day after such meeting of the commissioners will not be unreasonable. The relators will therefore be remanded, and further proceedings upon this writ suspended, until the 26th of April, at 11 A. M.
UNITED STATES 'V. ALLEN
(District Oourt, E. D. Yi'l'ginia.
CUSTOMS DUTIES-ExPORT BONDS-BREACH.
Act Congo .Tune 9. 1880, (21 8t. at Large,167.) provides that exported articles shall be entered on the outward manifest of the ship taking them abroad, but is silent as to who shall perform that duty. Held, that where goods are consigned to the collector of customs at the port of shipment, to be by him shipped abroad, and he gives a personal receipt therefor, reciting that "the said merchandise was duly inspected and marked at this port, and laden on board the foreign-bound steamer W., it * * and that said vessel and cargo were duly cleared from this port," the exporters had a right to presume that the gOfJds had been entered on the ship's outward manifest. and the fact that they had not been so entered was not a breach of the export bond. The fact that in the collector's receipt, which was on a printed form, the cl'luse expressing the entry of the goods on the outward manifest is struck out, is immaterial when such receipt is not given until after the vessel has cleared.
At Law. Debt by the United States against Allen & Ginter. J. C. Gibson, U. S. Dist. Atty., and Jas. Lyons, Asst. U. S. Dist. Atty., for plaintiffs. Legh R. Page, for defendants.
HUGHES, J. The United States sues Allen & Ginter, tobacco manufacturers of Richmond, Va., for the penalty of an e:xport tobacco bond. This penalty, $1'i3, is double the amount of $26.50 which would have been chargeable on the tobacco if it had been sold for consumption in the United States. The tobacco which was the subject of the bond having been intended for exportation, and actually exported, no tax could be laid upon it by the government of the United States; clause 5 of section 9 of the first article of the constitution, providing that "no tax or duty shall be laid on articles exported from any state." All the provisions of the law and regulations of the treasury department of the United States were complied with by the defendants in shipping the tobacco in regard to which they are now sued, both in transmitting it from their factories in Richmond by Coast Line steamer to New York, and shipping it thence to Antwerp, Holland, except one, which will be mentioned in the seqnel. In the bond on which the defendants are sued they stipulated in its penal clause that the collector of internal revenue at Richmond should receive, within 45 days from the 3d of September, 1887, the detailed report from the proper inspector of customs required by regulations, and a certificate from the collector of customs at the port of New York, that the toba.cco intended to be exported had been received by him, and that the tobacco had been duly laden aboard
UNITED StATES 'lCALLEN. '
of a foreign1bond vessel, named in' the certificate, and that the said tobacco had been entered on the outward manifest of said vessel; and that said vessel and cargo had been duly cleared from said port of New York. There was still another stipulation' in the printed forillof the bohd which the defendants signed, which was immaterial and which needs DO consideration. The proofs in the case, embodied in a statement of agreed facts drawn' up by counsel on either side and in correspondence filed in the cause, show that all the undertakings of defendants were fulfilled. except only that the tobacco thus exported had not been entered on the outward manifest of the foreign-bound steamer which took it from New York to Antwerp. . For this omission to enter the tobacco on such outward manifest the government claims the penalty of the bond, and brings this suit to enforce its payment. Inasmuch as the constitution of the United States forbids the exaction of a tax or duty upon any article of domestic production exported from any state, and it is admitted or proved that this tobacco was exported and was landed in Antwerp, it would seem that, if the money sued for be in any part of it a tax levied on the tobacco, there can be no recovery in this suit. The suit can only be maintained on the theory that it is brought for a penalty which the United States have a right to impose for the violation of regulations deemed necessary to the protection of the revenue, and to prevent frauds on the revenue laws. It is not pretended or proved on behalf of the plaintiffs that the omission of the defendants to see to the entering of this tobacco on the outward manifest of the <1E'parting stE'umer was fraudulent. It is clear, from correspondence filed in the cause, that the omission was a piece of inad vertence on the part of persons in New York, and that the defendants did not feel it incumbt:nt upon themselves to attE'nd personally to such a detail in the routine of the shipment from that port. If so, penalties and forfeitures being odious to the law, no loss having accrued to the government, the tobacco having actually gone abroad, there would seem to be Round eCjltitable,as lVell as constitutional, objection to a recovery by the plaintiHs in this suit. But the suit is brought for the purpose, more than any other, of testing the question whether it is the duty of the exporting manufacturer or tbat of the customs officer at the sbi ppingport to see that the article exported is entered on the outward maniiest of the shi p carrying it abroad. Originally the exporter was required to produce proof of the landing of the exported article in a foreign port within a period specified in his bond. But afterwards. for greater convenience, this requirement was withdrawn, and the exporter was made to stipulate, among other things, that the exported article should be entered on the outward manifest of the ship taking it abroad. This provision was enacted in section 1, act June 9, 1880, (21 St. at Large, 167.) That act is silent as to the person whose duty it slwll be to cause the entry to be made on the outward manifest. But the llJcthod prescribed for such shipments, and the forms devised by the treasury department for regulating them, seem to me to imply
that the .person having custody, of the article at the port at the time of s4ipping, being the only persoq, who can ship it, should see to its entry on the o.utw.ard manifest; el3peciailyin cases where the article to be exported iStnauufactur:ed,a,t a,place qthet than the port of shipment, and is tq port for the. purpose under permit and regulations of the treasury department. Thfl tobacco which is the origin of this . having ,been manufnctured in ,Richmond, was forwarded hence to the :collector,of cust0Il;l,s,in New¥()rk, who, after receiving it there, duJy certified. :th,l}t, jt had been receive9. by himself. It Wlj,S in his cUE\todyfrom tP,e time it landed in York. It was constructively in his. custQdy aE\ ,consignee Jnnn the time it left Richmond. It was not only custodia legis during this time and until it was cltared on board the foreign-bound at Ne:w Y,Qrk, but in that city it was in the actual ,of tbecollector of the port., In his certificate of the 17th day of Septeml?er, 1887, ,this officer recites ,"that there was received by me at, ,this port" tobacco, etc." etc.; "that the said merchandise was duly inspected and marked at this port, and laden on board the fOl,'eign-bound steamer Waesland, under supervision of a proper officer; and. that said vessel and were duly cleared from this port for the port of Antwerp on the 6th September, 1887." Every person. familiar with the business of shipping merchandise w.ould say that. the custodian at the shipping port of the article intended to he shipped, having custody untH the article is put aboard and entered as part of the cargo of the ship which is to carry it away, is the only person who can rightfully al]d regularly have it entered on the ship's manifest, and attend to the proper details of the shipment; and when the collector of the port of New York certified that the tobacco of. defendants had been received by him, had been properly inspected and marked and laden: and duly cleared upon the \Vaesland, the owner of the article in Richmond pad a right to presume that the article had, in order to its due clearance, been entered on the ship's outward manifest, the more especially as the act of June 9, 1880, is silent as to who should perform that duty. It is true that in the New York collector's certificate, which has been quoted from, made on a printed form supplied hy the treasury department, he omitted to certify particularly that the tobacco had been entered on the outward manifest of the Waesland. In point of fact he drew his pen through the line of the form expressing that fact. It is true that the defendants became aware of that omission when the certificate came to be read by them after its arrival in Richmond in due course of mail. But the Waesland had been cleared from New York on the 6th September, and the certificate was not signed, by the collector of New York until the 17th of that month, 11 days after the clearance and after the Waesland had been out at sea. The defendants then had no power to correct an omission for which they were not responsible, and which seems to me resulted from the oversight of the plaintiffs' own officer. This is all action at law, and but for the stipulation of counsel, by which all questions of fact as well as law were submitted to the court,
the issue of fact would have gone to lit jUry. Yam very certain that nb jury of the land would find for the plaintiffs on the facts in this case; and, even if such a verdict were possible, 1 am decidedly of opinion that the plaintiffs ought not to recover on the merits. · I was first inclined to think that there had been a technical breach of the bond, for which merely nominal damages should be accorded, but subsequent reflection satisfies me that the defendal1ts have substantially complied with the law, and judgment must berendered in their Javor.
(Oircuit Oom't, E. D. New York.
CUSTOMS DUTIES STORES. RIGHTS OF bIPORTERS -
EXCL UDING AGEN'l' FROM PUBLIC
Though the owner or importer of cigars from a foreign country may by bis agent lawfully affix and cancel the internal revenue stamps required by section 3402 of the Revised Statutes to be affixed and canceled while such cigars are in the custody of the proper custom-house officers, yet the collector of the port may in the cxercise of a sound discretion exclude such an agent from resorting to the public stores for that purpose; and, in the absence of legislation by congress or regulation by the treasury department, no action accrues thereby to the agent thus excluded.
At Law. On motion to dismiss. This was an action against Edward L. Hedden, formerly the collector of the port of New York, to recover damages for having as such collector excluded the plaintiff from the public stores, which the plaintiff sought to enter for the purpose of affixing and canceling internal revenue stamps upon certain cigars imported from a foreign country by certain importers who had employed the plaintiff to affix and cancel such stamps. The plaintiff alleged that on or about July 1, 1885, he was employed for the term of four years by certain importers of cigars to afiix and cancel the internal revenue stamps required' by law to be affixed and canceled on all cigars,etc., which might be imported by them, or any of them, during the four following years, for which service the said importers had promised to pay the plaintiff 20 cents for every thousand cigars imported by them, and stamped and canceled by the plaintiff, and that such employment was worth to the plaintiff $6,000 per year; and that on May 1,1886, the defendant, then being collector of the port of New York, willfully and maliciously, with intent to injure the plaintiff', and to deprive him of the benefits arising from said contract, refused to allow him access to the cigars imported by his employers,or to enter the room of the public stores where the said cigars were for the purpose of having said stamps affixed and canceled, and hindered the plaintiff from carrying out his contract with his said employers, to the plaintiff's damage in the sum of $24,000. The defendant denied these allegations. It appeared that during the incumbency of a former collector a regulation had been adopted