*272 and judgment of that court. No written | violative of, the rule of state and Federal opinion was filed by the court of appeals. Constitution. Whereupon the railway companies applied for, and were allowed, a writ of error from this court. Messrs. Ira A. Place and Thomas Emery for plaintiffs in error. Messrs. George L. Sterling and George L. Rives for defendant in error. Mr. Justice Brown delivered the opinion of the court: "If, by prohibiting judicial review, the result of § 962 is to enable the assessors to assess property for local improvements without reference to the benefits conferred upon the property by such improvements, that section is unconstitutional. A statute which authorizes assessments for local im provements, other than in accordance with the benefits conferred, is unconstitutional and void. Norwood v. Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187. That case holds that the only principle justifying the levying of assessments for local improvements is that the property upon which they are imposed is peculiarly benefited, and, therefore, the owners do not, in fact, pay anything in excess of what they receive by reason of such improvements.'" Petitioners rely in this case upon the fact that the property assessed consists solely of a roadway through Park avenue or Vanderbilt avenue East, depressed from 10 to 18 feet below the grade of the street, the sides of which depression are held in place, and faced by a retaining wall, surmounted by an Manifestly, this is not such a case of setiron fence, whereby all access to and from ting up and claiming a Federal right as is the roadway to the street is rendered im- required by Rev. Stat. § 709, to invest this possible, except at the intersection of side court with jurisdiction of a writ of error. streets, where bridges are built for the ac- In the case of Zadig v. Baldwin, 166 U. S. commodation of traffic. Their claim is that 485, 41 L. ed. 1087, 17 Sup. Ct. Rep. 639, no possible benefit had, would, or could in- the contention that there was a Federal ure to the benefit of the railway companies question raised below was contained only in by the construction of the proposed improve an extract from the closing brief of counsel, ments; and all the oral testimony terded to presented to the supreme court of the state, show that fact. The roadway was in fact in which such Federal question was disnothing more than a tunnel through the ave cussed, and an oral assertion in the argunue, open at the top, and differed only in that ment made to the supreme court of Califorparticular from an ordinary railway tun-nia that a claim under the Federal Constinel or subway wholly beneath the surface. tution was presented. "But manifestly," The only evidence to the contrary was the said the court, "the matters referred to order of the board of assessors and the board form no part of the record, and are not ade of revision making the assessment, presum-quate to create a Federal question, when no ably founded upon the opinion that some benefit must have accrued to the roads. such question was necessarily decided below, and the record does not disclose that such issues were set up or claimed in any proper manner in the courts of the state." The only opinion delivered was that of the appellate division, which held that, under the city charter, there was no power in the But assuming without intimating an court in any event to vacate an assessment opinion to that effect, that the raising of a for local improvements; that while the court Federal question in the brief might be suffi was given power to reduce an assessment, cient, it is well settled in this court that it it was deprived of the power to vacate it. must be made to appear that some provision "It may correct an error, but it cannot en- of the Federal, as distinguished from the tirely wipe out the assessment itself," al-state, Constitution was relied upon, and though it was intimated that the property owner might still "challenge the validity of the assessment, whenever his property is assessed under it, or it is made the foundation of proceedings against him." *The difficulty with the position of the railway companies in this court is that no Federal question was raised in their peti: tion, the only pleading filed by them,-and they are forced to rely upon a copy of their printed brief submitted in the court of appeals, and certified by the chief judge of that court as containing certain matters. The only allusion, however, in this brief to a possible Federal question is that contained in the following extracts: "Legislative enactment is to be interpreted and construed upon the hypothesis that the legislature has, in its enactments, had due regard for these limitations upon its power, and that interpretation to be given to the language promulgated by it which will render it conformable to, rather than Por that such provision must be set forth. Sup. Ct. Rep. 205; Chapin v. Fye, 179 U. S. It is hardly necessary to say that the raising of such a question in the assignments of error in this court is insufficient. Not only was there no Federal question raised in the record, but the appellate division made no allusion to such a question, and dismissed the petition upon the ground that the charter of New York did not permit a question of benefit or no benefit to be raised in such a proceeding,-a ground wholly independ ent of a Federal question. The writ of error must therefore be dis missed. 299 AUSTIN NICHOLLS & COMPANY. Statutes-tariff act-repeal by customs administrative act duty on glass bottles filled with ad valorem goods. Mr. Justice Brown delivered the opinion of the court: This case involves the dutiable classification of certain glass bottles either under the customs administrative act of 1890 or the tariff act of 1894. The statement of facts shows that the bottles in question held not more than one pint, and were imported pre-filled with merchandise, which was liable to ad valorem duties, and that they were assessed for duty at the respective ad valorem rates applicable to their contents as ferred to by counsel, though no part of the a part of their value. The protest (rerecord) claimed that the articles were free from duty, or, failing that, were dutiable at 40 per cent ad valorem under 11 88, 89, or 90 of the tariff act of 1894. 1. The duties on filled glass bottles, scribed by the tariff act of 1883, were not repealed by the provision of the customs administrative act of 1890, § 19 (26 Stat. at L. 131, 139, chap. 407), that the duty on ad 2. valorem goods shall be assessed upon their actual market value, including the value of "all cartons, cases, crates, boxes, sacks, and coverings of any kind." Glass bottles filled with merchandise llable to ad valorem duties cannot be regarded as "coverings" within the meaning of the provision of the customs administrative act of 1890, § 19 (26 Stat. at L. 131, 139, chap. 407), that the duty upon ad valorem goods shall be assessed upon the actual market value, including the value of "all cartons, cases, crates, boxes, sacks, and coverings of any kind," in view of the elaborate provisions made by the tariff act of 1894 (28 Stat. at L. 508. chap. 348) for a specific tax on glass bottles, filled or unfilled, whether their contents are subject to ad valorem or specific duties. [No. 249.] Section 19 of the customs administrative act (26 Stat. at L. 131, 139, chap. 407) provides that "whenever imported merchandise is subject to rate of duty an ad valorem the duty shall be assessed upon the actual market value or wholesale price of such merchandise, ... including the value of all cartons, cases, crates, boxes, sacks, and coverings of any kind, and all other costs, charges, and expenses," etc. At the time this act was passed the following provisions of the tariff act of 1883 Submitted May 2, 1902. Decided June 2, were in force (22 Stat. at L. 488, 495, chap. 121): ONS 1902. N A CERTIFICATE from the United States Circuit Court of Appeals for the Second Circuit presenting the question whether the duty on glass bottles filled with goods dutiable at ad valorem rates is fixed by the customs administrative act of 1890. Answered in the negative. Statement by Mr. Justice Brown: * This case came before the court of appeals upon appeal from a decision of the circuit court for the southern district of New York, reversing a decision of the board of general appraisers, which affirmed the action of the collector of the port of New York regarding the assessment of duty upon certain imported merchandise. The circuit court of appeals, being in doubt with regard to a certain question of law arising therein, desired the instruction of the supreme court for its proper decision. "Green and colored glass bottles not specially enumerated or provided for in this act, one cent per pound; if filled, and not otherwise in this act provided for, said articles shall pay thirty per centum ad valorem in addition to the duty on the contents." By the same act "flint and lime glass bot- addition to the duty on the contents." Though the tariff act of 1883 is not directly in issue in this case, it is pertinent to inquire whether the sections above cited respecting duties upon glass bottles were repealed by § 19 of the customs administrative act. We are of opinion that they were not. The customs administrative act was not a tariff act, but, as its title indicates, was intended "to simplify the laws in connection with the collection of the revenues," and to provide certain rules and regulations with respect to the assessment and collection of duties, and the remedies of importers, and not to interfere with any duties thereto"Should the value of the bottles filled fore specifically imposed or thereafter to be with ad valorem goods be added to the duti-imposed, upon merchandise imported. Secable value of their contents, under § 19 of the customs administrative act of 1890, to make up the dutiable value of the imported merchandise?" The importation was made under the tariff act of 1894, and consisted of glass bottles, holding not more than one pint, and filled with goods dutiable at ad valorem rates. Upon these facts the question of law concerning which the instruction of this court was desired was this: tion 19 was intended to provide a general method for the assessment of ad valorem duties, and to require the value of all cartons, cases, crates, boxes, sacks, and coverings of any kind to be included in such valu Assistant Attorney General Hoyt for ap-ation. We think the rule ejusdem generis pellant. Mr. Albert Comstock for appellees. applies to the words "coverings of any kind," and that glass bottles, which are ⚫301 never in ordinary parlance spoken of as coverings for the liquor contained in them, is such a clear departure from the preceding words as to exempt them from the operation of the section, provided, at least, they are taxed under a different designation. It is very singular that if Congress intended to include under the words "coverings of any kind" vessels used for containing liquors, it should not have made use of the words casks, barrels, hogsheads, bottles, demijohns, carboys," or words of similar signification. The inference is irresistible that by the word "coverings" it only intended to include those previously enumerated and others of similar character used for the carriage of solids, and not of liquids. Webster defines a covering as "anything which covers or conceals, as a roof, a screen, a wrapper, clothing," etc.; but to speak of a liquid as being covered by the bottle which contains it, is such an extraordinary use of the English lan guage that nothing but the most explicit words of a statute could justify that con struction. So, too, by cartons, cases, crates, boxes, and sacks, we understand those encasements which are not usually of permanent value, and such as are ordinarily used for the convenient transportation of their contents. Indeed, it is quite possible that they were made taxable in a general way by the customs administrative act, in order that, if they were so made as to be of further use after their contents were removed, they might not escape taxation. The ordinary cartons, cases, crates, boxes, and sacks are of no value after their contents are removed, but in order that they should not escape taxation altogether, if they were of perma. nent value, they were included in the general terms of the customs administrative act. *The subsequent legislation upon the same subject tends to show that Congress intended to preserve the distinction between bottles and ordinary coverings, and to make a special provision for them. Thus, by the tariff act of October 1, 1890 (26 Stat. at L. 567, chap. 1244, ¶ 103), "green and colored, molded or pressed, and flint and lime glass bottles, holding more than one pint, and other molded or pressed green and colored and flint or lime bottle glassware not specially provided for in this act, one cent per pound," while those not holding more than one pint were taxed at 50 cents per gross, and by 104, “if filled, and not otherwise provided for in this act, and the contents are subject to an ad valorem rate of duty, or to a rate of duty based upon the value, the value of such bottles shall be added to the value of the contents for the ascertainment of the dutiable value of the latter; but if filled and the contents are not subject to an ad valorem rate of duty they shall pay, in addition to the duty, if any, on their contents, the rates of duty prescribed in the preceding paragraph." It will be noticed that by this act there was a division, theretofore unrecognized, between bottles holding more than 1 pint and those holding less than 1 pint, but both classes were specifically taxed, whether filled or unfilled; consequently the question arising in this case as to the rate of duty payable, if the administrative act were not applied, would not arise under the act of October 1, 1890. In 1894, the tariff was again revised (28 Stat. at L. 508, chap. 348), and by 1 88 "green and colored, molded and pressed, and flint and lime glass bottles holding more than one pint, . . whether filled or unfilled, and whether their contents be dutiable or free," "were taxed at three fourths of one cent per pound, and vials holding not more than 1 pint and not less than one quarter of a pint, 40 cents per gross; all other plain, green and colored, molded or pressed, and flint and lime glassware, 40 per centum ad valorem." By 248 of the same act ginger ale or ginger beer was taxed at 20 per centum ad valorem, but no separate or additional duty were assessed on the bottles. By 244, imposing duties upon still wines, there was a proviso that "no separate or additional duty shall be assessed on the bottles;" and by 245*a like provi-* sion was made with regard to ale, porter, and beer in bottles. It will be observed that by 88 a duty was imposed upon bottles holding more than 1 pint, whether filled or unfilled, but upon vials holding less than 1 pint there was, probably, by mistake, no provision that they should pay duty if filled; hence arises the contention of the defendants in this case, that if filled, they are either free of duty, or fall under the last clause of ¶ 88, and are dutiable at only 40 per centum ad valorem. The construction of these paragraphs in connection with the administrative act of 1890 has been considered in several of the lower courts, and a conclusion generally reached that where a special provision was made for a particular kind of covering the administrative act did not apply. Thus, in United States v. Dickson, 19 C. C. A. 428, 38 U. S. App. 476, 73 Fed. 195, it was held that in assessing duty on ginger ale in bottles under 1 249 above cited, the provision that no additional duty shall be assessed on the bottles prevented the collector from adding the value of the bottles to the value of the ale, upon the ground that they were coverings. The case was put upon the ground that Congress had legislated for bottles, co nomine, as a separate subject of duty. The decision was by the court of appeals of the second circuit, and affirmed the decision of Judge Townsend (68 Fed. 534), and also a decision by Judge McKennan in Lelar v. Hartranft, 33 Fed. 242, which, however, was decided before the customs administrative act. As bearing upon the same subject, see United States v. Leggett, 13 C. C. A. 448, 26 U. S. App. 531, 66 Fed. 300. In United States v. Ross, 33 C. C. A. 361, 62 U. S. App. 320, 91 Fed. 108, it was held that glass soda bottles holding less than 1 pint, and which constitute the usual and necessary coverings of soda water imported therein, are not dutiable under the act of 1894. In Merck 2 *303 v. United States, 99 Fed. 432, it was held that bottles holding not more than 1 pint of free goods, and those subject to a specified duty were free; and that bottles holding (not?) more than 1 pint of merchandise subject to an ad valorem duty are not themselves subject to duty. The customs dministrative act seems to have been regarded by Judge Townsend as having nothing really to do with the question. The question certified does not require us to determine whether the bottles in question are subject to a duty under § 88 of the tariff act of 1894, or any other section, but merely whether the value of the bottles, filled with ad valorem goods, should be added to the dutiable value of the contents under 19 of the customs administrative act. The large number of cases which have arisen under the tariff acts with respect to the proper classification of glass bottles show that in the mass of legislation upon that subject it is difficult to evolve a construc tion appliable to all such cases, or to determine what particular provision of the glassware sections shall be applied; but it is sufficient to say that where such elaborate provisions are made for a specific tax on glass bottles, whether filled or unfilled, and whether their contents be subject to ad valorem or specific duties, it was not intended that the general word "coverings," used in the customs administrative act, which, as before observed, is not a tariff act at all, was intended to supply any deficiency that might exist in the tariff act with respect to those articles. We have no doubt that the customs administrative act applies to coverings generally, but we think that in view of the several sections of the act of 1894 upon the subject of glass bottles Congress must have intended the words "coverings of any kind" should not apply to them, but that the other sections must be looked to exclusively to determine their rates of duty. As we are not called upon to determine that rate in this case, but only to instruct the court whether the administrative act applies to this case, we answer the question certified in the negative. 2. 3. 4. 5. 6. 7. 8. 9. fendants, or that, if there was evidence on this question, it should have been submitted to the jury, is not available in the Supreme Court of the United States on writ of error to a circuit court of appeals, where it was not raised either in that court or in the trial court. Contracts to cut and deliver a certain quantity of dead and down timber do not authorize the cutting of a large excess over the quantity mentioned, because of the use of the words "about" or "more or less" in designating such quantity. Contracts with individual Indians for the cutting and delivery of a designated quantity of dead and down timber on an Indian reservation will not be construed as authorizing the removal of all timber of that character on the reservation because such construction was put upon the contracts by the parties interested, and was approved by the government agent under whose superintendence the work under the contracts was done, since such a construction would be inconsistent with the regulations prescribed by the Presldent under the authority of the act of February 16, 1889 (25 Stat. at L. 673, chap. 172), for the disposal of dead and down timber from Indian reservations, the design of which, as interpreted by such regulations, was to permit every deserving Indian not otherwise employed to engage in the work. The value of the logs when delivered is the measure of damages recoverable by the United States from persons who have knowingly purchased timber which was unlawfully removed from Indian reservations, and not the value to the government of the timber before any labor was expended upon it. That portion of the stipulated compensation for timber to be cut and delivered by individual Indians from the Indian reserva tion, which was paid by the vendees, as agreed, to the Indian Department for the poor fund of the tribe, will not be deducted from the damages recoverable by the United States from such vendees for the conversion of so much of the timber as was unlawfully removed from the reservation. The exclusion of a telegram and a letter from officials in the United States Land Office, to the effect that the commissioner had accepted a bond in lieu of logs alleged to have been unlawfully removed from an Indian reservation, and that such logs would be or had been released, is not error where neither the telegram nor the letter adds anything to the Inferences to be derived from the face of the bond. Evidence tending to show the amount of dead and down timber on an Indian reservation is not material in an action by the Unit ed States against the vendees of such timber under contracts entered into with individual Indians, with the approval of the Commissioner of Indian Affairs, to recover damages for the conversion of so much of the timber as was cut and delivered in excess of the amount designated in such contracts. Unsuccessful defendants in a civil sult brought by the United States are liable for costs. Fees for a transcript of record used by a party in preparing a bill of exceptions for an appeal to the circuit court of appeals are not taxable as costs, either under U. S. Rev. Stat. 983, authorizing the taxing of "lawful fees for exemplifications and copies of papers necessarily obtained for use," or by rule 31, subd. 3, of the circuit court of appeals, pro 281 *280 viding that the cost of the transcript of the | tracts from dead and down timber, and that [No. 250.] defendants were entitled to the same and became owners thereof upon the delivery of the logs and upon making the aforesaid payments; that after the logs had been deliv ered to the defendants and before they were Argued May 1, 2, 1902. Decided June 2, floated down the river to Minneapolis the 1902. N ERROR to the United States Circuit I Court of Appeals for the Eighth Circuit to review a judgment which affirmed a judg: ment of the Circuit Court for the District of Minnesota entered upon a directed verdict in favor of the United States in an action to recover damages for a conversion of timber on an Indian reservation. Reduced, and as reduced affirmed. See same case below, 44 C. C. A. 685, 105 Fed. 1004. Statement by Mr. Justice Brown: This was an action in the nature of trover begun in the circuit court for the district of Minnesota by the United States against the Pine River Logging & Improvement Company, a corporation (hereinafter called the logging company), Joel B. Bassett, and William L. Bassett, copartners under the name of J. B. Bassett & Co., and John L. Pillsbury (for whom his administrators have since been substituted) and Charles A. Smith, copartners as C. A. Smith & Co., defendants, to recover damages for an alleged wrongful entry by the defendants upon an Indian reservation, and the cutting and removing of certain pine timber thereon. United States, through its proper officer, claiming that they were cut from green and growing timber, and not from dead or down had seized and taken possession of the logs, timber; that thereafter, for the purpose of value for the party who should ultimately be determined to be the owner, a contract preserving said logs and realizing their full was entered into between the United States on the one hand and the logging company vided, in substance, that the defendants and J. B. Bassett on the other, which promight drive the logs to Minneapolis without affecting the possession of the United in the logs, and that after they had been States or the interest of any of the parties driven to Minneapolis the defendants executed and delivered to the plaintiff a bond conditioned to pay any judgment that might be rendered against the defendants by the United States on account of the cutting of their logs. One of these bonds was executed by the logging company as principal, and the other by the firm of J. B. Bassett & Co. It was next set up in the answer of the logging company that the United States had accepted the bond in lieu of the logs, and that, relying upon said acts of the complainant, the logging company had disposed of the The complaint, which logs to others. It was then again specificounts, charges, in substance, that nine dif- and 8th counts of the complaint, that the nine cally set up in the answer, as to the 4th, 7th ferent parties did, with the consent and at claim of the United States was solely against the request of defendants, wrongfully enter J. B. Bassett & Co., and not against the logupon certain lands of the United States ging company; that the claim set up in the known as the Mississippi Indian reserva-Ist, 2d, 3d, 5th, and 6th counts was solely tion, and at the special instance and request of the defendants fell and cut into logs certain pine trees, which they delivered to the defendants, who thereupon caused the logs to be floated down the river to the city of Minneapolis, to be there manufactured into lumber, which they had subsequently sold and appropriated the proceeds thereof to their own use. contains The answers filed by the defendants, the logging company, and the Bassetts allege in substance the following facts: logs referred to were cut under and by virThat the tue of certain contracts which had been entered into with individual Chippewa Indians for the cutting of dead and down timber found on the reservation; that said contracts had been executed in pursuance of an act of Congress, approved February 16, 1889 (25 Stat. at L. 673, chap. 172), in relation to the cutting of timber on Indian lands; that payment for the logs so cut and removed had been made in full to the United States, and to the proper Indian agent, in accordance with the provisions of said contracts; that said logs were so cut by the Indians and delivered to and accepted by the defendants in good faith, in the honest belief that said logs had been lawfully cut under their con against the logging company, and that there tion in improperly uniting in one complaint was therefore a misjoinder of causes of accauses affecting solely the logging company and other causes of action affecting solely the firm of J. B. Bassett & Co. C. A. Smith & Co., who admitted receiving A separate answer was filed by the firm of of the pine saw logs described in the comfrom the logging company a certain amount plaint, and that they manufactured the same nary course of their business; that the into lumber, and disposed of it in the ordiamount of the lumber so manufactured was 15,628 feet, and that the value of the same was not greater than the sum of $132.84; that the defendants in receiving and manufacturing said logs honestly believed that the logging company was the owner and entitled to dispose of them. They also pleaded a misjoinder and nonliability for the acts of the other defendants. mitted, in substance, that, under and by virThe answer of the logging company adtue of the three contracts between itself and the Indians, it had received into its posses sion, converted into lumber, and ultimately sold pine saw logs, cut upon Indian reservations, which had yielded in the aggregate |