MUSER tI. MAGONE.
enlistment, he had not reached his majority by a few months. It also appears that after his enlistment he received both clothing and pay as a soldier in the service. By the Revised Stat\1tes, tit. 14, § 1117, it is provided that no person under the age of 21 years shall be enlisted or mustered into the service, without the consent of hill parents or guardians, provided he has such, entitled to his custody or control; and by section 1118 it is provided that a minor under 16 shall not be enlisted, even with such consent. By section 1342, art. 47 ,ofsame title, it is provided that any soldier who, received pay, 'orhaving been duly enlisted into the service of the United States, deserts the same, shall in time of war Buffer death, and in time of peace any punishment, less than death, which a court-martial may award. Kaufman was a soldier in the army, though improperly there; but he was not authorized to determine the legality or illegality of his service himself, ,by deserting it.' To say that a'soldier placed on picket, his service leas agreeable than he had imagined, may' expose his fellows to surprise and destruction by walking away,and be excused because he was of opinion he was improperly enlisted, and that his parents have objected to it if hehltd consulted them,. would destroy all discipline in the servioo; and it was this state ofatl'airs that section 1342, art. 47, was' enacted· to prevent. If he be in theservioo, and takes pay as a soldier, whether he was properly enlil'lted or not,if he desert, he is liable to be is not en:" tried and punished by court-martial. .The party, titled to, be discharged under the writ, and must be' returned to his command;and: it is so
(Oircuit OoWrt,S. D. New York. Decemberll,l889.)
The finding of a reappraising board, constituted under section 2980 of the Revised Statutes,88 tQ. the value of imported merchandisel-.isfinalaud conclusive, and cannot bet:eviewed by the courts. Citiug S'tfdrB v. rOOBWle, 18 Bow. 521. .
SAKE-CONSTRUCTION OP LAWS-FOREIGN MANUPAOTTIRESlKPORTED POR SALL
DtJ'rIES-ApPRAlSAL-REAPPRAISING BOARD-REvneW. .'
Section II of· the tariff act of March 3, 1883, provides only for cases where an cle, made in a foreign country 1& not sold there, but 1& brought to the United .States for sale.
Section.II·.of the tariff act .of 1883 does not require a deWtmination as to the cost of. each. specific bale or cask or bag of goods. It reqllires only a determiuation, estimation, or ascertainment of what the vallie of goOd. of the kind iniported was .,in the places whence they came at the of; exportation. ; Inasoertaining the expenses of manUfacturing II of the act of lil83, theremustbeincludednotonly .the expense of ihe various.proOO8sElS of manUfacture, butal"'o general such 88 iutel1l8t on the.QaPitalinvested, cost of insurance, salaries of employes, etc. . . . , .
BAMxn..:.ExPENSES OP MANUPACTURE.
I ·. SJJ4E-PItOPIT. . i: In determining the value of imported goods, "Proll.t"lhould be ooNldllred 88 an element of 'value by the appraisers only so far /,\S it enters into the selling the goods in the markets of the foreign country from whiohthey were Imported.
1,1 ' ,
. At:Law; This wasanactitni:brought by' Richard, Muser and others, composing the firm of Muser Bros., against the collector of the port>of New York, to ·recqver duties have, beli!1l :unlawfully ,exaotedof them on certaincottbne:l11broidmiesimpol'ted'intothe portaf 'New York. Upon the ,trial it 'appeaied,!tPatthe'cottonembroiqerieswere manufactured at St.! Gall,. Switzerhtnd.,; :Plain,tiffs maintained a branch housEi at that place.,::,Tne cloth on wh,i:Ch the embroideries were stitched' was chlisedfu the gray state by plaintiffs and received in thein,wArehouse at St. :Galt It was then ,.sent out to various parties at St. had stitchirig machines,,,and stitched according to patterns 011' designs ,furnished by Jplaintiffs, :which designs had either been chased by them in Paris, or made in their St. Gall establishment by designerS ,employed by them·. :Whe goods, when stitched, were.:retul'l'led to plainand, having been eXamined by their:,employes to see lfthej. _e 'properly;,qone, were sent aut again to, a bleacher,. to be ,to plaintiffs' hOUS8i1reo-examined, cut: into strips :.of ,size for the Am,erican inaIlketj',ticketed, boxed, carryon this business in St.'Giill,:p1aintiffs bad to rent a .building, employ a staffi of'8ssistants, and pay,insutance,and keep)8 cel"tain,am<>unt of UpQn>their,inlToices;plaintiffs ,barlstated thecostof the cloth, the prices for stitChing·, according to :mllrket rates, and the costoC"bleaching and finishing. ,On. entry they":added a.percent. to the price to make 'market, valuerhut "they claimed' upon' the trial that this: addition was not voluntary, but was made to avoid the penalty prQvided,hy ,ute for cases where the appraised value exceeds the entered value by 10 per cent. The appraiser added 7 per cent. to the entered value to make market value. The plaintiffs demanded a reappraisement, upon which ,the appraiser, and added 7 cent. to valu".) Tqe,plp:intiffsprotested against this addItIon. and, the was not ,legall,Yconducted, 9Y thete$tiniony.Qf the mer';' Ohantllandgeneral:appraiserthat the addition had beerimade to ,cover a so-,cal,)ed, "m!1n, on gmund ,could,no(revlewthe proceedIngs ()D a reappraIsettIetit·. ' It allJo appeared upon the trikl that' there were at St. Gall a class of dealers. called "commissionaires," to whom buyers,of embroideriea for,theAmerical1,II1atkletoollld give orders, and the same services goQds as those performed in plaintiffs' warehouse Gall. .At the close of the case both ltl9yed, ()f act 1883 Large,;Q.1,21,,§,9,.p·. 52t» ,p1'ovldes that "if,"upontheapmercnnridise, it .the ,true ual market value, and wholesale price thereof, as provided by law, canin the United States, or for any other reason, it to appraise
, the sam'li} by, ascertaining the cost or ·v'lllue"of the materials composing such merchandise atJhe time and place o£ manufacture, tOgether. :with thei eJtpense ,of manufacturing. preparing;.andputting 'up such dise for shipment, and in no case shalL the 'value, of such merchandise beappl'aiseQ&t less than.tbe total cost Or value thus ascertained; 1'; , O/'w:rlf!JJ :Ouriei WilliamStanle']J, StepJum.G.Olarke, lHld EdiWiin B. Smith, forplaintitfs. 'i; , Atty., and W.WickhamSmith j Asst.U.:S. Atty··J ,defendant. ,,
; J., (or(1Uy.) ,When attentioa was first called to, section;,9 of.the,act of 1883.,1 was oftheopinionthat, it required, iIicases,waere it of the of .each particular bale, of goods .upot:(fwhich duty was:to be.assessed. In. view"hoWElver,of theci1!OUIXlthat most of ·the goods referred to:jnsectiof); 9 are suchaa'.&re recEliv(l(!1j and disposed ,of in the United States by:a.gents only,whoJlrequently, if not universally, are without fuil-,kno,wledge,ftsto all the items enteIingJntothe cost,ofp'l'oduetionj and, in view of the fact :that, if. thus interpreted, the UnitedSf;,ates,al'ldthe importerj.in which 'the.oOl3tof the gooi:ls was to be.detemnined,bya..JUJl'yj8.nd', furthm-, in vi,e,w.Qf, -the fact that: SUch ia: ,method, of detertnination 'of the dutiable valueQ:fhnports is .entire soheme of! the tariff acts,from 1 have ifeatJbed the.' conclusion that,section9wasn.ot inteadQd 1;j). require &detennillatioo' as :tothe cost ofeach. specific bale.,or cask,o... it xequires estimation, or, of what the value ofgoods of the kind imported was in the plsQe8wheJlQe at the,tim-e ,of .exportation. "Thatis to be ;38, all other, general questiOl;ls·are'determined, by ;a.n; investigation, io1o.al1 ,such matters as: will give.the:appraisers <light upon, thl:l su.bject before,t-hemj-is in' fact an appraisement, .and should be treateds-s·. under· the·decisions, appraisement,il. ,aregenerally.treated, astinsl, exoept in tbe case ofreappJr4Iaement. . While upon this:8ection, it is to be noted that· what: is to be .deter· mined,lsQot the expense to which anypartioular individual is put,J>Ut the. whole expelllse .of manufactui'ing·. preparing, and putting up'such merchntldise,whethersucb expense is borne by, one individual orby.several.,:Thisl'equiresa statement broad enoughto.oovernQt only the oost . .,and value of the raw materials inw the completed prOduct, and the other:ltems which the importer in this case .has specifically stated, to-wit, stitching, bleaching; outting off, etc.', but also othedrems which are cettai!nly: not herestntedby. the .importer,. nor specifically, a& to these gOQQsd!)yaQY one else.. Am.ong theseitems last re!erl'cd to may included the expeuse of keeping the money invested in tied up until the product is completed; the expense of insuring the raw . material while ,in thebaniia/o£·the various individuals. who .8fel'l'ol'king upon it in order to produce the finished product; the cost of the services of individuals who move this material to and fro between the different
hands that work upon it, who, in each stage of the process of manufacture,examine and oversee· it, in order. to determine if it is being properly made,-all these items were not included in the statement made by · the importer upon' the entries or in'voices in this case. I ami however, of the oipinion....and that I consider the controlling poilit,bf this case...,.,.that this importation is not the kind, of importation contemplated by section 9 at all. What section 9 is evidentlyintended to providElfor is the case where an article made in a foreign country is not sold there, but is brought to the United States for sale.8uchdoes Ilot appear to be the case here. So far as the evidence shows, anyone can go:ti:lSt. ,Gall, and can there buy these very cotton'embroideries,-not ··preciselyof. the same pattern as Mr. Muser's, but he can get a. selection . from a large variety of assorted patterns, and, upon paying the cost of the ,cloth, stitching, bleaching,cutting up, and boxing,a,nd the additional charge,he can obtain these goods in St. Gall. He may have to wait for · So :week. or three weeks, orJfive or sixweeksj but the'title to the goods changes hands in St. Gall;' aRd the' purchaser may havethem delivered to him there; if he ehQGSe8'to wait lind take them. Ioannot see, then, thattbis is an instance of the kind specified in Section ,9, which contemplll.tescases where gbods are made abroad, but are 'sold only here. If that iSBo, s,nd seotion 9 does not apply to these goods, then the function'iwhich was to be discharged in :regardto them by the, appraiser was · to determine their marketvalue;--in'the language of section 2902 oHhe RevisediStatutes, to' idetennine "the true and actual maJ:'ket value and wholesale P1lioo;" and to determine that: by all reasonable;ways and means · ,in their power., .If theymade'lmch examination, this court is not warranted,in view ofthedeoision of the supreme court in the case which was eited,Stair8 v.P6al4'lu, 18 How. 521, in going behind the returns of .such appraisers, and undlJrtaking to estimate the value of these goods. I at the SAme time that, inestimatingthe'market value,I see no warrant or authority under either section, whether such estimation , was a mere assessment'ofthe market value or an ascertainment ofthe cost, for their adding, iHheydid so add,any item for profit. :Ofeourse. the expenses which I have·referred to are matters proper to be taken into consideration in detern1ining the cost, orin reaching a of the n1arket value; but the profit in addition and beyond tbat,was not prop'be included ,excepho: far as it may be included in the selling price . in,St.'Gall. Whether or:not they did so include the profit would. however, invC;,llve.an examination as to the correctness of their determination as to · tbernatket value of these goods, which I do not think, under the decision above cited, we are doing,linymore than in that case the court and jury were entitled to examine into the question whether the appjaisers had: really selebted the principal 1m8tket of the country of exdirected for defendant.
The. jury. .rendered a verdict in accordsrroe·\\"itb the direction of the oourt.
BERMAN II. ROBERTSON.
(Cof,rctt.'tt Court, S. D. New York. December 12, 1889.)
CtrsTOI\IS DUTIBS-CL.l8SIl'ICATION-CALlI'-HAIR AND CoTTON CLOAXINGB.
Cloakings made of calf hair and cotton, imported in 1881, were dutiable at 80 per cent., under the provision of Schedule M, § 2504, Rev. St., for "all other manufactures of hair not otherwise provided for; "and, being thus enumerated, could not be held, dutIable under the provision of section 2499, Rev. St., that "on all articles manufactured from two or lXlore materials tile duty shall be assessed at the highest rates at which any of its component parts may be chargeable. II
(SyUab'lt8 by the Vour,t,)
At Action torecover duties.. In 1$81, plaintiffs imported from' :England certaip. cloakings, com:. pqse'dof bait or cow hair arid cotton. ,The goods were c1l18l9ified by the defendant as manufactures of calf hair and cotton, assimilating to manufactures of goats' hair and cotton, and assessed for duty at 20 cents per pound and 35 per cent. ad valorem, under the provision in schedule L, § Rev. St., for "manufactures, of every description, composed whollY,or in part of the alpaca goat or other like animals;" and the simili tude provisions of section 2499, Rev. St. Against this exaction the ltlairxtiffsprotested, claiming that their goods were composed of two materi8Js, and were dutiable only at the chargeab'leon any of the component parts, viz., cotton, at 35 per cent. Upon the trial, counsel for defendant moved for direction of a verdict, claiming that plaintiffs' goods Were Mt non-enumerated, and that therefore neither the collector's classification: nor the plaintiffs' claim was correct; ,that the goods were properly dutiable under the provilrion of Schedule M, § 2504, Rev. St., for "manufactures of hair not otherwise provided for;" and that, as the plaintiffs had not made a claim under that provision in their protest, they could not recover in the suit. Stanley, 'Clarke &: Smith, for plaintiffs. Edward Mitchell,U. a.Atty., and W. WickhamSmith,Asst. U. S. Atty., for defen<lant.
LACOMBE, J. In disposing of this case I feel controlled by the decision in Arthur v. Butterfield, 125 U. S. 70, 8 Sup. Ct. Rep. 714, to hold that ·goous are manufactures of hair, and, as such, provided for by the c1liuse;in Schedule M, § 2504, of the Revised Statues, under the phrase, "and all other manufactures of hail', not otherwise provided for, thirty pereelittlm ad valorem." The precise point now raised/viz., whether this grade ofeatUe-hair goods are manufactures of hair: does not seem to have been presented to the supreme court in the three ellrlier cases ",here such goods were before that court, (Arthur v. Herman, 96' U. 8. 141; Arthur v. Fox, 108 U. S. 125,2 Sup. Ct. Rep. 37lj Herman v. Arthur'8 Ex'ra, 127 U. S. 363, 8 Sup. Ct. Rep. 1090j) and therefore, in opinions given in those cases, there is found no discussion of that clause. I shall therefore follow the construction of the similar clause which was approved in the Case. This particular case is then left to be dev.4b.no.14-56