BALFOUR and others v. SULLIVAN, Collector.
(C;rcuit Court, D. California.
DUTIES-SHRINKAGE IN 'VEIGHT.
April 16, 1883.)
'Vhere a cargo of coke, imported from Wales, by reason of evaporation of the moisture contained in it during the voyage, weighed several tons less than when shipped, held, that duties could only be legally collected on the actual weight at the time of the importation, and not on the weight shown by the invoice.
BEGULATION OF THE SECRETARY OF THE TREASURY.
A regulation of the secretary of the treasury, that duties shall be collected according to the invoice, unless the importer accounts, by proofs, for the discrepancy between the amount shown by the invoice and the actual weight at the time of importation, is no defense to an action to recover the duties exacted from the importer on the difIerenee between the amount actually imported and the amount shown by the invoice to have Leen shipped.
ChlLl'les Page, for plaintiffs.
}'lr. Teare, U. S. Atty., for defenaant.
SAWYER, J. The plaintiffs, Balfour, Guthrie & Co., in January, 1882, imported into San Francisco, from Cardiff, Wales, a cargo of coke, which, upon its arrival and entry, was duly examined and weighed by the proper custom-house officers, and was found, and so reported, to actually weigh one thousand and ninety-nine tons, four centals, two quarters, and twenty-six pounds. The weight, as set forth in the invoice which accompanied the importation, was one thousand one hundred and forty-six tons and sixteen centals. The amount of duties payable on the weight shown by the invoice is one thousand one hundred and thirty dollars and fifty cents; while that payable according to the actual weight is one thousand and eightyfive dollars and fifty-nine cents,-making a difference of forty-four dollars and ninety-one cents. The collector demanded and collected the amount due according to the weight shown by the invoice, instead o'f the actual "'eight, which sum was paid by plaintiffs under protest, in order to obtain possession of the coke. The importers appealed to the secretary of the treasury, who affirmed the action of the collector; and tbis action is brought to recover the excess of forty-four dollars and ninety-one cents, so collected, on the ground that duties could only be legally collected upon the weight of the coke actually imported. Coke is a porous substance, subject to change in condition by increase of weight in a moist, and decrease in a dry,' atmosphere. Article 532 of the regulations of the treasury department, adopted in 1874, is as follows:
"Xo allowance will be in the estimate of duties for lost. or missing articles or package;; appearing on the invoice, unless shown. by proof satisfactory to the collector and naval omcers, not to have been originally ]a(len 011 board, or to have been IO:3t or by accident, during the voyage."
The proofs required by the foregoing regulation were not made by plaintiffs, they insisting that no proofs were requisite under the law other than the amount of coke actually imported into the United States. The case does not appear to fall within the language of the regulation. There were no "articles or packages appearing on the invoice lost or missing," nor was it claimed that there were. 'fhe coke shown by the invoice was all "originally laden on the vessel," and none of it was lost or destroyed by accident during the voyage. So it was impossible to make tlle required proof, bad it been necessary. Yet the whole amount of weight was not in fact imported. The diminution in weight is believed to have resulted from enlporation of moisture in the coke. In Jl1al'l'iott v. Bmne, 9 How. 619, a case of importation of sugar which had lost largely in weight by drainage, the duties on the mVOlce weight were collected; but the supreme court held that duties could only be collected on the weight actually received. Says the court: "The general priuciple applicable to such a case would seem to be that revenue shuuld lJe collected only from the quantity or weigllt which arrivcs here; that is, what is imported, for nothing- is impurted till it comes within the limits of a purt. * * * As to impurts, they therefure can cover nothing which is not actnally brought into our limits. That is the whule amount which is entered at the custum-house; that is all which goes into lhe consump(.ion of the cuuntry; that, and that alone, is what cumes in competitiull with OUI domE'stic mannfaetures; and we are, .able to see any principle of puulic rolicy whieh requires the words uf the act of congress to lJe extendl\d so as to embrace more. * * * A dc,!nction must be 1ll<1l!1' frum the quantIty shipped alJroad, whenever it does not all reach the United StatE's, or we shall, in truth, assess here what does not exist here. The collection of revenue on an article not existing, and never coming into the country, would be an auomaly, a mere fictiun of law, and is not to be countenancel! where 1I0t expressed in acts of l'ongress, nor rE'[luired to enforce just right. "It is also the quantity actually rE'ceivctl here by which alone the importer is benefited. It is all he can sell afTain to customers. It is all he can consume. It is all he can re-export for 9 How. 632; atfinnetl ill U. S. V. Southmayd, Ill. 646. The same rule was upheld in regard to brandy, in LalCl'cnee v. Caswell, 13 How. 488. So the weight of tea, as actually imported, was adopted as the proper basis for collecting duties, in U. S. v. Nash, 4 Cliff. 107. See, also, Sehurhardt v. Lalcrcncr., 3 Blatchf. 3U7. But if the case is within the terms of the regulation, it is difficult to see where the secretary obtains authority to require what the statute does not. It is not enouah that it affirmatively appears what amount of goods is actually into the United States, without showing UJ1Y more was not imported. As was well said by counsel, "the cause, and not the filet of non-importation, is made the ground of relief from the impost to the merchant." Duties are levied under the statute, and the decision of the supreme court construing the statute upon the amount of goods act-
ually imported; and when it is shown what amount is in fad adually imported, the importer certainly cannot be required, by regulations of the secretary, to show affirmatively why he did not import more, as a condition of being relieved from paying duties upon goods which it appears he did not in fact import. Some express authority should be shown for esta blishing such a burdensome rule. In many cases it would, doubtless, be impossible for the importer to show affirmatively what had become of his goods; and if it appears that they have not been imported, that should be sufficient. At all events, independent of some act of congress to the contrary, if an importer, under such [l rule, adopted for the convenience of the department, is compelled to pay duties, against his protest, on goods never imported, the rule cannot avail as a defense to an action to recover the money thus wrongfully exacted. The only statute cited as jU,stifying the regulation is seetion 251, Rev. St., which provides that the secretary of the treasury "shall prescribe forms of entries, oaths, bonds, and other papers and rules and regulations not incollsistent with Uln', to be need under and in execution and enforcement of the va.rious provisions of the internal revenue laws, or in carrying out the PiOvisions of law relating to raising revenue from imports, or to duties on imports." This certainly does not autllorize the collection of duties on goods not in fact imported, unless the importer of goods shows affirmatively why he did not import more. Nor does it authorize a regulation which shall prevent un importer from recovering moneys illegally exacted from him on goods never imported. To thus adopt a rule by which duties are collected on goods not imported, when, nnder the statute, only duties on goods in fact imparted are authorized to be collected, would be to adopt a regulation "inconsistent with the law." Section 2D:H of the Revised Statutes expressly provides that "if, on the opening of any package, a deficiency of any article shall be found on examination by the appraisers, the same shall be certified to the collector on the in voice, and an aliowance for the same sllail be made in estimating the duties;" and section 2D20 provides for weighing and measuring when there is a deficiency. 'l'he importer is not required by the statu'e to show why there is a deficiency, or how it occurred, as a condition of not paying duties on more goods than he has actually imported. He is entitled nnder the statute to the exoneration upon the fact of deficiency appearing. Other penalties are provided by law for certain cases. See Gray v. Lawrence, 3 Blatchf. 111' Lennig v. MIIXWCU, ld. 126. No otller statute authorizing sue,h a rule or the exaction of the duties sued for has been brought to the notice of the court. I think plaintiffs entitled to recover t11e amo1.Ult claimed, and jU;}(Tment will be entered accl.rdingly. 0
STOCK TELEGnAPH CO.
(Circuit Court, 8. D.
June 16, 1883.)
PATENT TELEGnAPIIIC PRINTING INSTRUMENTS-INFRINGEMENT.
The third claim of the rcissucd patent, No. 3,810, granted to plaintiff, as assignce of Edward A. Calahan, January :W, 1870, for an improvement in telegraphic printing instrumcnts partIcularly designed for registering ilie prices of stocks, is infringed by machines made under the 'Wiley patent, No. 227,868, but those machines are not an infringement of the original patent granted to Henry Van Hoevenbergh, April 21, 1:;68.
SAME-HEIssUE-JunrsDICTION OF CO)DIISSIO"ER OF PATENTS.
Power is conferred upon the commissioner of patents to cnuse the specification of a patent to be amended, on application for reissue, so as to fully describe and chim the very invention attcmpted to be secured by the original patent, and which was not fully securcd thcreby in consequence of inadvertence, accident, or mistake.
It is not indispensnhle that the petitioner, in his application for a reissne, should usc the exact phraseology of the statute, if he emplOys language which
OF PETITION. .
actually conveys its legal meaning.
Dickerson &: Dickerson, for plaintiff. Charles N. Judson, for defendant. SBIPMAN, J. This is a bill in equity, founded upon the alleged infringment by the defendant of reissued letters patent No. 3,810, granted January 25, 1870, to the plaintiff, as assignee of Edward A. Calahan, and of original letters patent granted July 27, 1871, to Henry Van Hoevenbergh, as inventor. The original Calahan patent was granted April 21, 1868. Each patent is for an improvement in telegraphic printing instruments particularly designed for ing the prices of stocks. The specification of the Calahan reissue describes the in general terms, as follows:
.. It is often desired, particularly in large cities, to keep a correct record of various tluctuations in the price of gold, stocks, and articles of trade, and to have these tiuctuations simultaneousl,Y and periodically denoted and registered at the various centers of business connected with one central transmitting station. 'l'his invention is intended to accomplish the said objects in a very reliable manner, and to dispense with the complicated mechanism heretofore made use of tu cause an impression to be made when the type-wheel has been bronght to a proper position: A magnet and armature are employed in effecting the movement of the type-wheel, so that the same is tnrned to the required position, and then, by an independent motion, separately controlled from that of the type-wheel, the impression is made, so that the type-wheel can remain after it is adjusted, or lJe again moved. previous to the impression being malle. The impression is made on a strip of paper by two type-wheels, so that -tile printing is in two lines, and the figures and fractions for denoting the prices (\!" quotations are contained upon a wheel and combined therewith. Letters are provided for printing on the same strip of paper to denote the articles ·to which the quotations relate. A.s the different machines will generally be but a short distance apart, -it is 'preferred to mal,e use of' two or more wires communicating through the entire circnit of machines. One of these wires transmits the pulsations of electricity that act upon a magnet ancl alljust the type-wheel to tlle pruper letter or nUll11.Jer. The other wire trans-