LE.lR ". UNITED STATES.
LEAR 11. UNITED STATES.
(District Court, D. Ala8ka. February 19, 1892.)
ABANDONMENT 01' MILITARY POST-SALB 01' BUILDINGS-POWER 01" SECBBTA'8T OJ'
When a military post located upon lands belonging to the United States is abandoned, the secretary of war has no power, in the absence of authority from congress, to order a sale of the buildings, and such a sale is void.
At Law. ,,Action by W. K. Lear against the United States for the' recovery of money. Delaney &- Gamel and Ceo. A. King, for plaintiff. C. S. Johnson, U. S. Dist. Atty.
BUGBEE, District Judge. This action was brought under and byauthority of section 2 of an act of congress entitled "An act to provide for the bringing of suits against the government of the United States," approved March 3, 1887. From the admissions in the pleadings and from the evidence, which is entirely documentary, it appears that the material facts in the case are as follows: During the years 1868, '69, '70, the government erected at Wrangell, then occupied as a military station, certain wooden buildings for the use and occupation of the United States soldiers at that place. In 1871 the site was abandoned as a military post, and by authority of the secretary of war, and under the instructions of the department commander, the chief quartermaster advertised the buildings for sale. On or about the 23d of August, 1871, they were sold to the petitioner, Lear, for the sum of $600, which was paid by him to the government on December 19, 1871, and the property so sold was thereupon transferred by the military officers, then occupying it, to petitioner, who remained for years thereafter in possession, and who still claims ownership of the same, by reason of such purchase. On August 1, 1875, Ft. Wrangell was re-established as a military post, and Rubsequently, duringthe period from August 1, 1875, to June 15, 1877, when the garrison was withdrawn, the buildings in question were reoccupied by the troops, as tenants of the plaintiff, and rent was paid to him by the government at a rate fixed by a board of army officers appointed to tax the same. The same board also recommended the purchase of the bnildings by the government from petitioner for the price of 87,000. On the 21st of June, 1884, the deputy collector of customs at Wrangell, acting under instructions from the s¢cretary of the treasury, demanded of petitioner the possession of the said buildings, claiming them as the property of the United States. The demand was not acceded to, and on the 25th day of June, 1884, the deputy- ' collector took possession by force, and the property has ever since remained in the possession of the government, and been used for civil purposes. It is not claimed that the government has ever parted with its title to the land on which the buildings claimed by petitioner were erected. The prayer of the petitioner is: (1) For the sum of $7,000, v.50F.no.1-5
being the purchase price fixed by the military board, above mentioned. (2) If not allowed that sum,il'hen that be' m1bwed rent from the time of his ouster allowed either amount, then that he be'''awni-dedthe $600 paId By hIm as purchase p}oneY..PD, l)eqt;llllper19, 1871"i",ithillterest at ,6 . per cent. annum from that In its answer ,the government confesses that plaintiff 'fOf paid property, with interest; but claims that petitioner is not entitled to any other relief asked · for, because the sale was without authority of congress, in violation of the cdnstitutionof the United States,' and therefhre wholly void, and passed no title to plaintiff. The relief asked for in the first and second subdivisions, respectively, of the prayer could. only be granted' on the theory that sale was a valid one,and thattbereby the petitioner acquired, as against the United States, th«:l f]111 title to the property. No 1l.uthority: whatever has been produced, nor have I been able jo find any 'law, whi(}h ·will support such' a theory. The 'sale was not authorized nor ratified by congress,cahd I must therefore hold that it was void. Judgment, however, is 'given for petitioner for the amount confessed in the answedo be due, to-witj the sum: of $600, with interest at 6 per cent. per annuM'frolD December 19, 1871, and the costs of the clerk of the OOtitt, .afttlt:issue Joined. '
(Circu,Ct Oourt, B. D.New York.
Ootober 18, 1891.)
CusTOMS Dt1'1'IB8-MANUl!'AOTlJRBDARTIOLES-PIIIOBS OF BEVELED GLASS.
A deci&ioQof the board of appraisers that small squares, triangles, and circles of glass, tbe. squares from. 2Mx2M to 4x4, and the circles from 5 to 6 inches in diameter, witb ·edges beveled ILtld' polished, are dutiable at 45 percent. ad valorem as oj' glal!s cut," underAot Cong, March II, 1883. (Tariff Ind. New, par. 135,) rather tba,p. at8eents per square as "cast polished. plate-glass, unsilvered," 'not:eJiceeding 1Ox15 incbessquare, under Tariff Ind. New, par. 140, of said act, will Qot be distql"bed, although the bevel w.as produced by abrasion, rather than by cut. ting With. a'sharp it appearing that in the trade of the glass cutter the word "cutting"'is frequently used to denote a process which in popular language would iliOn! properly be styled "grinding" or "abrading. "
At fr0Irl,thereport of district attorney: "Theprocee(ling was an by:the importers for a review by the decision of the board,o,f United States general appraisers, delivered On the 13th of February, 1891, affirming the decision of the collector orlthe classification of certain merchandise, * ... * which merchandise was classified'for duty by the as · articles of glass cut,' aDd duty assessed thereon at the rate Elf 45 per celit.,ad valorem. under the provisions of 1artff Ind. NaW, par. 135; (Tariff Act March 3, 1883.) Against this classiflcation the importers protested. claiming tlJat the merchandise was,uutiable at three cents per square f!l0t as ·cast poHshtd plate-gl8$s. unsilvered.' not exceeding 10x15 inches sq,uare, tinder. Tariff Ind. New, par. 140,of said tariff act. and, if not so dutiable; then at four cents per square foot, under Tariff Ind. New, par. 141, of said act, as ·looking-glass plates.' The importers