LAMAL '11. UNITED STATES.
E. D. Lou18iana, March 18,1890.)
0tJ1l'fOHB DUTJlIB-Al'PRAIS!L-GLASS. , " Under 22'St. U. S. 496, which provides that p:lasslmportedin boxes containing 50 feet, single thick.1 Ilond weighing' not to exceed 55 pounqs, shall be entered 50 pounds of glass only, but in all other cases the duty shall be 'computed according to theactrial weight of the glass," a. box of glass containing 50 square feet, but weighing less than 50 should be computed as weighing 50 pounds.
On Writ of Error from District Court. G. A, ]1rea'I.tX and A. H. Leonard, for plaintiff in error· .fm., Grant, Dist. Atty. l "
PARDEE, J. The ,United States brought suit in' the district court of this to duties claimed to be due upon cer.. tainimportations. ,of glass by, theplaiotiff in error.. The cause was sUbnlitted in the court upon the following, agreed statement of facts. ' ' " imported hltothe United States,through the port of New, Qrleans, in the petition of plaintiff, certai n of common win" dow-glass, in boxeacontaining. fifty square fel;lt, ... "'.'" now, known, and 'commonlydesigriated, as fifty feet of gl1J,sS single thick, dutiable under SChedule B, paragraph 138 of the Thats1\id glas8 was dUly entered and withdrawn for consumption by defendalit,who paid the duty as !iqUlq8,ted, and delivery of the glass. The dnty was then esti..: mated actual weight ot the several boxes of which. in every cw-as less than el'ch.Subsequently, the collector of cUflltdms decided that each of. thEl 8aid fifty feet SI;IOUld, be held and deemed to contain fifty pounds of dutiable glass, although their actual weight8 were less by several pounds; and, by advice of the secretary of the treasury, directed the duties to, be levied On each box as if it contained fifty poundiJ, and ordered the entries of said ,glass to be reliquidated in accord,bis decision, which was don!'l. ' :Upon tbis,reJiquidation, made in' accordance with said decision, the duties amounted to the. sum sued in. in excess of the amountpaid when the goods were 'W'ithdra'WIl. The due on the several entries, as reliquidated; was notified, to 15th day of April, 1889, and demand made for payment thereof by the collector. which was refused. The right to offer further proof at the trial of the case, subject to all legal exceptions, is reserved to both parties."
Upon the trial of. the case the court instructed the jury that, upon the agreed statement of facts, it considered there was no protest and appeal to the secretary, fl'om' the reliquidation, the defendant was concluded by it, apd he cc:mld offer no defense to the action. The defendant asked the court to instruct the jury. and in fact upon the directIon' treasury departI:ll,eI!t, throughJhe collectorof,custoolS,.tO levy and polstateo! facts,itw8st,he levy of duty'on the hiet; since, on weight of goods in excess of actual weight; that the only question was' whether the government could charge duty on window-glass weighing 1es8 than fifty pounds; and that to the decision of such a question by thecourtli it
J'JI1DERAL REPORTER ,vol.
was not necessary that a protest and appeal from the notification of the claim to the importer, whether, ealled a reliquidation or not, should precede." -Which instruction, as asked, was refused. A bill of exceptions was taken to the instru-cfiongiven, and to the refusal to instruct as asked, and the case brought to this court on writ of error. TheadjQdged ,cases are in favor of the ruling of the court below on the and appeal, (seeWestray v. U. S.,18 Wall. 322; U. S. v, SchJ.,e8inger, .120,U. S. 109, 7 Sup. Ct. Rep. 442;) but it is not to pass upon this in order to sustai'J\thejudgment. On the agreed statement of facts" the go.vernment was entitled to a yer· diet and judgmentj and the questioti whether there had been a protest and appeal was' wholly immaterial. The statute proviqes "that unpol. ished, cylinder, crown, and common window-glass, irilpotted in boxes containing fjjty square feet, as nearly assizes will pernlit, now known arid commercially as fifty feet of glass,.' single thick, and weighinguot to exceed pounds of glass per' box, shall be enteredand computed as fifty pounds onlYj and that said kinds of glass imported in boxes containing; as nearly as sizes will permit, fifty feet of glass, now known and commercially designated as fifty feet of glass, double thick, and 'not exceeding ninety pou'iiqSinweigh t, shall be entered. and 'computed' as eighty pounds of glass onl.Y'j but in all other cases the duty $hall be computed according totneaetual weight of glass." 2.2 St.. U. S. 496. The plain 'language of this 'let requires that the glass imported by. the plaintiff in error, as stated in the·agreed statementof facts; shall be entered and eoru:puted as 50 pounds of glass. It was in boxes.ClQntaining50 square. feet; 'as nearly as ,sizes' will permit, known and 50 feeto.fglass, single thiclt,. and pot to. exce.ed 55 pounds of glass per box. 'The. "but in alr9ther cases the duty to the actual weight ofi glass" refers to cases where boxes of 50 feet of single thick glass weigh over 55· pounds, and where boxes of 50'feet of glass, double thick, weigh over 90 pounds. It isciear that in all boxes taining feet, single thick, 'and weighing not to exceed 55 pounds, must computed on, .a weight of 50 pounds per box. 'rhe juq,gPlent of thedistriet court. will be affirmed, with costs.
et aZ.v. ,MAGONE.
(Ol'l'eutt Oourt, So D. NeJW
CuSTOMS Dl1TDI8-'ENTRY A.ND ApPllUSAL-ABSDNOB Oll' INvOIOD-14UUNIUND SToRAGB.
Where an inlpOrter ohooses to enter goods of less va!,ue than 11,000 without a car· for cartage to thE! appraiser's stores, and for storage and labor at such stores, may properly be exaoted by the goverbment. (SyZlabUB lY/I,thB 'OO'U'l'to)