wele'all to, and were all, at the time of being offered, received l'iubject to the' objections so made. I now overrule all of said objecand admit all of Baid deeds, papers, and documents except the 9riginal records of the city of Tacoma. Extracts from said originals, containing all that is material, made under my direction, will be received and filed in the case in place of said original records. My opinion upon other questions debated by counsel would not be determinative bf the rights of the parties, and could not be regarded as anything more than obiter dicta, and therefore not of sufficient value to justify a fU1'the1' extension of this opinion. Findings of fact may be prepared, and a judgment will be entered in accordance with this opinion.
(C1n'cuit Court, S. D. New York. June 20, 1892.)
CUSTOMS LAWS-TARI!!'F AOT OF OCTOBER 1.
1890. Sm!lll, highly polished disks of pearl, which are plain on the back, with grooved rings Or hollowed out in front, with rounded edges, and wit.h small cavities in their centers, anli Which, except that they are not pierced with holes or shanked through .'their centers, exactly correspond in appearance with the ordinary superfine pearl buttons Qf .commerce, are not dutiable as pearl buttons, under the provision for such buttQns contained in paragraph 429 of the tariff act of October 1, 1890, (26 " St. p. 567,) but are dutiable as manufactures of mother of pearl, under the provision for such manufactures contained in paragraph 462 of the same tariff act.
At Law. Appeal by hnporters from decision of the board of United States general appraisers. Reversed., On ¥arch 18, 1891, the firm of B. & Co. imported by the country into the United States, at the port of New Eider from a York, cert,ainarticles consisting of small, highly polished disks of mother f?f pearl, whicq were plain on the back, with grooved rings or hollowed out in front,with rounded edges, and with small cavities in their centers; which,except that they were not pierced with holes or shanked their cl'luters, exactly corresponded in appearance with the ordiJj1ary,superfine pearl buttons of commerce. These articles were returned by the local appraiser as pearl buttons, together with a report that they werepp.ttons in a completed state, except the drilling of holes; that they were clearly defined in their character and use, notwithstanding the absence of this one element (drilling the holes)of completion; and that this 'was, omitted for the purpose and with the intention of evading the p1l-yment of the correCt rate of duty. The collector of customs aUhis pOtt for duty as pearl buttons, under the provision for " penrls,lldshellbuttons." contained in paragraph 429 of the tariff'act of October'l, 1890, (26 U. S. St. p. 567.) and exacted duty thereon "at the qf,tr;o and one half (2!) cents per line, button measure, ofone, fortieth (14q) pf one,(l) inch per gross, and in addition thereto twenty-five (25) percenturn ad valorem." Against this clal':lsification and this exaction the duly protested, claiming that these articles were dutiable at
the rate of 40 per centum ad valorem, as manufactures of pearl, ullder the provision for "manufactures of ivory, vegetable ivory, mother of pearl, and shell, or of which these substances, or either of them, is the component material of chief value, not specially provided for in this act," contained in paragraph 462 of the same tariff act. Thereafter, pursuant to section 14 of the customs administrative act of June 10,1890, (26 U. S. St. p. 131,) the collector transmitted the invoice of these articles, and all tne papers and exhibits connected therewith, to a board of three United States general appraisers to examine, and decide the case thus submitted. The board of United States general appraisers, upon the evidence produced before them, found, among other things, in addition to the facts hereinbefore stated, that the collector, at the time of making the aforesaid transmission, expressed the opinion that it was a constrained construction of the law to classify these article as buttons, but that he had made such classification and exaction, as aforesaid, in order to have the matter submitted to the board for an authoritative.decision; that these articles were small masses of mother of pearl or shell, which had reached such a stage of manufacture that they were unsuitable for use except as buttons; that they were neither shanked nor pierced, but techl1ically, and among manufacturers, they were known as "buttonsi" that regarding the claim made before the board by the importers, that these articles were button blanks and dutiable as manufactures of mother <>tpearl, articles known as" pearl button blanks" were rough disks, as they were sawed outfrom the shell; and that, admitting that thequestion involved was one of doubt, the doubt was insufficient to justify a reversal ofthe decision of the collector. The board of United States general appraisei"saccordinglyaffirmed the collector's classification and exaction. The importers thereupon, under section 15 of the aforesaid customs administrative act, applied to the United States circuit court for this district for a review of the questions of law and fact involved in the board's decision. After the board had made its return pursuant to an order granted upon this application, further evidence was taken under an order of the circuit court obtained for that purpose. This further evidence, among other things, showed that the relative cost in this country of piercing articles like those in suit with holes, so that they would exactly correspond in appearance with the ordinary superfine pearl button of commerce, was about one twentieth of the cost of the articles themselves. Albert Comstock, for importers. Edward Mitchell, U. S.Atty., and Thomas Greenwood, Asst. U. S. Atty., for collector.
LACOMBE, Circuit Judge. The collector, although he classified these articles as buttons, seemS fuhave done so only in order to make:up ll. case for submission to the board of appraisers, himself expressing the opinion that it is a "strained construction of the law" so to classify them ; and the board of appraisers expressly state that, in their opinion, the question is one of some' doubt, and that the doubt is insufficient to justify a reversal of the decision of the collector of the port; and for that reason
theyatligl)"h.iaaction"J!J'lw h9l!.rd,.tincl that the articles are "smallt Qf of Pe,adi orusheU, whiclll;\a-ve. rell.ched l'uch a sUlge :of for uae as buttons. It The evid,ence.does not seem:to warrant. that concll1sion,l?ecause there is distinct proof out of the moutPl'lQf witnesses whose character is unassailed, to tlW effect that these can· be, and in fact are, used to a than for the conlpletion of their sUbstantial extent for other: transtormll-tion into buttons, The board also find that the articles are neither shanked J)or pierce!i.;but technically, and among manulacturers t are. knowll as" buttons. "Manifestly they are not shanked or pierced t and how they may be knQwn,techllically among manufacturers is immatl:lrial. The. questiontQbe determined here is whether they are "buttons," within thelangul}ge .of the .w.ritf actt-Ianguage which is to be taken in its ordinary meani:Ilg unleasit appears that tt:llde and commerce bIJ.ve given some spepific met\niL\gto the words employed. Now, although tbey may>stop sburt of beingjQ9mplete buttons by a very small measure t that circumstance is immaterial; and it is also wholly immaterial with whatintent tbe process of their. mllnufacture W'as slopped at that point. sa to pave.been taken belore the board of appraisers 'mS g<>ing to show that theartides were imported in this :unfinished condition,in order that they migbtJe8cape the t.ariff rate laid upon pearl buttans t an<l:paythe ]ower.rate imposed onmanuiactures ()fp,earlor shell. In; Seeberger ,v. J''arweU, 139 U.; S. 608, 11 Sup. Ot. Rep. 6.50, it was held that the question; 8S to theintent:ofthe importer W/IS whoHy imulaterial t Ill'! congress pI:9videdtQaA.gQods in a particular condition should pllya lower rate.of d\l.ty tha.ngo()ds inanQther. It was and is the right ot theJmporter t if he so chooses, topnt his goods into such a condition to get them in lit,t the lower rate. for importathm here as There is no 6nding of the board ,of appraisers as to whether the word commarC'ial "buttlJns" or tbe words "pearl buttons" have meaning in tradll.and ,.AcQor(ling to the U!1ages of common heN:lare ;not QOltlpl\;ltfd lJUttOl'S, because tht'J; lack speech, these the eSllential element of a.<Jevict)iwhereby they may be affixed to garments. Somee,vidl:'nce wltsl;.giveot andexhiLit$introduced. as to a method .otpllsting them up(ln ch)th, but it was apparently an experimental use only. Mani lestly it disH)rts the cloth, as it has in the case of the exhibits submitte!li and llPonthis argument it became apparent, from actual experiment, that the presence of a little moisture so softened tQat the "l>utton," .,off. Under· tbese circumstances, the. such testimony can hardly be considered suffici",nt to ·establish the proposition that the articles imported here Ilre now in condition to be fasten,ad to for l:mttonEij, and. that so, it seems to me that come short Qf, theudesignatior. "buttons," as used in the tl,'ll-de,and. ill ,fact· ha ye, flat been E',1,lfficiently ,advllnced in manu facture to .beqome Qt 'Speech. For thes\;' reasons the decision of the, poar<.tof apprAisers is· reversed, and, t/1e collector directed to classify the articles in suit as manufactures of mother of pearl t. in their protest. as clllSmed by
UNITEb,s,\,ATES ti. WONG SING.
UNITED STATES V. WONG SING.
(District Oourt, D. Washington, N. D. June 24, 1892.)
'rhe of section 4 of the act of May 5, that all Chinese persons convicted of being unlawfully in the United States shall be imprisOned at hard labor for a period of not over a year, and thereafter removed from the country. does not, because of this" infamous punishment," render.it necessary, under the constitution, to proceed by indictment against all Chinese persons 'arrested under the act; for it is the evident intent of congress t\lat Chinese shall be removed by summary proceedings as heretofore, and to ,give effect to all the provisions of the act.it should be construed as requiring criminal prosecutions only in cases in which the government is able to procure evidence to justify the same.
At Law. Information chfl,rginKtQat the defendant is a Chinese son found in the United States, and that he is not lawfully entitled to be or remain therein. Demurrer to the information overruled. P. a. SuUivan, Asst. U. S. Atty. W. H. White, for defendant. District Judge. The argument in support of this demur,. rer is that the fourth section of the act of congress of May 5, 1892, entitled" An act to prohibit the coming of Chinese persons into the United States." requires the imprisonment at hard labor of persons cOllvicted under said law; and as he may, upon conviction,besubjected to an famous· punishment, therefore he cannot be brought to trial on, this charge upon an information. It is true that by the decisions of the supreme court violations of 18i\V which may be punished by imprisonment in;a penitentiary are held to be infamous crimes; and under the fifth article of the amendments to the constitution of the United, States no person Can be held to answer for an infamous crime except on a presentment, or indictment by a grand jury. Now, if it is also true, as contended by counsel for the defendant, that every Chinese person found to be unlawfully in the United States must, upon being so adjudged, be punished by imprisonment before being, sent out of the country, then it follows as a logical sequence that, by .tbis law, the government has tied the hands of its officers, so that hereafter there can be no such thing as ridding the country of Chinese invaders by proceedings of a summary character, as heretofore, and the courts must patiently proceed to dp,al with them one at a time, and, after a formal indictment by a grand jury, give to each of them a regular jury trial, and, as fast as the machinery of the law can be operated, fill the prisons of the country with them. These people have, since thedateofthefirstlaw enacted to restrict their immigration, demanded jury trials; and now, if by the new law this government has, in effect, acceded to such demand, they may easily defeat the law by coming in such numbers as to paralyze the courts. The capacity of the courts as to the number of cases which may be tried in accordance with law in a given time is limited. But the number of Chinese persons who may enter the country clandestinely and require trials, is comparatively un-