The national Republican., 1867-03-01
THE COURTS.

man, Esq, Of Wisconsin, was admitted an attorney
and counsellor Of this court
On motion Of Hon. J. II. Williams, Milton Kelly,
Esq, Of Idaho Territory, was admitted IN attorney
and counsellor Of this court.
On motion Of Z. Q. Benedict, Esq, Smith Z.
Lane, ESQ.,, Of Nov York city, was admitted an at.
torney and counsellor Of this court.
On motion of Hon. II. M. Corwiue, Hon. s. W.
Moulton, Of Illinois, was admitted an attorney and
counsellor Of this court.
On motion of Mr.. Carlisle, Hon. Hezekiah s.
Bundy, Of Ohio, was admitted an attorney and
counsellor Of this court.
No. 1926. Charles Bluejsckst ct al, plaintiff In
errorvs. The Board Of Commissioners Of the county
Of johnson.
No. 326. Yellow Beaver ct al, plaintiffs in error,
vs. the same; and
No. 1927. wun.zop.enh ct nl., plaintiffs in orrsr
vs.. the same.
On motion of Mr.. Ashton, Assistant Attorney
General these causes were set for argument on the
first Monday in April next.
mo. 1855. Tho ship Bird of Paradise, appellant,
vs.. Leonard Heyneman. The argument Of this
cause was commenced by Mr. Benedict, Of counsel
for the appellants continued by Mr. Nash, Of coun-
sci for tho appoIees; and concluded by Mr.. Bene.
dict, Of counsel for appellant.
Ordered by the court, that tho clerk be author.
lied to issue the mandates in all decided at
the present term Of this court to date
Adjourned until the first Monday In April next.
Philadelphia and her gas teorks-b tie city the
oCn1 Of The tcorkS IN such sense a, to erempt
from tar the gas used in Hghting her streets p
City Of Philadelphia, plaintiff in error, Us. John
H. DiehL-This Is q writ Of error to q judgment
Of the Circuit Court Of the United States for the
Eastern District Of Pennsylvania, in an action Of
assumpsit brought by the city Of Philadelphia to
recover certain moneys, amounting to S26,s75.57,
paid under protest to the defendant collector OF
internal revenue, for duties upon illuminating gas
manufactured and furnished by the trustees Of the
Philadelphia gas works and consumed by the city
In her public lamps during the last four months Of
the year 1882 and the drst six months Of the year
1868. The action was brought in the District
Court for the city Of PHILADELPHIA on October 81,
1858, and removed by esrtiordri on November rs,
In the Circuit Court Of tho United States, under
the Sd section Of the act Of March 2, 1888.
On the trial Of the cause the plaintiff requested
the court to give sundry instructions to the Jury,
to the effect that gas furnished to the city Of Phil
adelphia and consumed In her public lamps was
not liable to duty, as claimed by the Government,
under the internal revenue act OF July l. 1862 and
the supplement thereto Of March 3, 1868. Tho
court declined to charge tho jury as requested by
tho plaintiff, and instructed them-
First. That all illuminating gas manufactured or
made and sold or furnished by the trustees Of the
Philadelphia gas works, created and constituted as
said trustees are, by the several laws and ordi.
nances given In evidence In relation thereto liable
to tax under the act Of July J. 1862, and March 8,
1903, whether the gas was furnished to and con.
sumed by private consumers or was furnished to
and consumed by the city of Philadelphia In her
public lamps at the rates fixed by tho trustees
and regulated by the ordinances which require the
trustees to furnish gas for consumption in the pub
consumers
Second That tho trustees of the Philadelphia
gas works, by the laws and ordinances creating and
constituting them quasi corporation, and by
reason Of the several loans created for the support
and management Of the gas works, hold such a 70.
n nriv he lnan hnII -
the city Of Philadelphia that all illuminating gas
manufactured, or made, or sold, or furnished by
them to private consumers, or the city Of Phadel.
pha, to be used In public lamps, liable to and
chargeable with the tax imposed by the acts of
July l, 1862, and March 3, 1858; and that IL was
the duty Of tho jury to find verdict for the de.
fendant. Such a verdict was rendered and judR.
ment entered thereon.
The city Of Philadelphia appealO to this court,
and urges that the provisions Of the acts of Con.
gress imposing tax on gas do not apply to gas
manufactured and used by municipal corporations
for public lamps under the corporate duty to light
the highways. The jury should have been In.
struoted therefore, that II they believed from the
evidence that the gas on which tho taxes had been
paid to the defendant under protest was manufac.
tured by the plaintiffs, mot for sale but for their
own use and consumption" the plaintiffs were en-.
titled to recover back the taxes so paid
The Government contends that as the gas con.
sumed In the public lamps Of the city Of Philade.
phia Is manufactured at the Philadelphia gas
works and payment Is made therefor by the mu.
niepalty to the trustees Of the works. 1t Is liable
to the tax imposed.
These gas works wero constructed by means Of
money subscribed by private individuals for which
they received certificates Of stock emitting them to
the prohts arising from tho manufacture and sale
OF gas The ordinance Of 1885 provided that the
works should be under the exclusive control and
management Of twelve trustees elected by tho
select and Common Councils Of the city. It also
provided that tho public lamps should be supplied
at one half tho price paid by private consumers.
The original capital was limited to $lO0,OO0i and
to increase the means necessary for the extension
of the works, subsequent ordinances were passed
authorizing loans and providing that the money
should be borrowed by the city on the requisition
Of the trustees and that city certificates should be
issued to the loanholders sinking fund was
created out Of the proceeds Of sale Of gas before any
profits were dstributable to tho stockholders as
security for the lOan-holdep The interest on the
certificates Of loan was declared payable at the
office Of the gas works.
The original ordinance of 1885 having reserved
to the city the right to take possession Of the gas
WORKS. an ordinance OF January H. l841 provided
that on March !, l84l, the city should take pos.
session OF them in their own right, and that the
stock should be converted into loan. Possession
was taken by the city but the works were continued
by the ordinance of ls4l, under the direction and
Of the existing trustees The only
change In the relation of tho trustees was that they
thenceforth were trustees for the city and the loan
holders, not tho shareholders. Several ordinances
were subsequently passed authorizing further loans
They stipulated that, for the further security of
the loanholders, the works should be controlled and
managed by board Of trustees, elected and consti
tuted as heretofore, who should have the whole |
control Of the works and Of all the funds belong.
Ing to them and that the trustees should pay no |
part OF the funds, nor any Of the profits of the
works. into the city treasury, but should apply the
same in payment Of the interest and principal of
1t is clear, therefore, that the city obtains the
gas used In her public lamps by actual purchase
from the trustees Of the gas works and that every
cubic foot Of gas furnished by those works and
used for public lighting in PhilAdSphia II aotuaIIv