192
FEDERAI, REPORTEH,
vol. 57.
while this was on the order of the several lni;titutlons 'mentioned, it wasl>old,1)y theIXl to said institutions at an advance over cost, or at a profit of about. ,20 per cent. I am therefore of the opinion that the merchandise is dutiable as assessed by the collector." The collector there.· to the United States circuit court, under section 15 upon appealed the of the above-cited cllRtan!!!' administrative act of June 10, 1890, and further evidence was taken in the circuit court, from which it appeared that absolute alcohol, running as high in percentage of anhydrous alcohol as the imported artic:re in question, was manufactured to a considerable extent in this country from the ordinary alcohol of commerce by a process of treatment with chloride of calcium, which, having a great affinity for water, absorbed the water from the alcohol, which was slowly distilled over by repeated distillations until the alcohol reached the desired strength; that the absolute alcohol was a regular article of commerce in the markets of this country, and was used considerably for "cutting oUs" to make essences, by confeetioners and manufacturers; that Jt was also sold to some extent to wholesale druggists' and pharmaceutical chemists. It appeared also to have been used at one time in combination with camphene in producing an illuminating fiuid. There was testimony, however, that absolute alcohol of the kind imported, being of a very superior character, was used chiefly, if not entirely, for chemicall\lld lahQratory purposes, and by the large universities in the country, and always soldm bottles, to prevent deterio'ration or absorption of moisture from the atmosphere. Evidence was also produced showing that the proper oaths taken by officers of tlle colleges for which the importation was made were duly presented to the collector of the port on the entry of the merchandise, which was entered free, and the duty subsequently assessed thereon by the collector. It was admitted that the importers' profit in furnishing the article to, the colleges in question was about 20 per cent.
Edward Mitchell, U. S. Atty., and James T. Van Rensselaer, Asst U. S. Atty., for the collector and the United States. Cpmstock & Brown, for the importers. LACOMBE, Circuit Judge, (orally, after hearing argument.) ''1 affirm the decision of the board of general appraisers in this case."
In re HAAGER et al.
(Circuit Court, S.D. New York. June 22, 1893.) CUSTOMS DUTIES.....,TARIFF ACT OF OCTOBER 1, 1890-DoTTED SWISSES AND URED SWISSES, OR SWISS SPOTS AND SWISS SPRIGS.
Fro-
Cloths composed of cotton, bleached, ornamented with dots, spots, sprigs, or other figures of cotton that were made in the cloth, in a 100m, simultaneously with the manufacture of the cloth, by means of bobbins which operated such times, while the shuttle was weaving the cloth, as . the pattern required the production. of such figures, and commonly known as "Dotted Swisses" and "Figured Swisses," or "Swiss Spots" and "Swiss Sprigs," are dutiable at the rate of 60 per cent. ad valorem, as embroideries, or as articles embroidered, under the provision for embroideries or artlicles embroidered contained in paragraph 373 (Schedule J) of the tariff act of. October 1, 1890, (26 Stat. 594,) nor, though containing exceeding 100 threads, and not exceeding 150 threads, to the square in.ch, counting the warp and filling, and valued at over 10 een.ts per square yard, are they dutiable at the rate of 40 per cent. ad valorem, as cotton cloths, bleached, containing such number of threads so counting, and valued at so much per square yard, under the provision for such cotton clotlls contained in paragraph 346 (Schedule I) of the same tariff act, (26 Stat. 591,) but are dutiable at the rate of 40 per cent. ad valorem as manufactures of
IN RE HAAGER:
193
cotton not specially provided'for, UDder the provision for such mumfactures contained in paragraph 355 (Schedule I) of the same tariff act, (26 Stat. 593.)
At Law. Appeal by the collector of customs from a decision of the board of United States general appraisers. 1891, by the Bretagne, January 27, 1891, by the Champagne, March 31, 1891, and by the Werkendam, August 6, 1891, from a foreign country Into the United States, at the port of New York, ceNnin merchandise, consisting of
'.rhe firm of Albert Haager & Co. Imported by the Gascogne, January 5,
cloths composed of cotton, bleached, ornamented with dots, spots, sprigs, or other fi/irores of cotton, and commonly known as "Dotted Swisses" and "Figured Swisses," or as "Swiss Spots" and "Swiss Sprigs." This merchandise was classified for duty at the rate of 60 per cent. ad valorem, as embroideries or articles embroidered by machinpry, under the provision for "laces ... ... embroideries ... ... ... and articles embroidered by hand or machinery, ... ... all of the above-named articles, composed of ... ... '" cotton or other vegetable fibre, or of which these substances or either of them or a mixture of any of them Is the component material of chief value, not specially provided for In thiS act," contained in paragraph 373 (Schedule J) of the tariff act of October 1, 1890, (26 Stat. 594,) and duty at that rate was exacted thereon by the collector of customs at that port. Against this classification and this exaction the Importers duly protested, claiming. that this merchandise was not in fact embroidered, and was not known commercially as embroideries; that it was dutiable at the rate of 40 per cent. ad valorem, as manufactures of cotton, under the provision for "all manufactures of cotton not especially provided for in this act," contained in paragraph 355 (Schedule I) of the same tariff act, (26 Stat. 593;) that, if not so dutiable, then that it was dutiable as cotton cloths bleached, colored, etc., aecording to the number of "threads to the square Inch, counting the warp and filling," and the value pm' square yard, at the respective rates o!: duty provided for such' cloths in paragraphs 344-348, inclUSive, (Schedule I,) of the same tariff act, (26 SUit. 591, 592.) Upon the receipt of the Importers' protests the collector, pursuant to section 14 of the customs administraitive act of June 10, 1890, (26 Stat. 137,) transmitted the Invoices of this merchandise, and all the papers and exhibits connected therewith, to a boardO'f three United States general appraisers on duty at that port. The board of gener-al appraisers, having examined the case thus submitted, found, among other things, (1) -that this merchandise was not embroideries, or articles embro.idered; that its plain or unornamented portions contained exceeding 100, and not exceeding 150, threads to the square inch, counting the warp and thf' filling, but that this merchandise, not homogeneous, in that the number of threads in the part of this merchandise containing the dots, spots, sprigs, or other figures was greater than the number of threads in Its plain or unornamented portions, was not,under the decision in the case of Robertson v. Hedden, 40 Fed. Rep. 322, countable cotton cloths, within the intent of the aforesaid paragraphs 344-348, inclusive; and the board of general appraisers dectded that this merchandise was dutiable at the rate of 40 per cent. ad valorem, as manufactures of cotton not specially provided for under the provisions fOol' such manufactures contained in the aforesaid paragraph 355, as first claimed in the Importers' protests. The collector, oeing dissatisfied with this decision, applied, pursuant to section 15 of the customs administrative act, to the United States circuit court for the southern district of New York for a review of the questions of law and fact involved therein. In compliance with an order granted upon this application, the board of general appraisers made their return to the said circuit court, and thereafter a large mass of evidence was taken In behalf of the collector and in behalf of the importers. From the return and the evidence in the case, in addition to the faets already set forth, it appeared that there was a resemblance to embroidery in the dots, spots, sprigs, or other figures on this merchandise; that, according v.57 I<'.nu. 1-13
FEDER.\L
ma.j4?r1ty of the In tb!I ,ease, embroidery, as geneJ:'llllY commerce, was ornamentation added by means of a needle or needles directed by hand or machinery to a cloth or fabric atter the completion of the cloth or fabric, and articles embI,"OI\1ered, asSQ known to trade and commerce, were articles that had been ornamented by means of a needle or needles so directed; that as far back as Feb111ary 1, 1857, the treasury department, in its General lbegulation issued at that date, (page 565,) under the hejid of "Embroidery," promulgated the follOWing de:fin.l.tion: "The Jerm tamboured or embroidered * * · can only be properly, and safely applJ,ed to, fabrics * * * figured or ornamented by the etnploymep-t;of.. the needle ,whether directed by the hand or by machinery in the loom or frame; andoonsequently"manulaciures * · · figured in the loom or machine which weaves the faQric, as the texture i. tormed, wltboutthe employment of the needle either by hand or mechanical agency are.. not to be considered as * ,* * liable to duty * * * as tamboured or ,ijlatthis merchandise was 'a. woven fabric completedin the loom as. it appeared in the market,.,..that is .to say:, the dots, spots, sprigs, or such other Agul,"eB that it, c()ntained, were made in the clo,th, in the loom, iWith the manufacture of the cloth, by means of bobbins, which ;operated 'II-t, such tlmes,w.hile. the shuttle was weaving the cloth, as :the design or pattern of the mel'flbll.J1dise required the production of snch figures, and were with a needle or needles directed by hand or machinery; and ,that, accQrding,to the tes1;lmony of the great majority of the witnesse. in the ,case, not known to trade and commerce as embroideries, or as ,articles embroidered. The .evidence' further ,shOWed that, the .'WIll'P of this merchandise and of utheX' ,cotton cloths W!lsthe tbl,'eads 111nning continuously from end to end, lind thcfilllng, tbetbrf'Ads thereofnmning continuously from side to side, lor from to tbat the otthe dots, spots, sprigs, Or other tIgurE\s,on, this. D;lerQhandise, were not part of either the warp or fiIllng, but were additio:nal to' the tIlling; and that this merchandisecontainecl exceecll11g 100· ,exceeding 150 threads, to the square inch, counting and was valued at .over 10 cents per square yard. Paragraph 346 (Sc.hedWe I) of the aforesaid tariff act (26 Stat. 591) levies a d\lty of 40 per cent. ad valorem on "all cotton clQth, exceeding ont' to the square inch, hundred Rnd not exceeding one hundred and counting the warp and filling, · * · bleached, valued at over ten cents per square yard."
Edward Mitchell, U. J!;.Atty., and Thomas Greenwood, MSt. U. S. Atty., for collector, Oontended that this .merchandise was dutiable as embroideries, or' .. articles embroidered, under said paragraph 378, but, if not so dutiable, then that it was dutiable as countable cotton 'cloths, under sa1d' paragraph S46.
Curie, Smith & Mackie, (W. WickhlUJ). porters.
of counsel,) for ian-
;LACOMBE,Ci'reuit (orally.) In this case, as to the queetion whether ()l' not the'a,rticles are embroideries, I think the weight of the testimony is overwhebninglyin· support of the conclusion reached by the bo,ard of general appraisers; and on the other point I am inclined to adhere to the views expressed in the ease of Robertson v. Bedden, 40 322, 'and for that reason shall affirm the decision of the of generalappmisel'S.
IN RE KLINGENBERG.
195
In re., KLINGENBERG. ,., ,",
(Circuit Court,S. D. New York. June 28, 1893.) CUllTOMS DUTIES-BoARD OF, GENERAL ApPRAISERS' DECISIONS-JURISDICTION OF' CIRCurr COURTS. ,
The customs administrative act of June 10, 1890, (26 Stat. 131,) confers no jul1sdic,tlon upon Circuit courts of the United States, on the application of a dissatisfied collector of customs, to review and reverse a deci· sion of a board of general appraisers, involving neither the classification of imported merchandise, nor the rate of duty leviable thereon, but oniy the value of the paper florin of Austria-Hungary, the currency in which such merchandise was invo1ced. Passavant v. U. S., 13 Sup. Ct. Rep. 572, 148 U. S. 214, applied.
At Law. Motion dismiss, for want of jurisdiction, an appeal taken by the collector of customs from a decision of a board of United States general appraisers. One A. Klingenberg imported from Austria-Hunga:ry into the United States, at the port of New York, certain merchandise, by the Bohemia and by the Rugia. The merchandise imported by the Bohemia was shipped from various places in Bohemia. The invoice covering this merchandise was consulated at Prague, Bohemia, July 6, ,1892. The shipment of this merchandise by vessel to the United States was made from Hamburg, Germany, July 7, 1892. and this merchandise was entered for consumption at the port of New York Jnl)' 23, 1892. Thl' merchandise imported by the Rugia was also shipped from various places in Bohemia. :rue invoice covering this merchandise was consulated at Prague, Bohemia, ;Tuly 9, 1892. The shipment of this merchandise by vessel to the United States was made from Hamburg, Germany, July 10, 1892, and this merchandise was entered for consumption at the port of New York July 26, 1892. The invoices of 111e mercha'ndise of both these importations set out its value in paper florins of Austria-Hungary, but were not accompanied with consular certificates sm.tlng depreciation in value, per paper florin, from that of the gold florin, which (the gold florin) the secretary ot the treasury, in his instructions to officers of the customs, issued August 3, 1892, (8 13,091,) declared was the only actual standard of value of that country. The secretary, in theSe instructions, directed that, in the absence of such certificates of depreciation, these officers should, in determining the value of all imported forei;','TI merchandise. tal{e the value of a pap-er florin at $0.482, which sum of $0.482, under the provisions of section 52 of the tariff act of October I, 1890, (26 Stat. 624,) had been estimated by the director of the mint, and on July 1, 1892, (8 13,003,) proclaimed by him (the secretary) to be the value of the gold florin. The collector of customs at that port, the local appraiser having returned the invoice (and entered) amounts of these paper florins as the value in such florins of this merchandise, thereafter converted these amounts of paper florins into United States money of account, at the rate of $0.482 per paper florin, and on the amount of such money of account, so obtained, as the dutiable values of this merchandise, exacted duties of the importer according to the classifications, and at the rates, provided by law. Against the exaction of duties on any amount of such money of account in excess of the amount thereof to be obtained by converting into such money the aforesaid amounts of these paper florins at the rate of $0.32, the importer duly protested, claiming that in estimating the value of the Austrian florin, the currency in which the invoices of this merchandise were made out, the collector should have adopted the value of the standard currency of Austria, viz. the slIver florin, as last-July 1, 1892-(S 13,(03) proclaimed by the secretary of the treallury, ($0.32,) or the actual value of the Austrian paper florin, and that the collector had no right to adopt the (then) proclaimed vaiue of the gold florin ($0,482) in eBtlmating duties, because this merchandise was not purchased in gold florins,