REPOUTER, vol. 42. UNITED STATES MIDGLEy.1
(District Court, E. D. Pemisywania. May 20, 1890.)
CUSTQMS DUTIES-WOOL-"MERINO BLOOt>, NEAR OR REMOTE. 10
In' the tariff act of 1883, in the enumeration of wools of the first class, the phrase, "wools of merino blood, near "remote" is limited to mean within the limit Qf merino blood requisite to characterize the wool as possessing merino qualities, and adding to the value.
SAME..-(JHANGlC OF CLASS-PRESUMPTION.
Where au article has been finally placed in a class other than that in which it was originally, and the collector bring'ssult to 'recover the excess of duty, he is entitled to a preimmptionthat it is rightfully placed in said otner class, and the burden of proof.is. on tne defendant. to prove that it rightly belonged to the class in which it had been formerly placed.
SAME.....EvIDENOE-CONFLICTING CLASSINGs. BY EXAMINER.
A wool was originally placed in the tbird class by the examiner, who afterwards, the orders of the appraiser, made another examination, and placed it in the second, and, upon the' refusal of the appraiser to Indorse, made a third examinatiOn, and placed it in tbe first class. On, trial several experts testified, upon seeing the wool for the first time, that it was plainly clothing wool, (first class.) Held, the fact of the originliJ.· jUdgment of the' government examiner was evidence for the defendant as to the" grade" of aud to impeach the reliability of plaintiff's expert testimony produced at the trial.
At Law. This was an action brought by the United States to recover $3,894.38, alleged to be due as additional duty upon an importa.tion of 221 bales of so-called "Smyrna wool," imported at Philadelphia, April 9, 1889. The wo()l was entered as carpet wool, and was valued a.t 5t pence per pound, dutiable at 2l cents per pound. The examiner in the first instance returned the wool as entered in class 3, under 12 cents a pound, and his return was approved by the appraiser as of April 15, 1889. Upon April 26, 1889,&' reclassification was made in cla.ss 2, under 30 cents a pound, at 10 cents a pound by the examiner, but no approval was entered by the appraiser. UpOll. Ma.y 22, 1889, a further reconsiderationand reclassification'was made in class 1, under 30 cents a pound, 10 cents a pound, and value advanced,to 6t pence per pound, and upon this classification the liquidation was made by the collector, and the bal· ance aforesaid alleged.. to be due.' The samples sent to the appraiser's stores for examination remained under the control of the government uutil liquidation. Protest was made by the importer that the government was bound by the first return of the appraiser, and that the other classifications were unlawful. It was also contended that the importation was bought, sold, and used under the name of "Smyrna wool." W. Wilkins Carr, Asst. U. S. Atty., for plaintiff. John G. Johnson and Frank Pritchard, for defendant. BUTLER, J., (wally charging the jury.) The plaintiff in this case asks the court to say to you: "(1) If you believe the article in suit is what is known.as clothing wool arid of merino blood, immediate or remote, or a wool of like character to any of those mentioned in class No. I, then your verdict should be for the plaintiff." That is correct.
lRepOl"ted by Mark Wilks Collet, Esq., of the Philadelphia bar.
Ul'lTED STATES V. MIDGLEY.
"(2) If you believe that the wool in suit is not designated or described in classes two and three of combing wools or carpet wools, then your verdict should be for the plaintiff." That is also correct. "(3) It is not necessary tllat the wool should be identical in its quality with the merino blood wools mentioned in the first classification of the tariff act, but if it is what is usually designated as a clothing wool like those named in the first classification. and possessing the same general quality of those wools, and having merino blood, then it properly falls within the first class, and your verdict should be for the plaintiff. " That is correct. "(4) Your verdict in this case should be for the plaintiff." I refuse that point. By the. tariff act of 1883 it is provided as follows: "All wools * * * shall be divided, for the purpose of fixing the duties to be charged thereon, into three * * * classes: Class one, clothing wools; that is to say merino. mestiza, metz, or metis wools, or other wools of merino blood,immediate or remote, down clothing wools, and wools of like character with any of the preceding, includiRg such as have been heretofore usually imported into the United States from Buenos Ayres, New Zealand, Australia, Cape of Good Hope, Russia, Great Britain, Canada, and elsewhere, and also including all wools not hereinafter described or designated in classes two and three." "Class two" I need not read, because it is not involved in this case. "Class three, carpet wools and other similar wools,-such as Donskoi, native South American Cordova Valparaiso, native Smyrna, and inclnding all such wools of; like character as have been heretofore usually imported into the United States from Turkey, Greece, Egypt, Syria. and elsewhere." It may be proper to remark that the wools named in the first clause are wools containing merino blood, fine wools, high-grade wools. All wools containing merino blood, in the language of the statute, nearor remote, are within the first clause, and embraced in the first class. The words, "merino blood, immediate or remote," require some remark. The word "immediate" probably requires nothing to he said of it, but the word "remote" does. As used in the statute, it signifies a degree of remoteness that is within the limit of merino blood requisite to characterize the wool, and add to its value. If the remoteness is beyond this, -so great that it does not characterize the wool as possessing merino qualities, does not add to its value,-then it is too remote to be within the meaning of the statute. In 1889 the defendant imported the wool in question. On its arrival it was sampled and examined by the proper customs officers,upon whom the duty of classification is devolved by law,--:-whn pronounced it "carpet wool," and consequently placed it in the third class. The defendant paid duty on it accordingly. Very soon tQ,eraafter the appraiser, ¥r. Leach, becomiJlg doubtful of the correctness of the classificat4on, reoalled the return that had been made to the collector, and diinspection a.Ij.d examination. The examiner, severilJ. ;days rected lawr1repqrted it as "combipg WQol," and .placed it in the
r11lisbeittg also, to the, appraiser, a still further exarn'ination' was made,attd'it wasfinally prdnounced to be "clothing ,wool," and was consequently placed in the first class, and subjected 'to duty aqcordingly., This higher duty the defendant; refused to pay; and the governwen,tnow S\1es to',rec?vettne difference, between the, $um paid in pur'suaneepfthe and the assessed on the final return. the wool})elol)g? ' This is the only question in , To W;111Ch class :the case., J)oes.it f!ll1:witbill the deElcription of the first clause read, and consequently belong to class one? or within the description of the third clause, and belong to class 3? There is no suggestiol.l that it is within the presumption the second class. Y'ou must start on, the inquiJ;y that it is within the first clause and belongs to The customs officers having decided that it belongs to this class, their finding must is 'proved. You be regarded and accepted as correct until the thus observe the burtlen is on the defendant to prove that the wool does Ilot fall within the description ofthe first clause,'and consequently that it is)mproperly classified. If,therefore, the defendant has not proved this, yourverdict must be against him, for the sum claimed. His contention is that the wool falls within the description of the third clause, ,and consequently that it belongs to the third class. If the evidence fails . to satisfy you he is' right in this, his defense fails. It is only necessary, therefore, to determine whether the defendant has proved that the wool faUs wiihitt the description of the third clause. Now, let us read this clause again: .. Class tIii-tle. carpet wools and other similar wools·.:....sl1chas Donskoi. native South American,Oordova. Valpal'aiso, native Smyrna, and inclUding all such wools of like character as have been heretofore usually imported into the United States from TurkElY. Greece, Egypt, Syria. and elsewhere;" It is proper to observe at this time that the words "native Smyrna," ih the light of the evidence before you, may be read" Smyrna," because, according to that evidence, all Smyrna wool is native Smyrna. There is no sucb thing as "native Smyrna," as contradistinguished from Smyrna wool. According to the. plaintiff's testimony, all the wool that is known to the trade as Smyrna wool is native Smyrna. There are not two descriptions of Smyrna wool, one Smyrna and the other native Smyrna; it is all Smyrna wool. So that as far as relates to this case, in view of the evidence, yOll can disregard the word "native;" if it is Smyrna wool it is native Smyrna wool. You observe that the clause embraces all "carpet wool," and that it also particularly specifies "Smyrna wool," as a "carpet wool." defendant contends that the wool before us is "carpet wool," and, furthermore, that it is "Smyrna wool;" that is, that it is "carpet wool" grown in Smyrna. If it is "Smyrna wool," itfollows that it is "carpet wool," and belongs to the third class, because the statute makes all "Smyrna wool," "carllet wool." The question is thus reduced to the narrow and single inquiry: Is this "Smyrna wool?" As you have seen, the words "carpet wool," used in this clause, embrace a similar description of wool from mani other countries besides Smyrna. The defendant, however, does
not ciaim that this is "carpet wool from .either of such other countries·, but asserts and claims that it is Smyrna wool." He imported it from England, he says, as "Smyrna wool," and it came to this country invoiced as "carpet wool." . Does the evidence satisfy you that it is "Smyrna: wool?" Many witnesses have been called on the· one side and the other: to instruct you on the subject. Those called by the defendant pronounce it "Smyrna wool;" in other words, carpet wool from Smyrna. They tell you why they so pronounce it. and speak with great positiveness on the subject. Thoseca.lledby the plaintiff say it is not "Smyrna wool," just as po&itively, and give their reasons for saying so. They further say it is a wool of merino blood, and consequently is "clothing wool." Respecting the presence of merino blood, and its quantity, the testimony on the one side and the other is in direct conflict also. The witnesses called generally are men of unusual intelligence, and of high character. Their wool dealers, woolen manufacturers, Of wool growers has been to qualify them to speak intelligently on the subject involved. Their disagreement may seem remarkable; but it must be remembered. that they speak from different stand-points, and may reasonably be supposed to feel some bias. It cannot be doubted, however, that they are honest, and believe what they say. I could not aid you by citing the testimony, and dwelling upon it. The duty is on you of determining whether the fact on which the defense rests, to-wit, that this is "Smyrna wool," is proved. If tbetestimpny upon the one side and the other is equally balanced, for and agaitistit, it is not proved. There must be a preponderance of testimony in its favor to prove it. A fact to which I adverted at the outset, is entitled to some weight probably in deciding this question. You must consider whether it is or not, and,if it is entitled to any, youmust determine how much. As it was there said, the government officers, in the first instance, themselves prono\lncedthis wool "carpet wool," treated it as "Smyrna wool," and consequently "ca.rpet wool," placing it in the third class. The examiner may possibly have been influenced in reaching his conclusion by the fact that it was invoiced as "carpet wool." This can hardly be supposed, however, in view of the fact that it was his sworn duty to examine it with great care, and form his judgment from such examination. This report or return was approved by the appraiser, Mr. Leach. He, the. appraiser, says, however, he did not examine the wool. Nevertheless this was the action of the government, and was an expression ofjudgment that the wool was "carpet wool"-a judgment based on examination by a competent officer-selected for this particular duty, because of supposed especial qualifications to perform it correctly, and at a time when there was no controversy, when no feeling had arisen, and when the duty,snd purpose of the officer wall, 'must have been, to get at the truth,at all events, to make no mistake against ,the government which·he represented. While this judgment and· finding did not bind; the government, but was subject to revision and correction, if incorrect, the fact that auch a judgment was pronounced,after examination, is ev"
idence,agaip.st the plaintiff,-appare:ntly entitled to some weight in deciding the 'question before us. Again, when the examiner was requested to make a .second. examination, a full and particular examination, he reported after some time had elapsed, effect that was not clothing wool,......in terms, that it was "combing wool,"-which belongs to the second class, and it was not till the appraiser demurred to this, by declining to indorse, that the examiner placed it in the first class. The fact that the examiner, ,after a sec()nd and presumably very careful examination, found it to be "combing wool," seems to be inconsistent with the testimony of the plaintiff's witnesses, who say that it plainly and distinctly appears to be "clothing wool," from inspection nlone,-such as they gave it in your presence. It is for you to say what weight these facts should; hay6.· Nevertheless, the questiQn whether this is" Smyrna wool," and consequently "carpet wool," is a question for you],' determination, from all the evidence in the cause bearing upon, it. If you find it is "Smyrna wool," your verdict will be for defendant, because if it is "Smyrna wool" it is carpet wool, and belongs to the third class. If you do not so find, your verdict will be for the plaintiff.
et al. ti.
(Vircuf.t Court, S. D. NeJW YorK. April 29,1890.)
The term "finished," as applied to house or cabinet furniture at and prior to the passage of the tariff act of March 8,1888, (22 U. S. St. 488,) in .the furniture trade of this country, was used to designate not only house or cabinet furniture that was in pieces fitted so that they could be put together, and made ready for use as SUCh furniture, but also house or cabinet furniture that was actually put together, and . made ready for use as such furniture when shellaced or varnished or painted or painted anll varnished, etc. 9. SAME-lHJRNITURE NOT FINISHED. The house or cabinet furniture dutiable under the provision for "house or cabinet furniturejn piece or rough, and not finished, "contained in Schedule D of this tariJf act, (TariJf Index, New, 229,) is house or cabinet furniture not only "in piece or rough," but also "not finished. " . 8. SAME. Cabin,et ware and house furniture, whether in pieces fitted so that they can be put together and made ready for use, or actually put tpgether and made ready for use, as suoh furniture, if "finished," is dutiable under the provision for "cabinet ware and house furniture, finished," contained in said SchedUle D, (TariJf Index, New, 280,) and not under the provision for" house or oabinet furniture in pieoe or rough, and not finished," contained in the same schedule, (Id. 229.)
CU8TOMllDUTIIlB-CoN8TRUCTION OI!'LAWS-CLASSIYIOATION-FI:NISHED FuRNITURE.
At Law. Action to recover back duties. During the year 1886 the plaintiffs imported from Vienna, Austria, into the ,port of New York, certain Austrian bent-wood furniture in pieoes; This furniture was .classified for duty under the provision for "cabinet. warE1 and house furniture, finished," contained in schedule D of the tariff act of 1883, (Tariff Index,New, 230j) and duty was exacted