.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)
frotIttheplaltititl',· he payiRg it under and appealing. Ite now seeks to recover by this'suit the duty so levied and collected. The seventh sectidn of the statute embracing the su.bject of this cOlitroversy, after repealing certain proviSions of statutes then in force authorizing the imposition of duties upon boxes and co,:erings used in the transportation of mEirchandise, proceeds· to say: "Hereafter none of the charges imposed by said sections 01' any other. provisions of existing law shall be estimated in ascertairii,ng the value of goods to be imported, nor shall the value", (this is important) "of the usual and necessary sacks, crates, boxes, or covering of any kind be estimated as part of their value" (that is, of the merchandise) "in determining the amount of. duties for which they are Hable." Congress intended, by this provision, not to exempt of the importations that were any part of the merchandise, or any lor sale as. merchandise, from duty, but the coverings, the means simply whereby the merchandise was safely conveyed to this country. The preceding language to guard against possible misapprehension the statute further provides"That if any packageSJ sacks, crates, boxes, or COYlll'ingsofany kind shall be of any material or form designed to evade duties thereon, or designed for use otherwise than in the bona fide transportation of goods to the United· states, th,e same.s'ball be subject to a duty of one hundred per cent." .. Nothing could be plainer than ihis. !twas intended not to exempt any part of the merchall.dise, anything that could be dealt jp as merchandise, bought and sold, from duty, but to exempt simply the coverings, the means of securing safety in transportation; and if a party in merchandise used a package or box or some other use, as well as for the impo'Ftation, and th1:1sdesigned to evade the revenue laws of the United States, he should be subject to the high rate of duty on the box or covering, provided for by this section; The evidence is that the larger proportion of this description of merchandise, crackers and biscuit, is brought here in tin boxes. A tin cov-· eringof some kind is said by the witnesses to be necessut:y, for the preservation of the crackers and biscuit. They must be protected from the moisture of the sea atmosphere, and where they are brought in plain tin boxes, as is'most usual, there is no question about the exemption from duty of the box.es. It is 'not unusual to employ fancy boxes, such as were used by the plaintifl:'. The question is whether these boxes were: designed for any other use than that of importing the biscuits or crackers, -'Yhether they were intended for any other use than covering and protecting the 'merchandise during transportation. If they ·were not, then they were not liable to taxation. If they were intended for any ,other purpose, then they were liable the tax which was !mposed by the collector. Were they intended for any other 'purpose? . The witneslles saythat, beyond their use in selling, the crackersb0ntained in them, they havena use independent of the transportation. But the :question is whether or not they are of value and designed for a use in. selling the crackers themselves. The testimony of the witnesses is that When the crackers are sold in these ornameptal boxes they sell for ,two .or three
ctlnts per:pouhdmore'than when sold in'the plain ones. If that is 80.' is it not plain that these boxes have a use independent altogether of the protection of the crackers in their importation to this county? If they enhance the value of the crackers contained therein, and increase the facilities for selling, then that is a use independent of their employment in the importation of the merchandise. It is for you to pass upon the evidence, and I say nothing that is binding, but I do not hesitate to say that, in the judgment of the court, if the evidence is believed, and, there is no contradiction, it being all from the plaintiff's witnesses and fr6m the plaintiff himself, the:5e boxes have a merchantable value outside their use in traLlfporting the crackers, and that value is ·obtained.in selling them . . The plaintiff requests the court to instruct the jury; tbat if they nr:ld the boxes upon, duties were imposed in this case had no,; other purpose. Or use than to enhallcethe coD,'7 tained to find a verdict for plaiQtiff, subject to the right.!>f . the court to enter judgment for the defendant non obstante veredicto, if the court be of ppinion, as matter of law, that a package or covering designed to increase the salability of the article therein contained, but, ha'ving' no o,tJ1er c,omrnerical use, is dutiable withi;!l se9tion70f the aet ; of congress, entitled "An act," etc., passed March 3, 1883.. This.point is refused. Verdict for defendant.
(Circuit Oourt, E. D. Pennsylvania.
October 8, 1889.)
CUSTOMS DUTIES-COl'lSTRUCTION OF LAWS-COVERINGS OJ!' MERCHANDISB
The purpose of section 7, Act Marcb 3, 1883, (customs duties,) was to entitle lin· porters of merchalldise to relief from payment of duty upon the genuine means ot preservation of merchandise in cour\le of transportation, by removing the duty upon ' the box, wrappings, or coverings that were usual and necessary in inclosing, protecting, and carrying the goads, and imposing a duty amounting to a penalty on packages which we113 intended for a SUbsequent use. Cubical blocks, capable of being arranged in a series of pictures, were imported in a box which also contained pictures from wjlich the pictures iJ;ltowhich the blocks were arranged, were found and a similar picture on tbe top of the lid: Testimony was given that the picture was placed on the. lid to save va.rnillhing it. Held, in the opinion of the court, as the pi,'ture alon.e is used, and It.di1fers in its use in nowise from tbe use of tbe other pictures contained in the box, the importer . is not liable to the 100 'per cent. penalty.
BoXES-PBN4L'l'lES. ;. . . ' .
Assumpsit by Anton Winters against John Cadwalader, Collector. This was a suit brought by the plaintiff to recover certain duties alleged by himtQ have been improperly exacted upon an importation of .cubic picture;blocks in boxes, upon the lids of which was pasted a picture into which the, contents could be arranged. . The 8:ppraiser returned