'(68
I'EDERAL RlllPORTER,
vol. 41.
States,the provisions" bf the state statute of
'fiot "apply has so de(}lared. If, then, an;action at law is m/!-iJ;1tainable by the receiver for the purpose of enforcing the liability of the ,direptQrs created by section 5239, there seems to be no statutory provision limiting the time within which such action may be brought. If, however, the remedy against the directors is by a proceeding in equity, the court, in the absence of statutoty limitation, can apply the recop;nizedequitable principle of refusing to give relief claimed upon stale antiquated demands, or where there has been laches on part of the complainant or long acquiescense on part of those now seeking relief, but would not, of course;ibe justified in refusing relief upon such grounds, unless the facts of the (J8se were suchnsto clearly demand the application and second grounds the demurrer is sustained. oUhe,rule. Upon the
!, '
(Cil'cmt Cowrt, E. D· ..ArH:ama,. January, 1800.)' LAW-J)BUmt1IlRS' Tn...,.INTJllRSTATB '" ·
I.,
. 'An agent of a foreign oorporation, selling rapges whioh have been previously shipped into the state, and there stored, oallnot avoid the payment,of the lioensere, quire<lof stove.range agenUi 'by Mansf.Dig., Ark. 55589, onthll. ground that he is engaged in interstate commerce. ,I
1/.nder theoonstitutioll,.of Arkans8s,as .nterpreted by supreme court of the state. no tax oan'be imposed upon and pursuits f,?r the purpose of raising a state revenue, Mansf. Dig. Ark; § 5589,' requiring a certam sum to 'be levied" lIS II stll,1;ertax agents doing; business in this state forthe term of One year or fess, n ls,unconstitutlOnaL 8. FBDBIUL' COtmTS-JURISDIOTIONAL AMOUNT-FALSB IMPRlS()NMENT.
.u
,
, Oucomplaint for false imprisonment. with damages laioi at'$10,OOO, it oannot be said that the amount in oontroversyislessthan$2,OOO, and not within the jurisdiction of the circuit court, though plaintiff was deprived of his liberty for onlt 15 , minutes, for refusal to pay a lioense demanded of him as a stove-range 8goent.
f$lse imprisonment. by M. J, HynesagainstW. H. Briggs and J.,R. Ferguson,,for,false imprisonment,amUs submitted upon the following agreed stat6J;llent of fact!!: . is, and was at hereinafter mentioned. the sheriff of Howard. l(j)unty,Ark., and justice of the peace in . ,the general agent of the Wrought and for said., county. l;'laintitf is and Iron RangeQ<>mpany; afol'cign corporation duly incorporated'under the laws of thestat\i 'of MisBouri,'with headquarters in the city of St. Louis. Mo. Prior to the date iofthe' filing oftlle affidavit set out in dpfendants' answer, plaintiff had been engaged fntheeali:l and delivery of stove ranges in Howard county, Ark., alii agent fOlthe Wf(,ught Iron Range Company, in the following manner: were shipped. to Nashville, Ark., by thl! ·. signed to tbe,Wrought Iron Range then stored by plaIntiff 1n the raili'oaddepot. Which had been rented by' plaintiff for that purpose. Plain7 tiff had many subagents under him in Howard and surrounding,connties. Plaintiff sold stove ranges to variouspal'Ues 'in Howard county,sometimes
At
LlI.:W, , Action for
BYNES
v.
nll.IGG&
upon written orders, and sometimes without any order, and delivered the ranges out of the stock on hand in the depot. Plaintiff's subagent, in one instance. is alleged to have sold the sample ra,ngefrom his wagon, and then and there delivered it to the purchaser. There were fi ve car-loads of stove ranges. There were five separate car-loads of ranges shipped to Nashville from St. Louis, Mo., seventy-two to the car-load, and each car-load consigned to the Wrought Iron Range Company. Some orders were received for ranges before they were shipped, but tbese orders did not cover the number of ranges shipped. Plaintiff can give no estimate of the number of orders received before the shipment of the ranges. Defendant Briggs, as sheriff of Howard county, demanded of plaintiff his license to do business as agent for the stoverange company about two weeks befora the arrest was made. Hedeclined to pay any license. Defendant Briggs thencollsulted with W. M. Green, the 'prosecuting attorney for the eighth judicial circuit, including Howard county, as to his duty in the Mr. Green advised the dt'fendant Briggs to make complaint against plaintiff and his subagents for doing business as agent for the stove-range company without first procuring license,anu prepared the affidavit which was made by defendant Briggs, and filed before defendant Ferguson, as set up in defendants' answer. Upon tpis affidavit a warrant was issued by defendant Ferguson, and pI:aced in the hands of R. F. Tilson, deputy town marshal of Nashville, and by him executed. Plaintiff was arrested under this warrant by ,said deputy-marshal, and given an opportunity, to make his bond, which was -!ixed by the defendant Fergusonat $250. This bond was made in about fifteen minutes, and plaintiff was released from custody fOlthwith. Plaintiff was not restrainedo! his liberty other than this. The deputy-marshal accompanied him while he procured his bond. With ref.orence to the sale and of the sample range, E. F.Moles and:G. D. Hodge wiUboth testify that J. E. Keener, a sUbagent under plaintiff. told them, before the warrant Wj\S issued, that he (Keener) made more salesthlln any of the rest of the boys ; that he had even sold the sample range .off of. his wagon and delivered it. Plaintiff denies that he ever sold, or authorized' the :sale of.·a single sample range from the wagon. Plaintiff further says that until the ranges were suld and delivered they remained the property of the Wrought Iron Range Company, and plaintiff had no interest in them except .as agent to sell and deliver. Plaintiff alleKes that his subagents sold the ranges, took the purchasers' notes therefor, subject to the approval of plaintiff. If plaintiff saw,fit to confirm the sale, he delivered to the pur.chaser the range from his stock at Nashville, and took the purchaser's receipt therefor; One of the blanks is hereto attached."
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469
U. M. & G. B. R08e, for plaintiff. Scott &- Jone8, for defendants. CALDWEr,L,J., (after stating thefact8 as,above.) The plaintiff was agent 'in this state for the Wrought lron Range Company,s Missouri corporation. Section 5589, Mansf. Dig., provides that"There shall be levied and collected, as a state tax, the sum of one hundred dollars upon each and every: clock peddler, each and every agent for the sale ·of lightning rods, and stove-range agents, doing business in tpis state for the term of one year or less." The plaintiff refused to pay the state tax mentioned in this section; :and thereupon the defendants instituted a prosecution against him un.der section 5594, Mansf. Dig., and arrested and detained him as set out in the agreed statement of facts. The plaintiff claims that hisanest was
theiaCt dfthe constitutiolfbflHe Urlifed States' *l1ich ctmfers on dongress the behyeent}ie and that it is alsp tQ, state... court of the Vriited {lases,. have denned what i$.Aitad,what'is. not "intentate commerce"with considerable precision. Itis':settled by the decisions ofthll.tcC!lurt thatthe sale of goods which ofthe:sale, forthe purpose of introducare in anl)therstate Jnto the Which 'tIl'e" is lllade, is interstate .. A tax on sale of; SJ,1chgoodli ,ll.re brough t: ,t1:le is a tax Hself jand a license or pri viJege:tax Jor,negotiating the sale 1n:006lstate of goods in another is, in effect,. a tax on the goods sold, ands 'state cannot levy:;/1 tax on goods 11.'.0.,,t 'i\'(.it.h. ... . . n... " R. ,.Obbi.,,# .':R, U S. 489, 7 Sup.9t;;Rep. 592._ Br(y/vn, v: lIoU8lO'n. li4 U. S.622, Sup. Ct. Rep. v. Par!i4m,.8 Wal1.123jqook v. 97 U. S. Q66; u.S. 275. Butwhengoods:aresent from one state to another for sale· they bedome II. part of ,the general property" of':the state'intowhichtbeyare introqubed. andametlable to its laws. United States which pro-ld., ..Thereis nothing in theconstittiW:m levyhiglil;1ytax it seea proper within its juand p!l.r.t;of its genera,lproperty. The st-ove J1l,Pges wbich the plaitititf was engagedin selling were shipped, by, the corpmatiOllwhichmanufactured and'owned them, .from the state of Missouri; where they were ,into this stlite, consigned to itse,lf·.. dTbe:rnhges before t11ey .were They were state to be j II,Qd they. were received by., its placed intlle store-house fOf future sale. It was frow the, ranges so stoT.ed ,that the plaintiff made hie sales;' and .filled his orders. He was :not: a drummer taking orders for' ranges'then 011t of the state. and to bethereaftershipped'into the state. i? He was not; therefore, immunity from the tax imposed on agents on that ground. The validity of the statute under the' c6ristitution of the state remains to be considered. It is the settled 'law ofthisstatethlitthe-Iegislature can authorize counties and towns to tax all callings and pursuits, but that no McGehee, such· tax can be imposed for. v. Mathis, 2LArk.40j$t1'(1ub'v. GordOn t '27 Ark.62'5jOity ofL'ttlec1lOclC i v. Barton, 33 Ark. 442j,eilY/if liittl$;Ro'tk'v.Boara,,42Ark.160;Baker' v. State, 44 Ark. 134; The tax .impoaed: on stove-range ag'ents is " a state ta!X.1l The nota 'broker oi"peddlerl"and was not prosuch. It'ls true that'hewas acting Rsagent fora ration of another state; but the act does Dot purport tCl impose,' and was not tQ impose,,,the:tax on foreign:corporatiol1s or their agents fOl1:the ,}i»'ivilege ·of doing business in the· state. ,It,iscompt'tent for theto. declare on what terms foreign .corporations may,do businesa iJ;1Jthestate, butthelstatute: !lnder consideration., was: not an actfol"
iJJegal; updn't1l.le ground eti1l!i6'1teonflicts with'
ixl¥
as
that purpose. To make it such would be jUdiciallegisJation. The propill this state is liable to taxation like all erty of the stove-range other property in the state. The taxation of stove-range companies, as corporations, forth:eprivilege"ofidoing'bu'siness'in: the state, or for any is " specificall! provided for'" qf the provision 'of sectlOn 17 of the 'act of 'Martlh 28,1887, amebdarory of ;·Mansl.Dig. It reSults that imposing·a tltate, tax on are or peddlers, for'se)ling;:the goods of , heir { principals:in this ,state, is'repugnant to thecol1$titution of the state, as the supreme the state, ... ' " The ·defendantsehallenge' tbe-jurisdictioo of the court 00 the g,round that frptn .the agreed \)f facts" it .appears thllt the amount in controversy $2,000 , and that the plaintiff kIloW;ti hi$ were much less;ijlanthat sum he instituted his8uit. "The damages are laid io the complaint at $10,000. 'It is by nO'meaos 'certain that the plaintiff did (e,elthat he had peen greatly outraged, and that he ought to recover heavy damages from the persons who arrested him, and restrainectbim, of his liberty, sanction of any law. He was a business mall; to be restrained of his liberty.! ,fo,t: so sDor,ta,time,9Il, a charge of viqlating the criminal laws of the state in' the conduct of his business, was weH and hnpress him \Yith eflt wasentjtled twexemplary ,dllmages. Nothing than the dat;nages that can .be; by.!J. jury in, an The assessIAAm:of damages is ·action .for liQIe, by the length. 'f4e rule of action, AAd thepQllSible results,io ;Qlass of cases wa,s 'welJ expressed bY;Lor,d ,Temple,in a speech hQuse of lords; when JWsaid: . , Doblll has IbelieYe, on other sllidwel!, the.price of One houJ,"'sEng!ish libertynone,h9t , rury cO,old est! qiilte. juries, u nl1erbls guidance, hare' very'hlgb value upon it,in of the meanest of (1\lr fellow-subjects, .' when oppress,ed by' the servatltll' of' the state." 6 Campb. Lives Ld., Cb. 384. · . ,No ,saying that,an American juryc,ofildnot damages to a citizen who rightNJ,lysJvard 'illegallyAepnved o(his 15 minutes"b:r a public 9fHceractof. any, law. The doctrine of Maxwell' v.. Raillng without r,oadC]o., Rep; to a case like this. · '.. I ' " " .- '. . ',." , , ·- · .' : ' ". ; : ,
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I'EDERAL REPORTER.
In re BARUCH. D.NtIW York. January" 1890.) I1ft'JmN<\TIONALExTBADITION-DISClUBGB OJ' !'nISONBR-ARRBS'l' IN OTIIBR I'ROCBBDINGB. ' ',',' ,
Up0n a warrant issued by of this court, the prisoner was brou/1ht New JeI'lley, for examination in a proceedmg ihe.-e by the marshal from the to extradite him to Austria, l'1pO'n a Oh&rge of embezzlement of public funds. The charge not being sustained; "the: commissioner discharged the prlllonc8r, and the latter, upon leaving the commissiouer'll'OPm, w.as arrested, bythll ,llherlft upon an order of arrest in a civil suit in, the I,tatecourt to recover the same funds. Both proceedings :werE! promoted and prolleouted bytbe same agents and attorneys. Held, decided in the cas9 of U. S. v. tbattl1!l case fell within thegener,"aJ, BeCher, 11j1 U. S. 407,7 Bup. Ct. ReP. 2M, aIla that of In T6 Reinitz. 89 Fed. Rep. 204, aU,d, tha,t, th(l prisoner WBS:ett., "e,d," ,to mmunity from, arres,t, until, tbe lapse of a , , reas,Qnable ti1Xle to return to N.,ew Je1'l!81, wbence he bad beenbrougbt, and one day was alloWed for that purpOSll. Held, .('wrther, that in to prevent conflicts of jurisdiction,it,iW&s eoinpetlmt {or the oommissionerto direct the marwhence he had been and that he be shal,to,take tl;1e prisoner to thereupon discbarged. ' . i,
Habeas CoryUBand B. LoMy, for petitioner.' Solomon, Dulan Jc Suflro,' fOfopposing creditor. BROWN',J·. On September 21, 1889, the prisoner was arrested in the state of New Jersey by a depUty of the United States'marshal of this city, upon,'R warrant issued 'by a cbmmissioner of this C0Urt, upon the petitiOIt of the Austro-Hungarian consul, for the purpose of procuring the extI'adition of the prisoner:from this country to Austria, under the treaty the two governments, upon & charge of embezzlement of the public funds of the Austro-Hungarian empire. The prisoner was brought to'tbis state, and, durin$lthe pendency of the 'extradition proceedings.before'the commissioner, he was imprisoned in"Ludlow-Street jaiL' ,OJ;l of SepteOlber' following, it appearing that the charge of could not besijstalned; tbe extradition proceedings were discontinuep, ,and the prisoll!'lr discharged by the Upon 'going QutoUhe door of the,QorD:rnissio,ner's room, he was sheriif..of copl1tyof New York, an or4er of imestissued a9Iv¥ SUIt,In the supreme court of thIS state, brought on behalf of Baruch, the brother, on account of the alleged conversion of the same fund's' Which the extradition proceedings alleged to have been embezzled. The civil suit was also prosecuted through the Austrian consul, as the agent of Daniel Baruch. The same attorneys acted in both proceedings, and the papers for the arrest of the prisoner in the civil suit were prepared during the few days prior to the discontinuance of the extradition proceedings. The prisoner is now brought before this court upon habeas corpus and certior.ari, and his discharge is asked on the ground that his arrest in a civil suit was made before the lapse of any opportunity to return to New Jersey, whence he had been brought on the warrant in the extradition proceedings. The case is in some respects different from that of In re Reinitz, 39 Fed. Rep. 204, r&