WYMAN tI. LANClASTER
Mis8ouri. November 20, 188'l.),' .
CARRIERS-LIEN FOR FREIG1lT":-RETENTION OF GOODS IN CUSTOM-HoUSEACTION TO RECOVER.
In order to recover property held by a collector or other customs' officer under Rev. St. IT.S. § 2981, which provides that whenllverthe collector shall be notified of ll, lien for freight on any goods imported shall hold the same until it is shown that the freight has been paid or secured, the consignee should first tender the amount of freight he admits to.be due, and if declined he should tender.a sufficient bond conditioned to pay aU freight that may be found to be due or that may be adjudged due by any court of competem jurisdiction. Should this be declined, proof of these tenders should be made to the coUe'ctor; who, if he finds the bond adequate to secure the carrier. should release the goods.on. the deposit with him, for the use of the carrier, of the bond originally tendered.
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. In an action to recover property held by a collector of customs or other customs officer under Rev. St.U. S. §2981, providing for the detention of goods upon which the carrier has a lien for freight. and arbitrarily detained by him 'after tender of a sufficient bon'd for the security of the carrier, the petition should show all the steps taken to secure a release of the property, including the tender of freight, ,the tender of the bond, and the proof of these facts before the collector.
John M. Holmea, for plaintiff. . Tkos. P. Bashaw, U. S. Atty., fot defendants.
THAYER, J., (orally.) In this case a question arisesas to the duty of a collector of customs when he is in possession of property imported from .abroad on which all of the duties due the United States have been paid, and a controversy arises' between the consignee of the goods and the carrier who has transported them from the sea-coast in bond, as to the amount of the freight that is due for such transportation. The statute rellj.ting to the subject is as follows: "Section 2981. Whenever the collector or other chief officer of the customs of any port shall be notified in writing by the owner or consignee of any vesselor vehicle arriVing from any foreign port, of a lien forfreight on any merchandise imported in such vessel or vehicle and remaining hi his custody, such officer may refuse the delivery of such merchandise from any public or bonded , warehouse, or other place in which the same shall be deposited, until proof to his satisfaction shall be produced that the freight due thereon has been paid or secured; but the rights of the United States shall not be prejudiced thereby, . nor shall the United States, or its officers, be in any manner liable for losses consequent upon such refusal to deliver."
It is perfectly clear, in view of that section, that if the consignee does not pay tha freight, or offer to secure it, that it is the duty of the collector to retain the goods in his possession to secure the carrier's lien. It is equally clear, in lPY opinion, that it is the duty of the collector to deliver the goods when the freight has been tendered, or in the event of a controversy as to the amount, when the amount claimed by the carrier has been duly secured. A practical difficulty arises in cases of this kind
WYMAN V. LANCASTER.
where the consignee and carrier disagree as to the amount of the freight. The law makes no provision as to the kind of security to be given,whether it shall be a bond, or a money deposit; nor does it authorize the collector to take a bond in any sum or form. My judgment is that in a case of this character the consignee should, in the first instance, to be due. If the tender to the carrier the amount of freight he same is declined, a sufficient bond should be tendered the carrier by the consignee, conditioned to pay all freight that may ultimately be found to be due, or adjudged to be due in any court of competent jurisdiction. If the carrier, on the tender of such bond, will not consent to the delivery of the goods, but insists upon their being held by the C lllector, then proof of such facts-that is to say, proof of the tender of the freight admitted to be due, ltnd proof of the subsequent teuder of a bond to the carrier-should be made to the collector; and if he is satisfied that the bond tendered is adequate to secure the carrier, he should deliver the goods on the deposit with him, for the use of the carrier, of the bond originally tendered to the carrier. If, after all these steps have been taken, the collector arbitrarily refuses to deliver the goods, although the bond is adequate in form, and in amount ofsecurity , an action in my opinion will lie against the collector to recover the goods., ,The petition in such case, however, should set out all the steps that have been taken by the consignee to secure the release of his property. The petition in this case is an ordinary petition in replevin. It does not set out any of the steps that have been taken by the consignee to enforce the delivery of the property. I am not advised by the petition whether there was any tender of freight to the car. rier, or whether the petitioner tendered any bond to the carrier, or whether he made proof of such facts before the collector; and in the absence ()f such proof I cannot enter an order directing the collector to deliver up the goods. the petition in this ease can be amended so as to show what steps have been taken; and if the court is satisfied, by affidavits, that a good and sufficient bond has been tendered to the transportation company to secure the freight claimed, and if the court is further satisfied by affidavit that proof of the fact of the tender of such a bond has been made before the collector, and that he arbitrarily refuses to give up the property, then the court will enter an order upon the collector directing the delivery of the goods to the consignee. The statute does not intend that the collector's office shall be so administered as to compel a consignee to pay imunjust demand for freight, or be deprived for an indefinite period of the possession of his goods. The petition can be amended within such time as the plaintiff in the case desires, and the application for an order of delivery renewed. v.32F.no.12-46
13AlqON <CO,, V·.
FT. S. & G. R. Co.
(Otrcuit Oourt, W:n.Mi880ttrl,W. D. ' October, 1887.)
CONSTITUTIONAL LAW-POUCE POWER-REGULATION OF RAILROAD CROSSINGS.
.In 1881. the legislature of, state Missouri passed an act affecting railroads, which provided that, attailroad crossings, the railroadsctossing there should erect and maintain suitable depots and waiting-rooms to accommodate passengers. Held, that it was a ll:lgitimate e·xercise of the police power and not unconstitutioDal. .
RAILROAD PARTIE!!. " . OF CROSSINGS-ACTION FOR VIOLATION.
An act of the legislature of Missouri made it the duty of railroads to erect and maintain at railroad crossings waitIng-rooms for passengers, and fixed the penalty for a violation of the act. The defend&nt was prosecuted for not complying with the provisions of the act. It insisted that there was a defect of parties, in that both railroad companies were not joined. Held, that w\,:"relea/led from liability by the failure of other.,
STATUTES-REPEAL-EFFECT ON PENALTmS INCURRED.
In 1885 the legislature of Miesouri amerided an act passed in 1881. The defendant company claimed that the amendment worked a repeal of the law of 1881, and released it from penalties i,ncurred before the amendment. Rev. St. Mo. § 8151, provides: "No offense committed, and no fine, penalty, or forfeitute incurred;pravious to the time when 'any statutory provision shall be repealed. shall be affected by repeal:bilt the trial and punishment of all such offenses, and .the recovery of such fines, penalty, and.forfeiture shall be had, in all respects, as if the provisions had remained in force;" Held, that though the penalty was incurred prior to the amendment of 1885, still under this jt. \Vas recoverable. . . ;
4., SAME=CONSTRUCTION---.M.UiDA;TO;RY PROVlsIONS-.CONDITIONS. " , . miuidato!:f provisions, and, it imposed a penalty for a falfure'to comply WIth the condItIOI1S of the section. Held, that whateTer'criticiSnl'migbt be placed: on the use of the word "conditions," the intent was plaip'iand the statute. "jVIj,S to be soas,not to defeat the manifest mtent,of the power. . 3. QUI TAM uri PENAL ACTIONS-:-LIHITArrON TO MAINTAIN RAIL-
Rev St. Mo. § 3281, places a limit of three years upon an action upon a ute penalty or forfeiture where the action is given to the partyaggrieved, prio slIchparty and· the 'state: 'Held; that this did not apply to a case where a railroad had incurtedpenahies for 1I0t erecting l\ passenger depota,t:ll Cfossing, and the penalties went to the school
SAME-:-;-:JOINl>ER OF OFFENSES-VIOLATION.
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Astat'uteimposed penalties for a failure to comply with the conditions of the section·. Held, that a disobedience of any ona' of thafprovisions subjected the delinquent :to the peDf/.lty; : '
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An act provided that f,or each day from and after a certain specified day the delinquent should forfeit and pay the sum of $25.' Held, that the legislature intended an: accumulation of penalties, and the defendant cotIld not atone for its by th!l a single Pllnalty.
Botsford &. ,WiUiarn8, Jor plaintiff. . ' . , . . Pratt, & Ferry, and.o. W.Blair, for ,defendant.
BREWER, J. In 1881 the legislature of the state of Missouri passed an act affecting railroads, which, so far as is material to tqis case, reads:
"Every railroad corporation in this state which now is, or may hereafter be, engaged in the transportation of passengers or property lit ... ... shall,