OpenJurist

614

nr>ERAL. REPORTER·

. stances Qfthe .accident.' If you find that the defendant .isMt chargeable with negligence, that will be the end of the case. But if you find otherwise, then there willrefllilin the question of damages. And if you come to consider this quest.on,: you must remember that you can give .only sUC;Jh:dllmages as will fairly and reasonably compensate the plaintiff for the injury sustained. You are limited to what are known as compensatory damages, if you find the plaintiff entitled to recover. You have no right to go beyond that. You have no right to give damages by way of punishment. In fixing the compensation to be allowed the plaintiff, you should take into consideration the character and extent of the injury inflicted upon him, the pain and Buffering undergone by him in consequence of the injury, actual loss of time, expense incurred for medicines and medical attendance, and also any permanent injury sustllined by him, if you believe from the evidence that he has Buffered permanent injury, including permanent loss, if any is proved, arising from any disability resulting to the plaintiff from the injury, which rende1'& him. less capable of attending to his business than he would have . been.if the injury had not been received. Now,gentlemen,you will take this case, and deal with itimpartially, and with strict regard to the rights of the parties. Deal with it precisely as -if it were a controversy betweenn'lan and man. Naturally,our sympathies are always awakened in behalf of those who have suffered misfortune or injurYi but the duty ,of the court and. of the jury is, in every case that comes before them, so far as lies in their power, to administer the law with reference solely to the strict legal rights of the parties.

POTTER

'!I.

BOARD OF COUNTY COM'RS OF CHAFFEE Co.

(Oircuit Court, .D. Oolorado. January 12,1888.)
COUlfrIES-'-!BSUANCE OF BONDS-VALIDITY-RECITALS.

to fund 'their debts, which show full compliance with the act, but not the

The recitals in a bond, issued under Acts Colo. 1881, authorizing counties

amount of the issue, will estop the county from alleging, against a bonajid' holdez, that the bond was issued in violation of thl' constitutionallimitatiolL

AtLaw. On motion for Teller &: Oralwod, for plaintiff. G. K. I!arten8tein, for defendant.

on the pleadings.

BREWER, J. Andrew PMter against the County of Chaffee is a suit on county bonds. in which the defense presented is that the bonds were isin exchange for warrants void because issued in the first instance in violation of the constitutional limitation as to county indebtedness. In the course of the argument which was had, the decision of preme court of Colorado; in Board County G'om'r8 v. People, 14 Pac. Rep.

POTTER 'V. OOUNTY OF CHAFFEE.

615

47 , was referred to, in which that court passed upon one of the constitutional sections in reference to the limits of county indebtedness. I think it unnecessary to consider that case in this action. Concedingand of course that will be, in the federal as in all other courts, the assumption-that that gives a correct construction of the constitutional section, the question here is whether, with the limitations contained in that section, as thus defined, the defendant has a valid defense to theaetionon these bonds. That decision recognizes the fact, as does the constitutional section, that a county may be indebted, and that it may issue bonds, a.nd, in 1881, the legislature of Colorado passed an act authorizing the counties to fund their floating indebtedness., The act is found on page 85, Sess. Acts 1881. In pursuance of that act, the county of Chaffee issued these bonds, which contain full recitals, showing compliance wfth all the provisions of that act. It is unnecessary to read them· .And the question is, whether the county is· not estOpped by those recitals from· presenting this defense. The act does not limit the issue of bonds; that is,itdoes not place any amount, any numbers, as the limit which any county may issue. It authorizes the funding of the floating indebtedness. Of course, that means the valid indebtedness. It gives to the county commissioners the duty of issuing these bonds, and exchanging them at par for the outstanding warrants; and the limitation, and the only limitation, placed in the act, is that the whole amount of bonds issued under this act shall not exceed the sum of the county indebtedness at the datE! of the first publication of the notice, and that amount is to be determined by the county commissioners, and a certificate made of the the sanie,and made a part of the records of the county. The duty is placed upon the county commissioners of determining the amount. The legislature does not prescribe it. This bond, which purports to be one of a series, nowhere upon its face contains any statement of the amount ofbondsiElsued, or to be issued, by that county; no one upon examination of one bond could say whether one thousand or a hundred thousand dollars were, .or were to be, issued by the· county. It refers to the act, declares it is issued in pursuance of the act, and upon the proper elechaving been held. . Now this question of the effect of recitals in a bond, as estopping the county or municipality, has been again and again considered by the supreme court, and, until the decision in the case of Oounty of IJixan v. 'Fietd, 4 Sup. Ct. Rep. 315, which is relied upon by the defendant, I suppose the universal voice of the bar would affirm that the supreme court had settled beyond any question that recitals as full and complete as these estopped a county from denying the validity of the bonds in the hands of a bona fide purchaser. It has been supposed by some that this case of Oounty of JJixMl, v. Field has reversed prior decisions, and establisheda new rule. I am frank to say that I thinkitis quite difficult to appreciate the distinction which Mr. Justice MATTHEWS draws between that case and the case of MaT(Y]J v. Tawnship 'of Omvego, 92 U. S. 637 j but even with the rule as laid down in Oounty of Dixon v. Field, it will not avail the defendant in this case. .

'616

FEDERAL REPORTElt.

Turning to the case of Buchanan v. Litchfield, 102 U. S. 278, where the question was whether the issue was in excess of the amount authorized to beissued, and where the court held that the recitals in the bond were not such as to estop the city, they say: "Had the bonds made the additional recital that they were issued in accordance with the constitution, or had the ordinance stated, in any form, that the proposed indebtedness was within the constitutional limit, or had the statute restricted the exercise of the authority therein conferred to those municipal corporations whose indebtedness did not at the time exceed the constitutionallimitation, there would have been I!:round for holding that the city could. not, as against the plaintiff, dispute the fair inference to be drawn from such recital, or statement, as to the extent of the existing indebtedness." Then, passing to the case of Bank v. PorttrTp., 110 U. S. 608,4 Sup. Ct. Rep. 254, the court decided that "the facts which a municipal corporationissuing bonds in aid of a railroad is not permitted, against a bona fide holder, to question, in the face ofa recital inthe bond of their e;x:ililtence, are those connected with, or growing out of, the discharge oHhe ordinary dutiesofsuch of its officers as were invested with authority to :execute them, and which the statute conferring the power made it their duty to ascertain and determine before the bonds were issued." Here, the statute in terms gave the county commissioners .not merely the power to issue these bonds and exchange them for warrants at par, but the power:ofdeterminingthe amount they should issue. That was one of the matters within ,their ordinary duties, ahd which they were invested, with authority to ascertain and determine. Now; when we come to this case of County ojDixonv. Field, 111 U. S. 83, 4 Sup. Ct. Rep. 315, we find these to be the facts: The constitution prescribed a limitation, that the amount should not be over 10 per cent. .I believe, of the assessed- 'Valuation-the amount is immaterial. That was a constitutional limit of the amount that could be issued, and that limit was a limit based upon the assessed valuation. The county of Dixon issue¢!. aseriesof;bonds, which,:ontheir face, showed that the issue was $87,000. Every bond, therefore, carried notice to the purchaser that the issue of bonds made by the county was $87,000; and it was held that that being apparent upon the face of the bonds, the purchaser was also charged with notice of the amount of the assessed valuation of the. property in the county, because it was a matter appearing upon the records of the county; it Was a matter of which the county .commissioners could not and did not determine. It was a matter over:which they had no control, and the recital of a fact of which they had no control, no authority to determine, was not such a recital as estopped the county. So, the purchaser, informed by the face of the bond of the amount of the issue, and charged with notice of the amount of the assessed valuation, took the bond with notice ofits invalidity. But in this Case there is nothing upon the face of the bond which shows how many bonds were to be issued, how large the series was. The statute, in terms, gave to the countycom,missioners the power to determine the amount to be issued, and no man could, by an examination of the bond, get any information

TOPtITZ

&. HEDDEN.

617

as to the amount of the issue, or by comparing any information given by the bond with the record notice of the assessed valuation, know that the county had exceeded its power in the issue of the bond. So that, taking the case of·Oounty of Dixon v. Field as the latest annunciation of the supreme court in respect to the rule of decision, it must be held that the county is estopped from pleading in this case that the bond was issued in exchange for a void warrant. . of plaintiff sustained. Motion for judgment in

TOPLlTZ v.

HEDDEN,

Collector.

(Circuit Oourt,S.'!). New York. January 12,1888.)
CUSTOMS· 'IDUTIEs-CLASSIFICATION-WOOL COVERINGSPOR THE HEAD. .

, : of w:ool. kn,iton frames, imported. froni Scotland. and ulled for a covering for .the head, are properly assessed for duty under tariff. Mt par. 36ltwhich reads: "Flannels, blankets, hats of wool, knit goods,and goods made on knitting frames," etc., and not under paragraph 400, whiCh provides' for duty on "bonnets, hats. and hoods for. men. women, aJ;ldllltiI· dren,composed of chip, grass, palm leaf," etc., as the word "bonne\"in the statute is not sufficiently broad, nor Buch peculiar, technical tr'ade-meanhig coupled with it as to cover these goods. r:'.
';1

'.''-

At Law. Action to recover back customs d u t i e s . , · Ohaa. Curie, for plaintiff. Stephen A. Walker, U. S. Dist. Atty., and W. Wichham Smith, Asato U. S. Dist. Atty., for defendant.
LACOMBE, J., (orally.) The articles in this case are made of wool,'s.r& knit on frames, are used for a covering for the head, and come from Scotland, and they have been assessed for duty by the collector under paragraph 363 of the tariff act, which reads: "Flannels, blankets,bats of wool, knit goods, and all goods made on knitting frames, balmoril1S, woolen and worsted yarns," etc. . It is claimed by the plaintiff that they are properly assessable tinder paragraph 400, as follows: "Bonnets, hatR, and hoods for meu, women, and children, composed of chip, grass, palm leaf, willow, or straw, or any other vegetable suhstance, hair, whale bone, or other material not specially enumerated or provided for in this act." The words used in tariff statutes, when not technical, either as having a special sense by commercial usage,or as having a scientific meaning different from the popular meaning,-in other words, when they are words of common speech,-are within the judicial knowledge, and their interpretation is a matter oHaw. The plaintiff contends that the word" bonnets" in this phrase, '(bonnets, hats, and hoods for men, womeri, and children," or, as,he the words, "bonnets for men" is t6 be taken ihiis 'ordinary:acceptatioo, and:nbtas a technical word, or as a commercial