FARWELL fl. SEEBERGER.
to a reasonable extent, often pay better in the end than a swift and ready resort to litigation. In the view thus taken of this case, it is unnecessary to discuss the other fact in evidence, and relied on by defendants, that ;the machine, when it did reach Pilot Grove, was without a smoke-stack, without whioh it could not be operated. The first defense1s conclusive rimough. It follows that the issues are found for the defendants. J udgment accordingly.
FARWELL fl. SEEBERGER,
(Circuit Court, N. D. nlinoiB. JUly 18, lSS9.)
CUsToMS DtiTtllB-'"'-CLASSIFIOATION-WOOLEN DRESS-GOODS.
Women's and children's. dress-goops, which contain no cotton, except about 6 per cent., carded into the wool from which the warp is spun, come within the description Of. goods composed in part of wool, an.d are dutiable at 5 cents per square yard, a11d 85 per cent. ad valorem, under March 5, 1888, (Heyl's Aytangement, .c1. 865, pars. Ilt b,) though the cotton was used for the purpose of securing a lower classification.
At Law. Action by John V. Farwell against Anthony F. Seeberger, collector of customs, to recover excessive duty alleged to have been levied on certain goods. Shuman &: Defrees, for plaintiff. W. G. 'Ewing, U. S. Atty., and G. H. Harria, Asst. U. S. Atty., for defendant.
BLODGETT, J. Plaintiff imported a quantity of women's and children's dress-goods, composed mainly of wool, and weighing less than 4 ounces to the square yard, upon which the collector imposed a duty qf 9 cents per square yard, and 40 per centum ad valorem, under paragraph e, clause 365, Heyl's Arrangement of the aot of March, 3, 1883. The plaintiff, insisting that said goods were composed in part of wool and part cotton, and dutiable, under paragraphs a and b of said clause 365, at 5 cents per square yard, and 35 per centum ad valorem, paid said duties under protest, appealed to the secretary of the treasury, by whom the action of the collector was affirmed, and brought this suit in apt time to recover the excess of duties so paid. The proof shows that the goods in question are women's and children's dress-goods; that they are composed mainly of wool; that there is about 6 per cent. of cotton carded into the wool from which the warp of said goods is spun; and that there is no .10tton in the filling of the goods. The proof also shows that this mixture of cotton in the warp of the goods was made purposely to secure the classification of the goods as composed in part only of wool. There is proof in the case also tending to show that the mixture of the cotton with the wool in the warp adds to the strength and firmness of the goods, and makes them less liable to shrink; but my conclusion is that one of the v.40F.no.9-34
.witnesses for the plaintiff honestlyattd frankly the facts in the case when he said, f:romthe witness stand, "that he noderstood the object of mixing the oottonwith the wool was to secnre a lower classifica.tion for the purpose of assessment for duties;" ,rhe goods contain no separate threads cOIDpOse.dentirely of cotton, OJ', .other. ,DuJ,terial than wool, but all the' cotton ,in the gOQdsis carded in.tQ and .made a part of the yarns composing the warp. The collector, in classifying the goo<ls, evidently assumed that the purpose of mixing the cotton with the wool was to secure a lower classification; and assumed also that so small a quantity of cotton would not materially change the character of the goods as merchandise, for to therefore looked upon the contentioll of the plaintiff for a lowei'ula.ssification as an attempt to defraud the revenue, the higher duty, under paragraph e of the same clause of the customs act. Congresshaving made special provision for a lower.rate dutyupongooos, pllrt ofwool(.witboutnaminghow ,'liInould enter into their composition in;orderto Becur.e such lower rate of am a.nd have the right to adjust themselves to thIS clause of the tarIff, andtQ .maQufacture these goods mainly of wool with only a small percentage of cotton, for the purpose of bringing them specifically within paragraphs a and b ofelause 865, )and making them dufiable at the loW: rate. coatencl'ed: for. The policy :,which dictated the revision of thetal'Hfilaws by the act of March 3,.1883, was evidently to secure a reduction of duty upon many articles, and to that end this clause was adopted specifically, low-priced goods, <reomPosed. ,only in part: of wool,' dl1tiahle at a: lower rate. . Thec0urt has nothing to do with the policy of congress further than to construe'their acts, as far as possible, according to the intention of the legislators, as it can be from the law 'itself; and to me, that the purpose in enacting this inlo:vision was to admit certain: grades of, woolen goods, ; with any mixture of pUiterial which should them,at· a,}ower .and reduced rate!of duly. The proof shows, that the: goods in .question so small'an; amoont of cotton that· the ordinary dealer in them , and the ordinary examiner: would not detect· .the.cottonwithout a dose and careful examination" but I. do not see that; this 'changes ·the legal ,right of the plaintiff to bring his goods within the operation of mvoked .by the admixture of even a small percentage Of cotton, ifhe , do Slil; and 1 cannot see why goods made of94per"cent. in bulk of 'Wool aud6 per cent. in bulk of cotton ,dOi not fairly come within the descrip. tion of goods composed' in .part of wool. I am therefore of opinion that the collector should ha\Te dassedthes", goods at the rate of duty contended for in the protest. '
,\, CAsTRO V. SEEBERGElL
(O£Tcuit .Oourt, N.D. nUl/lOw. July 18, 1889.)
Under Rev. St. U. S. § 2981, which provides for an appeal to the secretary of the . , treasury, by the owner) importer, consignee or agent of, the merchandise,. from ,the decision of the collectOr\in ascertaining the duties; and makes the decision on appeal final, unless suit shall oe br()ught within a certain time thereafter, a per80n who of the importer, while in bond pd pending an appeal, may sue for the exces8 of duties claimed to have been paid; , .
CuBToJ(lI DUTIE8-AcTION SECRE'fARY OP TREASURY.
PENDIliG APPEAL TO
. . .
TobaCClO composed of fraEents broken or cut oft in the manufacture Of and known to the trade as ,scrap tobacco, "is dutiable as unIllll,nufactured tobacco, under Tarlft Act Maroh II. _ (liey!, oL 251.) Following Oolm y. Bpa14£ng, 24 FeiLRep.111. '
At Law. , Action by Daniel Castro against Anthony F. Seeberger, collector of customs, 'to recover the excessive duty claimed to have beep levied on certain tobacco imported by the "Roper & Baxter Cigar Company, and sold to plaintiff. / Shu1naJil.&: Defreea, for plaintift. W.,G.;Ewing, U. S,. Atty., and G. H. Harris, Asst. U. Atty., for defendant.
J. The Roper, & Baxter Cigar Company importen into the ,portoi' Chicago a quantity of Jtobacco clippings, being the ends cut off, and pieces of leaf broken from, cigars in process of.manuliwture, upon which the collector assessed a duty of 40 percent. per pound, as "manufactuTedtobacco."urider clause 249 of. Heyl's Arrangement. of act of March 3, 1883. The impprters insisted that said tobacco was dutiable at' 30 per cent. ad valorem, unmanufactured tobacco," un251. of Heyl,. protested, and appealed to the secretary of the treasury ,i by whom the nction of: the collector was affirmed. After the assessment of duties, as aforesaid, and pending such appeal, the tobacco remainedinboud, and while the appeal was pending plaintiff purchased thetobaceo from the Alter.the decision of the appeal plaintiff paid the duties so assessed in order to obtain possession of the tobacco, arld:brought this suit in apt time, after the decision of the appeal, to recover'the difference: between the duties assessed and paid, and the rate c,ontended for by the importer, The question as to the classification and rate of duty upon' tobacco clippings', like the goods in question, was. fully considered and decided by thiscounin Cohn v. Spalding, 24 Fed. Rep. 19, and I see no reason for changing the ruling there mad.e·. But it is further contended in behalf of defendant that as plaintiff did not import this tobacco, and was not the owner, consignee, or agent of the goods at the time they were classified, and the duties imposed upon them by the collector, and did not take the appeal to the secretary of