(Of.rauU Oourt, D. Oregon. May 18, 189O.)
A .propeeding before a district judge, to procure a remission of .. 1I.ne, penalty, or forfeiture, incurred under the customs revenue law, does notinclude the CII88 of .. tonnage tax, alleged to have been levied in excess of the lawful rate.
,(SyUabmlYy. the Oonrt.)
0" E. S.
Wood, for petitioners. P. May8, for the United States·
. This is a petition by the consignee and agent of the Britishshlp Largo Law, to have the facts ascertained and transmitted to the of the treasury, so as to procure a remission or mitigation of .a ,certain tonnage tax, amounting to &793.50, imposed on said vessel by the collectorof this p o r t . · , BrieJlY,the case as stated in the petition is this: In October, 1889, the Largo Law entered the port of San Diego, Cal., with.!Io cargo from London, consisting partly of cement, of which 3,360 "'!'lre destined for this port. For the sake of convenience, as it is alleged, the duty on the whole of the cement was paid at San Diego, from which place the vessel then proceeded to this port with the cement on .board here, where the collector imposed a tonnage tax on the vessel of 50 cents per ton, under section 4219, of the Revised Statutes, on the ground that she had on board goods,-cement "taken on in one district to be delivered hl another district,"-which action of the collector was on November 3, 1889, affirmed by the commissioner of navigation. Notice. of the application was given to the collector and district attorney, the latter of whom appeared and filed a demurrer to the petition. The petition appears to have been filed under section 5292 of the vised Statutes. But that section has been superseded by section 17 of the act of June 22, 1874, (18 St. 186.) However, so far as this case is concerned, the sections are substantially the same. Said sectjon '17 provides:
"That.whenever, for an alleged violation of the customs revenue laws, any who shall be charged with having incurred any fine, penalty, forfeiture, ... ... ... shall present his petition to the judge of the district in which the alleged violation occurred, ... ... ... setting forth truly and particularly the facts and circumstances of the case, and praying for relief, such judge shall, if the case in his judgment reqUires, proceed to inquire, in a summary manner. into the circumstances of the case, at such reasonable time as may be fixed by him for that purpose, of which the district I&ttorney and the collector shall be notified by the petitioner, in order toat they may attend and show cause why the petition should be refused...
The case made by the petition is not one for the remission or mitigation of a fine, penalty, or forfeiture incurred by the petitioner, or any one else. A fine, penalty, or forfeiture can only be incurred by the do-v .42F.no.7-26
ing 'or omitting of some apt contrary to law. The Largo Law violated no provision of the customS' laws in' coming to Portland with this cement. . ,. .... ' .... . '. ' ' It is true that section or'the Revised Statutes forbids the transof m,erchandisefrom onepQrt of the United States to another, ,'.in wl,1oleorpart toa foreigner,utlder of forfeiture. But· 'moh' provides that merchandise brought from a foreign port in such vessel, and not nnladen, may be transported therein from one port to another port of the United States. No forfeiture of this cement could have occurred in this case, unless it was pnladeil at San Diego, and then taken on bpard. again, before coming tp this port.' It is claimed, I understand, that it was constructively unladen by being en. duties thereou, and ofsu?h duties. :But me .that. would be avery stramed mterpretatlOn of the tertn.';SQ:long 'as tlieceirientremained on board ofthe'vessel; as a matter :'of fact, ;in my judgment unladen. The·general. object of the statUtE\'iS':ti): prevent vessels owned by foreigners from engaging iil the coasting trade, and the special ex:ception is, that such a,vessel pr any part orit, a foreign port,from 'one dis'tnct tQap.otlierofthe United States.. However, no forfeiture was claimed iii this 'tind the petition. does not seek. relief against 'any such.. Yet "if the waS unladen at' San Diego; within the meaning of the stat'ute, .., '. . . " , . The tax: 1S reguJ,ated by section 4219 of the ReVlsed 'Statu'tes;',; (asainendedbyActFeb. 27, 'lS77, i10::). of 8,tntes, which sna1l be' entel'ed' lU one' d1stnct froW'aQother dlstnct, hatmg on board ,* * * ll'iprcllaIidise taken in' one) district to be delivered in another '. district,: be' paid at the l'8.teof fifty cents pel' ton;" . As may be seen,this ,section'only applies (6 vessels taking goodson hoard in one district to be'catried to anotlier, 'tqefefore does not eonftictwith,seb:tion4347, whipballowS: a: vessel belQng'ing to a'subject :of a foreign power fo 'catry 'so IilUch 'ofits; cargo as been brought from a foreign ':port;' and: ndtunhi.deIi;fr6m'one district to another Q1theUnited States. Section 2931 of the1ReV:ised Statutes provide!;! that the decision oitha collector, as to the rate of t.onnage tIl be paid on the entry of a vessel, '/i$olcll' be to ,the of the treasury , iV,pose . shall also ,he final; unless BU,it 3 of the lI.ct of ,Jqly:5, St.: 118,) creati,ogthe>bureauap,d ,commissionerof ,naviga.tion,' I aUquesthms, :arising uinler tonnage. tax.laws are referred to saidcommisslotler,and 'his decision ueclared to be final. ' . i.", ,', tpe,Reyised tba:tany vessel bririging "liier<%ttndise iIitotlle Uniteq P9xt; which ill shown ?,is'tr.i,cts' she first ar.rives, may,proce'ed'.with tpe'satpeil'()ffi dIlftt1et, and 'the duties pn 'M :ani district shall, 'pa1d .- .' '" ' .,.".
.Taking tliis legislation as a whole, it appears to me thr.tthe duties paid at SanPiego on the oement destined to Portland were improperly paid, and that the collector should have required the payment of the duties thereon at this port, and that the vessel was not liable to the tonnage tax imposed on it. Still, as has heen said, the case is not one of a fine, penalty, or forfeiture incurred, but of an erroneous imposition of a tonnage tax. For this the statute. gives the. party.a remedy by an appeal to the treasury departmeqt, on which the decision of the commissioner of navigation appears to be final. . The demurrer. is sustained, and the petition dismissed.
MARTINDALE '/:I. CADWALADER.
Oourt, E. D. PennB'l/wunw.. October 7', 1889.)
CuSTOMS DUTIES-CONSTRUCTION OJ' LAWs-CLASSIncATIoN-(JnA.CKIlR BOXEs'
The'customary packages in which biscuit were imported were tin boxes on wblch it was not unusual to employ more or less ornamentation. 'the testimony was that crackers in ornamental boxes sold for more per pound than those in plain. H"ld. that, if the .ornamental boxes enhanced the value, and increased the facilities for the sale (jf the crackers contained therein, then they had ause independent of their employment in the importation of merchandiae, and were .dutiable at 100 per cent.
ABBUmpsitby Thomas Martindale against John Cadwalader, Collector. This was a suit brought by the plaintiff to recover certain customs duties alleged to have been itnproperly exacted upon tin boxes in whicQ. crackers or biscuits were contained. The appraiser returned them as unusual. coverings, designed for use otherwise than for the bona fide transportation Of the goods into the United States, at 100 per cent. (section 7, Act March 3, 1883 j) and the protest claimed that they were free as ·the usual and, necessary coverings for that class of merchandise. Upon thE' trial itwRs: shown that tin was the material generally used for the cover· ings ofsucharlicles in transportation, but that the boxes in question, being higblyornamented and embossed, were equal to about one-half of the vnlue of the biscuits they contained, and after being emptied of their contents were sometimes used for household purposes. Edward.L. 'Perkins, for plaintiff. J. R. Read, U. S. Dist.Atty., and W.Jfilkins Carr, Asst. U. S. Dist. Atty., for detimdant.
BUTLER,J., (charging jury orally.) The plaintiff in ,this Cl).use imported a quantity of crackers into the United States conWned in boxes such as the one exhibited to you, and described by the witnesses. The customs officers believed these boxes to be suLjt'ct to .duty uudel; a vision of the seventh section oftha actof1883"tmd a duty Up011 them such as.the statutes provide. for)