LAIDLA IN fl. ABRAHAM. '
LAIDLAWV. ABRAHAM, Collector.
(Otrcuit Court, D. Oregon. August 18, lSll0.)
TONNAGE DUTIES-ACTION TO ,l'tECOVER.
The Act of July 5. 1884, (28 St. 118,) which makes the decision of the commIssioner of naviglltion on the question of refunding a tonnage tax erroneously im· posed "final, " does not take away the right of action from the person who paid said'ta:t,but the' purpose and effect of the act is ,that such decision shall be" final" In the department, so that the secretary of the treasury shall not be burdened with the duty of reviewinj:/; it.
, An allegation that a collector "exacted" certain tonnage duties is equivalent to saying they were and liquidated" by him,. as. provided in section 0081, Rev.' 81;,;, all¢l ;an allegatIOn that the grounds of the obJectIon to the colleotor'lI decision exacting such duties were specitledin the notice to him "clearlY and distinctly" ill 'eqUivalent to saying they were "distinctly and specifically" set forth therein, as required in saill. secti!>n. ;, '
SAME-COASTWISE TRADE-FOREIGN VESSEL.
A vessel belonging in whole p.r in part to an alien may,under section 4847, ,Rev. St"pass from one district olthe UiJited States to another, Wit/i cargo brought from a ,foreign port. and not "unladen," without thereby becoming liable toa tonnago " tax under, sectiQn 4219, Rev., st.; and merlj:handise is not or "takep," " within the meaning of these 'terms, as used in these sections, unless there is an acft. ual, physical removal of the same from or to the vesseL . '" ,
Mr. JthinklinP. Mays, for defendant.
On d'emurrer to the second amended complaint·
,DEADy;,J. The plaintiff, James J...aidlaw, doing business as "James Laidlaw & Co.,n brings this action against Hyman Abraham, collector of customs at the port of Portland, in the district of Wallamet, to receiver the sum of $793.50, alleged to have been wrongfully exacted by the defendantfrom the British ship Largo Law, as a tonnage tax. It appears from the second amended complaint that the Largo Law,on October 5,1889, entered the port of San Diego, CaL, in the customs district of that name, with a cargo trom London, England, consistiug partly of cement, which was invoiced and destined for and discharged at said port, except 3,360 barrels of the cement, which were invoiced and destined for Portland, Or., or San Francisco, Cal. That the duty on the whole cargo was paid in good faith to the collector at the port of San Diego, who indorsed on the manifest a statement thereof, and cleared the vessel for Portlal}d, \fith the cement on board, first taking a bond from the agent of the, vessel, conditioned for the delivery of the cement at Portland,· where it was unladen for the first time since leaving London. On arriving here the defendant refused to allow the vessel to enter at the port, and "exacted" from the consignee thereof a tonna?;e taxeif 50 "cents a ton on her registered tonnage, amounting to $793.50, which sum t.he plaintiff, as isuch consignee, paid to the defendant under protest.
The Largo Law did not take on any cargo at San Diego, or elsewhere in the United States, fpr:delivery.at,fm·,tland That on November 7th, and within 10 days from the "exaction" of gavE:l n9tice in writing to the of his dissatsaid tax, therein clearly and distinctly isfaction with said the grounds of his objection thereto, and. of his intention to appea,]. therefrQD.1jand within 30 days froItithe lCe:x;ootion" of said tax and the date of said decision the plaintiff took dililmissed'on March 11, 1890, when this action ,was:oommenced,within·90 days thereafter. The district attorney filed a general demurrer to the complaint, to the does a cause is without jnwaapad,e that the allegation in the comthe notice;totbe collector 'within 10 days froni the "exaction" of the duties is not the equivalentoftliManguage of the statute, (section 2931, Rev. St. ,) which provides thaUtmustbegiven within . 'frOIli "of the' same. . ',Tlie:"exaction" of this tax:.consists in ascertaining , the amotintof it same, whi¢b n,e.cessarily · .the paymept thereof. " ,,; ',," The "ascertainment and liquidation" ofthe tax tbe same thing. The term "liquidation," as used in the statute and in the law generally, signifies "to, clear up j by settlf!ment RIfd . pict. t'LiquidatioIi." "'.' .... " ·.....· " " ' . "'" Another point of the same waS made,Jo is not alleged in the complaint, intbe l'allguage of the statu'te, (section 2931, Rev. St.,) that the grounds of the objection to the collector's decision set forth in the notice to him,butonly that: they were"specified .thereinclearly and distinctly.'" 'if · ' 1 ,'TMugQit is generally better to follow the language 'Of the 8tatute in 8UCb,;eases,. the wor.ds, 'used are sufficient for the' purpose. Section 3011, Rev. ,st., givesany person an action to recover"money ,paid to any collector' fas' duties," not authorized b.v law, for the purpose ofobtaining "posSession of merchandise imported ,for him," provided a and appeal have been haa'as, prescribed in section 2931; . ,In ,42 Rep. 401, the question whether the Largo Law .was lit\ble.to the pa.ym.entof a tounage tax or dutY'f on this occasion, was carefully considered by me. The inquiry involved the consideration and construction··of sectwns 2779,4219,4347, Rev. St., and the conclusion follows: . . ·'T"kint this leglslatioh BS B wllolEl. it appearstofue that the duties paid at San Dit>go:On' the.-ceme,nt destined 'to, Portland were' improperly. paid, and cQl1eotor ·AAve required the payment. of toe duties .thereonat ;tbisport,BIlc;l, ,VElSsel ,liable
.<;.SeCtion 4847 permitsmerchandisebronght. from a foreign port in'a vessel; bt'longing inwhole or Pllil'tlto. ,foreigner, and not "unllidEll)," to
LAIDLAW fl. ABRAHAM.
be transported therein from one port of the United States to another; and section 4219 provides: "Upon every not of the United States, which shall be entered in one district from another district, having on board * * * merchandise taken in one district. to be delivered in another district. duties shall be paid at th'e rate of fifty cents per ton." The mere fact that. the duty on this cement was paid or attempted to be pllidat San piego, as a matter of convenience or otherwise, did not amount to an unlading of it there; and, unless it was unladen as a matter of fact, it could not have been taken on there within the purview of section 4219. The "unlading" and "taking" mentioned in the statute is real, physical unlading and taking, imd not a constructive or fictitious one. The only other point, made in support of the demurrer is that the decision on the appeal to the secretary was, under the Act of July 5,1884, (23 St. 118,) in fact' made by the commissioner of nnvigation, and is by said act made final, and is therefore a bar to this action. , This act ,ia entitled "An act to constitute a bureau of navigation in the trEl$Surydepartmerit." The commissioner created by it is charp;ed, "under the direction of the secretary of the treasury" with many duties con· cerning "the commercial, marine, and merchant seamen of the United· States;" and, by section 3 thereof, "with the supervision of tbe laws reo lating to the admeasurement of vessels and the assigning of signal letters thereto, and of designating their official number; and on all qu"stions of interpretation growing out of the execution of the laws relating to these, 8,\Ibjects. and relating to the collection of tonnage tax, and to the refund of such tax when collected, erroneouslyor illegally, his 4ecision shall be final." . . At blush it may appear that this provision in the act of 1884 110 much of sections 2931. 30n, Rev. St., as gives the pd)1iIig:such illegal tax the right of redress in the courts, after an uri.', Bucidessfulappeal to the department. . ' ..' Bu\ db reflection, am .satisfied that the word "final" is used in this connection with to the department, of which the commissioner, is generally a subordinate part. ' my judgment, the purpose of the provision is to relieve the head ofthe department from the labor of reviewil?g the a9tion of the cpmmisto sidetrack into the bureau of navigation the sioner iilthese business of rating vessels fqr tOlinageduties, and dedding arising on appeals from the exaction of same by .' , The appeal is still ,taken. to the. secretary of the treasury, as provided, in section 2931, but goes to the commissioner for, decision, whose action. is'lfhla'l" in the department; as it would Dot be but for this provision. of the statute. " ,., I;\othingappearing totlle it followa that. glv¢ntu the UUSUCQessfql appellant in such cases is vvPtY.
,Wb.e appeal totha' dapartmenthas simply been decided by the commissioner, rather than the secretary, and, that having been adverse to the plaintiff, his right of action against the collector attaches at onc,e. . An,d, even if it were plain that congress in the passage of this act iiltended to deprive the plaintiff of all redress in the conrts, might he not in good reason claim that the act IS so far unconstitutional and void, as· being contrary to the fifth amendment, which declares that no person shall be deprived of his "property without due process of law?" The demurrer is overruled.
MCCALL '11. 'ELLINGER
(Otrcuit· Court, N. D. Illinois. July 22, 1800.)
,f,.\.TI'lNTS FOR INvENTIONs-NovII<LTY.,;,
'Letters patent No. 23a,425, issued October 19,1880, tpJohn A. McCall, for a "fiamof an oil-pot with a wick tube extending up from it, and beneath II to be blown into the flame through a tube With, a valve at its'upper end, are void for want of novelty.
. ' . ' . .
,.,Sai!d llatent is not infringed by a flam.beau containing a valve in the powder tube, 'in$teadof in the tube through which the operator blows.
, P0!Vert"s, for complainant:. . .. . Poore. & Brown, for defendant Cragin Manufacturing Company. 'H6]h""eimer &: Zeisler, for defendant Ellinger.
"l3t@GETT, J. The bill in charges ,the infiingement by de-. fendants'of letters patent No. 233,425, granted October 19,1880, tothe complit'iria1?-t. John A: McCall,for a "flambeau," and seeks an injunction and accounting. The was qisposed of by between the piutiesas'to the defendant several mouthssince,and has been brought to hearing on pleadings and proofs only as to th,e defendant the Cragin Manufacturing Company.. The device covered by the patent is a flam beau" ,or torch,to be used, in. processions, and ,on other occasions when l'ightand exhibitions offire-works are desired, and consists, briefly, in anoH-pot, with a wick-tube projecting ,upwardly therefrom, and underneaththe It receptacle. for the intrt>d:uction of powder, usually lycQPodiurii; to be blown througp a tube, projecting through the oU.poq\) as to bring the powder in cuntact with the flame, and pro- . duce 'itn itic,r'eased flaIpe and col<,>ted light.. " Infringement is charged only aida the' 'first claim, which is: . 1) A,composed of the an at Its appilrend, and a powder-chamber below at lts lower end, the, central tube disposed with its lower end neal' to the]ower'etiii 'ofthe'powder-chamber, and with its upper end extended through the oil-chamber. and baving