Brooks v. The Phoenix Mutual Life Insurance Company.

then, it appears, under a stipulation that the removability of the case should not be affected by it. Probably, the stipulation would not help the jurisdiction; but, there has been no motion made to remand the case, and, as the want of jurisdiction is not clear, the cause is retained, although, when it appears, of course distinctly, it seems to be made, by the Act of March 3d, 1875, (18 U. S. Stat. at Large, 470,) to determine the jurisdiction of the Circuit Courts of the United States, &c., the duty of the Court to remand the case, of its own motion. But, in section 968 of the Revised Statutes of the United States, it is provided, that, in cases originally brought in a Circuit Court, in which the jurisdiction depends upon the amount in dispute, if the plaintiff recovers less than five hundred dollars, exclusive of costs, he shall not be allowed, but, at the discretion of the Court, may be adjudged to pay, costs. In the Act mentioned, it is provided, (sec. 6,) that, in all suits removed under its provisions, the Circuit Court shall proceed the same as if they had been originally commenced there, and the same proceedings had been had there, as had been had in the State Court. This appears to include proceedings in respect to costs as well as the other proceedings in a cause. This cause was removed under that Act, and comes within the provisions of it, and those of the section of the Revised Statutes cited. Under both, the plaintiffs are not entitled to recover costs, but no reason is seen for adjudging them to pay costs. The costs in the State Court were paid. as a part of the sum tendered, expressly for that purpose, and the part so tendered must rest as so applied, and cannot be taken out of the amount of the demand. The object of the statutes is to restrain bringing suits into the Federal Courts where the amount in dispute, not the amount claimed, is less than five hundred dollars. In this case, the amount really in dispute was always clearly less than that sum.

There must be a judgment for the plaintiffs, for the balance due, $294 58, without costs.

Henry C. Ide, for the plaintiffs.

Walter P. Smith and Luke P. Poland, for the defendant.

A corporation which maintains a driving track, with stands and other conveniences for horse-racing, and annually, for several days in succession, devotes such track to horse-racing, and keeps its grounds open, for pay, to the public, and realizes money therefrom, is not liable to a tax on its gross receipts, under § 108 of the Act of June 30th, 1864, (13 U. S. Stat. at Large, 276,) as conducting a public exhibition of feats of horsemanship, or a show which is opened to the public for pay.

(Before WALLACE, J., Northern District of New York, April 16th, 1879.)

*

* *

WALLACE, J. This is an action to recover the amount of a tax claimed to be due under section 108 of the Act of June 30th, 1864, (13 U. S. Stat. at Large, 276,) which provides, that "any person, firm or corporation, conducting or having the management of any theatre, opera, circus, museum, or other public exhibition of dramatic or operatic representations, plays, performances, musical entertainments, feats of horsemanship, acrobatic sports or other shows which are opened to the public for pay, but not including occasional' concerts, school exhibitions, lectures or exhibitions of works of art, shall be subject to and pay a duty of two per centum on the gross amount of all receipts derived by such person, firm, company or corporation from such representations, plays, performances, exhibitions, shows or musical entertainments."

The defendant is a corporation existing under a special Act of the Legislature of the State of New York, which permits it to acquire land for a public park, and to construct riding and driving tracks and fair or show grounds; and it is authorized to give premiums to encourage competition and improvement in the mechanical arts, in the breed, usefulness, pace and value of horses, cattle and other domestic animals, and in agriculture and horticulture. It is authorized to charge for admission to its grounds. Pursuant to the object

The United States v. The Buffalo Park.

of its incorporation the defendant did construct a driving track, with stands and other conveniences for horse-racing, and annually, during the period for which the tax is claimed, for several days in succession, devoted its driving track to horseracing, and kept its grounds open, for pay, to the public, realizing therefrom the sum of $58,284. The question in the case, and the only question, is, whether such an exhibition is within the statute which imposes the tax. It is an exhibition of feats of horses and not of their riders, and, therefore, not within the statute, as an exhibition of "feats of horsemanship." If such an exhibition is included, it is because it is one of the "other shows which are opened to the public for pay," within the meaning of the statute. If it had been intended to tax the receipts of all public exhibitions, that purpose could have been tersely and completely expressed, without enumerating specifically various kinds of public exhibitions. The enumeration of the specified exhibitions indicates that these were the special subjects of legislative consideration. Some effect, however, must be given to the general descriptive term, "other shows;" otherwise, it would not have been employed. This is done by construing the general term to cover all other exhibitions of a similar kind to those which were present to the legislative contemplation, but not to include such as are not reasonably suggested by those specifically described. In the construction of statutes and of contracts, where general words of description follow particular ones, the general words are controlled and limited by the particular ones, so as to apply to subjects ejusdem generis. Thus, in the case of Sandiman v. Breach, (7 B. & C., 96,) the statute enacted, that no "tradesman, artificer, workman, laborer, or other person," should do or exercise any worldly business or work of their ordinary callings upon the Lord's day, and it was held that stage drivers were not included in the terms "other persons."

The statute in question forms part of a comprehensive scheme of taxation, one feature of which is the taxation of the profits or income of business avocations. Among well

The United States v. The Buffalo Park.

recognized business avocations is the management of many kinds of public exhibitions. Other public exhibitions, although conducted for profit in exceptional instances, are not primarily conducted for this end. It is evident that this distinction was present in the minds of the Legislature. Operas, museums, circuses and theatres are particularly mentioned in the statute, and they are all of the class of exhibitions ordinarily presented for profit and managed as business ventures. Closely approximating to theatres and operas are "exhibitions of dramatic or operatic representations, plays, performances, musical entertainments," and to circuses are "feats of horsemanship or acrobatic sports," but with differences which suggest the necessity of a particular enumeration. Then, for greater precision, the statute excepts certain entertainments or exhibitions which might otherwise be deemed included in the class described, but which are usually presented not primarily for profit, but for the education and improvement of the public. Thus it seems that the line is quite clearly defined, between exhibitions which are intended by their projectors for profit, and usually managed as business enterprises, and those which are not followed as business avocations. Fairs, industrial exhibitions and entertainments for charitable purposes, are all of them "shows which are opened to the public for pay," but they are not named and are not within the description of the exhibitions taxed. They are as much so, however, as are horse-races, base-ball matches, regattas, or various other "shows," which might have been subjected to tax. The defendant is not liable to a tax.

Judgment is ordered for the defendant.

Richard Crowley, (District Attorney,) for the plaintiffs.

Bass, Cleveland & Bissell, for the defendant.

Phelps v. The Town of Yates.

WILLIS PHELPS vs. THE TOWN OF YATES.

By the Acts of the Legislature of New York, of May 11th, 1868, and April 19th, 1869, (Laws of New York, of 1868, chap. 811, p. 1,823, and of 1869, chap. 241, p. 447,) commissioners appointed for a town were authorized to borrow money on the faith and credit of the town, "and to execute bonds therefor, under their hands and seals," in aid of a railroad. The commissioners executed bonds and delivered them to the officers of the railroad company. The bonds, when so delivered, contained a recital, over the signatures of the commissioners, that they were issued under the hands and seals of the commissioners. In a suit against the town, on coupons belonging to the bonds, by a person who purchased such coupons for value and bona fide: Held, that the town could not be allowed to show that the bonds were so delivered before any seals were affixed, and with the dates and numbers of the bonds in blank, upon the understanding that the bonds were not to be negotiated until certain conditions on the part of the company were fulfilled, but that, before such conditions were fulfilled, the officers of the company affixed seals to, and inserted the dates and numbers in, the bonds and negotiated them.

(Before WALLACE, J., Northern District of New York, April 16th, 1879.)

WALLACE, J. The motion for a new trial, on the ground of newly-discovered evidence, must be denied, because, assuming that the defendant would be able to prove, upon another trial, the newly-discovered facts, these facts would not constitute a defence, nor would they be admissible in evidence. The plaintiff was shown, upon the former trial, to be a purchaser of the coupons upon which the action was brought, for value and bona fide, and no evidence to impeach his title as such purchaser, sufficient to go to the jury, was offered, and none is proffered now. The simple question is, whether, as against such a purchaser of the coupons, the defendant can be permitted to show that the bonds to which the coupons were originally annexed, were delivered, by the agents of the defendant, to the officers of the railroad company, before any seals were affixed, and with the dates and numbers of the bonds in blank, upon the understanding that the bonds were not to be negotiated until certain conditions on the part of