*21 jury to render a verdict for the defendant. | was discussed in Maxwell v. Griswold, 10 This the court refused to do, and left it to the jury to decide, upon the evidence, whether the making of the additions was a voluntary act on the part of the plaintiffs, or done under constraint, in view of the penalty sure to be imposed in case it was not done. On this point the judge, in his charge to the jury, speaking of the entry and the additions made by the plaintiffs or their agent, said: "He says he put them on there because he was compelled to. If that is so, he ought not to be estopped from recovering, and here is a question for you on that subject, and you will decide it in this way: If those statements and figures were put on there because he thought that was the best way, on the whole; if, exercising his own judgment freely, he thought that it was the best way to get along with this to put it on there and let it go,-he can't take it back; he can't recover anything back. The verdict will have to be for the defendant anyway, if that is so, because it was his own act in putting it on there. The collector assessed the duty just as he made it, and he can't complain. 'But if he was required to do it, or given to understand by some officer in the collector's department that it would be the worse for him, seriously, if he didn't,-as, for instance, if the appraiser told him, if he didn't put those on there, the collector's office would, that the appraiser would, and that he would be exposed to a penalty that would be assessed against him; if he was given to understand by the collector's department, or some officer of it, that, if he didn't put these figures on there, they should, and make it the worse for him because he didn't, and he would thereby be exposed to a penalty of a larger duty which he would have to pay for not doing it, and he was in that way, for the sake of saving himself from the penalty which they would put upon him beyond what would otherwise bechargeable, induced to put them on, -then he is not bound by it. If How. 242, 256, and in Swift Co. v. U. S., 111 U. S. 22, 28, 4 Sup. Ct. Rep. 244. In Maxwell v. Griswold an appraisement was erroneously made as to the point of time of the valuation, and the importer paid the consequent excess of duties. The government contended that this was voluntary. But this court said: "This addition and consequent payment of the higher duties were so far from voluntary in him that he accompanied them with remonstrances against being thus coerced to do the act in order to escape a greater evil, and accompanied the payment with a protest against the legality of the course pursued towards him. Now, it can hardly be meant, in this class of cases, that, to make a payment involuntary, it should be by actual violence or any physical duress. It suffices if the payment is caused, on the one part, by an illegal demand, and made, on the other part, reluctantly, and in consequence of that illegality, and without being able to regain possession of his property except by submitting to the payment. All these requisites existed here. We have already decided that the demand for such an increased appraisal was illegal. The appraisement itself as made was illegal. The raising of the invoice was thus caused by these illegalities in order to escape a greater burden in the penalty. The payment of the increased duties thus caused was wrongfully imposed on the importer, and was submitted to merely as a choice of evils. He was unwilling to pay either the excess of duties or the penalty, and must be considered, therefore, as forced into one or the other by the collector colore officii through the invalid and illegal course pursued in having the appraisal made of the value at the wrong period. * The money was thus obtained by a moral duress not justified by law, and which was not submitted to by the importer except to regain possession of his property withheld from him on grounds manifestly wrong. Indeed, it seems sufficient to sustain the acyou find he did not do it freely, then you tion, whether under the act of February 26, can look further, and see if there was any-1815, (Rev. St. U. S. § 3011,) or under princithing put on there that ought not to be. ples of the common law, if the duties exIf he was compelled to do it, it ought not acted were not legal, and were demanded, to go on; and if he was, the plaintiffs are and were paid under protest." In that entitled to recover. And, if you decide he is case, it is true, the fact that the importer bound by putting that on, that will end the was not able to get possession of his goods* case; you must give a verdict for the de- without making the payment complained fendant. If not, you may look and see if he of was referred to by the court as an was compelled to pay more than he ought, important circumstance; but it was not -if he was compelled to pay transportation stated to be an indispensable circumstance. charges more than he ought to,-and, if so, The ultimate fact, of which that was an infind a verdict for the right amount. If they gredient in the particular case, was the were compelled to pay labor charges more inoral duress not justified by law. When than they ought to pay, find the verdict for such duress is exerted under circumstances the plaintiffs for the right amount of that. sufficient to influence the apprehensions If they didn't pay any more than they ought and conduct of a prudent business man, to,-transportation or labor charges, payment of money wrongfully induced then the verdict is for the defendant." thereby ought not to be regarded as voluntary. But the circumstances of the case are always to be taken into consideration. When the duress has been exerted by one clothed with official authority, or exercising a public employment, less evidence of compulsion or pressure is required; as where an officer exacts illegal fees, or a common carrier excessive charges. But the principle is applicable in all cases according to the nature and exigency of each. * * * Under this charge, of course, the jury, in finding for the plaintiffs, must have found that they acted under constraint-under moral duress-in making the additions for transportation and labor. We do not see how the verdict can be set aside for error in the charge on this point, unless the law be that virtual or moral duress is insufficient to prevent a payment made under its influence from being voluntary. This point In Swift Co. v. U. S., 111 U. S. 22, 4 Sup. Ct. | while the appraisers are not limited to the Rep. 244, the plaintiffs, who were manufact- actual cost of articles exported, but may urers of matches, and furnished their own place upon them their market value at the dies for the stamps used by them, and were places from which they were imported, and thereby entitled to a commission of 10 per their estimate of that market value is concent. on the price of such stamps, accepted clusive, they could not, while the law refor a long period their commissions in quired the addition to that market value stamps, (which, of course, were worth to of additional charges of transportation, them only 90 cents to the dollar,) and they etc., exercise any discretion as to those did this because the treasury department charges, but were confined to the actual would pay in no other manner. We held cost thereof, when such cost could be shown. that the apprehension of being stopped in It was "cost," not "value," which was retheir business by non-compliance with the quired in that part of the estimate of dutitreasury regulation was a sufficient moral able values. The sections of the Revised duress to make their payments involuntary. Statutes which regulated this matter in Mr. Justice MATTHEWS, delivering the opin- 1881 and 1882, when the transactions inion of the court, said: "The question is volved in the present suit took place, were whether the receipts, agreements, accounts, sections 2906 and 2907; the latter of which and settlements made in pursuance of that was repealed by the act of March 3, 1883, demand of necessity were voluntary in such (22 St. 523.) Section 2906, which is still in sense as to preclude the appellant from sub-force, declares that "when an ad valorem sequently insisting on its statutory right. | rate of duty is imposed on any imported We cannot hesitate to answer that question merchandise, or when the duty imposed in the negative. The parties were not on shall be regulated by, or directed to be esequal terms. The appellant had no choice. timated or based upon, the value of the The only alternative was to submit to an square yard, or of any specified quantity illegal exaction, or discontinue its business. or parcel of such merchandise, the collector It was in the power of the officers of the within whose district the same shall be imlaw, and could only do as they required. ported or entered shall cause the actual Money paid, or other value parted with, market value, or wholesale price thereof, under such pressure, has never been re- at the period of the exportation to the garded as a voluntary act, within the United States, in the principal markets of meaning of the maxim, volenti non_fit in- the country from which the same has been juria." The cases referred to by Justice imported, to be appraised, and such apMATTHEWS abundantly support the po- praised value shall be considered the value sition taken, and need not be repeated here. upon which duty shall be assessed." SecIn our judgment, the payment of money to tion 2907 declared that, "in determining an official, as in the present case, to avoid the dutiable value of merchandise, there an onerous penalty, though the imposition shall be added to the cost, or to the actual of that penalty might have been illegal, wholesale price or general market value, was sufficient to make the payment an in- at the time of exportation, in the principal voluntary one. It is true that the thing markets of the country from whence the done under compulsion in this case was the same has been imported into the United insertion of the additional charges upon the States, the cost of transportation, shipentries and invoices; but that necessarily ment, and transshipment, with all the exinvolved the payment of the increased du- penses included, from the place of growth, ties caused thereby, and in effect amounts production, or manufacture, whether by to the same thing as an involuntary pay-land or water, to the vessel in which shipment is made to the United States; the value But it is contended that the act of the ap- of the sack, box, or covering, of any kind, praiser in making, or requiring to be made, in which such merchandise is contained; the additional charges for transportation commission at the usual rates, but in no and labor, was final and conclusive, and case less than two and one-half per centcannot be made the subject of inquiry. It um; and brokerage, export duty, and all is undoubtedly the general rule that the other actual or usual charges for putting valuation of merchandise made by the ap-up, preparing, and packing for transportapraiser, unappealed from to merchant ap- tion or shipment. All charges of a general praisers, is conclusive; but, while this is character incurred in the purchase of a the general rule, it is subject to the qual-general invoice shall be distributed pro ification that if the appraiser proceed upon rata among all parts of such invoice; and a wrong principle, contrary to law, and every part thereof charged with duties, this be made to appear, his appraisement based on value, shall be advanced accordis not unimpeachable. This qualification ing to its proportion; and all wines or, applies to the acts of many other officials other articles paying specific duty by grades charged with duties of a similar char-shall be graded and pay duty according to* acter; such as assessors of the value of the actual value so determined." property for taxation, commissioners for Now, while, under the first of these secappraising lands taken for improvements, or damages sustained by owners of land, and the like. What is complained of in the present case is that the plaintiffs were required to add to the market value of the goods at the places from which they were exported transportation charges and expenses for labor which were never incurred. If that complaint is well founded, such additions cannot be maintained; for ment. tions, (2906,) the estimate of the market value of the goods, made by the appraiser, is, in general, unimpeachable, it is plain that the items to be added to that value, under section 2907, did not depend upon estimation, but upon the actual truth of the case, namely, the cost of transportation, shipment, etc., to the vessel in which shipment is made. This cost may be some. thing; it may be nothing. In the present case the appraiser required 50 per cent. of, and upon a trial and verdict by a jury, Octhe market value of the goods to be added tober 11, 1883, the circuit court quashed as cost of transportation. The plaintiffs the writ. Harshman brought the cause by disputed this item. Evidence was gone writ of error to this court, which held the into on the subject, and the matter was left return insufficient, reversed the judgment, fairly to the jury. The only question for us and directed the peremptory writ to be to determine is whether the matter was awarded. Harshman v. Knox Co., 122 U. open to evidence, and could lawfully be left S. 306, 7 Sup. Ct. Rep. 1171. The mandate to the consideration of the jury, or wheth- went down on the 3d day of June, 1887, and er the determination of the appraiser on this a peremptory writ of mandamus was issubject was conclusive. We think with the sued by the circuit court, commanding the court below that this was a question open county court of Knox county, and the for examination. In Oberteuffer v. Rob-judges thereof to levy the tax as prayed, ertson, 116 U. S. 499, 6 Sup. Ct. Rep. 462, we and was duly served June 28, 1887, but decided that since the act of 1883, repealing nothing was done in execution thereof. On section 2907 of the Revised Statutes, it is the 11th day of July, 1887, the county of not lawful for the appraiser to add to the Knox filed a bill in equity in the circuit market price of the goods the cost or value court against Harshman, alleging various of the cartons or boxes in which they are grounds upon which complainant prayed packed, either by themselves, or as part of that Harshman be enjoined from further the market value. In the principle involved, proceeding on his writ of mandamus, or that case is similar to the present. If, prosecuting any other writ or proceeding since the repeal of section 2907, the ap- upon said judgment requiring the levy of praiser cannot lawfully add the cost of a special tax to pay the same. No prelimpacking boxes to the appraised value of the inary injunction was granted, and the cause goods, before such repeal he could not law- was finally heard on bill and answer at fully add more than that cost; and, if he the September term, 1888, when the bill did, it was a matter for examination and was dismissed, and a decree rendered correction. To the same effect is the case against the county for costs. From this of Badger v. Cusimano, 130 U. S. 39, 9 Sup. decree the county prayed an appeal, which Ct. Rep. 431, where the collector caused an was granted; an appeal-bond for $500, in appraisement to be made in which a por- the usual form, was duly given and aption of the charges for packing and trans-proved; and the record was thereupon filed portation of the goods imported was de- in this court in due time. On the 10th day ducted from that category, and added to of April, 1889, Harshman again sued out a the invoice value of the goods themselves. peremptory writ of mandamus, to which We held that, in the absence of fraud on the county made substantially the same rethe part of the importer, this could not turn as to the alternative writ, but setting lawfully be done, and that such an ap-up the proceedings in equity, and insisting praisement is not lawful or conclusive. We that the perfecting of the appeal from the are satisfied, not only on the authority of decree dismissing the bill operated as a these cases, "but from the reason of the supersedeas of the judgment recovered thing, and the proper application of the March 28, 1881. Thereupon Harshman principles of the law, that the course pur-moved that said return be quashed, which sued in the court below was free from error. These are all the questions which it is deemed important to discuss, and the result is that the judgment must be affirmed; and it is so ordered. 132 U. S. 14) KNOX COUNTY V. HARSHMAN. (October 28, 1889.) APPEAL-SUPERSEDEAS. motion was sustained, and the return quashed accordingly, the district judge, who held the circuit court, delivering an opinion, in which he said: "When the bond for $500 was taken and approved, the court advised counsel for respondents that it did not regard the bond for the sum of $500 as adequate to work a supersedeas, and it expressly declined to order that it should operate as such." The county then filed its motion for a rehearing of the moThe perfecting of an appeal from a decree tion to quash, and on the same day Harshdismissing a bill to restrain the collection of a judgman moved for an attachment against the ment does not operate to supersede such judgment. judges of the county court for failing to Appeal from the circuit court of the obey the peremptory writ. The motion United States for the eastern district of for rehearing was denied by the circuit Missouri. judge, who also refused to stay the collecGeorge W. Harshman, on the 28th day of tion of the judgment. The county, appelMarch, 1881, recovered a judgment by de-lant in this cause, which is the appeal from fault, in the circuit court of the United States the decree dismissing the bill in equity, as for the eastern division of the eastern ju- before stated, now moves for a writ of sudicial district of Missouri, against the coun-persedeas, requiring the circuit *court to* ty of Knox, in the state of Missouri, for the sum of $77,374.46 and costs, and on the 25th day of January, 1882, sued out an alternative writ of mandamus in the usual form, directed to the county court of said county, and the judges thereof, for the levy of taxes to pay the same. To this writ, return was made on the 23d day of March, 1882, setting forth the reasons relied on by respondents as justifying their refusal to make the levy required. Issue was joined on this return, quash the peremptory writ of mandamus of April 10, 1889, and restraining said court from issuing any other or further process in execution of said judgment, and commanding appellee to "cease prosecuting said peremptory writ of mandamus, and to surcease all further proceedings in execution of said judgment under the General Statutes of Missouri of 1866 until this cause shall have been heard and decided by this court." James Carr, for appellant. John B. Henderson and T. K. Skinker, for appellee. for Brown Bros. & Co. A. Goldthwaite and John M. Allen, for Allen and others. FULLER, C. J., (after stating the facts as FULLER, C. J. * The original action and* above.) Appellant's counsel contends that that of intervention and third opposition the appeal taken and perfected from the therein were brought in the civil district decree dismissing his client's bill of com- court for the parish of Orleans, La., and plaint operated, or should be made to petitions filed for their removal into the operate, to supersede the judgment, in col- circuit court of the United States for the lection of which the peremptory writ of eastern district of Louisiana upon the mandamus was awarded. That judgment ground of the diverse citizenship of the was recovered on the 28th day of March, parties. The cause was thereupon dock1881, and no proceedings in error have ever eted and tried in the circuit court, by the been taken, and no bond given to supersede judge thereof, on stipulation according to its operation. An alternative writ of man- the statute, and, upon his findings, judg damus was sued out, the cause shown by ment was rendered, and writs of error were the county court and its judges against prosecuted to this court. It appears from granting the peremptory writ was disposed the record that the citizenship of the parof by this court on writ of error, and the ties at the commencement of the actions, peremptory writ was directed to be issued. as well as at the time the petitions for reThe county of Knox then filed its bill in moval were filed, was not sufficiently equity to restrain the collection of the judg- shown, and that therefore the jurisdiction ment as commanded. No preliminary in- of the state court was never divested. Stejunction was granted, and upon final hear-vens v. Nichols, 130 U. S. 230, 9 Sup. Ct. Rep. ing the bill was dismissed, and a decree 518. This being so, the defect cannot be passed against the county for costs. cured by amendment. Crehore v. Railroad The general rule is well settled that an Co., 131 U. S. 240, 9 Sup. Ct. Rep. 692. We appeal from a decree granting, refusing, or are compelled to reverse the judgment, at dissolving an injunction does not disturb the costs, however, of the respective plainits operative effect. Hovey v. McDonald, tiffs in error, and remit the cause to the cir109 U. S. 150, 161, 3 Sup. Ct. Rep. 136; cuit court, with directions to remand to Slaughter-House Cases, 10 Wall. 273, 297; the state court. Leonard v. Land Co., 115 U. S. 465, 468, 6 Sup. Ct. Rep. 127. When an injunction has been dissolved it canot be revived except by a new exercise of judicial power, and no PUBLIC LANDS-Survey-VESTED RIGHTS. appeal by the dissatisfied party can of itself revive it. A fortiori, the mere prosecu-district surveyor of Texas for survey of certain On the hearing of a mandamus against a tion of an appeal cannot operate as an lands which petitioner had applied to purchase from injunction where none has been granted. the state, it appeared that the application was As stated by Mr. Chief Justice WAITE in made under Laws Tex. 1879, c. 52, as amended by Spraul v. Louisiana, 123 U. S. 516, 518, 8 Laws 1881, c. 33, providing that the applicant must Sup. Ct. Rep. 253, "the supersedeas pro- have the land surveyed by the surveyor of the disvided for in section 1007 of the Revised trict; the survey to be completed in 3 months, and Statutes stays process for the execution returned to the land-office in 60 days thereafter, of the judgment or decree brought under should receive his patent. Petitioner applied for when the applicant upon payment of the price review by the writ of error or appeal to survey of a tract, and, on depositing the fees, his which it belongs." The supersedure of pro- application was filed and recorded. Within three cess on the decree dismissing the bill could months, and before survey, the legislature withnot supersede process on the judgment at drew the land from public sale, and the surveyor law, and this is so, notwithstanding a bill then refused to make the survey. Held that, as peto impeach a judgment is regarded as an titioner had not completed the acts necessary to auxiliary or dependent, and not as an orig-give him a title, he had acquired no vested rights. inal, bill. The record presents no ground for the interference sought, and the motion must be overruled. (132 U. S. 27) JACKSON V. ALLEN et al. (October 28, 1889.) Where a case has been removed from a state to a federal court on the ground of citizenship, and after trial and the prosecution of writs of error to the supreme court it appears from the record that the citizenship of the parties at the commencement of the action, and at the time of filing the petition for removal, was not sufficiently shown, the defect cannot be cured by amendment, but the cause must be remitted to the circuit court, with direction to remand it to the state court. In error to the circuit court of the United States for the eastern district of Lousiana. E. H. Farrar and E. B. Kruttschnitt. for Jackson. T. L. Bayne and Geo. Denegre, CAMPBELL v. Wade. (October 28, 1889.) (132 U. S. 34), In error to the supreme court of the state, of Texas. This case comes from the supreme court* of Texas, and arises upon the following facts: By an act of that state passed on the 14th of July, 1879, the sale of a portion of its vacant and unappropriated public lands within certain counties, and what was known as the "Pacific Railway Reservation," was authorized. Laws 1879, c. 52. It provided that any person, firm, or corporation desirous of purchasing any of those lands might do so by having the same surveyed by the authorized public surveyor of the county or district in which the land was situated; and it was made the duty of the surveyor, upon the application of a responsible party, designating the lands desired, to make the survey within 3 months from its date, and within 60 days thereafter to certify to, record, and map the field-notes of the survey, and file them in the general land-office. The act provided that within 60 days after the filing of these pa successor in office, Samuel H. Wade, was, Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court. It was contended in the state courts, and the contention is renewed here, that the petitioner, by his application for a survey, had acquired a vested interest in the lands he desired to purchase, which could not be impaired by their subsequent withdrawal from sale. This position is clearly untenable. The application was only one of different steps, all of which were necessary to be performed before the applicant could acquire any right against the state. The application was to be followed by a survey, and the surveyor was allowed three months in which to make it. By the express terms of the act, it was only after the return and filing in the general land-office of the surveyor's certificate, map, and field-notes of the survey that the applicant acquired the right to purchase the land by paying the purchase money within 60 days thereafter. But for this declaration of the act, we might doubt whether a right to purchase could be considered as conferred by the mere survey so as to bind the state. Clearly, there was no such right in advance of the survey. The state was under no obligation to continue the law in force because of the application of any one to purchase. It entered into no such contract with the public. The application did not bind the applicant to pro 28. pers in the general land-office it should be the right of the person, firm, or corporation at whose instance the lands had been surveyed to pay into the treasury of the state the purchase money therefor, at the rate of 50 cents per acre; and that, upon presentation to the general land-office of the receipt of the state treasurer for this money, the commissioner should issue to such person, firm, or corporation a patent for the lands. And the act declared that, after the survey of any of the public domain as thus authorized, it should not be lawful for any person to file or locate upon the land thus surveyed. It was under these provisions, amended by an act passed March 11, 1881, (Laws 1881, c. 33,) which, however, did not materially affect them in the particulars under consideration, that the petitioner below, the plaintiff in error here, who was a responsible person, sought to purchase lands situated in El Paso county, of the state, to the extent of 115,000 acres, in tracts of 640 acres each. For that purpose, on the 16th of December, 1882, he applied to the surveyor of the county for the lands, which were fully described, and were of the character authorized to be sold* under the acts in question within the Pacific Railway reservation. The surveyor received, filed, and recorded the application. The petitioner paid the fees for such filing and recording, and demanded that the land should be surveyed for him as required by law. No such survey was, however, made by the surveyor; and on the 22d of January, 1883, before the time expired within which he was allowed to make it, the leg-ceed any further in the matter; nor, in the islature of the state withdrew from sale all the public lands mentioned in the acts in question. Laws 1883, c. 3. After this withdrawal the petitioner again applied to the surveyor for a survey of the lands, and tendered him the legal fees for making the survey; but the surveyor refused to make it, on the ground that the act of July 14, 1879, authorizing the sale, and the amend-portions of the public domain are opened atory act of March 11, 1881, had been sus- to settlement and sale, and parties having pended by the act passed January 22, 1883, the requisite qualifications are allowed to and consequently that he had no authority acquire the title to tracts of a specific to make the survey. The petitioner there- *amount by occupation and improvement, upon presented to the district court of the and their entry at the appropriate land-ofcounty of El Paso a petition for a manda- fice, and payment of the prescribed price. mus to compel the surveyor, or his succes- But it has always been held that occupasor in office, to make the survey, and return tion and improvement of the tracts desired, the field-notes of it to the general land-of- with a view to pre-emption, though absofice of Texas. The surveyor appeared in lutely essential for that purpose, do not the suit, and filed both an answer and a confer upon the settler any right in the land demurrer to the petition,-a procedure per- occupied, as against the United States, mitted, as we understand, under the laws which could impair in any respect the powof that state. The demurrer was on the er of congress to withdraw the land from ground that the petition disclosed no cause sale for the uses of the government, or to of action. The answer was a general de- dispose of the same to other parties. This nial of the allegations of the petition. Upon subject was fully considered in Frisbie v. the trial which followed, the court sitting Whitney, 9 Wall. 187, where this doctrine without the intervention of a jury, judg- was announced. It was subsequently afment was given in favor of the defendant. firmed in the Yosemite Valley Case, 15 Wall. An appeal being taken, the case was heard 77, where the court said that, until all the by the commissioners of appeals. Upon preliminary steps prescribed by law for the their report the judgment was affirmed by acquisition of the property were complied the supreme court. To review that judg- with, the settler did not obtain any title ment the case is brought here on writ of against the United States, and that among error. When the petition was filed in the these were entry of the land at the approdistrict court of the state, and its judg-priate land-office, and payment of its price. ment rendered, Ward B. Marchand was the "Until such payment and entry," the court surveyor of El Paso county. Pending the said, "the acts of congress give to the setappeal from the judgment, he died, and histler only a privilege of pre-emption in case absence of other proceedings, could it bind the state to sell the lands. The adjudications are numerous where the withdrawal from sale by the government of lands previously opened to sale has been adjudged to put an end to proceedings instituted for their acquisition. Thus, under the preemption laws of the United States, large |