LIEBENROTH et ale
(Oircuit Oourt, S. lJ. New York. January 5, 1888.)
Rev. St. U. S. § 2499, as amended by act 1883, provides that if two or more rates of duty should be applicl;lble to any imported article, it shall be classHied for duty under the highest of such rates. Held, that photographic albums bound in leather, their interior part consisting of paper, are dutiable, under the provisions of Schedule M, par. 463, at 80 per cent. ad 'lJalorem, as articles not specially enumerated of which leather is a component part, and not under paragraph 384, or 885. or 388, providing, respectIvely, for duty on books or pamphlets, blank books, and paper manufactures not specially provided for.
At Law. Action to recover back customs duties. Action by Adolph Liebenroth et al. against William H. Robertson, collector of revenues, to rerover an alleged excess ofduties paid in 1885 and 1886 on photographic albums. Stephen G. Clark, for plaintiffs. Stephen A. Walker, Dist. Atty., and McGrane Ooxe, for defendant. LACOMBE, J., (orally.) It is provided by section 2499 of the' Revised Statutes, as it stands amended by the act of 1883, that if two or more rates of duty should be applicable to any imported article, it should be classified for duty under the highest of such rates. The articles in question here are photographic albums, the interior portion of which, intended for the insertion of the photographs, is made of paper, and the albums being bound with various materials, such as paper, leather, plush, cloth, wood, etc. The albums in the particular case now at bar, however, are covered with leather only. It is contended by the plaintiff, first, thntthe articles are covered by paragraph 384 of Schedule M, which enumerates books, pamphlets, bound or unbound, etc. This contention seems unsound, because upon the principle n08citur a 8ociis, the various articles covered by the enumeration of paragraph 384 seem to include only such as are printed or struck from plates or types. It is further claimed by the plaintiff that if not covered by paragraph 384, the articles are covered· by paragraph 385, which provides for blank books, bound or unbound, and blank books for press copying. The testimony of the plaintifi' Van Auw, however, indicates that these albums are not known in trade and commerce as blank books, and therefore they do not come within the enumeration of that paragraph. The plaintiff next claims that if not covered by paragraph 385, they are covered by paragraph 388, which is as follows: "Paper manufactures, or of which paper is a component material, not specially enumerated or provided for in this act, 15 per cent. ad valorem." The collector assessed duty at 30 per cent. ad valorem under the provisions of paragraph 463, as follows: "All manufactures and articles of leather or of which leather shall be a component part, not specially enumerated or provided for in this act, 30 per cent. ad valorem."
In support of plaintiff's contention he refers to the case of Arthttr v. SU88field, 96 U. S. 128. The facts of that case, however, were different from the one at bar, for the reason that in the paragraph in which there was the enumeration "manufactures. of glass" there were also included the word" pebbles for spectacles," which indicated quite clearly that the manufactures of glass referred to were intended to include manufactures of glass for 'optical purposes. The phraseology of each paragraph referred to iJ;l the case at bar (388 and 463) correctly describes the particular article imported. Itisa manufacture of which paper is a component part. It is also a manufacture or article of which leather is a component part; and it is not, otherwise than as a manufacture of paper or a mamifacture of leather, specially enumerated or provided for in the act.. In interpreting the provisions of these tariff acts it must, of course, be assumed that congress was familiar with the conditions of trade or manufacture at the time; and we must take notice of the circumstances under which they have, for very many years past, been enacted; Such considerations will meet the suggestion that bYll.pplying section 2499, and thus assessing these articles for duty at the rate specified for the. component material which pays the highest rate, there is no fixed rate for photographic albums, as such. It was quite competent for congress, if it chose to do so, to provide specifically for photographic albums. They were made and imported long. before the passage of this act. They were imported with covers of different materials, and sometimes unbounll, the covers being lIlanufactured and put on here. It was very easy for congress to treat these,go9dsas articles wall known in trade and commerce, and in common use, and to include them as such in some specific enumeration. They have not done so, except as the articles may be covered by one or other of these paragraphs which describe them only by their . componepts. It is no doubt the result of such legislation that there is no regular, specific duty for the photographic album as such. But it is to be taken into cOllsiderationthat when congress passed these acts it was endeavoring to accommodate a great variety of conflicting interests. Every album imported with a silk cover, to a certain extent interferes with the manufacture of silk here. Every album imported with a leather cover interferes to a certain extent with the manufacture of leather here; and in view of the fact, which is well known to us, that congress for y.ears has been legislating on .revenue, amid the clamorous appeals of many conflicting interests, each claiming its share of protection, it is not unreasonable to interpret this section ,as meaning that these photographic albums, if all paper, shall pay the paper duty; but if they ar:e.f,omposed of any other material which.is itself protected in the act, then the measure of protection accorded to that other material shall reach over anq. protect it when it is incorporated in this article. Of course itm,ust enter .into the album, to a substantial extent, sufficiently 80 to.sddto its attractiveness and IiSsist, its sale. For these reasons, I shall direct a verdict for the defendant; exception to the
UNITED STATES UNITED STATES
BARNHART, (four cases.)
(District Oourt, D. Oregon. December 26, 1887.)
PUBLIC LANDS-SELECTION OF SWAMP LANDS-REGULATIONS OF LAND-OFFICE.
The regulation of March 18,1875, made by the commissioner of the general land-office concerning the character and quantum of evidence to be furnished the surveyor general with selections of land made by the agent of the state as swamp, under the act of March 12, 1860, is an appropriate regulation of that subject, and, until the contrary appears, it is presumed to have been made under the direction and with the sanction of the secretary of the interior, and has the force and effect of law. A forged affidavit is within the purview of section 5418, Rev St.· when it appearll therefrom, or in connection with extraneous circumstances alleged in the indictment, that it may be used to defraud the United States. as alleged.
SAME-SELECTION OF SWAMP LANDS-FORGED AFFIDAVIT.
SAME-SELECTION OF SWAMP LANDs-AFFIDAVIT
An affidavit may be used as evidence, under the regulation of March 18, 1875. to prove the character of lands selected by the state as swamp and overflowed. under the act of May 12, 1860. whether made· before or after such selection; and if made before. and presented to the governor for his consideration in making such selection, the presumption is that he transmitted the same, with the selection to which it relates, to the surveyor general.
The regulations of June 80, and September 1,1880, by which the land depart· ment of the United States. in conjunction with the state. undertook, by means of agents in the field, to examine the character of the lan.ds claimed by the state under the swamp-landgrantthereto, superseded the regulation of March 18·. 1875; and thereafter no affidavit could be legally used before the commissioner or secretary of the interior on the consideration of the question whether such lands were swamp or not. other than the affidavits of the agents employed to make such examination in the field, and therefore the affidavits alleg-ed in the indictment to have been forged by the defendant could not have been legally used to defraud the United States. (Syllabus by the (lourt.)
Indictment against defendant, William H. Barnhart, under Rev. St. U. S. § 5418, for the forgery of certain affidavits, with intent to defraud the government. Lewis L. McArthur, for the Government. Oharle8 B. Bellinger and H. Y. 'i.'hompson, for defendant.
DEADY, J. The indictment in this case was found on April 11, 1887. By it the defendant was accused of violating section 5418, Rev. St., which provides as follows: "Every person who falsely makes, alters, forges, or counterfeits any· * * * affidavit * * * for the purpose of defrauding the United States, or utters or publishes as true any such * * * affidavit * * * for such purpose, knowing the same to be false, or presents at the office of any officer of the forged, or United States any such * * * affidavit, * * * knowing the same to be false, forged, altered, or counterfeited for such purpose,"shall be punished by imprisonment not more than 10 years or by a fine of not more than $1,000. The indictment contains three counts. The first· one charges the forging; the second the uttering, and the third the trans- . mittingof such an affidavit, with intent to defraud the United States.