f294 i ' /'
Jm)llRAL· REPORTER,:VoI.43.
(2) ThearUcle in suit is not provided for in the prov}!iions act of: paragraph DOti. T;loriff Index, (New,) of the free-hst, 'all supstanc;qs used manure,' inasmQch as the evidl'nce shows that the substance in suit is 'in of manure or fertilizers oulYi' and your verdlcts'hould be fortha defendant." ' R'efuse4.': for defendant. "(3)TlJe sulph,ate of potash, and the tariff thereon is provided lor,ior that arti91e specifically, arid will not be assessed under the more general expresSion contained in paragraph 505, Id., , all substalllles used for manure, 'and' your verdict shOUld be fOl' the defendant." . E±ceptioh, for defenc)ant. " ' "(4), Your verdict iothis case should be for the 4efendant." Refused. Exception for defendant. ' i
, The jury rendered a verdict in fator of plairititt.
BAILEyet
al. v. CADWALADER, Collector.
CUSTOMS
tered as such in the custom-bouse, will be held dutiable ap bemp; and testimony
An artiQle known in tbe trade as "East India BomMy hemp, "Invoiced anet en-
HEiMi>.
.
tbat It is in e11'eot a species of Sisal-grass will not cause it to be dutiable of artiole.
the rate
At Law. This suit arose concerning the classification of East India Bombay hemp, under Tariff Index, (New,) par. 331, and was brought by John T. Bailey to recover certain customs duties alleged to have been improperly exacted in an importation which was invoiced as East India Bombay hemp,whereon a duty at $25 per ton was assessed under paragraph 831, Id., relating to hetnp, manilla, and other like substances for hemp, .not Of provided for. Protest and appeal was made that it was not the hemp of commerce, nor commercially known as such, .and that it should be entered at $15 per ton as a vegetable substance not specially enumerated Of' provided for in paragraph 333, Id. Uponthe trial it was shown from the papers upon file in the collector's office that it was designated as hemp upon the bill of lading, invoice, and entry; but the testimony of the plaintiff tended to show that it could not be . used as hemp, t\n<l that it was not in fact that article, and did not grow in the same way, and could not be used as a substitute. It appeared, however, that it was bought, sold, and used in trade under that commercialdesignation; but the testimollY of the plaintiff tended to show that :it was in facta species of Sisal.,grass. The verdict was in favoro! the defendant. . ' Henry; T. Kingston, for plaintiff·.
BAnE'lr ". CADWALADD. j,
fot defendant.
WiiliamW"Ukim Carr, Asst. u.s. Atty., and JohnR. Read,U. S. Atty., '
McKENNAN, (charging jury.) This suit is brought by the importer of an article, a :Bflmple of which you have had before you, to recover what is claimed'by him to have been an excess of duties charged by the custom-house of Philadelphia on that article, upon the hypothesis that a duty was imposed upon this article of $25 a ton as hemp, whereas it should have been charged with a duty only of 81·5 a ton under another clause of the act of congress. The duty was paid under protest, and the plaintiff here has qualified himself to bring this suit to recover this exaction by thecustom;.;house if the duty was erroneously assessed. The whole question upon the identity of the subjoot-matter of this importation. Is it hemp within the meaning of the Rct of congress, or does it fall within the description of another clause of the act of congress? If it is hemp, the duty is properly assessed. If it is not hemp, the duty is erroneously assessed by the government. The term employed in the act of congress is "hemp," and therefore it is employed in the sense in which that term is"generally understood in commerce and trade, and no other test is furnished of. the meaning of the term. It might be congress defined this terfu with reference to something else. In the mere commerof the term they might have defined it with reference to cial the issue to which the article is employed; but no such test is indicated by the act of congress. It is used here simply as hemp, termed" hemp," lind therefore it means what is understood to be hemp in the senseinwhich the article is denominated in commerce. It does not make any differencewhat the quality of the article is. If it is hemp generically, it means hemp as used in the act of and is subject to the duty imposed upon it under that You have had before you a. number of samples of substances which are called "hemp," and they vary in quality, value, and in the uses to which they are employed, but they are all speCies of hemp, as the term is employed here. Except when they are specifically referred to in the act of congress,all species of hemp are su bjectto the duty imposed upon hemp under its general designation. All of the witnesses on the part of the plaintiff describe this. article as hemp without exception, I believe. That is a matter you will remember. They all describe it as hemp, and the proof is that it is known in commerce as "East India Bombay hemp;" that is,hemp in Bombay in the East Indies; hemp, with reference to the place at which it i@ If it is so, it is within the category of hemp, and is subject tothe duty imposed by the act of congress upon that article. 'That is the 061y inquiry for you to make and determine. Is this article hemp, as known by the name which it is called? If it is, the duty was properly assessed at $25 a ton. The plaintiff asked me to instruct you as follows: (1) "That if the jury find the subject of importation is a vegetable substance; that unless they find it to be hemp,-the plaintiff is entitled to recover." That point I affirm, with the qualification that if the article in question is known
,
,vol I 43.
and. designated commercially as "East India. Bombay hemp," and is a species of hemp, it is within that Clause of the act of congress which imthe duty of $25. (2) "That unless the jury find the subject of the importation to be hemp, manilla, or other like substitute for hemp, not specinlly ent:lmerated or provided for, the plaintiff is entitled to recovr,r." laffidnthat point. (3) "That if the jury find tlIe subject of theimportution to be a vegetable substance, and not specially enumerated or provided for in the act ,of {)ongress, the plaintiff is entitled to recover." I aftiJ;m that point. I am requested by the defendants to charge you as follows: (1) "If you blilieve that the al'ticle imported is hemp, or a like substitute for hemp, notspeciaUy enumer-ated or provided for in this act, your verdict should be for thfl defendant." I affirm that point. (2) "If you believe that the article imported is notsunn, Sisal-grass, nor a substance, not specially enumerated or provided for in the tariff act, your the verdict should be for the defendant." , I affirm that point. ,So is it only question for you to determine is, what is the known in commerce? Is· it a species, of hem p, and is it known as scdptive ofhemp,-Easf India Bombay hemp? If it is, the defelldant is,entitled to a verdict. , Though the question is for you, the testimopy seems, to be aU in One direction. All the witnesses say that this article iaa species of hemp, and that it is known and designated generally. It iscalledHEast India Bor;nbay hemp." That is a species of hemp which is grown in Bombay, in the Ea&t In,dies., Jf it be so, then the duty was properly assessed at $25 a ton. It lllay ,be that it may not have beep il. very reasonable provision to assess a duty of $25 a ton upon an article which is inferior in quality to other species of hemp on which a duty of $15 only is assessed. That is a matter entirely forcongress. We are to find what congress meant by its enactment, and to administer the law: Iwcordingly, and they !!laid that upoQ all species of hemp the duty shall be $25, except sU,ch as are excepted here, and this is not one of them. Jute, sunn, and Sisal-grass are species of hemp to whichs special provision applies, but this East India Bombay hemp is not one of the articles to which the application of the teml "hemp" is qualified in any,way;so that, as the act of congress is to be construed, allsqbstances which fall under the category of hemp, whatever thequamy may be., except jute, sunn, and Sisal-grass, are to be subject to duty of $25. That being so, the government officers properly subjected this article, which is the subject of this controversy, to a duty of $25 a ton. The plaintiff himself entered this as, hemp, and there does not seem t.o have bean aJ;ly controversy on either side as to the proper designation of it put upen the invoices, and it was so taken by the government officers. The jury rendered a verd ictfor, the
LAIDLA IN fl. ABRAHAM. '
297
LAIDLAWV. ABRAHAM, Collector. (Otrcuit Court, D. Oregon. August 18, lSll0.)
1.
TONNAGE DUTIES-ACTION TO ,l'tECOVER.
The Act of July 5. 1884, (28 St. 118,) which makes the decision of the commIssioner of naviglltion on the question of refunding a tonnage tax erroneously im· posed "final, " does not take away the right of action from the person who paid said'ta:t,but the' purpose and effect of the act is ,that such decision shall be" final" In the department, so that the secretary of the treasury shall not be burdened with the duty of reviewinj:/; it. , "
2.
o
, An allegation that a collector "exacted" certain tonnage duties is equivalent to saying they were and liquidated" by him,. as. provided in section 0081, Rev.' 81;,;, all¢l ;an allegatIOn that the grounds of the obJectIon to the colleotor'lI decision exacting such duties were specitledin the notice to him "clearlY and distinctly" ill 'eqUivalent to saying they were "distinctly and specifically" set forth therein, as required in saill. secti!>n. ;, ' SAME-COASTWISE TRADE-FOREIGN VESSEL.
Ii
A vessel belonging in whole p.r in part to an alien may,under section 4847, ,Rev. St"pass from one district olthe UiJited States to another, Wit/i cargo brought from a ,foreign port. and not "unladen," without thereby becoming liable toa tonnago " tax under, sectiQn 4219, Rev., st.; and merlj:handise is not or "takep," " within the meaning of these 'terms, as used in these sections, unless there is an acft. ual, physical removal of the same from or to the vesseL . '" ,
(SyHabusbyth6' CO'Urt.)
At Law. .Mr. Johrt
Mr. JthinklinP. Mays, for defendant.
On d'emurrer to the second amended complaint·
,DEADy;,J. The plaintiff, James J...aidlaw, doing business as "James Laidlaw & Co.,n brings this action against Hyman Abraham, collector of customs at the port of Portland, in the district of Wallamet, to receiver the sum of $793.50, alleged to have been wrongfully exacted by the defendantfrom the British ship Largo Law, as a tonnage tax. It appears from the second amended complaint that the Largo Law,on October 5,1889, entered the port of San Diego, CaL, in the customs district of that name, with a cargo trom London, England, consistiug partly of cement, which was invoiced and destined for and discharged at said port, except 3,360 barrels of the cement, which were invoiced and destined for Portland, Or., or San Francisco, Cal. That the duty on the whole cargo was paid in good faith to the collector at the port of San Diego, who indorsed on the manifest a statement thereof, and cleared the vessel for Portlal}d, \fith the cement on board, first taking a bond from the agent of the, vessel, conditioned for the delivery of the cement at Portland,· where it was unladen for the first time since leaving London. On arriving here the defendant refused to allow the vessel to enter at the port, and "exacted" from the consignee thereof a tonna?;e taxeif 50 "cents a ton on her registered tonnage, amounting to $793.50, which sum t.he plaintiff, as isuch consignee, paid to the defendant under protest.