To the contention of the go:rernment that the use of the wQrds "separate or additional" imply that the bottles are subject to duty as part of their tents there are two answers: First, a tax cannot be imposed by n'egative words, and a provision that nQ separate duty shall be imposed is no warrant for imposing a duty as part otthe ginger-ale; and, second, the words "separate and additional" had been used in preVious statutes to designate the duty imposed on bottles and were used in the present act simply to identify the duty which was'removed. '
John K. Valentine, U. S. Atty., for defendant.
The use of the words "separate or additional" imply that there Is a duty on the bottles not separate or additional, viz.. a duty as part of the imported article which is a bottle of ginger-ale. Bottled ginger-ale derives its chief value from its bottled condition. It is the duty of the appraiser therefore to appraise its value. in a bottled condition, and this is the meaning of the appraisement made by him.
J., (charging jury.) This suit is brought to recover duties exacted by the collector lind paid by the plaintiffs upon 250 dozen of bottles cont4iniQg ginger-ale.. The. ginger-ale was assessed and the duty exacted I'llsoon the bottles. Under the view of the law taken by the court, the duty was illegally exacted. The collector had no authority to require the importer to pay it. The importer, however, was bound to pay it; and having paid it, the only recourse he can have is to sue to recover it hack. He has done SOj and this suit is for the recovery of the duty on 250 dozen of bottles containing ginger-ale, which, as I have already said, was illegally exacted by the collector, and this amount the plaintiff is entitled to recover. Your verdict will, therefore, be for the ' plaintiff for the amount of claim.
Verdict for plfl,inti:lf. '
MOBRIS 'tI. CADWALADER, Collector"
(Olr/Juit Oourt, B. D. Pennll1/1vania. October 8,1887.)
CuSTOMS DUTIES-PACKING C:e:ARGES-ApPRAISIllMENT OF GOODS PER SE.
Since tJ?,e act of March 8. 1888, duties can be exacted by the collector only upon an appraisement of the market value of the goods per 86.
SAME-APPBAISEMENT-DISALLOWANCE OF CHARGES.
Whereon the invoice the gross value of the goods is stated. and a deduction made of specific packing charges. and the net amount is then carried out as the market value of the goods per 86, an appraisement which simply disallows the chs,rges. or adds them again to make dutiable value. or states that they ate to he added to make market value. is not an appraisement of the _goods per 86; but an addition of charges. and does not justify the collector in exacting duty on .the value, of the goods increased by the amount of such charges. '
Action tQ Rebover back' Customs Duties.
lRepOrted'byC.. :BerReley Taylor, Esq., of the Philadelphiaba1'.
'. . ,_ " .. '... l '
The following facts were proved on the trial: The invoices were all alike in form. Each consisted of a number of item!! of goods. At the foot of each tbere was written" Deduct cost of rolling boards, making up, paper, ticketing, etc., at 2d. per piece, included. in above price." This cost was then carried out and, deducted from the price of the goods, and the net balance carried out as the invoice value of the goods per se. At the foot of the invoice was an itemized statemimt of non·dutiable charges, including both those above deducted and additional charges, not included in the price of the goods. Upon the first invoice the appraiser wrote over each item of charges deducted the word "Disallowed.", Over the itemized statement of the charges at the foot of the invoice and immediately alongside of the items which had been included' in the previous deductions he wrote the words, ." Add to make market value." The collector, then exacted the duty upon the whole price of the goods, including the charges deducted. ' Upon the second invoice the appraiser did not write the word "disallowed" over the deductions, but at the foot-of the last iteminthe invoic/;l wrote' .the words, "Allow for rolling, making up. etc., 4d. per piece orily, add to make dutiable value. £8 13s. 4d." This last item of £8 13s. 4d. was the difference between the chargeslleducted on the invoice and thetl 14s. 8d. allowed by the appraiser. The collector exacted duty on the value of the goods, per se as stated in the invoice, pLus the £813s. 4d. Upon the third invoice the appraiser wrote over each item,of deduction the words, "Allow only 10d. per piece for these charges," and wrote nothing at the foot of the invoice. The collector exacted duty on the value of the goods per se, as stated in the invoice, plus the difference between the charges there deducted and the 10d. per piece allowed by the appraiser.
FrankP.. Prichard, for plaintiff. , , ' . '.... Since the act of March 3, 188a, the appraiser has nothing to do with chargt'd. His duty is to appraise the market value of the goods per se. The disallowance or addition of charges does not amount to such an appraisement, buttndicates only that the appraiser is of opinion that the chatges sh0uld be inel uded in the value on which duty is exacted. .Arthur v. Goddard, 96 U. S. 145; Oberteujfer v. Robertson, 116 U. S. 499, 6 Sup. Ct. Rep. 462. The duty can only be imposed upon a clear and positive appraisemnent, and not a doubtful or inferential one. In doubtful cases the decision should be in favor of the importer. Hartranft v. Weigmann, 121 U. S. 609,7 Sup. Ct. Rep. 1240. John K. Valentine, U. S. Atty.,. for defendant. The appraiser's return that the charges should be added to make market value amounts to an appraisement by him of the market value of the goods per se. In Oberteujfe1' v. Robertson the return was, "Add to make market value in ma1'ketable condition," showing that the appraiser meantsoniething more than the market value of the goods perse. In this case there were no such words.
McKENNAN, J., (charging jury.) There are three invoices in this ,case upon which duties were exacted by the collector, and paid by the importer; and the question is whether the duties so paid were authorized by law. It appears to the court, as to one of the invoices, that the charges connected with the preparation of the goods for market were added by the appraiser to the invoice price of the goods, and that the whole; accord-
MORRIS V. CADWALADER.
ing to this, constituted the market value of these goods. In view of the opinion expressed by the supreme court. it is clear that the duties charged on the goods in this invoice were excessive by the amount of the charges which were added to the market value of the goods; so that as to that excess, the duties exacted were clearly wrong. As to the second invoice, the charges were added to the value of the goods in order to ascertain, as the appraiser says, the dutiable value of the goods. This, also, in the judgment of the court, is wrong. The collector was bound to take simply the finding of the appraiser as to the market value of the goods per se, that is, exclusive of the charges which were added. So that in that case the duties exacted upon the charges were unlawfully exacted by the collector, and the plaintiff is entitled to recover them. were added in pursuance Then, as to the third invoice. The ofanote.made qy the appraiser in this Case, "add to make market value." Whatever might be the view entertained by the court, or the construction given by the court to these words, aside from the decisions of the supreme court,we regard the case of Oberteuffer vtRobertson, 116 U. S. 499, 6 Sup. Ct. Rep. 462, as ruling the present case. We regard that case as substantially in its facts similar to the one now before the court. As we understand that case, there the appraiser added to the value of the goods per SII the charges, in order to make" the market value in marketable condition." . We cannot see that the words used by the appraiser there make that case different .from the one· before us. In this case the note of the appraiser is, "add to make market value." So that in both cases the addition of the charges to the invoiced value was made by the appraiser in order to ascertain the dutiable value; and bound, as we are, by the decision of the supreme court of the United States, we must hold that in this case the import of this paper is that the charges are added to the value of the goods per se, in order to ascertain what they regard as the dutiable value of the goods. The plaintiff is therefore entitled to recover the duties charged by the collector upon thelle charges, which were added by the appraiser, and by the collector when he exacted the duties. In the first place, then, as to the first importation or invoice referred to, the plaintiff is clearly entitled to recover the duty charged upon the charges added by the appraiser to the value of the goods. So, in the second case, where the addition was made by him in order to ascertain what he called the dutiable value; and likewise aIsl;> in the last case, UDder authority of the case referred to, the plaintiff is entitled to recover the duties charged and paid upon the charges which were added to the market value of the goods to ascertain the market value. You will therefore find in favor of the plaintiff for the amount of duties paid for these· three excessive charges made by the appraiser and by the collector in ascertaining the amount.
Verdict for plaintiif.
UNITED STATES ".ROUTE.
(Distriot '(}owrt,E. D. Mi88QU'I'i,.E.D·. December 20,1887.)
On indictment under Rev. St. U. S. § 5438. making it a criminal offense to make a claim upon the government fo,rthe payment of a demand known to be 'false,t1.ctitjous. or fraudulent. the· defendant WRscharged with attempting to obtail:\, P/l,Y and bounty by falsely_representing herself to be the widow of a soldier, killed. during thjl war. Held, that to warrant conviction it must appear that defendant Was not the widow of such soldier, and· that she made her demand knowing this to be the fact; but otherwise, if the claim, though groundless,and without merit, was made in good faith, and in the belief that she had 'been the wife of the soldier and was his widow. and entitled to the pay and bounty due him at his death. 2. MARlUAGE'"1'7B:lllTWJClIlN COLORED PERSONS-PROOF U. S. §I 5488. On indictment under Rev. St. U.S.. §I 5438, defendant was charge(l with falsely representing herself to be the widow of a,deceased c'olored soldier, in order to obtain from the the pay and bounty due him at his death. Held, that an agreement to become husband and wife; if immediatelyfollowed by cohabitation as such for. a considerable period, constitute.s 0. valid marnage in Missoud, and' that the validity of such marria£es, especially among colored people, is recognized by section 4705, Rev. St. U. S. ' "
CLAJMS AGAINST UNITED
Indictment for Preferring False, Fictitious, or FtaudulentClaim against the :GQvernment. Thoma8P. BashaW, U. S.Dist. Atty., for plaintiff. " J. M. J4qi.a and M.G. Reynolds, for defendant. . ,
(charging jury.) The indictment which youbave been is framed ,under a statute of the United States, which provides, in substance,that "every person who makes or causes to be made any claim upon or against the government oftheUnited States, * * * knowing such claim to be false, fictitious, or f\audulent, * * * shall be im,. prisoned at hard labor not less than one nor more than five years, or fined, not less than one thousand nor more than five thousand dollars." Rev.: St. U. S. § 5438. Underthetestimonyin the case, there is no doubt that the defendant made a demand or claim upon the government of the United States; such demand being for pay and bounty which she claimed to be due to her as the widow of a colored soldier by the name of Hiram Route, said to have been killed during the war, at Petersburg, Virginia. Nothing further need be said on that branch of the case. I accordingly your attention. at once to the important questions observe from the statute !Which Ihavel ' for your oonsideration. You in substance, .quoted, that the offense consists in makings claim 00' the governmentthlit is known to bemthcrJalBe, fictitious, or fraudulent. It is no offense unqer' the statute to, make ,a Clairri u pan the government for thepaymentofa demand that is or without merit, unles,S" the person who makes it understands at the time it is made that it is> a false" fictitious, or fraudulent demand, and therefore intends to defraud the government. In the present case, counsel for the gov.ernment contend that the defendant, Chaney Route, knew full well that she had never