Cotton Valley was in her proper position in the river near the left bank, following up the Bringier point preparatory to rounding the same, while the Charles Morgan was above the point, perhaps in the middle of the river, but heading across an 1 near the point to a wood-yard light in the bend of the river below the point. Fourth. That when the respective boats were in the positions just described, the Cotton Valley blew one whistle as a signal that she would pass the Charles Morgan to the right, which signal the Charles Morgan answered with one whistle, as a signal that the pilot of the Morgan understood, and would also pass to the right. Fifth. Both boats kept on their respective courses, approaching each other, when the pilot of the Morgan sounded three or four short whistles, stopped the Morgan's engines, and soon commenced backing the wheels, but not enough to stop the Morgan's headway, and without in anywise changing her course to starboard or port. Meanwhile the Cotton Valley, rounding the point, at the three or four short whistles given by the Morgan, understanding the signal as a hail, stopped the engines. At this time the boats were within one hundred yards of each other, the Morgan, with her head way and the current, coming straight on without changing her course. The pilot of the Cotton Valley, foreseeing an inevitable collision if he remained still, started the Cotton Valley ahead, sheering to starboard; but this forwarding of the Cotton Valley was too late, for almost immediately the Charles Morgan, head on, struck her on the port side, about twenty-five feet forward of the stern, and at an angle of about sixty degrees, with such force as to cut through her guards into her hull nearly to the keelson, and cause her to sink in about ten minutes. Sixth. That the Charles Morgan and her officers were in fault, as the proper position of the boat was nearer the middle of the river, and as her officers disregarded the passing signal given and answered, and made no effort to change the boat's course to the starboard, by which the boats would have been so separated that a collision would have been avoided. Seventh. That the Cotton Valley was not in fault, as she was in her proper place as the ascending boat, and as she gave the proper signal for passing. The failure of the pilot to understand the signal of three or four