680
FEDERAL REPORTER, vol. 4.0.
The court, BnoWN, J., said, that the taking of testimony on examination was in a certain sen'se a partial trial of the cause, and that the plaintiff, as between him and the defendant, or the Guatemalan government, as his principal, was entitled to be present thereat, if desired, where, as here, it appeared to be necessary to the protection of his legal rights. An order was accordingly entered that if the defendant, within a specified time, should furnish to plaintiff a safe conduct from the Gua!emalangovernment, permitting him to go to Guatemala, and be present on the execution of the commission and to return without molestation, the motion for a 'commission should be granted, but, failing the produosafe conduct, the motion should be denied.
SIEGFRIED et ale
tI.
PHELPS, Collector.
(Circuit Cowrt, N. D. CaUfornfa. December 16, 1889.)
L
CuSTOMS
J ..S.unii-AuTHORI17 OIl' SEORETARY OIl'TREASuRy. ,... ' . . ' ,. . The secretary of the treasury is not authorized to impose, by regulations, bur. dens on commerce, not. imposed or authorized by the statute. , (SyUabus b1/ the Court.) .
Free goods not chargeable with duties, are not within the p,rovisions of sections 2854 to 2857 requiring an invoice with a certain prescribed declaration of the ship. per, and a certificate of the consul at the port of shipment, or the prescribed bond to be. presented to the coll!lctor as a cClndition of entry of the g o o d s . ,
GoODB-REQUJREMENTOJ'
At Law. On ,demurrer to complaint, on the ground that the facts stated do not constitute a cause of action. John S. Mosby and A. P. Van Duze:r, for plaintiffs. J. T. Oarey; U. S. Atty., for defendant. Before SAWYER, Circuit Judge. SAWYER, J. This is a suit to recover the value of a certain shipment of tea, ·at a port in China, to the port, of San FranciscQ, arising out of B refUsal of the collector to allow the: to be entered 'without presentingto him an invoice having indorsed thereon the declaration required to be .made before the consul at the port of shipment, .and the consul's certificate required by sections 2854 and following of the Revised Statutes; or giving the bond to produce one at somefutul'El day, in ance of ,the :provisions of section 2857. The: plaintiffs insist that the merchandise being tea, which pays no duty,does not fall 'within the provisions of the sta,tute, wh,ich is intended to apply to dutiable goods (j)QlYf and it appears to me that thijl ,positionisi,correct. There is nothing at all, said about non-dutiable good.sj,andthe provisions are adapted only, to dpti.a pIe. goodl:l; :supjeQt to either ad valorem, or specific duties. The declaration provided for, must state, that t.he invoice "contains, ifthe;mercbandise:meutioned
SIEGFRIED t1. PHELPS.
661
therein i8 8ubject to ad valorem duty, and was obtained by purchase, a true and full statement of the time, when, and the place where, the same was purchased, and the actual C08t thereof, and of all chargea thet'eonj * * * and when obtained in any other manner than by purchase, the actual market value thereof at the time, and place, when and where the same was procured, or manufactured; and if subject to tpecific duty, the actual quantity thereof." This requirement was, manifestly, intended to enable the collector to determine the amount of duties to be collected, and a form of declaration is adopted by the statute, adapted to each mode of assessing duties, so that the collector can ascertain the value of to ad valorem, and the quantity of those, subject to, the goods specific, duties. But neither form is adapted to non-dutiable goods, and there is no occasion to know, for the purposes of the revenue, either the value or quantity. Non-dutiable goods are not mentioned, and no declaration is provided, adapted to that class of goods. Which of the forms should be adopted, when neither is preacribed, and neither would fit the subject-matter? So the bond provided for in section 2857, iato be ill "'double the amount of duty apparently due, conditioned for the payment·o}theduty which 8hall befolmd to be actually due thereon." As the invoice or the manifest, shows for itself what the goods 'are, and that they pay no duty, whatever, the conditions of the bond no more fit the case than do the matters prescribed in the statement to be made before the consul in cage of dutiable goods? Evidently the statute mentioned all the {lases to which this declaration, certificate and bond were intended to be made aJ;>plipabIe, To extend the requirement byloose construction, or inferen:ce, to goods that pay no duty, would be to impose, in the aggregate, large burdens upon commerce, without any corresponding benefit. I do not think the secretary of the treasury is authorized by the !ltat1:I,teto put any burdens upon commerce, in addition to those imposed by the statute itself. He is authorized to :rnakereg)11ations, "not incon.sistent with law"-to regulate the and enforcement of the burdens provided for by law, but not to impose others; Burdens imposed upon commerce in addition to those imposed by statute would be with law," and unauthorized. See Baljou,r v. Sullivan,S, E?awy. 649, 17 Fed. Rep. 231, and cases cited; Merritt v. Welsh, 104 U.' ;8. Morrill v. JfYM8, 106 U. S. 466, 1 Sup. Ct. Rep. 423. The court of claims in Mosby v. U. S.l took this view, when it held that the consul was entitled to recover a cOllsiderable amount paid into the treasury under protest, for fees collected for such certificates, appended to invoices and statements of free goods, on the ground that these services performed, although in form official, were not official in fact, or in law; and the United States had no concern with them,..,-that< it was a matter entirely between the owner of the goods, who voluntarily,: without. ,requirement of law, obtained, and pl;tid for the services, who. in his individual .private character,voluntarilYi j>erfOf)Iled the service for the compensation received of the owner, SOc .U
i)':Not
FEDERAL
40.
paid of his' oWn free will. The amoupt· of the items recovered in that single instance,-$2,095---.will afford some indication of the e:xitent' of the burden in the aggregate,:such Ii regUlation by the secretary'would impose on Commerce. .' In my judgment the collector unlawfully refused to allow the entry, and is liable. -The demurrer to the complaint must be overruled, and it is so ordered.
LAZARD
et
at. V. MAGONE,
Collector.
(OIh'cwtt Court, B. 'D. New Yor"- December 18, 1889.) L CUSTOMS DUTIEs-FREE LrST-SI¥IL1TUDB CLAUsB. The similitude described by that. portion of Rev. St. U. S. 52499, as amended by the tari1f act of March 3,1888, whioh provides that "non-enumerated articles, simDar in material and quality and texture, and the use to whioh they may be applied, to artioles on the free-list, 'and in the manufacture of which no dutiable materials are used, shall be free, n ls a .similitude in' all four of the particulars mentioned, therein. ' , It. SAMB-DRY EGGYOLX: Dry egg yolk, being an artiole not enumerated in the tari1f act of March 8, and assimilating to albumen, and alsO to eggs, articles on the free-list of that act, in two 01' more only of these,foul' partioulsrs, is not free of duty under that act by similitude to albumen or eggs;, but is, in the absence of proof that it ls not a manufaet.ured article, subject to duty at the rate of 20 per centum ad valorem as a. non· enumerated manufactured article, tInder the provision therefor contained in Rev. St U. S. 5 2513. '
At Law. Action to recover back duties. The plaintiffs in this on the first day of September, 1887, im';' ported from Dresden, Saxony; into the port of New York, a certain article invoiced as "egg yolk.»" "This article was classified for duty by the defendant, as collector of custbms at that port, as a non-enumerated man.' ufactured article, under the provision therefor contained in section 2513 of the United States Revised Statutes, as amended by the act of March 3, 1883, and duty thereon at ,the rate of 20 per cent. ad'i7alorem was exacted of the plaintiffs by the defendant, as such collector. .Against this classification and this exaction'the plaintiffs, within the time required by law, duly protested, that, under that portion of section 2499 of the United Revised Statutes, as amended by the act of March 3, 1883, which provides "that'non"enutnerated articles, similar in material and quality and texture, and the usa to which they may be applied, to articles on the free-list, and in the manUfacture of which no dutiable materials areueed, shall be free"," this article was free of dUty, as assimilating to albumen, under the provision therefor contained in the list ofthe act of March 3, 1883, (Tariff Index, new, 49BD or, if not assimilating to' albUlnen, then as ilssimilating to eggs; under th e ptovision there tor contained in said free-list, (Id. e90;) or that, if this article assimilated neither to albumen nor to eggs, then it was dutiable at the rate of 10