for payment beneficial to the bondholders. This part of the contract is as important and as binding as any other. The provisions are, that the city shall not be sued, and that none of its property, revenue, or funds shall be taken upon any mesne or final process, and that none of the claims herein specified shall be liquidated or paid except in the manner herein provided.

Also, that "the annual interest and principal of all bonds issued for claims against the said city shall be paid from the interest and sinking fund provided by section 35, and in the manner otherwise provided in this act." The action brought against the city, therefore, in the face of these provisions of the contract, can not, in my judgment, be maintained, for the reasons and upon the grounds stated. The only remedy is to proceed by mandamus against the officers personally, to compel them to perform their respective duties as prescribed by the act of 1858, and under the act of 1863, also, so far as that act is in accord with the act of 1858. The supreme court, as we have seen, has held that it was incompetent for the legislature to repeal the provisions of the charter of 1858, so far as they affect the means provided for liquidation of these bonds. Consequently, that the board of trustees could be compelled by mandamus to provide the funds in accordance with the requirements of the charter of 1858; and, when so provided, that the treasurer having the custody of the funds could be compelled in like manner to pay the coupons as presented out of the funds provided.

There must be judgment for defendant on the grounds indicated, viz.: that a suit against the city is not the proper remedy, and can not be maintained in the face of the contract entered into under the statute; and it is so ordered.

BALFOUR ET AL. v. SULLIVAN, Collector, etc.
Decided March 10, 1884.

GRAIN BAGS MANUFACTURED IN THE UNITED STATES, RETURN of, FREE OF DUTY.Under section 9 of the act of congress of February 8, 1875, grain bags manufactured in the United States, when exported filled with American products, may be returned to the United States free of duty, notwithstanding such bags were manufactured from foreign material, and at the time of exportation the manufacturers were paid a "drawback" for duties on such material.

THE PROVISION OF SUCH SECTION AUTHORIZING THE RETURN "under such rules and regulations as shall be prescribed by the secretary of the treasury," does not authorize that officer to prohibit the return unless duties are paid.

SUIT to recover from the defendant, as collector of the port of San Francisco, the amount paid as duties on certain grain bags. The opinion states the facts.

Page & Eells and Milton Andros, for the plaintiffs.

S. G. Hilborn, United States attorney, and Ward McAllister, Assistant United States attorney, for the defendant.

By the Court, SAWYER, Circuit Judge. This is a suit to recover of defendant the sum of one hundred and eighty dollars, collected as duties on eleven thousand eight hundred and fifty grain bags, which collection of duties is claimed to be unlawful. The grain bags had been manufactured by Dietrick & Co., manufacturers of bags, at San Francisco, out of material of foreign production, upon which the importers had paid the proper

duties. The bags were stamped, "Dietrick-Drawback Right Reserved," and sold to grain producers of the state of California. These bags having been purchased by the grain growers, and filled with wheat produced in California, were, with their contents, afterwards sold to plaintiffs, in the ordinary course of business in the grain market, who shipped the wheat in the bags, as so purchased of the producers, to Liverpool, England, where the wheat was sold, and emptied from the bags, and the bags were afterward brought back to San Francisco, whence they had been shipped by plaintiffs, the ownership of the bags remaining in the plaintiffs from the time of their purchase filled with California wheat till their return to San Francisco empty. Upon their leaving San Francisco, filled with wheat, Dietrick & Co. claimed the drawback of duties paid on the material used in the manufacture of the bags, and the drawback was paid to them in assumed pursuance of the provisions of section 3019 of the revised statutes of the United States and the regulations of the secretary of the treasury for carrying those provisions into effect. On the return of the bags the plaintiff's claimed, upon various grounds, that they were entitled to bring the bags to San Francisco and receive them free of duty. The collector took the ground that the drawback having been paid on exportation, in pursuance of section 3019 and the regulations of the secretary of the treasury, duties must be paid; and plaintiffs were compelled to pay the duties claimed in order to obtain the bags. The action of the collector, in collecting the duties, was affirmed by the secretary of the treasury, and this action is brought to recover the duties so collected. Section 9 of the act of congress of February 8, 1875, "To amend existing customs and internal revenue laws, and for other purposes:" Sup., R. S. 130, provides that "grain bags, the manufacture of the United States, when exported, filled with American products, may be returned to the United States free of duty, under such rules and regulations as shall be prescribed by the secretary of the treasury. There is no exception to these provisions. The bags, whatever may be said of the material, were "the manufacture of the United States," and they were exported filled with American products, and being such were entitled under this act to "be returned to the United States free of duty." It does not appear to me that this explicit language is open to construction. The only exception is, that they shall be returned "under such rules and regulations as shall be prescribed by the secretary of the treasury." The authority of the secretary only extends to the modus operandi-the course to be pursued in identifying and returning the "grain bags;" and that power does not extend to an imposition of a duty in the face of the provision of the statute that they "may be returned * * free of duty." The statute in no sense authorizes the imposition of a duty, as a part of the rules and regulations to be prescribed by him. The omission to provide for a repayment of the drawback in such cases may be an oversight on the part of congress. But whether so or not, to require by regulation the collection of the regular duties upon bags manufactured in the United States, because the bags, when exported, paid a "drawback" for duties on the material of which they were manufactured, is to ingraft an exception on the provisions of the act, authorizing the bags which were "exported filled with American products," "to be returned * * *free of duty," which congress either did not see fit, or omitted to adopt. The secretary of the treasury was not authorized to make any such exception: Merritt

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v. Jones, 106 U. S. 466; Merritt v. Welsh, 104 Id. 702; Balfour et al. v. Sullivan, 8 Saw. 648.

Under the provision of the act cited, the bags in question were entitled to re-enter the United States "free of duty," and the duties on that ground were illegally demanded and collected. None of the other provisions of the statute cited affect this ground relied on for a recovery, and they therefore need not be discussed. There must be a judgment for plaintiff's for the amount of duties unlawfully collected, and it is so ordered.

CIRCUIT COURT, DISTRICT OF OREGON.

WALLAMET IRON BRIDGE Co. v. HATCH ET AL.

Filed March 3, 1884.

BILL OF REVIEW.-An application to file a bill of review, without the performance of the decree, ought to be made to the court by petition and on notice to the adverse party, and if it appears that the performance of the decree would destroy the subject of the litigation, it ought to be allowed.

IDEM. On the hearing of a bill of review, the court can only consider the errors of law apparent on the face of the record, and a fact found or determined by the decree is presumed to have been sufficiently proved by the evidence.

THE WALLAMET RIVER A NAVIGABLE WATER OF THE UNITED STATES.-The Wallamet river, though wholly within the state of Oregon, by means of its connection with the Columbia river, forms a highway for interstate and foreign commerce, and is therefore a navigable water of the United States, and subject, as such, to the control of congress. NAVIGABLE WATERS IN OREGON ARE COMMON HIGHWAYS.-The act of February 14, 1859, 11 Stat. 383, admitting Oregon into the Union, which declares that the navigable waters therein shall be "common highways, and forever free" to the citizens of the United States, is not a compact made with or condition imposed upon the state in consideration of its admission into the Union, but is, so far, an absolute and valid regulation, made by congress in pursuance of its power over the navigable waters of the United States, as a means of interstate and foreign commerce, which it might as well have enacted before or after as at the time of such admission.

OBSTRUCTION TO "COMMON HIGHWAY."-Congress, by the act of 1859, having declared the Wallamet river "a common highway," the state can not authorize any one to build a bridge across the same, which, under the circumstances of the case, will needlessly impede or obstruct the navigation thereof.

JURISDICTION OF THE UNITED STATES CIRCUIT COURT.-The Wallamet river being declared "a common highway" by congress, the question of what constitutes a needless, and therefore unlawful, obstruction thereto, arises under a law of the United States, and therefore the United States circuit court has jurisdiction to hear and determine a suit involving the same.

THE ORDINANCE of 1787.-Semble, that the clause in the fourth article of the compact in the ordinance of 1787, concerning the navigable waters of the north-west territory, was not abrogated or superseded by the formation of states therein and their admission into the Union.

BILL of review. The opinion states the facts.

George H. Williams and Rufus Mallory, for the plaintiff.
Walter W. Thayer and John M. Gearin, for the defendants.

DEADY, J. This is a bill of review, filed May 27, 1883, and brought to reverse the final decree given in this court on October 22, 1881, in a suit between the parties hereto, commenced by the defendants herein on January 3, 1881, to obtain an injunction restraining the plaintiff herein from further constructing a bridge across the Wallamet river, at the foot of Morrison street, in Portland, upon the ground that such a bridge as

said plaintiff was then engaged in building was an unnecessary and unlawful hinderance and obstruction to the navigation of said river-particularly with sea-going vessels-because of the insufficient character and improper position of the piers and the lack of width in the draw; that said bridge would be a public nuisance, injurious and damaging to the rights and interests of defendants herein as the owners and lessees of valuable wharf property in Portland, a short distance above the site of said bridge, and contrary to the act of congress of February 14, 1859, 11 Stat. 383, which provides, "that all the navigable waters of said state [Oregon] shall be common highways.'

An application was made to the district judge on the bill, and affidavits and counter-affidavits for a provisional injunction, and after a hearing, in which the corporation maintained its right to build the bridge in question under and by authority of an act of the legislature of Oregon, of October 18, 1878, authorizing "the Portland Bridge Company," a corporation formed under the laws of Oregon, "or its assigns," to build a bridge, "for all purposes of travel and commerce," across the Wallamet river, between Portland and East Portland, "at such point or location on the banks of said river," as it might select, "on or above Morrison street of said city of Portland"-" provided that there shall be placed and maintained in said bridge a good and sufficient draw of not less than one hundred feet in the clear, in width, of a passage-way, and so constructed and maintained as not to injuriously impede and obstruct the free navigation of said river, but so as to allow the easy and reasonable passage of vessels through said bridge."

On March 28, 1881, an order was made continuing the application for an injunction until the April term, and until the circuit judge should be present, and restraining the corporation in the mean time as prayed for in the bill: Hatch et al. v. Wallamet Iron Bridge Co., 7 Saw. 127.

On April 11, 1881, the corporation put in its answer to the bill, alleging that it was a corporation duly formed under the laws of Oregon, and the assignee of the Portland Bridge Company aforesaid; and admitted that it was building the bridge, as alleged, under authority of the act of the legislature aforesaid, except that the draw was one hundred and five feet in the clear, instead of one hundred, and that the piers were sufficient and at right angles with the current; and denied the same was or would be any hinderance or obstruction to the navigation of the river, or any injury to the defendants herein.

At the April term the application for a provisional injunction was further heard upon the bill, answer, and further affidavits and counter-affidavits, before the circuit and district judge, the counsel for the plaintiff herein then conceding that the law of the case had been correctly ruled on the former hearing before the district judge: Hatch v. Wallamet I. B. Co., 7 Saw. 127; and that the only question in the case for the consideration of the court was whether, under the circumstances, the proposed bridge was an unreasonable use of this common highway; and on April 17th an order was made allowing the provisional injunction restraining the corporation, as prayed for in the bill: Id. 141.

Subsequently the cause was put at issue by the filing of a replication to the answer, and testimony taken by both parties; and at the October term it was finally heard before the circuit judge, who, on October 22, 1881, gave a decree therein for the defendants herein, perpetually enjoining the corporation as prayed for in the bill; and also requiring it to remove the

material already placed in the river in the construction of the peirs. From this decree an appeal was allowed to the plaintiff herein on October 22, 1883.

An application was made for leave to file the bill of review, without first performing the decree requiring plaintiff therein to remove the unfinished piers from the river. The application was based upon a petition or allegation in the bill, stating the grounds thereof. Upon notice to the adverse party, it was heard and allowed upon the ground that the performance of the decree, in this respect, would involve large expense, and the destruction, so far, of the subject of the litigation, so that, if the decree is reversed for error, the plaintiff herein will nevertheless suffer an irremediable loss, as in the case of the cancellation of a bond in obedience to a decree: Story's Eq. Pl., sec. 406; Davies v. Speiden, 104 U. S. 83.

But I think the better method of making the application is by a separate petition for that purpose, against which the adverse party may show cause and the matter be fully heard and determined thereon. The right to file the bill may depend upon a question of fact not determined or affected by the proceedings or decree in the case, as the pecuniary ability of the party to pay a given sum of money, and therefore the application should be made in such manner as will best enable the parties to be fully heard in the premises.

The rule requiring the performance of the decree is said to be "administrative" rather than "jurisdictional," and therefore a bill filed without such performance or leave would give the court jurisdiction to review the decree; and if the adverse party did not move to strike it from the files, he would be held to have waived the objection: Davis v. Speiden, 104 U. S. 85.

The defendants herein demur to the bill, for that there are no errors in the record, nor any sufficient matter alleged in the same to require a reversal of the decree. The bill contains an assignment of errors, eleven in number, most of which are predicated upon the reasons given in the opinion of the court allowing the provisional injunction, rather than the decree itself, and all but one are simply variations of the allegation that the court erred in deciding that the act of congress of February 14, 1859, was in any degree a limitation or restraint upon the power of the state to obstruct or authorize the obstruction of the navigation of the river by the construction of a bridge of any character across the same. The exception is the assignment No. 4, which alleges that the court erred in deciding, as a matter of fact, that the bridge in question is or will be a nuisance and serious impediment to the navigation of the river.

This is a proceeding to review the former determination of this case, and obtain a reversal of the decree then given therein, for errors of law apparent on the face of the record-the pleadings, proceedings, and decree-without reference to the evidence in the case: Story's Eq. Pl., sec. 407; Shelton v. Vankleek, 106 U. S. 532. No question is made but that the allegations of the original bill are sufficient to authorize the decree; and the law presumes that the evidence was sufficient to sustain it.

It follows, then, that for the purpose of this proceeding it must be considered settled that this bridge, as and where it was being built, is and would be, as a matter of fact, a serious and unnecessary impediment and obstruction to the navigation of the river, by reason of which the defendants herein suffered and would suffer, as riparian proprietors, special damage.